Machuca v. DeJoy

United States Court of Appeals
for the Fifth Circuit

No. 20-50193
Summary Calendar

Dolores Machuca,

Plaintiff—Appellant,

versus

Louis DeJoy, Postmaster General and Chief Executive Officer, United
States Postal Service,

Defendant—Appellee.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:17-CV-46

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Dolores Machuca, a mail carrier with the United States Postal Service,
sued the Postmaster General for disability discrimination, retaliation, failure
to accommodate, and hostile work environment under the Americans with

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 16, 2020

Lyle W. Cayce
Clerk
Case: 20-50193 Document: 00515675661 Page: 1 Date Filed: 12/16/2020

No. 20-50193
2
Disabilities Act and § 504 of the Rehabilitation Act.
1
The district court
granted summary judgment for the Postmaster General, reasoning that ADA
claims cannot be maintained against the federal government and that
Machuca failed to exhaust her Rehabilitation Act claims. The court also
denied Machuca’s belated attempt to bring new claims.
On appeal, Machuca only challenges the ruling on her Rehabilitation
Act claims. But she concedes the key point: She failed to exhaust her
administrative remedies. She nonetheless argues that her case should
proceed as a matter of equity because the Postmaster General did not timely
present failure to exhaust as a defense. Specifically, she contends that the
Postmaster General should have raised the issue in a motion to dismiss
instead of at summary judgment. As support, Machuca relies on Davis v. Fort
Bend County’s instruction that “[f]ailure to exhaust is an affirmative defense
that should be pleaded.” 893 F.3d 300, 307 (5th Cir. 2018), aff’d, 139 S. Ct.
1843 (2019). Machuca’s reliance on Davis is misplaced. The Postmaster
General pleaded failure to exhaust as an affirmative defense in his answer to
Machuca’s second amended complaint. And Davis does not address when
the defense should be litigated on the merits. After completing the necessary
discovery, the Postmaster General moved for summary judgment. There is
no authority requiring a defendant to assert an affirmative defense at the
motion to dismiss stage, particularly where, as here, discovery is necessary to
establish the merits of that defense.
Machuca also argues that factual disputes preclude summary
judgment. Because Machuca’s failure to exhaust is dispositive, the district
court did not reach this argument, and neither do we.
AFFIRMED.

1
Postmaster General Louis DeJoy is automatically substituted for Megan J.
Brennan as the defendant under Federal Rule of Appellate Procedure 43(c)(2).
Case: 20-50193 Document: 00515675661 Page: 2 Date Filed: 12/16/2020