Facha v. Cisneros

Citations: 914 F. Supp. 1142; 1996 U.S. Dist. LEXIS 23027; 1996 WL 41721Docket: Civil Action 95-785

Court: District Court, E.D. Pennsylvania; March 6, 1996; Federal District Court

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Irene H. Facha filed a lawsuit against Henry G. Cisneros, Secretary of the U.S. Department of Housing and Urban Development (HUD), claiming that HUD officials engaged in reprisal for her union activities, sex discrimination, and retaliation for her previous Equal Employment Opportunity (EEO) complaints. Facha initiated a grievance process under her collective bargaining agreement for the reprisal claim on November 20, 1992, which she believed barred her from later pursuing the same matters in an EEO complaint filed on December 18, 1992, according to 5 U.S.C. § 7121(d). The court determined that Facha made an irrevocable election to address her employment matters through the grievance process, thereby precluding her from raising those matters in her EEO claim, even if she did not specifically list sex discrimination and retaliation in her grievance.

However, the court acknowledged that Facha had raised three separate issues in her EEO complaint that were not covered by her grievance. Nevertheless, Facha failed to demonstrate that these newly raised matters occurred within the 45-day window required by 29 C.F.R. § 1614.105. Additionally, her 1994 EEO complaint could not remedy the deficiencies of her earlier, untimely 1992 EEO complaint, and no equitable considerations applied to her case. Consequently, the court treated the government's motion for summary judgment as a motion to dismiss for lack of subject matter jurisdiction and dismissed the action. Facha's grievance, filed following a "Fully Successful" performance evaluation, highlighted her belief that the evaluation was influenced by retaliatory motives related to her union activities and included a range of alleged unfair labor practices.

Facha's collective bargaining agreement allowed her to assert that her claims for reprisal could also be viewed as sex discrimination or retaliation for previous EEO activity. However, she only pursued her grievance as an unfair labor practice, neglecting to raise issues of sex discrimination or retaliation. Despite warnings from her collective bargaining agreement and an EEO counselor, Facha filed an EEO complaint on December 18, 1992, alleging discrimination based on sex and retaliation. She claimed that men received better performance ratings than women, which she attributed to discrimination, and that HUD created a hostile work environment for women. Her retaliation allegations included being denied opportunities and support, receiving unfair performance evaluations, and being treated differently in job responsibilities. Most claims in her EEO complaint mirrored those in her grievance. The EEO complaint was dismissed by HUD's Acting Director based on 29 C.F.R. 1614.107(d), which prohibits pursuing discrimination claims in both grievance and EEO procedures. The Government subsequently moved to dismiss Facha's complaint, but the court denied this motion, allowing her EEO complaint to proceed as it encompassed broader issues. The court directed the parties to engage in discovery and invited the Government to renew its motion on summary judgment. However, it later decided to treat the Government's motion as a challenge to subject-matter jurisdiction instead of a summary judgment motion, emphasizing that Facha must demonstrate the court's jurisdiction over her claims. The importance of distinguishing between a merits judgment and a jurisdictional inquiry was underscored, noting that jurisdiction can be evaluated even after a trial on the merits.

The Government's motion involves four key inquiries regarding Facha's grievances and EEO complaints. First, it questions the jurisdictional impact of Facha's November 1992 grievance on her December 1992 EEO complaint. Second, it assesses whether Facha has met the timeliness requirement of 29 C.F.R. 1614.105 for matters raised in her EEO complaint but not in her grievance. Third, it evaluates whether Facha's 1994 EEO complaint rectified the deficiencies of her 1992 complaint, noting that these inquiries, while not jurisdictional, influence the court's capacity to consider the complaint based on equitable doctrines like estoppel, waiver, and laches. Lastly, it investigates if comments made by a HUD official invoke the principle of estoppel.

The analysis references the Civil Service Reform Act of 1978 (CSRA), emphasizing its purpose of enhancing federal government efficiency through collective bargaining. The CSRA establishes that grievance procedures outlined in collective bargaining agreements are exclusive for addressing grievances within their scope. It is noted that extensive judicial interference with the CSRA could undermine its structure, with judicial review being limited to specific stages. Cases like Carter v. Gibbs highlight that courts must adhere to the CSRA's provisions and that in some instances, parties may have to accept binding arbitration or await review by the Merit Systems Protection Board (MSPB).

5 U.S.C. 7121(d) addresses "mixed" employee grievances involving both unfair labor practices and unlawful discrimination. These cases are complex due to the overlapping jurisdictions of the EEOC, which handles discrimination claims, and the grievance procedures under the collective bargaining agreement, which do not typically cover such claims. Congress faced a dilemma: requiring employees to choose between pursuing a grievance, which would waive their discrimination claims, or going through the EEOC process, which would waive other claims. 

To resolve this, 5 U.S.C. 7121(d) allows an employee affected by a prohibited personnel practice to pursue their grievance through either the statutory procedure or the negotiated grievance procedure, but not both. The employee's choice is made upon the first filing of either an EEO complaint or a written grievance. This election is irrevocable, as established in Vinieratos and reinforced by Jones v. Department of Health and Human Services. 

The term "matter" in 7121(d) is crucial; it pertains to the underlying employment action involved in the dispute, regardless of its legal classification. This interpretation was supported by the Federal Circuit in Bonner v. Merit Systems Protection Board and is further confirmed by 29 C.F.R. 1613.219(b), which states that filing a grievance prohibits subsequent filing of an EEO complaint on the same matter, even if the grievance did not explicitly allege discrimination.

The determination of whether a federal employee has improperly pursued claims in multiple forums should concentrate on the specific "matter" raised and the initial forum utilized, rather than on legal terminology. The review of Facha's grievance from November 20, 1992, reveals complexities in identifying the "matters" at issue. A narrow definition could undermine the election provisions of 7121(d) and the collective bargaining framework established by the CSRA, while a broad definition could inadvertently trap employees. 

To resolve this, Facha's grievance and EEO complaint were compared directly. The key inquiry is whether Facha presented a topic in both documents, or if the grievance arbitrators would need to address a topic in their review. If so, 7121(d) prohibits her from raising that topic again in her EEO complaint. It was found that Facha's EEO complaint raised several topics also mentioned in her grievance, which are barred by 7121(d), with only three topics found to be unique to the EEO complaint: (1) comments contributing to a sexually hostile work environment, (2) denial of acting opportunities, and (3) disputes regarding training and continuing legal education.

The comparison of claims included:
- **Performance Ratings**: Facha expressed intent to file a grievance upon receiving her rating, implying dissatisfaction without directly addressing this in her grievance.
- **Hostile Work Environment**: The EEO complaint alleged harassment making the environment difficult for women, while the grievance only indirectly touched upon this through case reassignment claims.
- **Denial of Acting Opportunities**: Facha claimed a lack of opportunities for advancement, contrasting her experiences with those of her peers.
- **Assistance on Cases**: She noted a disparity in support received for her cases compared to others.
- **Criticism of Work Performance**: Facha highlighted a contradiction where her successful performance was criticized despite not losing any cases.

Ultimately, the analysis concluded that many topics were duplicated across the documents, thus limiting the scope of Facha's EEO complaint according to 7121(d).

Facha's grievance and her Equal Employment Opportunity (EEO) complaint are intertwined, as both necessitate an examination of her work performance and the legitimacy of criticisms from her superiors. Consequently, she cannot introduce work performance critiques within her EEO complaint. 

Facha asserts issues regarding training opportunities, specifically that she often had to pay her own travel expenses for job-related Continuing Legal Education (CLE) training, and there were occasional disputes over local training relevance. Regarding case assignments, she notes that until July 1992, she had not experienced case reassignments, but afterward received cases from various colleagues.

Facha was aware of HUD's stance on her EEO complaint early on, recognizing significant legal questions as of 1992. Her grievances reflect her belief that HUD undervalued her legal expertise. 

Under 29 C.F.R. 1614.105, to advance her EEO complaint regarding a sexually-charged hostile work environment, denial of acting opportunities, and denial of training, Facha must demonstrate that a discriminatory act occurred within 45 days before her EEO counselor contact on October 26, 1992. She identifies eleven specific acts she claims as discriminatory, including an unfair performance review and various instances of hostility from her supervisor, as well as denials of funding and compensation for a seminar. However, many of these acts are part of her grievance, thus barred from her EEO complaint. The Government has also effectively shown that certain events could not have occurred within the requisite 45-day period, including the sexually-charged comments and denial of acting opportunities.

Facha filed a second Equal Employment Opportunity (EEO) complaint in 1994, alleging denial of opportunities by her superiors at HUD, and contended that this complaint granted jurisdiction to consider her earlier, 1992 complaint. The court referenced *Waiters v. Parsons*, which allows an employee not to file additional EEO complaints if a related complaint is pending. However, Facha's reliance on this precedent was ineffective due to her 1992 EEO complaint being largely defective because she filed a grievance and did not comply with 7121(d). Consequently, the surviving portions of her complaint were also untimely. The court noted that while Title VII's time limits are not strictly jurisdictional, they still maintain relevance, especially given the specific concerns related to the Civil Service Reform Act (CSRA) and Facha's senior position.

Facha also suggested an "agreement" with HUD official Frank D. Wing, Jr., implying that withdrawing her grievance would not affect the progress of her EEO charge. The court found this argument unpersuasive for several reasons: Wing's statements were not misleading, as he only indicated he would "look into" her rating without guaranteeing a change; Facha had not sought to reactivate her grievance but wanted to proceed with her EEO complaint; and Wing lacked the authority to waive the statutory and regulatory framework governing the CSRA. Ultimately, Facha's affidavit did not reinstate her 1992 EEO complaint, as there was insufficient evidence that Wing had misled her.

7121(d) was applicable to Facha's dispute with HUD, allowing her to file a grievance for perceived sex discrimination. She had the option to pursue either a grievance or an EEO complaint but not both, and she irrevocably chose to file a grievance on November 20, 1992. Abandoning the grievance process to pursue an EEO complaint constituted a failure to exhaust the administrative remedy she selected. Facha's EEO complaint, which expanded beyond her grievance, was deemed untimely, and her 1994 EEO complaint could not rectify the jurisdictional issues of her prior deficient complaint from 1992. As a senior trial attorney at HUD, her choice to follow the grievance route limited the Court's jurisdiction based on the matters raised in her grievance. 

The Court granted the defendant's motion for summary judgment, dismissing the case due to lack of subject matter jurisdiction. A subsequent order on March 6, 1996, partially granted and denied Facha's motion for reconsideration, amending the original memorandum but affirming the denial of the motion in other respects. Facha had previously settled an EEO complaint in 1988 or 1989, which included terms allowing her transfer to the HUD regional office in Philadelphia. She withdrew her grievance in September 1993 after preliminary stages but before arbitration. She had also signed a "Notice of Rights and Responsibilities" on October 29, 1992, indicating her obligation to choose between filing an EEO complaint or a grievance under the CBA. The Court noted that Facha had been given fair notice regarding the procedural requirements and referenced the mixed case jurisdiction involving managerial decisions and discrimination claims. The legal framework encompasses personnel actions and prohibited practices under Title VII and related statutes.

Facha's case centers on whether she can challenge ten comments about her work performance as both reprisal and discrimination in a mixed case context. Since she raised these comments in a grievance, she is barred from later contesting them in an Equal Employment Opportunity (EEO) complaint. Aggrieved individuals must contact a Counselor within 45 days of the alleged discriminatory act or its effective date, as per 29 C.F.R. 1614.105(a)(1). Two comments not directed at Facha, relevant to her hostile work environment claim, could not be considered because they fell outside the 45-day window. The precedent set in West v. Philadelphia Electric Co. indicates that discriminatory acts occurring outside the relevant time frame can support a claim if at least one act occurred within that period and forms a "continuing violation." However, no such act took place within the 45 days preceding October 26, 1992, which undermines Facha's position. If Facha had pursued a federal lawsuit after her 1994 EEO complaint dismissal, facts from her 1992 complaint might have been relevant, but she has limited her current federal claim to the 1992 EEO complaint. Furthermore, while Facha argues that her case is not a "mixed case" due to the seriousness of the HUD job action, the defendant concedes this point; however, it does not affect the outcome, as the relevant statute applies to her case, rendering any error in the memorandum harmless.