United States v. Brian Bear Heels

1The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2966
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Michelle Denise Lingo, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
John Potter, Postmaster General, *
United States Postal Service, * [UNPUBLISHED]
*
Appellee. *
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Submitted: September 29, 2006
Filed: October 3, 2006
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Before MURPHY, BYE, and MELLOY, Circuit Judges.
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PER CURIAM.
Michelle Denise Lingo appeals the district court’s 1 grant of United States
Postmaster General John E. Potter’s motion to dismiss her Title VII employment-
discrimination lawsuit for failure to exhaust administrative remedies. We conclude
dismissal was proper because the complaint and attached exhibit indicated that Lingo
contacted an Equal Employment Opportunity (EEO) counselor more than forty-five
days after the discriminatory actions alleged in her complaint; the pleadings did not

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assert a basis for the delay; and Lingo did not respond to the motion to dismiss, which
raised the timeliness issue. See 29 C.F.R. § 1614.105(a) (2005) (stating Title VII 45-
day requirement and exceptions); Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir.
2003) (holding employment-discrimination claim was barred where record revealed
discriminatory event did not occur within 45 days preceding consultation with EEO
counselor). We decline to consider the tolling arguments Lingo presents for the first
time on appeal. See Briley v. Carlin, 172 F.3d 567, 571 (8th Cir. 1999). Accordingly,
we affirm the district court except that the judgment shall be modified to indicate that
the dismissal is without prejudice.
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