In Frasure v. Principi, — F. Supp. 2d, No. 3:00CV2407 (D. Conn. Apr. 29, 2005) — a federal trial court in Connecticut prevented a disabled Department of Veterans Affairs (“VA”) employee from going directly to court on her non-promotion claim because she had already filed a union grievance for the same claim. However, the court allowed her to proceed to trial on her remaining retaliation and disability discrimination claims because those issues were not included in the union grievance.
The plaintiff, Joanne E. Frasure, lost the use of the third through fifth fingers of her right hand during her military service. The VA hired Ms. Frasure as a Medical Clerk on March 21, 1988. On August 24, 1998, Ms. Frasure’s personal physician placed her on work restrictions due to her disability and the VA provided Ms. Frasure with reasonable accommodations. In March 1999, Ms. Frasure applied for a promotion to Lead Medical Clerk and was one of the top three applicants who received an interview. However, on June 3, 1999, the VA notified Ms. Frasure that she was not selected for promotion.
On June 21, 1999, Ms. Frasure filed a formal grievance under the collective bargaining agreement between the VA and the American Federation of Government Employees (“AFGE”). Ms. Frasure identified her non-promotion for the Lead Medical Clerk position as the basis of her grievance. On August 18, 1999, Ms. Frasure received a proposed reprimand. On December 15, 1999, the VA issued Ms. Frasure a proposed removal for not providing her supervisor with updated medical information in order to extend her work accommodations. In her reply to the proposed removal, Ms. Frasure asserted that her condition had not changed and that the medical information previously provided by her physician was adequate to allow her to continue working under the same reasonable accommodations. The VA terminated Ms. Frasure on May 19, 2000.
Ms. Frasure contacted the VA’s EEO office on November 29, 1999, and filed a formal complaint on January 12, 2000, alleging that (1) her non-promotion was due to disability discrimination, (2) the letter of reprimand was retaliation for prior EEO activity, and (3) her removal from government service was also due to her disability. Although Ms. Frasure had already filed a grievance on her non-promotion claim, on her formal EEO complaint form, Ms. Frasure answered “No” to a question asking whether she had “filed a union grievance on any of the issue(s) listened [in the complaint].” The VA filed a motion for summary judgment, arguing that the judge should not allow Ms. Frasure’s case to proceed to trial. The judge dismissed Ms. Frasure’s non-promotion claim, but allowed her retaliation and disability discrimination claim to go to trial.
In dismissing Ms. Frasure’s non-promotion claim, the judge noted that under the Federal Service Labor-Management Relations Act and EEOC regulations, a federal employee may raise claims of discrimination under a negotiated grievance procedure or in a Rehabilitation Act complaint, but not both. See 29 C.F.R. 1614.301(a). Because Ms. Frasure initially chose to pursue the non-promotion claim via the union grievance process, the law required her to complete the negotiated grievance procedure before she could file in federal court. The court declared that Ms. Frasure’s choice to pursue the union grievance process was irrevocable.
Fortunately, Ms. Frasure elected to pursue her retaliation and disability discrimination claims solely via the EEO process. Otherwise, Ms. Frasure would have faced the same “election of remedies” problem she encountered with her non-promotion claim. For members of a bargaining unit, the negotiated grievance procedure is always an option when resolving a discrimination complaint. However, employees and union representatives must be aware that once you choose the negotiated grievance route, you are prohibited from switching to the EEO process. The “election of remedies” issue also applies for appeals with the Merit Systems Protection Board and whistleblower claims with the Office of Special Counsel. Therefore, when deciding on the forum for resolution of discrimination complaints, adverse action appeals, or whistleblower claims, it is best to consult with an attorney or your union representative. If you choose the grievance process, be sure to obtain a written commitment from your union that they will represent you or will allow you to retain private counsel through arbitration.
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