     Case: 15-41439      Document: 00513782588         Page: 1    Date Filed: 12/02/2016




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

                                      No. 15-41439                          FILED
                                                                     December 2, 2016
                                                                       Lyle W. Cayce
PATRICK BAKER,                                                              Clerk

              Plaintiff - Appellant

v.

JOHN MCHUGH, Secretary of the Army,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:15-CV-160


Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
       Patrick Baker brought this action after his administrative claim with the
Equal Employment Opportunity Commission (EEOC) was denied because he
failed to timely contact an EEO counselor. The district court dismissed the
action for lack of jurisdiction. While the district court erred in finding the
deadline to contact an EEO counselor was jurisdictional, because failure to
meet this requirement bars his Title VII claims, and because Baker’s tort

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41439

claims are barred on other jurisdictional grounds, we AFFIRM the district
court’s dismissal of Baker’s claims.
                                       I
      In late 2008, Patrick Baker was allegedly forced to resign his
employment at the Red River Army Depot (RRAD) after drinking alcohol while
on duty. Baker filed a discrimination claim against RRAD related to his
resignation, which the parties settled in August 2009. On August 16, 2012,
Baker was hired by URS Support Services, a private contract employer, for a
position at RRAD. On or about August 27, 2012, URS rescinded Baker’s
employment offer after learning that RRAD would not allow him onto its
premises because he had been charged with a felony after he resigned from
RRAD.     Baker believes that RRAD interfered with his employment in
retaliation for the 2009 discrimination charge he filed against RRAD and that
RRAD refused him entry onto its premises because of his race.
      On December 12, 2012, 107 days after URS rescinded its offer of
employment, Baker filed an Intake Questionnaire with the EEOC in which he
claimed to have been discriminated against by URS. On June 25, 2013, Baker
spoke to an EEOC Investigator who, after learning that Baker wanted to
proceed against RRAD as well as URS, informed Baker that he would have to
contact RRAD’s EEO counselor, David Hudson, and gave him Hudson’s contact
information. On July 1, 2013, Baker met with Hudson and stated that he
would like to file a discrimination complaint. Hudson discussed the process
with Baker, emphasizing the Army’s 45-day time limitation for initiating an
EEO pre-complaint, which had long-since passed; nonetheless, Hudson filed
the requisite paperwork for Baker’s claim to move forward.
      After mediation proved unsuccessful, Baker received permission to file a
formal complaint of discrimination with the Secretary of the Army. Baker


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timely filed a formal complaint, which the Secretary dismissed on October 22,
2013, for failure to contact an EEO counselor within the 45-day notification
period. See 29 C.F.R. § 1614.107(a)(2). The decision indicated that Baker’s
initial contact with an EEO official was on July 1, 2013, well beyond 45 days
after his August 2012 discharge from URS. The EEOC denied Baker’s appeal
and his subsequent request for reconsideration, agreeing that Baker’s EEO
counselor contact was untimely and specifically noting that Baker had
produced no evidence to support his contention that he tried to contact an EEO
officer earlier and was prohibited from doing so. The EEOC informed Baker
that he now had the right to file a civil action in federal district court.
       On May 28, 2014, Baker filed a pro se complaint alleging that the
Secretary of the Army and RRAD had terminated his employment with URS
based on his race and in retaliation for protected activity. 1 Baker also asserted
claims of defamation, “emotional stress,” and breach of contract. On March 30,
2015, the district court dismissed Baker’s claims against the Secretary of the
Army and RRAD without prejudice. The district court explained that Baker
had failed to exhaust administrative remedies for his Title VII claims because
he had not contacted an EEO counselor within 45 days of the alleged harm.
The court also dismissed Baker’s defamation claim for failure to exhaust
administrative remedies, his breach of contract claim for lack of jurisdiction,
and his emotional distress claim for failure to state a claim on which relief
could be granted. Baker did not appeal that dismissal.
       On September 18, 2015, Baker filed this action, again acting pro se,
alleging that the Secretary of the Army had engaged in (1) retaliation by
barring Baker from RRAD, thereby costing Baker his job with URS; (2) racial



       1 The district court later consolidated Baker’s lawsuit with a related suit Baker had
filed against URS. The disposition of Baker’s claims against URS are not relevant here.
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discrimination by disallowing that access; (3) defamation by causing Baker’s
income tax return to be garnished based on an alleged overpayment and
causing Baker’s credit report to reflect the same; and (4) infliction of emotional
distress by costing Baker his job, “putting [him] in debt and stressing [him] out
causing depression.” Baker requested relief of $300,000 for each claim.
      The magistrate judge recommended sua sponte that Baker’s suit be
dismissed for lack of jurisdiction due to his failure to properly exhaust
administrative remedies.      Baker argued that he had indeed exhausted
administrative remedies and enclosed 41 pages of exhibits in support of his
contention. The district court overruled Baker’s objections, pointing out that
Baker’s exhibits had been submitted and considered at length in his 2014 suit
and that Baker’s “own documents reveal[ed] the EEOC dismissed [Baker]’s
claims based on his failure to contact an EEO Official or Counselor within the
required 45-day filing period.” The district court concluded it continued to lack
jurisdiction to consider Baker’s claims because Baker had not exhausted
administrative remedies as required and dismissed the case.
      Baker timely appealed. He contends that he went through every step of
the administrative grievance process but that he was initially prohibited from
going onto the Red River Army Depot, which prevented him from being able to
file a complaint with RRAD’s EEO counselor within the 45-day period. The
Secretary has not filed a brief in response.
                                        II
      “We review a district court’s decision to dismiss for lack of subject-matter
jurisdiction de novo.” Ordonez Orosco v. Napolitano, 598 F.3d 222, 225 (5th
Cir. 2010). “In determining whether the court has subject matter jurisdiction,
we must accept as true the allegations set forth in the complaint.” Crane v.
Johnson, 783 F.3d 244, 250-51 (5th Cir. 2015). Similarly, in Title VII cases,


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this court “review[s] de novo a district court’s determination of whether the
exhaustion requirement is satisfied.” Pacheco v. Mineta, 448 F.3d 783, 788
(5th Cir. 2006).
                                         III
      “The exclusive remedy for claims of discrimination by federal employees
is provided in 42 U.S.C. § 2000e-16(a)-(e),” Section 717 of the Civil Rights Act
of 1964. Henderson v. U.S. Veterans Admin., 790 F.2d 436, 439 (5th Cir. 1986).
“The EEOC has authority to enforce the statute and to issue those regulations
needed to implement the statute.”              Id.   The EEOC “has promulgated
regulations that require, among other things, that a federal employee consult
with an EEO counselor prior to filing a discrimination lawsuit.” Green v.
Brennan, 136 S. Ct. 1769, 1775 (2016). An “aggrieved person must initiate
contact with a Counselor within 45 days of the date of the matter alleged to be
discriminatory,” although the 45-day limit will be extended if, inter alia, an
individual shows that, despite due diligence, he was prevented by
circumstances beyond his control from contacting the counselor within the time
limits. 29 C.F.R. § 1614.105(a).
      We note that Fifth Circuit case law contains some conflicting authority
on the question of whether exhaustion of EEOC administrative remedies is
jurisdictional in a Title VII case. Compare Tolbert v. United States, 916 F.2d
245, 247 (5th Cir. 1990) (“It is the well-settled law of this circuit that each [Title
VII] requirement is a prerequisite to federal subject matter jurisdiction.”) with
Young v. City of Houston, 906 F.2d 177, 180 (5th Cir. 1990) (“A failure of the
EEOC prerequisite does not rob a court of jurisdiction.”).            However, the
Supreme Court has long held that “filing a timely charge of discrimination with
the EEOC is not a jurisdictional prerequisite to suit in federal court, but a
requirement that, like a statute of limitations, is subject to waiver, estoppel,


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and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982) (emphasis added); see Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs
& Trainmen, 558 U.S. 67, 82 (2009) (“[W]e have held nonjurisdictional and
forfeitable the provision in Title VII . . . requiring complainants to file a timely
charge of discrimination with the [EEOC] before proceeding to court.”); Mineta,
448 F.3d at 788 n.7 (“The Supreme Court has held that the EEOC or EEO filing
deadlines are not jurisdictional.”).    In Zipes v. Trans World Airlines, the
Supreme Court explained that “[t]he provision specifying the time for filing
charges with the EEOC appears as an entirely separate provision” from that
granting district courts jurisdiction under Title VII, “and it does not speak in
jurisdictional terms or refer in any way to the jurisdiction of the district
courts.” 455 U.S. at 393-94. This court has repeatedly followed the holding of
Zipes. See Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 457 (5th Cir. 2011)
(“The limitations period for filing a discrimination charge with the EEOC is
not a jurisdictional prerequisite, and it may be tolled by equitable
modification.”); Granger v. Aaron’s, Inc., 636 F.3d 708, 711 (5th Cir. 2011)
(“[F]iling a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement that, like
a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”
(quoting Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 521 (5th Cir. 2008));
Harris v. Boyd Tunica, Inc., 628 F.3d 237, 238 (5th Cir. 2010) (equitable tolling
applies to EEOC filing deadline); Munoz v. Aldridge, 894 F.2d 1489, 1494 (5th
Cir. 1990) (“[W]e have held that the time limits in Title VII for giving notice or
filing an administrative complaint are subject to equitable tolling.” (quoting
Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. 1981)).
      Moreover, this court has specifically held that the requirement of timely
contacting an EEO counselor is non-jurisdictional. See Henderson, 790 F.2d at


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440 (citing Coke v. Gen. Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir.
1981) (en banc)); see also Teemac v. Henderson, 298 F.3d 452, 454 (5th Cir.
2002) (holding that waiver, estoppel, and equitable tolling may apply “to
circumvent” the informal counseling requirement); Pacheco v. Rice, 966 F.2d
904, 905 (5th Cir. 1992) (“Failure to notify the EEO counselor in timely fashion
may bar a claim, absent a defense of waiver, estoppel, or equitable tolling.”).
Accordingly, the district court erred in dismissing Baker’s Title VII claims for
lack of jurisdiction based on his failure to comply with the 45-day limitation
found in 29 C.F.R. § 1614.105(a).
      However, failure to timely notify an EEO counselor is still a pre-suit
requirement. See Green, 136 S. Ct. at 1775. Baker has presented no plausible
argument that would excuse his failure to comply with the 45-day pre-
complaint processing requirement of § 1614.105(a)(1). Baker alludes in his
brief to being “prevented by circumstances beyond his . . . control from
contacting the counselor within the time limits,” tracking the language of
§ 1614.105(a)(2) without elaboration. While the time limit could be extended
if Baker’s claim had factual support, see § 1614.105(a)(2); see also Rivers v.
Geithner, 548 F. App’x 1013, 1017 (5th Cir. 2013) (“An employer may be
equitably estopped from asserting the limitations period as a defense when the
employee’s failure to comply with an EEOC deadline was a result of the
employer’s misconduct.”), Baker has offered no explanation in this court or the
court below for how or why he was prevented from complying with the 45-day
time limit. Cf. McCrimmon v. Wells Fargo Bank, N.A., 516 F. App’x 372, 375
(5th Cir. 2013) (refusing to apply equitable tolling on the basis of plaintiff’s
“vague and conclusional allegations”); Ford-Evans v. United Space All. LLC,
329 F. App’x 519, 526 (5th Cir. 2009) (declining to apply equitable estoppel
where plaintiff failed to “allege[] the necessary elements for equitable estoppel”


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at any stage of the litigation). Further, Baker does not contest the EEOC’s
conclusion that he did not show he was entitled to an extension under
§ 1614.105(a)(2). Baker’s Title VII claims were properly dismissed as he has
failed to state a claim on which relief may be granted.
                                           IV
      The district court did not specifically address Baker’s defamation claim,
and neither the district court opinion nor the magistrate judge’s report and
recommendation discusses Baker’s emotional distress claim. However, we may
raise defects in the district court’s subject matter jurisdiction sua sponte. See
Giles v. Nylcare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999). Because
the district court lacks jurisdiction to consider each of these claims, we find
that they were properly dismissed.
      To the extent Baker’s complaint states a claim for intentional infliction
of emotional distress, relief arises under the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 1346(b) and 2671 et seq. See McLaurin v. United States, 392 F.3d
774, 777 (5th Cir. 2004) (“[A] suit against the United States is the exclusive
remedy for damages for injury or loss of property ‘resulting from the negligent
or wrongful conduct of any employee of the Government while acting within
the scope of his office or employment.’” (quoting 28 U.S.C. § 2679(b)(1)). 2
“[P]ersons seeking recovery under the FTCA must first present their ‘claim to
the appropriate Federal agency,’ and such claim must be ‘finally denied by the
agency’ before suit may be brought in Federal Court.” Saunders v. Bush, 15
F.3d 64, 66 (5th Cir. 1994) (quoting § 2675(a)); see McNeil v. United States, 508
U.S. 106, 113 (1993). “The requirement is jurisdictional and cannot be waived.”
Emps. Welfare Comm. v. Daws, 599 F.2d 1375, 1378 (5th Cir. 1979). Baker has


      2  “To sue successfully under the FTCA, a plaintiff must name the United States as
the sole defendant.” McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998). Thus, Baker
cannot maintain his tort claims against the Secretary of the Army.
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twice brought this claim without alleging he presented it to the appropriate
federal agency, and there is nothing in the record to indicate that Baker has
complied with this jurisdictional requirement. Thus, his claim was properly
dismissed.
      As to Baker’s defamation claim, the United States has not waived
sovereign    immunity    for   claims   “arising   out   of   ...   libel,   slander,
misrepresentation, [or] deceit[.]” 28 U.S.C. § 2680(h); see Davila v. United
States, 713 F.3d 248, 256 (5th Cir. 2013).         Absent a waiver of sovereign
immunity, the federal courts have no jurisdiction over Baker’s defamation
claim. See Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994).
                                        V
      For the aforementioned reasons, we AFFIRM the district court’s
dismissal of Baker’s claims.




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