IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 01-50071

Summary Calendar ____________________

EVERARDO DUENAS, JR.

Plaintiff–Appellant

v.

WILLIAM J. HENDERSON, Postmaster General United States Postal Services

Defendant–Appellee

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas No. SA-00-CA-069-EP

November 30, 2001 Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM:*

In district court, Plaintiff-Appellant Everardo Duenas, Jr.

asserted a disability discrimination claim against the United

States Postal Service under the Rehabilitation Act of 1973,

et seq.. Duenas appeals from the district court’s

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. grant of summary judgment in favor of Defendant-Appellee William

J. Henderson, Postmaster General of the United States Postal

Service. For the following reasons, we AFFIRM the judgment of

the district court.

I. Factual and Procedural History

Plaintiff–Appellant Everardo Duenas, Jr., a Gulf War

veteran, wears a prosthesis for his left leg, which was amputated

above the knee as a result of a combat injury. In 1996, Duenas

began the process of applying for employment with the United

States Postal Service (“the USPS”). Because he is a veteran,

Duenas possessed preferential hiring status and was pre-selected

for employment by the USPS. After pre-selection, the USPS

requested that Duenas undergo a physical examination by a USPS-

chosen doctor. After the examination, and on or about October

28, 1997, Duenas received a letter denying his application for

employment based upon a finding that he was “medically unable” to

perform the job.

On January 26, 1998, almost ninety days after receiving the

letter denying him USPS employment, Duenas filed an Equal

Employment Opportunity (“EEO”) complaint alleging disability

discrimination. On March, 31, 1998, the USPS issued a final

decision rejecting Duenas’s claim of discrimination on the sole

2 basis that his complaint was untimely.1 Duenas appealed this

decision to the Office of Federal Operations (“OFO”) of the Equal

Employment Opportunity Commission (“EEOC”). Ultimately, the OFO

affirmed the final USPS decision and denied Duenas’s request for

reconsideration on the basis that Duenas’s EEO complaint was

untimely.

On June 12, 2000, Duenas filed a lawsuit in federal district

court against Defendant-Appellee William J. Henderson, Postmaster

General of the USPS (“the Postmaster General”). Duenas’s

petition alleged, among other things, disability discrimination

in violation of the Rehabilitation Act of 1973.2 On August 17,

2000, the Postmaster General filed a motion to dismiss, or, in

the alternative, for summary judgment arguing that all of

Duenas’s claims should be dismissed under Rules 12(b)(1)3 or

1 This decision was based upon an EEOC regulation that provides: An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.

(a)(1) (1999). 2 Duenas also pled: (1) disability discrimination in violation of the Americans with Disabilities Act, (2) breach of contract, (3) negligence, (4) intentional infliction of emotional distress, (5) libel, defamation, and slander, and (6) negligent investigation. 3 A Rule 12(b)(1) motion asserts the defense of “lack of jurisdiction over the subject matter” of a claim. FED. R. CIV. P. 12(b)(1).

3 12(b)(6),4 or, in the alternative, for summary judgment under

Rule 56.5 With respect to Duenas’s Rehabilitation Act claim, the

Postmaster General argued that because Duenas failed to timely

exhaust his administrative remedies, dismissal or summary

judgment was proper. Duenas responded to this motion on November

6.6 On November 20, the district court issued an Order and

Judgment granting Defendant’s motion to dismiss, or, in the

alternative, for summary judgment on the grounds that Duenas did

not timely and properly exhaust his administrative remedies. The

Order does not specify whether the judgment is a Rule 56 summary

judgment or Rule 12(b) dismissal. Duenas timely appealed.

For several reasons, we view the district court’s judgment

as a summary judgment for the Postmaster General rather than as a

Rule 12(b)(6) dismissal.7 First, the language of Rule 12(b)

4 A Rule 12(b)(6) motion asserts the defense of “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). 5 Rule 56 provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). 6 This response addressed the issues presented by Duenas’s Rehabilitation Act claim but failed to address any of Duenas’s six other claims asserted in the Original Petition. In his brief before this court, Duenas states that he “conceded to the points raised in Defendant’s [motion to dismiss] as to the other causes of action.” Thus, we need not address them. 7 In the context of Duenas’s Rehabilitation Act claim, we can assume that the district court’s judgment was not a Rule

4 requires the district court to treat the Postmaster General’s

motion as a motion for summary judgment if matters outside the

pleadings are considered. Rule 12(b) states:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

FED. R. CIV. P. 12(b). In support of its motion, the Postmaster

General produced substantial evidence, including an affidavit,

the October letter to Duenas denying him USPS employment,

Duenas’s pre-complaint counseling request, Duenas’s EEO

complaint, and all documents tracking Duenas’s EEO complaint

through the EEOC process. In such situations, Rule 12(b)

mandates that “the motion shall be treated as one for summary

judgment,” rather than as one for dismissal under Rule 12(b)(6),

unless the extra-pleading material is excluded by the district

court. Nothing in the record suggests that the district court in

12(b)(1) dismissal for lack of subject matter jurisdiction because the failure to timely exhaust administrative remedies does not deprive the court of subject matter jurisdiction. See Henderson v. U.S. Veterans Admin.,

, 439-40 (5th Cir. 1986) (holding that in the context of a Title VII claim, the failure to file an EEO complaint before the thirty-day time limit does not deprive the court of subject matter jurisdiction).

5 this case excluded the extra-pleading material submitted by the

Postmaster General.

Second, the comprehensive nature of the extra-pleading

material suggests a summary judgment rather than a Rule 12(b)(6)

dismissal. When confronted with an ambiguous judgment similar to

that of the district court in the instant case, this court has

stated:

Rule 12(b)(6) gives a district court “complete discretion to determine whether or not to accept any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion.” . . . “When the extra-pleading material is comprehensive and will enable a rational determination of a summary judgment motion, the court is likely to accept it, [but] when it is scanty, incomplete, or inconclusive, the court will probably reject it.”

Isquith v. Middle South Utilities, Inc.,

, 193 n.3

(5th Cir. 1988) (quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 1366 (1969)). Because the extra-

pleading material submitted by the Postmaster General in support

of the motion was comprehensive, the district court probably

accepted that material and considered it when entering its

judgment.

Third, Duenas had ample notice that the district court could

treat the Postmaster General’s motion as a motion for summary

judgment rather than as a motion for dismissal. Once the motion

was filed, it was apparent that the Postmaster General submitted

material outside the pleadings in support of the motion. Duenas

6 had plenty of time to respond to the motion and accompanying

evidence and to submit his own summary judgment evidence for

consideration. See Isquith,

(holding that the

plaintiffs had sufficient notice of possible summary judgment

because the defendants submitted extra-pleading material in

support of a motion and because the plaintiffs had ample time to

respond to that material). For these reasons, we view the

district court’s judgment as a summary judgment for the

Postmaster General rather than a Rule 12(b)(6) dismissal.

II. Summary Judgment Standard of Review

We review a grant of summary judgment de novo, applying the

same standards as the district court. Chaney v. New Orleans Pub.

Facility Mgmt., Inc.,

, 167 (5th Cir. 1999). Summary

judgment is proper when “there is no genuine issue as to any

material fact and [] the moving party is entitled to a judgment

as a matter of law.” FED. R. CIV. P. 56(c). While we view the

evidence in a light most favorable to the non-movant, Coleman v.

Houston Indep. Sch. Dist.,

(5th Cir. 1997), in

order to avoid summary judgment, the non-movant must go beyond

the pleadings and his own affidavits and come forward with

specific facts indicating a genuine issue for trial, Celotex

Corp. v. Catrett,

(1986). If the evidence is

such that a reasonable jury could return a verdict for the non-

7 movant, there is a genuine issue of material fact. Anderson v.

Liberty Lobby, Inc.,

(1986). Accordingly, if

the non-movant fails to establish facts in support of an

essential element of his claim, summary judgment is appropriate.

See Celotex,

.

III. Duenas’s Rehabilitation Act Claim

Duenas must timely exhaust his administrative remedies

before he can file suit against the USPS in district court. See

Fitzgerald v. Sec’y of the U.S. Dep’t of Veterans Affairs,

(5th Cir. 1997). As part of the administrative

process, EEOC regulations require an aggrieved person to file an

EEO complaint within forty-five days of the allegedly

discriminatory personnel action. See

(a)(1).8 To mitigate the effect of this short time

limit, EEOC regulations provide for mandatory equitable tolling

of the forty-five-day time limit in certain circumstances:

The agency or the Commission shall extend the 45-day time limit . . . when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been (sic) known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for

8 See supra note 1 for the full text of

(a)(1).

8 other reasons considered sufficient by the agency or the Commission.

(a)(2) (1999). The burden is on Duenas to

show that circumstances warrant equitable tolling.

In this case, both parties agree that Duenas’s EEO complaint

was filed well after the forty-five-day time limit. The

Postmaster General argues that this fact makes Duenas’s EEO

complaint untimely. Duenas counters that because he was not

notified of the time limit and was not otherwise aware of it, the

regulations mandate equitable tolling. Accordingly, the issue

presented in this case is whether Duenas established a genuine

issue of material fact with respect to his lack of knowledge of

the forty-five-day time limit.

To defeat the Postmaster General’s motion for summary

judgment, Duenas must support his assertion of lack of knowledge

with “specific, non-conclusory affidavits or other competent

summary judgment evidence.” Reese v. Anderson,

(5th Cir. 1991). “[U]nsupported assertions are insufficient” to

ward off summary judgment when the defendant produces proper

summary judgment evidence. Lewisville Properties, Inc. v.

Cauble,

(5th Cir. 1988). In this case, the

Postmaster General supports its motion for summary judgment with

comprehensive evidence showing that Duenas filed his EEO

complaint outside of the forty-five-day time limit. In his

response to the Postmaster General’s motion, Duenas merely

9 asserts a lack of knowledge of the time limit; he fails to

present any evidence to support his claim for equitable tolling.

Because he failed to come forward with specific facts indicating

a genuine issue for trial, Duenas cannot avoid summary judgment

in favor of the Postmaster General. See Celotex,

.

IV. Conclusion

For all the foregoing reasons, we find that the district

court properly granted summary judgment for the Postmaster

General. Duenas fails to raise any genuine issue of material

fact concerning his disability discrimination claim.

AFFIRMED.

10