UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
No. 98-31406
Summary Calendar
___________________________
PATRICIA A. CADE,
Plaintiff-Appellant,
VERSUS
WILLIAM HENDERSON, POSTMASTER GENERAL,
UNITED STATES POSTAL SERVICE,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-740-E)
___________________________________________________
October 6, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Patricia Cade appeals the district court’s dismissal of her
complaint challenging her adverse personnel action by the USPS for
lack of subject matter jurisdiction. The court also denied Cade’s
request for a new trial and transferred her request for judicial
review of the Merit Systems Protection Board’s (MSPB) order to the
Federal Circuit.
On appeal, Cade makes two arguments. First, she asserts that
the district court had subject matter jurisdiction over her
demotion by the USPS because she presented a “mixed case” to the
*
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this opinion should not be published and is not precedent except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.
MSPB by arguing that the demotion was discriminatory. Second, she
argues that the district court had subject matter jurisdiction over
her other claims of sexual harassment and retaliation because the
EEOC never decided her appeal and therefore her administrative
remedies are considered exhausted.
The district court found that Cade’s complaint seeking review
of the MSPB’s decision was not a “mixed case” because she failed to
assert any discrimination claims with the MSPB at any stage of the
proceedings. Our review of the record confirms that Cade failed to
allege any discrimination on the form used to appeal her adverse
personnel action to the MSPB. She left blank Question #23 which
specifically asked whether she claimed that the matter appealed
involved discrimination. Also, her own Statement of Facts and
Issues to the MSPB Administrative Judge lacked any allegations of
discrimination.
We also agree with the district court that if Cade intended to
assert a separate Title VII claim (apart from her request for
review of the MSPB decision), the court lacked subject matter
jurisdiction because she failed to show that she exhausted her
administrative remedies, as required by Title VII. The EEOC
dismissed Cade’s complaint (filed in September 1996) because she
had already appealed her demotion to the MSPB. Under 29 C.F.R §
1614.302(b) (1998) when an employee files both an EEO complaint and
an MSPB appeal on the same matter, “whichever is filed first shall
be considered an election to proceed in that forum.” Because Cade
filed her MSPB appeal first, the EEOC correctly dismissed her
complaint under 29 C.F.R § 1614.107(d) (1998).
2
For the reasons given by the district court in its September
23, 1998 ruling and for these additional reasons, we affirm.
AFFIRMED.
3