936 F2d 577 Croney v. L Ball III

936 F.2d 577

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Samuel Von CRONEY, Plaintiff-Appellant,
William L. BALL, III, Secretary of the Navy, Defendant-Appellee.

No. 90-56174.

United States Court of Appeals, Ninth Circuit.

Submitted June 7, 1991.*
Decided June 11, 1991.

Before GOODWIN, PREGERSON and ALARCON, Circuit Judges.

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Samuel Von Croney sued the Secretary of the Navy for damages for race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Croney's suit contained numerous allegations but was dismissed because one claim was not timely filed with the district court and all remaining claims were not administratively exhausted. We affirm.


Croney was employed for approximately six years as a guard at the Naval Weapons Station, Seal Beach, California. While so employed, he filed one complaint with the Equal Employment Opportunity Commission ("EEOC") in which he alleged racial and sexual discrimination resulting from a female co-worker's rubbing of his arm in a sensuous manner.


Croney's allegation was investigated but yielded a Final Agency Decision of no discrimination. Croney appealed, and the Office of Review and Appeals ("ORA") also concluded there was no discrimination. After receiving Croney's request to reconsider, the ORA on July 15, 1988 again concluded there was no discrimination and further notified appellant that he had thirty days from receipt of its letter in which to file a civil action in the appropriate federal district court.


Despite notification of the requirement that he file suit within thirty days, Croney did not file this action until March of 1990, approximately twenty months too late. Failure to sue within the thirty day period acts as a statute of limitations to bar any future suit. Boyd v. U.S. Postal Service, 752 F.2d 410, 414 (9th Cir.1985). Therefore, the district court lacked subject matter jurisdiction and dismissed Croney's only exhausted claim under Fed.R.Civ.P. 12(h)(3) ("Whenever ... the court lacks jurisdiction of the subject matter, the court shall dismiss the action.").


With respect to Croney's remaining allegations, federal regulations require a federal employee to bring his grievance to the attention of the EEOC within thirty days of an alleged discriminatory incident. 29 C.F.R. Sec. 1613.214(a)(i). Except for the event described above, Croney did not comply with this exhaustion requirement. Exhaustion encourages rapid and efficient resolution of discriminatory complaints, Ong v. Cleland, 642 F.2d 316, 320 (9th Cir.1981), and failure to exhaust administrative remedies supports a dismissal for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).


The district court properly dismissed Croney's claims as time barred or not exhausted.

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The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3