           Case: 12-12339   Date Filed: 06/11/2013   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-12339
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:10-cv-03950-RLV



PATRICIA A. BRADY,

                                                          Plaintiff-Appellant,

                                 versus

POSTMASTER GENERAL, US POSTAL SERVICE,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (June 11, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
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      Patricia Brady, proceeding pro se, appeals from the district court’s dismissal

of her complaint alleging race and gender discrimination and retaliation under Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16; age

discrimination under the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 633a(a); and disability discrimination under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The district court

dismissed her complaint for failure to exhaust her administrative remedies, as

required by 29 C.F.R. § 1614.105(a)(1). On appeal, Brady argues that she timely

filed a “mixed case” appeal to the Merit Systems Protection Board (“MSPB”), and

therefore, her appeal to the MSPB operated, for exhaustion purposes, as her initial

contact with an Equal Employment Opportunity Commission (“EEOC”) counselor.

      Upon careful review of the record and consideration of the parties’ briefs,

we affirm.

      We review de novo a district court’s order granting a motion to dismiss.

See McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004). We also review

de novo questions of subject matter jurisdiction. Williams v. Best Buy Co., 269

F.3d 1316, 1318 (11th Cir. 2001). The district court’s findings of jurisdictional

facts are reviewed for clear error. Underwriters at Lloyd’s, London v. Osting-

Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010). Under clear error review, the

district court’s determination must be affirmed so long as it is plausible in light of


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the record viewed in its entirety. Commodity Futures Trading Comm’n v.

Gibraltar Monetary Corp., Inc., 575 F.3d 1180, 1186 (11th Cir. 2009).

      When considering a motion to dismiss, the district court limits its

consideration to the pleadings and any exhibits attached thereto. Tello v. Dean

Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir. 2005). In addition, a court

must consider “documents incorporated into the complaint by reference, and

matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 2499, 2509 (2007).

      When matters outside the pleadings are presented to and not excluded by the

district court in a Federal Rule of Civil Procedure Rule 12(b)(6) motion, the

motion must be treated as one for summary judgment under Rule 56, and parties

must be given a reasonable opportunity to present all the material that is pertinent

to the motion. Fed. R. Civ. P. 12(d). However, a district court may consider a

document attached to a motion to dismiss without converting the motion into a

motion for summary judgment if (1) the document is central to plaintiff’s claim,

and (2) its authenticity is not challenged. Day v. Taylor, 400 F.3d 1272, 1276

(11th Cir. 2005). Moreover, when considering a Rule 12(b) motion to dismiss for

failure to exhaust administrative remedies, “it is proper for a judge to consider

facts outside of the pleadings and to resolve factual disputes as long as the factual




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disputes do not decide the merits and the parties have sufficient opportunity to

develop a record.” Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008).

      A federal employee must pursue and exhaust her administrative remedies as

a jurisdictional prerequisite to filing a Title VII, ADA, or ADEA action. See

Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008); 29 C.F.R.

§ 1614.105(a)(1). To exhaust her remedies, a federal employee “must initiate

contact with [an EEOC] Counselor within 45 days of the date of the matter alleged

to be discriminatory, or . . . within 45 days of the effective date of the action.” 29

C.F.R. § 1614.105(a)(1). “Generally, when the claimant does not initiate contact

within the 45-day charging period, the claim is barred for failure to exhaust

administrative remedies.” Shiver, 549 F.3d at 1344.

      A federal employee who alleges employment discrimination related to or

stemming from an “an appealable agency action,” i.e., an action that can be

appealed to the MSPB, presents a “mixed case appeal.” 29 C.F.R.

§ 1614.302(a)(2). The date on which the employee files her mixed case appeal

with the MSPB is deemed to be the date of initial contact with an EEOC counselor.

Id. § 1641.302(b). In a mixed case appeal, the final decision from the MSPB

exhausts an employee’s administrative remedies and allows her to seek judicial

review. Chappell v. Chao, 388 F.3d 1373, 1375 (11th Cir. 2004). However,

federal employees with discrimination claims that are not mixed with an adverse


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action within the MSPB’s jurisdiction must pursue their claims through the EEOC

process. Id. at 1375 n.2. The MSPB only has jurisdiction over certain “preference

eligible employees” of the USPS. See 5 U.S.C. §§ 7511(a)(1)(B), 7513(d),

7701(a); 5 C.F.R. § 1201.3(a). “Preference eligible” employees include, inter alia,

“the unmarried widow or widower of a veteran.” 5 U.S.C. § 2108(3)(D).

      Here, the district court did not err in dismissing Brady’s complaint. The

court was permitted to consider facts outside of the pleadings and to resolve factual

disputes in ruling on the motion to dismiss for failure to exhaust administrative

remedies, and its conclusion that Brady was not a preference eligible employee and

that this was not a “mixed case appeal” is supported by the record. See Bryant,

530 F.3d at 1376; Commodity Futures Trading Comm’n, 575 F.3d at 1186.

Therefore, the court did not clearly err in concluding that Brady’s appeal to the

MSPB did not operate as her first contact with the EEOC.

      Brady’s appeal was not a “mixed case appeal,” and she was required to

pursue her claims through the EEOC process and contact an EEOC counselor

within 45 days of the effective date of the action alleged to be discriminatory. See

29 C.F.R. § 1614.105(a)(1). The effective date of Brady’s termination was

November 15, 2003, and Brady did not contact an EEOC counselor until March 8,

2006, long after the 45-day charging period. Accordingly, the district court did not




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err in concluding that Brady’s complaint was barred for failure to exhaust her

administrative remedies. See Shiver, 549 F.3d at 1344.

      AFFIRMED.




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