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. This
matter is before the court on defendant's Motion to
Dismiss Under the Mandate Rule, or in the Alternative, under
Fed.R.Civ.P. 12(b)(6) (Doc. 23). For the reasons discussed
below, the court grants defendant's motion.
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.)
December 22, 2017, this court granted defendant's Motion
to Dismiss for Lack of Jurisdiction (Doc. 9). The court found
that it lacked subject matter jurisdiction over the case
because plaintiff had failed to exhaust her administrative
remedies. Plaintiff appealed this ruling, and on December 26,
2018, the Tenth Circuit reversed this court's order and
remanded the case with instructions to vacate the dismissal
based on Rule 12(b)(1) and to dismiss the case based on
defendant's affirmative defense. (Doc. 19.) The Tenth
Circuit's decision to reverse and remand the case was
based on its decision in Lincoln v. BNSF Railway
Co., 900 F.3d 1166 (10th Cir. 2018), which was decided
while plaintiff's appeal was pending. In
Lincoln, the Tenth Circuit reversed its precedent
that a court lacks subject matter jurisdiction over a case if
a plaintiff fails to exhaust administrative remedies.
Instead, the Tenth Circuit held, “a plaintiff's
failure to file an EEOC charge regarding a discrete
employment incident merely permits the employer to raise an
affirmative defense of failure to exhaust but does not bar a
federal court from assuming jurisdiction over a claim.”
Id. at 1185.
order in the present case, the Tenth Circuit instructed:
In this case, the Postal Service filed a motion to dismiss,
pointing out that Bryan admitted in her complaint that she
never received a right-to-sue letter from the EEOC. Although
this failing does not deprive the district court of
jurisdiction to hear the case, it is an effective affirmative
defense. Because the factual basis for the defense is plain
from the text of Bryant's complaint, it may be properly
raised in the Postal Service's motion to dismiss, even
though it is no longer a jurisdictional bar. Miller v.
Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965).
Accordingly, although the district court's dismissal for
lack of subject matter jurisdiction no longer accords with
our case law, dismissal remains appropriate.
Bryant v. United States Postal Serv., 741 Fed.Appx.
602, 603-04 (10th Cir. 2018). The Tenth Circuit reversed and
remanded the case “with instructions to vacate the
dismissal on Rule 12(b)(1) and to dismiss the case based on
the Postal Service's affirmative defense.”
Id. at 604. Defendant filed the present motion
seeking dismissal based on the mandate rule and the law of
the case. Defendant also “expressly asserts the
affirmative defense of failure to exhaust administrative
remedies” and seeks dismissal based on Rule 12(b)(6) of
the Federal Rules of Civil Procedure. (Doc. 24, at 4.)
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)). 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.Appx. 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). A plaintiff's
failure to exhaust administrative remedies “permits the
employer to raise an affirmative defense of failure to
exhaust . . . .” Lincoln, 900 F.3d at 1185.
Specifically, a plaintiff's failure to acquire a
right-to-sue letter from the EEOC is an “effective
affirmative defense” in a Title VII case.
defendant maintains-as this court and the Tenth Circuit have
already determined-that plaintiff failed to exhaust her
administrative remedies. Plaintiff filed 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 untimely.
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. As the Tenth Circuit has held, because plaintiff did
not receive a right-to-sue letter, defendant has an
“effective affirmative defense.” Because
defendant has now asserted failure to exhaust as an
affirmative defense, the court dismisses plaintiff's
complaint under Rule 12(b)(6).
IS THEREFORE ORDERED that defendant's Motion to
Dismiss (Doc. 23) is granted based on the affirmative defense
of failure to exhaust administrative remedies. This case is
dismissed, and the clerk of the court is ...