Michelle D. Lingo v. John Potter, No. 05-2966 (8th Cir. 2006)

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Court Description: Civil case - employment discrimination. District court did not err in dismissing plaintiff's Title VII action for failure to exhaust administrative remedies on a timely basis.

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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 05-2966 ___________ Michelle Denise Lingo, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. John Potter, Postmaster General, * United States Postal Service, * [UNPUBLISHED] * Appellee. * ___________ Submitted: September 29, 2006 Filed: October 3, 2006 ___________ Before MURPHY, BYE, and MELLOY, Circuit Judges. ___________ PER CURIAM. Michelle Denise Lingo appeals the district court s1 grant of United States Postmaster General John E. Potter s motion to dismiss her Title VII employmentdiscrimination lawsuit for failure to exhaust administrative remedies. We conclude dismissal was proper because the complaint and attached exhibit indicated that Lingo contacted an Equal Employment Opportunity (EEO) counselor more than forty-five days after the discriminatory actions alleged in her complaint; the pleadings did not 1 The Honorable Charles A. Shaw, United States District Judge for the Eastern District of Missouri. assert a basis for the delay; and Lingo did not respond to the motion to dismiss, which raised the timeliness issue. See 29 C.F.R. ยง 1614.105(a) (2005) (stating Title VII 45day requirement and exceptions); Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir. 2003) (holding employment-discrimination claim was barred where record revealed discriminatory event did not occur within 45 days preceding consultation with EEO counselor). We decline to consider the tolling arguments Lingo presents for the first time on appeal. See Briley v. Carlin, 172 F.3d 567, 571 (8th Cir. 1999). Accordingly, we affirm the district court except that the judgment shall be modified to indicate that the dismissal is without prejudice. ______________________________ -2-

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