SHARON DENISE BOYD v. LORETTA LYNCH THOMAS KANE (2016)

MEMORANDUM *

Sharon Denise Boyd appeals pro se from the district court's judgment dismissing her employment action alleging violations of Title VII, the Age Discrimination in Employment Act (“ADEA”), and the Fair Labor Standards Act (“FLSA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Vinieratos v. U.S. Dep't of Air Force Through Aldridge, 939 F.2d 762, 768 (9th Cir. 1991), and we affirm in part, reverse in part, and remand.

The district court properly dismissed Boyd's Title VII claims because Boyd failed to exhaust her administrative remedies after electing to pursue her claims through the Merit Systems Protection Board. See Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001) (“In order to bring a Title VII claim in district court, a plaintiff must first exhaust her administrative remedies.”); see also Vinieratos, 939 F.2d at 772 (abandonment of the administrative process prevents exhaustion and forecloses judicial review).

However, the district court erred in dismissing Boyd's ADEA and FLSA claims for failure to exhaust because exhaustion is not required. See Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003) (ADEA has no express exhaustion requirement); Local 246 Util. Workers Union of Am. v. S. Cal. Edison Co., 83 F.3d 292, 297 (9th Cir. 1996) (claim based on substantive rights under FLSA not subject to exhaustion). Accordingly, we reverse the judgment in part and remand for further proceedings on these claims only.

We reject as without merit Boyd's contentions involving participation in Alternative Dispute Resolution, oral argument on the motion to dismiss, and a conflict of interest. We do not consider Boyd's arguments regarding another case not before this court.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

FOOTNOTES

FOOTNOTE.   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Virginia A. Phillips, Chief Judge, Presiding