McCoin v. Veterans Affairs ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 19 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN MACK McCOIN,
Plaintiff-Appellant,
v. No. 97-3136
(D.C. No. 96-4104-SAC)
SECRETARY OF VETERANS (D. Kan)
AFFAIRS, Jesse Brown; JUDY
ARNOLD, Chief of Social Services,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mr. McCoin is a pro se litigator who appeals the dismissal of his civil
complaint. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the
decision of the district court.
Mr. McCoin was a social worker employed by the Department of Veterans
Affairs until his retirement in March 1994. In April 1993, his supervisor
counseled him regarding his involvement with a publication known as the Adult
Residential Care Journal. Mr. McCoin was the editor and publisher. In the
counseling letter, Mr. McCoin was told he could not use government property to
conduct private business or conduct private business on the Department of
Veterans Affairs time. Mr. McCoin also received verbal counseling on May 26,
1993, and a second letter of counseling dated May 28, 1993, which concerned Mr.
McCoin's conduct at a meeting. Mr. McCoin felt these counselings were an
attempt to "get rid of [him] because of [his] age."
On May 28, 1993, Mr. McCoin contacted an Equal Employment
Opportunity Agency ("Agency") counselor raising this complaint. In July 1993,
Mr. McCoin filed a formal administrative complaint with the Agency alleging sex,
age, handicap, and reprisal discrimination. The Agency investigated this
complaint and on June 8, 1994, found the evidence did not substantiate Mr.
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McCoin's allegations of discriminations. Mr. McCoin's attorney received notice
of the final Agency decision on June 10, 1994.
Mr. McCoin did not appeal the decision until December 23, 1994, more
than six months after the Agency's final decision. Mr. McCoin filed the
complaint initiating this action on June 6, 1996, in the United States District
Court for the District of Kansas. In his complaint, Mr. McCoin alleged sex, age,
race, and handicap discrimination. The district court dismissed the lawsuit
determining it lacked subject matter jurisdiction because the action was not timely
filed. We review de novo the district court's dismissal for lack of subject matter
jurisdiction. Painter v. Shalala, 97 F.3d 1351, 1355 (10th Cir. 1996).
Mr. McCoin appeals asserting the district court "denied relevant evidence
that the appeal was timely and, therefore, ... [violated] ... my civil rights." Mr.
McCoin supports this allegation by asserting the "District Court did not consider
the fact that Defendant Arnold et al. violated my civil rights by incorrectly
claiming that Defendant Arnold was [my] supervisor," and "Defendant Arnold
verbally harassed [me] between late May 1993 and up until nearly the time of
[my] retirement in April 1994." He further argues, "[i]t is my impression that
there is no statute of limitations in age discrimination cases."
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Mr. McCoin's appeal lacks legal merit. The record on appeal is clear and
undisputed. The final agency decision on Mr. McCoin's administrative complaint
was issued June 8, 1994. Mr. McCoin's attorney received the final agency
decision June 10, 1994. Mr. McCoin had thirty days from June 10, 1994, to
appeal the Agency decision to the Equal Employment Opportunity Commission
or, alternatively, ninety days from June 10, 1994, to file an action in federal
district court. 1 See 29 C.F.R. §§ 1614.402, 1614.408(a). Due to Mr. McCoin's
failure to timely exhaust his administrative remedies or file suit, the district court
lacked jurisdiction to hear this matter and the district court properly dismissed
this matter.
Mr. McCoin asks this court to excuse his untimely filing as his attorney
failed to notify him promptly of the final agency decision. We are unable to grant
this relief. The Supreme Court has instructed that when notice is delivered to the
office of the claimant's formally designated attorney, the claimant has received
notice and is bound thereby. See Irwin v. Department of Veterans Affairs, 498
U.S. 89, 92-93 (1990); see also 29 C.F.R. § 1614.402(c).
1
In response to Mr. McCoin's claim a statute of limitations does not apply
in age discrimination cases, this court has ruled the time limitations in Title VII
cases apply to age discrimination actions. See Jones v. Runyon, 32 F.3d 1454,
1456, 1458 (10th Cir. 1994).
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Mr. McCoin asks us to ignore the jurisdiction requirements of Title VII and
the Age Discrimination in Employment Act for equitable reasons. Our law
prohibits this as well unless the circumstances of the case "'rise to the level of
active deception.'" See Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267
(10th Cir. 1996) (quoting Cottrell v. Newspaper Agency Corp., 590 F.2d 836,
838-39 (10th Cir. 1979)). No such facts have been alleged in this case.
The district court did not have subject matter jurisdiction over Mr.
McCoin's lawsuit and had no alternative except to dismiss the lawsuit.
The decision of the district court is AFFIRMED for substantially the same
reasons set forth by the district court in its order, a copy being attached hereto.
The mandate shall issue forthwith.
Entered for the Court
WADE BRORBY
United States Circuit Judge
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