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this opinion should not be published and is not precedent except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
2
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.
3
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.
6