so the next two cases on the calendar smith versus saul and thomas were ceasar submitted on the briefs we're going to jump a little bit for a moment we're going to hear high merck versus united states department of the department of the army deemed it the same matter as the step two grievance that the union the law does not preclude an employee from raising a different matter in a subsequent grievance or complaint if he is how do you define matter how would you define matter you know we have some case law out there yes sir ok but let me put it let as the reason that it was dismissed it was assumed into that but the removal of the removal had nothing to do with the hostile work environment claims i believe that the conduct of the co  worker's makes it a different matter so as i understand the existing case law we have we don't have a case on point is that the underlying action was the terminations yes run right that's what that was it and then in they defended his position as it related to those issues the reason that the discrimination complaint at least for the claim of harassment is different is because that focuses on the misconduct of his coworkers ok so then we go over to the e u e o complaint he's complaining about the harassment that he faced as well but i thought he was upset that he was terminated and the reason why he was terminated was because he discriminated against him and retaliated against your honor i would like to in this discrimination complaint he filed that pro se on his own he also raised was a blow reprisal complaint claims and it is well why that claim is separate is because it was not just the removal but the discrimination that he faced because it affected him personally they attacked his coworkers attacked his wife his children the degraded him in the workplace and i think that that affected him personally more so then defending whether his leave was justified where where in the complaint does he mention the word hostile work environment the last page of his discrimination complaint he attached in an extra page he didn't use the term of art hostile work environment but that is essentially what he meant when he's not in that i'm looking i think at the page you're referring to he says i believe that the grounds given by management for my removal from the corps of engineers are false and the real reasons are one retaliation by that complaining about you know the merits like the discrimination against me for being the recovering alcoholic and using medical leave and for having an african american wife and children those are all stated as as the real reasons for his removal and that's of course what as a union grievance was about his removal ry well in the st paragraph you talks about employees that made comments  towards him that and these weren't necessarily an exhaustive list of everything that he went through as you know as i've said previously it was a purpose a process a complaint that he filed  he wanted these matters investigated because there was a pattern of discrimination racially even though he was caucasian he was subjected to inappropriate comments that deeply affected him that he wanted investigat counsel on page thirty eight of the record it appears that under section fifteen b of the complaint your client say it specifically in response to the question whether or not the issues filed the union grievance for because he was always not know what he was doing i understand that there are points and things on this complaint that people who are familiar with the process can easily understand but mr heinrich he was suffering from a depression at the time he was a recovering alcoholic that was going through rehabilitation rehabilitation program he was necessarily thinking as clearly as he could have been he wanted to actually terminate the union's representation but he did not use the magic language to do so so you think we should disregard the fact that he shared that these issues ha had no idea that one the union grievance was going to stand at some point the union simply withdrew the grievance without his permission so it just went nowhere and he didn't  it is a complicated situation because mr heinrich retained our law firm several months after the fact and didn't have a clear he didn't know how to communicate what was happening to him so so i want to get back to my for original question which was how would you how would you ask us and we are circuit is never addressed this issue and you know we could we could go along with what the federal circuit said we could we could modify it somewhat i believe that we could yes there are a couple of district court opinions or talk about topics what what what would you have  all develop a test that i think is applicable here i believe the test here is whether an arbitrator presented with the employees grievance would be obligated to reach the issue of heinrich's racial harassment claim in resolving his steps a griev i saw that that that's what i was trying to get you that yes i saw that opinion and so let's let's play let's step that let's work that out for just a minute yes or ok so let's say the arbitrator who is hearing the union grievance look on the form of the check on that union grievance form there is a reference to for something of the of the collective bargain agreement which in which covers discrimination now would a reasonable arbitrator seeing that check inquire about discrimination what is this about what he really what are you complaining about here when you check the box discrimination i believe you're correct but what's different in this case is that it was the harassment from coworkers as opposed to his supervisor the chain of command i believe if the arbitrator  would inquire if it had been his direct supervisor or a supervisor in his chain of command had subjected him to you would think that a reason why bittered say well look you've raised the issue of discrimination so tell me what is the basis for your alleged discrimination yes ok and you would think then that he might answer that question and say well my wife is african american and they don't like that and they have made comments about that but i believe the the slippery slope here is because it's a removal actually anything that happened in his place of employment could be sustained into with that line of thinking but had it been a suspension or any other type of personnel action if you look at it from the view of a personnel action instead of necessarily a removal because everything is relevant when you're looking at it through the frame of a removal because you're trying to save your job so i understand this whole scheme to be congress wanted to give you know some credence to the whole collective bargaining process and wanted to let employees you know try to resolve their disputes through their collective bargaining agreement and that does provide as i understand it does provide if you go to the arbitrator then you can go to the e e o c and then you can file  if you follow the grievance that you can end up in federal court eventually if i understand it correctly so i mean it seems like there's you know i understand the frustration because a lot of the stuff is probably written by i mean they don't know what they're doing and i understand the frustration on the other hand with congress college clearly trying to focus you know either you go through the grievance route or you go through the e o route one or the other but not both your honor in theory that would work perfectly well in mr heinrich's matter he initially had the union work on prior disciplinary actions he does he expressed dissatisfaction with the union he did not use the magical language i want to terminate this relationship but he did not want them to file the step to later filed e e o formal complaint raised the same matter and to your point judge pi as the government advocates that you adopt the federal circuit standard that same matter looks to the underlying employment action every case reported in a federal court has some variation of that test from bonner and we believe that's the appropriate test in this case so that we don't look at specific factual allegation that we don't look at specific bases of discrimination and we don't look at remedies that are thought partly because this is a basic notice pleading standard for people who might not be as familiar with the process so we think that those tests or more disjunctive test and we look at whether or not an arbitrator would necessarily have to inquire into an end to a matter and that's for the basic purpose of exhaustion of that claim so that when it gets to the e e o c hearing there's more of a developed record now that's not to say any greed bent is bound by what the arbitrator may or may not look into because the federal regulations allow for amendment of like a reasonably related claim when you get to the e o c e o c hearing on appeal from an arbitra write he was advised so mr solomon represented mr heinrich at the o s c and the m s p be so initially this retaliation claim was appealed to the m s cetera now i do want to correct another point on the record so you know not only was mr heinrich represented in the formal e e o complaint and on appeal judge robinson has identified one admission in the eating of formal o complaint there is also another admission by the attorney of record and the appeal of the e e o c matter no secondarily on the equities when the agency denied the ego formal complaint because it found that he had raised those matters in the grievance the agency advised mr heinrich and his counsel to raise those issues of discrimination in the grievance procedure at that point the grievance procedure was still ongoing it was three weeks later that hammer voluntarily abandoned not only the grievance process but also the m s p process to put all of the eggs in the last file e e o c the e o matter the statutory process and we believe those are important published non published we we believe that there is an important point there to be made for this circuit to adopt some standard now on the facts of this case and whether or not to do raise the same matter has argued that the two were completely unrelated because this is a coworker harassment but look what was before the district court three items the federal court complaint e e o formal complaint and the grievance now i want to just draw your attention to the federal court complaint that judge hernandez was faced with paragraph twenty one dollars of that complaint ties together a story of retaliation for mr heinrich raising safety concerns that retaliation spawned harassment harassment by both supervisors and coworkers now these allegations were assumed to be true as a district court had two hundred dollars motion to dismiss on the pleadings and we believe that those inextricably tied together whatever claim of harassment might be in the form of e e o complaint and again the district court found that it wasn't even raised as hostile work environment as judge gilman noted that it's not actually of reference but more to the point the district court complaint doesn't reference hostile work environment as either a claim or a ground for relief what the mr high marks in the district court was removed and back to the agency to investigate whether or not the complaint was improperly dismissed because it raised iover tally ation in relation to the proposed removal the district court correctly found that the proposed removal and the actual removal merge and at that point and the eel retaliation is clearly raised in both the grievance and the eco complaint and so at that point we believe that the the same matter test the satisfied under any standard that you might want to adopt whether it's the fashion topic arbitrator or whether it's bon or just look to the underlying employment action and further to that point when the grievance sets forth collective bargaining agreement for point one it automatically raises the whole of discrimination claims so that in your argument in your brief any or any arbitrator is going to have to ask why did they violate four point one why were you deprived of an equal employment opportunity at your workplace that is the matter if you want to look beyond terminations its denial of equal employment opportunity as referenced by collective bargaining agreement four point one  last point i'd like to make on the equities of this case in case you you are interested in those is that not only did mr hammer have notice to amend his grievance an opportunity to amend both on the time and under the regulation but he also had experience and representation in both of those matters he had been through the grieving process multiple times before successfully with this union and he had been represented by mr solomon at the m s p b to challenge the retaliation for the safety concerns and in the formal e e o process both of those admissions where he says that i've raised these matters and both in m s p b and in an e o proceeding should have to bind m or he has a claim against his counsel that's a different claim but at this point the civil service really factor of reform act is really trying to balance this value of collective bargaining agreements with being an  think mr heigham or consist anan one where trapped in the case where he was advised on the iau dismissal go raise these claims in your grievance he had the opportunity to do that and he had counsel so we don't believe this is a situation where it was curious how you respond to mr hagar's point that your client was advised that he could amend his union grievance and yet he chose not to do so what do you say about that your honor my client completely denies that and my apologies for misspeaking on mr hicks prior representation but he had serious issues with that representation as you can tell from this complaint where he raised it was a bill or a prize or if someone that was part attorney had drafted this it would have been more artfully done this is this intially the story of a man who trusted the union to file to work on his matter and file a grievance and they submitted a one page two paragraph rebuttal for sensually something that c d many issues in many theories of what was going on he subsequently hired this attorney that also either had serious flaws in his communication or did not understand employment law legal representative especially from my firm it would not have been delayed for three months for no reason mr hamrick maintains to this day that he has never received a decision on that grievance and he was never informed that he but he's saying that he never got a notice or decision or any type of nobody told him that we're withdrawing this right to go with trying this grievance and for washing our hands of this matter right unfortunately we came into the