The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 96-60338
Summary Calendar
____________________
STEPHANIE CAESAR,
Plaintiff-Appellant,
versus
JESSE BROWN, Secretary,
Department of Veteran Affairs,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
(3:95-CV-460LN)
_________________________________________________________________
November 11, 1996
Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Stephanie Caesar filed this action against Jesse Brown,
Secretary of the Department of Veteran's Affairs alleging that she
was discriminated against by the Veteran's Administration (the
"VA") in violation of the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq. (West 1995). Caesar's charge arose from
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
the termination of her work-study assignment with the VA.
The VA filed a motion to dismiss, and Caesar failed to
respond. The district court subsequently granted the motion to
dismiss, holding that the complaint did not state an actionable
claim under the ADA.
Caesar appeals, asserting that the dismissal was erroneous and
that she is entitled to relief under either the ADA or the
Rehabilitation Act. Notably, the Rehabilitation Act was not
mentioned in the complaint.
Caesar's complaint did not state a viable claim under the ADA.
She attempts to bring this action against an agency of the United
States. This is clearly prohibited by the ADA by virtue of its
exclusion of the United States from the definition of "employer,"
42 U.S.C.A. § 12111(5)(B)(I) (West 1995), and, therefore, the
definition of "covered entity," 42 U.S.C.A. § 12111(2) (West 1995),
as used below:
[n]o covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment.
42 U.S.C.A. § 12112(a) (West 1995). Clearly, the ADA is not
intended to provide redress for allegedly discriminatory acts by
government agencies. Such relief is provided through other
channels, such as Title VII and the Rehabilitation Act. This
action, therefore, was properly dismissed because the complaint
alleges only an ADA violation, and Caesar can demonstrate no set of
facts that will bring her claim against the VA within the scope of
the ADA.
On appeal, Caesar asserts that relief might be warranted under
the Rehabilitation Act. This alternative ground of recovery was
not advanced prior to the appeal, and there is no indication that
Caesar moved for leave to amend her complaint to include such a
claim. Furthermore, Caesar filed an EEOC charge stemming from the
same occurrence. The charge resulted in the issuance of a final
decision from the agency. Caesar filed an appeal with the EEOC,
then, within the mandatory 180-day waiting period, filed this
complaint. See 29 C.F.R. § 1614.408(d). She, therefore, could not
have asserted a claim under Title VII and the Rehabilitation Act
for employment discrimination, because, at the time of the filing
of this complaint, she had not exhausted her administrative
remedies.
The district court properly dismissed the complaint filed by
Caesar for failure to state a claim upon which relief could be
granted, and the judgment is
A F F I R M E D.
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