Dao v. Auchan Hypermarket
Decision Date | 03 October 1996 |
Docket Number | No. 96-20027,96-20027 |
Citation | 96 F.3d 787 |
Parties | 5 A.D. Cases 1633 Marie Therese DAO, Plaintiff-Appellant, v. AUCHAN HYPERMARKET, Defendant-Appellee. Summary Calendar. |
Court | U.S. Court of Appeals — Fifth Circuit |
Marie Therese Dao, Houston, TX, pro se.
Michael J. Griffin and Carrie Eden Flick, Houston, TX, for Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before SMITH, DUHE, and BARKSDALE, Circuit Judges.
Primarily at issue is whether administrative remedies must be exhausted before an action can be filed under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Marie Therese Dao, pro se, appeals the dismissal of her complaint against her former employer, Auchan Hypermarket. We AFFIRM.
Dao asserted claims under the ADA and for "violation of public policy, breach of good faith and fair dealing, and defamation of character" under Texas law. The district court granted Auchan's FED.R.CIV.P. 12(b)(6) motion to dismiss, holding that Dao failed to comply with the administrative prerequisites for filing an action under the ADA; that the violation of public policy claim did not fall within the narrow public policy exception to Texas' employment-at-will doctrine; that Texas law does not recognize a duty of good faith and fair dealing in the employer-employee relationship; and that the defamation claim was not timely filed.
A Rule 12(b)(6) dismissal is reviewed de novo. E.g., Jackson v. City of Beaumont Police Dept., 958 F.2d 616, 618 (5th Cir.1992). "The dismissal will not be upheld unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir.1991) (internal quotation marks and citation omitted).
Dao contends that the district court erred in holding that she was required to file a charge of discrimination with the EEOC or the Texas Human Rights Commission prior to filing her ADA claim in federal court. This is an issue of first impression for our court. The other courts that have considered the issue, however, have reached the same conclusion as did the district court. See Stewart v. County of Brown, 86 F.3d 107, 110 (7th Cir.1996) (); McSherry v. Trans World Airlines, Inc., 81 F.3d 739, 740 n. 3 (8th Cir.1996) ( ); Luna v. Walgreens, 888 F.Supp. 87, 88 (N.D.Ill.1995) ( ); Bishop v. Okidata, Inc., 864 F.Supp. 416, 424 (D.N.J.1994) ( ); Osborn v. E.J. Brach, Inc., 864 F.Supp. 56, 58 (N.D.Ill.1994) ( ); James v. Texas Dept. of Human Services, 818 F.Supp. 987 990 (N.D.Tex.1993) ( ).
We join those courts in holding that an employee must comply with the ADA's administrative prerequisites prior to commencing an action in federal court against her employer for violation of the ADA. As the district court correctly noted, the ADA incorporates by reference the procedures applicable to actions under Title VII, 42 U.S.C. § 2000e, et seq. It provides:
The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this subchapter.
42 U.S.C. § 12117(a).
Section 2000e-5(e)(1) provides that, before a plaintiff can commence a civil action under Title VII in federal court, she must file a timely charge with the EEOC, or with a state or local agency with authority to grant or seek relief from the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1); see, e.g., Cruce v. Brazosport Independent School Dist., 703 F.2d 862, 863 (5th Cir.1983) ( ). And, § 2000e-5(...
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...occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice of right to sue. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir.1996). Title 42 U.S.C. § 2000e-5(f)(1) provides in pertinent part as ... if within one hundred and eighty days from the fili......
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...his or her lawsuit within 90 days after receiving notice of the EEOC’s decision. 42 U.S.C. §2000e-5(f)(1); Dao v. Auchan Hypermarket , 96 F.3d 787, 789 (5th Cir. 1996). The 90-day requirement is not a jurisdictional prerequisite to filing a lawsuit, but is a nonjurisdictional statutory prec......
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...his or her lawsuit within 90 days after receiving notice of the EEOC’s decision. 42 U.S.C. §2000e-5(f)(1); Dao v. Auchan Hypermarket , 96 F.3d 787, 789 (5th Cir. 1996). The 90-day requirement is not a jurisdictional prerequisite to filing a lawsuit, but is a nonjurisdictional statutory prec......
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Disability Discrimination
...21:3. ENFORCEMENT PROCEDURES The ADA incorporates Title VII’s enforcement mechanism. 42 U.S.C. §12117(a); see Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996). Chapter 21’s enforcement mechanism is similar to Title VII’s. Tex Lab. Code Ann. §§21.201-.256. Generally, the state and......