                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 12-4102
                                    _____________

                              CHERYL A. SLINGLAND,
                                             Appellant

                                           v.

                              PATRICK R. DONAHOE,
                              POSTMASTER GENERAL
                                 _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 5-11-cv-04591)
                      District Judge: Hon. Lawrence F. Stengel
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 10, 2013

        Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges

                              (Filed: September 12, 2013)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge

      Cheryl A. Slingland appeals the dismissal by the United States District Court for

the Eastern District of Pennsylvania of her employment discrimination action against her
former employer, the United States Postal Service. For the reasons that follow, we will

affirm.

I.        Background

          Slingland was employed as a postmaster from September 1988 until January 2011.

According to the Postal Service, it terminated her employment due to problems with her

performance and because she had improperly issued money orders to herself. Slingland,

who claims to suffer from post-traumatic stress disorder as a result of prior military

service, contends that any problems with her job performance resulted from an increase

in her workload that exacerbated her condition. She also alleges that she was harassed by

her male co-workers, that younger workers were favored over older workers when two

Postal Service facilities were consolidated, and that the reasons the Postal Service gave

for her termination were pretextual.

          Slingland filed an Equal Employment Opportunity (“EEO”) complaint with the

EEO office of the Postal Service on February 1, 2011, challenging its decision to

terminate her employment and also asserting claims of discrimination based on age, sex,

and disability, and a claim of retaliation for an earlier charge of discrimination she had

filed. Ten days later, she also filed an appeal of her termination with the Merit Systems

Protection Board (“MSPB”). The MSPB promptly dismissed that appeal without

prejudice because she had already filed her complaint with the EEO office of the Postal

Service.


                                              2
       The Postal Service issued a final agency decision in June 2011, finding no

discrimination and dismissing Slingland’s EEO claims. Slingland appealed that decision

to the MSPB, but, before it ruled on the matter, she sent it a letter expressing her wish to

voluntarily withdraw her appeal, so that she could pursue her claims in federal court. In

response to that letter, the MSPB once again dismissed her appeal without prejudice.

       Before the MSPB dismissed that second appeal, Slingland filed this action in the

District Court. She alleged that the Postal Service violated Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000c et seq., the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., because it based her termination on

her sex, age, and disability, and because the firing was retaliatory. The Postal Service

moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), or, in the alternative, for summary judgment under Rule 56. The Postal Service

principally argued that the District Court lacked jurisdiction to review its decision to

terminate Slingland because she had not exhausted her administrative remedies before

withdrawing her appeal before the MSPB.

       The District Court granted the Postal Service’s motion to dismiss in September

2012. The Court concluded that it had jurisdiction over the case, but that Slingland had

failed to exhaust her administrative remedies, so that her Title VII and ADEA claims

were subject to dismissal under Rule 12(b)(6). The Court also held that Slingland had no


                                              3
cause of action based on her disability because the ADA does not apply to federal

agencies. Consequently, the Court dismissed Slingland’s complaint with prejudice.

       This timely appeal followed.

II.    Discussion1

       Because Slingland challenges only the dismissal of her Title VII and ADEA

claims, our review is limited accordingly. “It is a basic tenet of administrative law that a

plaintiff must exhaust all required administrative remedies before bringing a claim for

judicial relief.” Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). In particular,

“[t]he Supreme Court has explained that when Title VII remedies are available, they must

be exhausted before a plaintiff may file suit.” Spence v. Straw, 54 F.3d 196, 200 (3d Cir.

1995). The ADEA likewise requires a plaintiff to exhaust all available remedies when

she elects to proceed administratively. Purtill v. Harris, 658 F.2d 134, 138-39 (3d Cir.

1981). Failure to exhaust administrative remedies is an affirmative defense, “in the

nature of statutes of limitation.” Robinson, 107 F.3d at 1021 (internal quotation marks

omitted).2 Under our precedent, it is grounds for dismissal on a Rule 12(b)(6) motion,



       1
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 2000e-5(j). “We exercise
plenary review of the District Court’s order granting defendant’s motion to dismiss.”
Fellner v. Tri-Union Seafoods, LLC, 539 F.3d 237, 242 (3d Cir. 2008). To survive a
motion to dismiss, a civil complaint must “set out ‘sufficient factual matter’ to show that
the claim is facially plausible,” which “‘allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.’” Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
       2
           As such, failure to exhaust “do[es] not affect the district court’s subject matter
                                                4
see id. at 1022 (“A complaint does not state a claim upon which relief may be granted

unless it asserts the satisfaction of the precondition to suit specified by Title VII ... .”

(internal quotation marks omitted)), provided that the defendant has met “the burden of

pleading ... that the plaintiff has failed to exhaust administrative remedies,” Williams v.

Runyon, 130 F.3d 568, 573 (3d Cir. 1997).3 The Postal Service has accomplished that

here.

        As the District Court explained, a federal employee who claims she was the victim

of discrimination is also subject to the administrative scheme set forth in the Civil Service

Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 111 (codified in scattered sections of 5

U.S.C.). At the outset, she may file a “mixed case complaint”4 with her employer’s EEO


jurisdiction,” Hornsby v. U.S. Postal Serv., 787 F.2d 87, 89 (3d Cir. 1986), and the
District Court properly rejected the Postal Service’s jurisdictional challenge pursuant to
Federal Rule of Civil Procedure 12(b)(1).
        3
         Although we have said in the Title VII context that “[t]imeliness of exhaustion
requirements are best resolved under Rule 12(b)(6) covering motions to dismiss for
failure to state a claim,” Robinson v. Dalton, 107 F.3d 1018, 1022 (1997), exhaustion is
not an element of a Title VII claim, but rather “an affirmative defense, [for which] the
defendant bears the burden of pleading.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.
1997). Cf. Jones v. Bock, 549 U.S. 199, 216 (2007) (concluding that “failure to exhaust
is an affirmative defense under the [Prison Litigation Reform Act], and that inmates are
not required to specially plead or demonstrate exhaustion in their complaints”). Whether
subsequent case law has undermined Robinson is not a matter that the parties have
briefed and we decline to consider it sua sponte.
        4
         “A mixed case complaint is a complaint of employment discrimination filed with
a federal agency ... related to or stemming from an action that can be appealed to the
Merit Systems Protection Board (MSPB).” 29 C.F.R. § 1614.302(a)(1); see also Butler v.
West, 164 F.3d 634, 638 (D.C. Cir. 1999) (defining a “mixed case” as “an adverse
personnel action subject to appeal to the MSPB coupled with a claim that the action was
motivated by discrimination”).
                                              5
office or a “mixed case appeal” with the MSPB, but she cannot do both. 29 C.F.R.

§ 1614.302(b).5 If the employee files a mixed case complaint with her employer’s EEO

office, she has thirty days following the receipt of its final decision to file either an appeal

with the MSPB or a civil action in the district court, but she cannot do both

simultaneously. 5 C.F.R. § 1201.154(b)(2); 29 C.F.R. §§ 1614.302(d)(1)(i),

1614.302(d)(3), 1614.310(g). If the employee files an appeal with the MSPB, she may

not file a discrimination action in the district court until after the MSPB has rendered its

final decision. See 5 C.F.R. § 1201.157 (requiring the MSPB to notify appellant of her

right to file a civil action when it renders its final decision); 29 C.F.R. § 1614.310(b)

(authorizing appellant to file a civil action within thirty days of her receipt of the MSPB’s

final decision).

       In this case, Slingland initially filed a mixed case complaint with the Postal

Service’s EEO office. After she received its final decision dismissing her complaint, she

appealed that decision to the MSPB. Then, before the MSPB had rendered any decision

on the merits of her claims, and, in fact, before it had even dismissed her appeal as

withdrawn, she filed the present suit. She thus failed to exhaust her administrative

remedies, and she was not entitled to file suit in the District Court. See 29 C.F.R.



       5
        If she does both, as Slingland did, then the action that was filed first “shall be
considered an election to proceed in that forum.” 29 C.F.R. § 1614.302(b). The MSPB
therefore properly dismissed the mixed case appeal that Slingland filed in February 2011,
because she had already filed her mixed case complaint with the Postal Service’s EEO
office.
                                               6
§ 1614.310(a) (authorizing a civil action for discrimination in the appropriate district

court “[w]ithin 30 days of receipt of a final decision issued by an agency on a complaint

unless an appeal is filed with the MSPB” (emphasis added)). The fact that she voluntarily

withdrew her MSPB appeal does not excuse her failure to exhaust. See, e.g., Stoll v.

Principi, 449 F.3d 263, 266-67 (1st Cir. 2006) (“[O]nce a government employee elects to

pursue a mixed case before the [MSPB], she is obliged to follow that route through to

completion, to the exclusion of any other remedy that originally might have been

available.”); Vinieratos v. U.S. Dep’t of Air Force, 939 F.2d 762, 770 (9th Cir. 1991)

(“[A]bandonment of the administrative process may suffice to terminate an

administrative proceeding before a final disposition is reached, thus preventing

exhaustion and precluding judicial review.”). The District Court thus properly dismissed

Slingland’s Title VII and ADEA claims based on her failure to exhaust the administrative

remedies available to her.

       Slingland argues that she was not required to exhaust her administrative remedies

with the MSPB because she had already made the binding election to proceed with an

EEO complaint. It is true that her election to proceed with the EEO complaint was

binding when it was filed. See Economou v. Caldera, 286 F.3d 144, 149 (2d Cir. 2002).

Her effort to go to the MSPB while the EEO complaint was under consideration was

therefore improper, 29 C.F.R. § 1614.302(b), which is what led to the dismissal of her

first appeal. But she filed another appeal with the MSPB after the Postal Service

rendered its final agency decision on the EEO complaint in June 2011. That appeal was
                                              7
proper, regardless of Slingland’s initial EEO election. See 29 C.F.R.

§ 1614.302(d)(1)(ii) (providing that a mixed case complainant may appeal an adverse

final EEO decision to the MSPB). And she could not avoid the exhaustion requirement

by voluntarily abandoning that appeal once it was filed, because “[a]llowing a plaintiff to

abandon the administrative remedies [s]he has initiated would tend to frustrate the ability

of the agency to deal with complaints.” Purtill, 658 F.2d at 138.6

       Slingland also argues that the District Court erred because it did not distinguish

between her Title VII and ADEA claims, and that the latter does not require exhaustion.

We rejected that argument in Purtill, supra. There, a mixed case plaintiff attempted to

pursue administrative and judicial remedies simultaneously. We noted that “[a] federal

employee protected by the ADEA has two options when presenting a claim of age

discrimination connected with [her] job.” Id. at 138. She “may forego administrative

action and file suit in federal district court after giving the [Equal Opportunity

Employment Commission (‘EEOC’)] thirty days’ notice of intent to sue” pursuant to 29

U.S.C. § 633a(d). Id. “Alternatively, [s]he may file a complaint with the EEOC and

       6
         Slingland suggests that the MSPB’s dismissal of her February 2011 mixed case
appeal has the “collateral estoppel effect” of binding the District Court to hold that her
EEO complaint was the only one requiring exhaustion. Although we have said that “the
Merit Systems Protection Board … is entitled to employ the doctrine of collateral
estoppel,” Chisolm v. Def. Logistics Agency, 656 F.2d 42, 47 (3d Cir. 1981), the
determination to which Slingland refers was limited to that February 2011 appeal, which
the MSPB said was “premature because she had elected to pursue a mixed-case EEO
complaint prior to filing [her] mixed-case appeal with the Board” (J.A. at 47). The fact
remains that the appeal to the MSPB of the Postal Service’s final agency decision was
proper, and that she abandoned it prior to exhaustion.
                                              8
commence suit following its determination should [s]he be dissatisfied with the EEOC’s

disposition.” Id.; see also 29 U.S.C. § 633a(b), (c). We acknowledged that, “when a

plaintiff may avoid administrative avenues of relief entirely by filing suit in district court

after notice of intent to sue, some of the usual reasons for requiring exhaustion of

administrative remedies do not apply.” Purtill, 658 F.2d at 138 (citation omitted). But

we held that the ADEA still requires exhaustion, “[a]bsent an indication of contrary

congressional intent,” because, otherwise, “at any moment[,] an impatient complainant

could take his claim to court and abort the administrative proceedings.” Id. Slingland’s

ADEA claim, like her Title VII claim, is thus subject to dismissal for failure to exhaust.

III.   Conclusion

       For the foregoing reasons, we will affirm the order of the District Court dismissing

Slingland’s complaint.




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