American Federation of Government Employees, Local 2052 v. Reno

• Decision Date: 14 July 1993
• Docket Number: No. 91-5317,91-5317
• Citation: 992 F.2d 331
• Parties: 143 L.R.R.M. (BNA) 2082, 61 Empl. Prac. Dec. P 42,218, 301 U.S.App.D.C. 169 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2052, et al., Appellants, v. Janet RENO, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 331

992 F.2d 331

143 L.R.R.M. (BNA) 2082, 61 Empl. Prac. Dec. P

42,218,

301 U.S.App.D.C. 169

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2052, et

al., Appellants, v. Janet RENO, et al., Appellees.

No. 91-5317.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 25, 1993.

Decided April 23, 1993.

Rehearing Denied July 14, 1993.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 91-00615).

Alexia McCaskill, with whom Mark D. Roth, Charles A. Hobbie and Judith D. Galat were on the brief, for appellants.

James R. Layton, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellees.

Before BUCKLEY, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Acting pursuant to the negotiated grievance procedure provided by the collective bargaining agreement between the American Federation of Government Employees (AFGE or Union) and the Bureau of Prisons (BOP), an arbitrator upheld a grievance brought by the AFGE on behalf of one of its members against the BOP. Subsequently, the arbitrator denied the AFGE's application for attorneys' fees. The AFGE sought judicial review of the denial but the district court dismissed its complaint, concluding that the AFGE was first required to seek review by either the Merit Systems Protection Board (MSPB) or the Equal Employment Opportunity Commission (EEOC). The AFGE appeals and we affirm.

I.

In 1987, the BOP terminated Stephen Michniak, a case manager, for allegedly unacceptable performance. Michniak filed a grievance with his union, the AFGE, claiming reverse discrimination, see 5 U.S.C. § 2302(b)(1), and sought reinstatement under the Civil Service Reform Act (CSRA). 5 U.S.C. §§ 7101 et seq. Because Michniak's case involved both a discrimination claim and a job action complaint, Michniak's complaint fell into the "mixed case" category under the CSRA, that is, his complaint challenged both the job action (termination) and the illegally discriminatory reason for the job action (reverse discrimination).

For a mixed case, the CSRA establishes a special procedure. See 5 U.S.C. § 7702(a)(1); Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986) (employee's complaint constituted mixed case because it involved "an adverse action normally appealable to the MSPB and an allegation that a basis for the action was discrimination") (emphasis original). The procedure requires the aggrieved employee to make an initial binding choice. He may seek relief either under a statutory procedure or under the negotiated grievance procedure but not under both. 5 U.S.C. § 7121(d); see also Smith v. Kaldor, 869 F.2d 999, 1005 (6th Cir.1989); Vinieratos v. Department of the Air Force, 939 F.2d 762, 768 (9th Cir.1991) (noting irrevocability of choice).

Under the statutory procedure, the employee may first raise the complaint with his employing agency which has 120 days to reach a decision. 5 U.S.C. § 7702(a)(2). If the agency decides against the employee, the employee may either appeal to the MSPB or seek direct judicial review. 5 U.S.C. § 7702(a). If the employee appeals to the MSPB, it must reach a decision within 120 days, at the end of which period the employee may either proceed directly to court or seek further administrative review. 5 U.S.C. § 7702(a)(3). An employee who wishes to follow the administrative route may appeal the MSPB's decision to the EEOC which, under the statute, has 30 days to decide whether to hear the case. 5 U.S.C. § 7702(b)(1). If the EEOC rejects the case or if it accepts the case and agrees with the MSPB's decision, the employee may then proceed to court. 5 U.S.C. § 7702(b)(5)(A). If the EEOC accepts the case but disagrees with the MSPB, however, it must remand the case to the MSPB for further consideration. 5 U.S.C. §§ 7702(b)(3)(B), (b)(5)(B). Upon reconsidering the case, the MSPB issues an opinion that either agrees with the EEOC or rejects the EEOC's findings. If the MSPB agrees with the EEOC, the employee may seek judicial review. 5 U.S.C. § 7702(c). If the MSPB rejects the EEOC's findings, however, the statute calls for the creation of a special panel to make a final decision. 5 U.S.C. § 7702(d)(1). The special panel's final decision is then subject to judicial review. 5 U.S.C. § 7702(d)(2)(A).

The negotiated grievance procedure is usually much simpler. Here, the collective bargaining agreement between the AFGE and the BOP provides for binding arbitration of claims involving both job actions and discrimination. J.A. at 1-2. Not surprisingly, Michniak, represented by the Union, chose to avoid the statutory procedure by pursuing his claims through the negotiated grievance procedure. Pursuant to the agreement, the AFGE submitted Michniak's claims to arbitration. After a hearing, the arbitrator concluded that Michniak had been the victim of reverse discrimination and ordered him reinstated with back pay. He denied, however, the Union's request for attorneys' fees.

The AFGE then sought judicial review in the district court. The district court dismissed the complaint, holding that the Union had not exhausted its administrative remedies in not first seeking either MSPB or EEOC review of the arbitrator's decision as required by section 7702 of the CSRA. The AFGE appeals the dismissal, asserting that the statute allows, but does not require, an employee with a mixed case to proceed before the MSPB or the EEOC before seeking judicial review.

II.

The AFGE maintains that review of an arbitration decision in a mixed case is governed by the following language of subsection (f) of section 7121 of the CSRA:

In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the [MSPB]. ¹

5 U.S.C. § 7121(f). A close reading of section 7121 in its entirety, however, makes clear that subsection (f) does not apply to a mixed case.

Section 7121, divided into subsections (a) through (f), establishes in subsection (a) that a collective bargaining agreement affords the exclusive procedure for resolving a covered grievance between the employee and his employer unless the employee's grievance falls under either subsection (d) or subsection (e). Subsection (d) applies when an employee is "affected by a prohibited personnel practice under section 2302(b)(1) of this title." ² Section 2302(b)(1) lists as prohibited personnel practices certain forms of discrimination. 5 U.S.C. § 2302(b)(1) (prohibiting discrimination based on race, color, religion, sex, national origin, age, disability, marital status or political affiliation). Because subsection (d) encompasses section 2302(b)(1) claims, it applies to pure discrimination cases and because it alludes to section 7702, as explained infra, it also applies to mixed cases. Unlike subsection (a), which makes the negotiated grievance procedure exclusive, subsection (d) directs an employee to make an initial election between the negotiated grievance procedure and "a statutory procedure." 5 U.S.C. § 7121(d). In a pure discrimination case, the statutory procedure consists of the EEO complaint format under 42 U.S.C. § 2000e-16. See generally 29 C.F.R. § 1613 (1992). In a mixed case like Michniak's, the statutory alternative is set forth in the multi-tiered and multiple choice procedure of section 7702 discussed earlier.

In contrast to subsection (d), subsection (e) does not encompass discrimination claims. Instead, it applies only to "matters covered under sections 4303 and 7512 of this title." 5 U.S.C. § 7121(e). ³ Section 4303 addresses actions based on unacceptable performance; section 7512 covers removals, reductions in grade or pay and certain furloughs and suspensions. Like subsection (d), subsection (e) also allows the employee to choose between the negotiated grievance procedure and the statutory procedure.

It might be argued that a mixed case could fall under subsection (e) inasmuch as a mixed case includes job actions covered by sections 4303 or 7512 as well as discrimination claims. Subsection (e), however, contains language manifesting that it is inapplicable to a mixed case. It directs an employee who chooses the statutory procedure to section 7701, which contains the MSPB review route, rather than to section 7702, which sets forth the procedure to be followed in a mixed case. Subsection (d), in contrast, expressly refers to section 7702. To preserve the integrity of the structure of subsections (d) and (e) as separate statutory provisions, we must give effect to the different language used in those sections. Cf. Mountain States Tel. & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985) (statute must be interpreted to give meaning to all provisions). By so doing, we conclude that subsection (d) applies to mixed cases and that subsection (e) applies only to job actions, that is, cases arising under sections 4303 and 7512.

We now come to subsection (f). It provides that:

In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the [MSPB].

5 U.S.C. § 7121(f). The AFGE argues that subsection (f) allows it to take the arbitrator's decision to the district court without first seeking MSPB review. The beginning language of subsection (f), providing that it applies to ...