* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2003

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-51355

Summary Calendar

 

MARY E. LUNA,

Plaintiff-Appellant,

versus

JAMES D. ROCHE, Secretary United States Air Force,

Defendant-Appellee.

________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(SA-02-CV-503-EP)

_______________________________________________________________

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Mary Luna filed this action for, inter alia, discrimination by

the Air Force against her based on race, sex, age, and disability.

Luna was terminated from her employment at Kelly Air Force Base in

1992 for excessive absenteeism. From 1992 to 1999, she received

disability benefits, as administered by the Office of Personnel

Management (OPM). 
2

Between 1997 and 1999, OPM requested Luna provide

documentation showing her continued disability; she failed to do

so. In 1999, OPM advised Luna by letter that it had never received

from the Air Force a form required for disability benefits; in

fact, OPM had received such a letter in 1992. The benefits were

discontinued in June 1999. 

Luna filed an EEOC complain, which was denied. Pursuant to a

right-to-sue letter, Luna filed this action. Summary judgment was

awarded the Air Force because Luna had failed to exhaust

administrative remedies.

Luna appeals, pro se, contending: (1) the Air Force

discriminated against her by failing in 1992 to provide the OPM

with a form necessary for disability benefits; and (2) she is

entitled to job reassignment or relocation, as of 1999, pointing to

a similarly situated employee who was employed by Kelly Air Force

Base at that time. (Her motions for appointment of counsel and

permission to expand the record excerpts are DENIED.)

A summary judgment is reviewed de novo. E.g., Beeler v.

Rounsavall, 328 F.3d 813, 816 (5th Cir. 2003). Such judgment is

appropriate only if there is no material fact issue and the movant

is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c);

e.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986). 

Luna’s claim about any discrimination in 1992 is time-barred,

and the district court properly dismissed it for failure to then
3

exhaust administrative remedies. See 29 C.F.R. § 1614.105

(complainant must contact EEO counselor within 45 days of alleged

race or sex discrimination); 29 U.S.C. § 633a(d) (complainant must

provide 30-day notice of intent to sue within 180 days of last day

of employment). In any event, the Air Force did provide the

requisite form to OPM, and Luna received benefits for seven years.

As for the Air Force’s failure to offer her a job reassignment

in 1999, Luna does not provide a basis entitling her to

reassignment seven years after her termination.

MOTIONS DENIED; JUDGMENT AFFIRMED