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

                                                                            FILED
                                                                          March 28, 2008

                                     No. 07-20812                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


CLINTON BOWERS

                                                  Plaintiff-Appellant
v.

JIM NICHOLSON, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-1910


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Clinton Bowers, a veteran, applied to the Department of Veterans Affairs
(DVA) for two positions, Supply Technician and Cemetery Representative. After
learning that he had not been selected, he filed two informal complaints with the
Office of Resolution Management (ORM). The Equal Opportunity Employment
(EEO) counselor working on Bowers’ case claims that she could not reach
Bowers, so she sent him an Unreachable Notice, a Notice of Rights and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Responsibilities, an Alternative Dispute Notice, and a Notice of Withdrawal for
each of his complaints and allegedly placed bright green sticky notes on the
withdrawal forms, indicating that he should only sign the withdrawal forms if
he did not want to follow through with his complaints. Bowers argues that there
were not any green notes attached to the forms. Bowers signed the withdrawal
forms and sent them back to the EEO counselor, who then notified Bowers that
his complaints were closed because he had withdrawn them. Bowers called the
counselor asking why the complaints were closed and stating that he had
mistakenly signed the withdrawal forms. She then sent him forms for formal
complaints, which he filed. ORM dismissed the complaint, finding that Bowers
had withdrawn his informal complaints.
      Bowers appealed to the Equal Employment Opportunity Commission
(EEOC), which also dismissed Bowers’ complaint, refusing to accept that Bowers
had mistakenly signed the withdrawal forms. Bowers appealed to the district
court, claiming that the DVA discriminated against him in reprisal for his
former EEOC complaints and that this violated the Rehabilitation Act of 1973,1
the Age Discrimination in Employment Act of 1967 (ADEA),2 and Title VII of the
Civil Rights Act of 1964.3 He requested damages of $300,000 for each alleged
discriminatory denial. Defendants filed a motion to dismiss or alternatively for
summary judgment and attached to the motion exhibits on matters outside of
the pleadings. The district court found, “Although defendant has not identified
the procedural basis on which he seeks dismissal, his assertion that this action
was untimely filed indicates that he seeks dismissal for failure to state a claim




      1
          29 U.S.C. § 791 et seq.
      2
          29 U.S.C. § 621 et seq.
      3
          42 U.S.C. § 2000e et seq.

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under Federal Rule of Civil Procedure 12(b)(6).”4 Finding that more than ten
days had passed since Defendant filed the exhibits and that Bowers had not
objected to the exhibits, the court found, “Rule 12(b) directs the court to treat the
motion as one for summary judgment and to dispose of it under Rule 56,”5 citing
Rule 12(b) and Washington v. Allstate Insurance Co.6 The court held that Title
VII, the ADEA, and the Rehabilitation Act all require exhaustion of
administrative remedies and that Bowers had failed to exhaust by knowingly
and voluntarily withdrawing his claims before the completion of the EEO
process. It dismissed Bowers’ claims with prejudice.
       On appeal, Bowers argues that the district court erred in treating
Defendants’ motion to dismiss as a 12(b)(6) motion when Defendants failed to
identify the procedural basis for their motion for dismissal and alternatively for
summary judgment. He also argues that the district court erred in dismissing
the case for failure to exhaust administrative remedies, since Bowers mistakenly
signed the withdrawal forms and indicated to his counselor that he wished to
continue pursuing his claims.
       We review the district court’s dismissal of the claims de novo:
       When a district court treats a Rule 12(b)(6) motion as a motion for
       summary judgment under Rule 56(c) because matters outside the
       pleadings are presented to and not excluded by the court, we review
       the grant of such a motion just as we would any other grant of

       4
           Bowers v. Nicholson, 2007 WL 3047223 at *3 (S.D. Tex. October 18, 2007) (slip copy).
       5
           Id. at *4.
       6
          901 F.2d 1281, 1283-84 (5th Cir. 1990). See id. at 1284 (quoting Clark v. Tarrant
County, Texas, 798 F.2d 736, 746 (5th Cir.1986)) (“‘Rule 56(c) requires that the nonmovant
have 10 days within which to respond to a motion for summary judgment. However, “[u]nder
Rule 56 it is not necessary that the district court give ten days’ notice after it decides to treat
a Rule 12(b)(6) motion as one for summary judgment, but rather after the parties receive
notice that the court could properly treat such a motion as one for summary judgment because
it has accepted for consideration on the motion matters outside the pleadings, the parties must
have at least ten days before judgment is rendered in which to submit additional evidence.’”).


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       summary judgment-that is, we review the grant of summary
       judgment de novo and apply the same legal standards as the district
       court. Accordingly, summary judgement is appropriate “if the
       pleadings, depositions, answers to interrogatories, and admissions
       on file, together with the affidavits, if any, show that there is no
       genuine issue as to any material fact and that the moving party is
       entitled to a judgment as a matter of law.” Further, we construe all
       evidence in the light most favorable to the non-moving party
       without weighing the evidence, assessing its probative value, or
       resolving any factual disputes.7

       We are not persuaded that the district court erred in its decision. As the
district court found, all three of the statutes that support Bowers’ discrimination
claims require exhaustion of administrative remedies,8 and Bowers failed to
exhaust his remedies by withdrawing his claims. Bowers does not argue that he
was coerced into signing these forms, but rather that he mistakenly signed them.
Even assuming, as Bowers argues, that there were no green sticky notes alerting
Bowers to the fact that he would withdraw his claims if he signed the forms, the
text of the forms provided a clear warning.              On top, in large bold print, the
withdrawal form states, “NOTICE OF WITHDRAWAL OF EEO COMPLAINT.”
The text directly above the signature line reads, “I hereby withdraw this
complaint of discrimination and wish to close the complaint at the informal level.
I am making this decision of my own free will and without coercion.” As the
district court found,
       “A person who signs a written instrument is presumed to know its
       contents and cannot avoid its obligations by contending that he did


       7
         Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 (5th Cir. 1997) (citations
omitted) (quoting Fed.R.Civ.P. 56(c)).
       8
         Bowers, 2007 WL 3047223 at *5 - *6 (citing 29 C.F.R. §§ 1614.101-1614.607
(describing administrative requirements under Title VII); Rivera v. Heyman, 157 F.3d 101, 104
(2d Cir.1998) (holding that plaintiffs under the Rehabilitation Act must exhaust Title VII
remedies); Wrenn v. Secretary, Dep’t of Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir.1990)
(holding that employees must exhaust administrative remedies for an ADEA claim)).

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       not read it, or that it was not explained or that he did not
       understand it.”9

Because Bowers withdrew his claims, he failed to exhaust his administrative
remedies; the district court did not err in dismissing his claims on this basis.
Although Bowers appealed the ORM’s dismissal of his initial complaints and
obtained a final agency decision, the decision did not address the merits of his
discrimination case due to his earlier withdrawal of the claims.
       Nor do we find error in the district court’s treatment of Defendants’ motion
to dismiss and alternatively for summary judgment as a 12(b)(6) motion, which
the court then converted to a Rule 56(c) motion. Bowers does not contest the
conversion of the motion from a 12(b)(6) to a Rule 56(c) motion but rather the
initial treatment of the motion as a 12(b)(6) motion, despite Defendants’ failure
to label the motion as such. Defendants argued in the motion that Bowers had
failed to exhaust his administrative remedies and that his complaint was
untimely. “Rule 12(b)(6) forms a proper basis for dismissal for failure to
exhaust,”10 as well as a claim that a complaint was untimely filed.11 Although
the court ultimately dismissed the claims under Rule 56(c), it correctly initially
construed the motion as a 12(b)(6) motion.
       Bowers also disputes various dates, such as the timing of the Agency’s
decision regarding Bowers’ withdrawal forms as well as the dates when he spoke
with the EEO counselor. None of these disputed facts are material.
       AFFIRMED.


       9
         2007 WL 3047223 at *8 (quoting In re Cajun Electric Power Co-Op, Inc., 791 F.2d
353, 359 (5th Cir. 1986)).
       10
           Martin K. Eby Const. Co., Inc v. Dallas Area Rapid Transit, 369 F.3d 464, 467 n.4
(5th Cir. 2004).
       11
         See, e.g., Martin v. Demma, 831 F.2d 69, 70 (5th Cir. 1987) (addressing a 12(b)(6)
motion for dismissal for untimely filing of a complaint).

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