that anyone who files too early, has, by definition, filed before she has exhausted her administrative remedies." 916 F.2d at 248. To hold otherwise, the Court concluded,
would allow a plaintiff to file an action and begin civil proceedings -- discovery, motions to dismiss and for summary judgment, and so on -- before completing the course of administrative review. A plaintiff could thereby largely circumvent the rule that she must exhaust her administrative remedies. To allow a plaintiff to proceed in such a fashion would, in short sequence, produce all the evils that are designed to be avoided by requiring exhaustion of administrative remedies.
Id. at 249; see also Vinieratos, 939 F.2d at 769 ("Having opted initially to pursue relief through the EEO process, appellant was committed. Abandonment of that process in order to pursue another avenue of relief constituted a failure to exhaust the one appropriate administrative remedy he had selected."). Noting that a rule prohibiting a Title VII plaintiff from filing too early "creates no greater burden than does the well-settled prohibition against filing too late," the Fifth Circuit concluded that the plaintiff had failed to exhaust her administrative remedies and that the district court lacked jurisdiction over her claim. Id.
Recently, the Seventh Circuit addressed a similar situation in an Age Discrimination in Employment Act ("ADEA") case. See McGinty v. United States Department of the Army, 900 F.2d 1114 (7th Cir. 1990). In McGinty, the plaintiff had filed an age discrimination lawsuit in federal court after the Army had denied her complaint but before she had filed an appeal with the EEOC. Id. at 1115. The district court dismissed plaintiff's claim for lack of subject matter jurisdiction, finding that plaintiff had failed to completely exhaust her administrative remedies. Id. at 1115-16. The Seventh Circuit affirmed the district court's decision, agreeing with those decisions which have found that "administrative remedies, once initiated, must be exhausted before a suit may be filed." Id. at 1117. In so doing, the Court of Appeals adopted the rationale of a Third Circuit decision which mirrors that set forth in Tolbert. Id. The Third Circuit explained in Purtill v. Harris, 658 F.2d 134, 138 (3d Cir. 1981), cert. denied, 462 U.S. 1131, 103 S. Ct. 3110, 77 L. Ed. 2d 1365 (1983), that
allowing a plaintiff to abandon the administrative remedies he has initiated would tend to frustrate the ability of the agency to deal with complaints. All participants would know that at any moment an impatient claimant could take his claim to court and abort the administrative proceedings. Moreover, such a course would unnecessarily burden courts with cases that otherwise might be terminated successfully by mediation and conciliation.
See also Vinieratos, 939 F.2d at 771 (discussing McGinty); Chennareddy v. Bowsher, 290 App. D.C. 149, 935 F.2d 315, 321 (D.C. Cir. 1991) (collecting cases); Wrenn, 918 F.2d at 1078; Bornholdt v. Brady, 869 F.2d 57, 63 (2d Cir. 1989); Rivera v. United States Postal Service, 830 F.2d 1037, 1039 (9th Cir. 1987), cert. denied, 486 U.S. 1009, 108 S. Ct. 1737, 100 L. Ed. 2d 200 (1988); Castro v. United States, 775 F.2d 399, 404 (1st Cir. 1985); White v. Frank, 718 F.Supp. 592-97 (W.D. Tex. 1989), aff'd, 895 F.2d 243 (5th Cir. 1990), cert. denied, U.S. , 111 S. Ct. 232 (1990). The Court finds that the rationale of McGinty and similar ADEA cases is equally compelling in the instant Title VII action. See Tolbert, 916 F.2d at 248-49 & n.1 ("The same reasons that counsel against allowing complainants to abandon their ADEA administrative actions also counsel against allowing abandonment of Title VII appeals to the EEOC."). To permit plaintiff to file a civil action in federal court after the filing of a formal complaint with the agency, but prior to the expiration of the 180-day waiting period, would render a nullity the statutory and regulatory requirements set up by Congress and the EEOC. The Court cannot allow such a result.
Viewing all facts in the light most favorable to plaintiff, the Court finds that plaintiff filed a grievance with an EEO counselor on January 25, 1990, that he received his Notice of Final Interview on October 17, 1990, and that he filed a formal complaint with the agency on October 25, 1990. Thus, the 180-day waiting period set forth in 29 C.F.R. § 1613.281(b) began to run, at the earliest, on October 25. When Patel filed his action in this Court on November 14, 1990, the agency had not rendered a final decision on his complaint. In fact, the agency continued to process plaintiff's complaint even after the filing of this case. (See Plaintiff's Mem. Ex. L.) Plaintiff came to this Court prematurely, and this Court was therefore without jurisdiction to hear his Title VII claim. Moreover, the fact that 180 days have since passed while this case has been pending does not cure plaintiff's error. Such a rule would permit plaintiff to file prematurely and then to wait out the 180-day period in this Court. Subject matter jurisdiction is lacking due to plaintiff's failure to exhaust his administrative remedies. Defendants' motion to dismiss count I of the first amended complaint is granted.
B. Count II -- First Amendment Claim.
Defendants also have moved to dismiss count II for lack of subject matter jurisdiction. Defendants argue that plaintiff's first amendment claim must be dismissed because Title VII and the Civil Service Reform Act provide the comprehensive and exclusive remedies for federal employees who charge discrimination or retaliation in their employment. See Bush v. Lucas, 462 U.S. 367, 390, 103 S. Ct. 2404, 2417, 76 L. Ed. 2d 648 (1983); Brown, 425 U.S. at 829, 96 S. Ct. at 1967; Feit v. Ward, 886 F.2d 848, 855-56 (7th Cir. 1989); Germane v. Heckler, 804 F.2d 366, 369 (7th Cir. 1986) ("as a federal civil service employee, [plaintiff] cannot state a First Amendment claim"); see also Kotarski v. Cooper, 866 F.2d 311 (9th Cir. 1989).
Plaintiff has failed to respond to the substantial authority cited by defendants which would require dismissal of his first amendment claim. Instead, plaintiff relies on various decisions which broadly outline the first amendment right to freedom of association.
However, none of these cases relate to a federal employee's claim of discrimination, and none rebut the relevant authority cited by defendants which mandates dismissal of plaintiff's first amendment claim. Based upon the above authority, it is clear to this Court that a federal employee is limited to the remedies for discrimination in the workplace provided by Congress in Title VII and the Civil Service Reform Act. Thus, count II of plaintiff's complaint must be dismissed.
For the reasons set forth above, the Court grants defendants' motion to dismiss count I for lack of subject matter jurisdiction. Defendants' motion to dismiss count II also is granted. Plaintiff's complaint is dismissed with prejudice.
ILANA DIAMOND ROVNER
UNITED STATES DISTRICT JUDGE
DATED: November 26, 1991