UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


GUERRA, NORMA

v.

CUOMO, ANDREW


97-5338a

D.C. Cir. 1999


*	*	*


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 




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n 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


[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


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




__________

n 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




__________

n 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


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




__________

n 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


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,


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-




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


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


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,


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


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.