           Case: 15-13441   Date Filed: 06/08/2016   Page: 1 of 6


                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-13441
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cv-20726-MGC

SHIRLEY A. DUBERRY,

                                                           Plaintiff-Appellant,

                                  versus

POSTMASTER GENERAL,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (June 8, 2016)

Before TJOFLAT, MARCUS and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Shirley Duberry, proceeding pro se, appeals from the dismissal of her

employment discrimination action against Patrick Donahue,1 the Postmaster

General for the United States Postal Services (“USPS”). In her complaint, Duberry

raised age, race, gender, and disability discrimination claims under Title VII, 42

U.S.C. § 2000e-16, and the Rehabilitation Act of 1973, 29 U.S.C. § 794. The

district court dismissed the complaint because Duberry did not exhaust the

administrative remedies for her gender and disability claims, and did not timely file

her age and race discrimination claims. On appeal, Duberry argues that she was

discriminated against based on her age, race, gender, and disability.                  After

thorough review, 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 review de novo

a district court’s dismissal, under Federal Rule of Civil Procedure 12(b)(6), of a

plaintiff’s complaint for failure to satisfy the statute of limitations. Jackson v.

Astrue, 506 F.3d 1349, 1352 (11th Cir. 2007). We review the district court’s

determination that an amendment does not relate back to the original complaint for

abuse of discretion, but the underlying findings of fact are reviewed for clear error.

Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir. 2004).



       1
          Donahue has been replaced by Megan Brennan on appeal, since she was his successor
in office.
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      “Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998). Nevertheless, issues not briefed on

appeal by a pro se litigant are deemed abandoned. Timson v. Sampson, 518 F.3d

870, 874 (11th Cir. 2008). In addition, a passing reference to an issue in a party’s

appellate brief is insufficient to preserve that issue on appeal. Greenbriar, Ltd. v.

City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

      Federal law prohibits discrimination based on race, color, and sex with

regards to employees of the federal government, including the USPS. 42 U.S.C. §

2000e-16. Likewise, federal law prohibits employment discrimination on the basis

of disability. 29 U.S.C. § 794; Sutton v. Lader, 185 F.3d 1203, 1207 (11th Cir.

1999).   However, under both Title VII and the Rehabilitation Act, a federal

employee is required to pursue and exhaust her administrative remedies as a

prerequisite to filing suit. See Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir.

2008). Exhaustion of administrative remedies has been characterized as a matter in

abatement that should be raised in a motion to dismiss. See Bryant v. Rich, 530

F.3d 1368, 1374-75 (11th Cir. 2008) (addressing the Prison Litigation Reform

Act’s (“PLRA”) exhaustion requirements).

      Upon receiving a right-to-sue letter from the Equal Employment

Opportunity Commission (“EEOC”), the plaintiff must bring a civil action against


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the named respondent within 90 days by filing a complaint. 42 U.S.C. §§ 2000e-

16(c), (d), 2000e-5(f)(1). An amended pleading is timely if the original pleading

was timely and the amended pleading relates back to the date on which the original

pleading was filed, even if the amended pleading was filed outside of the

applicable statute of limitations. Krupski v. Costa Crociere S.p.A., 560 U.S. 538,

541 (2010). “An amendment to a pleading relates back to the date of the original

pleading when . . . the amendment asserts a claim that arose out of the conduct,

transaction, or occurrence set out -- or attempted to be set out -- in the original

pleading.” Fed. R. Civ. P. 15(c)(1). The critical issue in determining whether an

amendment relates back to the original complaint is whether the original complaint

gave the defendant notice of the claim asserted in the amendment. Moore v.

Baker, 989 F.2d 1129, 1131 (11th Cir. 1993).

      In this case, the district court dismissed Duberry’s complaint because she

failed to exhaust the administrative remedies for her gender and disability claims,

and she failed to timely file her age and race discrimination claims. On appeal,

however, Duberry only makes passing references to timeliness and her EEOC

right-to-sue letter, which is insufficient to preserve these issues.   Because issues




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not briefed on appeal are deemed abandoned, and Duberry’s argument on appeal

does not address the reasons the district court dismissed her complaint, we affirm. 2

       Moreover, and in any event, even assuming arguendo that Duberry did not

abandon these arguments, the district court did not err in dismissing her complaint.

For starters, the court properly considered documents in the record in order to rule

on the exhaustion issue. See Bryant, 530 F.3d at 1374-76 (“In deciding a motion

to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond

the pleadings and decide disputed issues of factholding.” (quotation omitted)).

These documents make clear that Duberry only raised her age discrimination and

racial discrimination claims before the EEOC.                As a result, Duberry did not

exhaust her administrative remedies regarding her gender and disability

discrimination claim. Because Duberry did not exhaust those claims, they were

properly dismissed.

       The district court also properly dismissed Duberry’s age discrimination and

racial discrimination claims. Even assuming that Duberry’s original complaint was

filed timely, her amended complaint was well outside of the 90-day time limit.

Her original complaint only discussed the contract claim, and provided no other

argument or reference to discrimination. She did not move to amend her complaint
2
  Additionally, while Duberry references a breach of contract by USPS in her appellate brief, she
also says that she is suing under a discrimination theory, and appears to be using the contract
violations more as a factual basis to show that USPS acted incorrectly. Because she makes no
argument that she did not abandon her contract claim or that the district court otherwise erred in
implicitly disposing of it, any breach-of-contract argument has been abandoned on appeal.
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to include age, race, gender, and disability discrimination -- claims based on

significantly different facts from her breach-of-contract claim -- until March 2014.

Since the two sets of claims do not involve all of the same conduct or occurrence,

and since the original complaint did not place USPS on notice that it would be sued

for age, race, gender, and disability discrimination, the district court did not abuse

its discretion in concluding that Duberry’s discrimination claims did not relate

back to her contract claim. Therefore, the district court did not err in concluding

that Duberry did not meet the 90-day time limit.

      AFFIRMED.




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