Lola M. Smith v. Secretary, U.S. Department of the Army ( 2022 )


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  • USCA11 Case: 21-12478      Date Filed: 04/08/2022   Page: 1 of 5
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-12478
    Non-Argument Calendar
    ____________________
    LOLA M. SMITH,
    Plaintiff-Appellant,
    versus
    SECRETARY, U.S. DEPARTMENT OF THE ARMY,
    Defendant-Appellee.
    ____________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    D.C. Docket No. 1:20-cv-00333-RAH-SRW
    ____________________
    USCA11 Case: 21-12478        Date Filed: 04/08/2022     Page: 2 of 5
    2                      Opinion of the Court                21-12478
    Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
    PER CURIAM:
    Lola Smith, a pro se plaintiff, alleged that the U.S. Army
    forced her into early retirement, rather than accommodate her
    medical need for a job with less time spent at the computer. But
    she did not contact the Equal Employment Opportunity
    Commission about the Army’s decision until almost five months
    later. Due to that delay, the district court dismissed her complaint.
    We agree and affirm.
    In Smith’s account, she was working as a civilian employee
    in the U.S. Army Medical Command when, late in the spring of
    2012, she began experiencing health problems. She decided to seek
    early retirement under the federal government’s Voluntary Early
    Retirement Authority, but withdrew her application when she
    learned that she would not receive an incentive payment for
    retiring early. But her health problems did not subside. In June
    2012 her central retinal vein became occluded, and she went on sick
    leave until August 1, 2012. She also requested and took additional
    leave under the Family Medical Leave Act—leave that the Army
    eventually approved retroactively.
    While Smith was on leave, and without her knowledge, the
    Army filed and then approved an early retirement application on
    her behalf. She wanted to keep her job, though, so she withdrew
    the application on August 10 and returned to work on August 15.
    USCA11 Case: 21-12478        Date Filed: 04/08/2022    Page: 3 of 5
    21-12478               Opinion of the Court                       3
    But she continued to struggle. After her first day at work using the
    computer, her eyes hurt so much that she called in sick the next
    day. She continued to experience health problems over the next
    month, and on September 19, applied again for early retirement.
    That day the Army told her that, if she could be off the
    payroll by September 30, her earlier approval would carry over to
    the new application. Seven days later, however, she withdrew this
    application too. She noted that she had considered accepting early
    retirement for medical reasons, but had concluded that retiring
    would not be “best for [her] family financially.” She also asked for
    a job that did not involve looking at computers all day. The Army
    said no such job was available. It also denied her request to
    withdraw her early retirement application on the ground that she
    had signed a document saying that she would not withdraw. Her
    early retirement began on September 30, 2012.
    Several months later—in February 2013—she contacted the
    Equal Employment Opportunity Commission, alleging that the
    Army had engaged in disability discrimination against her. After
    seven years of proceedings in several agencies, the EEOC gave
    Smith a letter affording her a right to sue.
    Smith then filed a pro se suit against the Secretary of the
    Department of the Army in federal district court. But the district
    court soon dismissed that suit, concluding that Smith had not
    contacted the EEOC in time, and thus had failed to timely exhaust
    her administrative remedies. This appeal followed.
    USCA11 Case: 21-12478             Date Filed: 04/08/2022         Page: 4 of 5
    4                          Opinion of the Court                      21-12478
    We review the dismissal of a complaint de novo, accepting
    any factual allegations in it as true and construing them in the
    plaintiff’s favor. See Pinson v. JPMorgan Chase Bank, Nat’l Ass’n,
    
    942 F.3d 1200
    , 1206 (11th Cir. 2019). Where, as here, the complaint
    is pro se, we construe those allegations liberally. Mitchell v.
    Peoples, 
    10 F.4th 1226
    , 1229 (11th Cir. 2021). We can also consider
    a document attached to a motion to dismiss when the document is
    undisputed and central to a plaintiff’s claim. Day v. Taylor, 
    400 F.3d 1272
    , 1276 (11th Cir. 2005).
    Under a liberal construction of Smith’s complaint, we treat
    her claim against the Secretary as one under the Rehabilitation
    Act, 1 which “prohibits federal agencies from discriminating in
    employment against individuals with disabilities.” Ellis v. England,
    
    432 F.3d 1321
    , 1326 (11th Cir. 2005); see 
    29 U.S.C. § 794
    (a). To
    bring such a claim, a plaintiff must begin administrative review of
    the alleged discriminatory conduct with the relevant agency—
    here, the EEOC—“within 45 days of the alleged discriminatory
    act.” Shiver v. Chertoff, 
    549 F.3d 1342
    , 1344 (11th Cir. 2008); see
    
    29 C.F.R. § 1614.105
    (a)(1). Beyond that time, the claim usually “is
    barred for failure to exhaust administrative remedies.” Shiver, 
    549 F.3d at 1344
    .
    1 Smith checked a box stating that she brought her claim under the Americans
    with Disabilities Act, but that Act does not cover discrimination claims against
    the federal government. See 
    42 U.S.C. § 12111
    (5)(B)(i).
    USCA11 Case: 21-12478          Date Filed: 04/08/2022      Page: 5 of 5
    21-12478                Opinion of the Court                           5
    If the “discriminatory act results in a personnel action,” like
    the forced retirement here, the clock starts ticking on that action’s
    effective date. 
    Id.
     That date was September 30, 2012, which
    occurred much more than 45 days before Smith contacted the
    EEOC in February 2013.
    Smith notes that this deadline can be extended if “she did not
    know and reasonably should not have [] known that the
    discriminatory matter or personnel action occurred.” 
    29 C.F.R. § 1614.105
    (a)(2). But she knew of both alleged discriminatory
    actions—the refusal to accommodate her request for a job with less
    screen time and the forced retirement—when they occurred.
    True, she asserts that she did not realize those actions were
    discriminatory until the end of January 2013, when she was denied
    Social Security Disability Insurance. Only then, she says, did she
    begin to research her other legal rights—such as her possible
    eligibility for disability retirement. Yet her failure to investigate her
    legal options sooner does not mean that she did not know that the
    Army had forced her into retirement or failed to accommodate her
    alleged disability. We therefore have no reason to excuse her
    failure to contact the EEOC within its 45-day time limit.
    The district court’s dismissal is AFFIRMED.
    

Document Info

Docket Number: 21-12478

Filed Date: 4/8/2022

Precedential Status: Non-Precedential

Modified Date: 4/12/2022