                                                       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

                        --------------------
            Appeal from the United States District Court
         for the Eastern District of Louisiana, New Orleans
                           2:03-CV-3063-B
                        --------------------

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this opinion should not be published and is not precedent except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
                                -2-

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
                                  -3-

     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
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                                  -4-

(“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
                                 -5-

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.
                            No. 05-30075
                                 -6-

     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).
