United States Court of Appeals

For the Eighth Circuit 

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No. 20-1898

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Rodney Michael Reynolds

 Plaintiff - Appellant

v.

Little Rock School District; Michael Poore, In his official capacity as 

Superintendent of the Little Rock School District

 Defendants - Appellees

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Appeal from United States District Court 

for the Eastern District of Arkansas - Central

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Submitted: April 15, 2021

Filed: August 2, 2021

[Unpublished]

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Before LOKEN, WOLLMAN, and STRAS, Circuit Judges. 

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PER CURIAM.

 After choosing to retire rather than face termination, Rodney Reynolds sued 

his former employer for retaliation under the Rehabilitation Act. The question here 
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is whether he exhausted his administrative remedies. Like the district court,

1 we 

conclude that he did not, so we affirm the dismissal of his complaint. 

I. 

Reynolds, who served for many years as a special-education teacher in the 

Little Rock School District, frequently complained about the inequality in

instruction and resources for disabled students. Over time, the school district

became less receptive to his complaints.

With tensions growing, the school district decided to transfer him to a new 

position. About a year before, Reynolds had suffered a family tragedy that caused 

him to develop anxiety. He protested the new assignment, which he feared would 

worsen his anxiety, but to no avail. 

As he feared, his anxiety became worse, to the point where he had to take 

medical leave. After four months away, an employee-relations specialist called him

to ask whether he would be returning to work. When he said “not at [this] time,”

she allegedly gave him two choices: retire or be fired. Reynolds chose retirement. 

When Reynolds later sued under the Rehabilitation Act, his theory was that 

the school district retaliated against him due to his complaints about the treatment of 

disabled students. See 29 U.S.C. § 794(a); Hill v. Walker, 737 F.3d 1209, 1218 (8th 

Cir. 2013) (recognizing that retaliation claims may be brought under the

Rehabilitation Act). The district court dismissed the case because, among other 

reasons, he had failed to exhaust his administrative remedies. 

1

The Honorable Billy Roy Wilson, United States District Judge for the Eastern 

District of Arkansas.
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II. 

 Referenced in and attached to Reynolds’s complaint is a charge he filed with 

the Equal Employment Opportunity Commission. In it, he did not mention 

retaliation or the Rehabilitation Act. Nor did he check the “retaliation” box on the 

form, marking only the one for “disability” discrimination instead. His sole claim

was that the school district’s decision to assign him to a new position reflected a 

failure to accommodate his disability. In short, the theory he now raises is not the 

same one that was described in his charge.

Assuming that Reynolds had to exhaust his administrative remedies in these 

circumstances,2 his position is that he got close enough by mentioning the 

reassignment. Even liberally construing the charge, however, we cannot invent “a 

claim [that] simply was not made.” Sellers v. Deere & Co., 791 F.3d 938, 943 (8th 

Cir. 2015) (quotation marks omitted). Nor can we say that the claim he described—

one for disability discrimination—is “like or reasonably related to” the one he now 

makes for retaliation. Weatherly v. Ford Motor Co., 994 F.3d 940, 944–45 (8th Cir. 

2021) (quotation marks omitted) (“We have long treated discrimination and 

retaliation claims as distinct for exhaustion purposes . . . .”). The latter claim, in 

other words, remains unexhausted. 

2

The briefing does not addressthis threshold question. See Gardner v. Morris, 

752 F.2d 1271, 1278 (8th Cir. 1985) (requiring exhaustion under the Rehabilitation 

Act). But see Morgan v. U.S. Postal Serv., 798 F.2d 1162, 1164–65 (8th Cir. 1986) 

(per curiam) (explaining that exhaustion is not required for actions brought under 

section 504 “against employers receiving federal assistance”). Indeed, the school 

district mentioned during oral argument that there was “no debate” on this point, 

perhaps because Reynolds’s position was that he had exhausted, not that it was 

unnecessary for him to do so. See United States v. Adkins, 636 F.3d 432, 434 n.3 

(8th Cir. 2011) (explaining that arguments not raised by the appellant are waived). 

Given that the parties have litigated this case as if Reynolds needed to exhaust, we 

will proceed under that assumption too.
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Still, Reynolds argues it was too early for the district court to dismiss the case 

based on an affirmative defense. Ordinarily, he would be right, but not when “the 

complaint itself establishes the defense.” Id. at 943 (quotation marks omitted); see

also Brooks v. Midwest Heart Grp., 655 F.3d 796, 801 (8th Cir. 2011) (affirming the

Rule 12(b)(6) dismissal of age-discrimination and retaliation claims for failure to 

exhaust when there was no mention of them in the charge). Here, Reynolds’s 

complaint discusses the charge, quotes it at length, and even attaches it as an exhibit. 

Under these circumstances, he has “pleaded himself out of court.” Weatherly, 994 

F.3d at 944. 

III. 

We accordingly affirm the judgment of the district court.

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