United States Court of Appeals

Fifth Circuit



## FILED

August 23, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 05-30037

Summary Calendar

_______________



## L IONEL 

## R OLLAND



## , J R



## .,

Plaintiff-Appellant,

VERSUS



## U NITED 

## S TATES 

## D EPARTMENT OF 

## V ETERANS 

## A FFAIRS 

## ;

A NTHONY 

## J. P RINCIPI



## , S ECRETARY



### , D EPARTMENT OF 

### V ETERANS 

### A FFAIRS



### , IN 

### H IS 

### I NDIVIDUAL 

### C APACITY 

### ;



## J IM 

## N ICHOLSON



## , S ECRETARY



### , D EPARTMENT OF 

### V ETERANS 

### A FFAIRS



### , IN 

### H IS 

### O FFICIAL 

### C APACITY 

### ;



## J OHN 

## D. C HURCH



## , J R



## .,

D IRECTOR OF THE 

### D EPARTMENT OF 

### V ETERANS 

### A FFAIRS



### ,

IN HIS 

### O FFICIAL AND 

### I NDIVIDUAL 

### C APACITY 

### ;



## C ASSANDRA 

## H OLIDAY



## ,

I NDIVIDUALLY



### ,



### Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana



### m 2:03-CV-570



### m 2:03-CV-3584

______________________________2



### Before D AVIS



### , S MITH 

### , and D ENNIS



### , Circuit Judges.

P ER 

### C URIAM 

### : *



### Lionel Roll a nd, Jr., appeals a summary

judgment and dis m issal of his suit against his

former employer, the United State s Department of Veterans Affairs (“VA”). 1 

### Finding no

error, we affirm, essentially for the reasons set

forth by the district court in its comprehensive,

twenty-nine-page opinion.

I.

Rolland alleges discriminatory treatment at

the workplace, including retaliation and termin ation, on the basis of sex, race, color, and

disabilit y. 2 

### He bases these claims o n t he Americans with Disabilit ies Act, 3 

### the Rehabilitation Act, 4 

### t h e Family Medial Leave Act

(“FMLA”), 5 

### title VII of the Civil Rights Act of

1964, 6 

### and 42 U.S.C. §§ 1981, 1983, 1985,

and 1986. He bases federal jurisdiction on title

VII and 42 U.S.C. §§ 1983, 1985, and 1986

.

The district court dismisse d t he title VII,

FMLA, and Rehabilitation Act claims for lack

o f jurisdiction for failure to exhaust available

administrative remedies. The claims under the

ADA a nd t he civil rights statutes were dismissed for failure to state a claim on which

relief could be granted and as preempted.

On appeal, bo t h parties limit their briefing

to the issues surrounding the title V I I claims;

therefore, ou r review is limited likewise. We

review both a dismissal under Federal Rule of

Civil Proce dure 12(b) and a summary judgment under Federal Rule of Civil Procedure 56

de novo

. 7 * Pursuant to 5 TH C IR. 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 5 TH C IR . R. 47.5.4.

1 Rolland also names as defendants, in their various capacities, certain VA o fficials and employees. The district court found that these individuals

were not properly before the court as defendants:

“ [T]here is no allegation that either Secreta r y

Principi or Director Church committed any act or

omission with regard to [Rolland’s] complaints and

certainly not in any capacity other than an official

one

. . . . Nowhere in Rolland’s complaints has he

alleged or described any conduct by Holiday in an

individual capacity

. . . .” On appeal these parties

remain nominally part of the suit, but Rolland does

not appeal the district court’s finding t hat these

persons are not proper defendants. Therefore, we

treat this matter as though Rolland had sued

Princi pi in his professional capacity as Secretary

and thereby the VA itself.

2 

### In addition he alleged a state law claim,

which was dismissed pursuant to Federal Rule

(continued...) 2 (...continued)



### of Civil Procedure 12(b)(6). Rolland does not

appeal this decision.

3 42 U.S.C. § 12101 et seq

.

4 29 U.S.C. § 701 et seq

.

5 29 U.S.C. § 2601 et seq

.

6 42 U.S.C. § 2000e

et seq

.

7 

### Hebert v. United States

, 53 F.3d 720, 722

(5th Cir. 1995) (“We r eview d e nov o a district

court’s granting of a motion to dismiss for lack of

subject matter jurisdiction.”); Armstrong v. City of

Dallas

, 997 F.2d 62, 65 (5th Cir. 1993) (“We

review the grant of summary judgment de novo,

applying the same standard as the district court.”).

For summary judgment, the Cour t views all evidence in the light most favorable to the non-moving

(continued...)3 

### II.

Rolland init ially complained to the Equal

Employment Opportuni ty Commission

(“EEOC”) of his perceived workplace discrimination; he chose to appeal the EEOC’s

final decision to the Merit System Protecti on

Board (“MSPB”). After sending a letter to the

MSPB, requesting dismissal of his appeal, he

received an initial decision from the MSPB

stating that his case had been dis m issed. In

this document he was informed that the decision would become final in 30 days and would

become appealabl e at that poi nt. He sued i n

federal court 27 days later.

III.

The VA is a federal agency. Sovereign immunity protects the federal government and its

agencies f

r om being sued without consent. 8



### Sovereign immunit

y is waived by clear and unequivocal statutory language. U nited States v.

Dalm , 494 U.S. 596, 608 (1990); Shanbaum

, 32 F.3d at 181. Title VII permits suit against the federal g o vernment in cases alleging discrimination in a gove r nment workplace if all

administrative remedies are exhausted first. 9



### In Tolbert v. United States

, 916 F.2d 245

(5th Cir. 1990), we defined title VII’s exhaustion standard as requiring a plaintiff to file his

lawsuit t imely



### SS not bef o re and not after the

statutorily allotted time. “It seems obvious

t hat [a complainant] who files too early, has,

by definition, filed before [he] has exhausted

[his] administrative remedies

. . . .” Id. at 247-

48. We reasoned that filing too early is not a

defect th at can be cured by the passage of

time. Id. at 249.

Title 5 U.S.C. § 7703(b) permits a judicial

appeal of an MSPB final ruling. Rolland sued

in federal court three days bef ore the MSPB

decision became final. He therefore did not

exhaust the available administrative remedies.

Consequently, jurisdiction has not vested in

federal court.

Rolland attempts to invoke the doctrine of

equitable tolling. 10 

### As the district court point 7 (...continued)

party. R eeves v. Sanderson Plum bing Prods.,

Inc.

, 530 U.S. 133, 150 (2000) (“In [entert aining

a mo tion for summary judgment] the court must

draw all reasonable inferences in favor of the

nonmoving party . . . .”).

8 Uni ted States v. Testan , 424 U.S. 392, 399

(1976) (“It long has been established, of course,

that the United States, as sovereig n, ‘is immune

from suit save as it consents to be sued

. . . and the

terms of its consent to be sued in any court define

that court’s jurisdiction to entertain the suit.’”)

(quoting United States v. Sherwood

, 312 U.S. 584

(1941)); Shanbaum v. United States

, 32 F.3d 180,

181 (5th Cir. 1990) (noting that the federal government may be sued only on clearly stated consent);

Fed. Deposit Ins. Corp. v. Meyer

, 510 U.S. 471

(1994) (“Absent a waiver, sovereign im m unity

shields the Federal Governm ent and its agencies

from suit.”) 9 42 U.S.C. § 2000e-16(a) (1994); Brown v

. Gen. Servs. Admin.

, 425 U.S. 820 (1976) (holding

that title VII requires compliance with administrative procedures before the federal courts acq uire

jurisdiction).

10 T h is argument is intermingled, in Rolland’s

brief, with the contention that federal courts acquired jurisdiction of the claim 180 days af ter he

filed his first complaint with the EEOC. This argument is incorrect. After Rolland received a final

decision from the EEOC, he was given a choice of

pursuing an appeal in federal court or with the

MSPB. He elected the MSPB and thereby committed himself to abide by these administrative procedur e s. S ee Vinieratos v. United States Dep’t of

(continued...)4



### ed out, however, this doctrine is applicable in

only very limit

ed cir cumstances. 1 1 

### A

complainant’s failure to follow administrative

procedures, particularly where he is represented by counsel, is not on e of the grounds

for equitable tolling.

IV.

Rolland’ s employment discriminat io n claims

under §§ 1983, 1985, and 1986 are precluded

by our caselaw. “Title VII provides the exclusive r e medy for employment discrimination

claims raised by federal employees.” J ackson

v. Widnall

, 99 F.3d 710, 716 (5 th Cir. 1996)

(citing Brown

, 425 U.S. at 835). The district

court properly dismissed those claims. AFFIRMED.

10 (...continued)

Air Force

, 939 F.2d 762 (9th Ci r

. 1991) (“[Title

VII] requires an agg r ieved federal employee to

elect one exclusive remedy and to exhaust whatever

remedy he chooses.”).

11 As eloquently stated by the district court,

“[t]he doctrine of equitab le tolling . . . may be

invoked when: (1) the claimant actively pursued his

judicial remedies in the prescribed time period; (2)

he wa s induced or tricked by his adversary’s

misc o nduct into allowing the deadline to pass;

(3) the court leads a plaintiff to believe that he has

done all that is requi red; (4) the plaintiff has received inadequate notice

. . . .” S ee Irwin v. Dep’t

of Veterans Affairs , 498 U.S. 89, 96 (1990) (noting instances of equitable toll ing where the complainant pursued judicial remedies within the

a ppropriate statutory time or was tricked by his

adversary as to the filing deadline, but refusing to

receive an untimely filing where the claimant did

not exercise due diligence); Teemac v. Henderson

, 298 F.3d 452, 457 (5th Cir. 2002) (stating lack of

proper notice is ground for equitable tolling); South

v. Saab Cars USA, Inc. , 28 F.3d 9, 11-12 (2d Cir

1994) (listing a court’s behavior, leading plaintiff

to believe no more is requi red, as a reason for

equitable tolling).