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[DO NOT PUBLISH]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
____________________
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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.
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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.
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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).
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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.