                      UNITED STATES COURT OF APPEALS
                               FIFTH CIRCUIT

                                 ____________

                                 No. 97-30954
                                 ____________


            COLBURN P. RANDEL,


                                    Plaintiff-Appellant,

            versus


            UNITED STATES DEPARTMENT OF THE NAVY, JOHN H.
            DALTON, Secretary


                                    Defendant-Appellee.




            Appeal from the United States District Court
                for the Eastern District of Louisiana


                               October 15, 1998

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA,
Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

            Plaintiff, Colburn Randel, appeals the district court’s

dismissal of his Title VII action pursuant to Rule 12(b)(1) of the

Federal Rules    of    Civil    Procedure.      Randel   contends   that   the

district court erred in determining that (1) he failed to exhaust

his administrative remedies with respect to his claim of racial

discrimination, and (2) he did not timely appeal his claim for

reprisal.    Concluding that the district court is correct with

respect to the racial discrimination claim, but incorrect with
respect to the reprisal claim, we affirm in part, reverse in part,

and remand for further proceedings consistent with this opinion.

                                       I

     Colburn Randel worked as a computer specialist for the Naval

Research Personnel Center. Beginning in 1994, Randel initiated the

first of two proceedings against his employer, John H. Dalton,

Secretary of the Department of the United States Navy (“the Navy”)

alleging discrimination in violation of Title VII.

     The first proceeding (“Randel I”) began in March 1994, when
Randel filed an Equal Employment Opportunity (“EEO”) complaint of

racial discrimination against his supervisor.                In June 1994, this

complaint    was   referred     to   the    Equal    Employment        Opportunity

Commission (“EEOC”) for review. The EEOC did not render a decision

within 180 days, and therefore, on April 19, 1995, Randel filed his

complaint in federal district court. See 5 U.S.C. § 7702(e)(1).

     The second proceeding (“Randel II”) began on October 14, 1994,

one month after the Navy fired Randel allegedly for excessive

unexcused    absences.     Believing        that    he     suffered    from   major
depression due to his work environment, and that he was entitled to

sick leave for this disability, Randel appealed his removal to the

Merit Systems Protection Board (“MSPB”).             Before the MSPB, Randel

claimed     that   the   Navy   unlawfully         fired     him,     and   alleged

specifically that his termination constituted both reprisal for his

prior EEO complaint and disability discrimination.                  This appeal to

the MSPB did not contain a claim of racial discrimination.                      The

MSPB upheld the Navy’s decision to fire Randel, and on June 13,

                                      -2-
1995, Randel appealed the MSPB’s decision to the EEOC.                  See 5

U.S.C. § 7702(b)(1).

      On August 25, 1995, before the EEOC reached a decision in

Randel II, Randel filed an amended complaint in Randel I asserting

a claim of disability discrimination.                Thus, Randel asked the

district court to decide his disability discrimination claim as

part of Randel I, even though the same claim remained pending

before the EEOC in Randel II.            The district court concluded that

Randel had failed to exhaust his administrative remedies, and
dismissed Randel I for lack of subject matter jurisdiction.

      On August 8, 1996, the EEOC issued its decision in Randel II.

The EEOC reached two conclusions.            First, it concurred with the

MSPB that the Navy did not fire Randel in reprisal for filing the

EEO complaint for racial discrimination.              Second, it found that

contrary    to   the   MSPB’s     prior     determination,   the    Navy   had

discriminated      against      Randel     because    of   his     disability.

Additionally, the EEOC explained that its decision was final and

that upon receipt of its decision Randel had “the right to file a
civil action in an appropriate United States District Court, based

on the decision of the Merit Systems Protection Board, WITHIN

THIRTY (30) CALENDAR DAYS....”           The EEOC then referred the case to

the MSPB pursuant to 5 U.S.C. § 7702(b)(5)(B).1            In an opinion and


      1
            Once the EEOC decides to consider a petition, the EEOC may take one
of two actions: the EEOC may either (1) concur with the decision of the MSPB,
or (2) issue a decision in writing that differs from the decision of the MSPB.
If the EEOC concurs with the MSPB’s decision, then the claimant has thirty days
from receiving notice to appeal to the district court. If the EEOC differs from
the MSPB’s decision, then the case is returned to the MSPB. The MSPB may then
either concur with the EEOC or reaffirm its original decision. If it concurs

                                     -3-
order dated November 12, 1996, the MSPB adopted the EEOC’s decision

finding disability discrimination, and notified Randel that he had

a right to file a civil action in United States District Court

within thirty days after receiving its order.

      On December 13, 1996))thirty days after receiving the MSPB

order))Randel appealed the decision of the EEOC, as confirmed by

the MSPB, to the United States District Court for the Eastern

District of Louisiana. Randel’s petition sought relief on both his

reprisal and racial discrimination claims.             The Navy moved for
dismissal, factually attacking the district court’s subject matter

jurisdiction.      The district court granted the motion for two

reasons.    First, the district court held that because Randel did

not appeal until ninety-seven days after the August 8th EEOC

decision he failed to timely appeal his reprisal claim.            Second, it

found that Randel never raised a claim of racial discrimination in

any of the proceedings in Randel II, and therefore failed to

exhaust his administrative remedies.            For     these reasons, the

district court concluded that it lacked jurisdiction over both
Randel’s reprisal claim and his claim of racial discrimination.

Randel appealed timely.

                                      II

      This appeal involves the district court’s denial of subject

matter jurisdiction over Randel’s claims pursuant to Rule 12(b)(1)


with the EEOC, then the administrative proceeding is exhausted and the claimant
has thirty days from receiving notice to appeal to the district court. If it
reaffirms its original decision, however, then the case is sent to a Special
Panel for further consideration.    See 5 U.S.C. § 7702; see also 29 C.F.R. §
1614.310 (1998).

                                     -4-
of the Federal Rules of Civil Procedure.             We review the district

court’s    determinations      of   disputed      fact   under      the   “clearly

erroneous” standard.      See MDPhysicians & Assoc., Inc. v. State Bd.

of Ins., 957 F.2d 178, 180-81 (5th Cir. 1992)(citing Williamson v.

Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).              Questions of law we

review de novo.    See Stults v. Conoco, Inc., 76 F.3d 651, 654 (5th

Cir. 1996).

     As a precondition to filing suit in federal court, Title VII

specifically requires a federal employee claiming discrimination to
exhaust his administrative remedies.           See Brown v. General Servs.

Admin., 425 U.S. 820, 832, 96 S.Ct 1961, 1965, 48 L.Ed. 2d 402

(1976)(“Initially, the complainant must seek relief in the agency

that has allegedly discriminated against him.”).               The complainant

also must file his complaint in a timely manner.                   See Tolbert v.

United States, 916 F.2d 245, 247 (5th Cir. 1990).                If the claimant

fails to comply with either of these requirements then the court is

deprived of jurisdiction over the case.             See id.

                                        A
     The    Navy   contends     that    Randel     failed     to    exhaust   his

administrative remedies as to his claim of racial discrimination.

The EEO charge filed in Randel II makes no reference to race

discrimination.      It   is    confined     to    reprisal      and   disability

discrimination.    Randel maintains nonetheless that the EEOC’s and

the MSPB’s findings of no reprisal necessarily include a finding of

no racial discrimination. We disagree. To recover on his reprisal

claim Randel had to prove that the Navy fired him because he

                                       -5-
complained to the EEOC; he did not “‘need [to] . . . prove the

underlying claim of discrimination which led to [his] protest.’”

Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997); see also

Aman v. Carol Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.

1996)(noting that “a plaintiff need not prove the merits of the

underlying discrimination complaint, but only that ‘he was acting

under     a    good   faith,    reasonable   belief        that   a   violation

existed’”)(citations omitted); Balazs v. Liebenthal, 32 F.3d 151,

158 (4th Cir. 1994)(stating that “[i]t is further generally held
that to sustain a suit for retaliation it is not necessary that the

plaintiff prove that the underlying claim of discrimination was

true”).        Randel’s racial discrimination claim is separate and

distinct from his reprisal claim, and accordingly, he must exhaust

his administrative remedies on that claim before seeking review in

federal court.        See Williams v. Little Rock Mun. Water Works, 21

F.3d    218,    223   (8th   Cir.   1994)(noting    that    plaintiff’s    race

discrimination claim was “separate and distinct from her claims of

retaliation” before the EEOC); see also Shannon v. Ford Motor Co.,
72 F.3d 678, 685 (8th Cir. 1995)(citing Williams, and noting that

even though the plaintiff in Williams mentioned her unexhausted

discrimination claim in her retaliation complaint, “this reference

to her previous complaint was not enough to exhaust, for Title VII

purposes, the discrimination claim”).              Thus, we agree with the

district court that, in relation to the racial discrimination

claim, Randel failed to exhaust his administrative remedies and

therefore, the court lacked jurisdiction.

                                      -6-
                                     B

      The district court’s conclusion that Randel did not appeal

timely   his    reprisal   claim   is,     however,    a   different   matter.

According to the district court, Randel “should have filed the

appeal within thirty days of the August 8, 1996 ruling by the

EEOC.”   The district court reasoned that because the EEOC and the

MSPB agreed as to the reprisal claim on August 8, 1996, the EEOC’s

decision on that claim became a final appealable decision.              Randel

argues that a final agency decision did not exist until November
12, 1996, when the MSPB and the EEOC agreed on both his reprisal

and disability claims.        We must decide, therefore, whether the

EEOC’s finding of no reprisal became final on August 8, 1996, for

purposes of appeal, even though Randel’s disability discrimination

claim remained unresolved until November 12, 1996. In other words,

we must decide whether the EEOC’s August 8th decision operated to

sever Randel’s reprisal claim from the rest of his complaint.               We

find that our reasoning in Gomez v. Department of the Air Force,

869 F.2d 852 (5th Cir. 1989) controls the resolution of this issue.
      In Gomez, the plaintiff filed a complaint with the EEOC

against the Secretary of the Department of the Air Force (“the Air

Force”), alleging discrimination based on national origin and

handicap. The EEOC rejected the plaintiff’s national origin claim,

but   referred    the   handicap   claim    to   the   MSPB   for   additional

evidence.      The EEOC did not take further action on his handicap

claim, and therefore, after waiting 180 days from when he first

filed his petition with the EEOC, the plaintiff submitted his

                                    -7-
complaint to the district court.            See 5 U.S.C. § 7702(e)(1).      The

district court dismissed for lack of subject matter jurisdiction

because the plaintiff did not file his action within thirty days of

the EEOC’s decision on his national origin claim.

      On appeal, we reversed. We held that because the EEOC’s order

never stated that it was severing the plaintiff’s national origin

claim,   and   because    the   regulatory     framework   did   not   support

piecemeal resolution of the plaintiff’s original complaint, the

plaintiff’s appeal was filed timely with the district court.                 We
carefully noted that the EEOC must provide prior notice to the

claimant before severing claims:

      We do not mean to suggest that the EEOC could not (or
      could) adopt a severance procedure in “mixed cases” where
      only discrimination claims are alleged.       Rather, we
      merely find that in the absence of any prior notice or
      indication on the part of the EEOC that it may utilize a
      severance procedure, we hesitate to recognize such a
      power on its part. . . . Finding severance, when there is
      nothing in the record to support the idea that the EEOC
      utilizes severance in mixed case (or in cases generally)
      or that they actually purported to sever in this case,
      would require a level of after-the-fact judicial
      improvisation that we are not willing to reach. It would
      also result in injustice to the claimant who could have
      had no prior knowledge of such practice.
Id. at 860-61.

      We now reiterate that if the EEOC wishes to use its power of

severance it must provide the claimant with clear and unambiguous

notice that it has chosen to sever his claims.2            In the absence of


      2
            We note that the EEOC has the power to sever in mixed cases where
only discrimination claims are alleged.      In mixed cases that contain both
discrimination and nondiscrimination claims, “the courts have refused to
countenance severance of the claims.” Gomez, 869 F.2d at 860; see also Williams
v. Department of the Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983)(finding that the
Court of Appeals for the Federal Circuit did not have the power to bifurcate

                                      -8-
clear direction from the EEOC, the claimant must wait until a final

decision   has   been    rendered   on      the   entirety      of   his   original

petition for review before appealing either claim to federal

district court.

     In this case, the EEOC did not provide adequate notice to

Randel that it was severing his claims. As Randel notes correctly,

the statement setting forth the plaintiff’s rights to file a civil

action “was unclear at best.”          Thus, Randel waited appropriately

until the MSPB rendered its final decision adopting the EEOC’s
finding of disability discrimination before appealing timely to

federal district court.

                                        C

     In addition to arguing that Randel did not file timely his

appeal, the Navy suggests another reason why the district court

lacked jurisdiction over Randel’s reprisal claim. According to the

Navy, by amending his district court complaint in Randel I to

include the same claim of disability discrimination then pending in

Randel II, Randel circumvented the administrative process and
therefore abandoned both his disability and reprisal claims before

the EEOC in Randel II.     In other words, according to the Navy, once

Randel   appealed   to    the   EEOC   and    then   prematurely       filed   the

disability   discrimination      claim       in   Randel   I,    the   EEOC    lost

jurisdiction to consider Randel’s entire appeal.

     As we read the record, the district court did not fully


mixed case appeals into nondiscrimination cases [for review by the federal
appeals court] and discrimination cases [for review by the federal district
court]).

                                       -9-
comprehend the Navy’s argument.                 It concluded that Randel did not

abandon    his     reprisal      claim     because       Randel      never    amended   his

complaint in Randel I to include a claim for reprisal.                           The Navy

makes a more nuanced argument.                   It argues that by amending his

complaint    in     Randel       I    to   include      even    just    the    disability

discrimination       claim,      Randel       terminated       the   entire    proceeding

before     the     EEOC.         Randel       never     exhausted,      therefore,      his

administrative remedies.

     We note that under some circumstances, “abandonment of the
administrative process may suffice to terminate an administrative

proceeding before a final disposition is reached, thus preventing

exhaustion and precluding judicial review.”                       Vinieratos v. United

States     Dep’t    of     Air       Force,     939     F.2d    762,    770    (9th     Cir.

1991)(emphasis added).               Neither the Ninth Circuit nor any other

circuit has specified when abandonment of one administrative claim

by a claimant will taint all of his claims and result in the

termination of the entire administrative proceeding.                           Some cases

suggest, however, that we should look to whether the claimant made
a good faith effort to cooperate with the administrative agency.

See, e.g., Munoz v. Aldridge, 894 F.2d 1489, 1492 (5th Cir.

1990)(noting that “exhaustion does require good faith participation

in the administrative process”).                      Besides filing his amended

complaint     in    Randel       I    to      include     a    claim    for    disability

discrimination, the record discloses no evidence that Randel failed

to cooperate or otherwise attempted to frustrate the administrative

process.    Thus, we hold that the circumstances of this case do not

                                              -10-
justify the severe result advocated by the Navy.           We are unwilling

to find that by amending his civil suit to include a claim of

disability discrimination in Randel I, Randel thereby abandoned his

reprisal claim in Randel II.3

                                     III

      For the foregoing reasons, we AFFIRM the district court’s

dismissal of Randel’s racial discrimination claim, we REVERSE its

dismissal of Randel’s reprisal claims, and we REMAND for further

proceedings consistent with this opinion.




      3
            We do not pass judgment on whether Randel abandoned his disability
claim by filing the same claim in Randel I. Although both parties briefed this
issue, neither party appealed the MSPB’s determination on Randel’s disability
discrimination claim to the district court. That claim, therefore, was not
properly presented to the district court, and is not considered on appeal. See
In the Matter of HECI Exploration Co., 862 F.2d 513, 517 n.5 (5th Cir.
1988)(noting that the district court “was not empowered to reach the merits” of
an issue on appeal from bankruptcy court because the appellee did not file a
notice of appeal).

                                     -11-
