                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              AUG 6 1999
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 VICKI D. CORBIN,

          Plaintiff-Appellant,

 v.                                                        No. 98-6288
                                                           (W.D. Okla.)
 MARVIN T. RUNYON, United States                    (D.Ct. No. CIV-96-1766-T)
 Postmaster General; UNITED STATES
 POSTAL SERVICE,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before PORFILIO, BRORBY, and MURPHY, Circuit Judges.



      Appellant, Vicki Corbin, appeals the district court’s decision to dismiss her

Title VII and breach of contract claims with prejudice and award summary

judgment on her Rehabilitation Act claim in favor of Appellees, the United States

Postal Service and Marvin T. Runyon, Postmaster General (collectively “Postal

Service”). We exercise jurisdiction under 28 U.S.C. § 1291, and affirm in part


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
and reverse in part and remand.



BACKGROUND

      Ms. Corbin is a letter carrier for the Postal Service. Unhappy with certain

employment conditions and treatment by supervisors, she initiated this lawsuit

against her employer. After twice amending her complaint, Ms. Corbin’s alleged:

(1) violations of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791-793

(Rehabilitation Act) and the Federal Employees’ Compensation Act, 5 U.S.C.

§ 8101 et seq. ; (2) breach of contract under 29 U.S.C. § 185 and 39 U.S.C.

§ 1208(b); and (3) denial of Equal Protection and Due Process under Title VII,

42 U.S.C. § 2000e et seq .



      The Postal Service filed a motion for partial dismissal of Ms. Corbin’s

second amended complaint for failure to state viable claims of constitutional tort,

breach of contract, violation of the Federal Employees’ Compensation Act, and

violation of Title VII. The district court addressed this motion in a series of

orders. In its first order, the court dismissed Ms. Corbin’s Title VII claims for

failing to allege the Postal Service discriminated against her on the basis of any

protected classification, and also dismissed her constitutional claims as barred by

the doctrine of sovereign immunity and the exclusive remedy provisions of the


                                         -2-
Rehabilitation Act. Then, after receiving supplemental briefing, the court issued

another order dismissing Ms. Corbin’s breach of contract claim for failure to

exhaust available contractual remedies before filing suit, and for untimely filing

of her claims. In response to the court’s first order, Ms. Corbin filed a motion,

pursuant to Fed. R. Civ. P. 59(e), to amend judgment on the dismissal of her Title

VII action or, alternatively, for leave to amend her complaint again so she could

“well-plead” her Title VII claims. The district court denied this motion. Finally,

the Postal Service moved for summary judgment on Ms. Corbin’s lone remaining

Rehabilitation Act claim (which also encompassed her Federal Employees’

Compensation Act allegations), contending she failed to exhaust her

administrative remedies. The court granted the motion and dismissed her

Rehabilitation Act claim.



      Ms. Corbin now appeals, challenging: (1) the district court’s decision to

dismiss her Title VII claims of retaliation, harassment, and discriminatory hostile

work environment; (2) the court’s refusal to allow her to amend her pleadings;

(3) the court’s dismissal of her breach of contract claim; and (4) the court’s

award of summary judgment on her Rehabilitation Act claim. She expressly

abandons her constitutional allegations on appeal.




                                         -3-
DISCUSSION

A.     Dismissal of Claims

       We review de novo the district court’s decision to dismiss Ms. Corbin’s

Title VII and breach of contract claims under Fed. R. Civ. P. 12(b)(6).         Chemical

Weapons Working Group, Inc. v. United States Dep’t of the Army            , 111 F.3d

1485, 1490 (10th Cir. 1997). Applying the same standard as the district court,

we will “uphold a dismissal under Fed. R. Civ. P. 12(b)(6) only when it appears

that the plaintiff can prove no set of facts in support of the claims that would

entitle [her] to relief, accepting the well-pleaded allegations of the complaint as

true and construing them in the light most favorable to the plaintiff.”        Fuller v.

Norton , 86 F.3d 1016, 1020 (10th Cir. 1996). Under this rule, we acknowledge

the “powerful presumption against rejecting pleadings for failure to state a

claim.” Cayman Exploration Corp. v. United Gas Pipe Line Co.              , 873 F.2d 1357,

1359 (10th Cir. 1989) (quotation marks and citation omitted).



       1.     Title VII

       The district court dismissed Ms. Corbin’s complaint for failure to state a

viable Title VII claim, holding she did not specifically identify any adverse

personnel action by the Postal Service showing discrimination on the basis of

some protected classification. Ms. Corbin argues her complaint contains


                                            -4-
sufficient facts and allegations to provide the Postal Service with notice of her

Title VII discrimination claims. In support of her argument, she cites a portion

of her complaint where she alleges the Postal Service “through it’s [sic]

representatives continually harassed her and created a sustained intolerable

hostile work environment that has changed the terms and conditions of her

employment ... and retaliated against her for exercising her [Equal Employment

Opportunity] rights.” She asserts this harassment and unequal treatment arose

because of her gender and the Postal Service’s desire to retaliate against her. In

further support of the sufficiency of her complaint, Ms. Corbin argues that the

extensive outline of facts she included is more than mere background

information, but contains specific instances of conduct by the Postal Service

supporting her Title VII action, and explains the nature of the unequal, harassing

treatment and retaliation she suffered from supervisors for making Equal

Employment Opportunity (“EEO”) complaints.



      We agree with the district court that the Title VII portion of Ms. Corbin’s

second amended complaint is far from precise and raises some doubt about the

validity of her Title VII claim. The reader must draw certain inferences from her

allegations and piece them together with other portions of her complaint in order

to determine the exact nature of her claims. Nevertheless, we must acknowledge


                                         -5-
our federal rules require very little in the way of specificity in pleading. A “short

and plain statement of the claim showing that the pleader is entitled to relief”

will ordinarily suffice. Fed. R. Civ. P. 8(a).



      We believe Ms. Corbin’s Title VII claim satisfies this standard. Under the

Title VII heading of her complaint, she incorporates by reference all of the

preceding paragraphs. Among the incorporated paragraphs we find two critical

references to gender-based discriminatory treatment and retaliation. In paragraph

six of her complaint, Ms. Corbin alleges she “has been denied equal treatment, as

other male employees similarly situated,” and again in paragraph nine she claims

“harassment ... and generally disparate treatment based upon gender and

retaliation.” These incorporated references appear to vitiate the district court’s

stated rationale for dismissing Ms. Corbin’s Title VII action. Viewing these

incorporated paragraphs in the context of the other facts and allegations

specifically included under the Title VII heading, and    giving Ms. Corbin the

benefit of the presumption against rejecting pleadings,    see Cayman Exploration ,

873 F.2d at 1359, we believe the complaint sufficiently apprises the Postal

Service that gender-based discrimination and retaliation form the basis of her

Title VII allegations. Even though Ms. Corbin’s second amended complaint is

certainly not a picture of clarity, it is sufficient under our liberal notice pleading


                                           -6-
rules to survive a motion to dismiss.    See Porter v. Karavas, 157 F.2d 984, 985-

86 (10th Cir. 1946) (“Indefiniteness of a complaint is not ground for dismissing

the action if it states a claim showing that the plaintiff is entitled to relief.”). For

these reasons, we reverse the district court’s dismissal of Ms. Corbin’s Title VII

claims and remand for further proceedings consistent with this ruling.       1




       2.     Breach of Contract

       In support of her breach of contract claim, Ms. Corbin argues that by

treating her unfairly and subjecting her to essentially the same discriminatory

conduct giving rise to her Title VII claim, the Postal Service violated the rules

and regulations contained in the collective bargaining agreement applicable to the

postal employees in her unit. The district court dismissed this claim, however,

finding Ms. Corbin failed to allege exhaustion of the grievance procedures

enumerated under the collective bargaining agreement and, alternatively, finding

her contract claims untimely.



       On appeal, Ms. Corbin refutes the district court’s conclusions, contending



       1
         We acknowledge Ms. Corbin’s abandonment of her constitutional claims
previously pled in conjunction with her Title VII claim and therefore affirm the district
court’s dismissal of those claims.


                                            -7-
she is entitled to file an independent breach of contract action without first

resorting to union representation to exhaust the grievance procedures outlined

under the collective bargaining agreement, because she had no “mechanism or

avenue in which to pursue the grievance process.” She concludes that as a non-

union employee, she is not entitled to union representation in the grievance

process, and that because the Postal Service only deals with the National

Association of Letter Carriers as the authorized union representative for filing

grievances, it would not have recognized her individually. In response to the

district court’s alternative finding regarding the untimeliness of her contract

claims, Ms. Corbin argues her EEO complaints preserved the contract claims, and

the continuing nature of the contract violations justifies tolling the statute of

limitations for such actions.   2




       Title 39 U.S.C. § 1208(b) governs Ms. Corbin’s breach of contract claim.

This provision is analogous to § 301 of the National Labor Relations Act, 29

U.S.C. § 185, and the legal principles governing § 301 apply equally to actions


       2
         Ms. Corbin also raises the doctrine of equitable estoppel in her reply brief,
arguing that her supervisor told her to file an EEO complaint instead of a grievance under
the procedures outlined in the collective bargaining agreement and that she reasonably
relied on the instruction to her detriment. However, we will not consider this issue
because Ms. Corbin raises it for the first time in her reply brief. Durham v. Xerox Corp.,
18 F.3d 836, 840 n.4 (10th Cir.), cert. denied, 513 U.S. 819 (1994).


                                           -8-
under 39 U.S.C. § 1208(b).     See National Ass’n of Letter Carriers, AFL-CIO v.

United States Postal Serv. , 590 F.2d 1171, 1174 (D.C. Cir. 1978). Case law

interpreting § 301 actions requires that before an employee files an independent

action for breach of contract, the union must breach its duty of fair representation

under the collective bargaining agreement.         United Parcel Serv. v. Mitchell,   451

U.S. 56, 61 (1981). In addition, the employee must exhaust the grievance and

arbitration process established by the collective bargaining agreement.          See Hines

v. Anchor Motor Freight, Inc. , 424 U.S. 554, 563 (1976);         Aguinaga v. United

Food & Commercial Workers Int’l Union         , 993 F.2d 1463, 1471 (10th Cir. 1993),

cert. denied , 510 U.S. 1072 (1994). Thus, in order for Ms. Corbin to state a

claim for breach of contract, the National Association of Letter Carriers must

refuse to represent her, and Ms. Corbin must unsuccessfully attempt to exhaust

the grievance procedures under the collective bargaining agreement.



      With these standards in mind, we consider Ms. Corbin’s argument on

appeal and examine her second amended complaint to determine if she alleges

facts sufficient to establish exhaustion. In her complaint, Ms. Corbin repeatedly

alleges that the National Association of Letter Carriers “failed, refused, or

neglected” to take any action on her behalf with regard to her numerous claims of

contract violations. In addition, she concludes it would have been fruitless to try


                                             -9-
to exhaust her remedies through the grievance process established by the

collective bargaining agreement because, as a non-union employee without union

representation, the Postal Service would not have acknowledged her grievance.



       We acknowledge that the Federal Rules of Civil Procedure do not require

claimants to set out in intricate detail the facts on which they base their claims,

Conley v. Gibson , 355 U.S. 41, 47 (1957), but such deference does not extend to

completely conclusory statements       which fail to give adequate notice to the

opposing party or the court of the underlying basis of the claim, or sufficiently

allege exhaustion of contractual remedies.          See Douglas v. American Info. Tech.

Corp. , 877 F.2d 565, 574 (7th Cir. 1989) (affirming dismissal of contract claim

finding unsupported assertion that exhaustion of contractual remedies would have

been futile was insufficient to properly raise the issue);     see generally, Leeds v.

Meltz , 85 F.3d 51, 53 (2d Cir. 1996) (bald assertions and conclusions will not

suffice to state a claim). The pleading rules entitle the Postal Service to some

statement of the circumstances, occurrences, and events supporting Ms. Corbin’s

exhaustion claims.    See Pike v. City of Mission , 731 F.2d 655, 661 (10th Cir.

1984) (finding “allegation ... inadequate under Fed. R. Civ. P. 8(a)(2) because it

[pled] insufficient facts concerning time, place, actors, or conduct to enable

defendants to respond.”)


                                             -10-
       Under this standard, we believe the conclusory allegations in Ms. Corbin’s

complaint are patently insufficient to meet the threshold requirements for stating

a breach of contract claim in this instance. Nowhere does Ms. Corbin allege the

National Association of Letter Carriers ever actually refused any specific request

to file a grievance on her behalf for any of her contract claims. Instead, she

glosses over the point and simply concludes without any supporting detail “the

union does not provide representation to non-union members.” In addition, Ms.

Corbin’s complaint contains no allegation that she ever unsuccessfully attempted

to file a grievance with the Postal Service on her own behalf. Instead, she once

again concludes without any support “she ... is not entitled to pursue a grievance

on her own,” and the Postal Service would have ignored her grievance anyway

because it only deals with the union as the authorized agent. These unsupported

conclusions are not enough to show exhaustion of her remedies under the

collective bargaining agreement and the union’s breach of its duty of fair

representation.   See Douglas , 877 F.2d at 574. Thus, we hold the district court

appropriately dismissed her breach of contract claim.    3




       3
        Having decided on other grounds that the district court properly dismissed Ms.
Corbin’s claim, we need not reach the issue of the timeliness of her breach of contract
claims.


                                          -11-
B.    Refusal to Allow Amendment to Pleadings

      In an argument directly related to her Title VII claim, Ms. Corbin contends

the district court erred when it refused to allow her to amend her complaint again

in order to “well-plead” her Title VII claims. In light of our decision to reverse

the district court and uphold the sufficiency of Ms. Corbin’s Title VII

allegations, we need not address this argument. Although not specifically stated

in her brief on appeal, we are persuaded Ms. Corbin’s argument for leave to

amend her complaint functioned as an alternative to her initial claim that she

sufficiently pled a Title VII cause of action. Thus, our decision to reinstate her

Title VII complaint obviates the need to address this alternative position.



C.    Summary Judgment on Rehabilitation Act Claim

      Finally, we address Ms. Corbin’s Rehabilitation Act claims. In her second

amended complaint, Ms. Corbin alleges she suffered physical impairment from an

on-the-job injury that left her without the use of her left hand and suffering from

anxiety and depression. Ms. Corbin claims the Postal Service harassed and

disciplined her because of her disability, and refused to suggest or make any

reasonable accomodations. In addition, she contends that various acts by the

Postal Service, preventing her from receiving workers’ compensation benefits for

her-on the-job injury under the Federal Employees’ Compensation Act, 5 U.S.C.


                                        -12-
§ 8101 et seq ., are also evidence of disability discrimination. The Postal Service

moved for summary judgment on these issues claiming Ms. Corbin failed to file,

preserve and exhaust her administrative remedies with regard to her

Rehabilitation Act claim. The district court agreed, and awarded summary

judgment on the Rehabilitation Act claim in favor of the Postal Service.



       We review de novo the district court’s order granting summary judgment,            4



employing the same legal principles as the district court and construing the

factual record and the reasonable inferences therefrom in the light most favorable

to the party opposing summary judgment.         See Byers v. City of Albuquerque       150

F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is appropriate if the

record shows “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.” Fed. R. Civ. P. 56(c).

An issue of material fact is genuine only if a party presents facts sufficient to

show that a reasonable jury could find in favor of the nonmovant.           Anderson v.



       4
          The district court’s order states it treats the Postal Service’s motion for summary
judgment as a motion to dismiss. However, the court’s discussion and reliance on
evidentiary materials beyond the second amended complaint persuade us its review and
disposition is more properly categorized as summary judgment. See Fed. R. Civ. P. 12(c)
(“If, on a motion for judgment on the pleadings, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be treated as one for
summary judgment.”).


                                            -13-
Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).



       After reviewing the record, we agree the district court appropriately

awarded summary judgment on the Rehabilitation Act claim because Ms. Corbin

failed to exhaust her administrative remedies. As a federal Postal Service

employee, § 501 of the Rehabilitation Act is the exclusive remedy for Ms.

Corbin’s claim of disability discrimination.      Johnson v. United States Postal

Serv. , 861 F.2d 1475, 1477 (10th Cir.),   cert. denied , 493 U.S. 811 (1988). Like

the requirements for suits under Title VII, the exhaustion of administrative

remedies is a jurisdictional prerequisite for instituting a Rehabilitation Act cause

of action in federal court.   See Woodman v. Runyon , 132 F.3d 1330, 1341 (10th

Cir. 1997); Johnson v. Orr , 747 F.2d 1352, 1356-57 (10th Cir.1984) (relying on

29 U.S.C. § 794a(a)(1)). In order to exhaust her administrative remedies and

preserve her claim for disability discrimination, Ms. Corbin must file a complaint

of disability-based discrimination (EEO complaint) to an EEO counselor within

forty-five days of any adverse action against her. 29 C.F.R. § 1614.105(a)(1).

The record shows Ms. Corbin raised no allegations pertaining to disability

discrimination until she filed her judicial complaint in district court. None of the

twelve EEO complaints she cites under the “exhaustion” heading of her judicial

complaint contains any allegations of disability-based discrimination. In fact, not


                                           -14-
once did Ms. Corbin ever check the box for “handicap” discrimination on the

formal EEO complaint form she filed for any of her twelve cited complaints, nor

did the text of those complaints contain any allegation of such conduct.

Although we realize Ms. Corbin’s failure to mark the box for disability

discrimination is not dispositive, “it certainly creates a presumption that she was

not asserting claims represented by boxes not checked.”   Gunnel v. Utah Valley

State College , 152 F.3d 1253, 1260 (10th Cir. 1998). The lack of other evidence

from the record tending to rebut this presumption persuades us she did not

exhaust administrative remedies with regard to the alleged disability

discrimination.



      In a final attempt to overcome the administrative deficiencies apparent in

her Rehabilitation Act claim, Ms. Corbin submitted evidence of several

additional EEO complaints, filed after the commencement of the present lawsuit,

that allege discrimination because of disability. We decline to consider these

later filed complaints as evidence of exhaustion of administrative remedies for

the following reasons. First, Ms. Corbin completely undermines the relevance of

these complaints by admitting in a deposition that she based her Rehabilitation

Act claim entirely on the twelve EEO complaints cited in her judicial complaint.

In addition, we find the continuing violation theory Ms. Corbin argues in support


                                          -15-
of including the untimely EEO complaints is inapplicable in this instance.     5
                                                                                   Ms.

Corbin cannot show she exhausted administrative remedies through EEO

complaints filed after the commencement of this lawsuit.



      In sum, the evidence presented convinces us that Ms. Corbin failed to

exhaust her administrative remedies. Such procedural deficiencies leave us

without jurisdiction to consider Ms. Corbin’s Rehabilitation Act claim, and thus




      5
          Ms. Corbin cites Woodman, 132 F.3d at 1341 (stating judicial complaint may
encompass any discrimination like or reasonably related to the allegations in the
administrative charge), and Brown v. Harshorne Pub. Sch. Dist. 864 F.2d 680, 682 (10th
Cir. 1988) (stating the court can consider other discriminatory acts arising during the
pendency of an EEO complaint even if not formally presented to the agency), to support
her position that the district court should have admitted her EEO complaints made after
the commencement of this lawsuit to show she exhausted administrative remedies. Ms.
Corbin misinterprets the import of our statements in Woodman and Brown. First, for
purposes of claiming exhaustion of administrative remedies, she cannot “piggy-back” her
disability discrimination claims onto her Title VII gender and retaliation claims.
Disability discrimination and the alleged gender-based discrimination and retaliation
involved in this case are not the type of “like or reasonably related” forms of
discrimination contemplated in Woodman, 132 F.3d at 1341, and Brown, 864 F.2d at 682.
Nor do the later filed EEO complaints alleging disability discrimination show “acts
committed pursuant to a pattern of discrimination” already before the court. Brown, 864
F.2d at 682 Second, even though the court may consider other acts of discrimination that
occur during the pendency of an EEO complaint, id., as a matter of common sense, that
does not mean Ms. Corbin may file a lawsuit claiming disability discrimination without
exhausting administrative remedies, and then attempt to cure the procedural deficiency by
proffering EEO complaints made after filing the suit. Such an approach makes absolutely
no sense and defeats the purpose of the exhaustion requirement altogether.


                                          -16-
we uphold summary judgment in favor of the Postal Service on this issue.      6




CONCLUSION

      For the foregoing reasons, we    AFFIRM in part, REVERSE in part, and

REMAND for further proceedings consistent with this opinion.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




      6
         Having resolved the Rehabilitation Act issue on other grounds, we express no
opinion as to whether the Federal Employees’ Compensation Act precludes an
independent Rehabilitation Act claim.


                                          -17-
No. 98-6288, Corbin v. Runyon

Porfilio, Circuit Judge, dissenting.



      I respectfully dissent from the court’s conclusion that Ms. Corbin’s second

amended complaint states a claim for relief under Title VII. To me the averments

made in support of that claim are no less conclusory than those the court holds

inadequate on her breach of contract claim. In all other respects, I join the

decision.




                                         -1-
