Heimrich v. United States Department of the Army, No. 18-36005 (9th Cir. 2020)Annotate this Case
The Ninth Circuit affirmed the district court's dismissal, under Federal Rule of Civil Procedure 12(b)(6), of plaintiff's EEO complaint challenging his removal from his job as a power-plant mechanic with the Army Corps of Engineers. 5 U.S.C. 7121(d), a provision of the Civil Service Reform Act of 1978 (CSRA), 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."
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, the panel adopted the definition of the term "matter" as set forth in Bonner v. Merit Systems Protection Board, 781 F.2d 202 (Fed. Cir. 1986), and held that the term "matter" in section 7121(d) refers to the "underlying action" in the collective bargaining agreement (CBA) grievance or the EEO complaint. In this case, plaintiff's EEO complaint raised the same matters as previously covered in plaintiff's union grievance. Furthermore, the panel would not impute a hostile-work-environment claim where no such allegation expressly appeared in the EEO complaint. The panel noted that, although plaintiff's EEO complaint was barred, there was a procedure available to him to raise his hostile-work-environment claim in the grievance process.