Garry Heimrich v. Usdoa ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARRY HEIMRICH, No. 18-36005
Plaintiff-Appellant,
D.C. No.
v. 3:17-cv-01615-
HZ
UNITED STATES DEPARTMENT OF THE
ARMY; MARK T. ESPER, Secretary,
Department of the Army, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
Argued and Submitted November 7, 2019
Portland, Oregon
Filed January 16, 2020
Before: Ronald Lee Gilman, * Richard A. Paez,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Gilman
*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 HEIMRICH V. U.S. DEP’T OF THE ARMY
SUMMARY **
Civil Service Reform Act of 1978
The panel affirmed the district court’s Fed. R. Civ. P.
12(b)(6) dismissal of a former federal employee’s Equal
Employment Opportunity (“EEO”) complaint challenging
his removal from his position as a power-plant mechanic
with the United States Army Corps of Engineers.
5 U.S.C. § 7121(d), a provision of the Civil Service
Reform Act of 1978, provides that unionized federal
employees seeking to bring discrimination claims may “raise
the matter” through either (1) their union’s negotiated
procedure, or (2) their agency’s EEO office, “but not both.”
Plaintiff initially challenged his removal by filing a
grievance through his union’s negotiated procedure, and
then filed a separate complaint with the Army Corps’ EEO
office. Plaintiff contended on appeal that his EEO complaint
contained allegations of a hostile work environment that
were not presented in his collective bargaining agreement
(“CBA”) grievance, so the complaint did not raise the same
“matter.”
The panel held that plaintiff’s EEO complaint raised the
same matters as previously covered in plaintiff’s union
grievance, which was prohibited by § 7121(d). Specifically,
the panel held that the term “matter” in § 7121(d): referred
to the underlying action in the CBA grievance or the EEO
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HEIMRICH V. U.S. DEP’T OF THE ARMY 3
complaint; was broader than legal theory; and referred to the
factual basis of the employee’s adverse action. The panel
further held that it would not impute a hostile-work-
environment claim where no such allegation expressly
appeared in plaintiff’s EEO complaint. The panel concluded
that plaintiff’s attempt to raise new legal arguments to
challenge his termination failed under § 7121(d). The panel
noted that, although plaintiff’s EEO complaint was barred,
there was a procedure available to raise the hostile-work-
environment claim: had plaintiff exhausted the union
grievance procedure, he could have appealed to the Equal
Employment Opportunity Commission, and then amended
his CBA grievance under 29 C.F.R. § 1614.106(d) to pursue
a hostile-work-environment claim before the Commission.
COUNSEL
Shaun Ryan Yancey (argued), Melville Johnson P.C.,
Atlanta, Georgia; Craig A. Crispin, Crispin Employment
Law PC, Portland, Oregon; for Plaintiff-Appellant.
Jared D. Hager (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams United
States Attorney; United States Attorney’s Office, Portland,
Oregon; for Defendants-Appellees.
4 HEIMRICH V. U.S. DEP’T OF THE ARMY
OPINION
GILMAN, Circuit Judge:
This case focuses on 5 U.S.C. § 7121(d), a provision of
the Civil Service Reform Act of 1978. Section 7121(d)
provides that unionized federal employees seeking to bring
discrimination claims may “raise the matter” through either
(1) their union’s negotiated procedure, or (2) their agency’s
Equal Employment Opportunity (EEO) office, “but not
both.”
Garry Heimrich was removed from his position as a
power-plant mechanic for the United States Army Corps of
Engineers in 2016. He initially challenged his removal by
filing a grievance through his union’s negotiated procedure.
He then filed a separate complaint with the Army Corps’s
EEO office. The Army Corps contends that the EEO
complaint raises the same matters as previously covered in
Heimrich’s union grievance, which is prohibited by
§ 7121(d). Heimrich, in response, argues that his EEO
complaint contains allegations of a hostile work
environment, a separate matter not explicitly raised in his
union grievance. The district court agreed with the Army
Corps, granting the latter’s motion to dismiss Heimrich’s
complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim. For the reasons set
forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
Heimrich worked as a power-plant mechanic for the
Army Corps from September 2011 to July 2016, at which
time he was terminated from his position. In its notice to
Heimrich, the Army Corps cited as reasons for Heimrich’s
removal his defiance towards supervisors, noncompliance
HEIMRICH V. U.S. DEP’T OF THE ARMY 5
with leave procedures, submission of fabricated medical
documents in leave requests, and disruptive behavior.
Heimrich was a member of the United Power Trades
Organization (UPTO). He was thus covered under the
collective bargaining agreement (CBA) between UPTO and
the Army Corps, which allows UPTO and its members to file
grievances against the agency. In August 2016, UPTO filed
a grievance on Heimrich’s behalf, challenging his
termination as discriminatory and retaliatory. The CBA
grievance described a difficult relationship between
Heimrich and the Army Corps, which was “exacerbated by
both personal issues being dealt with by Mr. Heimrich and
by actions the [Army Corps] has taken in response to the
symptoms of the stress related disability diagnosed in
Mr. Heimrich.”
More specifically, the CBA grievance alleged that
Heimrich was “under constant observation by [Army Corps]
management” and that he was subject to selectively imposed
performance standards and leave restrictions. This
heightened scrutiny, the CBA grievance asserted, allowed
the Army Corps to gather negative material on Heimrich and
to ultimately remove him from his position. Heimrich’s
CBA grievance also generally cited violations of the
Americans with Disabilities Act, as well as CBA Article 4.1,
which prohibits “discrimination on the basis of race, color,
religion, sex, national origin, age, mental or physical
disabilities, and reprisal.”
The Army Corps upheld Heimrich’s termination at the
first step of the CBA grievance procedure. UPTO then
submitted the CBA grievance to the next step of the
negotiated procedure, and the Army Corps again upheld its
decision. UPTO finally requested that the CBA grievance
be submitted to arbitration.
6 HEIMRICH V. U.S. DEP’T OF THE ARMY
At that point, Heimrich filed a formal complaint with the
Army Corps’s EEO office. The EEO complaint alleged that
Heimrich’s termination resulted from discriminatory and
retaliatory treatment. Specifically, Heimrich argued that he
had been discriminated against due to (1) his disability status
as an alcoholic, and (2) the race of his wife and children,
who are African American (Heimrich is Caucasian).
Heimrich further alleged that he was retaliated against
because he raised safety concerns in Army Corps meetings.
The complaint also described several specific acts by Army
Corps employees not contained within Heimrich’s CBA
grievance.
In October 2016, the Army Corps’s EEO office
dismissed the complaint, informing Heimrich that the EEO
office could not consider his claims because he had made a
prior election to pursue the matter via the negotiated
grievance procedure. Heimrich filed an appeal of the
dismissal with the Equal Employment Opportunity
Commission (EEOC) the following month. While awaiting
the EEOC’s decision, Heimrich withdrew his request for
arbitration of his CBA grievance.
The EEOC affirmed the Army Corps’s dismissal of
Heimrich’s complaint in January 2017. Heimrich’s request
for reconsideration was subsequently denied, and the EEOC
informed of him of his right to file an appeal in federal
district court. He then timely proceeded to file his federal-
court complaint.
The Army Corps moved to dismiss Heimrich’s
complaint for failure to state a claim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. After determining that
Heimrich’s CBA grievance and his EEO complaint raised
the same “matter,” the district court granted the Army
Corps’s motion on the basis that Heimrich’s EEO complaint
HEIMRICH V. U.S. DEP’T OF THE ARMY 7
was filed in contravention of 5 U.S.C. § 7121(d). See
Heimrich v. Dep’t of Army, No. 3:17-CV-01615, 2018 WL
1938296, at *5 (D. Or. Apr. 20, 2018). This appeal
followed.
II. ANALYSIS
A. Standard of review
Dismissal for failure to state a claim is a question of law
that we review de novo. Kruso v. Int’l Tel. & Telegraph
Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The complaint “does not need detailed
factual allegations,” but the plaintiff must provide more than
“labels and conclusions” to withstand scrutiny under Rule
12(b)(6). Twombly, 550 U.S. at 555. In evaluating such
motions, “[w]e accept as true all well pleaded facts in the
complaint and construe them in the light most favorable to
the nonmoving party.” Zadrozny v. Bank of N.Y. Mellon,
720 F.3d 1163, 1167 (9th Cir. 2013) (citations omitted).
B. The Civil Service Reform Act of 1978
The Civil Service Reform Act of 1978 (CSRA)
establishes labor-management-relations practices for most
federal workers. 5 U.S.C. § 7101 et seq. Recognizing that
“the right of employees to organize, bargain collectively, and
participate through labor organizations . . . safeguards the
public interest,” 5 U.S.C. § 7101(a)(1)(A), the CSRA
authorizes specified employees to “form, join, or assist any
labor organization,” 5 U.S.C. § 7102. The CSRA provides
for the formation of collective bargaining agreements
8 HEIMRICH V. U.S. DEP’T OF THE ARMY
(CBAs) between labor organizations and federal agencies,
5 U.S.C. § 7114, and it requires that CBAs “provide
procedures for the settlement of grievances,” 5 U.S.C.
§ 7121(a)(1). A CBA’s procedures constitute the “exclusive
administrative procedures for resolving grievances which
fall within its coverage,” with several noted exceptions. Id.
The provision of the CSRA in question in the present
case, 5 U.S.C. § 7121(d), constitutes one such exception.
Section 7121(d) sets forth the options available to unionized
federal employees who, like Heimrich, raise grievances
involving allegations of discrimination. Where the
employee is affected by one of the discriminatory practices
listed under 5 U.S.C. § 2302(b)(1)—and where the
applicable CBA allows employees to raise discrimination
claims—§ 7121(d) establishes two alternative means by
which to raise the “matter.”
The aggrieved employee may, as one option, raise the
matter by filing a grievance under the “negotiated
procedure” described in the CBA. See id.; see also 29 C.F.R.
§ 1614.301(a). In the alternative, the employee may raise
the matter under the “statutory procedure” by filing a formal
complaint with the employing agency’s EEO office. See
5 U.S.C. § 7121(d); see also 29 C.F.R. § 1614.301(a). The
employee “shall be deemed to have exercised his option”
under § 7121(d) when he or she files the grievance or the
EEO complaint, whichever first occurs. See 5 U.S.C.
§ 7121(d). These procedures are mutually exclusive,
meaning that an aggrieved employee seeking redress for a
prohibited personnel practice under the CSRA may “raise
the matter under a statutory procedure or the negotiated
procedure, but not both.” Id. (emphasis added); see also
Vinieratos v. U.S. Dep’t of the Air Force, 939 F.2d 762, 768
HEIMRICH V. U.S. DEP’T OF THE ARMY 9
(9th Cir. 1991) (explaining that an employee’s election is
irrevocable).
C. Defining the term “matter” under 5 U.S.C. § 7121(d)
At issue is whether Heimrich’s CBA grievance and his
EEO complaint raised the same “matter” under § 7121(d).
Heimrich contends that his EEO complaint contains
allegations of a hostile work environment that were not
presented in his CBA grievance, so that the grievance and
the complaint did not raise the same “matter.” The Army
Corps, however, argues that Heimrich’s EEO complaint
covers the same matters previously raised in his CBA
grievance. Therefore, the Army Corps argues, the EEO
office properly dismissed Heimrich’s EEO complaint.
The district court noted that “[b]inding Ninth Circuit
case law that interprets the term ‘same matter’ under
5 U.S.C. § 7121(d) and 29 C.F.R. § 1614.301(a) is sparse.”
Heimrich, 2018 WL 1938296, at *4. Cases outside this
circuit, however, provide guidance. The leading cases are
Bonner v. Merit Systems Protection Board, 781 F.2d 202
(Fed. Cir. 1986), and Facha v. Cisneros, 914 F. Supp. 1142
(E.D. Pa. 1996), aff’d, 106 F.3d 384 (3d Cir. 1996)
(unpublished table decision).
The Federal Circuit in Bonner held that the term “matter”
under § 7121(d) refers to the “underlying action” challenged
in the CBA grievance or the EEO complaint. 781 F.2d
at 205. In reaching this conclusion, the court looked to
congressional reports preceding the enactment of the CSRA,
which largely used the term “matter” to refer to the
underlying actions by the agency. Id. at 204. The court also
noted that other subsections of § 7121 refer to underlying
government actions as “matters.” Id. at 204–205. To assign
any other definition to the term, the court decided, would be
10 HEIMRICH V. U.S. DEP’T OF THE ARMY
“inconsistent with the clear meaning of the statute.” Id.
at 205.
In Facha, the district court embraced the definition of the
term “matter” in Bonner and established the following test:
if the aggrieved employee “raised a topic in both” the CBA
grievance and the EEO complaint, or if those assigned to
handle the CBA grievance or the EEO complaint would
“necessarily have needed to inquire into a topic in
discharging their duties,” then the employee has raised the
same matter. 914 F. Supp. at 1149. This inquiry requires
the court to “focus on the ‘matter’ that the employee raised
. . . , not on legal jargon.” Id. at 1148.
A number of courts in other circuits have relied on the
approach set forth in Bonner and Facha. The D.C. Circuit
in Guerra v. Cuomo, 176 F.3d 547, 550 (D.C. Cir. 1999), for
example, did not expressly adopt a definition of the term
“matter” under 5 U.S.C. § 7121(d), but the court cited
Bonner and Facha with approval, noting that “courts have
tended to construe the term ‘matter’ to encompass more than
a legal claim and instead to encompass the ‘underlying
action,’ or the ‘topics’ raised.” Id. at 550 (citations omitted).
See also Rosell v. Wood, 357 F. Supp. 2d 123, 129–30
(D.D.C. 2004) (citing Guerra and Bonner as authority for
the determination that the employee in question raised the
same matter in both his CBA grievance and in his EEO
complaint). Similarly, in Mustafa v. Iancu, 313 F. Supp. 3d
684, 692 (E.D. Va. 2018), an employee attempted to raise a
hostile-work-environment claim through the EEO process.
The court determined that the employee had previously
raised the bases for his claim as part of his earlier CBA
grievance. See id. at 692. Citing Bonner and other cases,
the court concluded that § 7121(d) prevented the employee
from pursuing his claim through the EEO process, even
HEIMRICH V. U.S. DEP’T OF THE ARMY 11
though the employee did not “package defendant’s actions
as part of a hostile work environment claim” during the CBA
process. See id.
Other courts have applied the tests in Bonner and Facha
to determine that an employee had raised separate matters
under § 7121(d). The court in Zuzul v. McDonald, 98
F. Supp. 3d 852, 861–62 (M.D.N.C. 2015), for example,
cited the definition in Bonner and the test in Facha to
conclude that an employee’s CBA grievance involving an
assault-and-battery claim and her EEO complaint involving
allegations of gender and racial harassment raised different
matters. Likewise, in Smith v. Jackson, 539 F. Supp. 2d 116,
131 (D.D.C. 2008), the court concluded that an employee’s
CBA grievance and his EEO complaint contained the same
matter to the extent that both challenged the revocation of a
Compressed Work Schedule and charges of Absence
Without Leave, but the court determined that the EEO
complaint also contained unrelated allegations of a hostile
work environment.
A similar approach to that in Bonner and Facha has been
embraced by a district court within this circuit. In Macy v.
Dalton, 853 F. Supp. 350 (E.D. Cal. 1994), a group of federal
employees challenged their Reduction in Force terminations
through both CBA grievances and EEO complaints. Id.
at 352. The court in Macy adopted the logic in Bonner to
conclude that the term “matter” encompasses not only the
legal theory behind an employee’s claim, but also the
underlying adverse action. Id. at 353. In reaching this
conclusion, the court considered the implementing
regulation of the EEOC, which makes clear that a plaintiff
need not have raised a discrimination claim in order to have
raised the same “matter” under § 7121(d). The regulation in
question provides as follows:
12 HEIMRICH V. U.S. DEP’T OF THE ARMY
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
grievance has raised an issue of
discrimination.
29 C.F.R. § 1614.301(a).
Considering the standard for reviewing interpretive rules
put forth in Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944), the court in Macy determined that the EEOC’s
interpretation of the term “matter” in § 7121(d) was
persuasive and worthy of deference, noting that “[t]he
regulation would have to substantially contradict the statute
in order to justify judicial tinkering with this comprehensive
regulatory scheme.” 853 F. Supp. at 354. The court
concluded that “[t]he dictates of this regulation are clear: if
an employee chooses the grievance route, she may not
thereafter file an EEO complaint regardless of whether her
grievance alleged unlawful discrimination.” Id.
In light of the wording and legislative history of 5 U.S.C.
§ 7121(d), as well as the persuasive consensus among courts
within and outside this circuit, we adopt the definition of the
term “matter” as set forth in Bonner. In other words, we hold
that the term “matter” in 5 U.S.C. § 7121(d) refers to the
“underlying action” in the CBA grievance or the EEO
complaint. “Matter,” then, as other courts have
acknowledged, is broader than “legal theory”: it refers to the
factual basis of the employee’s adverse action. This leads us
to the consideration of whether Heimrich has challenged the
HEIMRICH V. U.S. DEP’T OF THE ARMY 13
same underlying government action in both his CBA
grievance and in his EEO complaint.
D. Heimrich’s CBA grievance and his EEO complaint
Heimrich does not contest that, to the extent that both his
CBA grievance and his EEO complaint challenge his
termination, the complaint was rightfully dismissed. He
instead argues that his EEO complaint contained matters in
addition to his termination, and that the parts of the
complaint addressing these additional matters were
wrongfully dismissed.
Heimrich’s brief asserts, more specifically, that his EEO
complaint contained allegations of a hostile work
environment based on “(1) race by familial association;
(2) retaliation; and (3) disability discrimination.” The key
problem with this argument, however, is that his EEO
complaint in fact contains no mention of a hostile-work-
environment claim. It instead alleges that Heimrich was
wrongfully terminated on the bases quoted above, stating
that
the grounds given by management for
[Heimrich’s] removal from the Corps of
Engineers are false and that the real reasons
are: 1) retaliation for raising safety concerns;
2) complaining to the OSC and the MSPB;
3) discrimination against [Heimrich] for
being a recovering alcoholic and using
medical leave; and 4) having an African
American wife and children.
Heimrich’s belated attempt to retroactively
recharacterize his challenge to his termination is unavailing.
We will not impute a hostile-work-environment claim where
14 HEIMRICH V. U.S. DEP’T OF THE ARMY
no such allegation expressly appears in Heimrich’s EEO
complaint.
Heimrich further argues that his EEO complaint
discussed “several harassing acts” not addressed in his CBA
grievance. Although he does not point to any specific
sections of his complaint in support of this contention, two
particular allegations arguably fall within this category. One
paragraph in the complaint alleges that an employee referred
to Heimrich’s African-American wife and children using a
racial epithet and that another employee made a racially
charged statement regarding Heimrich’s son. Another
sentence notes that Heimrich informed his supervisors that
his drinking was exacerbated by the harassment he received
in the form of “unwarranted discipline and leave restriction.”
We see no indication, however, that Heimrich intended
to establish a separate hostile-work-environment claim on
these bases. The natural reading of Heimrich’s EEO
complaint is that these allegations were included to support
his challenge to his termination under a new legal theory—
that he was removed on the basis of his family’s race and his
disability. Under the definition set forth in Bonner and now
adopted by this court, Heimrich’s attempt to raise new legal
arguments to challenge his termination must fail under
5 U.S.C. § 7121(d). Other courts have similarly rejected
attempts to reframe CBA grievances under new theories of
discrimination. See, e.g., Rosell v. Wood, 357 F. Supp. 2d
123, 131 (D.D.C. 2004).
Heimrich’s own EEO complaint supports our
conclusion. He checked the box on the EEO form indicating
that he had previously raised the same issues in his CBA
complaint under a union-negotiated grievance procedure.
His appeal to the EEOC also noted that he had previously
filed a complaint on the same matter with his collective
HEIMRICH V. U.S. DEP’T OF THE ARMY 15
bargaining unit. Finally, the district court observed that
Heimrich, in his federal-court complaint, described his EEO
complaint as challenging his termination, but made no
mention of a hostile-work-environment claim. See
Heimrich, 2018 WL 1938296, at *3 n.2.
Moreover, even if Heimrich’s EEO complaint had
contained a specific hostile-work-environment claim, this
would not change the outcome because the basic underlying
facts remain the same. Heimrich, after all, alleged in his
EEO complaint that his family’s race and his disability were
factors that led to his termination. He therefore should have
raised these facts in his CBA grievance, where an arbitrator
charged with handling the grievance would necessarily have
inquired into the specific acts allegedly supporting his claim
of wrongful termination. See Facha, 914 F. Supp. at 1149.
Heimrich’s failure to do so should not give him two bites at
the apple. This is the precise point of 5 U.S.C. § 7121(d),
which allows an employee to raise the “matter” in either a
CBA grievance or an EEO complaint, but not both.
We also note that, although Heimrich’s EEO complaint
is barred, there was a procedure available to Heimrich to
raise his hostile-work-environment claim in the grievance
process. Had he exhausted the union grievance procedure,
he could have appealed to the EEOC. See 29 C.F.R.
§ 1614.401(d). He could then have amended his CBA
grievance under 29 C.F.R. § 1614.106(d), which governs
complaints within the EEOC’s agency program. It provides
that “[a] complainant may amend a complaint at any time
prior to the conclusion of the investigation to include issues
or claims like or related to those raised in the complaint.” Id.
Heimrich would have therefore been able to pursue a hostile-
work-environment claim before the EEOC if he had so
desired. But what he could not do is attempt to pursue a
16 HEIMRICH V. U.S. DEP’T OF THE ARMY
hostile-work-environment claim in a separate EEO
complaint.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.