# Carson

> District Court, N.D. Illinois · August 28, 2026

URL: https://www.frixlaw.com/law-library/cases/11429683

## Case

- **Full name:** Ena Carson v. David P. Steiner, Postmaster General, United States Postal Service
- **Court:** District Court, N.D. Illinois
- **Decided:** August 28, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11429683

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11429683. Public record. Not legal advice.