Michelle D. Lingo v. John Potter , 198 F. App'x 566 ( 2006 )


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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    United States Postal Service,         * [UNPUBLISHED]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 employment-
    discrimination 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. § 1614.105
    (a) (2005) (stating Title VII 45-
    day 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-
    

Document Info

Docket Number: 05-2966

Citation Numbers: 198 F. App'x 566

Filed Date: 10/3/2006

Precedential Status: Non-Precedential

Modified Date: 1/12/2023