No. 87-1588.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Northern District of California; William H. Orrick, Jr., District Judge, Presiding.

Before SCHROEDER, PREGERSON and BRUNETTI.

MEMORANDUM*

This is an appeal from summary judgment in an action for injunctive relief, loss of wages and benefits, damages and attorney's fees under the Age Discrimination Employment Act ("ADEA"), 29 U.S.C. Sec. 633a. In late 1983, the Navy denied appellant Scott a promotion to the position of Aerospace Engineer; he filed a formal administrative complaint claiming that he was denied the position because he was 65. Appellant was informed on March 19, 1985 that the administrative officer investigating the complaint proposed a finding of no discrimination. Ten days later, appellant applied for retirement from his employment with the Navy.

Although the Equal Employment Opportunity Commission ("EEOC") appointed a Complaints Examiner to conduct a discrimination hearing pursuant to 29 C.F.R. Sec. 1613.217(b), appellant withdrew his request for a hearing and requested a decision by the Secretary of the Navy. In May, 1986, the Secretary determined that the Navy discriminated against appellant on the basis of age and ordered his promotion to the position of Aerospace Engineer with full back pay. See 29 C.F.R. Sec. 1613.221(b)(3).

In September, 1986, appellant filed this action in district court alleging that he retired from the Navy due to the discrimination of his employer. The district court granted appellee's motion for summary judgment, holding that plaintiff failed to raise administratively his forced retirement claim, thus precluding his judicial action. The court reviews the district court's grant of summary judgment under a de novo standard. Triangle Mining Co., Inc. v. Stauffer Chemical Co., 753 F.2d 734, 738 (9th Cir.1985).

The ADEA prohibits discrimination in federal employment on account of age. 29 U.S.C. Sec. 633a. Employees claiming discrimination may either give the EEOC 30 day's notice of intent to sue and then file an action in federal court, or they may file charges with the EEOC and later file an action in federal court if dissatisfied with the administrative determination. 29 U.S.C. Sec. 633a(c), (d); Limongelli v. Postmaster General of the United States, 707 F.2d 368, 373 (9th Cir.1983). If an employee files a claim in district court without fulfilling one of these statutory prerequisites, that claim is barred. See, e.g., Bunch v. United States, 548 F.2d 336, 340 (9th Cir.1977).

Appellant did not file his forced retirement claim with the Navy or the EEOC, nor did he give either of those agencies notice of the claim before he filed suit in federal court. However, appellant claims that his forced retirement is reasonably related to his prior EEOC allegations and, therefore, need not have been raised in the prior administrative proceedings.

When an employee files a judicial complaint encompassing incidents not listed in his administrative charge, the complaint may address any discrimination like or reasonably related to the allegations in the administrative charge, including new acts occurring during the pendency of the charge. Limongelli, 707 F.2d at 373, quoting Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973). However, the addition of new claims may not conflict with the ADEA purpose of encouraging informal resolution of disputes. Thus, in discussing the purpose of Title VII administrative remedies, we have said:

[t]he absence of a perfect "fit" between the administrative charge and the judicial complaint is ... not fatal to judicial review if the policies of promoting conciliation and avoiding bypass of the administrative process have been served.... Allowing a federal court complaint to proceed despite its loose "fit" with the administrative charge and investigation, however, is precluded if it would circumvent the Title VII scheme which contemplates agency efforts to secure voluntary compliance before a civil action is instituted.

Ong v. Cleland, 642 F.2d 316, 319 (9th Cir.1981).

In this case, appellant never notified the administrative bodies of his forced retirement claim. In addition, because his claim accrued after the administrative record had closed in his promotion claim, the agency did not have constructive notice of the forced retirement claim by reason of an ongoing investigation. Finally, because appellant did not claim a pattern and practice of discriminatory treatment, the administrative agency did not have constructive notice that discrimination claims other than the denial of promotion were possible.

Under the statutes requiring notice, the statutory purpose of the ADEA of promoting conciliation, and our cases interpreting the statutory requirements, this court must affirm the district court summary judgment.

AFFIRMED.