     Case: 09-60901     Document: 00511261361          Page: 1    Date Filed: 10/13/2010




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

                                                  FILED
                                                                          October 13, 2010

                                     No. 09-60901                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



RICKY SMITH

                                                   Plaintiff–Appellant
v.

POST MASTER GENERAL JOHN E. POTTER

                                                   Defendant–Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                   3:08-CV-660


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges
PER CURIAM:*
        Plaintiff–Appellant Ricky Smith (Smith) appeals the district court’s
decision to grant Defendant–Appellee’s motion to dismiss for lack of subject
matter jurisdiction for failure to exhaust administrative remedies or in the
alternative for summary judgment. Additionally, Smith appeals the district
court’s decision to stay discovery pending the ruling on the Appellee–Defendant’s




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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motion to dismiss. For the following reasons, we AFFIRM the lower court’s decisions.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      At the time of the complaint, the Appellant, Ricky Smith, was a forty year
old man employed as a letter carrier for the United States Postal Service
(USPS). From April through September 2008, Appellant filed eight informal
complaints alleging discrimination to the Equal Employment Office (EEO).
These informal complaints of discrimination concerned the failure to schedule
Smith as much as other employees during a six month time frame, denial of a
lunch break, and subjection to investigatory interviews.
      As required by the statute, Smith submitted notice to the EEOC of his
intent to file a claim in district court under the Age Discrimination in
Employment Act (ADEA) on August 7, 2008. The ADEA requires a thirty day
waiting period before an employee can file the claim in district court.         On
September 20, 2008, Smith had not yet filed a claim in district court when he
filed a formal Complaint of Discrimination with the EEO alleging discrimination
on the basis of age, disability, and retaliation.     Specific incidents for EEO
investigation included: not being given as many work hours as other employees
on April 18, 2008 and during June 4–July 25, 2008; being told to report to
collections and denied lunch on July 15; being given an investigative interview
about scan points on July 30, 2008; being denied overtime hours on August 11,
2008; being reassigned to North Station on August 11, 2008; being denied rights
to hold down a route on August 30, 2008; and being required to provide medical
documentation on September 22, 2008. On October 7, 2008, the USPS sent
Smith a writing partially accepting and partially dismissing Smith’s EEO
Formal Complaint. The writing detailed which incidents would and would not
be part of the EEO’s investigation.
      After receiving the partial acceptance/partial denial letter, but before a
final determination on the EEO formal complaint, Smith filed suit against the

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USPS in district court, the dismissal of which Smith now appeals. In his federal
complaint, Smith alleges coercion by a supervisor in signing a statement
concerning a grievance filed by another employee; a sustained campaign of
“discrimination and fear” and inadequate maintenance of “standards of integrity,
conduct, and concern for public safety” by Kirby Ragsdale, a supervisor;
retaliation for using sick leave, and an assault by a representative of Ragsdale
who tried to grab his shoulder during an investigative review on July 29, 2008.
        Although Smith does not organize his federal complaint by counts, Smith
cites the following statutes as a basis for jurisdiction: the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. § 633(a); the Rehabilitation Act of
1973, 29 U.S.C. §§ 791 et seq.; the Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. §§ 12112, 12203; and portions of the Civil Service Reform Act
of 1978 (CSRA), 5 U.S.C. §§ 2301, 2302. Appellee moved to dismiss for failure
to exhaust administrative remedies or in the alternative for summary judgment.
Appellee also moved to stay discovery pending the court’s ruling on the motion
to dismiss, which the district court granted. The district court concluded that
the scope of the EEO administrative proceedings were sufficiently broad to
include the issues in the federal complaint. Because the EEO had not yet made
a final ruling on Smith’s discrimination complaint, the district court granted the
motion to dismiss for failure to exhaust administrative remedies.
        On appeal, Smith claims that his federal complaint contained separate and
distinct issues than his EEO discrimination complaint, and therefore that the
dismissal for lack of subject matter jurisdiction was improper. Smith also
appeals the district court’s decision to stay discovery pending the motion to
dismiss.
                                II. DISCUSSION
A.      Subject Matter Jurisdiction and Exhaustion of Remedies
        1.    Jurisdiction and Standard of Review

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      We have jurisdiction over the final judgment of the district court under 28
U.S.C. § 1291. This court reviews the grant of a 12(b)(1) motion to dismiss for
lack of jurisdiction de novo. Taylor v. Acxiom Corp., 612 F.3d 325, 331 (5th Cir.
2010). Motions filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the subject matter jurisdiction of a district
court to hear a case. F ED. R. C IV. P. 12(b)(1). A case must be dismissed if the
court finds that it lacks subject matter jurisdiction. F ED. R. C IV. P. 12(h)(3). The
party asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to
dismiss. Ramming v. United States, 281 F.3d 158,161 (5th Cir. 2001) (citations
omitted).
      A court can find that subject matter jurisdiction is lacking based on “(1)
the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.” Ramming, 281 F.3d at 161 (citing
Barrerra-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1992). When
a defendant submits a factual attack on the complaint, he must provide support
with “affidavits, testimony, or other evidentiary materials.”           Patterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Given the burden of proof on the
party asserting jurisdiction, the plaintiff must submit evidence to prove, by a
preponderance of the evidence, that the court does have jurisdiction based on the
complaints and evidence. Id. Courts are to hold pro se litigants to less stringent
pleading standards than other parties. See Estelle v. Gamble, 429 U.S. 97, 106
(holding that pro se pleadings are to be liberally construed); see also Haines v.
Kerner, 404 U.S. 519, 520–21 (1972).
      2.     Discussion
      In his complaint, Smith lists several statutes as a basis for jurisdiction: the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a; the
Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq.; the Americans with

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Disabilities Act (ADA), 42 U.S.C. §§ 12112, 12203; and portions of the Civil
Service Reform Act (CSRA), 5 U.S.C. §§ 2301, 2302.               We address the
plaintiff–appellant’s claims under each of these statutes in turn.
      A.    ADEA Claims
      Defendant–Appellee contends that Smith had not exhausted his
administrative remedies as required by the ADEA because there had been no
final determination by the EEO on his discrimination claims. Smith argues that
his federal claims are separate and apart from his EEO claims, and therefore
that he did not need to exhaust administrative remedies for these claims.
      When a federal employee pursues a claim of age discrimination under the
ADEA, the individual may gain relief using one of two procedural paths.
Stevens v. Dept. of Treasury, 500 U.S. 1, 5 (1991); White v. Frank, 718 F. Supp.
592, 595 (W.D. Tex. 1989), adopted by White v. Frank, 895 F.2d 243, 243–44 (5th
Cir. 1990) (per curiam). If the employee forgoes his administrative remedies, he
may proceed directly to federal district court. Stevens, 500 U.S. 1, 5–6 (1991);
White, 718 F. Supp. at 595; see 29 U.S.C. § 633a(d). Alternatively, the employee
may choose the administrative route and file a formal complaint with the EEO
of the federal agency. Stevens, 500 U.S. at 5; White, 718 F. Supp. at 595; see 29
U.S.C. § 633a(b). Once an employee proceeds down the administrative route, he
“must completely exhaust his administrative remedies before commencing suit
in federal court.” White, 718 F. Supp at 595.    Essentially, the employee must
wait for a final determination from the EEO.
      Where the agency notifies the employee in writing that it believes that
some but not all of the claims in a complaint should be dismissed and gives its
rationale, such notification is not final or appealable until final action is taken
on the remainder of the complaint.       See 29 C.F.R. § 1614.107(b); see also
Franklin v. Potter, 600 F. Supp. 3d 38, 61 (D.D.C. 2009) (“when the agency only
partially dismisses a complaint, there is no final action”); Puckett v. Potter, 342

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F. Supp. 2d 1056, 1065 (M.D. Ala. 2004) (“The effect of an agency’s dismissal .
. . depends on whether the agency dismisses all of the complainant’s claim or
only some of them.”).
      We agree with the government and the district court that Smith failed to
exhaust his administrative remedies because the actions alleged in the federal
complaint are within the scope of the administrative proceedings and there was
no final determination from the EEO on the EEO formal complaint. The scope
of the EEO administrative proceedings and whether a final determination was
made are paramount in resolving the jurisdictional issue.
      First, we examine whether the EEO administrative proceedings were
broad enough to encompass Smith’s federal claims. In his federal complaint,
Smith alleges that his age motivated several discriminatory and retaliatory
actions including: a sustained campaign of “discrimination and fear” by Kirby
Ragsdale, a supervisor; inadequate maintenance of “standards of integrity,
conduct, and concern for public safety” by Ragsdale and the USPS; removal of
Smith from the work schedule and limitation of hours on April 18, 2008 and May
31st through June 6th; harassing requests for medical records; an investigative
interview on July 29th, 2008; and an assault by a representative of Ragsdale at
the investigative interview, an incident that Smith explained in his response is
intended to demonstrate discrimination and is not intended to state a separate
cause of action.
      Each of the incidents that Smith lists on his federal complaint falls under
the purview of Smith’s EEO complaint.       Smith’s EEO complaint generally
alleges discrimination and retaliation on the basis of age. In support of his
allegations, Smith lists grievances including the limitation of his scheduled
hours to less than other employees by management and Ragsdale over a six
month period that included the time periods listed on his federal complaint. The
EEO complaint and investigation also include a request for medical

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documentation on September 22, 2008 that Smith implies is a result of
retaliatory harassment and discrimination on his federal complaint. The EEO
complaint and investigation also discuss an investigative interview about points,
at which Smith alleges the assault by Ragsdale’s representative took place.
      Given that the EEO complaint was broad enough to include all these
claims, Smith had to exhaust his administrative remedies before pursuing
judicial relief after he chose the administrative procedural path. He did not
exhaust his administrative remedies because he proceeded to court only after a
partial acceptance and dismissal. A partial acceptance and dismissal is not a
final determination. To exhaust his remedies, Smith had to wait until final
action was taken on the rest of his complaint.        The district court properly
granted Appellee’s motion to dismiss for failure to exhaust administrative
remedies under the ADEA.
      B.    Rehabilitation Act Claims
      In addition to age discrimination and retaliation, Smith alleges
discrimination and retaliation because of his disability. He alleges that both the
scheduling decisions and the “ineligible” grade on the postal exam were
motivated by disability. Smith lists both the Rehabilitation Act and the ADA as
bases for jurisdiction. As we will explore in the next section, the ADA does not
allow claims against the federal government, thus Smith must assert his
disability claims under the Rehabilitation Act.
      The Rehabilitation Act adopts the “remedies, procedures, and rights set
forth in section 717 of the Civil Rights Act of 1964.” 29 U.S.C. 794a(a)(1). Thus,
“the Rehabilitation Act . . . established a private right of action subject to the
same procedural constraints (administrative exhaustion, etc.) set forth in Title
VII of the Civil Rights Act . . . .” Prewitt v. United States Postal Serv., 662 F.2d
292, 304 (5th Cir. Unit A 1980).         In contrast to the ADEA, under the
Rehabilitation Act, an employee can only pursue judicial relief by one procedural

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path. As a precondition to bringing an action in federal court, a complaining
employee “must exhaust their administrative remedies by filing [the] charge of
discrimination with the EEO division of their agency.” Pacheco v. Mineta, 448
F.3d 783, 788 (5th Cir. 2006) (discussing the exhaustion requirement for Title
VII claims).
      To exhaust administrative remedies, the employee must either (1) receive
notice of final action taken by the agency or by the EEOC upon an appeal from
a decision or order of the agency, or (2) wait until 180 days have passed from the
filing of the administrative complaint without final agency action. 42 U.S.C. §
2000-16(c). As explained above, where the agency notifies the employee in
writing that some claims in an EEO complaint should be dismissed but not all
of the claims, such notification is not a final action or appealable until final
action is taken on the remainder of the complaint. See 29 C.F.R. § 1614.107(b);
see also Franklin, 600 F. Supp. 3d at 61; Puckett, 342 F. Supp. 2d at 1065.
      Exhaustion of administrative remedies is a prerequisite to federal subject
matter jurisdiction. Tolbert v. U.S., 916 F.2d 245, 247 (5th Cir. 1990) (citations
omitted) (examining a Title VII case). A failure to comply with this requirement
deprives the district court of jurisdiction.        Id.   Where an employee has
prematurely filed an action in district court, the issuance of a final decision by
the agency before a district court can dismiss the claim does not cure the
jurisdictional defect. Id. at 249.
      We agree with the government and the district court that Smith failed to
exhaust his remedies. Though Smith does not specify which incidents are
brought under each statute, it seems that Smith is claiming that his disability
motivated USPS management to limit his hours, deny overtime, and give a
rating of “ineligible” in the writing section of the USAP Exam 600. As we
discussed above, the limitation of his hours and denial of overtime are
encompassed by his EEO complaint, which alleges discrimination on the basis

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of age, disability, and retaliation. Smith has failed to exhaust his remedies on
these claims because he has not received a final determination from the EEO on
his EEO complaint. For the “ineligible” rating and any other claims he may be
raising under the Rehabilitation Act that are not encompassed in the EEO
complaint, Smith has failed to exhaust his remedies because he has not pursued
administrative remedies first. The district court properly granted the motion to
dismiss for lack of jurisdiction for the Rehabilitation Act claims.
      C.    ADA claims
      Smith also lists the ADA as a jurisdictional basis and alleges claims based
on discrimination due to his disability. Under the ADA, entities covered by the
statute may not discriminate on the basis of an employee’s disability. 42 U.S.C.
§12112. Section 12111 defines “covered entity” as an employer or employment
agency. 42 U.S.C. § 12111(2). However, section 12111 goes further to say that
the term “employer” excludes the entire federal government from coverage under
the ADA. 42 U.S.C. §12111(5)(B)(i); Henrickson v. Potter, 327 F.3d 444, 447 (5th
Cir. 2003). The USPS is part of the federal government. 39 U.S.C. § 201 (“There
is established, as an independent establishment of the executive branch of the
Government of the United States, the United States Postal Service.”). Thus, we
agree with the district court that no claim against the USPS is permitted under
the ADA.
      D.    CSRA Claim
      Smith also cites to 5 U.S.C. section 2301 (Merit System Principles) and 5
U.S.C. section 2303 (Prohibited Personnel Practices), invoking the Civil Service
Reform Act as a basis for federal question jurisdiction. As the district court
notes, the basis of the plaintiff’s CSRA claim is not clear but Smith seems to
indicate that he is pursuing a “mixed claim”—a claim where the adverse
employment action is motivated in whole or in part by prohibited discrimination
that is brought before the EEO.

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        Under the CSRA framework, a postal service employee may pursue relief
along two procedural paths: The employee may either (1) bring a mixed
complaint before the EEO or (2) bring a mixed appeal before the Merit Systems
Protection Board (MSPB).         29 C.F.R. § 1614.302(a) (defining “mixed case
complaint” and “mixed case appeal”); 5 U.S.C. § 7702. Pursuant to subsection
(b) of C.F.R. section 1614.302, the employee must elect one of these paths; he
cannot do both. 29 C.F.R. §1614.302(b). The EEO or the MSPB will decide both
the issues of discrimination and the adverse employment action. 29 C.F.R. §
1614.302; 5 C.F.R. §1201.156 (“the judge will decide both the issue of
discrimination and the appealable action within 120 days after the appeal is
filed”).     Once the employee who initiates either of these procedural paths
receives a final determination, the employee may pursue judicial review of the
final determination. 29 C.F.R. §1614.310; 5 U.S.C. §7703(a)(1) & (b)(1)–(2).
Cases of discrimination subject to provisions of section 7702 “shall be filed under
section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) [or] section
15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c))
. . . .”     5 U.S.C. § 7703(b)(2).   As discussed above these provisions require
exhaustion of administrative remedies before the federal court may have
jurisdiction.
        Smith has failed to exhaust his administrative remedies because he has
not received a final determination from the EEO or the MSPB. Accordingly, we
agree with the district court that it lacks jurisdiction to hear his CSRA claims.
B.      Discovery Issue
        1.      Standard of Review
        The control of discovery “is committed to the sound discretion of the trial
court and its discovery rulings will be reversed only where they are arbitrary or
clearly unreasonable.” Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1008, 1012 (5th
Cir. 1986) (citations omitted). Accordingly, we review the trial court’s grant of

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the motion to stay discovery pending the motion to dismiss for abuse of
discretion. Richardson v. Henry, 902 F.2d 414, 417 (4th Cir. 1990).
      2.    Discussion
      Smith argues that the trial court’s grant of the motion to dismiss was
inappropriate because it did not to allow adequate time for discovery as required
by Rule 56(c). Here, the issues to be examined in the motion to dismiss for lack
of jurisdiction or in the alternative for grant of summary judgment were largely
legal rather than factual in nature. Thus, we find no abuse of discretion in
staying discovery.
      AFFIRMED.




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