Guerra, Norma v. Cuomo, Andrew

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided May 25, 1999

No. 97-5338

Norma Guerra,
Appellant

v.

Andrew Cuomo, Secretary,
Department of the Housing and Urban Development,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 97cv00213)

Alan Banov was on the brief for appellant.

Wilma A. Lewis, U.S. Attorney, R. Craig Lawrence, Assis-
tant U.S. Attorney, Lena Robins, Special Assistant U.S.
Attorney, and Anthony J. De Marco, Counsel, Department of
Housing and Urban Development, were on the brief for

appellee. Fred E. Haynes, Assistant U.S. Attorney, entered
an appearance.

Before: Ginsburg and Rogers, Circuit Judges and
Buckley, Senior Circuit Judge.

Opinion for the Court filed Per Curiam.

Per Curiam: Appellant Norma Guerra, a former employee
of the Department of Housing and Urban Development
("HUD"), complained for many years that painting in her
office building exacerbated her respiratory condition.1 She
sought accommodation from HUD, including prior notification
of painting times and relocation to another office or her home
to work, but she was never accommodated to her satisfaction.
In 1991, Guerra filed a union grievance, claiming that HUD
had failed reasonably to accommodate her disability. Despite
HUD's alleged recalcitrance, neither Guerra nor the union
took her claim to the next step of the negotiated grievance
procedure. Over the next three years, Guerra continually
requested but failed to obtain the full accommodation she
sought.

In 1995, Guerra filed a formal EEO complaint, alleging that
HUD had violated the Rehabilitation Act of 1973, as amend-
ed, 29 U.S.C. s 701 et seq., by failing to accommodate her
disability. In January 1997, she filed suit in the district court
based upon the allegations in her EEO complaint. HUD
moved to dismiss the complaint on the ground that Guerra's
earlier decision to file a union grievance constituted an irrevo-
cable election of remedies. The district court agreed, ruling
that Guerra's EEO complaint involved the same "matter" as
her union grievance, and was therefore barred. The district
court also ruled that HUD's failure to raise the election of
remedies issue prior to moving to dismiss did not constitute a
waiver of that defense. Guerra filed a motion for reconsider-
ation, and while that motion was pending, HUD issued a final

__________
1 In 1991, a doctor diagnosed Guerra with Reactive Airway
Disease and advised HUD that "she has sensitivity to multiple
chemicals, including dust, fumes, and inhalant chemicals." Compl.
p 64.

agency decision dismissing her EEO complaint. See 29
C.F.R. s 1614.301(a) ("Any ... complaint filed after a griev-
ance on the same matter shall be dismissed without prejudice
to the complainant's right to proceed through the negotiated
grievance procedure including the right to appeal to the
Commission from a final decision."); see id. s 1614.107(c) &
(d). In 1998 the district court denied Guerra's motion for
reconsideration, again ruling that her grievance and her EEO
complaint concerned the same matter and that HUD had not
waived the election of remedies defense.

On appeal, Guerra raises several contentions, only one of
which requires discussion, namely that her 1991 union griev-
ance and her 1995 EEO complaint raised different "matters."
Under the Civil Service Reform Act of 1978, "[a]n 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 proce-
dure, but not both."2 5 U.S.C. s 7121(d)(1994); see Johnson
v. Peterson, 996 F.2d 397, 399 (D.C. Cir. 1993). A prohibited
personnel practice includes disability discrimination under
section 501 of the Rehabilitation Act of 1973, 29 U.S.C. s 791.
See 5 U.S.C. s 2302(b)(1)(D). The Civil Service Reform Act
further provides that:

[a]n 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.

See id. s 7121(d). It is undisputed that Guerra filed her
grievance, in writing, in 1991. Notwithstanding HUD's fail-

__________
2 Thus, if the grievance and the complaint raise the same
"matter," an employee who has elected to pursue a grievance would
be prohibited from filing an EEO complaint on the same "matter."

ure to accommodate her to her satisfaction, Guerra failed to
exhaust her remedies under the grievance procedures, never
taking her grievance to Step 2 or Step 3 or to arbitration.3
The dispositive question, therefore, is whether Guerra's griev-
ance and her later filed EEO complaint involve the same
"matter" thereby precluding a lawsuit based upon the EEO
complaint.

Guerra maintains that the district court erred in ruling that
her union grievance and her EEO complaint involve the same
"matter," and attempts to distinguish her filings. She points
to differences in the remedies sought, or capable of being
sought, in the grievance and the EEO complaint. Specifical-
ly, she notes that she did not seek money damages or
reassignment in her grievance but did in her EEO complaint.
Similarly, she states that her EEO complaint, unlike her
union grievance, alleged that chemicals in addition to paint
caused her injury. However, she does not contend that
something other than a failure to accommodate her respirato-
ry condition was the underlying employment action at issue in
both the grievance and the complaint. Instead, raising a type
of continuing violations theory, Guerra contends that denials
by different officials of separate requests for accommodation
constitute distinct legal claims, and that HUD recognized that
her separate requests raised distinct legal claims by requiring

__________
3 Under the agreement between the American Federation of
Government Employees and HUD, at Step 1, an employee unable to
resolve a grievance through informal attempts may advise the
immediate supervisor within 30 working days from the date the
employee became, or should have become, aware of the matter
being grieved. The immediate supervisor is to issue a written
response within five working days. If that response is unsatisfacto-
ry, the employee may advance to Step 2 by forwarding the griev-
ance to a management representative who, after meeting with the
employee and the employee's representative, is to issue a written
reply. If still unsatisfied, the employee may proceed to Step 3 by
forwarding the grievance to the Director of a Headquarters office,
Regional Administrator, or Area Manager. From Step 3 the em-
ployee may proceed to arbitration.

medical documentation for every request and evaluating each
claim anew.

The contours of the term "matter" are not readily apparent
from the face of the statute. Looking to congressional intent,
some courts have suggested an approach that focuses on the
underlying employment action. In Facha v. Cisneros, 914
F. Supp. 1142, 1148-49 (E.D. Pa. 1996), aff'd, 106 F.3d 384 (3d
Cir. 1996) (unpublished table decision), one of the cases on
which the district court relied, the Pennsylvania court noted
that interpreting "matter" too narrowly would undercut Con-
gress' reliance upon collective bargaining agreements in the
Civil Service Reform Act of 1978, while interpreting "matter"
too broadly would create a trap for the unwary in view of the
election of remedies provision in s 1721(d). Facha, a senior
trial attorney at HUD, filed an EEO complaint alleging sex
discrimination and retaliation for prior EEO activity. One
month earlier, she had filed a grievance pursuant to her
collective bargaining agreement, alleging reprisal for union
activity. The government moved to dismiss her complaint on
the ground that although her union grievance and EEO
complaint presented different legal theories, they covered the
same "matter." Drawing on the analysis in Bonner v. Merit
Systems Protection Board, 781 F.2d 202, 204-05 (Fed. Cir.
1986), the district court formulated a test for determining
whether a grievance and a complaint cover the same "mat-
ter": "If [the employee] raised a topic in both documents, or
if the arbitrators assigned to handle the grievance would
necessarily have needed to inquire into a topic in discharging
their duties, then s 7121(d) bars her from raising that same
topic in her subsequent EEO complaint." Facha, 914
F. Supp. at 1149.4 The district court concluded that whether

__________
4 In Bonner, 781 F.2d at 204-05, the Federal Circuit concluded
that "matter" refers to the underlying employment action. The
issue was whether under the Civil Service Reform Act an appeal
from an underlying reduction in force is within the jurisdiction of
the Merit Systems Protection Board when the reduction force itself
is not. Although the legislative history was not entirely clear, it
was sufficiently clear to satisfy the Federal circuit that, for pur-
poses of determining the jurisdiction of the Board, Congress intend-

a union grievance and an EEO complaint concern the same
"matter" under s 7121(d) does not depend upon "the legal
status of the act complained of" or upon "legal jargon." Id.
at 1148. Applying that test, the court held that Facha
prevailed on three discrete claims; two were not mentioned in
the grievance and an arbitrator assigned to resolve Facha's
grievance would not have needed to inquire about the third.

The scope of the term "matter" has been discussed in a few
other cases as well, most adopting the Facha/Bonner analysis
or its equivalent. See Van Houten v. Gober, No. Civ. A.
98-270, 1998 WL 966021, at *5 (E.D. Pa. Nov. 10, 1998)
(citing Bonner and Facha); Bobeck v. Department of Health
& Human Servs., No. 95 C 4778, 1996 WL 89111, at *7 (N.D.
Ill. Feb. 27, 1996) (citing Bonner); Timus v. Whitfield, Civ.
A. No. 87-2699, 1988 WL 25509, at *1 (D.D.C. March 10,
1988). The term "matter" becomes somewhat amorphous
when the personnel action involves the denial of accommoda-
tion or other relief due to a disability over an extended period
of time, rather than a promotion or other discrete act. As
noted, courts have tended to construe the term "matter" to
encompass more than a legal claim and instead to encompass
the "underlying action," Bonner, 781 F.2d at 204-05, or the
"topics" raised, Facha, 914 F. Supp. at 1149. The term
"matter" may also have a temporal component, as some
courts have noted, where the matter concerns an employer's
action with "effects" over an extended period of time, Bobeck,
1996 WL 89111, at *7, or separate actions, "on a different
day," by "a different decisionmaker," Van Houten, 1998 WL
966021, at *6.

Even if these authorities do not provide a definitive inter-
pretation of the term "matter," a question we need not decide,
Guerra proposes so narrow a construction of "matter" that it
would render the election requirement meaningless. While
contending that her EEO complaint raised a different "mat-

__________
ed the term "matter" to include not just the appeal from an
underlying employment action, but also the underlying action itself.
See id.

ter" than her grievance, she admits in her brief that her EEO
complaint "principally attacked action or inaction by different
agency officials during the period of August 1994-December
1994." For this to suffice to distinguish the "matter" covered
in her grievance from that in her EEO complaint would mean
that an employee could simply formulate an EEO complaint
on the basis of dissatisfaction with the results of the griev-
ance process. This is precisely the result that the election of
remedies provision in s 7121(d) was meant to avoid. See
Facha, 914 F. Supp. at 1148-49. The same is true of Guer-
ra's contention that her EEO complaint sought "alternative
accommodations"--"to take work home, to be paid adminis-
trative leave with pay whenever the Agency did not so
accommodate her, ... to be reassigned permanently to a
different building," and to be awarded compensatory dam-
ages. If this contention, which comes on the heels of her
concession that her EEO complaint, "[l]ike the 1991 grievance
... claimed that the Agency wrongly denied [her] the accom-
modation allowing her to take work home," were sufficient to
create separate matters, then any employee could file an
EEO complaint that was otherwise identical to her previously
filed grievance except that it requested one form of accommo-
dation not included in the grievance. Unlike Van Houten,
where the issues underlying the grievance did not necessarily
require resolution of a separate issue underlying the EEO
complaint, 1998 WL 966021, at *6, or Facha, where some
claims in the EEO complaint had not been raised in the
grievance, 914 F. Supp. at 1149, Guerra does not contend that
the accommodations she sought in her EEO complaint would
not have been considered in the process of resolving her
grievance.

It is true that Guerra's case is different from Facha insofar
as she alleges continuing violations by HUD, not simply a
discrete action like denial of a promotion. Her initial griev-
ance also long preceded her attempt to pursue relief by filing
an EEO complaint. Cf. Smith v. Kaldor, 869 F.2d 999, 1003-
04 (6th Cir. 1989). But her admissions on appeal underscore
the reality that the topics in her EEO complaint are the same
as those she presented in her union grievance. The continu-

ing violations doctrine applies in the civil rights context in
order to avoid statute of limitations problems when an em-
ployer commits repeated, but distinct, discriminatory acts,
some inside and some outside of the limitations period. See
Bazemore v. Friday, 478 U.S. 385, 394-95 (1986). Arguably,
a similar theory could be advanced by analogy where an
employer takes a number of actions against an employee
(including failing to respond appropriately to requests for
working accommodations) and the employee wishes to avoid
being bound by a single election made years before. Certain-
ly, an election under s 7121(d) cannot reasonably be transmo-
grified into an election for one's working life no matter what
changes are made to the complaint. Insofar as Guerra could
have filed a new grievance on a different "matter," she had
the option to file an EEO complaint instead. In any event,
Guerra falls short of successfully presenting this legal ques-
tion. Rather than continuing violations with separate illegal
acts by HUD, if anything Guerra has suffered what amounts
to "continuing effects of past discriminatory acts." Dixon v.
Anderson, 928 F.2d 212, 216 (6th Cir. 1990). As the Seventh
Circuit has observed, "[a] lingering effect of an unlawful act is
not itself an unlawful act." Dasgupta v. University of Wis-
consin Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir. 1997).

Put otherwise, a request, a second request, or even re-
peated requests, embracing the same basic accommodation
for the same basic condition cannot be viewed as a different
"matter". Attempting to distinguish between filings based on
the relief sought, such as the request for compensatory
damages in the EEO complaint misses the mark: whatever
the scope of the definition of the term "matter," minimally it
must have some bearing to the underlying employment action
and the rights at issue, as distinct from being governed solely
by the remedy sought. See generally Dan B. Dobbs, Dobbs
Law of Remedies s 1.1, at 1-2 (1993). Hence, Guerra has
presented no factual basis upon which to apply a continuing
violations theory under s 7121(d).

Guerra's other contentions need not detain us. Her con-
tention that her union grievance was not "timely file[d]," and
therefore not an election of remedies, is raised for the first

time on appeal and we decline to address it. See Boehner v.
Anderson, 30 F.3d 156, 162 (D.C. Cir. 1994). Her contention
that HUD waived its election of remedies defense is based on
an overly expansive reading of Bowden v. United States, 106
F.3d 433 (1997), inasmuch as HUD had not reached a final
decision on Guerra's EEO complaint when it asserted the
election of remedies defense. See id. at 438.

Accordingly, because Guerra cannot demonstrate that her
EEO complaint involves a "matter" different from that raised
in her union grievance, HUD did not waive the election of
remedies defense, and her other contentions are meritless, we
affirm the judgment of the district court.