IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60901

Summary Calendar

RICKY SMITH

Plaintiff–Appellant

v.

POST MASTER GENERAL JOHN E. POTTER

Defendant–Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

3:08-CV-660

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges

PER CURIAM:

*

Plaintiff–Appellant Ricky Smith (Smith) appeals the district court’s

decision to grant Defendant–Appellee’s motion to dismiss for lack of subject

matter jurisdiction for failure to exhaust administrative remedies or in the

alternative for summary judgment. Additionally, Smith appeals the district

court’s decision to stay discovery pending the ruling on the Appellee–Defendant’s

United States Court of Appeals

Fifth Circuit

F I L E D

October 13, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. 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 5TH CIR.

R. 47.5.4.

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motion to dismiss. For the following reasons, we AFFIRM the lower court’s decisions.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time of the complaint, the Appellant, Ricky Smith, was a forty year

old man employed as a letter carrier for the United States Postal Service

(USPS). From April through September 2008, Appellant filed eight informal

complaints alleging discrimination to the Equal Employment Office (EEO).

These informal complaints of discrimination concerned the failure to schedule

Smith as much as other employees during a six month time frame, denial of a

lunch break, and subjection to investigatory interviews.

As required by the statute, Smith submitted notice to the EEOC of his

intent to file a claim in district court under the Age Discrimination in

Employment Act (ADEA) on August 7, 2008. The ADEA requires a thirty day

waiting period before an employee can file the claim in district court. On

September 20, 2008, Smith had not yet filed a claim in district court when he

filed a formal Complaint of Discrimination with the EEO alleging discrimination

on the basis of age, disability, and retaliation. Specific incidents for EEO

investigation included: not being given as many work hours as other employees

on April 18, 2008 and during June 4–July 25, 2008; being told to report to

collections and denied lunch on July 15; being given an investigative interview

about scan points on July 30, 2008; being denied overtime hours on August 11,

2008; being reassigned to North Station on August 11, 2008; being denied rights

to hold down a route on August 30, 2008; and being required to provide medical

documentation on September 22, 2008. On October 7, 2008, the USPS sent

Smith a writing partially accepting and partially dismissing Smith’s EEO

Formal Complaint. The writing detailed which incidents would and would not

be part of the EEO’s investigation.

After receiving the partial acceptance/partial denial letter, but before a

final determination on the EEO formal complaint, Smith filed suit against the

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USPS in district court, the dismissal of which Smith now appeals. In his federal

complaint, Smith alleges coercion by a supervisor in signing a statement

concerning a grievance filed by another employee; a sustained campaign of

“discrimination and fear” and inadequate maintenance of “standards of integrity,

conduct, and concern for public safety” by Kirby Ragsdale, a supervisor;

retaliation for using sick leave, and an assault by a representative of Ragsdale

who tried to grab his shoulder during an investigative review on July 29, 2008.

Although Smith does not organize his federal complaint by counts, Smith

cites the following statutes as a basis for jurisdiction: the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. § 633(a); the Rehabilitation Act of

1973, 29 U.S.C. §§ 791 et seq.; the Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. §§ 12112, 12203; and portions of the Civil Service Reform Act

of 1978 (CSRA), 5 U.S.C. §§ 2301, 2302. Appellee moved to dismiss for failure

to exhaust administrative remedies or in the alternative for summary judgment.

Appellee also moved to stay discovery pending the court’s ruling on the motion

to dismiss, which the district court granted. The district court concluded that

the scope of the EEO administrative proceedings were sufficiently broad to

include the issues in the federal complaint. Because the EEO had not yet made

a final ruling on Smith’s discrimination complaint, the district court granted the

motion to dismiss for failure to exhaust administrative remedies.

On appeal, Smith claims that his federal complaint contained separate and

distinct issues than his EEO discrimination complaint, and therefore that the

dismissal for lack of subject matter jurisdiction was improper. Smith also

appeals the district court’s decision to stay discovery pending the motion to

dismiss.

II. DISCUSSION

A. Subject Matter Jurisdiction and Exhaustion of Remedies

1. Jurisdiction and Standard of Review

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We have jurisdiction over the final judgment of the district court under 28

U.S.C. § 1291. This court reviews the grant of a 12(b)(1) motion to dismiss for

lack of jurisdiction de novo. Taylor v. Acxiom Corp., 612 F.3d 325, 331 (5th Cir.

2010). Motions filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure allow a party to challenge the subject matter jurisdiction of a district

court to hear a case. FED. R. CIV. P. 12(b)(1). A case must be dismissed if the

court finds that it lacks subject matter jurisdiction. FED. R. CIV. P. 12(h)(3). The

party asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to

dismiss. Ramming v. United States, 281 F.3d 158,161 (5th Cir. 2001) (citations

omitted).

A court can find that subject matter jurisdiction is lacking based on “(1)

the complaint alone; (2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts

plus the court’s resolution of disputed facts.” Ramming, 281 F.3d at 161 (citing

Barrerra-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1992). When

a defendant submits a factual attack on the complaint, he must provide support

with “affidavits, testimony, or other evidentiary materials.” Patterson v.

Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Given the burden of proof on the

party asserting jurisdiction, the plaintiff must submit evidence to prove, by a

preponderance of the evidence, that the court does have jurisdiction based on the

complaints and evidence. Id. Courts are to hold pro se litigants to less stringent

pleading standards than other parties. See Estelle v. Gamble, 429 U.S. 97, 106

(holding that pro se pleadings are to be liberally construed); see also Haines v.

Kerner, 404 U.S. 519, 520–21 (1972).

2. Discussion

In his complaint, Smith lists several statutes as a basis for jurisdiction: the

Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a; the

Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq.; the Americans with

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Disabilities Act (ADA), 42 U.S.C. §§ 12112, 12203; and portions of the Civil

Service Reform Act (CSRA), 5 U.S.C. §§ 2301, 2302. We address the

plaintiff–appellant’s claims under each of these statutes in turn.

A. ADEA Claims

Defendant–Appellee contends that Smith had not exhausted his

administrative remedies as required by the ADEA because there had been no

final determination by the EEO on his discrimination claims. Smith argues that

his federal claims are separate and apart from his EEO claims, and therefore

that he did not need to exhaust administrative remedies for these claims.

When a federal employee pursues a claim of age discrimination under the

ADEA, the individual may gain relief using one of two procedural paths.

Stevens v. Dept. of Treasury, 500 U.S. 1, 5 (1991); White v. Frank, 718 F. Supp.

592, 595 (W.D. Tex. 1989), adopted by White v. Frank, 895 F.2d 243, 243–44 (5th

Cir. 1990) (per curiam). If the employee forgoes his administrative remedies, he

may proceed directly to federal district court. Stevens, 500 U.S. 1, 5–6 (1991);

White, 718 F. Supp. at 595; see 29 U.S.C. § 633a(d). Alternatively, the employee

may choose the administrative route and file a formal complaint with the EEO

of the federal agency. Stevens, 500 U.S. at 5; White, 718 F. Supp. at 595; see 29

U.S.C. § 633a(b). Once an employee proceeds down the administrative route, he

“must completely exhaust his administrative remedies before commencing suit

in federal court.” White, 718 F. Supp at 595. Essentially, the employee must

wait for a final determination from the EEO.

Where the agency notifies the employee in writing that it believes that

some but not all of the claims in a complaint should be dismissed and gives its

rationale, such notification is not final or appealable until final action is taken

on the remainder of the complaint. See 29 C.F.R. § 1614.107(b); see also

Franklin v. Potter, 600 F. Supp. 3d 38, 61 (D.D.C. 2009) (“when the agency only

partially dismisses a complaint, there is no final action”); Puckett v. Potter, 342

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F. Supp. 2d 1056, 1065 (M.D. Ala. 2004) (“The effect of an agency’s dismissal .

. . depends on whether the agency dismisses all of the complainant’s claim or

only some of them.”).

We agree with the government and the district court that Smith failed to

exhaust his administrative remedies because the actions alleged in the federal

complaint are within the scope of the administrative proceedings and there was

no final determination from the EEO on the EEO formal complaint. The scope

of the EEO administrative proceedings and whether a final determination was

made are paramount in resolving the jurisdictional issue.

First, we examine whether the EEO administrative proceedings were

broad enough to encompass Smith’s federal claims. In his federal complaint,

Smith alleges that his age motivated several discriminatory and retaliatory

actions including: a sustained campaign of “discrimination and fear” by Kirby

Ragsdale, a supervisor; inadequate maintenance of “standards of integrity,

conduct, and concern for public safety” by Ragsdale and the USPS; removal of

Smith from the work schedule and limitation of hours on April 18, 2008 and May

31st through June 6th; harassing requests for medical records; an investigative

interview on July 29th, 2008; and an assault by a representative of Ragsdale at

the investigative interview, an incident that Smith explained in his response is

intended to demonstrate discrimination and is not intended to state a separate

cause of action.

Each of the incidents that Smith lists on his federal complaint falls under

the purview of Smith’s EEO complaint. Smith’s EEO complaint generally

alleges discrimination and retaliation on the basis of age. In support of his

allegations, Smith lists grievances including the limitation of his scheduled

hours to less than other employees by management and Ragsdale over a six

month period that included the time periods listed on his federal complaint. The

EEO complaint and investigation also include a request for medical

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documentation on September 22, 2008 that Smith implies is a result of

retaliatory harassment and discrimination on his federal complaint. The EEO

complaint and investigation also discuss an investigative interview about points,

at which Smith alleges the assault by Ragsdale’s representative took place.

Given that the EEO complaint was broad enough to include all these

claims, Smith had to exhaust his administrative remedies before pursuing

judicial relief after he chose the administrative procedural path. He did not

exhaust his administrative remedies because he proceeded to court only after a

partial acceptance and dismissal. A partial acceptance and dismissal is not a

final determination. To exhaust his remedies, Smith had to wait until final

action was taken on the rest of his complaint. The district court properly

granted Appellee’s motion to dismiss for failure to exhaust administrative

remedies under the ADEA.

B. Rehabilitation Act Claims

In addition to age discrimination and retaliation, Smith alleges

discrimination and retaliation because of his disability. He alleges that both the

scheduling decisions and the “ineligible” grade on the postal exam were

motivated by disability. Smith lists both the Rehabilitation Act and the ADA as

bases for jurisdiction. As we will explore in the next section, the ADA does not

allow claims against the federal government, thus Smith must assert his

disability claims under the Rehabilitation Act.

The Rehabilitation Act adopts the “remedies, procedures, and rights set

forth in section 717 of the Civil Rights Act of 1964.” 29 U.S.C. 794a(a)(1). Thus,

“the Rehabilitation Act . . . established a private right of action subject to the

same procedural constraints (administrative exhaustion, etc.) set forth in Title

VII of the Civil Rights Act . . . .” Prewitt v. United States Postal Serv., 662 F.2d

292, 304 (5th Cir. Unit A 1980). In contrast to the ADEA, under the

Rehabilitation Act, an employee can only pursue judicial relief by one procedural

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path. As a precondition to bringing an action in federal court, a complaining

employee “must exhaust their administrative remedies by filing [the] charge of

discrimination with the EEO division of their agency.” Pacheco v. Mineta, 448

F.3d 783, 788 (5th Cir. 2006) (discussing the exhaustion requirement for Title

VII claims).

To exhaust administrative remedies, the employee must either (1) receive

notice of final action taken by the agency or by the EEOC upon an appeal from

a decision or order of the agency, or (2) wait until 180 days have passed from the

filing of the administrative complaint without final agency action. 42 U.S.C. §

2000-16(c). As explained above, where the agency notifies the employee in

writing that some claims in an EEO complaint should be dismissed but not all

of the claims, such notification is not a final action or appealable until final

action is taken on the remainder of the complaint. See 29 C.F.R. § 1614.107(b);

see also Franklin, 600 F. Supp. 3d at 61; Puckett, 342 F. Supp. 2d at 1065.

Exhaustion of administrative remedies is a prerequisite to federal subject

matter jurisdiction. Tolbert v. U.S., 916 F.2d 245, 247 (5th Cir. 1990) (citations

omitted) (examining a Title VII case). A failure to comply with this requirement

deprives the district court of jurisdiction. Id. Where an employee has

prematurely filed an action in district court, the issuance of a final decision by

the agency before a district court can dismiss the claim does not cure the

jurisdictional defect. Id. at 249.

We agree with the government and the district court that Smith failed to

exhaust his remedies. Though Smith does not specify which incidents are

brought under each statute, it seems that Smith is claiming that his disability

motivated USPS management to limit his hours, deny overtime, and give a

rating of “ineligible” in the writing section of the USAP Exam 600. As we

discussed above, the limitation of his hours and denial of overtime are

encompassed by his EEO complaint, which alleges discrimination on the basis

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of age, disability, and retaliation. Smith has failed to exhaust his remedies on

these claims because he has not received a final determination from the EEO on

his EEO complaint. For the “ineligible” rating and any other claims he may be

raising under the Rehabilitation Act that are not encompassed in the EEO

complaint, Smith has failed to exhaust his remedies because he has not pursued

administrative remedies first. The district court properly granted the motion to

dismiss for lack of jurisdiction for the Rehabilitation Act claims.

C. ADA claims

Smith also lists the ADA as a jurisdictional basis and alleges claims based

on discrimination due to his disability. Under the ADA, entities covered by the

statute may not discriminate on the basis of an employee’s disability. 42 U.S.C.

§12112. Section 12111 defines “covered entity” as an employer or employment

agency. 42 U.S.C. § 12111(2). However, section 12111 goes further to say that

the term “employer” excludes the entire federal government from coverage under

the ADA. 42 U.S.C. §12111(5)(B)(i); Henrickson v. Potter, 327 F.3d 444, 447 (5th

Cir. 2003). The USPS is part of the federal government. 39 U.S.C. § 201 (“There

is established, as an independent establishment of the executive branch of the

Government of the United States, the United States Postal Service.”). Thus, we

agree with the district court that no claim against the USPS is permitted under

the ADA.

D. CSRA Claim

Smith also cites to 5 U.S.C. section 2301 (Merit System Principles) and 5

U.S.C. section 2303 (Prohibited Personnel Practices), invoking the Civil Service

Reform Act as a basis for federal question jurisdiction. As the district court

notes, the basis of the plaintiff’s CSRA claim is not clear but Smith seems to

indicate that he is pursuing a “mixed claim”—a claim where the adverse

employment action is motivated in whole or in part by prohibited discrimination

that is brought before the EEO.

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Under the CSRA framework, a postal service employee may pursue relief

along two procedural paths: The employee may either (1) bring a mixed

complaint before the EEO or (2) bring a mixed appeal before the Merit Systems

Protection Board (MSPB). 29 C.F.R. § 1614.302(a) (defining “mixed case

complaint” and “mixed case appeal”); 5 U.S.C. § 7702. Pursuant to subsection

(b) of C.F.R. section 1614.302, the employee must elect one of these paths; he

cannot do both. 29 C.F.R. §1614.302(b). The EEO or the MSPB will decide both

the issues of discrimination and the adverse employment action. 29 C.F.R. §

1614.302; 5 C.F.R. §1201.156 (“the judge will decide both the issue of

discrimination and the appealable action within 120 days after the appeal is

filed”). Once the employee who initiates either of these procedural paths

receives a final determination, the employee may pursue judicial review of the

final determination. 29 C.F.R. §1614.310; 5 U.S.C. §7703(a)(1) & (b)(1)–(2).

Cases of discrimination subject to provisions of section 7702 “shall be filed under

section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) [or] section

15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c))

. . . .” 5 U.S.C. § 7703(b)(2). As discussed above these provisions require

exhaustion of administrative remedies before the federal court may have

jurisdiction.

Smith has failed to exhaust his administrative remedies because he has

not received a final determination from the EEO or the MSPB. Accordingly, we

agree with the district court that it lacks jurisdiction to hear his CSRA claims.

B. Discovery Issue

1. Standard of Review

The control of discovery “is committed to the sound discretion of the trial

court and its discovery rulings will be reversed only where they are arbitrary or

clearly unreasonable.” Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1008, 1012 (5th

Cir. 1986) (citations omitted). Accordingly, we review the trial court’s grant of

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the motion to stay discovery pending the motion to dismiss for abuse of

discretion. Richardson v. Henry, 902 F.2d 414, 417 (4th Cir. 1990).

2. Discussion

Smith argues that the trial court’s grant of the motion to dismiss was

inappropriate because it did not to allow adequate time for discovery as required

by Rule 56(c). Here, the issues to be examined in the motion to dismiss for lack

of jurisdiction or in the alternative for grant of summary judgment were largely

legal rather than factual in nature. Thus, we find no abuse of discretion in

staying discovery.

AFFIRMED.

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