Minoo Kobraei v. Keith Alexander , 521 F. App'x 117 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2122
MINOO E. KOBRAEI,
Plaintiff – Appellant,
v.
GENERAL KEITH B. ALEXANDER, Director, National Security
Agency,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:11-cv-03498-ELH)
Submitted: March 25, 2013 Decided: April 5, 2013
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
James C. Strouse, STROUSE LEGAL SERVICES, Columbia, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, Andrew
G.W. Norman, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Minoo Kobraei appeals the district court’s order
granting summary judgment as to her employment discrimination
claims under Title VII for failure to exhaust her administrative
remedies. On appeal, Kobraei asserts that the district court
erred in concluding that she failed to exhaust her
administrative remedies when she did not respond to the vast
majority of the agency investigator’s interrogatories. We
disagree, but we remand to the district court for dismissal of
the action for lack of subject matter jurisdiction.
As a threshold matter, we must consider the
appropriate standard of review. It is well-settled that a
plaintiff must exhaust her administrative remedies before filing
a lawsuit under Title VII. See, e.g., Chacko v. Patuxent Inst.,
429 F.3d 505, 513 (4th Cir. 2005). “[A] failure by the
plaintiff to exhaust administrative remedies concerning a Title
VII claim deprives the federal courts of subject matter
jurisdiction over the claim.” Jones v. Calvert Grp., Ltd., 551
F.3d 297, 300 (4th Cir. 2009); see Bonds v. Leavitt, 629 F.3d
369, 379 (4th Cir.), cert. denied sub nom Bonds v. Sebelius, 132
S. Ct. 398 (2011); Davis v. N.C. Dep’t of Corr., 48 F.3d 134,
137 (4th Cir. 1995). Where the court lacks subject matter
jurisdiction, “the proper course [is] to dismiss the claim
instead of granting summary judgment on it.” Laber v. Harvey,
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438 F.3d 404, 414 n.5 (4th Cir. 2006); see Jones, 551 F.3d at
301.
The plaintiff bears the burden of proving the
existence of subject matter jurisdiction. Smith v. Wash. Metro.
Area Transit Auth., 290 F.3d 201, 205 (4th Cir. 2002). In
considering a Rule 12(b)(1) motion challenging the factual basis
for subject matter jurisdiction, “the district court is to
regard the pleadings’ allegations as mere evidence on the issue,
and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Richmond, Fredericksburg & Potomac R. Co. v. United States, 945
F.2d 765, 768 (4th Cir. 1991). The court should grant the
motion “only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a matter
of law.” Id.
Applying this standard, we conclude that the district
court appropriately determined that Kobraei failed to exhaust
her administrative remedies. Kobraei essentially asserts on
appeal that the interrogatories propounded by the agency’s Equal
Employment Opportunity (“EEO”) investigator imposed too heavy a
burden on her, contrary to Congressional policy, and that her
limited compliance with the investigator’s requests was adequate
to exhaust her remedies. We are cognizant that the exhaustion
requirement “should not become a tripwire for hapless
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plaintiffs” through unduly burdensome technical requirements.
See Sydnor v. Fairfax Cnty., 681 F.3d 591, 594 (4th Cir. 2012).
However, Kobraei’s assertions are unavailing. While Kobraei
relies heavily on Clark v. Chasen, 619 F.2d 1330 (9th Cir.
1980), we find this case readily distinguishable on its facts.
Moreover, Clark expressly recognized that dismissal may be
appropriate for failure to exhaust administrative remedies when,
as here, a complainant fails to meaningfully cooperate with
reasonable investigatory efforts. See id. at 1337 n.18.
Although Kobraei asserts that she provided evidence to
establish that the investigator refused to interview her, our
review of the record indicates that the district court properly
rejected this contention. Kobraei provides no basis to conclude
that her provision of voluminous records, without explanation or
organization, enabled the investigator to reach an informed
understanding of her claims, absent further guidance from
Kobraei regarding her allegations. Rather, despite several
extensions of time to comply with the investigator’s requests
for written responses and multiple warnings of the agency’s
intent to dismiss her claims, Kobraei wholly failed to answer
interrogatories regarding the basic underpinnings of her claims.
Kobraei’s failure to provide responses to any of the substantive
interrogatories propounded by the investigator effectively
prevented the investigator from performing the functions served
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by the administrative exhaustion requirement. Under these
circumstances, we conclude that the EEO was justified in
dismissing her complaint for failure to cooperate, see 29 C.F.R.
§§ 1614.107(a)(7), 1614.108(c)(3) (2012), and that her actions
were inconsistent with exhaustion of her administrative
remedies, see Woodard v. Lehman, 717 F.2d 909, 913-17 (4th Cir.
1983); Johnson v. Bergland, 614 F.2d 415, 417 (5th Cir. 1980);
cf. Jasch v. Potter, 302 F.3d 1092, 1094-96 (9th Cir. 2002).
Finally, Kobraei argues that she is entitled to review
of the merits of her claim because the EEO office took more than
180 days to investigate her claim and to reach a final
determination. Because Kobraei did not raise this issue in the
district court, we decline to review it in the first instance.
See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993)
(recognizing that issues raised for first time on appeal
generally are not considered absent exceptional circumstances).
Accordingly, although we conclude the district court
properly determined that Kobraei failed to exhaust her
administrative remedies, we remand to the district court for
entry of an order dismissing the case for lack of subject matter
jurisdiction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
VACATED AND REMANDED
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