Robert Miller v. Shayna Olesiuk , 615 F. App'x 887 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MICHAEL MILLER, No. 13-17137
Plaintiff - Appellant, D.C. No. 3:13-cv-01856-EDL
v.
MEMORANDUM*
SHAYNA OLESIUK; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding**
Submitted August 25, 2015***
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Robert Michael Miller appeals pro se from the district court’s judgment
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, we deny
Miller’s request for oral argument, set forth in his opening brief.
dismissing for failure to exhaust administrative remedies his action alleging
various federal and state law claims in connection with his employment. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, Vinieratos v. U.S., Dep’t
of Air Force, 939 F.2d 762, 767-68 (9th Cir. 1991), and we affirm.
The district court properly concluded that Title VII and the Rehabilitation
Act (“RA”) were Miller’s exclusive remedies for claims of discrimination in
federal employment. See Boyd v. U.S. Postal Serv., 752 F.2d 410, 413-14 (9th Cir.
1985) (Title VII is the exclusive remedy for discrimination by the federal
government on the basis of sex, and the RA is the exclusive remedy for
discrimination by the federal government on the basis of disability); see also Brock
v. United States, 64 F.3d 1421, 1424 (9th Cir. 1995) (Title VII’s exclusivity
regarding discrimination on the basis of sex also applies to discrimination on the
basis of gender); Clemente v. United States, 766 F.2d 1358, 1364 n.7 (9th Cir.
1985) (“To the extent that plaintiff’s Bivens claims are founded in actions
proscribed by Title VII, they may not be maintained because Title VII provides the
exclusive remedy.”).
The district court properly concluded that Miller failed to exhaust his
administrative remedies on his Title VII and RA claims because he failed to
complete the negotiated grievance procedure. See Vinieratos, 939 F.2d at 767-68
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(“Title VII specifically requires a federal employee to exhaust his administrative
remedies as a precondition to filing suit.”); Boyd, 752 F.2d at 413-14 (the same
requirement applies to RA claims); see also Vinieratos, 939 F.3d at 768 (a federal
employee who is a union member and alleges employment discrimination must
elect to pursue his claim under either a statutory procedure or a negotiated
grievance procedure, but “he cannot pursue both avenues, and his election is
irrevocable”).
Because Miller failed to exhaust, we do not consider Miller’s arguments
regarding the merits of his claims.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Miller’s requests, set forth in his opening brief, are denied.
AFFIRMED.
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