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904 F2d 41 Salguero v. Postmaster General

904 F.2d 41

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Gloria SALGUERO, Plaintiff-Appellant,
v.
POSTMASTER GENERAL, Defendant-Appellee.

No. 89-15361.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 18, 1990.
Decided May 25, 1990.

Appeal from the United States District Court for the Northern District of California; D. Lowell Jensen, District Judge, Presiding.

N.D.Cal.

AFFIRMED.

Before HUG, SKOPIL and SCHROEDER, Circuit Judges.

1

MEMORANDUM*

2

Gloria Salguero was fired from her job with the United States Postal Service because she allegedly assaulted a co-worker.

3

On June 30, 1987, Salguero requested Equal Employment Opportunity ("EEO") counseling from the Postal Service. On September 14, 1987, Salguero filed a complaint with the Postal Service alleging race and reprisal discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16, et. seq. In October, 1987, Salguero's union representative notified the Postal Service that Salguero was filing a lawsuit through a private attorney. Soon thereafter, the EEO investigator contacted Salguero to set up an appointment. Salguero failed to cooperate and referred the investigator to her attorney. The Postal Service then tried to contact Salguero's attorney, but could not reach him.

4

On November 4, 1987, the Postal Service wrote Salguero a letter requesting her cooperation with the EEO investigation. The letter warned Salguero that failure to respond within five days would result in cancellation of her complaint. Neither Salguero nor her attorney responded to the Postal Service's request. Accordingly, on December 8, 1987, the Postal Service entered a final agency decision cancelling Salguero's complaint for failure to prosecute. See 29 C.F.R. Secs. 1613.215(a)(6), 1613.220(b).

5

On January 11, 1988, Salguero filed a civil complaint in district court seeking relief under Title VII. On January 9, 1989, the district court granted the Postal Service's motion for summary judgment. In a well-reasoned decision, the court found that Salguero failed to exhaust administrative remedies. We affirm.

6

After filing her complaint with the Postal Service, it is undisputed that Salguero failed to provide the EEO investigator with an interview or supply him with an affidavit to be used in processing her complaint. Salguero's failure to cooperate with the Postal Service's investigation is analogous to the situation in Rivera v. United States Postal Serv., 830 F.2d 1037 (9th Cir.1987), cert. denied, 486 U.S. 1009 (1988).

7

Salguero's attempt to distinguish Rivera is unavailing. While the employee in Rivera officially withdrew his appeal to the EEOC, Salguero merely refused to cooperate with the Postal Service's investigation of her complaint. Regardless of this distinction, Salguero's action here, as with the employee's action in Rivera, amounted to an abandonment of the administrative process. "[T]o abandon one's claim, [is] to fail to exhaust one's remedies." Id. at 1039.

8

Salguero contends that the Postal Service's final decision cancelling Salguero's complaint and informing her of her right to sue in federal court was misleading. However, Salguero's refusal to cooperate with the EEO investigation pre-dated the Postal Service's final decision. Therefore, Salguero could not have relied on the Postal Service's final decision when she refused to cooperate with the agency investigation and abandoned the administrative process.

9

We find the other grounds urged by Salguero for reversal unpersuasive. The district court judgment is

10

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3