Elvin E. Carroll v. John E. Potter , 163 F. App'x 450 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1575
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Elvin E. Carroll, Sr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
John E. Potter, Postmaster General of *
the United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: January 27, 2006
Filed: February 3, 2006
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Before ARNOLD, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Elvin E. Carroll, Sr., appeals the district court’s1 dismissal of his employment-
discrimination lawsuit for failure to exhaust administrative remedies. Carroll sued
John E. Potter, United States Postmaster General, under the Americans with
Disabilities Act (ADA), Title VII, the Age Discrimination in Employment Act
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
(ADEA), the Rehabilitation Act, and 38 U.S.C. § 4212 (Veterans’ employment
emphasis under federal contracts).2 We affirm.
Specifically, we agree with the district court that Carroll could not file suit
under the ADA to redress alleged discrimination occurring during his tenure as a
federal employee, see Calero-Cerezo v. United States Dep’t of Justice, 355 F.3d 6, 11
n.1 (1st Cir. 2004); and we find no basis for a claim under 38 U.S.C. § 4212. As to
his other claims, the evidence is undisputed that Carroll failed to contact an Equal
Employment Opportunity (EEO) counselor within forty-five days of his March 8,
2002 alleged constructive discharge, the first step in the requisite administrative-
exhaustion process. See 29 C.F.R. § 1614.105 (2005); Coons v. Mineta, 410 F.3d
1036, 1039-40 (8th Cir. 2005) (discussing § 1614.105 requirements). We agree with
the district court that Carroll did not demonstrate a basis for relief from the forty-five
day requirement under section 1614.105, see 29 C.F.R. § 1614.105(a)(2) (2005)
(forty-five day deadline may be excused if, inter alia, employee shows that despite
due diligence he was prevented by circumstances beyond his control from contacting
EEO counselor within time limits), or under the equitable-tolling doctrine, see Briley
v. Carlin, 172 F.3d 567, 570 (8th Cir. 1999) (equitable tolling is remedy reserved for
circumstances truly beyond plaintiff’s control). To the extent Carroll is arguing for
reversal based on ineffective assistance of counsel, his argument is unavailing. See
Bettis v. Delo, 14 F.3d 22, 24 (8th Cir. 1994) (declining to consider ineffective-
assistance claim because appellant in civil case was not constitutionally entitled to
representation).
Accordingly, we affirm. We deny as moot appellee’s motion to strike.
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2
He has abandoned the remaining claims he raised in his complaint. See Shade
v. City of Farmington, Minn., 309 F.3d 1054, 1058 n.6 (8th Cir. 2002).
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