Opinion
Civil No. 1:01CV00910
April 1, 2003
MEMORANDUM OPINION
On September 28, 2001, Rowena F. Andrews ("Plaintiff") filed suit against Secretary Anthony Principi and the Department of Veterans Affairs ("VA") (collectively "Defendants") alleging discrimination and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and breach of contract. On March 14, 2002, the court granted Defendants' motion to dismiss Plaintiff's ADA claim. Accordingly, only Plaintiff's breach of contract claim remains.
This matter is before the court on Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the court will grant Defendants' motion to dismiss.
FACTS
Plaintiff was employed by the VA as a medical records technician. Plaintiff is a disabled veteran with a thirty percent service connected disability rating. Her disabilities consist of a knee injury and gastric reflux. In 1995, Plaintiff was diagnosed with claustrophobia.
From the time Plaintiff was diagnosed with claustrophobia until 1997, she alleges that she applied for every open position at the VA for which she was qualified. Plaintiff avers that the VA denied each promotion request because of her disabilities. Plaintiff further avers that she requested that the VA provide reasonable accommodations for her claustrophobia and other disabilities. Specifically, she requested that her office in the basement be moved to a more open area on the first floor. Plaintiff's office was relocated to another office on the top floor. Plaintiff, however, found the new location to be even less acceptable. Accordingly, because the VA failed to accommodate Plaintiff's disabilities, she filed a charge of discrimination with the EEOC. Plaintiff claims that because she filed a charge of discrimination, the VA retaliated against her.
In addition to Plaintiff's allegation that the VA engaged in discrimination and retaliation, Plaintiff alleges that the VA breached the collective bargaining agreement (the "Master Agreement") between the American Federation of Government Employees and the VA. Specifically, Plaintiff claims the VA breached the Master Agreement by: (1) denying her promotion and pay requests; (2) refusing to move Plaintiff to another office; and (3) failing to properly respond to Plaintiff's request for a reasonable accommodation. Plaintiff also avers that the acts complained of were a breach of a duty of good faith and fair dealing.
DISCUSSION
Defendants argue that Plaintiff's breach of contract claim cannot be maintained in federal court. Labor relations between the federal government and its employees are governed by Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 7101-7135 ("Title VII" or "CSRA"). Karahalios v. National Fed'n of Fed. Employees, Local 1263, 489 U.S. 527, 531 (1989) Unlike Section 301 of the Labor Management Relations Act, which confers on employees of private sector employers standing to sue their employers in federal court, the CSRA does not permit judicial enforcement of collective bargaining agreements. "Section 301 has no equivalent under Title VII; there is no provision in that Title for suing an agency in federal court." Id. at 536.
Defendants contend Plaintiff's only recourse for an alleged breach of contract is to proceed under the grievance procedure set forth in Article 42 of the Master Agreement. Article 42 states that the grievance procedure provided for under the Master Agreement "is the exclusive procedure for resolving grievances." (Defs.' Mem. Supp. Mot. Dismiss or Summ. J., Ex. B, Sec. 1.) Certain grievances are excluded from the mandatory grievance procedures. (Id., Sec. 2 3.) Claims of breach of contract, however, are not among the grievances excluded from the grievance procedure's coverage. Plaintiff, therefore, is limited to the negotiated grievance process and cannot maintain her breach of contract claim before this court. See 5 U.S.C. § 7121 (a)(1) (stating that where collective bargaining agreement provides for grievance procedures, the procedures shall be the exclusive remedy for resolving grievances which fall within its coverage).
"A grievance means any complaint by an employee(s). concerning any matter relating to employment, any complaint by an employee . . . concerning the interpretation or application of [the Master Agreement] and any supplements or any claimed violation, misinterpretation or misapplication of law, rule, or regulation affecting conditions of employment." (Defs.' Mem. Supp. Mot. Dismiss or Summ. J., Ex. B, Sec. 2.)
Plaintiff attempts to avoid the Master Agreement's grievance procedure by arguing that her breach of contract claim is based on discrimination and retaliation, and therefore is excluded from the grievance procedure. Plaintiff's characterization of her remaining claim as a claim of discrimination styled as a breach of contract claim is untenable. Nevertheless, even assuming this characterization to be sustainable, Plaintiff's claim cannot be maintained in federal court.
The Master Agreement provides that claims for discrimination in violation of 5 U.S.C. § 2302 (b)(1) "may be filed either under the statutory procedure or the negotiated grievance procedure." (Defs.' Mem. Supp. Mot. Dismiss or Summ. J., Ex. B, Sec. 3.) Assuming Plaintiff's characterization of her breach of contract claim to be correct, this provision of the Master Agreement allows Plaintiff to avoid the otherwise mandatory requirement that she file her claim under the negotiated grievance procedure. However, because Plaintiff elected not to file her breach of contract claim under the grievance procedure, she must file it under the statutory procedures provided for discrimination claims.
Section 2302(b)(1) prohibits discrimination on the basis of, inter alia, "handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 ( 29 U.S.C. § 791)."
For federal employees, the Rehabilitation Act of 1973 is the exclusive remedy for discrimination based on disability. See 29 U.S.C. § 791, 794(a). The procedures set forth in Title VII of the Civil Rights Act of 1964 have been incorporated into the Rehabilitation Act. See 29 U.S.C. § 794a(a)(1); Rattner v. Bennett., 701 F. Supp. 7, 9 (D.D.C. 1988) (Rehabilitation Act "borrows" procedures and remedies from Title VII). As a federal employee, Plaintiff is required to exhaust her administrative remedies prior to bringing a claim for discrimination in district court. Long v. Ringling Bros.-Barnum Bailey Combined Shows, Inc., 9 F.3d 340, 343 (4th Cir. 1993) (citing Brown v. General Servs. Admin, 425 U.S. 820, 832 (1976)). As part of the exhaustion requirement, Plaintiff is required to initiate contact with an Equal Employment Opportunity ("EEO") counselor within forty-five days of the date on which she knew or should have known of the alleged discrimination. 29 C.F.R. § 1614.105 (a)(1). Furthermore, Plaintiff's cause of action must be filed "[w]ithin 90 days of receipt of notice of final action taken by a . . . [federal] agency." 42 U.S.C. § 2000e-16 (c).
According to Plaintiff's complaint, she filed a charge of discrimination on or about April 28, 1997, and the VA issued a final agency decision on or about October 5, 1998. Plaintiff alleges that she received this final agency decision on October 28, 1998. Plaintiff filed the current suit on September 28, 2001, almost three years after she received the notice of final agency action. The time for filing a complaint in federal court with respect to the allegations raised in the 1997 charge has long elapsed and any claim based on the 1997 charge is now barred. To the extent that Plaintiff's breach of contract claim is based on discriminatory conduct that occurred subsequent to her 1997 filing, Plaintiff's complaint fails to allege that she presented her claims to an EEO counselor within the proscribed period. Therefore, even assuming Plaintiff's breach of contract claim based on discrimination is exempted from the Master Agreement's grievance procedure, because Plaintiff failed to comply with the statutory provisions for initiating claims of discrimination, she cannot maintain her current cause of action.
CONCLUSION
Plaintiff's exclusive remedy for her breach of contract claim is under the grievance procedures of the Master Agreement. Even adopting Plaintiff's characterization of her breach of contract claim she still failed to comply with applicable statutory provisions and her claim cannot be brought in federal court. Thus, for the reasons set forth in this opinion, the court will grant Defendants' motion to dismiss.
An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.
ORDER
For the reasons set forth in the memorandum opinion filed contemporaneously herewith,
IT IS ORDERED that Defendants' motion to dismiss [Doc. #24] is GRANTED, and this civil action hereby is DISMISSED with prejudice.