     Case: 16-11061     Document: 00513914198   Page: 1   Date Filed: 03/16/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 16-11061                           FILED
                                                                  March 16, 2017
                                                                   Lyle W. Cayce
BLANCA RUIZ,                                                            Clerk

     Plaintiff - Appellant

v.

MEAGAN BRENNAN, Postmaster General, United States Postal Service
(Southwest Area) Agency,

     Defendant - Appellee




                  Appeal from the United States District Court
                       for the Northern District of Texas


Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
       Plaintiff-Appellant Blanca Ruiz filed an administrative complaint
claiming disability discrimination by the United States Postal Service. After
both the Postal Service and the Equal Employment Opportunity Commission
(EEOC) determined that her case was subsumed within a pending
administrative class action, Ruiz sued the Postmaster General. The magistrate
judge initially dismissed Ruiz’s case without prejudice for lack of subject
matter jurisdiction, holding that Ruiz failed to exhaust her administrative
remedies on the merits of her disability discrimination claim. This court
reversed and remanded to the magistrate judge to decide whether Ruiz’s claim
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                                           No. 16-11061
was properly subsumed within the class action. 1 On remand, the magistrate
judge determined that Ruiz’s claim was properly subsumed within the class
action and dismissed Ruiz’s case for failure to exhaust. Ruiz again appealed,
and we now affirm.
                                                  I.
         Ruiz began working as a clerk for the Postal Service in 1990. Ruiz was
born with a hearing impairment, and she was also diagnosed with carpal
tunnel syndrome, a work-related injury, in 1994. After the carpal-tunnel-
syndrome diagnosis, Ruiz was reassigned to a modified position at the Postal
Service that she could perform despite these medical limitations.
         Sometime in 2010, Ruiz’s modified-duty assignment was reviewed as
part of the National Reassessment Process (NRP), a program developed to
standardize the procedures for assigning work to injured-on-duty Postal
Service employees. As part of the NRP, the Postal Service offered Ruiz a
different position working at the front desk of a postal facility. The Postal
Service told Ruiz to either accept the new position or provide updated medical
information for a new modified assignment. Ruiz agreed to “try out” the new
front-desk assignment. Because of her hearing impairment, Ruiz was unable
to perform some of the tasks required of the new front-desk position. After only
two days, on September 22, 2010, the Postal Service retracted Ruiz’s job offer
to work at the front desk because of her hearing impairment. That same day,
Ruiz’s supervisor notified her that the District Assessment Team had
completed a search pursuant to NRP guidelines and was unable to identify any
available tasks that Ruiz could perform with her medical limitations. Ruiz’s
supervisor told her not to report back to work unless contacted.



         1   Consistent with 28 U.S.C. § 636(c), the parties agreed to proceed before a magistrate
judge.
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                                  No. 16-11061
      Ruiz filed a complaint with the Equal Employment Opportunity division
of the Postal Service, alleging that the Postal Service discriminated against
her on the basis of her disability by denying her reasonable accommodation.
The Postal Service determined that Ruiz’s individual complaint was subsumed
by a pending administrative class action, McConnell v. Potter, which alleged
disability discrimination related to the NRP. See EEOC Appeal No.
0720080054, 2010 WL 332083, at *6, 10 (EEOC Jan. 14, 2010) (reversing final
agency order rejecting certification of class). Ruiz appealed the Postal Service’s
decision to the EEOC. On May 18, 2011, the EEOC affirmed the Postal
Service’s decision, concluding that Ruiz’s disability discrimination claims were
properly subsumed within the McConnell class action. The EEOC decision
included notice of Ruiz’s right to file a civil action within 90 days of receiving
the decision.
      Ruiz sued the Postmaster on August 19, 2011, again alleging
employment discrimination based on the Postal Service’s denial of reasonable
accommodation. In response to the Postmaster’s motion to dismiss, Ruiz filed
an amended complaint on November 11, 2011. Ruiz’s amended complaint
alleged that the EEOC erred in finding her case subsumed within the
McConnell class action because her case is “different from McConnell.” “In view
of the amended complaint,” the magistrate judge denied without prejudice the
Postmaster’s motion to dismiss the original complaint and ordered the
Postmaster to respond to the amended complaint.
      The Postmaster then moved to dismiss Ruiz’s amended complaint
pursuant to Fed. R. Civ. P. 12(b)(1), arguing that Ruiz failed to exhaust her
administrative remedies on her disability discrimination claim because neither
the Postal Service nor the EEOC reached the merits of her claim. The
magistrate judge granted that motion and dismissed the case without
prejudice for lack of subject matter jurisdiction because Ruiz had failed to
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                                  No. 16-11061
exhaust. Ruiz appealed, and this court reversed and remanded. See Ruiz v.
Donahoe, 569 F. App’x 207, 208 (5th Cir. 2014). Specifically, we determined
that the magistrate judge had not addressed Ruiz’s challenge to the EEOC’s
determination that her claim was subsumed within the McConnell class action.
Id. at 212. After concluding that Ruiz had “fully exhausted her administrative
remedies with respect to the class action issue,” we explained that Ruiz’s
lawsuit “should not have been dismissed without first addressing whether Ruiz
was properly subsumed within the McConnell class action.” Id. Thus, we
“remand[ed] to the magistrate judge to decide whether Ruiz was properly
subsumed in the class.” Id.
      On remand, and after receiving supplemental briefing from the parties
on the class-action issue, the magistrate judge determined that Ruiz’s claim
was properly subsumed within the McConnell class. The magistrate judge
explained that “[Ruiz’s] removal from her [modified-duty position], job offer to
work at the front desk, and lack of accommodation for her hearing impairment
at the front desk were all the result of the NRP, and therefore she alleges an
identical claim that is properly subsumed into the McConnell class action.”
Because the claim had been properly subsumed into the pending class action,
the magistrate judge found that Ruiz had not exhausted her administrative
remedies. Although the Postmaster had moved for dismissal pursuant to Rule
12(b)(1), the magistrate judge noted the existence of an intra-Fifth-Circuit split
on whether administrative exhaustion is a jurisdictional prerequisite or merely
a condition precedent to filing a lawsuit. Applying the rule of orderliness, the
magistrate judge adopted the position of the earliest identified panel decision
that exhaustion is a condition precedent rather than a jurisdictional
prerequisite. Accordingly, the magistrate judge treated the Postmaster’s
motion as a Rule 12(b)(6) motion to dismiss and dismissed Ruiz’s lawsuit


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                                  No. 16-11061
without prejudice for failure to exhaust administrative remedies. Ruiz timely
filed a notice of appeal.
                                        II.
      We review de novo the district court’s decision to dismiss a complaint
under Rule 12(b)(6). Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir.
2015). Additionally, we review de novo a district court’s determination that the
plaintiff failed to exhaust her administrative remedies. Pacheco v. Mineta, 448
F.3d 783, 788 (5th Cir. 2006).
      “To survive a Rule 12(b)(6) motion to dismiss, the complaint does not
need detailed factual allegations, but it must provide the plaintiff’s grounds for
entitlement for relief—including factual allegations that, when assumed to be
true, raise a right to relief above the speculative level.” Taylor, 798 F.3d at 279
(quotations and citations omitted). In ruling on a Rule 12(b)(6) motion, we may
consider the contents of the pleadings along with any attachments. Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Further, we
may take judicial notice of matters of public record. Norris v. Hearst Trust, 500
F.3d 454, 461 n.9 (5th Cir. 2007). Here, Ruiz attached several exhibits to her
amended complaint that the magistrate judge properly considered as part of
the pleadings.
                                       III.
      Ruiz brings claims under the Rehabilitation Act, which prohibits the
United States Postal Service from discriminating against its disabled
employees. 29 U.S.C. § 794. A Rehabilitation Act claimant must satisfy the
procedural requirements set forth in Title VII of the Civil Rights Act of 1964.
29 U.S.C. § 794a(a)(1); see also Prewitt v. U.S. Postal Serv., 662 F.2d 292, 304
(5th Cir. 1981). One of these procedural requirements is the exhaustion of
administrative remedies, which is satisfied when either (1) the employee
receives notice of final agency action or by the EEOC upon appeal from an
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                                      No. 16-11061
agency decision, or (2) 180 days have passed from the filing of the
administrative complaint or appeal thereof without final agency action. See 42
U.S.C. § 2000e-16(c); Prewitt, 662 F.2d at 304.
       Congress has granted the EEOC authority to establish procedures for
adjudicating discrimination claims. See 42 U.S.C. § 2000e–16(b); 29 U.S.C.
§ 794a. Pursuant to this authority, the EEOC has promulgated regulations and
guidance governing administrative class actions. See generally 29 C.F.R.
§ 1614.204; U.S. Equal Emp. Opportunity Comm’n, MD-110, Management
Directive for 29 C.F.R. Part 1614, ch. 8 (2015). When an administrative class
complaint      meets     the    EEOC’s       class-certification     requirements,       see
§ 1614.204(a)(2) (setting forth four required elements for a class complaint),
and a class action is pending, individual complaints alleging claims “identical
to the class claim(s)” are subsumed within the class complaint. MD-110, ch. 8,
part III. 2
       For an individual claim to be subsumed in an accepted class
       complaint, it must be identical in all respects to the class claim(s),
       including the issue and basis of discrimination alleged. When an
       individual complaint raises multiple claims, only those claims that
       are identical to those raised in the class complaint will be
       subsumed in it. The non-identical claims in the individual
       complaint shall be processed separately under the individual
       complaint process.

Id.
       Accordingly, when an individual plaintiff’s claims are properly subsumed
within an administrative class action, the plaintiff will be unable to meet the



       2 In support of its initial motion to dismiss the amended complaint, the Postmaster
filed portions of EEOC Management Directive 110, dated November 9, 1999. MD-110 has
since been revised, and this opinion refers to the currently effective version, updated as of
August 5, 2015, and available at www.eeoc.gov/federal/directives/md110.cfm. See MD-110,
preamble (noting that the updated directive supersedes the directive issued on November 9,
1999).
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                                   No. 16-11061
administrative exhaustion requirement with respect to her individual claims
as long as the class action is pending. See Sanchez v. Brennan, No. 16-1164,
2017 WL 587112, at *1–2 (10th Cir. Feb. 14, 2017) (affirming the district
court’s ruling that the plaintiff failed to exhaust administrative remedies when
his individual claims were subsumed by an administrative class action and he
failed to either appeal the decision to subsume his claims or participate in the
class-action settlement); Wade v. Donahoe, Nos. 11-3795, 11-4584, 2012 WL
3844380, at *13–14 (E.D. Pa. Sept. 4, 2012) (dismissing plaintiff’s individual
disability discrimination claims because they were properly subsumed by
pending McConnell class action); cf. Johnson v. Rubin, 105 F.3d 665, 1997 WL
14348, at *2–3 (9th Cir. 1997) (unpublished) (holding that individual claims
placed on hold pending resolution of an administrative class complaint were
unexhausted and thus could not serve as the basis for an individual complaint
in federal court); Monreal v. Potter, 367 F.3d 1224, 1231–32 (10th Cir. 2004)
(concluding that individual discrimination claims can be exhausted through a
class administrative complaint).
                                       IV.
      We first address Ruiz’s argument that the magistrate judge erred in
ruling that her disability discrimination claim was properly subsumed within
the McConnell class action. In McConnell v. Potter, the EEOC approved the
certification of an administrative class related to the NRP. 2010 WL 332083,
at *9. The McConnell class is defined as “all permanent rehabilitation
employees and limited duty employees at the agency who have been subjected
to the NRP from May 5, 2006, to the present, allegedly in violation of the
Rehabilitation Act of 1973.” Id. Further, the EEOC concluded that the class
agent’s claims should be categorized into the following “broader issues”: (1) the
“NRP fails to provide a reasonable accommodation” (including “the question of
the effect the NRP has on the interactive process and providing an individual
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                                      No. 16-11061
assessment”); (2) the “NRP wrongfully discloses medical information”; (3) the
“NRP creates a hostile work environment”; and (4) the “NRP has an adverse
impact on disabled employees.” Id. at *9 & n.2. With respect to the
commonality and typicality certification requirements, the EEOC explained
that the administrative judge had found that “the class agent had shown that
the agency had a nationwide practice of targeting employees in rehabilitation
or limited-duty positions, adversely affecting their reasonable accommodations
via the NRP.” Id. at *5, *8. Further, the administrative judge noted that “the
specific alleged harm may be different for the various employees involved, but
the common link was that all of these people were asserting that they were
negatively affected by the NRP.” Id. (emphasis added).
       Ruiz essentially contends that her amended complaint presents two,
distinct claims: (1) that she was improperly removed from her existing
modified-duty position associated with her injured-on-duty disability (carpal
tunnel syndrome), and (2) that her front-desk job was retracted due to the
Postal Service’s failure to accommodate her non-work-related injury (her
congenital hearing impairment). In the district court, Ruiz conceded that the
first claim falls within the scope of the McConnell class action, and she does
not argue otherwise on appeal. Ruiz has thus waived any argument that the
district court erred in subsuming her first claim within the McConnell class
action. 3 Rather, Ruiz challenges the magistrate judge’s determination that her
second claim—that the Postal Service failed to accommodate her hearing




       3  Even if we considered the merits of the magistrate judge’s decision with respect to
Ruiz’s first claim, the amended complaint’s characterization of the claim unambiguously
places it within the scope of the McConnell class. The amended complaint describes the claim
as “NPR’s [sic] removal of Plaintiff from an existing modified position,” in violation of the
Postal Service’s obligation to provide reasonable accommodation for Ruiz’s injured-on-duty
disability. This claim is unquestionably subsumed within the McConnell class action. See
McConnell, 2010 WL 332083, at *9.
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                                       No. 16-11061
disability—was subsumed within the McConnell class. According to Ruiz, her
second claim is “non-identical” to the McConnell class claims because it relates
to her non-injured-on-duty disability (her congenital hearing disability).
       We agree with the magistrate judge’s determination that Ruiz’s second
claim is also subsumed by the McConnell class action. Even though the front
desk position was allegedly retracted because of her congenital hearing
impairment, rather than her injured-on-duty disability, she still satisfies the
class definition with respect to her second claim: Ruiz was an employee placed
in a modified position due to an injured-on-duty disability, 4 who was subjected
to the NRP between May 5, 2006 and the present, allegedly in violation of the
Rehabilitation Act. See id. at *9. The NRP placed her in a front desk position
she could not perform due to her physical limitations and failed to provide her
reasonable accommodation while in the position as well as after the position
was retracted. Ruiz thus shares “the common link” with other McConnell class
members “asserting that they were negatively affected by the NRP.” See id. at
*8. Her second claim also falls within the first and fourth “broader issues”
identified in McConnell. See id. at *9 & n.2 ((1) the “NRP fails to provide a
reasonable accommodation” (including “the question of the effect of the NRP


       4  The McConnell class definition references two groups of affected employees:
“rehabilitation” employees and “limited-duty” employees. McConnell, 2010 WL 332083, at *9.

       Limited-duty employees are defined as injured-on-duty employees whom the
       agency expects will be able to return to their pre-injury positions as their
       medical conditions improve, while rehabilitation employees are defined as
       employees who were injured-on-duty and have reached a level of maximum
       medical improvement (MMI), and are not expected to be able to return to their
       pre-injury positions.

Id. at *2 (citations omitted). The record is not clear as to whether Ruiz was considered a
limited-duty or rehabilitation employee. The distinction between rehabilitation employees
and limited-duty employees is not relevant to this appeal, however, because both types of
employees were subject to the NRP and are included in the class definition. Id. at *9. Thus,
Ruiz’s claims fall within the scope of the class regardless of her classification as a limited-
duty employee or rehabilitation employee.
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                                      No. 16-11061
has on the interactive process and providing an individual assessment”) and
(4) the “NRP has an adverse impact on disabled employees”). Ruiz alleges that
by placing her in a position she was unable to perform because of her hearing
disability, subsequently retracting that position, and then failing to identify
any necessary tasks within her medical restrictions, the “NRP fail[ed] to
provide a reasonable accommodation” and did not afford Ruiz an interactive
process and individual assessment. Id. Additionally, Ruiz’s second claim
essentially alleges that the NRP had an “adverse impact” on her because she
was a disabled employee (as a result of both her carpal-tunnel-syndrome and
permanent-hearing disabilities). Id. at *9.
       The plain language of the amended complaint also supports the
conclusion that Ruiz’s second claim is properly subsumed within the
McConnell class action. Ruiz alleges that “NRP didn’t provide reasonable
accommodation to Plaintiff’s known physical limitations: carpal tunnel
syndrome and hearing impairment.” Similarly, Ruiz alleges that “NPR [sic]
withdrew reasonable accommodation from an existing modified position and
failed to provide reasonable accommodation at the new position being offered.” 5
       It makes no difference that Ruiz’s second claim alleges that the NRP
failed to accommodate only her “non-injured-on-duty” disability (her
permanent hearing impairment). The existence of a work-related disability
(such as Ruiz’s carpal tunnel syndrome) is a necessary precondition to an
employee being subjected to the NRP in the first place, as the only employees




       5 Ruiz argues that because her amended complaint specifically alleges that her second
claim is non-identical to the claims in the McConnell class, dismissal under Rule 12(b)(6) is
improper. “However, ‘conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.’” Jones v. Alcoa, Inc., 339 F.3d
359, 362 (5th Cir. 2003) (quoting Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284
(5th Cir. 1993)). As explained above, the factual allegations in the amended complaint place
Ruiz’s second claim squarely within the McConnell class.
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                                  No. 16-11061
subject to the NRP were those in modified positions as a result of sustaining
on-the-job injuries. McConnell, 2010 WL 332083, at *2. Once an employee is
subject to the NRP, however, the McConnell class does not distinguish between
alleged failures to accommodate the employee’s limitations stemming from the
on-the-job injury and alleged failures to accommodate any other limitations the
employee may have. Put differently, as defined by the EEOC, the McConnell
class claims are not limited to the NRP’s failure to accommodate only work-
related injuries or the NRP’s adverse impact on disabled employees only with
respect to their work-related disabilities. See id. at *8 (“[T]he specific alleged
harm may be different for the various employees involved, but the common link
was that all of these people were asserting that they were negatively affected
by the NRP.”). Ruiz alleges that she was subjected to the NRP and that the
NRP failed to reasonably accommodate her limitations.
      Accordingly, the district court correctly concluded that Ruiz’s claims
were subsumed within the McConnell class action.
                                        V.
      We next address the magistrate judge’s dismissal of Ruiz’s claims
without prejudice under Rule 12(b)(6) because Ruiz failed to administratively
exhaust her disability discrimination claims. Ruiz argues that the presence of
“right to sue” language in the EEOC’s decision subsuming her claims within
the McConnell class means that she has exhausted her administrative
remedies with respect to her disability claims. Ruiz also contends that the
magistrate judge erred in dismissing her claims pursuant to Rule 12(b)(6)
rather than Rule 12(b)(1). Both of Ruiz’s arguments fail.
      The EEOC’s decision subsuming Ruiz’s claims within the McConnell
class notified Ruiz that she had a right to file a civil action in federal district
court within ninety days. The inclusion of this “right to sue” language informed
Ruiz of her right to litigate the EEOC’s decision to subsume her claims within
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the McConnell class—not her right to litigate those claims on the merits. See
MD-110, ch.8, pt. III (“When an agency makes a decision not to process an
individual claim because it is identical to and subsumed by an accepted class
complaint, it shall issue a decision advising the individual complainant of
his/her right to appeal to OFO for a ruling on whether the individual claim
should be subsumed in the accepted class claim(s).”). This court recognized as
much in Ruiz’s prior appeal. There, we explained that by obtaining a decision
from the EEOC, Ruiz “fully exhausted her administrative remedies with
respect to the class action issue.” Ruiz, 569 F. App’x at 212. We thus remanded
the case to the district court to consider whether Ruiz’s claims had been
properly subsumed. Id. If the “right to sue” language in the EECO’s decision
meant that Ruiz could litigate the merits of her discrimination claims, it would
have been unnecessary for the prior panel to instruct the district court to
examine whether Ruiz’s claims had been properly subsumed; rather, it would
have simply remanded with instructions that the district court consider the
merits of Ruiz’s claims. Accordingly, the EEOC’s notice of Ruiz’s right to sue
does not establish that she exhausted her administrative remedies with
respect to the merits of her disability discrimination claims. See, e.g., Simotas
v. Kelsey-Seybold, 211 F. App’x 273, 274–75 (5th Cir. 2006) (unpublished)
(affirming the dismissal of a suit filed after the plaintiff had received a right-
to-sue notice from the EEOC, where the EEOC had found the plaintiff’s
administrative claim to be untimely); Palma v. New Orleans City, 115 F. App’x
191, 193–95 (5th Cir. 2004) (unpublished) (same).
      Ruiz’s contention that the magistrate judge erred in dismissing her
complaint pursuant to Rule 12(b)(6) is likewise unavailing. “There is
disagreement in this circuit on whether a Title–VII prerequisite, such as
exhaustion, is merely a prerequisite to suit, and thus subject to waiver and
estoppel, or whether it is a requirement that implicates subject matter
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jurisdiction.” Pacheco, 448 F.3d at 788 n.7. The magistrate judge’s opinion
correctly observed this intra-circuit conflict but ultimately determined that
this court’s decision in Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th
Cir. 1970) controlled, concluding that exhaustion is a condition precedent
rather than a jurisdictional prerequisite. The magistrate thus converted the
Postmaster’s Rule 12(b)(1) motion to a Rule 12(b)(6) motion and dismissed
Ruiz’s claims for failure to exhaust administrative remedies.
      Because neither party is arguing waiver or estoppel, and because the
outcome would remain the same whether we consider exhaustion to be a
condition precedent or a jurisdictional prerequisite, “we need not take sides in
this dispute.” See Pacheco, 448 F.3d at 788 n.7. The magistrate judge dismissed
Ruiz’s suit without prejudice, meaning that she may pursue her claims upon
conclusion of the McConnell class if she is unsatisfied with the result. See 29
C.F.R. § 1614.204(l). Had the magistrate judge dismissed her claims pursuant
to Rule 12(b)(1), her claims would have likewise been dismissed without
prejudice. See Davis v. United States, 961 F.2d 53, 57 (5th Cir. 1991) (holding
that dismissal without prejudice is proper when the district court dismissed
for lack of subject matter jurisdiction). Further, this court reviews de novo
dismissal under both Rule 12(b)(6) and Rule 12(b)(1). See Lane v. Halliburton,
529 F.3d 548, 557 (5th Cir. 2008). Accordingly, even if the magistrate judge
had dismissed Ruiz’s claims under Rule 12(b)(1) for lack of subject matter
jurisdiction, the dismissal would have been without prejudice and our review
would remain unchanged.
                                      VI.
      We AFFIRM the district court’s dismissal of Ruiz’s claims without
prejudice.




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