Opinion
CIVIL ACTION No. 90-2410-KHV
February 2, 2004
MEMORANDUM AND ORDER
Daniel Taylor brings suit against Marvin Runyon, Postmaster General of the United States Postal Service ("USPS"), for specific performance and breach of settlement agreement. This matter comes before the Court onDefendant USPS' Motion To Dismiss. Or In The Alternative. MotionFor Summary Judgment (Doc. #86) filed November 14, 2003. For reasons stated below, the Court overrules defendant's motion.
I. Procedural History
In May of 1985, plaintiff filed with the USPS an Equal Employment Opportunity ("EEO") complaint alleging disability discrimination. On December 10, 1987, plaintiff and the USPS agreed to settle plaintiff's EEO complaint. Under the agreement, the USPS agreed to reinstate plaintiff's EEO complaint if it breached the terms of the settlement agreement.
On April 4, 1988, plaintiff asked the USPS to re-openhis EEO complaint, asserting that the USPS had breached the settlement agreement regarding pay and accrued annual leave and sick leave. On May 18, 1988, the USPS issued a final agency decision ("FAD") which denied plaintiff's request to reopen his EEO complaint, finding that the USPS had not breached the settlement agreement. The FAD stated that if plaintiff disagreed he could (1) file a civil action within 30 calendar days or (2) appeal to the Equal Employment Opportunity Commission ("EEOC") within 20 calendar days. Plaintiff received the FAD in May of 1988 but did not timely file a lawsuit or appeal.
In 1988, federal regulations provided that after receiving a notice of final action taken by a federal agency on an EEO complaint, an employee or applicant could either file a civil action within 30 days or appeal to the EEOC within 20 days. See 29 C.F.R. § 1613.233(a) and 1613.281 (1988).
In August of 1990, plaintiff again asked the USPS to re-open his EEO complaint, asserting that the USPS had breached the settlement agreement because his "craft seniority" date did not reflect his "enter on duty" date. On October 17, 1990, the USPS issued a FAD which denied plaintiff's request to re-open the EEO complaint, finding that the USPS had not breached the settlement agreement. The FAD stated that ifplaintiff disagreed he could (1) file a civil action within 30 calendar days or (2) appeal to the EEOC within 20 calendar days. On October 29, 1990, plaintiff filed this action for breach of settlement agreement, seeking specific performance and monetary damages. On April 22, 1993, this Court transferred the case to the United States Court of Federal Claims, finding that the latter had exclusive jurisdiction because plaintiff sought in excess of $10,000.00 for breach of contract against the United States. See Memorandum And Order (Doc. #71) (citing 28 U.S.C. § 1631). At the time of transfer, the parties had completed discovery and the Court had entered a pretrial order.
Nearly ten years later, on November 18, 2002, the United States Court of Federal Claims transferred the case back to this Court, finding that the comprehensive statutory scheme of Title VII precluded it from exercising jurisdiction over an action alleging noncompliance with a Title VII settlement agreement. See Opinion of the United States Court of Federal Claims filed in this case on February 11, 2003 (Doc. #74) at 4-5 (citing Lee v. United States. 33 Fed. Cl. 374 (1995)).
II. Subject Matter Jurisdiction
District courts do not have ancillary jurisdiction to enforce settlement agreements in dismissed cases where the order of dismissal does not retain jurisdiction or incorporate the terms of settlement.Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994). In Morris v. City of Hobart, 39 F.3d 1105 (10th Cir. 1994), the Tenth Circuit ruled that Kokkonen applies to suits to enforce settlement agreements arising from Title VII lawsuits between private parties. Id. at 1110-12. The Court considers, sua sponte, subject matter jurisdiction. See Franklin Sav. Corp. v. United States. 180 F.3d 1124, 1129 (10th Cir. 1999).
This case is different from Kokkonen and Morris because it involves a settlement agreement which a federal agency negotiated during the EEO process, before plaintiff filed suit. Most courts which have addressed the issue have found Title VII jurisdiction over claims to enforce predetermination settlement agreements, reasoning that federal jurisdiction is necessary to further Congress' goal of conciliation and voluntary compliance with Title VII. See,e.g., Ruedlinger v. Jarrett. 106 F.3d 212, 215 (7th Cir. 1997) (Title VII provides jurisdiction over action by private parties to enforce predetermination settlement agreement); Eatmon v. Bristol Steel Iron Works. Inc., 769 F.2d 1503, 1508-1513 (11th Cir. 1985) (same); Owens v. West. 182 F. Supp.2d 180, 187-90 (D. Mass. 2001) (action to enforce predetermination settlement agreement constitutes action under Title VII); Bell v. Potter. No. 00-C-50164, 2001 WL 1636888, at *3-4 (N.D. Ill. Dec. 20, 2001) (Title VII provides jurisdiction over action by federal employee to enforce predetermination settlement agreement); Francisco v. West, No. 98-C-3007, 2001 WL 563793, at *2-3 (N.D. Ill. 2001) (same); Howell v. Dept. of Army, 975 F. Supp. 1293, 1303-04 (M.D. Ala. 1997) (federal courts have jurisdiction over claims for breach of predetermination settlement agreements);Montalvo v. USPS, 887 F. Supp. 63, 65 (E.D.N.Y. 1995) (same);Sherman v. Standard Rate Data Serv., Inc., 709 F. Supp. 1433, 1439-41 (N.D. Ill. 1989) (same). But see Chris v. Tent. 221 F.3d 648 (4th Cir. 2000) (no jurisdiction over action for attorney's fees and costs incurred in Title VII administrative proceedings), and Hunter v. Ohio Veterans Home. 272 F. Supp.2d 692, 695 (N.D. Ohio 2003) (no indication that Congress intended to confer federal forum for enforcement of all Title VII conciliation agreements, especially those mediated by state administrative agencies).
Suchagreements are called predetermination settlement agreements, which the parties enter into before the agency has made a final determination regarding the merits of the EEO complaint. See Ruedlinger v. Jarrett, 106 F.3d 212, 214 n. 1 (7th Cir. 1997).
Although the Tenth Circuit has not addressed the issue, the Court believes that it would follow the majority of cases cited above and find that Title VII confers jurisdiction over plaintiff's claims in this case.See, e.g., Morris, 39 F.3d at 1111 n. 4 (noting that number of courts have found that conciliation and predetermination settlement agreements are "brought under" Title VII, finding that post-litigation settlement contract between private parties does not implicate same degree of congressional concern); Snider v. Circle K Corp., 923 F.2d 1404, 1407 (10th Cir. 1991) (finding that predetermination settlement agreements are "inextricably linked" to Title VII, not allowing plaintiff jury trial under pre-1991 amendments to Title VII). The Court therefore exercises subject matter jurisdiction over plaintiff's claims.
III. Summary Judgment Standard
Because both parties submit evidence outside the pleadings, the Court therefore considers defendant's motion under a summary judgment standard.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.;accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law."Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City Of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sees., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990): see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. See Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative.See Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
IV. Facts
The following facts are either uncontroverted or construed in a light most favorable to plaintiff
D. Kan. Rule 56.l(b) requires that"[e]achfact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed." D. Kan. Rule 56.1(b)(1). In addition the rule requires that "[i]f the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party shall set forth each additional fact in a separately numbered paragraph, supported by references to the record. . . ." D. Kan. Rule 56.1(b)(2). The Court does not consider any fact paragraphs which are not properly supported by the record and identified in accordance with this rule.
In May of 1985, plaintiff filed an EEO complaint alleging that the USPS had not selected him to work as a distribution clerk on account of his disability. On December 10, 1987, plaintiff and the USPS agreed to settle plaintiff's EEO complaint. Their agreement provided as follows:
The record does not reflect the nature of plaintiff's disability or whether plaintiff worked for the USPS at the time he applied for the position.
1. Daniel Taylor will be given a pre-employment physical as soon as possible.
2. If he is certified by the examining physician as employable, he will be placed in the positionofPS-2custodianorPS-5 distribution clerk at his choice. Mr. Taylor will be a full-time regular.
3. Mr. Taylor's enter on duty date will reflect his entry on duty as either distribution clerk or custodian to be the date he would have been hired subsequent to his employment interview in November 1984.
4. Mr. Taylor's salary will reflect that he has attained the maximum step possible given his enter on duty date.
5. Mr. Taylor will receive a lump sum back pay award equivalent to an average of the employees['] salary for the immediate preceding year who were hired as a result of pre-employment interviews in November 1984.
6. If Mr. Taylor is not employable as per the examination referenced in para[graph] I above he will retain only the back pay award as outlined in paragraph 5 above.
7. If Mr. Taylor has limiting conditions the Postal Service will consider reasonable accommodation as long as he is qualified to perform the essential functions of the position.
8. No attorney fees are granted.
9. This settlement closes all issues relative to non-employment of Mr. Taylor prior to the date of signature but does not impinge on Mr. Taylor's right to file a complaint concerning the determination of the physician in paragraph 1 above.
Exhibit 2, attached to Declaration Of Joann M [sic] Figueroa. attached to Defendant USPS' Memorandum In Support Of Its Motion To Dismiss. Or In The Alternative. Motion For Summary Judgment ("Defendant's Memorandum") (Doc. #87) filed November 11, 2003. The USPS further agreed that if it did not "adhere to the stipulations contained in this agreement" it would, upon plaintiff's written request, "reinstate the [EEO] complaint for further processing from the point processing ceased under the terms of this agreement." Id.
On December 19, 1987, the USPS awarded plaintiff a career appointment as PS-2 custodian assigned to the maintenance craft. It placed him at pay step A and gave him an "enter on duty" date of December 19, 1987. On February 10, 1988, however, it corrected plaintiff's "enter on duty" date to November 24, 1984 — the date on which he would have been hired subsequent to his pre-employment interview in November of 1984.
A collective bargaining agreement ("CBA") between the USPS and the AmericanPostal Workers Union National Association of Letter Carriers governed the terms and conditions of plaintiff's position. Article 38 of the CBA defined "service seniority" as follows:
Service seniority is based on total part-time or full-time service in the Maintenance Craft, regardless of occupational group and level. It begins with an appointment to the regular part-time or full-time work force in the Maintenance Craft.
Exhibit 5 at 16, attached to Declaration Of Diane L. Whitworth attached to Defendant's Memorandum (Doc. #87). The CBA allowed a PS-2 level employee to move from pay step A to pay step B after 96 weeks, and from pay step B to pay step C after 88 weeks.See id. at 3. In addition, the CBA required that employees follow a certain procedure and arbitrate any grievances.See id. at 9-15.
The agreement defines "grievance" as follows:
a dispute, difference, disagreement or complaint between the parties related to wages, hours, and conditions of employment. A grievance shall include, but is not limited to, the complaint of an employee or of the Unions which involves the interpretation, application of, or compliance with the provision of this Agreement. . . .Id. at 9.
On March 9, 1988, the USPS paid plaintiff a lump sum back pay award of $29,300.00, which represented the average salary for the immediate preceding year of employees who were hired as a result of the pre-employment interviews in November of 1984. See Exhibit 2 ¶ 5, attached to Declaration Of Joann M [sic] Figueroa, attached to Defendant's Memorandum (Doc. #87).
On April 4, 1988, plaintiff requested that the USPS re-open his EEO complaint, arguing that the USPS had breached the settlement agreement by not giving him (1) the maximum salary step based on his "enter on duty" date; and (2) accrued annual leave and sick leave based on his "enter on duty" date. On May 18, 1988, the USPS changed plaintiff spay from step A to step B, effective September 27, 1988. That same date, the USPS issued a FAD which denied plaintiff's request to reopen his EEO complaint. The FAD noted that (1) the USPS had corrected plaintiff's "enter on duty" date and salary; and (2) the settlement agreement did not require the USPS to award accrued annual leave and sick leave. See Exhibit 9 to Plaintiff's Response. The FAD stated that if plaintiff disagreed he could (1) file a civil action within 30 calendar days of his receipt of the decision or (2) appeal to the EEOC within 20 calendar days of his receipt of the decision. Plaintiff received the FAD in May of 1988.
The record does not reflect why the USPS changed plaintiff's pay or how it selected the effective date.
On June 15, 1988, the USPS changed plaintiff's pay from step B to step C, effective June 4, 1988.
The record does not reflect why the USPS changed plaintiff's pay or how it selected the effective date of June 4, 1988.
On September 24, 1988, the USPS promoted plaintiff to a level 03, laborer custodial. Plaintiff continued to work at this level until July of 1996, when he received disability retirement.
In August of 1990, plaintiff again asked the USPS to re-open his EEO complaint, arguing that the USPS had breached the settlement agreement because his "craft seniority" date did not reflect his "enter ondury" date. On October 17, 1990, the USPS issued a FAD which denied plaintiff's request to re-open the EEO complaint, finding that the settlement agreement did not require the USPS to change plaintiff's craft seniority date.See Exhibit 13 to Plaintiff's Response. The FAD stated that if plaintiff disagreed, he could (1) file a civil action within 30 calendar days of his receipt of the decision; or (2) appeal to the EEOC within 20 calendar days of his receipt of the decision.
Plaintiff alleges that he complained that the USPS had breached the agreement by changing his "enter on duty" date and craft seniority date from November 24, 1984 to December 19, 1987, see Plaintiff's Response ¶ 18, but his record citation does not support the assertion. See Exhibit 12 to Plaintiff's Response. In an undated letter, plaintiff complained that the USPS had not complied with the terms of the agreement with respect to
(a) Maintenance: Position Classification
(b) Leave Status
(c) No binding agreement.
Exhibits 8 and 12 to Plaintiff's Response. Defendant points out that plaintiff has not authenticated the letter. See Estate of Sisk v. Manzanares, 262 F. Supp.2d 1162, 1167 n. 3 (D. Kan. 2002). The document is not material to the outcome, however, and the Court will consider it for purposes of ruling on this motion.See Ruggles v. Keebler Co., 224 F. Supp.2d 1295, 1304 n. 2 (D. Kan. 2002).
On October 29, 1990, plaintiff filed this action for breach of settlement agreement, seeking specific performance and monetary damages.See Pretrial Order (Doc. #70) filed April 15, 1993 at 3-4.
V. Analysis
Plaintiff asserts that defendant breached the settlement agreement by not awarding him a seniority date of November 24, 1984. See Pretrial Order (Doc. #70) at 3. Defendant urges the Court to dismiss plaintiff's claims because plaintiff has not exhausted administrative remedies under the CBA. Alternatively, defendant seeks summary judgment that it did not breach the settlement agreement.
Defendant also seeks to dismiss as untimely plaintiff's claim that it breached the settlement contract by failing to give him the maximum pay step and accrued leave. Plaintiff asserted such claims in his complaint, see Second Amended Complaint (Doc. #48) ¶¶ 17-19 filed August 14, 1992, but not in the pretrial order. The pretrial order asserts a breach of contract claim based only on defendant's failure to give plaintiff an "enter on duty" and seniority date of November 24, 1984. See Pretrial Order (Doc. #70) at 3. By not including the maximum pay and accrued leave claims in the pretrial order, plaintiff has effectively abandoned those claims. See D. Kan. Rule 16.2(c) (pretrial order controls subsequent course of action unless modified by consent of parties and court, or by court order to prevent manifest injustice); Gordon-Howell v. Penn-Plax. Inc., 232 F. Supp.2d 1251, 1256 n. 5 (D. Kan. 2002).
A. Whether Plaintiff Must Exhaust Administrative Remedies Under The Collective Bargaining Agreement
The USPS argues that the CBA governs seniority and that plaintiff must follow CBA grievance procedures to recover for breach of the collective bargaining agreement. See Defendant's Memorandum at 10-13. This argument misses the mark. Plaintiff claims that the USPS breached the settlement agreement, not the CBA. Plaintiff alleges that the settlement agreement required the USPS to award him a seniority date of November 24, 1984 and that the USPS failed to do so. See Pretrial Order (Doc. #70) at 3. If plaintiff shows that defendant did not meet its obligations under the settlement agreement, plaintiff may be entitled to certain remedies for that breach. Defendant has not shown that to bring his claim for breach of the settlement agreement, plaintiff must exhaust remedies under the CBA. The Court will not dismiss plaintiff's claim on this ground.
At this time, the Court does not address what remedies may be available to plaintiff. At the very least, it appears that under the terms of the settlement agreement, plaintiff may be entitled to re-open his original EEO complaint for further processing.
B. Whether The USPS Breached The Settlement Agreement
The USPS urges the Court to find as a matter of law that it did not breach the settlement agreement. In Heuser v. Kephart. 215 F.3d 1186 (10th Cir. 2000), the Tenth Circuit found that the enforcement and interpretation of Title VII settlement agreements are governed by federal common law because they are "inextricably linked" to the underlying law of Title VII. Id. at 1190 (quoting Circle K. 923 F.2d at 1407); see also Daigle v. West 225 F. Supp.2d 236, 245 (N.D.N.Y. 2002).
In any event the Court discerns no material difference between federal common law and Kansas law with respect to the outcome in this case.
The USPS contends that as a matter oflaw, the settlement agreement is unambiguous and does not require it to change plaintiff's seniority date. The Court disagrees. The apparent intent of the settlement agreement was to place plaintiff in the positionhe would have occupied if he had been hired in November of 1984. The third paragraph of the settlement agreement provides as follows:
Mr. Taylor's enter on duty date will reflect his entry on duty as either distribution clerk or custodian to be the date he would have been hired subsequent to his employment interview in November 1984.
Exhibit 2 ¶ 3, attached to Declaration Of Joann M [sic] Figueroa. attached to Defendant's Memorandum. In addition, the agreement provides that the USPS will adjust plaintiff's salary to reflect the maximum step possible based on the "enter on duty" date, and that the USPS will award plaintiff back pay based on that date.Id.
The USPS asserts that an employee's "enter on duty" date is different from his or her "seniority" date. The settlement agreement, however, does not define "enter on duty" date. The USPS provides no evidence regarding the meaning of the "enter on duty" date, nor does it explain how an "enter on duty" date is different from a "seniority" date. The USPS argues that the parties could not have intended the settlement agreement to cover the "seniority" date because the CBA controls all issues regarding seniority. The record, however, does not support that conclusion. The settlement agreement does not refer to the CBA. Moreover, the CBA controls issues regarding pay, yet the settlement agreement clearly requires the USPS to adjust plaintiff's pay to the maximum step possible givenhis "enter on duty" date. Exhibit 2 ¶ 4, attached to Declaration Of Joann M [sic] Figueroa, attached toDefendant's Memorandum. On this record, the Court finds that the settlement agreement is ambiguous regarding whether the "enter on duty" date includes "seniority" date. Defendant is not entitled to summary judgment on plaintiff's claim. IT IS THEREFORE ORDERED that Defendant USPS' Motion To Dismiss. Or In The Alternative. Motion For Summary Judgment (Doc. #86) filed November 14, 2003 be and hereby is
In fact, in the pretrial order, the USPS asserts that "both parties contemplated that the enter-on-duty date would include a change in seniority status." Pretrial Order (Doc. #70) at 5.
OVERRULED.