Generally, the EEOC holds that a complainant alleging discrimination associated with a union’s grievance proceeding constitutes a collateral attack on a union proceeding and, therefore, is not a claim within its jurisdiction. See Les B. v. U.S. Postal Serv., EEOC App. No. 2023002819 (Oct. 5, 2023) (holding agency properly dismissed complainant’s claim that agency violated a union grievance settlement because it was a collateral attack on another proceeding); Complainant v. U.S. Postal Serv., EEOC App. No. 2020002501 (Sept. 10, 2020) (dismissing as a collateral attack complainant’s “complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected EEO activity under when, on September 6, 2019, highly restricted EEO affidavits were submitted into a grievance file to be used against her.”).

However, the Commission recently held that there are “limited circumstances” in which a complainant’s complaint regarding a union grievance proceeding does state a claim. Fawn G. v. U.S. Postal Serv., EEOC App. No. 2024002899 (Aug. 27, 2024). In Fawn G. v. United States Postal Service, the complainant alleged that the agency subjected her to retaliation when management failed to comply with a pre-arbitration settlement agreement that resolved a union grievance and, as a result, the complainant did not receive a return to work date. The agency dismissed the complainant’s complaint for failure to state a claim, reasoning it was a collateral attack on the grievance process. On appeal, the complainant explained that she believed she was subjected to retaliation because two of her coworkers who were subject to the same pre- arbitration settlement agreement but who had not engaged in prior protected EEO activity had been returned to work. On appeal, the Commission reversed the agency’s decision to dismiss the complainant’s complaint. It held that the complainant’s claim fell within the “limited circumstances” where the Commission has jurisdiction over a claim related to a union grievance process. The Commission explained that the complaint was “not challenging [the] validity of the grievance process or the terms of the Pre Settlement Agreement,” but rather “challenging the Agency's implementation of the Agreement.” As a result, it held that, “[a]n allegation that the negotiated grievance process was applied discriminatorily by the agency while the grievance decision was still within its control is clearly a cognizable claim before the Commission because it alleges discrimination by the agency concerning a term, condition or privilege of employment.”