Carson

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ENA CARSON, )

)

Plaintiff, )

)

vs. ) Case No. 26 C 1845

)

DAVID P. STEINER, )

POSTMASTER GENERAL, )

UNITED STATES POSTAL )

SERVICE, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Ena Carson has sued David Steiner in his official capacity as Postmaster

General of the United States Postal Service (USPS) under the Rehabilitation Act of

1973 and Title VII of the Civil Rights Act of 1964. The government has moved to

dismiss Carson’s complaint for failure to state a claim upon which relief may be granted.

For the reasons stated below, the Court grants the motion to dismiss.

Background

At the pleading stage, the Court must "accept all well-pleaded facts in the

complaint as true and draw all reasonable inferences in the plaintiff's favor." NewSpin

Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 299 (7th Cir. 2018).

Carson alleges that she has a disability that affects her day-to-day functioning,

including her concentration, sleep, and stress regulation. Until July 2024, Carson

worked as a mail handler for the USPS in Elk Grove Village, Illinois. In May 2023,

Carson’s physician ordered her to stop working, and she went on approved Family and

Medical Leave Act (FMLA) leave until August 2023. After her approved FMLA leave

expired, Carson continued to take time off work and submit supporting medical

documentation to the USPS. Because the USPS coded several of Carson's absences

as absence without leave (AWOL), Carson engaged with the USPS's equal employment

opportunity (EEO) office in December 2023. In January 2024, the USPS initiated formal

discipline for Carson's non-attendance. Over the next several months, the USPS

escalated the disciplinary process, eventually culminating in a July 11, 2024 letter of

decision removing Carson from employment for alleged failure to maintain regular

attendance and AWOL.

Eight days later, Carson initiated the USPS informal EEO pre-complaint process.

On September 9, 2024, Carson formally appealed her removal to the Merit Systems

Protection Board (MSPB), alleging that her removal was based on both discrimination

and retaliation for her protected EEO activity in December 2023. Before the MSPB

decided her "mixed case" appeal, Carson also filed a formal EEO complaint with the

USPS on November 5, 2024. In January 2025, the MSPB dismissed her appeal as

untimely and gave her three appeal avenues to choose from: file a petition for review

before the MSPB, pursue judicial review of the MSPB decision, or request review by the

Equal Employment Opportunity Commission (EEOC).1 Carson chose to file a petition

for review before the MSPB. Because of her choice to proceed before the MSPB, the

USPS dismissed her EEO complaint in December 2024. Carson appealed the USPS's

decision to the EEOC, which affirmed the USPS’s dismissal in May 2025 and denied

1 Had Carson chosen to go down the third avenue, the EEOC would have reviewed only

her discrimination claim and not her removal claim. Def.'s Mem. in Supp. of its Mot. to

Dismiss, Ex. B at 12-13.

Carson’s request for reconsideration in November 2025.

On February 18, 2026, while Carson’s petition for review before the MSPB was

still pending, she filed this lawsuit in the Northern District of Illinois. On May 18, 2026,

the USPS filed a motion to dismiss under Rule 12(b)(6). Later, on July 13, 2026, the

MSPB granted Carson’s petition for review, reversed the January 2025 decision that

dismissed Carson’s appeal, and remanded her case to the regional MSPB office for

further adjudication.

Discussion

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6),

"the plaintiff must allege enough facts to state a claim to relief that is plausible on its

face." NewSpin, 910 F.3d at 299 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). At the pleading stage, the Court must "accept all well-pleaded facts in the

complaint as true and draw all reasonable inferences in the plaintiff's favor." Id. In

ruling on a Rule 12(b)(6) motion to dismiss, a court is limited to assessing the

allegations in the complaint, documents attached to the complaint, documents that are

critical to the complaint and referred to in it, and information subject to proper judicial

notice. Wertymer v. Walmart, Inc., 142 F.4th 491, 498 (7th Cir. 2025).

A plaintiff need not anticipate or refute potential affirmative defenses in her

complaint. Doe v. Smith, 429 F.3d 706, 709 (7th Cir. 2005). There is, however, "a

narrow and pragmatic exception" to the general rule against Rule 12(b)(6) dismissals

based on affirmative defenses, which applies in the rare situation when a plaintiff pleads

herself out of court. Gunn v. Cont'l Cas. Co., 968 F.3d 802, 806 (7th Cir. 2020). When

an affirmative defense, such as failure to exhaust administrative remedies, is “so plain

from the face of the complaint," the plaintiff’s complaint may be dismissed. Thomas v.

Kalu, 218 F. App'x 509, 512 (7th Cir. 2007) (quoting Walker v. Thompson, 288 F.3d

1005, 1010-11 (7th Cir. 2002)).

Carson brings her claims under the Rehabilitation Act and Title VII, alleging that

the USPS’s decision to remove her was motivated by discriminatory and retaliatory

reasons. Exhaustion of administrative remedies is a "condition precedent to bringing a

claim" under these statutes, and "plaintiffs who have not exhausted their administrative

remedies have prematurely brought their claims into the courts." Teal v. Potter, 559

F.3d 687, 691 (7th Cir. 2009). In its motion to dismiss, the government argues that (1)

Carson has not exhausted her administrative remedies, and (2) dismissal without

prejudice is the only appropriate outcome. The Court addresses both contentions

below.

A. Administrative exhaustion

The government initially argued that Carson had not yet exhausted her

administrative remedies because the proceedings before the MSPB were still ongoing.

Carson responded that she had already received a final decision from the EEOC and

that she filed this lawsuit to seek "preservation of statutory discrimination claims that

[had] never been resolved on the merits." Pl.'s Resp. Br. at 4 (cleaned up). The

government replied that Carson could not proceed with her discrimination and retaliation

claims in court until she received a final adverse decision by the MSPB.

After the government submitted its reply, the MSPB granted Carson's petition for

review, reversing the initial decision and remanding her case to the Central Regional

Office for further adjudication of all of her claims. In its surreply, the government

contends that the existence of an upcoming administrative hearing means that "[n]ot

only is exhaustion far from accomplished, but the outcome of the administrative process

is also far from determined." Def.'s Surreply Br. at 2 (cleaned up). Carson responds

that the MSPB's decision to grant her petition for review has materially changed the

procedural posture, making the government's arguments in its initial motion no longer

applicable. Carson further argues that because she has pursued her rights for nearly

two years, the Court should hear her claims.

An aggrieved federal employee has a "mixed case" when she complains of a

personnel action serious enough to appeal to the MSPB and alleges that the action was

based on discrimination. 29 C.F.R. § 1614.302(a). The employee may, in the first

instance, file a mixed case complaint with the agency for which she worked (i.e. the

agency's internal EEO department), or bring her case directly to the MSPB. 29 C.F.R. §

1614.302(b). However, the employee may not proceed before both the agency and the

MSPB. Id. If a plaintiff files with both the agency for which she worked for and the

MSPB, "whichever is filed first shall be considered an election to proceed in that forum."

Id.

Regardless of which administrative forum a plaintiff elects, the plaintiff must

exhaust her administrative remedies within that forum prior to filing suit in federal court.

See Teal, 559 F.3d at 691. In the MSPB context, that means there must be a "judicially

reviewable action," manifested through a "final, appealable MSPB decision." 5 U.S.C. §

7702(a)(2); Blaney v. United States, 34 F.3d 509, 512 (7th Cir. 1994). An adverse

MSPB decision becomes final and appealable when the employee declines to request

additional administrative process.2 5 U.S.C. § 7702(a)(3)(A). Similarly, if the plaintiff

chooses to file a complaint with the agency's EEO office, exhaustion requires the

agency to "issue a final decision" before the plaintiff may proceed in court. Jennings v.

Panetta, 492 F. App'x 698, 699 (7th Cir. 2012).

Carson elected to proceed in the MSPB when she filed an MSPB mixed case

appeal in September 2024. Although she also filed a formal complaint with the USPS,

she did so only after she had already filed her MSPB mixed case appeal. In affirming

the USPS's decision to dismiss Carson's complaint, the EEOC found that Carson had

"elected to proceed before the MSPB" because "she did not file her formal EEO

complaint [with the USPS] until . . . almost two months after filing her mixed case appeal

directly with the MSPB." Def.'s Mem. in Supp. of its Mot. to Dismiss, Ex. D at 3

(cleaned up). Carson argues that judicial review is appropriate because the EEOC has

issued a final decision affirming the USPS's dismissal of her complaint, but that is

incorrect: because she filed with the MSPB first, the operative administrative complaint

is the one that she has pending before the MSPB. Thus in considering the issue of

exhaustion, the question is whether the MSPB has issued a final, appealable decision.

It has not. No final, judicially reviewable action existed at the time the

government initially filed its motion to dismiss in the present case. At that point,

Carson's petition for review before the MSPB was still pending and had not yet been

decided. No final, judicially reviewable action exists now either. Following the MSPB's

remand order, the regional office will now be required to issue a decision on Carson's

2 Alternatively, the MSPB decision may become judicially reviewable if the plaintiff files a

petition for review with the EEOC, which then declines to consider the MSPB's decision.

5 U.S.C. § 7702(a)(3)(B).

MSPB complaint. When the MSPB initially dismissed her case in January 2025, Carson

could have pursued judicial review, and the MSPB's dismissal would have been

considered a final decision. But Carson did not take that route; instead she filed a

petition for review before the MSPB. Because Carson chose that course, she is

required to exhaust her administrative remedies within the MSPB prior to seeking

judicial review of her claims.

Carson argues that the Supreme Court has "repeatedly recognized the

importance of district court review in mixed cases" like this one. Pl.'s Resp. Br. at 4.

However, the Court does not read the two cases that she cites, Kloeckner v. Solis, 568

U.S. 41 (2012) and Perry v. Merit Sys. Prot. Bd. 582 U.S. 420 (2017), to suggest that

litigants may get into district court by skipping administrative exhaustion altogether.

Both Kloeckner and Perry held that once judicial review is available in a mixed case, it

proceeds in federal district court and not in the United States Court of Appeals for the

Federal Circuit. Importantly, both Kloeckner and Perry concerned plaintiffs who had

received a final, judicially reviewable decision from the MSPB. Thus Kloeckner and

Perry will only apply to Carson after the MSPB has issued a final, appealable decision

on Carson's complaint, which it has not yet done.

Carson also contends that Congress recognized in 5 U.S.C. § 7702(e)(1)(B) that

administrative proceedings should not continue indefinitely and that she has diligently

pursued her rights for nearly two years. But this statute does not overcome Carson's

failure to satisfy the exhaustion requirement. Section 7702(e)(1)(B) essentially provides

an escape hatch for a plaintiff who has experienced undue delay before the MSPB: it

allows a plaintiff to file a suit in federal court if (among other alternatives) she does not

receive a judicially reviewable action from the MSPB within 120 days of filing her initial

MSPB appeal. But Carson did get a judicially reviewable action when the MSPB

dismissed her appeal as untimely on January 21, 2025, after which she chose to file a

petition for review in the MSPB. Because the MSPB has since granted her petition for

review, Carson has not been "held in perpetual uncertainty by Board inaction," which is

what section 7702(e)(1)(B) was designed to prevent. Kloeckner, 568 U.S. at 54. The

court understands Carson's frustration that she has still not received a decision since

being removed from employment nearly two years ago. But to allow her to "side-step

the requirement of a judicially reviewable action of the MSPB would eviscerate the

exhaustion requirement so that the mere passage of time would be the only

precondition to judicial review." Blaney, 34 F.3d at 513 (cleaned up).

Finally, Carson argues that the MSPB's remand materially changed the factual

basis underlying the government's original motion. But although the procedural posture

of Carson's MSPB case has changed, Carson's failure to exhaust her administrative

remedies has not.

For these reasons, the Court concludes that Carson has not exhausted her

administrative remedies, as is required to bring her claims under the Rehabilitation Act

and Title VII.

B. Dismissal vs. stay

The government also argues that dismissal without prejudice is the appropriate

outcome given Carson's failure to exhaust. Carson responds that a stay would better

serve both judicial economy and fairness.

In similar mixed cases where the court found the plaintiff to have failed to

exhaust their administrative remedies, the prevailing practice in this circuit is to dismiss

the case without prejudice. See, e.g., McGuinness v. U.S. Postal Serv., 744 F.2d 1318,

1321 (7th Cir. 1984) ("As it is not certain that it is too late for McGuinness to obtain

administrative consideration of his claim, the suit must be dismissed not as untimely but

as premature, without prejudice to his bringing a new suit if and when he exhausts his

administrative remedies."); Teal, 559 F.3d at 693 (holding that because the plaintiff

"failed to exhaust administrative remedies, her complaint must be dismissed without

prejudice."); Chaidez v. Ford Motor Co., 937 F.3d 998, 1008 (7th Cir. 2019) (noting that

the autoworkers' discrimination claims "should have been dismissed without prejudice"

because "the sole basis for dismissal was a failure to exhaust administrative remedies").

Neither party has cited, nor can the Court find, a single case in which a stay was

granted in similar circumstances. Although Carson is correct that precedent does not

foreclose a court's inherent authority to manage its docket, the Court respectfully

declines to depart from the standard practice in this circuit. The government is correct

that on remand, the MSPB will consider both the removal and discrimination aspects of

Carson claims. And if the MSPB has completed its review and finds against Carson,

she will be able to return to federal court. Thus there is no danger that "Carson would

lose access to the federal courts if this case were dismissed." Def.'s Surreply Br. at 3.

Carson has filed this case too early. Nonetheless the Court wants to address

Carson's concern that if she does exhaust her administrative remedies and re-files her

case, she will then be told that she has filed too late. To clear up any potential for

confusion regarding potential future filing deadlines, this is how Carson may proceed in

order to eventually get back into federal court. After a final adverse decision from the

MSPB, Carson may file a civil action in this district and must do so within thirty calendar

days after the adverse MSPB decision becomes final. See 5 U.S.C. § 7703(b)(2). If, on

the other hand, Carson gets an adverse preliminary ruling from the MSPB, she cannot

seek judicial review at that point. Rather, she must receive an adverse fina/ decision

from the MSPB.° Second, once there is a final MSPB decision (assuming that is what

happens), filing in district court, instead of the Federal Circuit, will allow Carson to obtain

judicial review of all aspects of Carson's mixed case. See Perry, 582 U.S. at 426.

In sum, the Court concludes that dismissal without prejudice is the appropriate

outcome.

Conclusion

For the reasons stated above, the Court grants the government's motion to

dismiss [dkt. no. 15]. The Clerk is directed to enter judgment stating: The case is

dismissed without prejudice for failure to fully exhaust administrative remedies. The

telephonic status hearing set for September 18, 2026 is vacated.

United States District Judge

Date: August 28, 2026

3 If Carson gets a favorable final decision from the MSPB, she will have prevailed and

thus would have no reason to seek judicial review.

10