and Submitted November 7, 2019 Portland, Oregon
from the United States District Court No. 3:17-cv-01615-HZ
for the District of Oregon Marco A. Hernandez, Chief District
Ryan Yancey (argued), Melville Johnson P.C., Atlanta,
Georgia; Craig A. Crispin, Crispin Employment Law PC,
Portland, Oregon; for Plaintiff-Appellant.
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.
Service Reform Act of 1978
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.
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
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."
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.
GILMAN, CIRCUIT JUDGE
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."
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.
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.
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