     Case: 13-40328    Document: 00512613546    Page: 1    Date Filed: 04/30/2014




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


                                 No. 13-40328
                                                                         FILED
                                                                     April 30, 2014
                                                                    Lyle W. Cayce
SANDRA KAY GILBERT,                                                      Clerk

                                           Plaintiff–Appellant,

v.

PATRICK R. DONAHOE, Postmaster General, United States Postal Service,

                                           Defendant–Appellee.



                Appeal from the United States District Court
                     for the Eastern District of Texas


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Sandra Kay Gilbert appeals the district court’s dismissal of her
complaint for lack of subject matter jurisdiction.        We conclude that the
collective bargaining agreement between the union of which Gilbert was a
member and the United States Postal Service did not clearly and unmistakably
require Gilbert to resolve claims arising under the Family and Medical Leave
Act through arbitration. However, we agree with the district court that the
agreement’s incorporation of the Rehabilitation Act was sufficiently clear and
unmistakable to waive Gilbert’s right to bring claims under that statute in
federal court. We further conclude that Gilbert no longer has standing to seek
injunctive relief, since she has retired. Accordingly, we affirm in part, reverse
in part, and remand.
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                                  No. 13-40328
                                        I
      Plaintiff Sandra Kay Gilbert is a former employee of the United States
Postal Service (USPS), and this case arises out of events that occurred during
her employment. Following a “due process” interview regarding her practice
of taking leave during USPS’s busy seasons, Gilbert initiated an Equal
Employment Opportunity (EEO) complaint, alleging that the interview
constituted age and disability discrimination.       Shortly thereafter, Gilbert
sought paid sick leave in order to care for her husband (the first leave request).
USPS temporarily denied Gilbert’s claim.         Although she was eventually
granted paid leave, Gilbert filed an internal grievance with USPS according to
the terms set forth in the collective bargaining agreement (CBA) between the
American Postal Workers Union (Union) and USPS. She also amended her
EEO complaint, claiming that the interview and the temporary denial of paid
leave constituted retaliation. USPS’s regional postmaster denied Gilbert’s
grievance, finding that management had acted in accordance with its
handbooks and the CBA.        USPS’s EEO Services Analyst also dismissed
Gilbert’s complaint on the ground that the allegations of discrimination were
moot and that Gilbert had failed to state a claim.
      After these decisions were issued, Gilbert filed suit against Patrick R.
Donahoe, in his capacity as USPS Postmaster General. Gilbert alleged that
USPS interfered with her rights under the Family and Medical Leave Act
(FMLA). Concurrently, the Union, acting on Gilbert’s behalf, appealed the
local postmaster’s dismissal of Gilbert’s grievance to an arbitrator, in
accordance with the procedures in the CBA. Gilbert also appealed the EEO
decision to the Equal Employment Opportunity Commission (EEOC). The
EEOC dismissed the appeal, however, because Gilbert had filed suit.
      Donahoe moved to dismiss Gilbert’s lawsuit on the ground that the
district court lacked subject matter jurisdiction.     Donahoe reasoned that,
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                                 No. 13-40328
because the CBA provides that its mandatory grievance procedure is the
exclusive method of resolving claims under the FMLA, Gilbert could not bring
her claims in federal court. While Donahoe’s motion was pending, another
leave dispute arose. Gilbert sought paid sick leave for two days and presented
a physician’s note to her supervisor (the second leave request). Finding the
note insufficiently specific under the terms of the CBA, Gilbert’s supervisor
designated her absence as “leave without pay.”
      After this incident, Gilbert amended her complaint to add claims under
the Rehabilitation Act. Donahoe then filed an amended motion to dismiss,
asserting the same jurisdictional arguments as before and additionally
contending that Gilbert had failed to state a claim for which relief could be
granted. The district court ordered the parties to conduct discovery prior to
ruling on Donahoe’s motion to dismiss. Following discovery, Donahoe filed
another amended motion to dismiss, or alternatively, for summary judgment.
This motion offered various grounds for dismissal and summary judgment, but
did not re-assert the initial argument that the CBA’s grievance procedure
deprived the court of subject matter jurisdiction. Nonetheless, the district
court issued a Notice of Intent to Dismiss, requesting that the parties brief the
issue of whether the CBA precluded subject matter jurisdiction. Following
briefing, the district court dismissed the case for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The court
concluded that the CBA contains a mandatory grievance procedure and clearly
and unmistakably requires Gilbert to resolve her statutory claims through that
procedure.
      Shortly after the dismissal, Gilbert retired from USPS. Nonetheless, she
timely appealed the court’s order. In his brief, Donahoe states that he is
“abandon[ing] the specific grounds underlying the [district court’s] dismissal.”
He contends, however, that this court should affirm the dismissal because
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                                           No. 13-40328
subject matter jurisdiction is lacking for other reasons, Gilbert has failed to
state a claim, and there is no genuine dispute as to a material fact.
                                                  II
         We have held that a district court lacks subject matter jurisdiction over
a case and should dismiss it pursuant to Federal Rule of Civil Procedure
12(b)(1) when the parties’ dispute is subject to binding arbitration. 1 We review
such a dismissal “de novo, using the same standard as the district court.” 2
Under that standard, “[t]he burden of proof for a 12(b)(1) motion to dismiss is
on the party asserting jurisdiction.” 3 In order to bear that burden, the party
“must prove by a preponderance of the evidence that the court has jurisdiction
based on the complaint and evidence.” 4 However, “a motion to dismiss for lack
of subject matter jurisdiction should be granted only if it appears certain that
the plaintiff cannot prove any set of facts in support of his claim that would
entitle plaintiff to relief.” 5 Although Donahoe has abandoned the view that the
CBA deprives the district court of jurisdiction, we must examine the issue,




         See Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 781, 787 (5th Cir. 2012); see also
         1

Omni Pinnacle, LLC v. ECC Operating Servs., Inc., 255 F. App’x 24, 26 (5th Cir. 2007)
(affirming the district court’s order dismissing case pursuant to Rule 12(b)(1) on the ground
that agreement between parties required arbitration of dispute). But see Noble Drilling
Servs., Inc. v. Certex USA, Inc., 620 F.3d 469, 472 n.3 (5th Cir. 2010) (stating that “[o]ur court
has not previously definitively decided whether Rule 12(b)(1) or Rule 12(b)(3) is the proper
rule for motions to dismiss based on an arbitration or forum-selection clause,” but declining
to decide the issue).
         2   Gulf Petro Trading Co. v. Nigerian Nat’l Petroleum Corp., 512 F.3d 742, 746 (5th Cir.
2008).
         3   Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
         4   Ballew, 668 F.3d at 781.
         5   Ramming, 281 F.3d at 161.
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                                          No. 13-40328
since parties may not agree to confer subject matter jurisdiction that Congress
has withheld, and an appellee’s concession is not binding on this court. 6
                                              III
       In 14 Penn Plaza LLC v. Pyett, 7 the Supreme Court held that, in the
absence of statutory language to the contrary, a union may agree with an
employer to submit employees’ statutory claims exclusively to arbitration or
another non-judicial grievance procedure. 8 In order for that agreement to be
enforceable, however, the CBA must “clearly and unmistakably require[] union
members” to submit their statutory claims to those procedures. 9 In Penn
Plaza, for instance, the CBA contained the following clause:
       There shall be no discrimination against any present or future
       employee by reason of race, creed, . . . or any other characteristic
       protected by law, including, but not limited to, claims made
       pursuant to . . . the Age Discrimination in Employment Act
       [ADEA], the New York State Human Rights Law, . . . or any other
       similar laws, rules, or regulations. All such claims shall be subject
       to the grievance and arbitration procedures . . . as the sole and
       exclusive remedy for violations. 10

The Supreme Court determined that this provision was likely sufficiently clear
and unmistakable to bar employees from bringing their ADEA and state-law


       6 See, e.g., United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008) (court of appeals is
not bound by appellee’s concession); Buchner v. FDIC, 981 F.3d 816, 818 (5th Cir. 1993)
(“Although parties may waive their rights to remove a case or to contest the removal
procedure, they may neither confer subject matter jurisdiction on the district court nor strip
it of such jurisdiction by agreement or waiver.”); Warren G. Kleban Eng’g Corp. v. Caldwell,
490 F.2d 800, 803 n.2 (5th Cir. 1974) (“It is settled law that the parties may not, by silence
or agreement, confer upon the federal courts that jurisdiction which Congress has
withheld.”).
       7   556 U.S. 247 (2009).
       8Penn Plaza, 556 U.S. at 256-58, 274; see also Ibarra v. United Parcel Serv., 695 F.3d
354, 356 (5th Cir. 2012).
       9   Penn Plaza, 556 U.S. at 274.
       10   Id. at 252.
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                                         No. 13-40328
claims in federal court. 11 In reaching this conclusion, the Court distinguished
the provision from those at issue in prior cases. 12 In Alexander v. Gardner-
Denver Co., 13 for instance, the CBA provided a grievance procedure for all
“‘differences aris[ing] between the Company and the Union as to the meaning
and application of the provisions of this Agreement’ and ‘any trouble aris[ing]
in the plant.’” 14 Similarly, in Barrentine v. Arkansas-Best Freight System,
Inc., 15 the CBA provided:
       [T]here shall be no strikes, lockouts, tieups, or legal proceedings
       without first using all possible means of settlement as provided for
       in this Agreement and in the National Agreement, if applicable, of
       any controversy which might arise. Disputes shall first be taken
       up between the Employer and the Local Union involved. Failing
       adjustment by these parties, [the dispute shall be resolved by a
       State or Multiple State Committee]. 16

Reviewing these cases, the Penn Plaza Court held that these provisions “did
not expressly reference the statutory claim at issue” and therefore did not
prevent the employees from bringing those claims in federal court. 17
       The Court also implicitly concluded that the arbitration provision was
distinct from that at issue in Wright v. Universal Maritime Service Corp. 18 The
CBA in that case provided that “[m]atters under dispute which cannot be
promptly settled between the Local and an individual Employer shall . . . be


       11   Id. at 260.
       12   Id. at 260-64.
       13   415 U.S. 36 (1974).
       14Penn Plaza, 556 U.S. at 261 (alterations in original) (quoting Gardner-Denver, 415
U.S. at 40-41).
       15   450 U.S. 728 (1981).
       16   Barrentine, 450 U.S. at 731 n.5.
       17   Penn Plaza, 556 U.S. at 263-64.
       18   525 U.S. 70 (1998).
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                                           No. 13-40328
referred” to a specific grievance process and that “[t]he Union agrees that this
Agreement is intended to cover all matters affecting wages, hours, and other
terms and conditions of employment . . . .” 19 Holding that these provisions did
not bar employees from bringing claims under the Americans with Disabilities
Act (ADA) in federal court, Wright observed, “[The CBA’s] arbitration clause is
very general, providing for arbitration of ‘[m]atters under dispute,’ which could
be understood to mean matters in dispute under the contract.                     And the
remainder of the contract contains no explicit incorporation of statutory
antidiscrimination requirements.” 20
      We applied Penn Plaza’s “clear and unmistakable” test in Ibarra v.
United Parcel Service. 21 In that case, one provision of the CBA provided that
“any controversy, complaint, misunderstanding or dispute arising as to
interpretation, application or observance of any of the provisions of this
Agreement” shall be submitted to a specified grievance procedure. 22                     A
separate, non-discrimination provision stated:
      The Employer and the Union agree not to discriminate against any
      individual . . . because of such individual’s race, . . . or age in
      violation of any federal or state law, or engage in any other
      discriminatory acts prohibited by law . . . . This Article . . . covers
      employees with a qualified disability under the [ADA]. 23

We held that these provisions did not require an employee to submit her Title
VII claim to the grievance process. 24              We noted that “for a waiver of an



      19   Wright, 525 U.S. at 72-73.
      20   Id. at 80 (citation omitted).
      21   695 F.3d 354 (5th Cir. 2012).
      22   Ibarra, 695 F.3d at 356-57.
      23   Id. at 357.
      24   Id. at 360.
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                                        No. 13-40328
employee’s right to a judicial forum for statutory discrimination claims to be
clear and unmistakable, the CBA must, at the very least, identify the specific
statutes the agreement purports to incorporate or include an arbitration clause
that explicitly refers to statutory claims.” 25
       Article 15 of the CBA at issue in this case addresses grievances. Section
15.01 provides:
       A. A grievance is defined as a dispute, difference, disagreement or
          complaint between the parties related to wages, hours and
          conditions of employment. A grievance shall include, but is not
          limited to, the complaint of an employee or of the Union which
          involves the interpretation, application of, or compliance with
          the provisions of this Agreement . . . .

Section 15.02 sets out the grievance procedure and provides:
       A. Step 1
          The employee must discuss a grievance with the immediate
          supervisor within fourteen (14) days of when the employee or
          Union has learned or may reasonably have been expected to
          have learned of its cause.

Section 15.03(C), in turn, states:
       The failure of the aggrieved party or the Union to present the
       grievance within the prescribed time limits of the Steps of this
       procedure, including arbitration, shall be considered as a waiver of
       the grievance.

Lastly, Section 15.04(D) provides that, if the grievance ultimately proceeds to
arbitration, “[t]he arbitrator’s decision will be final and binding.”




       25Id. at 359-60; see also Anglin v. Ceres Gulf Inc., 503 F. App’x 254, 255 (5th Cir. 2012)
(noting that if a memorandum of understanding (MOU) between the union and employer had
bound the employee, the employee would not have been able to bring her statutory claims in
federal court because “[t]he MOU specifically identifie[d] Title VII, indicating inter alia that
complaints brought under that statute are subject to the CBA’s grievance and arbitration
provisions”).
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                                 No. 13-40328
      The district court first held that these provisions created a mandatory
grievance procedure. It reasoned that Section 15.02, when combined with
Section 15.03(C), required that employees submit claims according to specified
time limits or waive those claims entirely. The court then addressed whether
the CBA clearly and unmistakably required Gilbert to submit her statutory
claims to that procedure. It recognized that Article 15 does “not specifically
identify either the FMLA or the Rehabilitation Act nor do[es it] explicitly state
that the grievance and arbitration procedures are the sole and exclusive
remedy.”   Nonetheless, the court held, provisions elsewhere in the CBA
incorporated both the FMLA and the Rehabilitation Act into the agreement.
Specifically, the court pointed to Section 2.01(B), which provides that,
“consistent with the other provisions of this Agreement, there shall be no
unlawful discrimination against handicapped employees, as prohibited by the
Rehabilitation Act.” As for the FMLA, the court pointed to the Employee and
Labor Relations Manual (ELM), which is incorporated into the CBA. Section
515 of the ELM states that it “provides policies to comply with the [FMLA].”
“Thus,” the district court held, “the CBA identifies the specific statute[s] it
purports to incorporate” and therefore “clearly and unmistakably” requires
employees to submit their claims under those statutes to the specified
grievance procedure.
      On appeal, Gilbert does not challenge the district court’s conclusion that
the grievance procedure is mandatory. Any such challenge, moreover, would
be of little merit. Irrespective of whether the grievance procedure was initially
mandatory, Gilbert, through her union, elected to proceed to arbitration, and
the CBA, as just mentioned, specifically states that the arbitrator’s decision
shall be “final and binding.”
      Gilbert does, however, assert that the district court erred in concluding
that the CBA clearly and unmistakably requires her to submit her FMLA and
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                                       No. 13-40328
Rehabilitation Act claims to arbitration. We agree, in part. The CBA in this
case falls in between that at issue in Penn Plaza and those this court and the
Supreme Court have deemed insufficiently clear and unmistakable. Like the
dispute-resolution provisions in Ibarra, Wright, Gardner-Denver, and
Barrentine, Article 15 makes no explicit reference to statutory claims, let alone
claims under the FMLA or the Rehabilitation Act. However, unlike in those
cases, other provisions of the CBA do specifically identify both the FMLA and
the Rehabilitation Act.
       Nonetheless, the ways in which the agreement identifies the respective
statutes are distinct, and this difference guides our resolution of this case.
Section 2.01(B) of the CBA specifically provides that it is incorporating into the
agreement the prohibition of discrimination against handicapped employees
contained in the Rehabilitation Act. It thus complies with the dicta of both
Ibarra and Wright that the CBA “identify the specific statutes the agreement
purports to incorporate.” 26 Combined with Article 15, this provision makes it
clear and unmistakable that the Rehabilitation Act is part of the CBA and
subject to the same grievance procedures. By contrast, the ELM only provides
policies to comply with the FMLA. It does not purport to make the FMLA a
part of the agreement. As our sister circuits have recognized, references to
statutes that fall short of incorporation are insufficiently “clear and
unmistakable” to bar access to federal court. 27 There is no reason to treat this
reference any differently. Accordingly, we hold that, while the CBA requires
Gilbert to pursue her Rehabilitation Act claims through the specified grievance



       26Ibarra, 695 F.3d at 359-60; see also Wright v. Universal Mar. Serv. Corp., 525 U.S.
70, 81 (1998) (implying that CBA would be clear and unmistakable if it “ma[de] compliance
with the ADA a contractual commitment that would be subject to the arbitration clause”).
        See, e.g., Powell v. Anheuser-Busch Inc., 457 F. App’x 679, 679 (9th Cir. 2011); Brown
       27

v. ABF Freight Sys., Inc., 183 F.3d 319, 320, 323 (4th Cir. 1999).
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                                            No. 13-40328
and arbitration procedures, its references to the FMLA are not sufficiently
clear and unmistakable to deprive the district court of subject matter
jurisdiction over claims arising under that statute.
                                                  IV
         Although he abandons the reasoning relied upon by the district court,
Donahoe urges this court to affirm the dismissal of Gilbert’s claims on various
other grounds, including lack of subject matter jurisdiction.                        Under our
precedent, we may “affirm on any ground supported by the record, including
one not reached by the district court.” 28 This is so even if neither the appellant
nor the district court addressed the ground, so long as the argument was raised
below. 29
         Donahoe first argues that the district court lacked subject matter
jurisdiction because the FMLA does not provide for paid leave. As a result,
Gilbert’s claims can only sound in contract, over which the district court would
not have jurisdiction. This argument confuses failure to state a claim with lack
of subject matter jurisdiction. 28 U.S.C. § 1331 provides that “[t]he district
courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 30 “The well-pleaded-
complaint rule has long governed whether a case ‘arises under’ federal law for
purposes of § 1331.” 31 Under this rule, a claim arises under federal law “when
the plaintiff’s statement of his own cause of action shows that it is based upon
[federal law] or th[e] Constitution.” 32 Accordingly, “jurisdiction is not defeated


         28   Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012).
         29   See R.P. ex rel. R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d 801, 811 (5th Cir.
2012).
         30   28 U.S.C. § 1331.
         31   Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 (2002).
         32   Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003).
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                                            No. 13-40328
by the possibility that the averments might fail to state a cause of action on
which petitioners could actually recover.” 33 Rather, “[d]ismissal for lack of
subject-matter jurisdiction because of the inadequacy of the federal claim is
proper only when the claim is so insubstantial, implausible, foreclosed by prior
decisions of [the Supreme] Court, or otherwise completely devoid of merit as
not to involve a federal controversy.” 34
         In this case, Gilbert has alleged that Donahoe violated the FMLA by
threatening her and denying her benefits in order to interfere with her exercise
of her FMLA rights and to retaliate against her for exercising those rights. As
the FMLA protects against both retaliation and interference, 35 one cannot say
that her claim is so “completely devoid of merit as not to involve a federal
controversy.”
         Donahoe’s second contention regarding subject matter jurisdiction is also
largely unavailing. He asserts that Gilbert lacks standing to bring claims
under the FMLA for a host of reasons. First, Donahoe asserts that Gilbert
lacks injury because she was ultimately paid for the time that she was on
FMLA leave and the statute does not entitle her to receive any additional
compensation. Second, Donahoe argues that Gilbert’s claims regarding the
second leave dispute do not concern the FMLA because she did not request
FMLA leave in that instance. Third, Donahoe contends that Gilbert failed to
provide any documentation regarding the extent of her damages and, even if
she proved damages, they would not provide redress, as any award would be
offset by the more than $15,000 Gilbert received in retirement benefits.



         33   Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (alterations omitted).
         34   Id. (internal quotation marks omitted).
         35   See 29 U.S.C. § 2615(a)(1); Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 258 (5th Cir.
2009).
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Fourth, Donahoe asserts that Gilbert lacks standing to seek an injunction
because she has retired.
       In order to establish standing, a “plaintiff must show (1) it has suffered
an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to
the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” 36 As the
Supreme Court has explained, “the critical question is whether at least one
petitioner has alleged such a personal stake in the outcome of the controversy
as to warrant his invocation of federal-court jurisdiction.” 37 As with subject
matter jurisdiction generally, the plaintiff need not demonstrate that she is
actually entitled to relief. She need only provide sufficient facts, which, if
taken as true, establish an injury at the hands of the defendant that could be
redressed by an order of this court. 38
       Gilbert readily meets the first prong of this inquiry. She has alleged that
USPS’s actions, including the allegedly harassing interview, the temporary
denial of the first leave request, and the complete denial of the second request,
constituted interference with her rights under the FMLA and retaliation for
exercising and attempting to exercise those rights.                  These are concrete,
particularized, and actual injuries. 39 That USPS ultimately paid Gilbert for



       36 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
       37   Horne v. Flores, 557 U.S. 433, 445 (2009) (emphasis and internal quotation marks
omitted).
       38   See Lujan, 504 U.S. at 561.
       39 See Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013) (noting that “Nike had
standing to sue because Already’s activity was allegedly infringing its rights under
trademark law” and that “Already had standing to file its counterclaim because Nike was
allegedly pressing an invalid trademark to halt Already’s legitimate business activity”).
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                                        No. 13-40328
the first absence is of no moment, since Gilbert claims injuries that this
payment did not redress, including the interest she lost as a result of the delay,
and the complete refusal to pay in response to the second request. Nor is it
relevant that the FMLA may not ultimately allow her to recover for those
injuries. As discussed above, that contention concerns whether Gilbert has
stated a claim for which relief can be granted, not subject matter jurisdiction.
Furthermore, Donahoe has cited no authority to support his claim that Gilbert
lacks injury because she failed to provide a computation of damages.
      Gilbert’s injuries, moreover, are traceable to the actions of the defendant,
since Donahoe, as Postmaster General, has the ability to stop his employees
from taking the actions alleged. Lastly, with the exception of Gilbert’s claims
for injunctive relief, her injuries are redressable. Damages in the form of back-
pay for the second absence and interest for the delay attending the first request
would redress Gilbert’s injuries. That USPS is paying Gilbert more than
$15,000 in retirement benefits does not render her injuries unredressable. As
Donahoe points out, this court has previously held that “[a]n employer’s portion
of retirement and other payments made to a terminated employee must be
deducted from an award of lost wages and benefits in” FMLA cases. 40
However, we have only reached this conclusion in one case and that matter
involved wrongful termination. 41 This case, by contrast, concerns the alleged
denial of paid leave and harassment. The difference is material because the
purpose of the offset is to avoid windfalls, and awarding Gilbert damages for
lost interest and denied leave would not provide her with a windfall. 42 Thus,




      40   Lubke v. City of Arlington, 455 F.3d 489, 499-500 (5th Cir. 2006).
      41   See id.
      42   See Stephens v. C.I.T. Grp./Equip. Fin., Inc., 955 F.2d 1023, 1028 (5th Cir. 1992).
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                                             No. 13-40328
it is by no means certain that this court would require offset. Accordingly, it
is likely that a judgment in her favor would redress Gilbert’s injuries.
          Nonetheless, Gilbert’s retirement did destroy her standing to bring
claims for injunctive relief. The Supreme Court has “repeatedly held that an
‘actual controversy’ must exist not only ‘at the time the complaint is filed,’ but
through ‘all stages’ of the litigation.” 43                   Additionally, “a plaintiff must
demonstrate standing separately for each form of relief sought.” 44 In order to
obtain an injunction, a plaintiff must demonstrate that she “face[s] a realistic
threat” of the defendant’s policy harming her in the future. 45 As Gilbert is no
longer an employee of USPS, she does not realistically face a threat that
Donahoe’s employees will continue to violate her rights under the FMLA.
Thus, she does not have standing to seek an injunction.
          In view of these considerations, we hold that, with the exception of
Gilbert’s claims for injunctive relief, the district court possesses subject matter
jurisdiction over Gilbert’s FMLA claims.
                                                     V
          Donahoe also urges this court to affirm the district court’s dismissal of
Gilbert’s complaint on the ground that she failed to state a cause of action and
there is no genuine dispute as to a material fact. “Although this court may
decide a case on any ground that was presented to the trial court, we are not
required to do so.” 46 We elect not to examine whether Gilbert has failed to
state a claim or the propriety of summary judgment, as the district court has
not had occasion to consider these contentions.


          43   Already, 133 S. Ct. at 726 (quoting Alvarez v. Smith, 558 U.S. 87, 92 (2009)).
          44   Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185
(2000).
          45   Id. at 184 (citing City of L.A. v. Lyons, 461 U.S. 95, 106 n.7 (1983)).
          46   Breaux v. Dilsaver, 254 F.3d 533, 538 (5th Cir. 2001).
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   Case: 13-40328    Document: 00512613546        Page: 16   Date Filed: 04/30/2014



                                   No. 13-40328
                               *        *         *
      For the foregoing reasons, the district court’s dismissal of Gilbert’s
claims arising under the Rehabilitation Act and her claims for injunctive relief
is AFFIRMED. However, the court’s dismissal of her claims for damages under
the FMLA for lack of subject matter jurisdiction is REVERSED. This case is
REMANDED for further proceedings consistent with this opinion.




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