UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 98-31406 Summary Calendar ___________________________

PATRICIA A. CADE,

Plaintiff-Appellant,

VERSUS

WILLIAM HENDERSON, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE,

Defendant-Appellee.

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Appeal from the United States District Court for the Eastern District of Louisiana (98-CV-740-E) ___________________________________________________

October 6, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Patricia Cade appeals the district court’s dismissal of her

complaint challenging her adverse personnel action by the USPS for

lack of subject matter jurisdiction. The court also denied Cade’s

request for a new trial and transferred her request for judicial

review of the Merit Systems Protection Board’s (MSPB) order to the

Federal Circuit.

On appeal, Cade makes two arguments. First, she asserts that

the district court had subject matter jurisdiction over her

demotion by the USPS because she presented a “mixed case” to the

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. MSPB by arguing that the demotion was discriminatory. Second, she

argues that the district court had subject matter jurisdiction over

her other claims of sexual harassment and retaliation because the

EEOC never decided her appeal and therefore her administrative

remedies are considered exhausted.

The district court found that Cade’s complaint seeking review

of the MSPB’s decision was not a “mixed case” because she failed to

assert any discrimination claims with the MSPB at any stage of the

proceedings. Our review of the record confirms that Cade failed to

allege any discrimination on the form used to appeal her adverse

personnel action to the MSPB. She left blank Question #23 which

specifically asked whether she claimed that the matter appealed

involved discrimination. Also, her own Statement of Facts and

Issues to the MSPB Administrative Judge lacked any allegations of

discrimination.

We also agree with the district court that if Cade intended to

assert a separate Title VII claim (apart from her request for

review of the MSPB decision), the court lacked subject matter

jurisdiction because she failed to show that she exhausted her

administrative remedies, as required by Title VII. The EEOC

dismissed Cade’s complaint (filed in September 1996) because she

had already appealed her demotion to the MSPB. Under 29 C.F.R §

1614.302(b) (1998) when an employee files both an EEO complaint and

an MSPB appeal on the same matter, “whichever is filed first shall

be considered an election to proceed in that forum.” Because Cade

filed her MSPB appeal first, the EEOC correctly dismissed her

complaint under 29 C.F.R § 1614.107(d) (1998).

2 For the reasons given by the district court in its September

23, 1998 ruling and for these additional reasons, we affirm.

AFFIRMED.

3