09-3990-cv

Lanham v. Shinseki

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 24 day of November, two thousand and ten. th

Present: BARRINGTON D. PARKER,

ROSEMARY S. POOLER,

RICHARD C. WESLEY,

Circuit Judges.

_____________________________________________________

KIM E. LANHAM,

Plaintiff-Appellant,

 -v- 09-3990-cv

GORDON H. MANSFIELD, SECRETARY, VETERAN’S AFFAIRS,

Defendant,

ERIC K. SHINSEKI,

Defendant-Appellee.

 

Appearing for Appellant: John R. Williams, New Haven, CT

 

Appearing for Appellee: David C. Nelson, Assistant United States Attorney (David B. Fein,

United States Attorney for the District of Connecticut, Sandra S.

Glover, of counsel, on the brief), Hartford, CT
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Appeal from the United States District Court for the District of Connecticut (Arterton, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

Kim Lanham appeals from the June 4, 2009 decision and order of the United States

District Court for the District of Connecticut, granting defendants’ motion for summary

judgment. Lanham v. Shinseki, 662 F. Supp. 2d 238, 242-43 (D. Conn. 2009). The district court

determined that Lanham, who alleged gender and race discrimination, failed to timely exhaust

her administrative remedies before pursuing her federal court complaint. Id. We assume the

parties’ familiarity with the underlying facts, procedural history, and specification of issues for

review.

 

A federal employee wishing to challenge a federal action as discriminatory must begin the

administrative review process within 45 days of the alleged discriminatory act. 29 C.F.R. §

1614.105(a). Here, Lanham applied for a promotion. She received an interview, but was not

selected. Instead, the position went to a Caucasian male. Veteran’s Affairs mailed plaintiff a

letter on May 9, 2006, stating: “You were qualified and referred for consideration, but not

selected . . . . The following qualified candidate from outside the VA was selected . . .” 

On June 30, 2006, Lanham complained to an equal opportunity counselor, and followed

up by filing an administrative complaint shortly thereafter with the VA’s Office of Resolution

Management, alleging gender and race discrimination. The parties agree Lanham’s first contact

came 47 days after the effective date of successful candidate’s hire. Lanham’s complaint

proceeded through the various levels of administrative review until November 14, 2007,when the

VA’s Office of Employment Discrimination Complaint Adjudication issued a Final Agency

Decision (“Final Decision”). 

Lanham advances two arguments on appeal: (1) that the government is estopped from

raising her failure to timely exhaust her administrative remedies because Veteran’s Affairs

conducted a full and complete investigation into her complaint without ever addressing the issue

of timeliness; and (2) the government waived its timeliness argument by failing to plead it as an

affirmative defense in its answer. 

Both arguments fail. A government agency does not waive a defense of failure to timely

exhaust administrative remedies by accepting and investigating a complaint. Belgrave v. Pena,

254 F.3d 384, 386 (2d Cir. 2001). A timeliness objection is only waived where an agency makes

“a specific finding that the claimant’s submission was timely.” Id. (quoting Rowe v. Sullivan,

967 F.2d 186, 191 (5th Cir. 1992)). It is undisputed that no findings regarding timeliness were

included in the Final Decision, thus the government did not waive its timeliness argument. 

As to Lanham’s argument that the government waived its untimely exhaustion defense by

failing to plead it in its answer, Lanham has waived that argument by not raising it below. While

we have discretion to review issues raised for the first time on appeal “where necessary to avoid
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manifest injustice or where the argument presents a question of law and there is no need for

additional factfinding,” Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) (citation

omitted), we see no reason to exercise that discretion here. Accordingly, the judgment of the

district court hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk