                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1745



LUZ J. AUSTIN,
                                              Plaintiff - Appellant,


           versus


DONALD C. WINTER, Secretary of the Navy,

                                              Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:05-cv-01367-TSE)


Argued:   March 18, 2008                    Decided:   July 11, 2008


Before WILKINSON and MOTZ, Circuit Judges, and William L. OSTEEN,
Jr., United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Thomas R. Gill, GILL GROUP, APC, San Diego, California,
for Appellant.   Ralph Andrew Price, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.     ON BRIEF:
Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Appellant Luz Austin seeks review of the district court ruling

which       granted   summary    judgment        to   the   Secretary   of    the   Navy

(“Secretary”)         based     on   Appellant’s        failure   to    exhaust      all

administrative remedies before filing a complaint in the district

court.       This court has jurisdiction over the appeal of a final

judgment of a district court.            28 U.S.C. § 1291.1         For the reasons

set forth below, we affirm.



                                       I. Facts

      In February 2003, Appellant, a Filipino female, was hired by

the Navy as an accounting technician for the Navy’s Camp Butler

facility in Okinawa, Japan.             This position required Appellant to

work jointly with Japanese government employees under the Master

Labor Contract, an international agreement between the governments

of the United States and Japan.                       Though Appellant’s job was

officially titled “lead account technician,” her job description

contained        no     reference       to        supervisory      or        leadership

responsibilities. In fact, Appellant’s supervisor specifically

instructed her on numerous occasions not to supervise or counsel

her   coworkers.         Despite     these       repeated    directives,     Appellant

continually attempted to supervise her coworkers.

        1
      Appellant claims that this court has jurisdiction over this
matter under 42 U.S.C. § 2000.       There is no such specific
provision. This court does have jurisdiction under 28 U.S.C. §
1291.

                                             2
     On    September       25,    2003,        the     Navy    terminated      Appellant’s

employment.2       The termination letter stated that Appellant was

being terminated because of her failure to heed her superior’s

instructions regarding the supervision of other workers,                          constant

complaints      about     her    salary        grade    level,    and        insubordinate

behavior. The letter informed Appellant of her rights to challenge

her termination, stating that she could appeal the termination

action to the Merit Systems Protection Board (“MSPB”) if her appeal

was based upon discrimination for partisan political reasons or

marital status, or the termination was not “effected in accordance

with the procedural requirements.”                     (J.A. 126.)         The letter also

informed Appellant that a termination resulting from discrimination

“based    on     race,     color,       religion,       sex,     or   national     origin,

handicapping condition or age” was not appealable to the MSPB, but

could    be     appealed    through        the       Equal    Employment       Opportunity

Commission (“EEOC”).            (Id.)

     On   or     about     October       25,    2003,     Appellant        challenged   her

termination by filing an appeal petition to the MSPB.3                         Appellant’s

petition made two claims:            (1) the Navy discriminated against her

based on her race, gender, and age, and (2) the Navy failed to

follow    the    proper     administrative           procedures       in    effecting   her

     2
      Appellant’s employment was terminated by the same person who
significantly participated in the decision to hire Appellant.
     3
      Appellant’s petition of appeal to the MSPB is undated, but
was acknowledged as timely received within the 30-day deadline by
the MSPB on October 30, 2003.

                                                3
termination.        On November 4, 2003, while the MSPB appeal was

pending, the Appellant also contacted an EEO counselor and alleged

that her termination was unlawful for the same reasons stated in

the MSPB petition.            After her attempts to resolve the matter on an

informal    level       were        unsuccessful,          Appellant    filed      a   formal

complaint with the Navy’s EEO office on December 23, 2003, again

alleging that she was terminated because of her race, age, and

gender.    The Navy EEO office informed Appellant that it would hold

her complaint in abeyance until the MSPB ruled on whether it had

jurisdiction      to    hear        her   appeal      as    required    by    29    C.F.R.    §

1614.302(c)(2)(ii).

     On February 9, 2004, an MSPB Administrative Law Judge (“ALJ”)

found that the MSPB lacked jurisdiction to hear Appellant’s claims

because    she   was      a    probationary          employee    at    the    time     of   her

termination and the MSPB has no authority to preside over decisions

affecting probationary employees. Appellant appealed this decision

to the MSPB Appeals Board, claiming that she was not a probationary

employee.    The MSPB Appeals Board disagreed and affirmed the ALJ’s

decision on February 4, 2005, nearly a year later.

     On February 24, 2005, after receipt of the MSPB’s final

judgment,     the      Navy     informed         Appellant      that    it    would     begin

investigating       her       formal      EEO    complaint.           The    Department      of

Defense’s Office of Complaint Investigation (“OCI”) was assigned

Appellant’s      case,        and    after      reviewing     the     initial      materials,



                                                 4
decided to dismiss one of Appellant’s ancillary claims.4         To

further aid in the investigation of Appellant’s remaining claims,

the OCI set up a fact-finding conference pursuant to 29 C.F.R. §

1614.108(b), to be held via telephone on July 29, 2005.   According

to the OCI, the fact-finding conference would be used as both an

opportunity to gather evidence as well as an opportunity to discuss

settlement.   (J.A. 175).

     On July 10, 2005, Appellant contacted and informed the OCI

that although she was not dropping the complaint she would not

participate in the fact-finding conference on advice of counsel.

Appellant’s correspondence read: “I would like to cancel this call

[the fact-finding conference] due to the advised [sic] of my lawyer

so that he may analyze the whole case.   Please be reminded that I

am determined to see this case through whatever it takes so I am

not dropping the complaints.”    (J.A. 64.)   Appellant’s attorney

sent similar correspondence verifying that Appellant would not

participate in the fact-finding conference because she intended to

seek a remedy in court. The attorney’s letter stated: “This letter

is sent as a matter of courtesy to notify suit will occur prior to

July 29, 2005, the date now set for interviews.   To be sure we’re

clear, Ms. Austin will not participate in the latter [the fact-

finding conference].”   (J.A. 181 (emphasis original).)


     4
      Appellant initially made claims in addition to those for
discrimination, which included, inter alia, alleged rights to
overtime pay.

                                 5
     In accordance with Appellant’s request, the OCI suspended its

investigation   of     Appellant’s    complaint.          The    OCI    then      sent

Appellant notice of her obligation to inform the OCI within 15

calendar days of her intentions with respect to the EEO case,

otherwise her case would be dismissed in accordance with 29 C.F.R.

§ 1614.107(7). Neither Appellant nor her counsel contacted the OCI

within 15 calendar days as required.              Instead, Appellant filed a

complaint in the Southern District of California on August 5,

2005.5    The OCI dismissed Appellant’s EEO case after the 15-day

notice period expired.

     In the district court, Appellee moved for summary judgment

claiming,   inter    alia,    that   Appellant       failed     to   exhaust      her

administrative remedies before filing in the district court.                      The

district court held that Appellant’s withdrawal from the fact-

finding   conference    and   failure       to   follow   through      on   her    EEO

complaint constituted a failure to pursue administrative remedies.

Accordingly, the district court granted summary judgment in favor

of the Secretary.    The case is now before this court on appeal from

the district court’s judgment.




     5
      Appellant filed a complaint in the District Court for the
Southern District of California. That court transferred the case
to the Eastern District of Virginia, as that is the appropriate
district to bring suit against the Navy. See 42 U.S.C. § 2000e-
5(f)(3); also J.A. 2-3, 209.

                                        6
                                II. Analysis

       We review a district court’s order granting summary judgment

de novo.      See Livingston v. Wyeth, Inc., 520 F.3d 344 (4th Cir.

2008) (citing Holland v. Washington Homes, Inc., 487 F.3d 208, 213

(4th   Cir.    2007)).      Summary   judgment     is   appropriate      where   an

examination      of   the   pleadings,       affidavits,    and   other    proper

discovery materials before the court demonstrate that no genuine

issues of material fact exist, thus entitling the moving party to

judgment as a matter of law.           Fed. R. Civ. P. 560; see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2552

(1986).       We construe the facts in the light most favorable to

Appellant, as she was the nonmoving party.                See Laber v. Harvey,

438 F.3d 404, 415 (4th Cir. 2006) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505 (1986)).

       The district court found that Appellant refused to cooperate

in   the     fact-finding    conference      and   held    that   this    refusal

constituted a failure to exhaust her administrative remedies.

Appellant argues that the district court erred in reaching this

conclusion on two grounds: (1) Appellant’s substantial compliance

with   the    administrative    process      constituted    an    exhaustion     of

remedies, and (2) the Secretary should be equitably estopped from

raising an exhaustion argument because the Navy failed to properly

advise Appellant of her rights.




                                         7
     A. Substantial Compliance

     Appellant’s        principal      argument      to   support     a    finding   of

exhaustion       is     that    she    substantially         complied       with     the

administrative        process    and   therefore      should    be    excused       from

participating in the fact-finding conference.                  The district court

found this argument to be unpersuasive, holding that a “claimant

cannot abandon the [administrative] process simply because she is

dissatisfied with the pace of the proceedings or because [she]

subjectively views the resolution of the dispute unlikely or

futile.”       (J.A. 213.)      We agree with the district court.

     Federal employees who seek to enforce their rights under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,

must exhaust their available administrative remedies prior to

pursuing an action in federal court.                      Brown v. General Serv.

Admin., 425 U.S. 820, 832, 96 S. Ct. 1961, 1968 (1976) (“Initially,

the complainant must seek relief in the agency that has allegedly

discriminated against him.”).            This requirement exists to minimize

“judicial       interference      with    the     operation     of        the    federal

government.”       Doe v. Oberweis Dairy, 456 F.3d 704, 712 (7th Cir.

2006)       (citation   omitted).        It   also    affords    an       “agency    the

opportunity to right any wrong it may have committed.”                          McRae v.

Librarian of Congress, 843 F.2d 1494, 1496 (D.C. Cir. 1988).6

        6
      The Code of Federal Regulations and United States Code govern
the requirements for filing a Title VII complaint.            These
regulations require an aggrieved person who believes he or she has
been discriminated against the basis of race, color, religion, sex,

                                          8
      Appellant initially availed herself of the administrative

process but never followed the process through to completion.

Appellant argues, however, that continued attempts to resolve the

matter at the administrative level would have been futile.               The

facts of the case show otherwise.

      Appellant contends that her lack of participation in the fact-

finding conference should be excused because the fact-finding

conference   was   a   duplicitous    procedure   that   would     not   have

contributed any additional information to her administrative case.

These fact-finding conferences are specifically authorized by the

Code of Federal Regulations as a means of developing “an impartial

and appropriate factual record upon which to make findings on the

claims raised by the written complaint.”        29 C.F.R. § 1614.108(b).

The factual record developed through the use of these conferences

“allows a reasonable fact finder to draw conclusions as to whether

discrimination occurred.” Id. Contrary to Appellant’s contention,

the   fact-finding     conference    was   an   important   part    of    the

investigative process and integral to reaching a final decision on

Appellant’s claim.



national origin, age or handicap to consult a counselor prior to
filing a complaint and attempt to resolve the matter informally.
29 C.F.R. § 1614.105(a). This contact must occur within 45 days of
either the occurrence of the matter alleged, or the effective date
of a personnel action.    Id. § 1614.105(a)(1).    After filing a
formal complaint, an aggrieved person may bring suit in federal
court either within 90 days of a final agency action, or if no
final action was taken, after 180 days from the filing of the
initial charge. 42 U.S.C. § 2000e-16(c).

                                     9
       In    this    case,   the     OCI   intended      to   use   the   fact-finding

conference as an opportunity to transcribe witness and party

testimony under oath and as a forum to discuss potential settlement

solutions.          Additionally, the OCI placed great emphasis on the

importance of the fact-finding conference, stating in its notice to

Appellant that “[t]hose failing to appear without good cause will

be    considered       to    have    failed      to    cooperate    in    an    official

investigation.”         (J.A. 176.)7

       While private sector Title VII cases do not require a claimant

to cooperate in the administrative process, the same is not true in

cases involving federal employees.                See Jasch v. Potter, 302 F.3d

1092, 1094 (9th Cir. 2002) (“Exhaustion [in an action against a

federal agency] requires that a plaintiff comply with regulatory

and    judicially-imposed           exhaustion        requirements,      including   the

requirement to pursue the administrative claim with diligence and

in    good   faith.”)       (citation      and   internal     quotations       omitted);

Oberweis Dairy, 456 F.3d at 709-12 (Title VII “does not impose a

duty of cooperation” in private sector cases, “[b]ut the statutory

framework is different” for federal employees.); but see Shikles v.

Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005) (The court

held that a private sector employee was required to cooperate with


       7
      Complaint investigators are given a considerable amount of
authority during their investigations and may take a number of
actions against those who “fail without good cause shown to respond
fully and in timely fashion to [the investigator’s] requests.” 29
C.F.R. § 1614.108(c)(3).

                                            10
the EEOC in order to exhaust his administrative remedies.).                    In

fact, a “complainant’s failure to cooperate in the administrative

process precludes exhaustion when it prevents the agency from

making a determination on the merits.”               Jasch, 302 F.3d at 1094

(citations omitted); see also Woodard v. Lehman, 717 F.2d 909, 915

(4th Cir. 1983) (“When the plaintiffs refused to provide such

information and thereby frustrated administrative review of the

merits of their claims, the District Court should not have reached

the merits of their claims but should have granted the defendant’s

motion to dismiss for failure to exhaust administrative remedies.”)

(citation and internal quotations omitted).

       Though    Appellant    began    the    administrative       process,   this

process was not complete until Appellant fully participated in all

required aspects of the investigation and the Navy reached a final

decision on her claim.           Otherwise, the administrative process

“would be blunted if the employee could bypass the employer by not

cooperating.”         Oberweis Dairy, 456 F.3d at 712.        Appellant cannot

show   that     she    cooperated   in   any   way    with   the    fact-finding

conference.       Instead, Appellant offers conflicting excuses for

canceling the fact-finding conference.                For example, Appellant

stated that the fact-finding conference was redundant because she

previously      provided    numerous     statements    to    the   investigating

agency; however, she admitted that she “had not spoken with an

investigator.” (J.A. 82.) Appellant also claimed that she desired



                                         11
to cancel the conference because she was in need of a translator.

If this was the case, Appellant would have greatly benefitted from

submitting additional and accurate testimony with the aid of a

translator at the fact-finding conference.

     Appellant’s behavior in this case is no different from that in

other cases where courts have found a failure to cooperate and thus

affirmed   a    finding   that    the    complainant       failed          to   exhaust

administrative remedies. In Johnson v. Bergland, 614 F.2d 415 (5th

Cir. 1980), for example, the Fifth Circuit reviewed a federal

agency’s decision to dismiss a complaint based upon the plaintiff’s

failure to provide the agency with more detailed information

concerning     the   specific    dates       and    instances    to    support     the

plaintiff’s claim.      In affirming the agency’s decision, the court

concluded the plaintiff’s failure “to supply the agency with

information    sufficiently      specific      to    enable     it    to    conduct   a

meaningful investigation. . .” was sufficient cause to find the

plaintiff failed to exhaust his administrative remedies.                        Id. at

418 (citation omitted).

     Likewise in Woodard v. Lehman, 717 F.2d 909 (4th Cir. 1983),

the Fourth Circuit reviewed a case involving two plaintiffs who

filed disparate treatment claims against the Secretary of the Navy.

Just as in Johnson, the agency requested that plaintiffs provide

more detailed information regarding their complaints, including




                                        12
specific dates and instances, but the plaintiffs failed to comply.8

Woodard, 717 F.2d at 912.         In response, the agency dismissed the

plaintiffs’ charges. Id. The plaintiffs then filed a complaint in

federal district court, to which the Secretary moved for summary

judgment   based   on    the   plaintiffs’      failure    to   exhaust    their

administrative remedies. Id. Though the district court denied the

motion, the Fourth Circuit revisited the issue in its decision and

criticized the district court’s ruling as “manifestly incorrect.”

Id. at 914.     The Fourth Circuit stated that the agency’s motion

should have been granted because the plaintiffs in “refusing to

give such details and dates . . . prevented the defendant from

investigating   the     charges   and    consequently      failed   to   exhaust

[their] administrative remedies.”            Id. at 914.

     In this case, Appellant’s actions prevented the agency from

fully investigating the complaint and reaching a final decision.

Accordingly, this court finds that Appellant’s failure to cooperate

constitutes a failure to exhaust her administrative remedies.



     B. Estoppel

     Appellant contends that the Secretary should be estopped from

raising an exhaustion of administrative remedies defense because

the Navy acted in bad faith in failing to apprise Appellant of her

     8
      Instead, the plaintiffs responded to the Navy’s request for
additional details through their attorneys who stated that they
“were willing to meet with the Navy officials to provide additional
details.” Id. at 914.

                                        13
rights to challenge her termination.            The Secretary argues that

there is no estoppel against the government absent a showing of

affirmative misrepresentation by a government agent, and that the

behavior alleged by Appellant is not of the type that would support

estoppel.    We agree.

     In    order   for   equitable   estoppel    to   apply   to   preclude   a

defense, the party claiming equitable estoppel must satisfy the

following requirements:

     (1) the party to be estopped knew the true facts; (2) the
     party to be estopped intended for his conduct to be acted
     upon or acted in such a way that the party asserting
     estoppel had a right to believe that it was intended; (3)
     the party claiming estoppel was ignorant of the true
     facts; and (4) the misconduct was relied upon to the
     detriment of the parties seeking estoppel.

Dawkins v. Witt, 318 F.3d 606, 612 n.6 (4th Cir. 2003) (citation

and internal quotations omitted).           These requirements differ,

however, when the party to be estopped is the federal government.

See Office of Pers. Management v. Richmond, 496 U.S. 414, 419, 110

S. Ct. 2465, 2469 (1990) (“equitable estoppel will not lie against

the Government as against private litigants”) (citation omitted).

To estop the federal government, a party must show “affirmative

misconduct    by   government   agents.”    Dawkins,      318   F.3d   at   611

(citations omitted); see also Richmond, 496 U.S. at 420, 110 S. Ct.

at 2470.     The standard for showing affirmative misconduct is

rigorous.    See Richmond, 496 U.S. at 422, 110 S. Ct. at 2470 (“we

have reversed every finding of estoppel [against the federal



                                     14
government] that we have reviewed”).      The Court, however, has not

foreclosed the possibility of estopping the federal government.

See Heckler v. Community Health Servs., 467 U.S. 51, 60, 104 S. Ct.

2218, 2224 (1984) (declining to hold that the federal government

may never be estopped).

     Appellant   maintains   that   the   Navy   failed   to   advise   her

regarding the proper process of filing a discrimination claim

because it did not specifically direct her to file with the EEO

office, and instead allowed her to pursue a claim with the MSPB

despite knowing the MSPB had no jurisdiction. Appellant’s argument

is without merit.    Upon being terminated, Appellant received a

letter informing her of the ways in which a terminated employee

could challenge his or her discharge.            (J.A. 125-27.)      After

receiving this letter Appellant decided to file a complaint with

both the MSPB and EEO office.        Appellant chose this course of

action, not as a result of being misdirected by a government

employee, but rather because she “believed it was necessary to file

with both to protect [her] rights.”          (J.A. 81.)        During this

process, Appellant’s EEO claim was held in abeyance while the MSPB

reviewed her discrimination claim.        The EEOC informed Appellant

that “[i]f the MSPB administrative judge determines that MSPB does

not have jurisdiction of your appeal, the agency [EEO office] will

recommence processing of your complaint.”        (J.A. 145.)




                                    15
     On February 9, 2004, the ALJ determined the MSPB lacked

jurisdiction     to    hear    Appellant’s       appeal     because    she    was    a

probationary     employee.           Despite    receiving     information          that

specifically     informed      her    that     the    EEO   office    would    begin

investigation of her complaint at this point in time, Appellant

felt compelled to appeal the ALJ’s decision because she believed

she was not a probationary employee.                 Her decision to appeal the

ALJ’s ruling was not influenced by any advice proffered by a

government agent, but instead over her own misunderstanding of the

process and her erroneous belief that the only way to protect her

rights was to file another appeal.             This is certainly not the type

of circumstance that would qualify as affirmative misconduct.

     Even assuming that a government agent misinformed Appellant of

the proper method of filing a complaint, Appellant would still not

have a proper basis for estoppel.               See Dawkins, 318 F.3d at 611

(“The Supreme Court has consistently denied efforts by litigants to

estop the government from raising defenses based on claimants’

failures   to     comply       with    governmental         procedures       due    to

misinformation        from    government      agents.”)     (citing    Office       of

Personnel Management v. Richmond, 496 U.S. 414, 110 S. Ct. 2465

(1990); Schweiker v. Hansen, 450 U.S. 785, 101 S. Ct. 1468 (1981);

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S. Ct. 1

(1947)).




                                         16
     Appellant failed to identify, nor can we find, any set of

facts that would constitute affirmative misconduct by the United

States Government.   Moreover, there was no action on behalf of the

Secretary that denied Appellant the opportunity of administrative

review.   Appellant decided not to participate in the fact-finding

conference.    There are no grounds to allow Appellant to equitably

estop the Secretary from raising the defense of failing to exhaust

administrative remedies.     Accordingly, we affirm the district

court’s ruling.



                           III. Conclusion

     For the reason set forth herein, we affirm the judgment of the

district court granting summary judgment in favor of the Secretary

of the Navy.

                                                           AFFIRMED




                                 17
