United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 1, 2005
Charles R. Fulbruge III
Clerk
No. 05-30075
Summary Calendar
SYLVESTER CASIMIER, JR
Plaintiff - Appellant
v.
UNITED STATES POSTAL SERVICE, John E. Potter, Postmaster General
Defendant - Appellee
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Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
2:03-CV-3063-B
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Sylvester Casimier, Jr. (“Casimier”)
appeals the district court’s grant of summary judgment in favor
of Defendant-Appellee the United States Postal Service, John E.
Potter, Postmaster General (the “Postal Service”). For the
reasons that follow, we affirm the judgment of the district
court.
The following facts are undisputed by the parties. In 1996,
Casimier was employed by the Postal Service as a Distribution
*
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this opinion should not be published and is not precedent except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.
No. 05-30075
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Clerk. On January 10, 1997, the Postal Service issued to
Casimier a notice of proposed removal which stated that Casimier
had been reported being absent without official leave for
approximately four hours per day for more than eighty days from
August 1, 1996 through December 31, 1996. On March 13, 1997, the
Postal Service issued a letter of decision stating that
Casimier’s removal would be effective March 15, 1997. The letter
of decision also notified Casimier that if he believed his
removal was based in whole or in part on discrimination, he had
the right to file either (1) an appeal to the Merit Systems
Protection Board (“MSPB”), or (2) an equal employment opportunity
(“EEO”) complaint with the Postal Service.
The record indicates that Casimier challenged his removal by
filing both an appeal to the MSPB and an EEO complaint with the
Postal Service. On January 21, 1997, Casimier filed an informal
complaint with the Postal Service EEO office. In his informal
EEO complaint, Casimier alleged that he was subjected to
discrimination on account of his race, sex, color, physical
handicap, and age. On April 10, 1997, Casimier received by
certified mail a Notice of Final Interview and Right to File a
Formal Complaint, which notified Casimier that he had fifteen
days to file a formal complaint. Casimier, however, never filed
a formal complaint of discrimination and his EEO claim,
therefore, was never investigated.
No. 05-30075
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Instead, on April 8, 1997, Casimier appealed his removal to
the MSPB. On his MSPB appeal form, Casimier did not contend that
his removal by the Postal Service was based in whole or in part
on discrimination. On June 23, 1997, an administrative officer
dismissed Casimier’s MSPB appeal as withdrawn. Casimier
subsequently filed a petition for review, challenging the
dismissal of his MSPB appeal. On March 10, 1998, the MSPB
remanded the case, and on July 31, 1998, an administrative
officer affirmed Casimier’s removal by the Postal Service.
Casimier petitioned for review of that decision, but on September
30, 1998, the MSPB denied his petition.
On March 22, 2001, two and a half years after the MSPB’s
final action, Casimier filed a second informal complaint with the
Postal Service EEO office. In this complaint, Casimier alleged
that he was subjected to discrimination based on his race, sex,
color, national origin, physical and mental disability, age, and
in retaliation for his prior EEO activity.
On May 17, 2001, Casimier was notified of his right to file
a formal complaint of discrimination, which Casimier did on May
25, 2001. On June 18, 2001, the Postal Service dismissed
Casimier’s complaint. The Postal Service concluded that
Casimier’s 2001 claim was identical to the claim Casimier failed
to fully exhaust in 1997, necessitating dismissal of the 2001
complaint pursuant to 29 C.F.R. § 1614.107(a)(1). However, on
December 9, 2002, the Equal Employment Opportunity Commission
No. 05-30075
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(“EEOC”) reversed the Postal Service’s decision, and remanded the
case for further processing. The EEOC determined that because
Casimier’s 1997 claim never resulted in a formal complaint, his
2001 complaint could not be dismissed since it was not comprised
of a claim already pending or decided in a previous complaint.
On February 4, 2003, the Postal Service again denied
Casimier’s 2001 complaint. In so doing, the Postal Service
determined that Casimier’s election to pursue the issue of his
removal with the MSPB prevented his pursuit of an EEO claim. The
Postal Service also notified Casimier of his right to file a
civil action within ninety days, or in the alternative, to file
an appeal to the EEOC within thirty days. Casimier elected to
appeal to the EEOC, and on August 8, 2003, the EEOC upheld the
Postal Service’s dismissal of Casimier’s complaint:
[T]he record reflects that [Casimier] filed an appeal
with the MSPB on April 8, 1997 concerning his termination
. . . , but did not file his EEO complaint until May 25,
2001. [In so doing, Casimier] elected to pursue his
claim via MSPB, [and] not the EEO process. 29 C.F.R. §
1614.302(b). Accordingly, we AFFIRM the agency’s final
decision, dismissing the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(4).
Casimier subsequently filed a request for reconsideration, which
was denied on September 29, 2003.
On October 30, 2003, Casimier timely filed a complaint in
federal district court against the Postal Service alleging
employment discrimination. On January 3, 2005, the district
court granted the Postal Service’s motion for summary judgment on
the ground that Casimier waived his discrimination claims by
No. 05-30075
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failing to include them in his MSPB appeal. This appeal by
Casimier followed.
We review the district court’s grant of summary judgment de
novo. In re Intelogic Trace, Inc., 200 F.3d 382, 386 (5th Cir.
2000). Having done so, we conclude that Casimier waived his
discrimination claims by failing to raise the issue of
discrimination in his MSBP appeal.
A “mixed case” appeal denotes a situation, such as that in
the instant case, in which a plaintiff claims that an appealable
agency action was based in whole or in part on discrimination.
See Blake v. Dep’t of Air Force, 794 F.2d 170, 172 n.1 (5th Cir.
1986). Pursuant to 29 C.F.R. § 1614.302(b), an employee who
alleges that discrimination was a component of an adverse
personnel action is afforded two options: he can file either a
mixed case complaint with his agency’s EEO office or a mixed case
appeal directly to the MSPB, “but not both.” Section 1614.302(b)
further states that “whichever is filed first [a formal
administrative mixed case complaint with the EEO or a mixed case
appeal with the MSPB] shall be considered an election to proceed
in that forum.” Accordingly, if an employee believes that
discrimination is a component of an adverse personnel action, the
issue of discrimination must be raised from the outset
irrespective of whether the employee elects to file with his
agency’s EEO or the MSPB.
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In the instant case, Casimier elected to appeal his removal
to the MSPB. However, in so doing, Casimier elected not to bring
a mixed case appeal. Casimier did not file a mixed case appeal
with the MSPB because he did not contend that his removal was
based in whole or in part on discrimination. In failing to raise
the issue of discrimination in his MSPB appeal, Casimier waived
his right to challenge his termination based on discrimination.
See 5 C.F.R. §§ 1201.24 and 1201.153. Moreover, Casimier’s 2001
effort to reinitiate an EEO complaint with the Postal Service
regarding his removal was foreclosed by his 1997 election to
appeal his removal to the MSPB rather than the Postal Service’s
EEO office. See 29 C.F.R. § 1614.302(b).1 Accordingly, we
affirm the judgment of the district court granting the Postal
Service’s motion for summary judgment.
AFFIRMED.
1
Moreover, Casimier failed to timely exhaust his
administrative EEO remedies regarding his March 15, 1997 removal.
Specifically, (1) Casimier failed to file a formal EEO complaint
within fifteen days of his receipt of the Notice of Final
Interview from the Postal Service’s EEO office, as required under
29 C.F.R. § 1614.106(b), and (2) Casimier’s 2001 effort to
reinitiate an EEO complaint with the Postal Service regarding his
allegations of discrimination occurred more than four years after
his removal, rendering that complaint untimely under 29 C.F.R. §
1614.105(a).