United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
plaintiff Lakesha Bryant filed suit against defendant United
States Postal Service for employment discrimination.
Defendant filed a Motion to Dismiss on September 21, 2017.
(Doc. 9.) To date, plaintiff has not filed a response. The
court will therefore consider defendant's motion as
uncontested pursuant to D. Kan. Rule 7.4(b). The court,
however, cannot grant defendant's motion solely based on
plaintiff's failure to respond. See Issa v. Comp
USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003)
(“[E]ven if a plaintiff does not file a response to a
motion to dismiss for failure to state a claim, the district
court must still examine the allegations in the
plaintiff's complaint and determine whether the plaintiff
has stated a claim upon which relief can be granted.”).
The court, therefore, will review defendant's motion
while liberally interpreting the allegations in
plaintiff's pro se complaint. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
to records attached to the motion to dismiss, defendant first
hired plaintiff on September 20, 2014. She was converted to a
probationary career position on June 27, 2015 and was
terminated on August 21, 2015 due to several unscheduled and
absent without leave absences. Plaintiff filed an informal
EEOC complaint shortly after her termination. The parties
were unable to mediate the informal complaint. Defendant
informed plaintiff she had the option of filing a formal
complaint if she wished to further pursue her case. There is
no indication that plaintiff filed a formal complaint.
Plaintiff instead filed an appeal of her probationary
termination with the Merit Systems Protection Board
(“MSPB”). The MSPB dismissed her case for lack of
jurisdiction, and issued a final decision on April 28, 2016.
filed a complaint in this court on April 26, 2017 using the
court's form employment-discrimination complaint. (Doc.
1.) Plaintiff alleged she was discriminated against because
of her race. In her complaint, plaintiff admitted she had not
received a right-to-sue letter from the Equal Employment
Opportunity Commission (“EEOC”) and that the
“EEOC told me I didn't have a case, so I proceeded
to the MSPB Court and up. I didn't know about any other
resources.” (Doc. 1, at 2.)
filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for
lack of subject-matter jurisdiction. Defendant argues that
plaintiff has failed to administratively exhaust her claims.
VII of the Civil Rights Act of 1964 is the exclusive remedy
for federal employees alleging discrimination and retaliatory
conduct. Mobley v. Donahoe, 498 Fed.Appx. 793, 796
(10th Cir. 2012) (citing Brown v. Gen. Servs.
Admin., 425 U.S. 820, 835 (1976)). “Exhaustion of
administrative remedies is a jurisdictional prerequisite to
suit under Title VII.” Jones v. Runyon, 91
F.3d 1398, 1399 (10th Cir. 1996). Before bringing suit in
federal court, Title VII plaintiffs must clear three
procedural hurdles: (1) file a discrimination charge with the
EEOC, (2) receive a right-to-sue letter from the EEOC, and
(3) file suit within ninety days of receiving the
letter.” Kinney v. Blue Dot Servs. of Kan.,
505 Fed.App'x 812, 814 (10th Cir. 2012) (citing 42 U.S.C.
§ 2000e-5(e)(1), (f)(1)). It is plaintiff's burden
to show she has satisfied the necessary exhaustion
requirements. Robinson v. Rhodes Furniture, Inc., 92
F.Supp.2d 1162, 1166 (D. Kan. 2000).
plaintiff did file a complaint with the EEOC, but it was an
informal complaint. After an unsuccessful mediation,
plaintiff was instructed that if she wanted to continue her
case, the next step was to file a formal complaint within 15
days. She did not. She instead filed an appeal with the MSPB,
which was dismissed for lack of jurisdiction because the MSPB
may only hear cases from 1) a preference-eligible employee, a
manager, a supervisor, or an employee engaged in personnel
work; who, 2) has completed one year of current, continuous
service. (Doc. 10-4, at 4.) The MSPB found that plaintiff did
not meet these criteria. While final decisions from the MSPB
can be appealed to a federal court, any such appeal must be
filed within 60 days after the final order is issued. (Doc.
10-5, at 6.) The MSPB issued its final order on April 28,
2016, and plaintiff filed the present case on April 26, 2017.
Any effort to seek review of the MSPB's decision is
also failed to meet additional requirements for
administrative exhaustion. She did not file her formal
complaint as instructed, and did not receive a right-to-sue
letter. This court lacks subject-matter jurisdiction over the
case and therefore grants defendant's motion to dismiss.
IS THEREFORE ORDERED that defendant's Motion to
Dismiss (Doc. 9) is granted. This case is dismissed without
prejudice and the clerk of the court is directed to enter
judgment in favor of defendant and against plaintiff.
 Courts have discretion to consider
affidavits and other documents to resolve jurisdictional
questions under Rule 12(b)(1). See Sizova v. Nat. Inst.
of Standards & Tech., 282 F.3d ...