Bullock v. Berrien

A federal employee exhausts administrative remedies when asserting discrimination claims under the Rehabilitation Act by (1) first filing an informal complaint, (2) filing a formal complaint for a decision by an ALJ if an informal solution is not achieved, and (3) filing an optional civil action in “federal district court within 90 days of receiving notice of final agency action on the employee’s formal complaint by the ALJ” or after 180 days “from the filing of the complaint if no final action has been taken by that time”.

Mary Bullock, an employee of the Equal Employment Opportunity Commission (“EEOC”), brought a disability of discrimination suit under the Rehabilitation Act of 1973, 29 U.S.C. § 701. Bullock suffers from “Multiple Sclerosis and Systemic Lupus” and worked for the EEOC as an ALJ. Bullock first filed an informal complaint for violations of the “Rehabilitation Act.” In May 2003, she filed a formal complaint. A contract ALJ held the hearing and found that Bullock was “not a qualified individual with a disability” because even with accommodation, she would not perform “the essential functions of her job”. Bullock then filed an administrative appeal on August 18, 2006 but withdrew her appeal on September 18, 2006, because she intended to file a civil suit. On October 18, 2006, Bullock filed suit in district court. Bullock appeals the district court dismissal of her complaint for failing to exhaust administrative remedies. Under Rivera v. United Sates Postal Service, the district court held that Bullock had violated 29 C.F.R. § 1614.407(d) because she did not wait 180 days after her administrative appeal before filing suit. The Ninth Circuit held that, under Bankston v. White, Bullock had exhausted her administrative remedies by filing the formal complaint that was adjudicated by the ALJ. After the final agency action was taken on her complaint, Bullock had the option of either “filing an administrative appeal” or filing suit directly in district court within “90 days of receiving notice of the agency action”. The Ninth Circuit held that an employee has the option of withdrawing an optional administrative appeal if she is going to file suit in district court without waiting “180 days from the filing of the notice appeal”. The Ninth Circuit further held that an employee’s suit in district court could proceed even if the employee withdrew her administrative appeal. REVERESED AND REMANDED.