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

                                                 FILED
                                                                            June 17, 2009

                                     No. 08-10989                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



VALERIE M. FOBBS

                                                   Plaintiff – Appellant
v.

JOHN E. POTTER, Postmaster General United States Postal Service

                                                   Defendant – Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:08-CV-63


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges..
PER CURIAM:*
       Plaintiff-Appellant Valerie Fobbs appeals the district court’s grant of the
United States Postal Service’s (“Postal Service”) motion to dismiss. The district
court found that it lacked jurisdiction over her employment discrimination claim
because she failed to exhaust her administrative remedies prior to filing suit.
We AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-10989

                               BACKGROUND
      Fobbs is an employee of the Postal Service. Fobbs was long employed as
a mail carrier in New Orleans, but in the wake of Hurricane Katrina, she was
reassigned to a temporary position with the Mesquite Post Office in the Dallas,
Texas area. At the time of her reassignment, Fobbs had attained a Level Six
employment position. A few months after her transfer, on June 7, 2006, the
Postal Service notified Fobbs that she had been downgraded to a Level Five
position.   Fobbs contends that she was the only reassigned employee
downgraded in this manner and that all other employees reassigned due to
Hurricane Katrina retained their prior employment grade level. Fobbs alleges
that her downgrade violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-
16 (“Title VII”), and the Age Discrimination in Employment Act, 29 U.S.C.
§ 633a (“ADEA”).
      Fobbs filed a complaint with the Postal Service’s Equal Employment Office
(“EEO”) to challenge her downgrade.         An administrative hearing on her
complaint was held on July 10, 2007, and the EEO Administrative Judge
subsequently entered a finding of no discrimination.       Fobbs appealed that
decision to the Equal Employment Opportunity Commission (“EEOC”), which
affirmed on October 23, 2007. On November 11, 2007, Fobbs filed a request for
reconsideration of the EEOC decision.
      While the request for reconsideration was still pending, Fobbs filed the
instant suit in the district court on January 14, 2008, and the Postal Service
moved to dismiss. On October 2, 2008, the district court dismissed Fobbs’s
complaint without prejudice for failure to properly exhaust her administrative
remedies. Fobbs appeals.
                                DISCUSSION
      This court reviews the district court’s grant of a motion to dismiss
pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, including the

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determination of whether the exhaustion requirement is satisfied, de novo.
Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006); Herbert v. United States,
53 F.3d 720, 722 (5th Cir. 1994) (“We review de novo a district court’s granting
of a motion to dismiss for lack of subject matter jurisdiction.”).
       A federal employee who wishes to sue for discrimination under Title VII
or the ADEA must first exhaust her administrative remedies. See Pacheco, 448
F.3d at 788; 29 C.F.R. § 1614.407. Fobbs properly filed a discrimination charge
with her agency’s EEO.1 After the Postal Service denied her claim, Fobbs had
a choice: appeal to the EEOC or file suit in district court. Tolbert v. United
States, 916 F.2d 245, 248 (5th Cir. 1990).                 Fobbs appealed the EEO
administrative finding of no discrimination to the EEOC, and the EEOC
affirmed. At that point, Fobbs had ninety days to file her suit in federal court.
29 C.F.R. § 1614.407.
       Instead, Fobbs asked the EEOC to reconsider its decision. Once Fobbs
chose to continue along the administrative relief path by requesting
reconsideration by the EEOC she was required to wait until that administrative
remedy was exhausted. Cf. Tolbert, 916 F.2d at 248; 29 C.F.R. § 1614.407 (a
federal employee otherwise eligible to proceed to district court with her Title VII
or ADEA employment discrimination claim may only do so “[w]ithin 90 days of
the Commission’s final action on appeal,” or “after 180 days from the date of the
filing of an appeal with the Commission if there has been no final decision by the
Commission”).
       Fobbs filed suit in the district court both before the EEOC’s “final action”
on her appeal – a decision on her request for reconsideration – and before 180


       1
        Although the district court stated that Fobbs initiated her charges in an EEOC
complaint, Fobbs in fact initiated her discrimination charges with the Postal Service’s EEO.
Federal employees must first file a charge of discrimination with the EEO division of their
agency. This is in contrast to private sector employees, who exhaust their administrative
remedies by first filing a charge with the EEOC. Pacheco, 448 F.3d at 788 & n.6.

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days passed from her filing of that request. A premature filing is a failure to
exhaust administrative remedies and requires dismissal of the complaint for lack
of jurisdiction.2 Tolbert, 916 F.2d at 249. The fact that the EEOC entered a final
decision denying Fobbs’s request for reconsideration while the motion to dismiss
was pending in the district court does not change our analysis. Id.
                                    CONCLUSION
       Finding no error, we AFFIRM the judgment of the district court.




       2
        The presence of Fobbs’s ADEA claim in addition to her Title VII claim presents a
minor distinction from Tolbert, but one without significance. The regulation our court
interpreted in Tolbert was succeeded by 29 C.F.R. § 1614.407, which applies the 90- and 180-
day windows to claims under Title VII, the ADEA, and the Rehabilitation Act.

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