Heimrich v. U.S. Dep't of the Army

• Decision Date: 16 January 2020
• Docket Number: No. 18-36005,18-36005
• Citation: 947 F.3d 574
• Parties: Garry HEIMRICH, Plaintiff-Appellant, v. United States DEPARTMENT OF THE ARMY; Mark T. Esper, Secretary, Department of the Army, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

947 F.3d 574

Garry HEIMRICH, Plaintiff-Appellant,

v.United States DEPARTMENT OF THE ARMY; Mark T. Esper, Secretary, Department of the Army, Defendants-Appellees.

No. 18-36005

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2019 Portland, Oregon

Filed January 16, 2020

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.

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. 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.

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 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 1955. 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 (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 (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...