No. 88-1943.

United States Court of Appeals, Ninth Circuit.

Before WIGGINS and KOZINSKI, Circuit Judges, and JUSTIN L. QUACKENBUSH**, District Judge.

MEMORANDUM***

Ron Rost, proceeding pro se, timely appeals the findings of fact and conclusions of law of the district court after trial on his claims that defendants had violated federal law by impermissibly terminating him from postal employment as an act of physical handicap discrimination and as an act of reprisal for having filed previous equal opportunity administrative complaints. The District Court found that Mr. Rost's termination was not in retaliation for having filed an EEOC complaint and that he had failed to exhaust his administrative remedies with respect to his handicap discrimination claim. Despite finding that the district court lacked subject matter jurisdiction due to the failure to exhaust, the court found that Mr. Rost nevertheless was discharged for legitimate nondiscriminatory reasons. Mr. Rost argues that these findings were erroneous. We have jurisdiction, 28 U.S.C. Sec. 1291 (1982), and we affirm.

We review the District Court's findings of fact under a clearly erroneous standard. World Airways Inc. v. International Brotherhood of Teamsters, 578 F.2d 800, 802 (9th Cir.1978). Based on the record before us, the finding that there were sufficient legitimate, nonretaliatory reasons for plaintiff's discharge was not clearly erroneous. Accordingly, that finding will not be disturbed.

Whether the district court lacked jurisdiction is reviewed de novo. Misch v. Zee Enterprises, --- F.2d ----, 1989 WL 713188 (9th Cir); Rosenfield v. United States, 859 F.2d 717, 725 (9th Cir.1988). A district court lacks subject matter jurisdiction over a civil rights claim which a plaintiff fails to raise before the Equal Employment Opportunity Commission (EEOC) unless the claim is "reasonably related to the allegations of the EEOC charge." Stache v. International Union of Bricklayers, 852 F.2d 1231 (1988), petition for cert. filed May 25, 1989; Shah v. Mt. Zion Hospital & Medical Ctr., 642 F.2d 268, 271 (9th Cir.1981). Any investigation of whether Mr. Rost was discharged in retaliation for filing EEOC discrimination complaints would not have encompassed his subsequent claim that he was subjected to intentional handicap discrimination. The permissible scope of the civil action should be "limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge" before the EEOC. Brown v. Puget Sound Elec. App. & Train. Trust, 732 F.2d 726, 730, (9th Cir.), cert. denied, 469 U.S. 1108 (1984).

The record supports the District Court's decision on this issue. Mr. Rost clearly indicated at the EEOC hearing that he was proceeding on only his claim of retaliatory discharge. He withdrew his claim of handicap discrimination. Mr. Rost stood quietly by while the Postal Service advocate verified with the administrative judge that only the issue of reprisal was to be determined. The administrative judge issued a recommended decision limited to the reprisal issue and the Postal Service issued a final decision limited to that issue. Mr. Rost's failure to exhaust his administrative remedies before the EEOC precluded the presentation of his discriminatory treatment claim in federal court. Therefore, the court below could have properly dismissed Mr. Rost's claims of handicap discrimination. Nevertheless, the District Court carefully made factual findings as to the discrimination claims. Those findings are not clearly erroneous and, therefore, must stand.