Linthecome v. O'Neill ( 2002 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
    
                             FOR THE FIFTH CIRCUIT
                             _____________________
    
                                  No. 01-11592
                             _____________________
    
    
    DONNELL LINTHECOME,
    
                                                     Plaintiff-Appellant,
    versus
    
    PAUL O’NEILL, Secretary, Department of the Treasury,
    
                                                      Defendant-Appellee.
    
                            ---------------------
               Appeal from the United States District Court
                     for the Northern District of Texas
                               (3:00-CV-1172-P)
                            ---------------------
                                 June 27, 2002
    
    Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
    
    PER CURIAM:*
    
         Plaintiff-Appellant Donnell Linthecome appeals the district
    
    court’s dismissal pursuant to Federal Rules of Civil Procedure
    
    12(b)(1)   and    12(b)(6),   of   plaintiff’s   action   grounded   in
    
    allegations of sex, race, and age discrimination in the failure of
    
    the Internal Revenue Service to grant him a promotion.         For the
    
    first time on appeal, plaintiff asserts a claim of retaliation.      We
    
    affirm.
    
    
    
    
         *
            Pursuant to 5TH CIR. R. 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    this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
                           I. FACTS AND PROCEEDINGS
    
         A week after learning in June, 1996, that he had not been
    
    selected for promotion, plaintiff filed a formal grievance pursuant
    
    to provision of the Collective Bargaining Agreement (“CBA”) between
    
    his union and the IRS.       One week later, plaintiff filed an informal
    
    complaint with the Equal Employment Opportunity office (“EEO”) of
    
    the Department    of   the    Treasury    ascribing   race,   sex,    and   age
    
    discrimination to his non-promotion.          And less than a week after
    
    that, he was interviewed by an EEO counselor and advised that he
    
    could   pursue   his   discrimination      claim   through    the    grievance
    
    procedures of the CBA or he could pursue his claim through the
    
    discrimination complaint procedures of the Treasury’s EEO office,
    
    but not both.     Plaintiff signed a checklist containing the same
    
    explanation.
    
         Plaintiff continued to press his CBA grievance until October
    
    15, 1996, when his grievance was ruled on adversely.            Even though
    
    both the CBA and the EEOC regulations required plaintiff to appeal
    
    that decision to an arbitrator and thereafter to the EEOC, he
    
    failed to do so, taking no further steps in connection with it.
    
    Instead, he filed a formal complaint with the Treasury Department’s
    
    EEO approximately nine days after denial of his CBA grievance.
    
         About two weeks later, on November 6, 1996, plaintiff was
    
    notified that his EEO complaint had been dismissed because he had
    
    previously elected the grievance procedure of the CBA and could not
    
    
    
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    pursue both routes, only one or the other.                          In September of the
    
    following year, the EEOC ruled that plaintiff’s EEO complaint had
    
    been dismissed properly, given his election to pursue the CBA
    
    grievance route.             His reconsideration request was denied the
    
    following March.
    
           Undeterred, the plaintiff filed the instant lawsuit in the
    
    district court.           The defendant filed a motion pursuant to Federal
    
    Rule    of    Civil       Procedure        12(b)(1)       to    dismiss     for       lack   of
    
    jurisdiction,           grounded   in     the    plaintiff’s        failure      to    exhaust
    
    administrative           remedies,      i.e.,       his   failure     to   appeal       to   an
    
    arbitrator, and thereafter to the EEOC, following the rejection of
    
    his CBA grievance on October 15, 1996.                     In a painstakingly careful
    
    Memorandum Opinion and Order filed November 13, 2001, the district
    
    court     fully        explained      the       plaintiff’s      failure         to    exhaust
    
    administrative remedies and granted the defendant’s motion to
    
    dismiss.          In    so   doing,       the    court     rejected     the      plaintiff’s
    
    contention that his written grievance in the CBA in June 1996 was
    
    not an election to proceed that way in lieu of the EEO track
    
    because      he    (the      plaintiff)          did      not   raise      the    issue      of
    
    discrimination in that grievance. Citing Brown v. General Services
    
    Administration, 
    425 U.S. 820
    , 835 (1976), Fitzgerald v. Secretary
    
    U.S. Dept. of Veterans Affairs, 
    121 F.3d 203
    , 206 (5th Cir. 1997),
    
    and 42 U.S.C. § 2000e-16(c), the court dismissed plaintiff’s action
    
    as   barred       for    failure     to     exhaust       administrative         procedures.
    
    Plaintiff then timely filed a notice of appeal.
    
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                                  II. ANALYSIS
    
    A.   Standard of Review
    
          We review de novo the district court’s dismissal for lack of
    
    subject matter jurisdiction.1 To the extent factual determinations
    
    are made by the district court in considering motions to dismiss,
    
    we review for clear error.2
    
    B.   Retaliation
    
          Nowhere in his district court filings did the plaintiff raise
    
    a claim of retaliation for having filed employment discrimination
    
    charges against his employer.     This was raised for the first time
    
    on appeal.      As a court of error, we will not consider issues that
    
    were not before the trial court.3
    
    C.   Sex, Race, Age Discrimination:     Failure to Exhaust
    
          There can be no question but that the district court relied on
    
    the applicable law, 5 U.S.C. § 7121(d), for the proposition that an
    
    employee cannot file an EEO complaint on the same matter that was
    
    the subject of an earlier grievance under a CBA, or vice versa:
    
          An aggrieved employee who files a grievance with an
          agency whose negotiated agreement permits the acceptance
          of grievances which allege discrimination may not
          thereafter file a complaint on the same matter under this
          part 1614 irrespective of whether the agency has informed
          the individual of the need to elect or whether        the
    
          1
              Williamson v. Tucker, 
    645 F.2d 404
    , 413 (5th Cir. 1981).
          2
              Id.
          3
            Emory v. Texas State Board of Medical Examiners, 
    748 F.2d 1023
     (5th Cir. 1984).
    
    
                                        4
         grievance has raised an issue of discrimination. Any
         such complaint filed after a grievance has been filed on
         the same matter shall be dismissed.4
    
         The district court rejected as unmeritorious the plaintiff’s
    
    assertion that, because he had not mentioned age, sex, or race in
    
    his formal CBA grievance of June 15, 1996, he could not be held to
    
    having made an election to go that route and forever abandon an
    
    opportunity to pursue discrimination through an EEO complaint.
    
    Such a contention is belied by plaintiff’s informal EEO complaint,
    
    filed a mere one week later, in which he expressly alleged sex,
    
    race, and age discrimination for the self-same non-promotion.
    
         Equally unmeritorious is the plaintiff’s continued assertion
    
    that he is not prevented from pursuing his discrimination claims in
    
    this lawsuit for failing to pursue administrative procedures of
    
    appealing to an arbitrator and eventually to the EEOC once his
    
    grievance was rejected on October 15, 1996.             The plaintiff’s
    
    assertions on appeal, ascribing errors of law to the district
    
    court, are unavailing.    There is nothing in the record to support
    
    the plaintiff’s contention that he was not aware of the facts of
    
    discrimination when he filed his initial grievance or that he was
    
    not, or did not become, aware of the discrimination he alleged
    
    until months later when he filed his formal EEO complaint.               As
    
    noted, he   indicated    discrimination   as   the   cause   of   his   non-
    
    promotion as early as his informal complaint of June 21, 1996.
    
    
    
         4
             29 CFR 1614.301(a) (1999).
    
                                       5
         In sum, the district court’s careful and exhaustive opinion
    
    lays out for the plaintiff (and all others) exactly and correctly
    
    why his action must be dismissed.        The reasons thus expressed by
    
    the district court satisfy us that the plaintiff’s complaints of
    
    race,   sex,   and   age   discrimination   in   his   non-promotion   were
    
    properly dismissed; and for the reasons above stated we will not
    
    consider his claim of retaliation, which he raised for the first
    
    time on appeal.
    
                                  III. CONCLUSION
    
         For the reasons set forth above and in the opinion of the
    
    district court, the judgment appealed from is, in all respects,
    
    AFFIRMED.
    
    
    
    
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