Wyatt C. Brownlee v. James B. King, Director, United States Office of Personnel Management , 78 F.3d 584 ( 1996 )

78 F.3d 584

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Wyatt C. BROWNLEE, Plaintiff-Appellant,
v.
James B. KING, Director, United States Office of Personnel
Management, Defendant-Appellee.

No. 94-4302.

United States Court of Appeals, Sixth Circuit.

March 6, 1996.

Before: ENGEL, KENNEDY and SUHRHEINRICH, Circuit Judges.

PER CURIAM.

1

Plaintiff Wyatt C. Brownlee appeals the district court's grant of summary judgment to defendant, the Director of the United States Office of Personnel Management ("OPM"), in this action stemming from OPM's refusal to offer plaintiff a position as an Administrative Law Judge. Plaintiff brought suit alleging race and age discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-e17 ("Title VII"); the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA"); 42 U.S.C. §§ 1981 and 1983; and state law. Plaintiff appeals only the dismissal of his Title VII and ADEA claims.

2

The district court correctly granted defendant's motion for summary judgment because plaintiff's failure to contact an Equal Employment Opportunity ("EEO") Counselor within thirty days of the alleged unfair treatment was fatal to all his claims. 29 C.F.R. § 1613.214 (1995).

3

On appeal, plaintiff raises two issues not raised in the district court. As such, they are waived. In any event, both arguments are without merit. Plaintiff's equitable tolling argument is unpersuasive because he alleges no affirmative misconduct designed to delay the filing of his complaint. Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir.1987).

4

Plaintiff also argues that the government is estopped from asserting the failure to contact an EEO counselor because it did not automatically refer an earlier letter to such a counselor. The cases cited by plaintiff to support this claim, however, are distinguishable. Moreover, plaintiff's earlier letter was not sufficiently specific to inform OPM personnel of the nature of plaintiff's claim.

5

The judgment of the district court is therefore AFFIRMED for the reasons stated in District Judge Aldrich's Memorandum and Order of October 13, 1994.