     Case: 12-11008       Document: 00512641020         Page: 1     Date Filed: 05/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                       No. 12-11008                       FILED
                                                                         May 23, 2014

                                                                        Lyle W. Cayce
BLANCA RUIZ,                                                                 Clerk

                                                  Plaintiff–Appellant,

v.

PATRICK R. DONAHOE, Postmaster General, United States Postal Service
(Southwest Area) Agency,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CV-2072


Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Blanca Ruiz filed an administrative complaint alleging disability
discrimination by the United States Postal Service. After the Postal Service and
the EEOC both decided to subsume her case in a pending administrative class
action, Ruiz brought this suit in federal district court against the Postmaster
General. The magistrate judge dismissed Ruiz’s case without prejudice for lack
of subject matter jurisdiction, holding that Ruiz had failed to exhaust her


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-11008

administrative remedies on the merits of her disability discrimination claim.
Ruiz now appeals. Because the magistrate judge dismissed Ruiz’s case without
addressing her challenge to being included in the class action, we reverse the
dismissal and remand for further proceedings.
                                         I
      Ruiz began working as a clerk for the Postal Service in 1990. Ruiz
suffered from two medical limitations: she was born with a hearing impairment
and was also diagnosed with carpal tunnel syndrome, a work-related injury, in
1994. After the carpal tunnel syndrome diagnosis, Ruiz was reassigned to a
modified position that she could perform despite these medical limitations.
      Sometime in 2010, the National Reassessment Program (NRP), a program
developed to standardize the procedures for assigning work to injured-on-duty
Postal Service employees, evaluated Ruiz and determined she should be moved
to a different position. Ruiz was then offered a position working at the front
desk of a different facility and began a one-week “tryout” period working in that
position. Because of Ruiz’s hearing impairment, she was unable to perform some
of the tasks required of her new position. As a result, the job offer to work at the
front desk was retracted on September 22, 2010. That same day, she was given
a letter from the NRP indicating that based on its search, it was unable to
identify any available tasks that could be performed with her medical limitations
and that she should not report back to work unless contacted.
      Ruiz then filed a complaint with the Equal Employment Opportunity
(EEO) division of the Postal Service, alleging the Postal Service discriminated
against her on the basis of her disability by denying her reasonable
accommodation.     The Postal Service decided to subsume Ruiz’s individual
complaint into the McConnell class action, a pending administrative class action
defined as “all permanent rehabilitation employees and limited-duty employees
at the [Postal Service] who have been subjected to the [NRP] from May 5, 2006

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                                         No. 12-11008

to present, allegedly in violation of [the Rehabilitation Act].”1 Ruiz appealed the
Postal Service’s decision to subsume her case to the EEOC. On May 18, 2011,
the EEOC affirmed, concluding that Ruiz’s disability discrimination claim was
properly subsumed within the class action. The EEOC decision included notice
of Ruiz’s right to file a civil action within 90 days of receiving the decision.
         Ruiz brought this suit against the Postmaster in federal district court on
August 19, 2011, again alleging employment discrimination based on the Postal
Service’s denial of reasonable accommodation. Ruiz’s amended complaint argued
that the EEOC erred in subsuming her case in the McConnell class action since
her case was “different from McConnell.” “In view of the amended complaint,”
the district court denied without prejudice the Postmaster’s motion to dismiss
the original complaint and ordered the Postmaster to respond to the amended
complaint.
         The Postmaster then filed a motion to dismiss Ruiz’s amended complaint
on the basis that Ruiz failed to exhaust her administrative remedies on her
disability discrimination claim since neither the Postal Service nor the EEOC
reached the merits of her claim. The magistrate judge ultimately granted the
motion to dismiss.           In his May 21, 2012 order, the magistrate judge first
acknowledged that a decision and right-to-sue letter had been issued by the
EEOC in the case. The EEOC, however, did not reach the merits of Ruiz’s
disability discrimination claim and only affirmed the Postal Service’s decision
that Ruiz’s case be subsumed within the McConnell class action, the magistrate
judge explained. Because the EEOC had not reached the merits of Ruiz’s claim,
the magistrate judge held Ruiz had not exhausted her administrative remedies
and that whatever right to sue Ruiz possessed “extend[ed] only to a civil action
challenging the decision to include [Ruiz’s] individual complaint in the

         1
             McConnell v. Potter, EEOC Appeal No. 0720080054, 2010 WL 332083, at *1 (Jan. 14,
2010).

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                                         No. 12-11008

McConnell class action.” The magistrate judge thus dismissed the case without
prejudice for lack of subject matter jurisdiction. Ruiz moved for reconsideration
and for leave to further amend her complaint, but the magistrate judge denied
the motion in its entirety. Ruiz now appeals the May 21, 2012 order dismissing
her case.
                                                II
       We review a district court’s grant of a 12(b)(1) motion to dismiss for lack
of subject matter jurisdiction de novo.2 “[A] motion to dismiss for lack of subject
matter jurisdiction should be granted only if it appears certain that the plaintiff
cannot prove any set of facts in support of his claim that would entitle plaintiff
to relief.”3 In considering a motion to dismiss, the district court must accept as
true the allegations and facts set forth in the complaint and may consider
matters of fact which may be in dispute.4 The district court can therefore
dismiss for lack of subject matter jurisdiction on the basis of: (1) the complaint
alone; (2) the complaint supplemented by undisputed facts in the record; or (3)
the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.5 Additionally, we review de novo a district court’s determination
that the plaintiff failed to exhaust her administrative remedies.6
                                               III
       We first address the Postmaster’s contention that Ruiz waived her
challenge to the EEOC’s decision to subsume her case within the McConnell

       2
         Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714 (5th Cir. 2012) (citing Life Partners
Inc. v. United States, 650 F.3d 1026, 1029 (5th Cir. 2011)).
       3
           Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).
       4
      Choice Inc. of Tex., 691 F.3d at 714 (citing Life Partners Inc., 650 F.3d at 1029;
Ramming, 281 F.3d at 161).
       5
           Id. (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
       6
           Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006).

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                                      No. 12-11008

class by failing to raise the issue before the district court. “Generally, we do not
consider issues on appeal that were not presented and argued before the lower
court.”7 Waiver of an issue on appeal for failure to raise it below adequately
“generally will not apply when [an issue] fairly appears in the record as having
been raised or decided.”8
       Ruiz adequately raised her challenge to being subsumed in the McConnell
class before the district court and therefore did not waive the issue. In Ruiz’s
amended complaint, Ruiz’s argument on the class action issue was as follows:
       III. Plaintiff’s case is different from McConnell

              10.    In the decision issued by [the] EEOC, the Commission
              concluded that [Ruiz’s] formal complaint should be subsumed
              into the class action under McConnell because [Ruiz’s]
              complaint was identical to the claims raised in McConnell.
              However, McConnell only involves NRP’s dealing with
              employee[s’] work related injur[ies]. This case involves both
              [Ruiz’s] work related injury, carpal tunnel syndrome and non
              work related injury, hearing impairment.
Ruiz also raised the class action issue in her response to the Postmaster’s motion
to dismiss her amended complaint. There, she argued for two full pages that her
claim that the Postal Service failed to accommodate her non-work-related
hearing impairment was distinguishable from the McConnell class and thereby
“simply not covered under McConnell.”
       Considering her amended complaint and her response to the motion to
dismiss together, Ruiz sufficiently raised the class action issue, allowing the
district court to recognize it as a disputed issue and rule on it. Given that both



       7
        New Orleans Depot Servs., Inc. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d
384, 387 (5th Cir. 2013) (en banc) (citing Lampton v. Diaz, 639 F.3d 223, 227 n.14 (5th Cir.
2011)).
       8
         Lampton, 639 F.3d at 227 n.14 (alteration in original) (internal quotation marks and
citation omitted).

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                                  No. 12-11008

the Postal Service and EEOC decided the class action issue—and only the class
action issue—it was certainly no mystery what Ruiz was referring to when she
argued that her case was different from the McConnell class.
      The Postmaster, moreover, clearly recognized that Ruiz was challenging
the EEOC decision to include her case in the class. In responding to Ruiz’s
amended complaint, the Postmaster noted, “Ruiz seems to challenge her
placement in the McConnell class, concluding that McConnell only involves
NRP’s dealing with employee[s’] work related injury where her case involves
both work related (carpal tunnel syndrome) and non work related injury
(hearing impairment).”      Likewise, in his second motion to dismiss, the
Postmaster stated, “Ruiz also challenges her placement by the Postal Service in
the McConnell class action” and she “alleges her case is different from McConnell
and should not be subsumed in the class action under McConnell . . . .” Finally,
in his reply to Ruiz’s response to his second motion to dismiss, the Postmaster
wrote, “Ruiz once again makes the claim that her complaint should not be
subsumed on the basis that she was denied reasonable accommodation because
of her non work related disability.”         The Postmaster thus repeatedly
acknowledged Ruiz was challenging the class action issue and discussed the
merits of whether subsuming Ruiz in the class was appropriate. Accordingly,
the class action issue was certainly raised before the district court, and Ruiz did
not waive the issue.
                                        IV
      We next address whether the district court erred in dismissing for lack of
subject matter jurisdiction, given that Ruiz challenged the EEOC’s decision to
subsume her case in the McConnell class.          Ruiz brought suit under the
Rehabilitation Act, which prohibits disability discrimination in federal




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                                             No. 12-11008

employment.9 To file suit under the Rehabilitation Act in federal district court,
federal employees must satisfy two requirements.10 First, they must exhaust
their administrative remedies by filing a charge of discrimination with the EEO
division of their agency.11 The exhaustion requirement is satisfied when either
(1) the employee receives notice of final action taken by the agency or by the
EEOC upon appeal from an agency decision, or (2) 180 days have passed from
the filing of the administrative complaint or appeal thereof without final agency
action.12 Second, federal employees also must timely file their federal court
complaints.13 When the employee is challenging a final action taken by the
agency or the EEOC, she must file the federal court action within 90 days of
receiving the notice of final action.14 Federal subject matter jurisdiction does not
exist unless both of these requirements are met.15
       Ruiz satisfied both requirements for bringing suit to challenge her
inclusion in the McConnell class action. She filed a complaint with the EEO


       9
           29 U.S.C. § 794; see Dark v. Potter, 293 F. App’x 254, 258 (5th Cir. 2008)
(unpublished) (explaining that the Rehabilitation Act “constitutes the exclusive remedy for a
federal employee alleging disability-based discrimination”); Prewitt v. U.S. Postal Serv., 662
F.2d 292, 304 (5th Cir. 1981) (recognizing that the Rehabilitation Act, as amended in 1978,
provides individuals “a private cause of action to obtain relief for handicap discrimination on
the part of the federal government and its agencies”).
       10
          See Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990) (per curiam)
(discussing Title VII of the Civil Rights Act of 1964); Prewitt, 662 F.2d at 304 (stating that the
Rehabilitation Act established a private right of action subject to the same procedural
constraints, including administrative exhaustion, as Title VII); see also 29 U.S.C. § 794a(a)(1)
(providing that the Rehabilitation Act adopts the “remedies, procedures, and rights set forth
in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16)”).
       11
            See 42 U.S.C. § 2000e-16(c); Pacheco, 448 F.3d at 788.
       12
            42 U.S.C. § 2000e-16(c).
       13
            Id.; Tolbert, 916 F.2d at 247.
       14
            42 U.S.C. § 2000e-16(c).
       15
            Tolbert, 916 F.2d at 247-48 (citations omitted).

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                                    No. 12-11008

division of the Postal Service; she appealed the Postal Service’s decision to
include her in the McConnell class; and the EEOC issued a final decision on her
appeal on May 18, 2011. The EEOC’s decision to subsume her case in the class
mentioned her right to bring suit within 90 days of receiving the decision. On
August 19, 2011, Ruiz filed her federal court complaint. Since the EEOC
presumes its decision is received within 5 calendar days after it is mailed, Ruiz
timely filed her federal court action within 90 days of when the EEOC presumed
she received the decision (on May 23, 2011). Based on this sequence of events,
Ruiz both fully exhausted her administrative remedies with respect to the class
action issue, and also timely filed her federal court complaint raising the issue.
      Because subject matter jurisdiction existed over Ruiz’s challenge to the
EEOC decision to subsume her case within the McConnell class, the magistrate
judge erred by dismissing the case for lack of subject matter jurisdiction.
Without addressing the class action issue at all, the magistrate judge dismissed
the case based on Ruiz’s failure to exhaust the merits of her disability
discrimination claim. The entire action should not have been dismissed without
first addressing whether Ruiz was properly subsumed within the McConnell
class action. We therefore reverse the magistrate judge’s order dismissing the
case and remand to the magistrate judge to decide whether Ruiz was properly
subsumed in the class.
                                *        *         *
       The judgment of the district court is REVERSED and the case remanded
for further proceedings.




                                         8
