Campbell v. Geren, No. 1:2007cv00675 - Document 20 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION: For the reasons stated in this Opinion, defendant's Motion to Dismiss will be granted by an Order to be issued with this Memorandum Opinion.Signed by District Judge Leonie M. Brinkema on 05/05/09. (yguy)
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IN THE UNITED STATES DISTRICT COURT FOR TI EASTERN DISTRICT OF VIRGINIA Alexandria Division WILLIAM E. CAMPBELL, __ clerk, u.s. district court ALEXANDRIA, VIRGINIA ) ) } Plaintiff, ) v. ) ) PETE GEREN, Acting Secretary, Department of the Army, l:07cv675 ) ) (LMB/JFA) ) ) Defendant. MEMORANDUM OPINION Before the court is defendant's Motion to Dismiss. reasons stated in open court, Opinion, For the as supplemented by this Memorandum the motion will be granted. I. Plaintiff William E. Background Campbell American male proceeding pro se. ("Campbell"), began his employment with the Army as a Civil Service Engineer at Fort Belvoir, February 1987. In 2000, an African- Virginia in he took a special assignment at Fort Lewis, Washington, where he had a lead role until 2004. in 2003, Colonel Charles McMaster became Campbell's "de facto supervisor." McMaster also hired Alfred Bergeron, a retired army colonel, contractor to support in Fort Lewis. the operations According to the Amended Complaint, cut Campbell's funding, in April 2004, McMaster told management that Campbell would not serve on his staff as of May 29, 2004, and promoted Bergeron to serve as director of Fort Lewis operations, Campbell. as a effectively replacing Campbell remained at Fort Lewis in a reduced role after securing funding from other sources. of this, according to Campbell, Once McMaster learned he attempted to "obstruct" Campbell's continued employment. Campbell claims that McMaster and Bergeron conspired against him, motivated in part by his race and age. alleges that on June 27, 2004, claiming that Tamara Harris, Specifically, he Bergeron wrote McMaster a memo a recently hired employee, that Campbell had sexually harassed her. told him Harris met with a representative of Fort Lewis's Equal Employment Opportunity office on July 13, 2004; according to Campbell, urging by McMaster and Bergeron. she did so upon According to Campbell, Harris never filed a formal complaint against him, 2004, (EEO) although on July 27, the Army assigned Tom Newsome to conduct an investigation of Harris' allegations pursuant to Army Regulation 15-6 (the "15- 6 investigation"). In October 2004, 15-6 investigation, the Army proposed to suspend Campbell for 5 days. upon the culmination of the Campbell disputed the harassment charges and appealed the proposed suspension. Campbell claims that in November 2004, he was told that new allegations of harassment had surfaced against him, and that he should "stand down" from his scheduled appeal while the agency conducted further investigation. Campbell did so. In January 2005, to Fort Belvoir, Campbell was told he was being reassigned where he reported in February 2005. -2- In December 2005, Campbell filed an EEO complaint regarding employment discrimination in a matter at Fort Belvoir that was unrelated to any of Lewis. the issues regarding his employment at Fort That matter was resolved in February 2006 through an alternative dispute resolution After completing its process.1 investigation of the sexual harassment allegations against Campbell, for 30 days, (ADR) the Army proposed to suspend him based on findings that, among other things, Campbell committed at least six distinct acts of harassment and "repeated [his] actions on many occasions with multiple women." such conduct could have been cause for removal, Although given Campbell's work history, the Army found that a 30-day suspension was more appropriate. Campbell proposed suspension. timely filed a memorandum opposing the On August 28, 2006, Dr. Geraldo Melendez issued a final decision reducing Campbell's suspension to 28 days, effective September 5, authorized Campbell Protection Board to appeal (MSPB) 2006. Melendez's decision the suspension to the Merit Systems within 30 days of the effective date. Melendez's decision also notified Campbell that if he believed that the disciplinary action was a result of discrimination, he could either include the allegations of discrimination as part of a "mixed appeal" to the MSPB, or he could bring the xThis proceeding is only relevant to this action because, Count 6, Campbell alleges that the Army retaliated against him because of the December 2005 complaint. 3 in discrimination claim separately to the Fort Belvoir EEO office, in which case he was required to file his complaint within 45 days. Campbell was notified that his choice on this point would be a binding choice of forum. In September 2006, October 5, 2006, Campbell served the suspension. On he filed a timely mixed appeal with the MSPB in which he included allegations that he was discriminated against on the basis of race and age. The mixed appeal included allegations dating back to May 2004, McMaster when, according to Campbell, "attempted to replace" him without cause, "attempted to dissuade" other project managers from working with him, and ultimately engineered the investigation that culminated in the suspension. On November 27, 2006, Campbell and the Army conducted a prehearing conference with an administrative judge Northeastern Regional Office of the MSPB. (AJ) at the According to Campbell's opposition to the defendant's Motion to Dismiss, AJ "separated" ones, the discrimination claims the from the procedural and told Campbell that his discrimination claims could be better addressed by the EEO office. According to Campbell, when he asked the AJ to formally remand the discrimination matters to the EEO office, directly to he was told that he could simply take the claims the EEO. On December 1, 2006, Campbell and the Army entered into a -4- settlement agreement under which his suspension was reduced to 19 days. Campbell certified in the agreement that he had the opportunity to consult with a representative.2 The settlement agreement included the following relevant language: 1. In order to avoid the possibility of future disputes and protracted litigation . . . the Command and Control Directorate Communications-Electronics, Development and Engineering Center, Jersey . Campbell . . . . agrees . to the Research, Fort Monmouth, following with Mr. New William 10. Employee agrees to waive all grievance and appeal rights, including appeals to the Merit Systems Protection Board {MSPB). In addition, the Employee agrees to waive all Equal Employment Opportunity (EEO) rights related to the relevant issues of MSPB Appeal Docket No. PH-0752-07-0011-I-1.3 12. This Agreement contains the entire understanding between the Employee and the Agency with respect to this matter. The parties understand the terms of this Agreement. The parties voluntarily enter into this Agreement. Pursuant to the settlement agreement, MSPB appeal on December 13, 2006. the AJ dismissed Campbell's The order of dismissal authorized appeal rights to the full MSPB board and to the United 2As explained during oral argument, that representative was not a lawyer but merely a friend Campbell brought along for moral support. Paragraph 10 included handwritten changes to the second sentence, which apparently went through three iterations. The original, typewritten version stated that Campbell agreed to waive "all Equal Employment Opportunity (EEO) complaints of the Agency's action up to and including the date of this Agreement." An initial handwritten revision that was crossed out stated the Campbell was waiving all EEO rights "related to the matters raised in the instant appeal." The final handwritten version is quoted above. -5- States Court of Appeals On December 11, for 2006 the Federal Circuit. and then again on January 12, 2007, Campbell attempted to take his discrimination claims to the Fort Belvoir EEO office. However, Campbell was informed that any EEO complaints at this point were either time-barred by the 45-day statute of limitations, or barred by the settlement agreement. Campbell never filed a formal EEO complaint before filing this civil action, 2005 aside from his unrelated EEO complaint in December that was resolved through ADR.4 In January 2007, of Campbell filed a timely petition for review the AJ's dismissal of his MSPB appeal - the dismissal to which he had agreed under the settlement agreement. His primary assertion was that the settlement agreement resulted in the EEO improperly rejecting his discrimination claims, and that notwithstanding the above-quoted language in Paragraph 10 of the settlement agreement, he believed that he would be able to raise at least some of his discrimination claims before the EEO. Campbell stated that he had initially submitted a timely mixed appeal to the MSPB, and only went to the EEO after the AJ determined that the EEO office should handle any discrimination allegations. Campbell also alleged that the settlement agreement 4In his opposition, Campbell also states that after he filed this action, he filed two separate EEO complaints, which are currently pending before the EEO office, alleging that he was "passed over multiple times for promotions." PL's Opp. 91 5. These complaints do not relate to the allegations in this action. -6- was not voluntary because the AJ had pressured him into settling, in part by emphasizing that if the action were not settled, the agency could file criminal charges against him as a result of the harassment charges. reimbursed for his Campbell also asserted that he had not been salary for the nine days by which his settlement had reduced the suspension.5 He sought remand of the discrimination claims to the EEO office, vacateur of the settlement agreement, MSPB appeal back to On April 4, grounds and remand of the remainder of his original the AJ. 2007, the MSPB denied Campbell's petition on the that there was no significant new evidence and no error of law in the dismissal. Campbell The MSPB review board authorized to petition for review in the Federal Circuit.6 In May 2007, Campbell filed a complaint with the Equal 5The MSPB remanded the salary claim to the AJ, deeming it to be a request to enforce the settlement agreement and not to review it. The AJ dismissed this claim on July 11, 2007 after the Army put forth unrebutted evidence that it did reimburse Campbell. 6A petition for review of a mixed MSPB appeal normally would go to a federal district court, 5 U.S.C. § 7703(b)(2), not the Federal Circuit, which only has jurisdiction to hear petitions for review of MSPB appeals that do not involve allegations of discrimination, id. § 7703(b)(1). However, Campbell was apparently directed to the Federal Circuit because the MSPB did not adjudicate the merits of his discrimination claim; rather, the MSPB merely dismissed his appeal because the matter had been settled. See Ballentine v. Merit Systems Protection Bd.. 738 F.2d 1244, 1247 (Fed. Cir. 1984) (holding that the Federal Circuit has jurisdiction over MSPB decisions that do not decide discrimination issues on the merits). -7- Employment Opportunity Commission (EEOC), claiming that the MSPB should have considered the mixed case appeal as a whole or remanded the discrimination claim to the EEO. In June 2007, the EEOC denied review of the MSPB claim and issued a right-to-sue letter. The EEOC denial stated that because Campbell had settled his dispute with the Army, his the EEOC lacked any jurisdiction over claims. II. On July 13, Complaint. 2007, The Complaint at Issue. Campbell After Campbell forma pauperis. filed his initial pro se filed an application to proceed in the Court issued an order characterizing the case as an appeal of a decision by the MSPB and transferred the case to the Federal Circuit. In a footnote in that opinion, the Court noted that it could not exercise jurisdiction over the action despite the presence of Title VII claims because Campbell had not pled that he had exhausted administrative remedies or attached a right-to-sue letter from the EEOC. On October 27, 2008, the Federal Circuit ordered the action remanded to this court, the remand was effected on January 15, 2009, 2009. and On January 16, Campbell filed an Amended Complaint alleging nine counts, including two due process claims and seven claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et sea. ("Title VII"): Count 1 (Title VII) alleges hostile work environment -8- harassment by McMaster at Fort Lewis from November 2003 through February 2005. Count 2 (Title VII) account of race McMaster, alleges discriminatory transfer on from May 2004 through February 2005, motivated in part by race, when allegedly "undertook illegal measures to remove Campbell from his employment at Ft. Lewis." Count 3 Am. Compl. (Title VII) 5[ 44. alleges discriminatory investigation on account of race by McMaster and others, investigation of Campbell, whose 15-6 which began in June 2004, was allegedly motivated in part by race. Count 4 (Due Process) alleges that when Melendez final order of suspension on August 28, 2006, issued his he ignored Campbell's right to review and appeal of all evidence used in deciding an adverse administrative action. Count 5 (Title VII) alleges discriminatory investigation on account of race by Tom Newsome, Complaint, who, according to the "eschewed required procedures, generated reports that contained erroneously recorded testimony, on reports, Am. Compl. Count 6 altered dates and recommended that Campbell be terminated." 31 55. (Title VII) alleges that in March 2006, less than a month after Campbell participated in ADR regarding his unrelated Fort Belvoir EEO claim, -9- the Army proposed to suspend Campbell for 30 days in retaliation for filing the EEO complaint. Count 7 (Title VII) accept the initial alleges that because Campbell did not 5-day suspension and planned an appeal, the Army retaliated against him by soliciting additional support, fabricating new evidence, and proposing to suspend him for 30 days and ultimately for 28. Count 8 (Title VII) alleges that before and after his departure from Fort Lewis in early 2005, Campbell inquired about similarly situated employment and McMaster acted to prevent him from getting such employment, motivated in part by racial animus. Count 9 (Due rocess) alleges that because Campbell refused to accept the adverse action and "let it be over with," the Army withheld and failed to disclose critical evidence that would have "impugned nearly all of the allegations" against him. Am. Compl. f 72. The defendant has filed a filed a motion, styled as a motion to dismiss or alternatively for summary judgment, grounds, on four only two of which are necessary to address here. First, the defendant argues that any discrimination claim that is not covered by the settlement agreement is barred for failure to exhaust administrative remedies. Second, the defendant asserts that the settlement agreement bars Campbell -10- from asserting any claims related to his suspension.7 III. As to its appears two substantive arguments, to be a motion to dismiss under Rule 12 (b)(6). dismiss, Standard of Review. defendant's motion for failure to state a claim In reviewing a Rule 12(b)(6) a court assumes the truth of all motion to facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations, and construes facts in the light most favorable to the plaintiff. Markets, 180 Inc. (4th Cir. v. J.D. 2000). Associates Ltd. However, Partnership, to relief requires more and a formulaic recitation of the elements of a cause of action will not do." v. Twomblv. 550 U.S. 544, 213 F.3d 175, "a plaintiff's obligation to provide the grounds of his entitle[ment] than labels and conclusions, See Eastern Shore 555 (2007) Bell Atlantic Corp. (internal quotation marks and citations omitted). Although the defendant's motion will be treated as a 12(b)(6) motion to dismiss, certain documents in addition to the Amended Complaint have been considered in evaluating the motion. 7The defendant also argues that the Court lacks subject matter jurisdiction to review the settlement agreement for any allegations of breach, and lacks personal jurisdiction over the defendant because Campbell has not properly served the United States Attorney, the Attorney General, or the Secretary of the Army. Because the two grounds discussed in this opinion are sufficient to grant the defendant's motion to dismiss, other grounds will not be discussed. -11- these A court may consider material converting a Rule 12(b)(6) the material is Complaint" F.R.D. motion to one for summary judgment if *integral to and explicitly relied on in the and if the plaintiff does not challenge its authenticity. (4th Cir. outside the pleadings without Phillips v. 1999); 280, 282 LCI Int'l, see also Gasner v. (E.D. Va. 1995) Inc.. County of Dinwiddie. events of the settlement a memorandum that summarized the the prehearing conference on November 27, ("prehearing memorandum"), 162 they are of Specifically, agreement between the parties, 618 (holding that official public records may also be considered as long as unquestioned authenticity). 190 F.3d 609, and Campbell's 2006 initial appeal filed with the MSPB have been considered because they are explicitly referenced in the Amended Complaint Compl. id. M 1 27}, any of 29-30; prehearing conference, id. 3 28; Am. MSPB appeal, and Campbell has not questioned the authenticity of the documents. IV. A. (settlement agreement, Discussion. Failure to Exhaust Administrative Remedies. The claims in Count 1, which alleges hostile work environment harassment at Fort Lewis from November 2003 February 2005, Count 2, through which alleges discriminatory transfer on account of race in May 2004 through February 2005, which alleges that in early 2005, and Count 8, McMaster prevented Campbell -12- from getting similarly situated employment, administratively and, therefore, were not exhausted will be dismissed. Before raising a Title VII claim in federal court, plaintiff must exhaust administrative remedies. 438 F.3d 404, 415-17 {4th Cir. administrative remedy process employee does 2006) Laber v. Harvev, (discussing the for federal employees). A federal so by first contacting an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, date of a the action." 29 C.F.R. meeting with a counselor, the complaint process, within 45 days of the effective § 1614.105(a)(1).8 the employee wishes he or she must which the agency must investigate. office concludes agency decision. § 1614.110. that decision to the EEOC, id. a civil action within 90 days, Id. Alternatively, to continue with § 1614.106. If the EEO it issues a final The employee may then appeal § 1614.401(a), id. after file a formal complaint, there was no discrimination, Id. If, § or may opt to file 1614.407(a). an employee who believes that he has been subjected to an adverse personnel decision that was based in part 8An agency or the EEOC must "extend the 45-day time limit . . . when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the [EEOC]." 29 C.F.R. § 1614.105(a)(2). -13- on the employee's race may include allegations of discrimination as part of a "mixed case appeal" 1614.302(a)(2). to the MSPB. Id. § A choice to pursue a mixed case appeal, than filing a separate claim with an EEO office, election of remedies. Id. 1614.302(b). rather is a binding A final decision by the MSPB in a mixed case appeal may be reviewed by the EEOC, or the employee may file a civil action in a federal district court. C.F.R. § 5 1201.157. Here, with regard to discrimination allegations relating to his suspension, Campbell timely filed a mixed case appeal to the MSPB. nowhere in his Complaint or in his opposition to However, the Motion to Dismiss does Campbell allege, nor can he, that he timely pursued any administrative remedies regarding the allegations in Counts 1, 2, and 8 of the Amended Complaint, of which relate to his suspension. Campbell none By his own admission, first raised the issue of past discriminatory conduct as part of the MSPB appeal of his suspension on October 5, This was well after any claims relevant to counts 1, 2, 2006. and 8, all of which concerned conduct that occurred between 2003 and 2005, were already time-barred. with the MSPB, After the settlement of his case he attempted to bring these claims before the EEO, which "informed" him that these claims were time-barred because the events underlying the claims occurred well before the 45 days preceding the date he approached the EEO. -14- Moreover, any claim Campbell would have filed concerning conduct between 2003 and 2005 would have been long-since time-barred by October 2006.9 For these reasons, Counts 1, 2, and 8 will be dismissed for failure to exhaust. B. Settlement Agreement. The remainder of Campbell's claims will be dismissed because he agreed in the settlement agreement not to pursue any claims related to his suspension. Campbell "agree[d] Specifically, under Paragraph 10, to waive all grievance and appeal rights, including appeals to the Merit Systems Protection Board . . [and] all Equal Employment Opportunity (EEO) to the relevant issues of MSPB Appeal Docket No. (MSPB) . rights related PH-0752-07-0011- 1-1." Campbell argues that the waiver does not bar his discrimination claims because "[t]he wording in paragraph 10 of the settlement agreement was specifically changed to ensure that plaintiff retained all rights to pursue his unlawful Title VII discrimination claims." Pl.'s Opp. f 3. pre-hearing conference in November 2006, Campbell relies on the when the AJ allegedly severed all discrimination claims from Campbell's MSPB appeal. 9At oral argument, Campbell suggested that he believed that the 45-day statute of limitations for his discrimination claims might have been tolled because he only became aware of the possible existence of past racial discriminatory after his suspension. However, even if the statute of limitations had been tolled, he has failed to exhaust administrative remedies because he never filed an EEO complaint. -15- Given that severance, Campbell claims related to the relevant issues of that the phrase "rights [his MSPB appeal]" specifically excluded any claims related to discrimination. Campbell also appears to the settlement to rely on the handwritten changes made agreement, twice. of which show that the waiver in Paragraph 10 was changed The original text would have waived "all EEO complaints the Agency's action up to and including the date of agreement." to It was then revised to waive "all EEO rights related the matters raised in the instant appeal." revised again to limit the waiver to the relevant issues of final [the appeal]." It was Campbell asserts 4 and 9 of that the of suspension. Even if Campbell's argument were accepted, Counts then "all EEO rights related to text preserved his ability to bring claims discrimination related to his this the Amended Complaint, it would not save which explicitly allege only Due Process violations and not discrimination claims. such, Counts As 4 and 9 are clearly covered by the broad waiver of "all grievance and appeal rights" in Paragraph 10, and are unaffected by the sentence on EEO rights. The remainder of the counts, which do allege claims of discrimination in connection with Campbell's suspension, will also be dismissed because they too are barred by the settlement agreement. clear on its When a contract face, contains an integration clause and is that contract should be construed without -16- resorting to parol evidence. Moreover, parol evidence cannot be used "to create ambiguity where none exists." Corp., No. 07-1820, also Cohan v. that 2009 WL 275105, Thurston, 292 In re BNX Systems at *2 (4th Cir. S.E.2d 45, 46 (Va. 2009); 1982) see (holding "[p]arol evidence cannot be used to first create an ambiguity and then remove it"). settlement agreement, Here, paragraph 12 of the which states that the agreement "contains the entire understanding between the Employee and the Agency with respect to this matter," such, is clearly an integration clause. if the contract is unambiguous, without the use of parol Despite Campbell's not ambiguous. As it must be interpreted evidence. argument to the contrary, Paragraph 10 is Paragraph 10 clearly waives any EEO claims concerning the issues raised in Campbell's appeal of his suspension. Even if, as Campbell alleges, the parties agreed that the MSPB would not adjudicate Campbell's discrimination claims,10 once the parties settled the dispute, the settlement 10r °The prehearing memorandum, which summarizes the conference held by the parties on November 27, 2006, states that the parties agreed that the five "issues to be discussed at the hearing" would be: 1) "whether the charges can be sustained," 2) "whether the action promotes the efficiency of the service," 3) "whether the penalty was reasonable," 4) "whether the Agency 15-6 investigation was improper and resulted in harmful procedural error," and 5) "whether the Agency took the . . . suspension in reprisal for [Campbell's] appealing a proposed 5-day . . suspension and for participating in [ADR] involving hiring practices." The Court does not find that this memorandum supports Campbell's allegation that addressed his discrimination claims. -17- the hearing would not have To the contrary, the third barred them from any further litigation concerning Campbell's suspension. As such, the remainder of Campbell's which concern the suspension, V. For the above reasons, claims, all of will be dismissed. Conclusion. defendant's Motion to Dismiss will be granted by an Order to be issued with this Memorandum Opinion. Entered this Alexandria, O. day of May, 2009. Virginia LeonieM.BrinkeW United States District Judge "issue[] to be discussed" indicates that the hearing would address whether the investigation of Campbell was "improper." the investigation was motivated by discrimination, have been proper. -18- it could not If
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