Linthecome v. O'Neill ( 2002 )

                             FOR THE FIFTH CIRCUIT
                                  No. 01-11592
    PAUL O’NEILL, Secretary, Department of the Treasury,
               Appeal from the United States District Court
                     for the Northern District of Texas
                                 June 27, 2002
    Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
         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
            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    this opinion should not be published and is not precedent except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
         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
    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
    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.
                                  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
              Williamson v. Tucker, 
    645 F.2d 404
    , 413 (5th Cir. 1981).
            Emory v. Texas State Board of Medical Examiners, 
    748 F.2d 1023
     (5th Cir. 1984).
         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.
             29 CFR 1614.301(a) (1999).
         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,