Davis v. Brennan

Filing 10

ORDER ACCEPTING 9 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. (Ordered by Chief Judge Barbara M. G. Lynn on 4/30/2020) (twd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LONDER B. DAVIS,
Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster
General,
Defendant.

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Civil Action No. 3:17-CV-1002-M-BH

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing the Findings, Conclusions, and Recommendation of the United States
Magistrate Judge for plain error, I am of the opinion that the Findings and Conclusions of the
Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court.
The Supreme Court recently held that the mandatory exhaustion requirement of Title VII is
“not a jurisdictional prescription delineating the adjudicatory authority of courts.” Fort Bend Cty.,
Tex. v. Davis, ––– U.S. ––––, 139 S. Ct. 1843, 1851 (2019). With respect to Title VII claims of
federal employees such as the plaintiff in this case, the Fifth Circuit has specifically held that “the
requirement of timely contacting an EEO counselor is non-jurisdictional.” Baker v. McHugh, 672
F. App’x 357, 361 (5th Cir. 2016) (citations omitted); see Henderson v. U.S. Veterans Admin., 790
F.2d 436, 439-40 (5th Cir. 1986) (“The timely notification to the appropriate administrative authority
of a complaint of discrimination is a precondition to suit and may bar the claim. Lack of timely
notification, however, does not deprive the court of subject matter jurisdiction.”) (citations omitted).
Because the failure to exhaust is a condition precedent rather than a jurisdictional prerequisite, there
is no issue with subject matter jurisdiction. The Court agrees that the plaintiff’s claims are

time-barred, however.
For the reasons stated in the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge, by separate judgment, the plaintiff’s complaint will be DISMISSED with
prejudice under 28 U.S.C. § 1915(e)(2)(B).
SIGNED this

day of

, 2020.

BARBARA M. G. LYNN
CHIEF JUDGE