* 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this opinion should not be published and is not precedent except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.

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.
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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.
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).

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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
4 29 CFR 1614.301(a) (1999).

5

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 nonpromotion as early as his informal complaint of June 21, 1996. 
6

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.