1 United States Court of Appeals,

Fifth Circuit.

No. 96-20027

Marie Therese DAO, Plaintiff-Appellant,

v.

AUCHAN HYPERMARKET, Defendant-Appellee.

Oct. 3, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:

Primarily at issue is whether administrative remedies must be exhausted before an action can

be filed under the Americans with Disabilit ies Act (ADA), 42 U.S.C. § 12101, et seq. Marie Therese

Dao, pro se, appeals the dismissal of her complaint against her former employer, Auchan

Hypermarket. We AFFIRM.

I.

Dao asserted claims under the ADA and for "violation of public policy, breach of good faith

and fair dealing, and defamation of character" under Texas law. The district court granted Auchan's

F ED .R.C IV .P. 12(b)(6) motion to dismiss, holding that Dao failed to comply with the administrative

prerequisites for filing an action under the ADA; that the violation of public policy claim did not fall

within the narrow public policy exception to Texas' employment-at-will doctrine; that Texas law does

not recognize a duty of good faith and fair dealing in the employer-employee relationship; and that

the defamation claim was not timely filed.

II.

A Rule 12(b)(6) dismissal is reviewed de novo. E.g., Jackson v. City of Beaumont Police

Dept., 958 F.2d 616, 618 (5th Cir.1992). "The dismissal will not be upheld unless it appears beyond

doubt that the plaint iff can prove no set of facts in support of his claim which would entitle him to2

relief." M itchell v. McBryde, 944 F.2d 229, 230 (5th Cir.1991) (internal quotati on marks and citation

omitted).

A.

Dao contends that the district court erred in holding that she was required to file a charge of

discrimination with the EEOC or the Texas Human Rights Commission prior to filing her ADA claim

in federal court. This is an issue of first impression for o ur co urt. The other courts that have

c o nsidered the issue, however, have reached the same conclusion as did the district court. S ee

Stewart v. County of Brown, 86 F.3d 107, 110 (7th Cir.1996) ("In order to recover for violations of

Title I of the ADA, a plaint iff must file a charge of discrimination with the EEOC within 180 days of

the alleged violation (if he does not file an init ial charge with a state agency)"); McSherry v. Trans

World Airlines, Inc., 81 F.3d 739, 740 n. 3 (8th Cir.1996) (noting that ADA incorporates by

reference the powers, reme dies, and procedures set forth in Title VII, which requires employees

claiming discrimination to file a charge with the appropriate administrative agency, and bars suits until

t he emplo yee has received a right-to-sue letter); L una v. Walgreens, 888 F.Supp. 87, 88

(N.D.Ill.1995) (filing discrimination charge with EEOC is condition precedent to filing ADA action

in federal court); Bishop v. Okidata, Inc., 864 F.Supp. 416, 424 (D.N.J.1994) (procedure of filing

charge with EEOC and receiving right-to-sue letter before bri nging an ADA action is not

jurisdictional, but plaint iff "must exhaust these administrative remedies before suing in federal court");

Osborn v. E.J. Brach, Inc., 864 F.Supp. 56, 58 (N.D.Ill.1994) (befo re filing ADA action against

employer, employee must file t imely EEOC charge and receive right-to-sue letter); J ames v. Texas

Dept. of Human Services, 818 F.Supp. 987, 990 (N.D.Tex.1993) (ADA plaintiff's administrative

remedies will be deemed exhausted upon her receipt of right-to-sue letter from Texas Human Rights

Commission and submission of letter to court).

We join those courts in holding that an employee must comply with the ADA'tion in federal

court against her employer for violation of the ADA. As the district court correctly noted, the ADA

incorporates by reference the procedures applicable to actions under Title VII, 42 U.S.C. § 2000e,3

et seq. It provides:

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, and

2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides

to the Commission, to the Attorney General, or to any person alleging discrimination on the

basis of disability in violation of any provision of this subchapter.

42 U.S.C. § 12117(a).

Section 2000e-5(e)(1) provides that, before a plaint iff can commence a civil action under Title

VII in federal court, she must file a t imely charge with the EEOC, or with a state or local agency with

authority to grant or seek relief from the alleged unlawful employment practice. 42 U.S.C. § 2000e5(e)(1); s ee, e.g., Cruce v. Brazosport Independent School Dist., 703 F.2d 862, 863 (5th Cir.1983)

(although filing of EEOC charge is not a jurisdictional prerequisite, it "is a precondition to filing suit

in district court"). And, § 2000e-5(f)(1) provides that a civil action must be commenced "within

ninety days" after the charging party has received a "right-to-sue" letter from the EEOC or state or

local agency. 42 U.S.C. § 2000e-5(f)(1); s ee Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 120

(5th Cir.1980).

It is undisputed that Dao did not file a disabilit y discrimination charge with the EEOC or with

a state or local agency. Acco rdingly, t he district court did not err by dismissing her ADA claim.

(Dao's motions for court-appointed counsel and to supplement the record, and Auchan's motion to

strike Dao's additional evidence, are DENIED. )

B.

We affirm the dismissal of Dao's state law claims for the reasons stated by the district court.

Dao v. Auchan Hypermarket, No. H-95-2619 (S.D.Tex. Dec. 5, 1995) (unpublished).

III.

For the foregoing reasons, the judgment is

AFFIRMED.