Rolland v. United States Department of Veterans Affairs

United States Court of Appeals

Fifth Circuit

F I L E D

In the August 23, 2005

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

_______________

m 05-30037

Summary Calendar

_______________

LIONEL ROLLAND, JR.,

Plaintiff-Appellant,

VERSUS

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS;

ANTHONY J. PRINCIPI,

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, IN HIS INDIVIDUAL CAPACITY;

JIM NICHOLSON,

SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, IN HIS OFFICIAL CAPACITY;

JOHN D. CHURCH, JR.,

DIRECTOR OF THE DEPARTMENT OF VETERANS AFFAIRS,

IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;

CASSANDRA HOLIDAY,

INDIVIDUALLY,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

m 2:03-CV-570

m 2:03-CV-3584

______________________________

Before DAVIS, SMITH, and DENNIS, Americans with Disabilities Act,3 the Rehabil-

Circuit Judges. itation Act,4 the Family Medial Leave Act

(“FMLA”),5 title VII of the Civil Rights Act of

PER CURIAM:* 1964,6 and 42 U.S.C. §§ 1981, 1983, 1985,

and 1986. He bases federal jurisdiction on title

Lionel Rolland, Jr., appeals a summary VII and 42 U.S.C. §§ 1983, 1985, and 1986.

judgment and dismissal of his suit against his

former employer, the United States Depart- The district court dismissed the title VII,

ment of Veterans Affairs (“VA”).1 Finding no FMLA, and Rehabilitation Act claims for lack

error, we affirm, essentially for the reasons set of jurisdiction for failure to exhaust available

forth by the district court in its comprehensive, administrative remedies. The claims under the

twenty-nine-page opinion. ADA and the civil rights statutes were dis-

missed for failure to state a claim on which

I. relief could be granted and as preempted.

Rolland alleges discriminatory treatment at

the workplace, including retaliation and termi- On appeal, both parties limit their briefing

nation, on the basis of sex, race, color, and to the issues surrounding the title VII claims;

disability.2 He bases these claims on the therefore, our review is limited likewise. We

review both a dismissal under Federal Rule of

Civil Procedure 12(b) and a summary judg-

*

Pursuant to 5TH CIR. R. 47.5, the court has de- ment under Federal Rule of Civil Procedure 56

termined that this opinion should not be published de novo.7

and is not precedent except under the limited cir-

cumstances set forth in 5TH CIR. R. 47.5.4.

2

(...continued)

1

Rolland also names as defendants, in their var- of Civil Procedure 12(b)(6). Rolland does not

ious capacities, certain VA officials and employ- appeal this decision.

ees. The district court found that these individuals

were not properly before the court as defendants: 3

42 U.S.C. § 12101 et seq.

“[T]here is no allegation that either Secretary

Principi or Director Church committed any act or 4

29 U.S.C. § 701 et seq.

omission with regard to [Rolland’s] complaints and

certainly not in any capacity other than an official 5

29 U.S.C. § 2601 et seq.

one . . . . Nowhere in Rolland’s complaints has he

6

alleged or described any conduct by Holiday in an 42 U.S.C. § 2000e et seq.

individual capacity . . . .” On appeal these parties

7

remain nominally part of the suit, but Rolland does Hebert v. United States, 53 F.3d 720, 722

not appeal the district court’s finding that these (5th Cir. 1995) (“We review de novo a district

persons are not proper defendants. Therefore, we court’s granting of a motion to dismiss for lack of

treat this matter as though Rolland had sued subject matter jurisdiction.”); Armstrong v. City of

Principi in his professional capacity as Secretary Dallas, 997 F.2d 62, 65 (5th Cir. 1993) (“We

and thereby the VA itself. review the grant of summary judgment de novo,

applying the same standard as the district court.”).

2

In addition he alleged a state law claim, For summary judgment, the Court views all evi-

which was dismissed pursuant to Federal Rule dence in the light most favorable to the non-moving

(continued...) (continued...)

2

II. the federal government in cases alleging dis-

Rolland initially complained to the Equal crimination in a government workplace if all

Employment Opportunity Commission administrative remedies are exhausted first.9

(“EEOC”) of his perceived workplace dis-

crimination; he chose to appeal the EEOC’s In Tolbert v. United States, 916 F.2d 245

final decision to the Merit System Protection (5th Cir. 1990), we defined title VII’s exhaus-

Board (“MSPB”). After sending a letter to the tion standard as requiring a plaintiff to file his

MSPB, requesting dismissal of his appeal, he lawsuit timelySSnot before and not after the

received an initial decision from the MSPB statutorily allotted time. “It seems obvious

stating that his case had been dismissed. In that [a complainant] who files too early, has,

this document he was informed that the deci- by definition, filed before [he] has exhausted

sion would become final in 30 days and would [his] administrative remedies . . . .” Id. at 247-

become appealable at that point. He sued in 48. We reasoned that filing too early is not a

federal court 27 days later. defect that can be cured by the passage of

time. Id. at 249.

III.

The VA is a federal agency. Sovereign im- Title 5 U.S.C. § 7703(b) permits a judicial

munity protects the federal government and its appeal of an MSPB final ruling. Rolland sued

agencies from being sued without consent.8 in federal court three days before the MSPB

Sovereign immunity is waived by clear and un- decision became final. He therefore did not

equivocal statutory language. United States v. exhaust the available administrative remedies.

Dalm, 494 U.S. 596, 608 (1990); Shanbaum, Consequently, jurisdiction has not vested in

32 F.3d at 181. Title VII permits suit against federal court.

Rolland attempts to invoke the doctrine of

7

(...continued) equitable tolling.10 As the district court point

party. Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000) (“In [entertaining

a motion for summary judgment] the court must

9

draw all reasonable inferences in favor of the 42 U.S.C. § 2000e-16(a) (1994); Brown v.

nonmoving party . . . .”). Gen. Servs. Admin., 425 U.S. 820 (1976) (holding

that title VII requires compliance with administra-

8

United States v. Testan, 424 U.S. 392, 399 tive procedures before the federal courts acquire

(1976) (“It long has been established, of course, jurisdiction).

that the United States, as sovereign, ‘is immune

10

from suit save as it consents to be sued . . . and the This argument is intermingled, in Rolland’s

terms of its consent to be sued in any court define brief, with the contention that federal courts ac-

that court’s jurisdiction to entertain the suit.’”) quired jurisdiction of the claim 180 days after he

(quoting United States v. Sherwood, 312 U.S. 584 filed his first complaint with the EEOC. This ar-

(1941)); Shanbaum v. United States, 32 F.3d 180, gument is incorrect. After Rolland received a final

181 (5th Cir. 1990) (noting that the federal govern- decision from the EEOC, he was given a choice of

ment may be sued only on clearly stated consent); pursuing an appeal in federal court or with the

Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471 MSPB. He elected the MSPB and thereby commit-

(1994) (“Absent a waiver, sovereign immunity ted himself to abide by these administrative proce-

shields the Federal Government and its agencies dures. See Vinieratos v. United States Dep’t of

from suit.”) (continued...)

3

ed out, however, this doctrine is applicable in

only very limited circumstances.11 A AFFIRMED.

complainant’s failure to follow administrative

procedures, particularly where he is repre-

sented by counsel, is not one of the grounds

for equitable tolling.

IV.

Rolland’s employment discrimination claims

under §§ 1983, 1985, and 1986 are precluded

by our caselaw. “Title VII provides the exclu-

sive remedy for employment discrimination

claims raised by federal employees.” Jackson

v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996)

(citing Brown, 425 U.S. at 835). The district

court properly dismissed those claims.

10

(...continued)

Air Force, 939 F.2d 762 (9th Cir. 1991) (“[Title

VII] requires an aggrieved federal employee to

elect one exclusive remedy and to exhaust whatever

remedy he chooses.”).

11

As eloquently stated by the district court,

“[t]he doctrine of equitable tolling . . . may be

invoked when: (1) the claimant actively pursued his

judicial remedies in the prescribed time period; (2)

he was induced or tricked by his adversary’s

misconduct into allowing the deadline to pass;

(3) the court leads a plaintiff to believe that he has

done all that is required; (4) the plaintiff has re-

ceived inadequate notice . . . .” See Irwin v. Dep’t

of Veterans Affairs, 498 U.S. 89, 96 (1990) (not-

ing instances of equitable tolling where the com-

plainant pursued judicial remedies within the

appropriate statutory time or was tricked by his

adversary as to the filing deadline, but refusing to

receive an untimely filing where the claimant did

not exercise due diligence); Teemac v. Henderson,

298 F.3d 452, 457 (5th Cir. 2002) (stating lack of

proper notice is ground for equitable tolling); South

v. Saab Cars USA, Inc., 28 F.3d 9, 11-12 (2d Cir

1994) (listing a court’s behavior, leading plaintiff

to believe no more is required, as a reason for

equitable tolling).

4