                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2358
                                    ___________

Linda J. Patrick,                     *
                                      *
      Plaintiff - Appellant,          *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Western District of Arkansas.
William J. Henderson, Postmaster      *
General,                              *
                                      *
      Defendant - Appellee.           *
                                 ___________

                              Submitted: February 14, 2001

                                   Filed: July 11, 2001
                                    ___________

Before LOKEN, and BYE, Circuit Judges, and STROM,* District Judge.
                               ___________

LOKEN, Circuit Judge.

       Fayetteville, Arkansas postmaster Linda J. Patrick commenced this action against
her employer in October 1999, alleging gender discrimination and retaliation violations
of Title VII, breach of contract, invasion of privacy, and slander. The United States
Postal Service moved to dismiss under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, arguing that Patrick’s Title VII claims are barred by her failure to exhaust

      *
        The HONORABLE LYLE E. STROM, United States District Judge for the
District of Nebraska, sitting by designation.
administrative remedies, and that the district court lacked jurisdiction over her other tort
and breach-of-contract claims. The district court granted the motion and dismissed
Patrick’s suit in its entirety. Patrick appeals the dismissal of her Title VII claims. On
appeal, the Postal Service concedes that some of those claims were properly exhausted.
Accordingly, we reverse.

        A postal employee must exhaust applicable administrative remedies before
commencing a Title VII action in federal court. See Bailey v. United States Postal
Serv., 208 F.3d 652, 654 (8th Cir. 2000). To properly exhaust, a complainant must
initiate the EEO pre-complaint process “within 45 days of the date of the matter alleged
to be discriminatory or, in the case of personnel action, within 45 days of the effective
date of the action.” 29 C.F.R. § 1614.105(a)(1). If the matter is not informally
resolved, the EEO counselor notifies the complainant of her right to file a formal
administrative complaint. See § 1614.105(d). “Only the claims raised in this pre-
complaint counseling (or issues or claims like or related to issues or claims raised in the
pre-complaint counseling) may be alleged in a subsequent complaint filed with the
agency.” § 1614.105(b)(1). The complainant must file her formal written complaint
within 15 days after receiving the counselor’s notice. See § 1614.106(b).
        In this case, Patrick was temporarily assigned to a smaller postal facility on
October 1, 1998, after an investigation of complaints about the work environment at
the Fayetteville post office. She initiated the EEO pre-complaint process on October
13 and filed a formal gender discrimination administrative complaint on February 5,
1999. While that complaint was awaiting final agency action, Patrick initiated a second
EEO complaint in early 1999 regarding two alleged retaliatory actions and filed a
second formal administrative complaint on June 2, 1999. The Postal Service dismissed
that complaint in a final agency action dated July 16, 1999.

       Patrick filed this action in the district court on October 13, 1999. The lawsuit
was timely because it was filed within 90 days after the final agency action on Patrick’s
retaliation complaint, and more than 180 days after her initial complaint was submitted

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for final agency action. See 29 C.F.R. § 1614.407(a) & (b). The Postal Service moved
to dismiss for failure to exhaust because Patrick’s complaint included allegations that
were not included in her prior informal and formal administrative complaints. The
district court dismissed all the Title VII claims, as counsel for the Postal Service urged.
But at oral argument on appeal, appellate counsel for the Postal Service finally
conceded that Patrick did properly exhaust at least some of her claims. That means the
Postal Service’s Rule 12(b)(1) motion was without merit. Even if some Title VII
claims are time-barred because of a failure to exhaust administrative remedies, the
district court has jurisdiction to consider claims that were properly exhausted. See
Gipson v. KAS Snacktime Co., 83 F.3d 225, 229-30 (8th Cir. 1996).

      Having led the district court into error with a misguided jurisdictional motion,
the Postal Service argues on appeal that we may affirm because none of Patrick’s
exhausted claims involved an adverse employment action. This contention, too, is
without merit. We do not know which of Patrick’s Title VII claims are unexhausted
because the district court did not undertake the necessary detailed analysis of what
claims were fairly included in her informal and formal administrative complaints.
Moreover, adverse employment action is a fact issue that is rarely appropriate for Rule
12 resolution. We decline to take up that issue on this threadbare record.

       The judgment of the district court is reversed insofar as it dismissed the First
Cause of Action in Patrick’s Complaint. The case is remanded for further proceedings
not inconsistent with this opinion.

      A true copy.

             Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.


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