* The current Secretary of Transportation, Rodney E. Slater, is substituted for

former Secretary Federico Pena. See Fed. R. App. P. 43(c)(1).

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RUBEN MARTINEZ,

Plaintiff-Appellant,

v. RODNEY E. SLATER, Secretary of Transportation, *

Defendant-Appellee. No. 97-2040 (D.C. No. CIV-95-23-BB) (D. N.M.)

ORDER AND JUDGMENT **

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 On appeal, plaintiff does not challenge the distric t court’s dismissal of his

42 U.S.C. §§ 1983 and 1985(3) claims. -2- Plaintiff appeals the district court’s dismissal of his Title VII claims, see 42 U.S.C. §§ 2000e to 2000e-17, alleging the Federal Aviation Administration (FAA) removed him from its air traffic controller training program based upon unlawful discrimination. 1 The district court granted defendant summary judgment, see Fed. R. Civ. P. 56(c), dismissing the Title VII cl aims because plaintiff had failed to file a timely complaint. L iberally construing plaintiff’s pro se pleadings, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam), and reviewing the district court’s decision de novo, se e Mosley v. Pena , 100 F.3d 1515, 1517-18 (10th Cir. 1996), we affirm, but for reasons slightly different than those upon which the district court relied, see Wolfgang v. Mid-America Motorsports, Inc. , 111 F.3d 1515, 1524 (10th Cir. 1997) (appellate c ourt may affirm on any legal ground supported by record). Before asserting Title VII claims in federal court, a federal employee must first exhaust his administrative remedies. See Khader v. Aspin , 1 F.3d 968, 971 (10th Cir. 1993). Plaintiff filed an equal employm ent opportunity (EEO) complaint with the FAA on May 1, 1992, following hi s receipt of several letters detailing his unsatisfactory performance and propos ing his removal from the training program. The FAA eventually removed plaintiff from the program and2 New regulations governing mixed cases, see 29 C.F.R.

§§ 1614.301-1614.310, went into effect October 1, 1 992, see McAdams v. Reno , 64 F.3d 1137, 1141 n.3 (8th Cir. 1995), after plaintiff’s administrative filings. “The procedures governing mixed cases[, however,] w ere not significantly altered.” Id. -3- terminated his employment, effective July 25, 1992. Plaintiff then appealed his removal to the Merit Systems Protection Board (MSPB ), alleging discrimination. When a federal employee administratively challenges his removal based at least in part on discrimination, the employee may c hoose to file a “mixed case” complaint with the agency or a “mixed case” appeal with the MSPB, but not both.
See 29 C.F.R. §§ 1613.402(a) & (b), 1613.403 (1992, su bsequently amended). 2 “[W]hichever is filed first (the mixed case complai nt or the [mixed case] appeal) shall be considered an election to proceed in that forum.” 29 C.F.R. § 1613.403. A “mixed case” complaint is one alleging discrimination “related to, or stemming from an action taken by an agency against the complainant, which action may be appealed to the MSPB.” Id. § 1613.402(a)(1). Plaintiff’s May 1, 1992 EEO complaint was not a “mixed case” complaintbecause there was as yet no adverse personnel action appealable to the MSPB. See Cruz v. Department of Navy , 934 F.2d 1240, 1243 (Fed. Cir. 1991); see also King v. Reid , 59 F.3d 1215, 1217-18 (Fed. Cir. 1995); Gomez v. Department of th e Air Force , 869 F.2d 852, 855-56 (5th Cir. 1989).3 Compare Johnson v. United States Postal Serv. , 64 F.3d 233, 238 (6th Cir.

1995) (equitable tolling is not applicable to § 770 3(b)(2)), withBlaney v. United (continued...) -4- Plaintiff’s subsequent appeal to the MSPB, followin g the effective date of his removal, was a “mixed case” appeal, see 29 C.F.R. § 1613.402(b), and must be deemed plaintiff’s election to challenge his all egedly discriminatory removal through proceedings before the MSPB, see id. § 1613.403. The MSPB, which had authority to address, and did consider, plaintiff’s discrimination claims, see 5 U.S.C. § 7702(a)(1); see also, e.g. , McAdams , 64 F.3d at 1142-43 & 1143 n.5, denied plaintiff relief in a decision that became f inal January 4, 1993. Despite receiving clear and unambiguous notice of his rightto seek further administrative review of the MSPB’s decision or to commence an act ion in federal court, see I R. doc. 65, ex. I at 10-11, plaintiff failed to take a ny further action. See 5 U.S.C. § 7703(b)(2) (requiring plaintiff to file a complai nt in federal court within thirty days of receiving notice of judicially reviewable d ecision); cf. Stahl v. MSPB , 83 F.3d 409, 412 (Fed. Cir. 1996) (despite complexitie s of various appeal rights and procedures, failure to file timely appeal to MSPB w as not excused where plaintiff received notice from agency that clearly and correc tly informed her of choices for seeking review, as well as correct time limits in w hich to act). Assuming that § 7703(b)(2)’s thirty-day time limit is subject to equitable tolling, 3 plaintiff has failed to allege any circumstances i n this case that would3 (...continued)

States , 34 F.3d 509, 512-13 (7th Cir. 1994) (§ 7703(b)(2) time limit is not jurisdictional, but may be subject to equitable tol ling), andNunnally v. MacCausland , 996 F.2d 1, 4 (1st Cir. 1993) (in appropriate cas e, § 7703(b)(2) may be subject to equitable tolling), and cases cit ed therein. -5- support tolling the time period in which he had to appeal the MSPB’s decision. See, e.g. , Mosley , 100 F.3d at 1518 (equitable tolling may be approp riate where agency actively misled plaintiff or where extraordi nary circumstances prevented plaintiff from asserting rights). In particular, t he still pending EEO complaint could not justify plaintiff’s delay in filing this federal action. The EEO complaint originally challenged only the agency’s provision o f training opportunities and the proposed removal of plaintiff from the training pro gram. According to plaintiff’s own allegations, it was not until almost six months after the MSPB’s final decision that the Equal Employment Opportunity Comm ission (EEOC) remanded the EEO complaint to the agency to consider, for th e first time, whether plaintiff’s termination was discriminatory. Because the EEOC’s remand occurred well after the time had expired for plaintiff to pursue furthe r review of the earlier MSPB decision, the remand could not have misled plaintif f into foregoing his right to commence timely litigation following the MSPB’s dec ision. After this remand, the FAA correctly dismissed plaintiff’s EEO complai nt, in light of the MSPB’s previous resolution of those discrimination issues. See 29 C.F.R. §§ 1614.107(d), 1614.302(c)(1).-6-

Because plaintiff failed to file a timely complaintfollowing the MSPB’s decision, the district court did not err in grantin g defendant summary judgment and dismissing plaintiff’s Title VII claims. See Johnson , 64 F.3d at 237-38 & 237 n. 1. His appellate arguments addressing discoveryissues and the district court’s application of its local rules are, thus, moot. Finally, plaintiff’s argument that the district cou rt judge and the magistrate judge should have recused themselves is unpersuasiv e, both because plaintiff failed to make any timely or sufficient request forrecusal, see, e.g. , Green v.
Branson , 108 F.3d 1296, 1305 (10th Cir. 1997); Green v. Do rrell , 969 F.2d 915, 919 (10th Cir. 1992); Willner v. University of Kan. , 848 F.2d 1020, 1022-23 (10th Cir. 1988), and because he failed to allege s ufficiently any actual or apparent bias or prejudice on the part of either th e magistrate judge or the district court judge, see, e.g. , Willner v. University of Kan. , 848 F.2d 1023, 1026-28 (10th Cir. 1988). The judgment of the United States District Court fo r the District of New Mexico is, therefore, AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge