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FACHA v. CISNEROS

February 1, 1996

IRENE FACHA
v.
HENRY G. CISNEROS, SECRETARY, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT



The opinion of the court was delivered by: DALZELL

 Dalzell, J.

 February 1, 1996

 I. Introduction

 Plaintiff, Irene H. Facha, believes that officials in the Department of Housing and Urban Development engaged in (1) reprisal for her union activity (the "reprisal claim"), (2) sex discrimination (the "sex discrimination claim"), and (3) retaliation for her prior EEO activity (the "retaliation claim").

 This case presents difficult questions of law and fact, and we will therefore rehearse our conclusions at the outset.

 With respect to our analysis under 5 U.S.C. § 7121(d), we hold that Facha made an irrevocable election on November 20, 1992, when she chose to raise certain employment matters in a grievance pursuant to her collective bargaining agreement. Her choice bars her from pursuing those same matters in the EEO complaint that she filed on December 18, 1992, even though she did not specifically raise claims of sex discrimination and retaliation in the grievance. Simply put, the law prohibits Facha from raising any matter in her EEO claim that she had raised earlier in her grievance, regardless of the legal claims in those two documents.

 We also hold, however, that Facha raised three discrete matters for the first time in her EEO complaint. With respect to these topics, her EEO complaint reaches more broadly than her grievance, and the grievance did not bar these matters. After discovery, however, Facha has not shown that any of the non-barred matters occurred within the 45-day window of 29 C.F.R. § 1614.105.

 Finally, we hold that Facha's 1994 EEO complaint cannot salvage her defective and untimely 1992 EEO complaint, and that no equitable factors apply to her action. Thus, treating the Government's motion for summary judgment as a motion to dismiss for lack of jurisdiction over the subject matter, we will dismiss this action.

 II. Factual Background

 On October 26, 1992, Irene Facha received a performance evaluation for her work as a senior trial attorney with the Department of Housing and Urban Development ("HUD"). Def.'s resp. ex. 12. Although Facha garnered a "Fully Successful" rating for the year ending September 30, 1992, she nevertheless perceived invidious motives in the rating. On November 20, 1992, she filed a grievance pursuant to her collective bargaining agreement. In a nine-page attachment to the grievance, she argued that her superiors had punished her as reprisal for union activity. Id. ex. 7 (attachment entitled "Grievance of Rating/Unfair Labor Practices"). Moreover, Facha's grievance decried not just her performance rating but a full range of alleged attacks, lies, snubs, and slights. She argued that all of this conduct (which we describe below) constituted unfair labor practices.

 Facha's collective bargaining agreement would have permitted her to argue that the matters that she considered grounds for her reprisal claim also constituted sex discrimination, or retaliation for prior EEO activity. *fn1" Def.'s May 12, 1995 mot. to dismiss (docket no. 3) ex. 2A (section 22.03 of the collective bargaining agreement). The agreement specifically warned, "In accordance with Section 7121(d) of the [Civil Service Reform Act], an aggrieved employee affected by a prohibited personnel practice under Section 2302([b])(1) . . . may raise the matter under a statutory procedure or the grievance procedure, but not both." Id. It is undisputed that Facha only argued that the "matters" raised in her grievance constituted an unfair labor practice. She did not argue that her superiors' conduct constituted sex discrimination or reprisal for prior EEO activity. *fn2"

 Notwithstanding the warning of her collective bargaining agreement or the warnings she had received from an EEO counselor, *fn3" on December 18, 1992 Facha filed a formal EEO complaint alleging discrimination on these two grounds. In her sex discrimination claim, Facha argued that HUD gave men better performance ratings than women for reasons unrelated to the quality of their work. Def.'s mot. ex. 1. She also claimed that HUD fostered a hostile work environment for women. Id. In her retaliation claims, she alleged that, as a result of her prior EEO activity, HUD (1) refused to allow her to "act for" her supervisors in their absence; (2) refused to give her assistance with her caseload; (3) reassigned her cases to other attorneys; (4) gave her harsher performance ratings than other workers, even though her caseload was more onerous than theirs; and (5) treated her differently than others in her need to travel and accumulate continuing legal education credits. Id. As in her grievance, Facha's EEO complaint encompassed a broad range of conduct, covering many different subjects. All but three of the topics underlying these claims were reiterations of Facha's grievance.

 On September 8, 1994, Mari Barr, the Acting Director of Equal Employment Opportunity at HUD, dismissed Facha's EEO complaint, relying on 29 C.F.R. § 1614.107(d). Def.'s 5/12/95 mot. to dismiss ex. 1b. This regulation instructs the agency to dismiss a complaint "where the complainant has raised [a] matter in a negotiated grievance procedure that permits allegations of discrimination". 29 C.F.R. § 1614.107(d). This action followed.

 In May, 1995, the Government moved to dismiss Facha's complaint. See Facha v. Cisneros, No. 95-785 (May 12, 1995) (docket entry 3). In July, we denied the motion and held that Facha's EEO complaint survived the Government's motion to dismiss because its underlying facts reached more broadly than her grievance. Order, Facha v. Cisneros, No. 95-785 (July 5, 1995) (docket entry 5). We instructed the parties to commence discovery, and we invited the Government to renew its motion on summary judgment. We declined to address Facha's argument that her 1994 EEO complaint cured any defect in her 1992 EEO complaint.

 Discovery has ended, and the Government has now moved for summary judgment.

 III. Legal Standard

 We will treat the Government's motion as a motion to dismiss for lack of subject-matter jurisdiction rather than for summary judgment. The distinction is important, for two reasons. First, a grant of summary judgment is a judgment on the merits of a case, but a jurisdictional inquiry in not related to the merits. Kulick v. Pocono Downs Racing Ass'n, Inc., 816 F.2d 895, 898 n.6 (3d Cir. 1987). Moreover, Facha bears the burden of proving that this Court has subject-matter jurisdiction over her complaint. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert denied., 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991). Of course, the jurisdictional inquiry is by no means a threshold inquiry, as our Court of Appeals has recently shown by dismissing a complaint for lack of jurisdiction on appeal after a full trial on the merits. See, e.g., Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 198 (3d Cir. 1995).

 We may therefore consider the Government's motion at this late date. *fn4" See also Fed. R. Civ. P. 12(h)(3).

 IV. Legal Analysis

 The Government's motion raises four distinct inquiries. First, what effect did Facha's November, 1992 grievance have on her December, 1992 EEO complaint? This is a true jurisdictional inquiry. Second, of the "matters" that Facha raised in her EEO complaint but not in her grievance, has Facha satisfied the timeliness requirement of 29 C.F.R. 1614.105? Third, did Facha's 1994 EEO complaint cure the defects of her 1992 EEO complaint? Although these second and third inquires are not truly jurisdictional, see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982) (holding that the administrative time requirements of Title VII are not jurisdictional but are subject to the equitable considerations of estoppel, waiver, and laches), they do bear on our power to entertain Facha's complaint. Finally, we examine whether the comments of a HUD official warrant application of the equitable principle of estoppel.

 A. The First Inquiry: 5 U.S.C. § 7121(d)

 1. Statutory and Regulatory Framework

 We begin with the policies underlying the Civil Service Reform Act of 1978 ("CSRA"), Pub. L. No. 95-454, 92 Stat. 1111 (codified in scattered sections of, inter alia, 5 U.S.C). In passing the CSRA, Congress hoped to increase the efficiency of the federal government by allowing collective bargaining in the federal workplace. Cornelius v. Nutt, 472 U.S. 648, 666, 86 L. Ed. 2d 515, 105 S. Ct. 2882 (1985) (Marshall, J., dissenting); see also 5 U.S.C § 7101(a) (describing the findings and purpose of the Act). The CSRA is unquestionably a worker-friendly statute, allowing union representatives of federal employees to bargain for the terms and conditions of workers' employment. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Auth., 464 U.S. 89, 107, 78 L. Ed. 2d 195, 104 S. Ct. 439 (1983). The resulting collective bargaining agreement "shall provide procedures for the settlement of grievances", and "these procedures shall be the exclusive procedures for resolving grievances which fall within its coverage." 5 U.S.C. § 7121(a)(1); see also Cornelius, 472 U.S. at 666 (citing 5 U.S.C. § 7106).

 Congress also recognized that the CSRA's intricate scheme would break down if the federal judiciary began tinkering with it. The CSRA provides judicial review, if at all, only at certain steps in the process, and lower courts have heeded the Supreme Court's admonitions to "leave the architecture of the federal personnel system to Congress". Carter v. Gibbs, 909 F.2d 1452, 1456 (Fed. Cir.) (citing Volk v. Hobson, 866 F.2d 1398, 1403 (Fed. Cir. 1989)), cert. denied, 498 U.S. 811 (1990). Carter, for example, points to the Supreme Court's refusal to expand the scope of judicial review beyond the CSRA's provisions. Id. at 1455-56 (citing cases). In some cases judicial review of an adverse employment action is simply unavailable, and the parties must accept binding arbitration. In other cases, judicial review must await review by the Merit Systems Protection Board ("MSPB"). See American Federation of Government Employees Local 2052 v. Reno, 301 U.S. App. D.C. 169, 992 F.2d 331 (D.C. Cir. 1993) (describing the various procedures under the CSRA).

 5 U.S.C. § 7121(d) deals with a special subcategory of employee grievances called "mixed cases". A "mixed case" is a matter over which the MSPB could have jurisdiction but which also raises issues of employment discrimination. Vinieratos v. United States, 939 F.2d 762, 766 n.2 (9th Cir. 1991) ("It is a case that involves a challenge to a managerial decision that is appealable to the MSPB as well as a claim of employment discrimination.") (citing 29 C.F.R. § 1613.402(a)); see also American Federation of Government Employees Local 2052, 992 F.2d at 332.

 Mixed cases are tricky, because the EEOC normally has jurisdiction over discrimination cases, and an aggrieved employee must normally pursue the elaborate procedures set out in Title VII. *fn5" The EEOC, however, has no jurisdiction over labor grievances generally (i.e., job disputes not involving claims of discrimination), nor does the MSPB have jurisdiction to address claims of discrimination. Congress therefore faced a difficult dilemma. It could ask the federal employee to resolve her mixed case either through the grievance process (a course that would preserve the importance of the collective bargaining agreement in the CSRA regime but require the federal employee to waive her discrimination claim) or through the EEOC process (a course that not only would diminish the importance of the collective bargaining agreement but also would require the federal employee to waive all claims other than her discrimination claim).

 Congress resolved this dilemma in 5 U.S.C. § 7121(d), which creates an exception to the exclusivity provision of § 7121(a)(1):

 
(d) An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first. . . .

 5 U.S.C. § 7121(d) (emphasis added). *fn6" If a federal employee works pursuant to a collective bargaining agreement that permits her to raise Title VII-type discrimination claims in a grievance under that agreement, and if that employee believes that she is the victim of discrimination, § 7121(d) requires her to make an election to pursue her "matter" through either the statutory procedure or the negotiated grievance procedure, "but not both". Vinieratos, 939 F.2d at 768-68; Smith v. Kaldor, 869 F.2d 999, 1005 (6th Cir. 1989); see also American Federation of Government Employees Local 2052, 992 F.2d at 332-33 (describing the procedural steps under both approaches). An employee's election is irrevocable, Vinieratos, 939 F.2d at 768, and occurs on the first filing of either an EEO complaint or a grievance, 939 F.2d at 769; see also Jones v. Department of Health and Human Servs., 622 F. Supp. 829, 830 (N.D. Ill. 1985).

 Congress's use of the word matter in § 7121(d) renders irrelevant the legal status of the act complained of. In Bonner v. Merit Systems Protection Bd., 781 F.2d 202, 204-05 (Fed. Cir. 1986), the Federal Circuit examined the legislative history of the Civil Service Reform Act to determine the definition of "matter", and held that the word referred to the "underlying [employment] action" at issue in a employee's dispute with his employer. Id. at 205; Macy v. Dalton, 853 ...


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