Duenas v. Henderson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 01-50071
Summary Calendar
____________________
EVERARDO DUENAS, JR.
Plaintiff–Appellant
v.
WILLIAM J. HENDERSON, Postmaster General
United States Postal Services
Defendant–Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
No. SA-00-CA-069-EP
November 30, 2001
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.
PER CURIAM:*
In district court, Plaintiff-Appellant Everardo Duenas, Jr.
asserted a disability discrimination claim against the United
States Postal Service under the Rehabilitation Act of 1973, 29
U.S.C. § 701 et seq.. Duenas appeals from the district court’s
*
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that this opinion should not be published and is not precedent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.
grant of summary judgment in favor of Defendant-Appellee William
J. Henderson, Postmaster General of the United States Postal
Service. For the following reasons, we AFFIRM the judgment of
the district court.
I. Factual and Procedural History
Plaintiff–Appellant Everardo Duenas, Jr., a Gulf War
veteran, wears a prosthesis for his left leg, which was amputated
above the knee as a result of a combat injury. In 1996, Duenas
began the process of applying for employment with the United
States Postal Service (“the USPS”). Because he is a veteran,
Duenas possessed preferential hiring status and was pre-selected
for employment by the USPS. After pre-selection, the USPS
requested that Duenas undergo a physical examination by a USPS-
chosen doctor. After the examination, and on or about October
28, 1997, Duenas received a letter denying his application for
employment based upon a finding that he was “medically unable” to
perform the job.
On January 26, 1998, almost ninety days after receiving the
letter denying him USPS employment, Duenas filed an Equal
Employment Opportunity (“EEO”) complaint alleging disability
discrimination. On March, 31, 1998, the USPS issued a final
decision rejecting Duenas’s claim of discrimination on the sole
2
basis that his complaint was untimely.1 Duenas appealed this
decision to the Office of Federal Operations (“OFO”) of the Equal
Employment Opportunity Commission (“EEOC”). Ultimately, the OFO
affirmed the final USPS decision and denied Duenas’s request for
reconsideration on the basis that Duenas’s EEO complaint was
untimely.
On June 12, 2000, Duenas filed a lawsuit in federal district
court against Defendant-Appellee William J. Henderson, Postmaster
General of the USPS (“the Postmaster General”). Duenas’s
petition alleged, among other things, disability discrimination
in violation of the Rehabilitation Act of 1973.2 On August 17,
2000, the Postmaster General filed a motion to dismiss, or, in
the alternative, for summary judgment arguing that all of
Duenas’s claims should be dismissed under Rules 12(b)(1)3 or
1
This decision was based upon an EEOC regulation that
provides:
An aggrieved person must initiate contact
with a Counselor within 45 days of the date
of the matter alleged to be discriminatory
or, in the case of personnel action, within
45 days of the effective date of the action.
29 C.F.R. § 1614.105(a)(1) (1999).
2
Duenas also pled: (1) disability discrimination in
violation of the Americans with Disabilities Act, (2) breach of
contract, (3) negligence, (4) intentional infliction of emotional
distress, (5) libel, defamation, and slander, and (6) negligent
investigation.
3
A Rule 12(b)(1) motion asserts the defense of “lack of
jurisdiction over the subject matter” of a claim. FED. R. CIV. P.
12(b)(1).
3
12(b)(6),4 or, in the alternative, for summary judgment under
Rule 56.5 With respect to Duenas’s Rehabilitation Act claim, the
Postmaster General argued that because Duenas failed to timely
exhaust his administrative remedies, dismissal or summary
judgment was proper. Duenas responded to this motion on November
6.6 On November 20, the district court issued an Order and
Judgment granting Defendant’s motion to dismiss, or, in the
alternative, for summary judgment on the grounds that Duenas did
not timely and properly exhaust his administrative remedies. The
Order does not specify whether the judgment is a Rule 56 summary
judgment or Rule 12(b) dismissal. Duenas timely appealed.
For several reasons, we view the district court’s judgment
as a summary judgment for the Postmaster General rather than as a
Rule 12(b)(6) dismissal.7 First, the language of Rule 12(b)
4
A Rule 12(b)(6) motion asserts the defense of “failure
to state a claim upon which relief can be granted.” FED. R. CIV.
P. 12(b)(6).
5
Rule 56 provides that summary judgment “shall be
rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c).
6
This response addressed the issues presented by Duenas’s
Rehabilitation Act claim but failed to address any of Duenas’s
six other claims asserted in the Original Petition. In his brief
before this court, Duenas states that he “conceded to the points
raised in Defendant’s [motion to dismiss] as to the other causes
of action.” Thus, we need not address them.
7
In the context of Duenas’s Rehabilitation Act claim, we
can assume that the district court’s judgment was not a Rule
4
requires the district court to treat the Postmaster General’s
motion as a motion for summary judgment if matters outside the
pleadings are considered. Rule 12(b) states:
If, on a motion asserting the defense
numbered (6) to dismiss for failure of the
pleading to state a claim upon which relief
can be granted, matters outside the pleadings
are presented to and not excluded by the
court, the motion shall be treated as one for
summary judgment and disposed of as provided
in Rule 56, and all parties shall be given
reasonable opportunity to present all
material made pertinent to such a motion by
Rule 56.
FED. R. CIV. P. 12(b). In support of its motion, the Postmaster
General produced substantial evidence, including an affidavit,
the October letter to Duenas denying him USPS employment,
Duenas’s pre-complaint counseling request, Duenas’s EEO
complaint, and all documents tracking Duenas’s EEO complaint
through the EEOC process. In such situations, Rule 12(b)
mandates that “the motion shall be treated as one for summary
judgment,” rather than as one for dismissal under Rule 12(b)(6),
unless the extra-pleading material is excluded by the district
court. Nothing in the record suggests that the district court in
12(b)(1) dismissal for lack of subject matter jurisdiction
because the failure to timely exhaust administrative remedies
does not deprive the court of subject matter jurisdiction. See
Henderson v. U.S. Veterans Admin., 790 F.2d 436, 439-40 (5th Cir.
1986) (holding that in the context of a Title VII claim, the
failure to file an EEO complaint before the thirty-day time limit
does not deprive the court of subject matter jurisdiction).
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this case excluded the extra-pleading material submitted by the
Postmaster General.
Second, the comprehensive nature of the extra-pleading
material suggests a summary judgment rather than a Rule 12(b)(6)
dismissal. When confronted with an ambiguous judgment similar to
that of the district court in the instant case, this court has
stated:
Rule 12(b)(6) gives a district court
“complete discretion to determine whether or
not to accept any material beyond the
pleadings that is offered in conjunction with
a Rule 12(b)(6) motion.” . . . “When the
extra-pleading material is comprehensive and
will enable a rational determination of a
summary judgment motion, the court is likely
to accept it, [but] when it is scanty,
incomplete, or inconclusive, the court will
probably reject it.”
Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 193 n.3
(5th Cir. 1988) (quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1366 (1969)). Because the extra-
pleading material submitted by the Postmaster General in support
of the motion was comprehensive, the district court probably
accepted that material and considered it when entering its
judgment.
Third, Duenas had ample notice that the district court could
treat the Postmaster General’s motion as a motion for summary
judgment rather than as a motion for dismissal. Once the motion
was filed, it was apparent that the Postmaster General submitted
material outside the pleadings in support of the motion. Duenas
6
had plenty of time to respond to the motion and accompanying
evidence and to submit his own summary judgment evidence for
consideration. See Isquith, 847 F.2d at 196 (holding that the
plaintiffs had sufficient notice of possible summary judgment
because the defendants submitted extra-pleading material in
support of a motion and because the plaintiffs had ample time to
respond to that material). For these reasons, we view the
district court’s judgment as a summary judgment for the
Postmaster General rather than a Rule 12(b)(6) dismissal.
II. Summary Judgment Standard of Review
We review a grant of summary judgment de novo, applying the
same standards as the district court. Chaney v. New Orleans Pub.
Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999). Summary
judgment is proper when “there is no genuine issue as to any
material fact and [] the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c). While we view the
evidence in a light most favorable to the non-movant, Coleman v.
Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997), in
order to avoid summary judgment, the non-movant must go beyond
the pleadings and his own affidavits and come forward with
specific facts indicating a genuine issue for trial, Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the evidence is
such that a reasonable jury could return a verdict for the non-
7
movant, there is a genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, if
the non-movant fails to establish facts in support of an
essential element of his claim, summary judgment is appropriate.
See Celotex, 477 U.S. at 322-23.
III. Duenas’s Rehabilitation Act Claim
Duenas must timely exhaust his administrative remedies
before he can file suit against the USPS in district court. See
Fitzgerald v. Sec’y of the U.S. Dep’t of Veterans Affairs, 121
F.3d 203, 206 (5th Cir. 1997). As part of the administrative
process, EEOC regulations require an aggrieved person to file an
EEO complaint within forty-five days of the allegedly
discriminatory personnel action. See 29 C.F.R.
§ 1614.105(a)(1).8 To mitigate the effect of this short time
limit, EEOC regulations provide for mandatory equitable tolling
of the forty-five-day time limit in certain circumstances:
The agency or the Commission shall extend the
45-day time limit . . . when the individual
shows that he or she was not notified of the
time limits and was not otherwise aware of
them, that he or she did not know and
reasonably should not have been (sic) known
that the discriminatory matter or personnel
action occurred, that despite due diligence
he or she was prevented by circumstances
beyond his or her control from contacting the
counselor within the time limits, or for
8
See supra note 1 for the full text of 29 C.F.R.
§ 1614.105(a)(1).
8
other reasons considered sufficient by the
agency or the Commission.
29 C.F.R. § 1614.105(a)(2) (1999). The burden is on Duenas to
show that circumstances warrant equitable tolling.
In this case, both parties agree that Duenas’s EEO complaint
was filed well after the forty-five-day time limit. The
Postmaster General argues that this fact makes Duenas’s EEO
complaint untimely. Duenas counters that because he was not
notified of the time limit and was not otherwise aware of it, the
regulations mandate equitable tolling. Accordingly, the issue
presented in this case is whether Duenas established a genuine
issue of material fact with respect to his lack of knowledge of
the forty-five-day time limit.
To defeat the Postmaster General’s motion for summary
judgment, Duenas must support his assertion of lack of knowledge
with “specific, non-conclusory affidavits or other competent
summary judgment evidence.” Reese v. Anderson, 926 F.2d 494, 498
(5th Cir. 1991). “[U]nsupported assertions are insufficient” to
ward off summary judgment when the defendant produces proper
summary judgment evidence. Lewisville Properties, Inc. v.
Cauble, 849 F.2d 946, 951 (5th Cir. 1988). In this case, the
Postmaster General supports its motion for summary judgment with
comprehensive evidence showing that Duenas filed his EEO
complaint outside of the forty-five-day time limit. In his
response to the Postmaster General’s motion, Duenas merely
9
asserts a lack of knowledge of the time limit; he fails to
present any evidence to support his claim for equitable tolling.
Because he failed to come forward with specific facts indicating
a genuine issue for trial, Duenas cannot avoid summary judgment
in favor of the Postmaster General. See Celotex, 477 U.S. at
324.
IV. Conclusion
For all the foregoing reasons, we find that the district
court properly granted summary judgment for the Postmaster
General. Duenas fails to raise any genuine issue of material
fact concerning his disability discrimination claim.
AFFIRMED.
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