United States Court of Appeals,
Fifth Circuit.
No. 96-20027
Marie Therese DAO, Plaintiff-Appellant,
v.
AUCHAN HYPERMARKET, Defendant-Appellee.
Oct. 3, 1996.
Appeal from the United States District Court for the Southern District of Texas.
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:
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.
I.
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.
II.
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
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relief." Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir.1991) (internal quotation marks and citation
omitted).
A.
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 o co urt. The other courts that have
ur
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) ("In order to recover for violations of
Title I of the ADA, a plaintiff must file a charge of discrimination with the EEOC within 180 days of
the alleged violation (if he does not file an initial charge with a state agency)"); McSherry v. Trans
World Airlines, Inc., 81 F.3d 739, 740 n. 3 (8th Cir.1996) (noting that ADA incorporates by
reference the powers, remedies, and procedures set forth in Title VII, which requires employees
claiming discrimination to file a charge with the appropriate administrative agency, and bars suits until
the employee has received a right-to-sue letter); Luna v. Walgreens, 888 F.Supp. 87, 88
(N.D.Ill.1995) (filing discrimination charge with EEOC is condition precedent to filing ADA action
in federal court); Bishop v. Okidata, Inc., 864 F.Supp. 416, 424 (D.N.J.1994) (procedure of filing
charge with EEOC and receiving right-to-sue letter before bringing an ADA action is not
jurisdictional, but plaintiff "must exhaust these administrative remedies before suing in federal court");
Osborn v. E.J. Brach, Inc., 864 F.Supp. 56, 58 (N.D.Ill.1994) (befo re filing ADA action against
employer, employee must file timely EEOC charge and receive right-to-sue letter); James v. Texas
Dept. of Human Services, 818 F.Supp. 987, 990 (N.D.Tex.1993) (ADA plaintiff's administrative
remedies will be deemed exhausted upon her receipt of right-to-sue letter from Texas Human Rights
Commission and submission of letter to court).
We join those courts in holding that an employee must comply with the ADA'tion 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,
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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)
(although filing of EEOC charge is not a jurisdictional prerequisite, it "is a precondition to filing suit
in district court"). And, § 2000e-5(f)(1) provides that a civil action must be commenced "within
ninety days" after the charging party has received a "right-to-sue" letter from the EEOC or state or
local agency. 42 U.S.C. § 2000e-5(f)(1); see Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 120
(5th Cir.1980).
It is undisputed that Dao did not file a disability discrimination charge with the EEOC or with
a state or local agency. Accordingly, t he district court did not err by dismissing her ADA claim.
(Dao's motions for court-appointed counsel and to supplement the record, and Auchan's motion to
strike Dao's additional evidence, are DENIED.)
B.
We affirm the dismissal of Dao's state law claims for the reasons stated by the district court.
Dao v. Auchan Hypermarket, No. H-95-2619 (S.D.Tex. Dec. 5, 1995) (unpublished).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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