Rolland v. US Dept Vet Affairs, et al

United States Court of Appeals
Fifth Circuit
F I L E D
August 23, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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
______________________________

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Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
Lionel Rolland, Jr., appeals a summary
judgment and dismissal of his suit against his
former employer, the United States Depart-
ment of Veterans Affairs (“VA”).1 Finding no
error, we affirm, essentially for the reasons set
forth by the district court in its comprehensive,
twenty-nine-page opinion.
I.
Rolland alleges discriminatory treatment at
the workplace, including retaliation and termi-
nation, on the basis of sex, race, color, and
disability.2 He bases these claims on the
Americans with Disabilities Act,3 the Rehabil-
itation Act,4 the Family Medial Leave Act
(“FMLA”),5 title VII of the Civil Rights Act of
1964,6 and 42 U.S.C. §§ 1981, 1983, 1985,
and 1986. He bases federal jurisdiction on title
VII and 42 U.S.C. §§ 1983, 1985, and 1986.
The district court dismissed the title VII,
FMLA, and Rehabilitation Act claims for lack
of jurisdiction for failure to exhaust available
administrative remedies. The claims under the
ADA and the civil rights statutes were dis-
missed for failure to state a claim on which
relief could be granted and as preempted.
On appeal, both parties limit their briefing
to the issues surrounding the title VII claims;
therefore, our review is limited likewise. We
review both a dismissal under Federal Rule of
Civil Procedure 12(b) and a summary judg-
ment under Federal Rule of Civil Procedure 56
de novo.7
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 Rolland also names as defendants, in their var-
ious capacities, certain VA officials and employ-
ees. The district court found that these individuals
were not properly before the court as defendants:
“[T]here is no allegation that either Secretary
Principi or Director Church committed any act or
omission with regard to [Rolland’s] complaints and
certainly not in any capacity other than an official
one . . . . Nowhere in Rolland’s complaints has he
alleged or described any conduct by Holiday in an
individual capacity . . . .” On appeal these parties
remain nominally part of the suit, but Rolland does
not appeal the district court’s finding that these
persons are not proper defendants. Therefore, we
treat this matter as though Rolland had sued
Principi in his professional capacity as Secretary
and thereby the VA itself.
2 In addition he alleged a state law claim,
which was dismissed pursuant to Federal Rule
(continued...)
2(...continued)
of Civil Procedure 12(b)(6). Rolland does not
appeal this decision.
3 42 U.S.C. § 12101 et seq.
4 29 U.S.C. § 701 et seq.
5 29 U.S.C. § 2601 et seq.
6 42 U.S.C. § 2000e et seq.
7 Hebert v. United States, 53 F.3d 720, 722
(5th Cir. 1995) (“We review de novo a district
court’s granting of a motion to dismiss for lack of
subject matter jurisdiction.”); Armstrong v. City of
Dallas, 997 F.2d 62, 65 (5th Cir. 1993) (“We
review the grant of summary judgment de novo,
applying the same standard as the district court.”).
For summary judgment, the Court views all evi-
dence in the light most favorable to the non-moving
(continued...)

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II.
Rolland initially complained to the Equal
Employment Opportunity Commission
(“EEOC”) of his perceived workplace dis-
crimination; he chose to appeal the EEOC’s
final decision to the Merit System Protection
Board (“MSPB”). After sending a letter to the
MSPB, requesting dismissal of his appeal, he
received an initial decision from the MSPB
stating that his case had been dismissed. In
this document he was informed that the deci-
sion would become final in 30 days and would
become appealable at that point. He sued in
federal court 27 days later.
III.
The VA is a federal agency. Sovereign im-
munity protects the federal government and its
agencies from being sued without consent.8
Sovereign immunity is waived by clear and un-
equivocal statutory language. United States v.
Dalm, 494 U.S. 596, 608 (1990); Shanbaum,
32 F.3d at 181. Title VII permits suit against
the federal government in cases alleging dis-
crimination in a government workplace if all
administrative remedies are exhausted first.9
In Tolbert v. United States, 916 F.2d 245
(5th Cir. 1990), we defined title VII’s exhaus-
tion standard as requiring a plaintiff to file his
lawsuit timelySSnot before and not after the
statutorily allotted time. “It seems obvious
that [a complainant] who files too early, has,
by definition, filed before [he] has exhausted
[his] administrative remedies . . . .” Id. at 247-
48. We reasoned that filing too early is not a
defect that can be cured by the passage of
time. Id. at 249.
Title 5 U.S.C. § 7703(b) permits a judicial
appeal of an MSPB final ruling. Rolland sued
in federal court three days before the MSPB
decision became final. He therefore did not
exhaust the available administrative remedies.
Consequently, jurisdiction has not vested in
federal court.
Rolland attempts to invoke the doctrine of
equitable tolling.10 As the district court point
7(...continued)
party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000) (“In [entertaining
a motion for summary judgment] the court must
draw all reasonable inferences in favor of the
nonmoving party . . . .”).
8 United States v. Testan, 424 U.S. 392, 399
(1976) (“It long has been established, of course,
that the United States, as sovereign, ‘is immune
from suit save as it consents to be sued . . . and the
terms of its consent to be sued in any court define
that court’s jurisdiction to entertain the suit.’”)
(quoting United States v. Sherwood, 312 U.S. 584
(1941)); Shanbaum v. United States, 32 F.3d 180,
181 (5th Cir. 1990) (noting that the federal govern-
ment may be sued only on clearly stated consent);
Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471
(1994) (“Absent a waiver, sovereign immunity
shields the Federal Government and its agencies
from suit.”)
9 42 U.S.C. § 2000e-16(a) (1994); Brown v.
Gen. Servs. Admin., 425 U.S. 820 (1976) (holding
that title VII requires compliance with administra-
tive procedures before the federal courts acquire
jurisdiction).
10 This argument is intermingled, in Rolland’s
brief, with the contention that federal courts ac-
quired jurisdiction of the claim 180 days after he
filed his first complaint with the EEOC. This ar-
gument is incorrect. After Rolland received a final
decision from the EEOC, he was given a choice of
pursuing an appeal in federal court or with the
MSPB. He elected the MSPB and thereby commit-
ted himself to abide by these administrative proce-
dures. See Vinieratos v. United States Dep’t of
(continued...)

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ed out, however, this doctrine is applicable in
only very limited circumstances.11 A
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.
AFFIRMED.
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).

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