Opinion
No: 1:00 cv 436
March 25, 2002
MEMORANDUM OPINION
This is an action brought by a pro se plaintiff Plaintiff filed her complaint on June 16, 2000. Plaintiff is a former nurse at the Veterans Affairs Medical Center in Battle Creek, Michigan. Plaintiff was convicted in this court of social security fraud following her August 29, 1996 guilty plea, see United States v. Conner 1:96 cr 31 (W.D. Mich.), and the Department of Veterans Affairs terminated her employment on March 28, 1997. Plaintiffs complaint, as amended, asserts breach of a July 28, 1994 settlement agreement between plaintiff and the Department of Veterans Affairs. The agreement settled a May 13, 1994 formal complaint of employment discrimination by plaintiff. The only named defendant is the Secretary of Department of Veterans Affairs. Plaintiff seeks monetary damages. Plaintiff waited until June 16, 2000, to file her complaint. The matter is before the court on defendant's motion for summary judgment. For the reasons set forth herein, defendant's motion for summary judgment will be granted.
Plaintiff has not alleged or administratively exhausted any claim of discrimination in connection with the termination of her employment by the Veterans Administration. Plaintiffs complaint does not seek reinstatement. (First Amended Complaint, ¶ 15(C), docket # 35).
Whether any claims plaintiff asserted in her May 13, 1994 EEO complaint (Complaint No. 94-R2-S515-C51, docket # 6, Ex A) had merit is not an issue properly before the court for review. Plaintiff settled those claims. See Wilmes v. United States Postal Serv., 810 F.2d 130, 132 (7th Cir. 1987); Kirby v. Dole, 736 F.2d 661 (11th Cir. 1984).
Summary Judgment Standard
As the Sixth Circuit has noted, the federal courts have entered a "new era" in summary judgment practice. Cox v. Kentucky Dept of Transp., 53 F.3d 146, 150 (6th Cir. 1995); Street v. J. C. Bradford Co., 886 F.2d 1472, 1478-81 (6th Cir. 1989). While preserving the constitutional right of civil litigants to a trial on meritorious claims, the courts are now vigilant to weed out fanciful, malicious, and unsupported claims before trial. Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Groner v. Golden Gate Garden Apartments, Inc., 250 F.3d 1039, 1043 (6th Cir. 2001); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) (en banc), cert. denied, 522 U.S. 1084 (1998). The standard for determining whether summary judgment is appropriate is whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Watkins v. City of Battle Creek 273 F.3d 682, 685 (6th Cir. 2001).
This case is set for a bench trial rather than a jury trial. (Case Management Order, ¶ 1, docket # 30).
The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pride v. Bic Corp., 218 F.3d 566, 575 (6th Cir. 2000). The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once defendants show that "there is an absence of evidence to support the nonmoving party's case," plaintiff has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, plaintiff may not rest on the mere allegations of his pleadings. FED. R. CIV. P. 56 (e); Dudley v. Eden, 260 F.3d 722, 724 (6th Cir. 2001); Braithwaite v. Timken Co., 258 F.3d 488 (6th Cir. 2001). "A mere scintilla of evidence is insufficient." March v. Levine, 249 F.3d 462, 471 (6th Cir. 2001) (citation omitted), cert. denied, 122 S.Ct. 810 (2002). A party opposing a motion for summary judgment has the burden to come forth with requisite proof to support his legal claim, particularly where he has had an opportunity to conduct discovery. See Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir. 2001); Noble v. Chrysler Motors Corp., 32 F.3d 997, 999 (6th Cir. 1994); Street v. J. C. Bradford Co., 886 F.2d at 1478-81. In so doing, plaintiff must set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); see Mt. Lebanon Personal Home Care, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002); Mounts v. Grand Trunk Western R.R., 198 F.3d 578, 580 (6th Cir. 2000); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996). Conclusory statemsents unsupported by specific evidence to support a claim do not meet this standard. See Wade v. Knoxville Utilities Bd., 259 F.3d 452, 463 (6th Cir. 2001). Applying these standards, defendant's motion for summary judgment will be granted.
Facts
Because the court is required to resolve all genuine factual disputes in favor of the non-moving party, the court has gleaned the facts from plaintiffs own submissions, and has principally relied on her exhibits, attached to docket # 54. Plaintiffs own submissions show that the following facts are beyond genuine issue. In 1994, plaintiff was an employee of the Department of Veterans Affairs at the Medical Center in Battle Creek, Michigan (VAMC). On May 13, 1994, plaintiff filed a formal complaint of employment discrimination with the Department. (Complaint No. 94-R2-S515-C51, docket # 54, Ex. 2). Plaintiff claimed discrimination on the basis of race, color, sex and handicap. She claimed the following discriminatory acts had occurred: (1) failure to receive within grade pay increases on the same basis as Caucasian nurses; (2) failure to promote her after nine years of employment and promoting Caucasians more rapidly; (3) failure to receive yearly assessments by the Nurse Proficiency Board for promotion; and (4) failure of the "supervisor or personnel to act on [her] many complaints" and for "correction of the OPF which was inaccurate and could not be substantiated or verified by usual record keeping." (docket # 54, Ex. 2). Plaintiffs description of the factual basis for these issues is set forth below verbatim:
CAUCASIAN RNS HAVE RECEIVED YEARLY WITHIN GRADE INCREASES AND I HAVE RECEIVED ONLY 2 WITHIN GRADE INCREASES IN 9 YEARS OF SERVICE. CAUCASIAN RNS ARE PROMOTED RAPIDLY AND ARE NOT DENIED STEP INCREASES BECAUSE OF LOCALITY PAY INCREASES. GRADUATE NURSE TECHNICIANS (GNTS) WHO HAVE BEEN HIRED SEVERAL YEARS AFTER ME HAVE ADVANCED MORE RAPIDLY, AND NOW HAVE SURPASSED ME ON THE PAY SCALE. ALL ATTEMPTS TO REMEDY THIS THROUGH PROPER CHANNELS HAVE FAILED. NO ONE HAS DONE ANYTHING.
(Id.). Plaintiffs formal complaint requested a pay adjustment for back pay, all within-grade increases not received to align her salary with Caucasian RNs hired after her and placement at the appropriate grade and step for nine years of employment. Plaintiff sought a "corrected salary and +2 within grade increases and promotion." Finally, plaintiff sought to have her "OPF" corrected and updated appropriately for 9 years of employment.
On July 28, 1994, plaintiff signed an agreement settling all her claims asserted in Complaint No. 94-R2-S515-CS1. (docket # 37, Ex. B). In pertinent part, the Settlement Agreement states as follows:
1. The Complainant agrees to withdraw the above identified complaint [Complaint No. 94-R2-S515-C51] in its entirety, in exchange for the promises set forth in paragraph 2 below. By doing so, the Complainant waives all right to file a civil action in connection with the above identified complaint.
2. The Department of Veterans Affairs agrees:
a. To provide an audit of the personnel records to show that Ms. Conner has in fact received all within grade pay increases.
b. To not harass intimidate or in any other way take reprisal action against Ms. Conner for her filing a complaint of discrimination based on her legitimate concern and belief that she had been treated unfairly.
c. To ensure that Ms. Conner is provided with appropriate counseling throughout the year to ensure that she is making adequate progress in her performance.
d. To counsel with, advise, and assist Ms. Conner with career counseling on ways in which she can become more promotable or better qualified for advancement.
e. To reasonably ensure that Ms. Conner and other employees are provided adequate notice in advance of any major changes to shift or duty assignment.
3. Both parties also stipulate and agree that:
e. This agreement constitutes the entire agreement and there are no other terms to this agreement except those specified herein.
Additionally, the Department of Veterans Affairs agrees that should it fail to comply with any of the terms set forth herein for any reason not attributable to acts or conduct of the complainant, it will reopen the complaint for further processing at that point in the process where processing ceased as a result of this agreement.
(docket # 37, Ex. B; docket # 54, Ex 1).
On May 4, 1995, plaintiff wrote a letter asserting that the agency had breached the settlement agreement. In her letter plaintiff stated that she did not agree with the explanation she had been provided with regarding her within-grade pay increases, she felt that she had been harassed, and that her supervisor failed to provide her with adequate guidance concerning ways to be more promotable; and that plaintiff failed to receive adequate advance notice in major changes in shift or duty assignments. (docket # 54, Ex. 7). The Veterans Administration assigned case no. 95-1505 to this complaint.
From 1990 through 2000, Sandra K. Place was a full-time R.N. Nurse Supervisor at the Battle Creek VAMC. Ms. Place was plaintiffs immediate supervisor from May 1990 through June 1995. On May 10, 1996, Nurse Manager Sandra Place drafted a six-page memorandum concerning compliance with the terms of the settlement agreement. (docket # 54, Ex. 14) Among other things, Ms. Place documented her meetings and unsuccessful efforts to meet with plaintiff to assist plaintiff in work performance and promotability. In her sworn declaration, Ms. Place has sworn to the truth of the statements made within the memorandum. (docket # 58). Ms. Place attempted to work with plaintiff towards her goal of promotion. Ms. Place arranged meetings with plaintiff from the fall of 1994 until plaintiff advised Place on June 12, 1995, that she no longer wished to meet with Nurse Supervisor Place. (Place Declaration, ¶¶ 4, 5, docket # 58; docket # 54, Ex. 16).
Ms. Place is currently a consultant for the VAMC. (Place Declaration, ¶ 1, docket # 58).
Plaintiffs brief states that "she is unable to defend because she has no recollection of events as stated." (Plf. Brief at 13, docket # 54). Plaintiffs declaration admits that she had at least three meetings with Nurse Manager Place, but plaintiff states that the earliest counseling meeting occurred sometime in 1995. (Plf Declaration, ¶ 11, docket # 54). Plaintiff identified one occasion Nurse Manager Place changed plaintiffs work time. Paragraph 13 of plaintiffs declaration references Exhibit 13, which appears to be a printout of an e-mail message from Ms. Place dated April 4, l995. In this document, Ms. Place apologizes to five members of her nursing staff for an administrative error, which had resulted in the need to change the nurses' days off and work shifts during the period from April 10, 1995, through April 13, 1995. (docket # 54, Ex. 13). The net result for plaintiff was a week's advance notice that her day off had been changed from Thursday, April 13, 1995, to Tuesday, April 11, 1995. Finally, in paragraph 11 of her declaration, plaintiff states that Ms. Place did not arrange for a meeting with the Nurse Professional Standards Board. Plaintiff references Exhibit 18, which again appears to be a printout of electronic mail. The document reflects that on or about February 16, 1996, plaintiffs Nurse Manager referred plaintiff to Patricia Anderson, R.N., who in turn scheduled plaintiffs meeting with the Nurse Professional Standards Board.
The second and third pages of Exhibit 13 are e-mail messages concerning scheduling disputes on July 13, 1994, and July 9, 1994. These fall within the scope of the July 28, 1994 settlement agreement and do not serve as evidence of any breach of the settlement agreement.
On February 14, 1996, a federal grand jury indicted plaintiff on four counts of social security fraud. Plaintiff was arraigned in this court on February 26; 1996, and entered a plea of not guilty. Plaintiffs trial was scheduled for May 6, 1996, at 8:30 a.m. On April 29, 1996, plaintiff pleaded guilty to count I of the indictment. Plaintiff had utilized a fake social security number while working at the Veterans Administration. This had allowed her to work and collect a paycheck from the Veterans Administration while simultaneously collecting social security disability benefits under her real social security number over an eight-year period. Following her guilty plea, pursuant to the plea agreement, the three remaining counts of the indictment were dismissed. On August 15, 1996, Chief Judge Richard Enslen of this court conducted a sentencing hearing. Thereafter, petitioner was sentenced to five years of probation and ordered to pay a $50 special assessment and $74,789.00 in restitution. United States v. Conner, 1:96:CR:31 (W.D. Mich.).
On September 5, 1996, Gerald K. Hinch, Deputy Assistant Secretary for Equal Opportunity, Department of Veterans Affairs, issued a final agency decision (FAD) on plaintiffs complaint that the department had breached the settlement agreement (case no. 95-1505). (docket # 54, Ex. 6). The pertinent excerpt from the FAD is set forth verbatim below.
In the past, the EEOC has found that "Settlement agreements are contracts between the appellant and the agency and that it is the intent of the parties as expressed in the contract, and not some unexpressed intention that controls the contract's construction. Eggleston v. Department of Veterans Affairs, EEOC Request No. 0590095 (Aug. 23, 1990); In re Chicago E.L. Ry. Co., 94 F.2d 296 (7th Cir. 1938). In addition, the EEOC generally follows the rule that if a writing appears to be plain and unambiguous on its face, its meaning must be derived from the four corners of the instrument without resort to extrinsic evidence of any nature, (See Montgomery Elevator v. Building Engineering Services, 730 F.3d 377 (5th Cir. 1984). "EEOC also decided that "A settlement agreement between an EEOC complainant and a federal agency is a contract subject to ordinary rules of contract construction. Shuman v. Department of Navy, EEOC Request No. 05900744 (July 20, 1990); and Roberts v. United States Postal Service, EEOC Appeal No. 01842193 (May 9, 1995)." In addition, the EEOC has held that a written contract is deemed to embody the entire agreement between the parties.
In response to your allegations that the Agreement had been violated Medical Center officials affirmed that the concerns you raised regarding the audit of your personnel records and "within grade increases" were resolved during a meeting which was held subsequent to the filing of these allegations. Medical Center officials also submitted a copy of the documentation you received during the above mentioned meeting to establish they complied with Paragraph 2(a) of the Agreement.
Based on a review of the record, the audit was conducted and certified by Medical Center officials. Although the audit was submitted in hand-written form, you have provided no evidence which would lead a trier of facts to conclude that the Medical Center officials did not conduct an audit. Paragraph 2(a) of the Agreement only requires that the Medical Center "provide an audit of personnel records to show that Ms. Conner has in fact received all within grade pay increases." Since an audit was conducted, and you received a copy of the results, the Medical Center has complied with that term of the Agreement.
Equal Employment Opportunity Commission Regulation 29 C.F.R. § 1614.504 (c) states that "Allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints...." In response to paragraph 2(b) of your allegation (that you were "harassed because of my prior EEO activity") you properly filed an EEO complaint on April 18, 1995, identified as VA Case No. 95-1505. Since you filed a formal complaint concerning the allegation you raised in Paragraph 2(b), that allegation is moot. In addition, based on your supervisors s reassignment, on September 6, 1995, you withdrew the above mentioned complaint. Therefore, since the allegation is moot, and you withdrew the above mentioned complaint, the Department finds that paragraph 2(b) of the Agreement has not been violated.
In Bibawi v. Brown, EEOC Appeal No. 01943219 (December 20, 1994), the Commission also held to the following: "that if the complainant wanted the Agreement to read a certain way, he should have included such a requirement in the settlement Agreement." The Commission therefore, ruled that the complainant's allegation that the agency did not comply with the terms of the agreement did not "constitute a breach of the agreement."
Paragraph 2(c) and (d) of the agreement allows for a broad range of counseling, advice, and assistance to assure adequate progress in your performance and qualifications for advancement. Since you did not include a term in the Agreement specifying in detail the number of counseling sessions Medical Center officials were to provide, or a description of the type or content of counseling or assistance you were to receive, the Medical center could provide counseling, advice and assistance only when you request it without violating the terms of the Agreement.
The Agreement also states in paragraph 2(e) that the Department of VA agrees: "To reasonably ensure that Ms. Conner . . . (is) provided adequate notice in advance of any major changes in shift or duty assignment." You state in paragraph 2(e) of your allegation that "Adequate advance notice is still lacking." However, the documentation you provided does not support your allegation. Rather, your interpretation of advance notice is subjective and not supported by the record.
(docket # 54, Ex 6).
On March 28, 1997, the Department of Veterans Affairs terminated plaintiffs employment.
Plaintiff appealed the final agency decision in case no. 95-1505 to the EEOC. The EEOC assigned case no. 01970113 to this appeal. On March 20, 1998, the EEOC issued its decision finding that there had been no breach of the settlement agreement. The EEOC's decision stated as follows:
EEOC Regulation 29 C.F.R. § 1614.504 (a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties shall be binding on both parties. That section further provides that if the complainant believes that the agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the Director of Equal Employment Opportunity of the alleged noncompliance with the settlement agreement within 30 days of when the complainant knew or should have known of the alleged noncompliance. 29 C.F.R. § 1614.504 (a). The complainant may request that the terms of the settlement agreement be specifically implemented or request that the complaint be reinstated for further processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant and the agency and it is the intent of the parties as expressed in the contract, and not some unexpressed intention, that controls the contract's construction. Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795 (Aug. 23, 1990). In reviewing settlement agreements to determine if there is a breach, the Commission is often required to ascertain the intent of the parties and will generally rely on the plain meaning rule. Wong v. U.S. Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing Hyon 0 v. U.S. Postal Service, EEOC Request No. 05910787 (Dec. 2, 1991)). This rule states that if the writing appears to be plain and unambiguous on its face, then its meaning must be determined from the four corners of the instrument without any resort to extrinsic evidence of any nature. Id. (citing Montgomery Elevator v. Building Engineering Service, 730 F.2d 377 (5th Cir. 1984)).
We find appellant has adduced insufficient evidence to establish that the agency breached the SA. In this regard, the record contains evidence which reveals that the agency has complied with the SA. In connection with Provision (a), it is apparent that the agency performed an audit of appellant's personnel records which revealed that there was a period of time between 1987 and 1988 when appellant was at the wrong step. As a result, appellant received back pay for that period. With regard to Provisions (c) and (d), the record contains statements from agency officials revealing that appellant has received counseling on several occasions regarding both her performance and her promotability. Regarding Provision (c), we note that appellant has not an instance when she was not given adequate notice requiring a major change in her shift or duty assignment.
Finally, regarding appellant's allegation that the agency has violated Provision (b) by harassing her, the Commission has held that an allegation that an agency has violated a settlement agreement's "no reprisal" clause is to be processed as a separate complaint rather than as a breach of the settlement agreement. Bindal v. Department of the Air Force, EEOC Request No. 05900225 (August 9, 1990). For this reason we advise appellant that, in the event she believes she has been harassed in violation of the SA, she should bring her allegations to the attention of an EEO Counselor. Accordingly, we find insufficient evidence to conclude that the agency has violated the SA.
(docket # 54, Ex. 10).
On April 24, 1998, plaintiff, through counsel, filed a motion for reconsideration of the EEOC's decision no breach of the settlement agreement. The motion for reconsideration stated as follows:
Now comes the Complainant, Margaret Conner, by counsel, Robert P. Walsh, and requests reconsideration of the decision in this matter dated March 20, 1998, for the following reasons:
1. A proper audit of the Complainant's personnel and finance records was never conducted. A copy of the hand written report that was done is attached as exhibit A.
2. A payment of 342.00 was made in 1994. This does not accurately reflect or correct the discrepancies in the record.
3. The rationale used in the audit was flawed. The complainant has stated that here was administrative error when she was initially hired. She indicated this at the time and has continued to object. Once the initial error is corrected the changes must be rolled forward, thus requiring amended SF-SO's to be generated. This domino effect is not seen in the audit because it was not conducted rigorously or in compliance with MPS, part II, Chapter 3 of the Agency manual.
4. During all times covered in this dispute the Complainant was a fully satisfactory Title 38 Registered Nurse. The complaint is not about professional competency but fair, equitable and unbiased application of agency regulations to her pay status.
Please review this matter from the perspective provided above. The Complainant simply wants a full and fair audit and recalculation of her compensation from the original date of hire when the first administrative errors were made.
(docket # 54, Ex. 20). The motion for reconsideration identified the exhibits submitted in support of the motion as follows: (1) "Audit report w/ attachments"; (B) "E-mail, April 2, 1996"; and (C) "Earnings and leave statement." (Id.).
On May 29, 1998, the Chief of Finance Section (04) of the Department of Veterans Affairs issued the following memorandum concerning the history of plaintiffs pay adjustments:
1. The Payroll Section received pay adjustments for Margaret Connor on 8/5/94. The first adjustment increased Ms. Connor's wages from 7/05/87 through 11/2/88. This adjustment was processed on 09/02/94. A second adjustment was also received on 08/05/94, increasing Ms. Connor's wages from 0 1/03/88 through 11/19/88. Unfortunately, this adjustment was inadvertently not processed by the Payroll Technician. This was an oversight on our part and was not discovered until we were asked to review Ms. Connor's pay adjustment. The adjustment was calculated and processed on May 29, 1998. The gross amount of the 01/03/88 through 11/19/88 adjustment is $515.22.
2. We apologize for the inconvenience this error has caused. If you require additional information, please contact me . . . .
(docket # 54, Ex. 15). On June 11, 1998, Les Nicholson, Chief, Human Resources Management Service, wrote a letter to plaintiff, which included a check. (docket # 54, Ex. 15). Plaintiff states in her brief that she received the check "on approximately June 12, 1998." (Plf Brief at 2, 12, docket # 54). The net payment to plaintiff was $444.95 (docket # 54, Ex. 15).
On March 24, 2000, the EEOC issued its decision denying plaintiffs request for reconsideration. (docket # 54, Ex. 3). The EEOC's decision included a right-to-sue letter regarding Appeal No. 01970113, Agency No. 95-1505. Plaintiff filed her complaint on June 16, 2000 and attached a copy of the right-to-sue letter. On or about June 27, 2001, plaintiff made a settlement demand of $450,000.00, which the government rejected. (docket # 54, Ex. 28).
Discussion
1. Claim for Monetary Damages
Plaintiffs initial complaint sought monetary damages. (Complaint, ¶ 15B, docket # 1). Plaintiffs first amended complaint repeated her request for monetary damages. (First Amended Complaint, ¶ 15B, docket # 35). "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Even where the parties fail to raise the issue, the court has its own independent obligation to determine the question of subject matter jurisdiction. See SEC v. Basic Energy Affiliated Resources, 273 F.3d 657, 665 (6th Cir. 2001). It is the burden of the party invoking the court's jurisdiction to prove it exists. Kokkonen, 511 U.S. at 377. The United States is immune from suit except where such immunity has been waived by statute. See United States v. Shaw, 309 U.S. 495, 500-01 (1940). Plaintiff simply assumes the existence of federal subject matter jurisdiction in this court over her claim for monetary damages founded upon the alleged breach of contract by the Department of Veterans Affairs. Upon review, the court finds that it lacks subject matter jurisdiction. Plaintiff has sued the wrong defendant in the wrong court on this claim.
The court's decision in this regard is informed by the Supreme Court's opinion in Kokkonen v. Guardian Life Insurance Company, 511 U.S. 375 (1994). Kokkonen dealt with the district court's jurisdiction to enforce a settlement agreement resolving a lawsuit previously pending in the district court. Until the time of Kokkonen, it was generally held that the federal courts had ancillary or inherent authority to entertain disputes arising from settlement of a federal claim. See, e.g., Gavette v. Brady, No. 92-2134, 1993 WL 384902, at * 1 (6th Cir. Sept. 28, 1993) (citation omitted) ("This court has acknowledged that courts have "inherent power' to enforce settlement agreements entered into in settlement of litigation pending before them."). The Kokkonen Court expressly rejected the existence of both "inherent authority" and ancillary jurisdiction over suits to enforce settlement agreements. 511 U.S. at 379-81. The Court made it clear that a suit to enforce a settlement agreement is precisely that — "a claim for breach of contract" — and that it does not retain the federal character of the underlying claim. Id. at 381. Consequently, a suit to enforce the settlement agreement requires an independent basis for federal jurisdiction. Id. at 382.
Applied to the present case, Kokkonen teaches that Ms. Conner's claims for breach of the administrative settlement agreement is precisely that — a claim for breach of a contract between her and the Department of Veterans Affairs. It is not a Title VII action, nor does it retain the character of a Title VII action merely because it arose out of a discrimination claim. Claims against the United States and its agencies for monetary damages arising from breach of contract fall within the exclusive jurisdiction of the Court of Claims, unless the ad damnum is less than $10,000. 28 U.S.C. § 1346 (a)(2), 1491(a)(l).
This case is very similar to Narsete v. West, No. 99-cv-4046, 2000 WL 1056348 (ND. Ill. July 31, 2000). In Narsete, an employee of the Department of Veterans Affairs sued Togo West, Jr., Secretary of the Department of Veterans Affairs, on a claim that the Department had breached a settlement agreement of a federal personnel action that the plaintiff had entered into with the Department of Veterans Affairs. The plaintiffs complaint made a demand for monetary damages, but did not specify the amount. The court observed that, "The United States has waived its sovereign immunity in contract disputes, but the only court with jurisdiction to hear such contract claims over $10,000 is the United States Court of Federal Claims." Id., at * 9 (citing 28 U.S.C. § 1346 (a)(2) and 1491(a)(1) ("Tucker Act") and Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1301 (7th Cir. 1991)). Assuming that the plaintiffs monetary demand was over $10,000, the district court found that it lacked jurisdiction. The court flatly stated that the plaintiff "should have filed this action in the United States Court of Federal Claims." 2000 WL 1056348, at * 9. The Narsete court observed a second fatal defect. The Secretary of the Department of Veterans Affairs and the Veterans Administration were not "suable entities under the Tucker Act or even the Little Tucker Act, which permits suits only against the United States, not its agencies." Id. (citing 28 U.S.C. § 1346 (a)(2), 1491 (a)(l); Finley v. United States, 490 U.S. 545, 552-53 (1989) and Hughes v. United States, 701 F.2d 56, 57 (7th CIT. 1982)). "The failure to name the United States as a defendant [was] not a mere harmless error." 2000 WL 1056348, at * 9 (citing Hughes, 701 F.2d at 58). The court dismissed the plaintiffs contract claim for lack of jurisdiction. See also Housing Products Co. v. Flint Housing Comm'n, No. 99-1551, 2000 WL 1720612, at * 2 (6th Cir. Nov. 7, 2000) (affirming district court's dismissal for lack of subject matter jurisdiction, observing that "the Tucker Act vested exclusive jurisdiction over contract disputes with the United States involving more than $10,000 in the Court of Claims" and holding that the lawsuit against the United States Department of Housing and Urban Development or its Secretary fell outside the jurisdiction of the United States District Court for the Eastern District of Michigan); cf. Veda, Inc. v. United States Dep't of Air Force, 111 F.3d 37, 39 (6th Cir. 1997) (contract complaint which did not contain a prayer for monetary relief and which was expressly limited to declaratory and injunctive relief fell within the district court's jurisdiction).
This court is aware of the pre-Kokkonen decision of the Court of Claims in Fausto v. United States, 16 Cl. Ct. 750 (1989), in which the Court of Claims held that it was without jurisdiction to hear claims "arising from" a settlement agreement under Title VII. Contrary to the assertion of the Court of Claims, the United States district courts do not enjoy any particular authority to enforce agreements settling Title VII claims. The Kokkonen decision is directly on point.
The short of the matter is this: The suit involves a claim for breach of contract, part of the consideration for which was dismissal of an earlier federal suit. No federal statute makes that (if it constitutionally could) the basis for federal-court jurisdiction over the contract dispute. The facts to be determined with regard to such alleged breaches of contract are quite separate from the facts to be determined in the principal suit, and automatic jurisdiction over such contracts is in no way essential to the conduct of federal-court business.511 U.S. at 381. Fausto cannot be deemed persuasive after Kokkonen, as it presumes the existence of a federal question arising from breach of an agreement to settle a federal claim — the very concept rejected by Kokkonen. The Federal Circuit Court of Appeals, the appellate court enjoying exclusive jurisdiction over appeals from the Federal Court of Claims, has never cited the Fausto decision, much less endorsed its conclusions. Two subsequent decisions by the Federal Court of Claims, Mitchell v. United States, 44 Fed. Cl. 437, 439 (1999), and Lee v. United States, 33 Fed. Cl. 374, 380 (1995), follow Fausto, but fail to even mention Kokkonen. As was the case with Fausto, the Lee and Mitchell decisions were never subjected to appellate review. In the absence of binding appellate authority to the contrary, this court must follow the logic of Kokkonen and hold that plaintiffs claim for monetary damages in excess of $10,000 against the United States falls outside this court's subject matter jurisdiction.
See 28 U.S.C. § 1295(a)(3); see also Ricks v. United States, 278 F.3d 1360, 1363 (Fed. Cir. 2002).
The record shows that plaintiff seeks far in excess of $10,000. Plaintiffs exhibits show that her most recent settlement demand was in the neighborhood of $450,000.00. (docket # 54, Ex. 28). This court lacks subject matter jurisdiction over plaintiffs complaint for monetary damages. Plaintiffs claim will be dismissed.
2. Claims for Non-monetary Relief
Plaintiffs complaint (docket # 1, ¶ 15B) and first amended complaint (docket # 35, ¶ 15B) ask the court to "grant such relief as may be appropriate." Liberally construed this can be considered as a request by plaintiff for reinstatement of her May 13, 1994 EEO complaint as a remedy for the alleged breach of the settlement agreement. A significant and as yet unresolved issue is whether federal courts have jurisdiction under Title VII over a claim by a private party seeking non-monetary relief for an alleged violation of a settlement agreement. Notably, this case does not involve an effort by the EEOC to enforce the terms of a conciliation agreement. See EEOC v. Safeway Stores, Inc. 714 F.2d 567 (5th Cir. 1983) (finding federal court jurisdiction under 42 U.S.C. § 2000e-5 (f)(3) over an EEOC lawsuit seeking specific performance of a conciliation agreement signed by the EEOC and both parties to the underlying dispute), cert. denied, 467 U.S. 1204 (1984); see also Morris v. City of Hobart, 39 F.3d 1105, 1111 n. 4 (10th Cir. 1994) (expressing doubt whether settlement agreements between private parties, where the EEOC was not a party to the agreement, fell within the scope of an action "brought under" Title VII), cert. denied, 514 U.S. 1109 (1995).
Assuming without deciding whether plaintiff could overcome this substantial jurisdictional hurdle, plaintiff nonetheless fails to create any genuine issue of fact for trial. The settlement agreement promised plaintiff an audit of her personnel records as they related to within-grade pay increases, performance evaluations, counseling on ways to become more promotable and "adequate notice in advance of any major changes in shift or duty assignment." Plaintiff was never promised any particular result from audits of her records. Paragraph 3(e) of the settlement agreement is an integration clause, stating that the written agreement constitutes the entire agreement of the parties. Plaintiff was not promised counseling and performance evaluations on any particular schedule. Notice of a single change of a day off, approximately one week in advance of that day off, is certainly "adequate" and does not approach the level of a "major" change in shift or duty assignment. Defendant is entitled to judgment in his favor on plaintiffs Title VII claim as a matter of law.
The court is well aware that under paragraph 2(b) of the settlement agreement, plaintiff was promised that there would not be any reprisal for her complaint. Plaintiff was repeatedly advised throughout the administrative process that if she believed that she had been the subject of retaliation, she should file a complaint on that basis. Plaintiff has not presented the court with a copy of a right-to-sue letter issued on such a claim.
3. Equal Pay Act
The Equal Pay Act "provides that no covered employer shall discriminate "between employees on the basis of sex . . . for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions."' Kovacevich v. Kent State Univ., 224 F.3d 806, 826 (6th Cir. 2000) (quoting 29 U.S.C. § 206 (d)(1)). To establish a prima facie case for an Equal Pay Act violation, a plaintiff must show that an employer paid different wages to employees of the opposite sex for substantially equal work. 224 F.3d at 826.
Defendant seeks summary judgment on the basis that plaintiffs claim is barred by the statute of limitations. Generally, the statute of limitations under the Equal Pay Act is two years. 29 U.S.C. § 255 (a). Damages for non-willful violations are limited to the two-year period prior to the date of filing the Equal Pay Act lawsuit. See Korte v. Diemer, No. 91-3658, 1992 WL 393159, at * 2 (6th Cir. Dec. 28, 1992) (collecting cases). If the plaintiff can demonstrate a willful violation of the Equal Pay Act, a three-year statute of limitations applies. See Gandy v. Sullivan County, Tenn., 24 F.3d 861, 863 (6th Cir. 1994); see 29 U.S.C. § 255 (a).
Plaintiff last worked for the Department of Veterans Affairs on March 28, 1997. She received her last regular paycheck for work performed on or about that date. Plaintiff did not file her complaint until June 16, 2000, more than three years after receiving her last regular paycheck from defendant. The last time plaintiff could possibly have performed "equal work" was more than three years prior to filing her lawsuit. The Equal Pay Act is violated each time an employer presents an unequal paycheck for equal work. Gandy v. Sullivan County, 24 F.3d at 864. Plaintiffs cause of action, if any, under the Equal Pay Act accrued in March of 1997, with her last paycheck by defendant for work she actually performed. An Equal Pay Act claim based on a willful violation must be filed within three years of the accrual of the cause of action. Id. at 863. Plaintiff was required to file her Equal Pay Act claim on or before March 28, 2000, to avoid being entirely barred by the statute of limitations.
Plaintiffs attempted reliance on the May 29, 1998 "pay adjustment" made by the Chief of Finance Section of the Department of Veterans Affairs is misplaced. The adjustment of $515.22 was for work plaintiff performed during the period from 01/03/88 through 11/19/88. Plaintiff has not shown that unequal pay was paid by defendant on the basis of sex for equal work performed during that time frame. The only evidence before the court is that a payroll technician failed to make this adjustment on 08/05/94. (docket # 54, Ex. 15). On June 11, 1998, Les Nicholson, Chief, Human Resources, mailed the check to plaintiff. Plaintiff admits in her brief that she received the check "on approximately June 12, 1998." (Plf. Brief at 2, 12, docket # 54). Nonetheless, plaintiff waited until June 16, 2000, to file her complaint. Even under an indulgent reading, using the date plaintiff received this check as the date of accrual of her Equal Pay Act claim, she waited more than two years to file her lawsuit. There is no evidence before the court upon which a reasonable trier of fact could find a willful violation of the Equal Pay Act by defendant. Plaintiffs claim is barred by the statute of limitations.
Furthermore, the Equal Pay Act prohibits only discrimination on the basis of sex in the payment of wages. 29 U.S.C. § 206 (d)(1). The statute does not purport to address other types of discrimination. Defendant is entitled to judgment as a matter or law on plaintiffs non-sex-based Equal Pay Act claims. See Holiday v. City of Dallas, No. 3:98cv-2622d 1999 WL 58220, at * 1 (N.D. Tex. Feb. 2, 1999). Defendant is entitled to judgment in its favor as a matter of law on plaintiffs Equal Pay Act claims.
Conclusion
For the reasons set forth herein, plaintiffs contract claim for monetary damages will be dismissed for lack of jurisdiction. Defendant's motion for summary judgment (docket # 37) will be granted on plaintiffs remaining claims.
JUDGMENT
In accordance with the memorandum opinion issued herewith,
IT IS ORDERED that plaintiffs claim for monetary damages on a breach of contract claim is dismissed because the court lacks subject matter jurisdiction over the claim.
IT IS FURTHER ORDERED that defendant's motion for summary judgment on plaintiffs remaining claims (docket #37) is GRANTED and judgment is hereby entered in defendant's favor.