                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                                                                                   February 19, 2004

                          UNITED STATES COURT OF APPEALS                        Charles R. Fulbruge III
                                                                                        Clerk
                               FOR THE FIFTH CIRCUIT


                                          __________________

                                         No. 03-50769
                                       Summary Calendar
                                          __________________

RUBEN LUNA,

                                                                              Plaintiff-Appellant,

versus

JAMES D. ROCHE,

                                                                            Defendant-Appellee.

                                                   _________________________

                           Appeal from the United States District Court
                     for the Western District of Texas, San Antonio Division
                                        (SA-02-CV-298)
                                                   _________________________



Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

                                    I. Facts and Proceedings

         Appellant Ruben Luna (“Luna”) was employed with the United States Air Force from 1980


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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

                                               1
until 1992 as an Air Conditioning Equipment Mechanic on the Kelly Air Force Base in Texas. His

employment was terminated on October 23, 1992 after he took an excessive amount of unscheduled

leave. While on leave, Luna was diagnosed as a schizophrenic. He appealed his discharge to the

Merit Systems Protection Board (“MSPB”).

       Luna subsequently entered into a negotiated settlement agreement with the Air Force.1 The

agreement provided that Luna would withdraw his appeal to the MSPB, and, in exchange, the Air

Force would classify his termination as related to disability rather than excessive absenteeism. The

Air Force also agreed to help Luna obtain disability retirement benefits through the Office of

Personnel Management (“OPM”).

       The OPM granted Luna’s application for disability retirement benefits on December 15, 1992.

On January 28, 1999, the OPM terminated Luna’s benefits after he failed to produce evidence that

his mental disorder was still disabling.

       On May 5, 1999, Luna filed an Equal Employment Opportunity (“EEO”) complaint against

James D. Roche (“Roche”), Secretary of the Air Force. The complaint alleged that the Air Force

breached the 1992 settlement agreement by unlawfully terminating his disability benefits. An EEO

counselor advised Luna, by letter dated June 23, 1999, that the EEO lacked jurisdiction over his

complaint. As a result, Luna petitioned the MSPB to enforce the 1992 settlement agreement. An

MSPB administrative judge dismissed Luna’s petition as untimely, and the MSPB denied Luna’s

request for review. Luna then filed a second EEO complaint against Roche on August 10, 1999,



       1
         It is unclear whether Luna was represented by counsel. He characterizes his
representative, David Howard, as a “chartered peacemaker.”

                                                 2
alleging that the Air Force had failed to accommodate his mental disability back in 1992. This second

complaint was dismissed as untimely on November 15, 1999.

       Luna then sued Roche in federal district court on the grounds that the Air Force had engaged

in discriminatory employment practices, and had fraudulently induced him to enter a settlement

agreement. Roche moved to dismiss, or, in the alternative, for summary judgment. The district court

dismissed the complaint upon the magistrate judge’s recommendation. Luna timely appeals.

                                      II. Standard of Review

       We review a district court’s dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure de novo. Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003). In deciding a Rule 12(b)(6)

motion, we accept all factual allegations made by the plaintiff as true and resolve any doubts about

the sufficiency of the evidence in his favor. Id. (citing Kaiser Aluminum & Chem. Sales, Inc. v.

Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).

                                           III. Analysis

       Luna contends that the Air Force discriminated against him by terminating his employment

in 1992, and by terminating his disability benefits in 1999. Luna’s discrimination claims are brought

pursuant to: (1) Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e; (2) the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621; (3) the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101; (4) the Equal Pay Act, 29 U.S.C. § 206(d); (5) the

Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794(a); and (6) 42 U.S.C. §§ 1981,

1983. Luna further asserts that the Air Force fraudulently induced him to enter into the 1992




                                                 3
settlement agreement.2

A.     Discrimination Claims Involving Luna’s Terminated Employment

       Luna first argues that the Air Force discriminated against him when it terminated his

employment in 1992. As a prerequisite to filing an employment discrimination suit in district court,

a plaintiff is required to timely exhaust his administrative remedies with the federal agency that he

believes has discriminated against him. See Fitzgerald v. Sec., U.S. Dept. Veterans Affairs, 121 F.3d

203, 206 (5th Cir. 1997). Title 29 C.F.R. § 1614.05(a) requires that a federal employee who believes

he has been discriminated against on the basis of race, co lor, religion, sex, national origin, age, or

handicap contact an EEO counselor within 45 days of the discriminatory act or the effective date of

the personnel action. If the employee fails to do so, his claim is barred. See Teemac v. Henderson,

298 F.3d 452, 454 (5th Cir. 2002).3 Moreover, claims under 42 U.S.C. §§ 1981 and 1983 must be

filed within two years of the alleged unlawful event. See Meadowbriar Home for Children, Inc. v.

G.B. Gunn, 81 F.3d 521, 533 n.10 (5th Cir. 1996).

       Luna’s employment was terminated in 1992. Because he did not complain to an EEO

counselor, or pursue a claim under §§ 1981 or 1983, until 1999, his discrimination claims involving

his terminated employment are untimely.



       2
          Luna also seems to claim that a district court erred by denying his motion to appoint
counsel during a proceeding in 1994. Luna’s appeal of that decision is untimely. See FED. R.
APP. P. 4(a)(1)(B) (requiring that notices of appeal be filed within 60 days after a district court’s
final judgment).
       3
         The ADEA, however, permits an employee to bypass this administrative requirement if
he provides notice to an EEO counselor of his intent to sue within 180 days of the alleged
discriminatory incident. 29 U.S.C. § 633a(d).

                                                  4
B.     Discrimination Claims Involving Luna’s Terminated Disability Retirement Benefits

       Luna next argues that the Air Force discriminated against him when it terminated his disability

retirement benefits in 1999. The employment discrimination claims raised by Luna require the

existence of an employer-employee relationship. See 42 U.S.C. § 2000e-16 (Title VII); 29 U.S.C.

§ 623(a) (ADEA); 29 U.S.C. § 794 (Rehabilitation Act); 29 U.S.C. § 206(d) (Equal Pay Act).4 Luna

was neither an employee of the Air Force, nor an applicant for employment with the Air Force, when

his disability retirement benefits were terminated in 1999. Luna lacked standing to pursue his

discrimination claims involving his terminated benefits.

C.     Fraudulent Inducement Claim Involving the 1992 Settlement Agreement

       Luna next argues that the Air Force fraudulently induced him into signing a settlement

agreement in 1992 in order to avoid its responsibilities under the Rehabilitation Act. 29 U.S.C. §

794(a). The Rehabilitation Act prohibits federal employers from terminating disabled persons who

are “otherwise qualified.” Id. A person is “otherwise qualified” if he can perform the essential

functions of his job with no more than a reasonable accommodation. 29 U.S.C. § 794(d); 42 U.S.C.

§ 12111(9)(B).

           It is highly doubtful that Luna could have continued to perform his functions as a mechanic

with a mere “reasonable accommodation” by the Air Force. For instance, during Luna’s period of

leave, he was diagnosed by his physician as “totally and permanently disabled.” Assuming arguendo

that the Air Force was motivated to negotiate with Luna due to its potential liability under the


       4
         The ADA does not apply to the federal government. 42 U.S.C. § 12111(5)(B).
Moreover, Luna failed to contest the magistrate’s recommendation that he lacks standing to
pursue his §§ 1981 and 1983 claims involving his terminated benefits.

                                                   5
Rehabilitation Act, Luna nonetheless fails to present any evidence that the Air Force made a single

fraudulent representation during the negotiations. Luna’s claim that the Air Force fraudulently

induced him to enter a settlement agreement is baseless.

                                         IV. Conclusion

       For the reasons stated above, the judgment of the district court is AFFIRMED.




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