     Case: 14-20298      Document: 00512876894         Page: 1    Date Filed: 12/19/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20298                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
MARILYN R. O’HARA,                                                      December 19, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

PATRICK R. DONAHOE, Postmaster General United States Postal Agency;
UNITED STATES POSTAL SERVICE; FREDRIC V. ROLANDO;
NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO, HOUSTON
BRANCH 283,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:13-CV-563


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Marilyn O’Hara appeals the dismissal and order denying reconsideration
of her Rehabilitation Act claim against Patrick Donahoe, Postmaster General
of the United States, and her suit against the National Association of Letter




       * Pursuant to 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 14-20298
Carriers, AFL-CIO, Houston Branch 283 for breaching its duty of fair
representation. We AFFIRM.
                                      I.
      O’Hara was a letter carrier for the United States Postal Service (“USPS”)
based out of the North Shepherd Station in Houston, Texas. After she received
a right knee replacement in 2007, the Office of Workers’ Compensation
Programs granted O’Hara paid leave while she recuperated. O’Hara returned
to work in January 2008, but quickly reinjured her back and was again placed
on leave with benefits. O’Hara underwent a Functional Capacity Evaluation
and was limited to performing less strenuous work duties. Over the next two
years, O’Hara declined several opportunities to go back to work but, after she
was threatened with termination, accepted a position as a Modified City-Wide
Letter Carrier starting June 22, 2010.
      According to O’Hara’s complaint, the USPS violated her medical
restrictions on her first day back at work even though the Houston Station
Manager, Gregory Meeks, indicated he was aware of her limitations. O’Hara
alleges that she immediately contacted her union steward, Marion Ware, who
promised to file a grievance on O’Hara’s behalf. O’Hara was placed on leave
the next day when she reinjured her back.
      O’Hara first contacted an Equal Employment Opportunity (“EEO”)
counselor on August 9, 2010, with complaints that Meeks had discriminated
against her in violation of the Americans with Disabilities Act and the
Rehabilitation Act. She filed an EEO complaint on September 29, 2010.
      The EEO dismissed O’Hara’s complaint because she failed to contact a
counselor within forty-five days of the alleged discrimination on June 22, 2010,
as required by agency guidelines. O’Hara’s appeal to the Equal Opportunity
Employment Commission (“EEOC”) was also dismissed on the same grounds.
Contemporaneously, in December 2011, the USPS began the process of
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                                       No. 14-20298
terminating O’Hara’s employment. O’Hara received a notice of separation on
January 12, 2012, and contacted a union steward about her impending
termination who told her “there is nothing that can be done.”                       O’Hara’s
employment was terminated on February 10, 2012.
       O’Hara then filed the present case against Donahoe. After Donahoe
moved to dismiss the initial complaint, O’Hara filed an amended complaint on
September 16, 2013, and added her union, the National Association of Letter
Carriers (“NALC”), as a defendant. She alleges that the USPS failed to honor
her medical restrictions by forcing her to do work inconsistent with her
disability and by terminating her from her position in violation of the
Rehabilitation Act. 1 O’Hara also alleges that the NALC breached its duty of
fair representation by failing to file a grievance against the USPS on O’Hara’s
behalf.
       Both Donahoe and the NALC filed motions to dismiss. Donahoe argued
that O’Hara failed to satisfy the forty-five day requirement for contacting an
EEO counselor, while the NALC maintained that O’Hara failed to file a
complaint against it within the six-month statute of limitations. The district
court agreed, dismissed the amended complaint and subsequent motion for
reconsideration on these grounds, and entered a final judgment. O’Hara timely
appealed the dismissal of both her complaint and her motion for
reconsideration.




       1 Although O’Hara’s complaint also references the Americans with Disabilities Act,
“the Rehabilitation Act . . . constitutes the exclusive remedy for a federal employee alleging
disability-based discrimination.” Dark v. Potter, 293 F. App’x 254, 258 (5th Cir. 2008)
(unpublished).


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                                       No. 14-20298
                                              II.
       Federal employees must seek informal counseling within forty-five days
of an adverse employment action as a prerequisite to filing an EEOC
complaint.     29 C.F.R. § 1614.105(a).             If an employee fails to satisfy this
requirement, their claim is barred. Teemac v. Henderson, 298 F.3d 452, 454
(5th Cir. 2002). However, an employee is entitled to an extension of the time
limit if the employee was neither “notified” nor “otherwise aware” of the
requirement or if the employee was prevented by circumstances beyond their
control from contacting a counselor within the time limits. § 1614.105(a)(2).
Whether an employee is entitled to an extension on these grounds is reviewed
de novo. Teemac, 298 F.3d at 456. An employee can also avoid the time
constraint by establishing waiver, estoppel, or equitable tolling. Id. at 454. We
review the district court’s decision not to exercise equitable tolling for abuse of
discretion. Id. at 457. 2
       This court does not require employers to prove that individual employees
were aware of the counseling requirement; they need only prove that they
provided adequate notice. See Id. at 456. According to USPS employees,


       2 Donahoe raises a question about federal subject matter jurisdiction under Gilbert v.
Donahoe, 751 F.3d 303 (5th Cir. 2014). Gilbert held that a collective bargaining agreement
jurisdictionally barred a postal employee from asserting Rehabilitation Act claims in federal
court when the employee had already pursued those claims in arbitration and suggested in
dicta that all Rehabilitation Act claims are barred under the agreement. Id. at 310. We need
not evaluate whether the collective bargaining agreement at issue here precludes federal
jurisdiction, as “[i]t is hardly novel for a federal court to choose among threshold grounds for
denying audience to a case on the merits.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
585 (1999). O’Hara’s failure to exhaust her administrative remedies by seeking informal
counseling is such a threshold, non-merits issue that avoids the “arduous inquiry” into
subject matter jurisdiction. See Gonzalez v. Crosby, 545 U.S. 524, 532 n. 4 (2005) (describing
the denial of a habeas petition for a failure to exhaust remedies as a “ruling which precluded
a merits determination”); Pacheco v. Mineta, 448 F.3d 783, 795 (5th Cir. 2006) (suggesting
that failure to exhaust remedies is a prerequisite to suit that may be jurisdictional); see also
Valenzuela v. Silversmith, 699 F.3d 1199, 1205 (10th Cir. 2012) (holding that exhaustion is a
threshold, non-merits issue).

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                                       No. 14-20298
informational posters advertising the appropriate method of pursuing an EEO
grievance and articulating the forty-five day time limit were placed near the
break room, men’s restroom, time clocks, and front window at the North
Shepherd Station. O’Hara disputes the placement of posters by the time clocks
and front windows, and believes placement of notices in the break room was
insufficient because she “never went to the break room” and spent most of her
days delivering mail, not working at North Shepherd Station. Further, she
“had no reason to look for said poster in 2008.” 3 However, O’Hara concedes
that she visited the North Shepherd Station each day to clock in and out of
work and had access to the break room. While O’Hara may have subjective
reasons for failing to notice the informational posters, the placement of
informational posters in areas accessible to O’Hara satisfies USPS’s duty. See
Teemac, 298 F.3d at 457 (holding that an employee is not entitled to an
extension under § 1614.105(a)(2) when he “relies on his specific circumstances
to prove that he excusably failed to learn about the informal counseling
requirement”).
       O’Hara also argues that she was prevented by circumstances beyond her
control from contacting an EEO counselor, namely her union steward’s failure
to file a grievance on her behalf. See § 1614.105(a)(2). We disagree. The forty-
five day statute of limitations for contacting an EEO counselor runs from the
date of the adverse employment action. See Pacheco v. Rice, 966 F.2d 904, 906



       3  O’Hara also cites to a letter from an EEO Services Analyst stating that O’Hara
received a copy of Publication 133, What You Need to Know About EEO, for the proposition
that she only received notice of the EEO counseling deadline on August 17, 2010, after she
had filed her EEO complaint. Donahoe argues that O’Hara waived this argument by failing
to raise this issue before the district court. See Jethroe v. Omnova Solutions, Inc., 412 F.3d
598, 601 (5th Cir. 2005). Even if O’Hara did raise this issue in the court below, the letter
does not state that the publication was the sole notification of the EEO counseling time limit.
USPS need not provide a panoply of sources describing EEO procedures; the informational
posters placed throughout the facility were adequate.
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                                   No. 14-20298
(5th Cir. 1992).       We have never held that the time limit is tolled by an
employee’s decision to initiate union grievance procedures. Indeed, postal
workers can pursue both statutory and grievance procedures simultaneously,
and the decision to forgo one does not affect the other. Maddox v. Runyon, 139
F.3d 1017, 1020–21 (5th Cir. 1998). While O’Hara may have chosen to wait for
her union to file a grievance before speaking to her EEO counselor, she was
not compelled to do so.
       O’Hara also contends that equitable tolling of the forty-five day time
limit is warranted. Equitable tolling is most commonly merited where the
plaintiff has been misled about her rights or has been prevented in some
extraordinary way from exercising those rights. See United States v. Patterson,
211 F.3d 927, 930 (5th Cir. 2000).             Given the adequate placement of
informational posters at O’Hara’s workplace, and the lack of any relevant,
mitigating facts, O’Hara fails to demonstrate sufficiently “rare and exceptional
circumstances” to merit tolling. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.
1998); see also Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th Cir.
2002). Accordingly, the district court’s decision not to exercise equitable tolling
was not an abuse of discretion.
                                        III.
       The district court also dismissed O’Hara’s claim against the NALC for
breaching its duty of fair representation on the grounds that she failed to file
her claim within the six-month statute of limitations.          Although O’Hara
proceeds pro se and we construe her brief liberally, her duty of fair
representation claim must be briefed to preserve it for appeal. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Accordingly, O’Hara abandoned
this issue when she failed to provide facts and law to support her argument.
Id.


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                                No. 14-20298
      However, even if O’Hara had not abandoned her argument, her duty of
fair representation claim was rightfully dismissed for failure to comply with
the six-month statute of limitations. 29 U.S.C. § 160(b); see Barrett v. Ebasco
Constructors, Inc., 868 F.2d 170, 171 (5th Cir. 1989). O’Hara had six months
from when she knew or should have known of the breach to file her complaint.
See Farr v. H.K. Porter Co., 727 F.2d 502, 505 (5th Cir. 1984). O’Hara alleges
NALC breached its duty when it failed to file a grievance on her behalf. At the
latest, O’Hara should have known of NALC’s failure to file a grievance when
she was told by her union steward shortly before February 12, 2012, that “there
[was] nothing that [could] be done” about her impending termination. O’Hara
nevertheless waited until September 2013 to file her initial complaint against
the NALC, far outside the six-month window.
      Lastly, O’Hara also appeals the district court’s denial of her motion for
reconsideration. FED. R. CIV. P. 59(e). A motion for reconsideration provides
an avenue for litigants to “clearly establish either a manifest error of law or
fact or [] present newly discovered evidence.” Ross v. Marshall, 426 F.3d 745,
763 (5th Cir. 2005) (internal quotation marks omitted). The district court does
not abuse its discretion where, as here, the movant fails to provide new
evidence or demonstrate a manifest error of law in the court’s previous
decision. Id. Denial of her motion for reconsideration was proper.
      AFFIRMED.




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