UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-40315
Summary Calendar
MAURO C. ROSALES
and
LUCILA SALAZAR ROSALES
Plaintiffs-Appellants
VERSUS
MARY MARTINEZ, Individually and as Postmaster; GREG M. CASTILLO,
Individually and as Postal Inspector; GILBERT GALVAN,
Individually and as Supervisor; ROBERT PANTOJA, Individually and
as Superintendent of Postal Operations; MARVIN T. RUNYON,
Individually and as Postmaster General; UNITED STATES POSTAL
SERVICE; UNITED STATES OF AMERICA.
Defendants-Appellees
Appeal from the United States District Court
For the Southern District of Texas
(B-93-187)
December 18, 1997
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
I.
FACTS & PROCEDURAL HISTORY
*
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this opinion should not be published and is not precedent except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.
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Mr. Rosales was a postal employee in Harlingen, Texas, for six
years until he was terminated in August, 1992, ostensibly for theft
of mail. Mr. Rosales filed a grievance through the postal
employees’ union, which was rejected as unfounded. Thereafter, on
August 20, 1993, Mr. Rosales filed this suit in Texas state court
against the United States Postal Service and four postal employees
in their individual and representative capacities. The complaint
alleged a workers’ compensation retaliation claim under Texas law,
and several claims under the FTCA (deprivation of protected
property interest without due process, negligent and intentional
infliction of emotional distress, defamation of character and
invasion of privacy). The suit was removed to the United States
District Court on September 10, 1993, where, on unopposed motion of
defendants, the United States of America was substituted as the
sole defendant in May, 1995. Thereafter, defendants moved for
dismissal of the complaint under Fed.R.Civ.P. 12(b)(6), and the
matter was referred to a magistrate judge.
Meanwhile, Mr. Rosales had also filed an EEO complaint with
the postal service alleging sex (male) and age (52) discrimination.
The postal service reviewed the complaint and issued a final agency
decision on March 10, 1994, finding no discrimination. That final
agency decision explicitly notified Mr. Rosales that he had ninety
(90) days from receipt of the final agency decision to file a civil
action. Mr. Rosales never filed a separate discrimination action.
However, on September 14, 1995, at the hearing on Appellees’ motion
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to dismiss, over eighteen (18) months after the rejection of
Rosales’ EEO complaint and over two (2) years after the original
complaint was filed, Rosales’ counsel requested leave to amend the
complaint in this case to add a claim for discrimination. The
request was denied by the magistrate judge. The magistrate judge
recommended dismissal of Rosales’ complaint. The district court
adopted the magistrate judge’s report and recommendation,
dismissing Rosales’ complaint, and this pro se appeal followed.
II.
LAW & ANALYSIS
A.
Standard of Review
This court reviews dismissal of a complaint under Fed.R.Civ.P.
12(b)(6) de novo, accepting all well-pleaded facts as true. Green
v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994). The
district court did not err in dismissing Rosales’ complaint.
B.
Workers’ Compensation Claim
Rosales’ workers’ compensation retaliation claim under Texas
law was properly dismissed as Rosales was a federal employee not
covered by Texas workers’ compensation law. Rather, Rosales is
covered by the Federal Employee Compensation Act. 5 U.S.C. § 8101,
et seq., and he did not allege a retaliation claim under that act.
C.
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FTCA Claims
Rosales’ FTCA claims were properly dismissed as Rosales failed
to exhaust his administrative remedies. See 28 U.S.C. § 2675(a);
Shah v. Quinlan, 901 F.2d 1241, 1244 (5th Cir. 1990); Houston v.
United States Postal Service, 823 F.2d 896, 902 (5th Cir. 1987),
cert. denied, 485 U.S. 1006 (1988). Specifically, Rosales never
supplied the government with “written notice of his ... claim
sufficient to enable the agency to investigate” the claims, and
Rosales “never place[d] a value on his ... claim.” Frantz v. U.S.,
29 F.3d 222, 224 (5th Cir. 1994). Rosales’ letter to the EEOC
signaling his intent to file an age discrimination claim against
the postal service is inadequate to provide the government with
written notice of his tort claims.
D.
Wrongful Termination Claim
Rosales did not claim a right to judicial review pursuant to
the Postal Reorganization Act. 39 U.S.C. § 101, et seq.
(incorporating the procedural rights of preference eligible
employees under Chapter 75 of the Civil Service Reform Act). In
the absence of a right to judicial review established by the PRA,
the district court had no jurisdiction to review the merits of the
personnel action taken by the postal service. Witzkoske v. United
States Postal Service, 848 F.2d 70, 72-73 (5th Cir. 1988).
Therefore, any wrongful termination claim that might be made on
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these facts is barred.
III.
CONCLUSION
Finding no error in the dismissal of Appellant’s complaint
under Fed.R.Civ.P. 12(b)(6), we affirm.
AFFIRMED.
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