Luna v. Roche , 71 F. App'x 366 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 14, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-51355
Summary Calendar
MARY E. LUNA,
Plaintiff-Appellant,
versus
JAMES D. ROCHE, Secretary United States Air Force,
Defendant-Appellee.
________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-02-CV-503-EP)
_______________________________________________________________
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Mary Luna filed this action for, inter alia, discrimination by
the Air Force against her based on race, sex, age, and disability.
Luna was terminated from her employment at Kelly Air Force Base in
1992 for excessive absenteeism. From 1992 to 1999, she received
disability benefits, as administered by the Office of Personnel
Management (OPM).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Between 1997 and 1999, OPM requested Luna provide
documentation showing her continued disability; she failed to do
so. In 1999, OPM advised Luna by letter that it had never received
from the Air Force a form required for disability benefits; in
fact, OPM had received such a letter in 1992. The benefits were
discontinued in June 1999.
Luna filed an EEOC complain, which was denied. Pursuant to a
right-to-sue letter, Luna filed this action. Summary judgment was
awarded the Air Force because Luna had failed to exhaust
administrative remedies.
Luna appeals, pro se, contending: (1) the Air Force
discriminated against her by failing in 1992 to provide the OPM
with a form necessary for disability benefits; and (2) she is
entitled to job reassignment or relocation, as of 1999, pointing to
a similarly situated employee who was employed by Kelly Air Force
Base at that time. (Her motions for appointment of counsel and
permission to expand the record excerpts are DENIED.)
A summary judgment is reviewed de novo. E.g., Beeler v.
Rounsavall, 328 F.3d 813, 816 (5th Cir. 2003). Such judgment is
appropriate only if there is no material fact issue and the movant
is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c);
e.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Luna’s claim about any discrimination in 1992 is time-barred,
and the district court properly dismissed it for failure to then
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exhaust administrative remedies. See 29 C.F.R. § 1614.105(complainant must contact EEO counselor within 45 days of alleged
race or sex discrimination); 29 U.S.C. § 633a(d) (complainant must
provide 30-day notice of intent to sue within 180 days of last day
of employment). In any event, the Air Force did provide the
requisite form to OPM, and Luna received benefits for seven years.
As for the Air Force’s failure to offer her a job reassignment
in 1999, Luna does not provide a basis entitling her to
reassignment seven years after her termination.
MOTIONS DENIED; JUDGMENT AFFIRMED
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