United States District Court 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

DEBORAH D. THOMAS 

v. 

DENIS MCDONOUGH, Secretary, 

Department of Veterans Affairs, and 

DEPARTMENT OF VETERANS 

AFFAIRS 

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§ 

§ 

§ 

§ 

§ 

CIVIL ACTION NO. 3:22-CV-2272-S 

MEMORANDUM OPINION AND ORDER 

This Order addresses Defendants' Motion to Dismiss ("Motion") [ECF No. 8]. Having 

reviewed and considered the Motion, including the final order issued by the Department of 

Veterans Affairs Office of Employment Discrimination Complaint Adjudication ("Final Order") 

[ECF No. 8-2], Plaintiffs Response to Defendants' Motion to Dismiss ("Response") [ECF No. 

20], Defendants' Reply to Motion to Dismiss [ECF No. 21], and the applicable law, the Court 

GRANTS IN PART and DENIES IN PART the Motion. 

I. BACKGROUND 

This is an employment discrimination lawsuit. Plaintiff Deborah D. Thomas was employed 

by Defendant Department of Veterans Affairs ("VA") for approximately 26 years. Pl.' s Original 

Comp!. ("Complaint") [ECF No. 1] 1 9. In the Complaint, Plaintiff sets out a list of "events" that 

allegedly amount to discrimination, retaliation, and hostile work environment. See id 11 10-32. 

On October 10, 2022, she filed suit against the VA and its Secretary, Defendant Denis 

McDonough, alleging discrimination, hostile work environment, and retaliation based on race, sex, 

and disability in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., 

the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., Section 501 of the 

Rehabilitation Act of 1973, 29 U.S.C. § 791, and 42 U.S.C. § 1981. Comp!. 11 1, 7-8. 

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Defendants moved to dismiss on several grounds: (1) Plaintiff did not file her Complaint 

within ninety days of receipt of the Final Order; (2) Plaintiff improperly asserts claims under both 

42 U.S.C. § 1981 and the ADA; and (3) Plaintiffs claims against the Department of Veterans 

Affairs should be dismissed because the agency is not a proper party. 

II. LEGAL ST AND ARD 

To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure l 2(b )( 6), a 

plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell At!. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 

742 (5th Cir. 2008). The court must accept well-pleaded facts as true and view them in the light 

most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 

2007). In ruling on a Rule 12(b)(6) motion, the court limits its review to the face of the pleadings. 

See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint 

and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th 

Cir. 2000). If a court considers matters outside the pleadings on a motion under Rule 12(b )( 6), "the 

motion must be treated as one for summary judgment under Rule 56." FED. R. CIV. P. 12(d). 

However, "district court[ s] may rely on evidence outside the complaint, without converting the 

Rule 12(b )( 6) motion into a motion for summary judgment, if that evidence is ... attached to 

the ... motion, referred to in the complaint, and central to the plaintiffs claim; or ... subject to 

judicial notice." George v. SJ Group, Inc., 36 F.4th 611, 619 (5th Cir. 2022) (citation omitted). 

Dismissal under Rule 12(b)(6) is appropriate based on a successful affirmative defense 

only when the defense appears clearly on the face of the complaint. See Clark v. Amoco Prod. Co., 

794 F.2d 967, 970 (5th Cir. 1986) (citing Kaiser Aluminum & Chem. Sales, Inc. v. Avondale 

Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)); see also Jordan v. Open MRI of Dallas 

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LLC, Civ. A. No. 3:19-cv-2269-S, 2020 WL 3405233, at *2 (N.D. Tex. June 18, 2020) 

("[ A ]!though defendants bear the burden of pleading and proving affirmative defenses, where facts 

alleged in plaintiffs pleadings make clear that the claim is barred, dismissal under Rule 12(b)(6) 

may be granted." (internal quotation marks and citation omitted)). 

III. ANALYSIS 

A. Administrative Exhaustion 

First, the Court considers Defendant's argument that Plaintiffs Title VII and Rehabilitation 

Act claims are barred due to her failure to exhaust administrative remedies. Mot. 6. Before seeking 

relief in federal court, employment discrimination plaintiffs bringing claims under Title VII and 

the Rehabilitation Act must exhaust their administrative remedies. Taylor v. Books A Million, Inc., 

296 F.3d 376, 378-79 (5th Cir. 2002) (citation omitted); 29 U.S.C. § 794a (adopting by reference 

the enforcement scheme and remedies established under Title VII). The administrative exhaustion 

requirement is not jurisdictional; it is a precondition to suit that is treated as an affirmative defense. 

Stroy v. Gibson, 896 F.3d 693,698 (5th Cir. 2018) (citations omitted); Davis v. Fort Bend County, 

893 F.3d 300,307 (5th Cir. 2018) (citation omitted). 

Plaintiffs filing claims under Title VII and the Rehabilitation Act have ninety days to file 

a civil action in federal court after receipt of "final agency action." 42 U.S.C. § 2000e-16(c); 

29 C.F.R. § 1614.407(a); McCloud v. McDonough, 2023 WL 2525656, at *2 (5th Cir. 2023) 

(citation omitted). "[S]trict compliance with§ 2000e-16(c) is a necessary predicate to a Title VII 

suit." Irwin v. Dep't of Veterans Ajfs., 498 U.S. 89, 94 (1990) (citation omitted). Thus, the Court 

must determine what constitutes receipt of final agency action. In a case involving 42 U.S.C. § 

2000e-5(f)(l ), the Fifth Circuit held that "the 90-day period oflimitation ... begins to run on the 

date that the EEOC right-to-sue letter is delivered to the offices of formally designated counsel or 

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to the claimant." Ringgold v. Nat'! Maint. Corp., 796 F.2d 769, 770 (5th Cir. 1986) (citation 

omitted). And the Fifth Circuit has held that Section 2000e-16(c), the statutory provision at issue 

in this case, "should be viewed as analogous to [Section] 2000e-5(f)(l )." Carrizal v. Brennan, 834 

F. App'x. 915, 918 (5th Cir. 2020) (citation omitted). Thus, the ninety-day period under Section 

2000e-16( c) begins when final agency action 1 is delivered to either the claimant or her counsel. 

Here, Defendants claim that Plaintiffs Title VII and Rehabilitation Act claims should be 

dismissed "because [Plaintiff] filed her federal complaint too late~five days after the deadline to 

bring suit in federal court." Mot. 8. Defendants contend that the ninety-day limitations period 

began on July 7, 2022, the date Defendants issued and sent the Final Order. Id. In support of their 

argument, Defendants provide the Final Order and the email transmitting the Final Order to 

Plaintiff and Plaintiffs counsel ("Transmittal Email") [ECF No. 8-3].2 The Final Order is attached 

to the Motion, incorporated by reference in Plaintiffs Complaint, and central to Plaintiff's claim. 

See George, 36 F.4th at 619 (citation omitted); Compl. 16. Accordingly, in evaluating the Motion, 

the Court considers the factual allegations in the Complaint and the Final Order. 

In her Complaint, Plaintiff alleges that she received the Final Order"[ o ]nor about July 12, 

2022," Compl., 6, which the Court accepts as true. Taylor, 296 F.3d at 378 (citation omitted). 

Neither the Complaint nor the Response addresses when the Final Order was delivered to 

Plaintiffs counsel. Plaintiff contends that although the Final Order was sent on July 7, 2022, the 

ninety-day period did not begin until July 12, 2022, the date Plaintiff received the email. Resp. 3. 

Plaintiff further argues that her receipt of the Final Order fell within the period prescribed by the 

1 Here, it is undisputed that the Final Order was the VA's final agency action. 

2 Neither Plaintiff nor Defendants seek to convert the Motion into a motion for summary judgment, and the 

Court declines to exercise its discretion to do so. Therefore, the Court will not consider the Transmittal 

Email, as it is extrinsic to the pleadings. 

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Certification of Service. Id. The Certification of Service reads, in relevant part: "For timeliness 

purposes, it shall be presumed that the parties received the Final Order within five (5) calendar 

days after the date it was sent via electronic mail." See Final Order 5. 

Viewing the facts alleged in the Complaint and Final Order as true and in the light most 

favorable to the plaintiff, the Court finds that Plaintiff had ninety days from July 12, 2022-that 

is, until October 10, 2022-to file suit. The Complaint was thus timely filed. And because all of 

the elements of the exhaustion defense have not been met on the face of the pleadings, Defendants 

are not entitled to dismissal under Rule 12(b)(6) on the basis that the action is untimely. See Clark, 

794 F.2d at 970 (citation omitted). 

B. Section 1981 and ADA Claims 

The Court now considers the additional arguments for dismissal raised by Defendants in 

the footnotes of their Motion.3 With respect to Defendants' challenge to Plaintiff's claims under 

42 U,S.C. § 1981 and the ADA, see Mot. 6 n.4, the Fifth Circuit has held that "[T]itle VII provides 

the exclusive remedy for employment discrimination claims raised by federal employees." Jackson 

v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996) (citation omitted); see also Sapp v. Potter, 413 F. 

App'x 750, 753 (5th Cir. 2011) (affirming dismissal of Section 1981 claims based on "clear 

precedent" holding that Title VII is the exclusive remedy for claims of racial discrimination in 

federal employment). Therefore, Plaintiff's Section 1981 claim cannot survive. 

As to Plaintiff's claim under the ADA, Defendants correctly maintains that "the 

Rehabilitation Act-not the ADA-applies to federal agencies." Mot. 6 n.4. Government agencies 

are expressly excluded from the ADA's definition of"employer." See 42 U.S.C. § 12111(5)(B)(i) 

("The term 'employer' does not include-the United States [or] a corporation wholly owned by 

3 Plaintiff did not contest either argument in her Response. 

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the government of the United States. , , .").Asa result, Plaintiffs claim under the ADA also fails. 

See Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007) (dismissing ADA claim brought 

against the United States Army Corps of Engineers, a federal government employer). 

C. Claims Against tile Department of Veterans Affairs 

Finally, the Court considers Defendants' assertion that McDonough in his official capacity 

is the proper defendant for Plaintiffs claims. Although Defendants concede that "Plaintiff properly 

brings claims against ... McDonough in his official capacity as head of the agency," Defendants 

argue that Plaintiffs claims against the VA should be dismissed because the agency itself is not a 

proper party. Mot. 2 n. l. The Court agrees. "Under Title VII and the Rehabilitation Act the proper 

defendant is 'the head of the department, agency, or unit, as appropriate.' Honeycutt v. Long, 861 

F.2d 1346, 1349 (5th Cir. 1988) (citing 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a(a)(1)). In this 

case, only McDonough, in his capacity as head of the VA, is the proper defendant. See id.; 

Skoczylas v. Fed. Bureau of Prisons, 961 F.2d 543, 544 (5th Cir. 1992) (finding that the only 

proper defendant for the plaintiffs discrimination claims was "the head of the department, agency, 

or unit" (quoting 42 U.S.C. § 2000e-16(c))). 

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IV. CONCLUSION 

For the aforementioned reasons, the Court GRANTS IN PART and DENIES IN PART 

Defendants' Motion to Dismiss [ECF No. 8]. The Court DENIES the Motion as to Defendants' 

contention that Plaintiff failed to exhaust administrative remedies. The Court GRANTS the 

Motion and DISMISSES WITH PREJUDICE Plaintiffs claims against Defendant Department 

of Veterans Affairs, as well as Plaintiffs claims under 42 U.S.C. § 1981 and the ADA. 

SO ORDERED. 

SIGNED March 26, 2024. 

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