     Case: 10-40364 Document: 00511389601 Page: 1 Date Filed: 02/22/2011




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

                                                 FILED
                                                                        February 22, 2011
                                    No. 10-40364
                                  Summary Calendar                        Lyle W. Cayce
                                                                               Clerk

CAROLYN S. SAPP,

                                                  Plaintiff-Appellant,

v.

JOHN POTTER, POST MASTER GENERAL,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 1:07-CV-00650




Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Sapp, plaintiff-appellant in this matter, appeals from the district court’s
dismissal of her Title VII employment discrimination claim for failure to exhaust
administrative remedies, and from the district court’s sua sponte denial of her
42 U.S.C. § 1981 discrimination claim. We AFFIRM.




       *
        Pursuant to the 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not be published and is not precedent except under the limited circumstances set forth in 5th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.
    Case: 10-40364 Document: 00511389601 Page: 2 Date Filed: 02/22/2011

                                   No. 10-40364

             I. BACKGROUND AND PROCEDURAL HISTORY
        In 2001, Ms. Sapp, plaintiff-appellant, stopped working for the Postmaster
General (hereinafter Postal Service). She claimed that she was suffering from
depression and a panic disorder, both of which were caused by a hostile working
environment. Sapp has not returned to work since this time. Sapp asserts that
her medical conditions qualify her as disabled. As such, she requested the Postal
Service to accommodate her disability by moving her to a different position.
Because the Postal Service did not have any available positions that complied
with Sapp’s limitations, the Postal Service placed her on leave without pay in
2002.
        In late 2006, Sapp confirmed that her restrictions were still in place and
requested again to be placed back on active status.         She filed two Equal
Employment Opportunity (EEO) grievances during this five year period. The
Commission resolved both complaints against her, determining that she was not
medically disabled and that the Postal Service was not required to comply with
her stated restrictions. They also found that even if she were disabled, the
Postal Service did not have any positions available that would conform her
limitations. It is uncontested that she exhausted her administrative remedies
in both of these grievance processes, and an appeal involving those claims is
currently pending in the district court. Those claims are not the subject of this
appeal.
        Two incidents occurred in 2007 which instigated two more EEO
complaints. First, the Postal Service notified her that it would be reducing its
force. Second, the Postal Service proposed to lay her off for the stated reason
that she had not been able to perform her duties for the past five years. The
Postal Service later rescinded the second notification. Approximately six months
later, however, the Postal Service informed her that the company was reducing
its overall number of employees and that they were laying her off as part of the
reduction-in-force.

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                                   No. 10-40364

      Sapp filed her third EEO complaint (EEO3) shortly after being notified
that she was being laid off and less than a week after she had filed her appeal
of the first two grievances in the district court. Later, Sapp filed a fourth EEO
(EEO4) complaint that largely concerned the same facts as EEO3. The basic
allegations in the third and fourth EEO actions were that the Postal Service had
not released her as part of its overall reduction-in-force, but rather that the
Postal Service was retaliating against her for her prior two EEO grievances and
it was discriminating on the basis of race, sex, and disability. After the initiation
of her third EEO complaint, Sapp also filed two Merit Systems Protection Board
(MSPB) appeals concerning her termination. Both were adjudicated against her
for reasons inapplicable to the present appeal.
      Sapp filed a lawsuit in the district court prior to filing the third and fourth
EEO actions. That complaint appealed the decision from the first two EEO
actions, but also stated a cause of action based on the facts alleged in the third
and fourth EEO claims. Upon the Postal Service’s motion, the district court
dismissed the claims that were based on the facts alleged in the third and fourth
EEO actions on the grounds that Sapp had not exhausted her administrative
remedies at the time of filing the complaint, a requirement that must be met
prior to bringing a complaint in the district court.       The district court also
dismissed sua sponte an employment discrimination claim that Sapp had filed
under 42 U.S.C. § 1981 on the grounds that Title VII is the exclusive remedy for
discrimination actions brought by federal employees.
                                II. DISCUSSION
      This court reviews de novo a district court’s determination of whether the
exhaustion requirement applies or is satisfied. Pacheco v. Mineta, 448 F.3d 783,
788 (5th Cir. 2006). The well-settled law of this circuit is that a public employee
cannot proceed in a Title VII action until that employee has exhausted all




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available administrative remedies.1 Id. A necessary prerequisite to exhausting
administrative remedies is having begun the administrative process.                      Id.
Because Sapp had not even filed the third and fourth EEO complaints at the
time that she filed the complaint in the district court, Sapp’s case cannot be
permitted to proceed.
       The district court correctly determined that Sapp’s termination claims
were not sufficiently within the scope of her prior EEO complaints to qualify for
simultaneous consideration. “This court interprets what is properly embraced
in review of a Title-VII claim somewhat broadly, not solely by the scope of the
administrative charge itself, but by the scope of the EEOC investigation which
‘can reasonably be expected to grow out of the charge of discrimination.’”
Pacheco, 448 F.3d at 789 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d
455, 466 (5th Cir. 1970)); McClain v. Lufkin Indus., Inc., 519 F.3d 264, 274-75
(5th Cir. 2008) (“[T]he ‘scope’ of the judicial complaint is limited to the ‘scope’ of
the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination.”).
       As the district court emphasized, EEO1 and EEO2 relate solely to Sapp’s
contention that the Postal Service failed to accommodate the restrictions
imposed by her alleged medical disability. EEO3 and EEO4 relate to her being
wrongfully terminated as a result of her medical disability. Merely because both
sets of facts involve the same alleged motive does not mean that the third and
fourth EEO complaints were within the scope of the first two investigations. The



       1
        There is currently a disagreement in this circuit concerning whether the exhaustion
of administrative remedies requirement is a prerequisite to bringing suit or whether it
deprives the district court of subject-matter jurisdiction. See Pacheco, 448 F.3d at 788 n.7
(discussing the disagreement between various Fifth Circuit panels). The practical difference
between the two alternative interpretations is that equitable remedies such as estoppel and
waiver are available for instances involving a failure to meet a prerequisite to filing a
complaint; they are not available, however, to alleviate the district court’s lack of subject-
matter jurisdiction. We decline to address this disagreement because the facts of this case do
not implicate any of the equitable doctrines of relief.

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first two investigations were already concluded at the time Sapp’s employment
was terminated. A person cannot reasonably expect a concluded investigation
to include an event that has not yet occurred.
       Sapp also contends for the first time on appeal that her retaliation claim
falls within the Gupta exception to the exhaustion requirement.                      Sapp
misunderstands the import of our precedent. The Gupta exception allows a
plaintiff to proceed in district court on an unexhausted retaliation claim if that
claim is alleging retaliation for properly bringing an exhausted claim before the
district court. Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981).2
Because the Gupta exception is premised on avoiding procedural technicalities,
it has only been applied to retaliation claims alone. Scott v. Univ. of Miss., 148
F.3d 493, 514 (5th Cir. 1998), overruled on other grounds, Kimel v. Fla. Bd. of
Regents, 528 U.S. 62 (2000). Sapp requests this court not only to apply the
Gupta exception, but to extend it to include claims in which both retaliation and
discrimination are alleged. See Gupta, 654 F.2d at 414 (creating exception for
a claim involving only retaliation “growing out of an earlier charge,” not a
retaliation and discrimination claim simultaneously alleged). This, the court
declines to do. Permitting simultaneous proceedings for the same inciting event
would “thwart the administrative process and peremptorily substitute litigation
for conciliation.” McClain, 519 F.3d at 273.
       Sapp’s remaining arguments are without merit. She argues that the
district court improperly dismissed her 42 U.S.C. § 1981 employment
discrimination claim. Sapp’s conclusory statement goes against the clear weight
of precedent. In Rowe, this court reaffirmed that “it is well-settled that the

       2
        Some circuits have since held that the Supreme Court’s Morgan decision abolished or
narrowed the Gupta exception. See Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003)
(abolishing Gupta exception); Wedow v. City of Kansas City, 442 F.3d 661, 672-76 (8th Cir.
2006) (narrowing the exhaustion requirement); Weber v. Battista, 494 F.3d 179, 182-84 (D.C.
Cir. 2007) (discussing other circuits’ treatment of the issue). We need not address the
potential abolition of the Gupta exception because the facts of this case do not support the
exception’s application.

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provisions of Title VII of the Civil Rights Act applicable to claims of racial
discrimination in federal employment are the exclusive and preemptive remedy
for such claims.” Rowe v. Sullivan, 967 F.2d 186, 189 (5th Cir. 1992) (quoting
Hampton v. IRS, 913 F.2d 180, 183 (5th Cir. 1990). This is true even where a
plaintiff brings a § 1981 claim based on the same set of facts as the Title VII
claim. See Jackson v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996) (“[Because [T]itle
VII provides the exclusive remedy for employment discrimination claims raised
by federal employees . . . [plaintiff’s] allegations of constitutional violations . . .
are preempted by [T]itle VII and cannot afford an independent ground of relief.”)
(citing Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976)). Because Sapp
fails to present any reason to deviate from such clear precedent, the district
court’s dismissal of Sapp’s § 1981 claim is affirmed.
      She also contests the district court’s alleged denial of her summary
judgment motion. Sapp filed her motion for summary judgment two weeks after
the district court had rendered partial final judgment dispensing with the claims
based on the facts alleged in EEO3 and EEO4. Sapp appealed the district court’s
order before the district court had ruled on her motion for summary judgment.
The district court then granted a stay in the proceedings due to the present
appeal. As such, the district court never ruled on Sapp’s motion. It is a logical
necessity that this court cannot reverse a ruling that has not yet been made.
      Moreover, she did not include the un-ruled upon motion for summary
judgment in her notice of appeal. “Where the appellant notices the appeal of a
specified judgment only or a part thereof . . . this court has no jurisdiction to
review other judgments or issues which are not expressly referred to and which
are not impliedly intended for appeal.” Warfield v. Fid. & Deposit Co., 904 F.2d
322, 325 (5th Cir. 1990) (quoting C.A. May Marine Supply Co. v. Brunswick
Corp., 649 F.2d 1049, 1056 (5th Cir. 1981) (per curiam)); see also Fed. R. App. P.
3(c) (stating that the appellant’s notice of appeal is required to “designate the
judgment, order, or part thereof being appealed”).

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    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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