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Heimrich v. United States Department of Army

United States Court of Appeals, Ninth Circuit

January 16, 2020

Garry Heimrich, Plaintiff-Appellant,
v.
United States Department of the Army; Mark T. Esper, Secretary, Department of the Army, Defendants-Appellees.

          Argued and Submitted November 7, 2019 Portland, Oregon

          Appeal from the United States District Court No. 3:17-cv-01615-HZ for the District of Oregon Marco A. Hernandez, Chief District Judge, Presiding

          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.

          Before: Ronald Lee Gilman, [*] Richard A. Paez, and Johnnie B. Rawlinson, Circuit Judges.

         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 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.

          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 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. ...


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