Opinion
Civil Action No. 00-2286-KHV.
March 13, 2001.
MEMORANDUM AND ORDER
The matter is before the Court on Defendants' Motion For Summary Judgment (Doc. #8) filed July 25, 2000 and Defendants' Motion For Partial Summary Judgment Regarding Defendants' Counterclaim (Doc. #13) filed August 17, 2000. For reasons set forth below, the Court sustains defendants' motion on plaintiff's complaint and overrules defendants' motion on their counterclaim.
Summary Judgment Standards
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 a judgment as a matter of law. Fed.R.Civ.P. 56(c); 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. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 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 Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co., Ltd. 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. Applied Genetics, 912 F.2d at 1241.
"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." 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. 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.
Factual Background
For purposes of both motions for summary judgment, the following facts are uncontroverted, deemed admitted, or, where disputed, viewed in the light most favorable to plaintiff.
From 1982 through December 31, 1999, plaintiff was employed at Johnson County Developmental Supports ("JCDS"), an agency of the Board of County Commissioners of Johnson County, Kansas ("BOCC"). On October 15, 1996, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") against JCDS and the BOCC. In that charge, plaintiff alleged age and gender discrimination. On April 2, 1998, plaintiff filed suit against defendants under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Kansas Age Discrimination in Employment Act ("KADEA"), K.S.A. § 44-1111 et seq., the Kansas Acts Against Discrimination, K.S.A. § 44-1001 et seq., and state common law, alleging employment discrimination, harassment, retaliation, breach of contract and intentional infliction of emotional distress. Plaintiff specifically alleged that defendants retaliated against her in violation of the ADEA.
On September 30, 1998, plaintiff and her attorney produced documents to defendants pursuant to Rule 26 of the Federal Rules of Civil Procedure. Frank Reeb, an attorney for defendants, testified that plaintiff produced a number of documents which he believed were confidential records of JCDS. Shortly after reviewing the documents, Reeb told Mark Elmore, Executive Director of JCDS, that plaintiff had a lot of documents including medical records, psychiatric records and other original JCDS client files. Reeb met several times with Elmore to discuss the issue. On October 30, 1998, Elmore informed plaintiff that she would be on administrative leave pending an investigation into her possession of confidential documents.
Two weeks later, on November 12, 1998, plaintiff requested leave under the Family Medical Leave Act ("FMLA") because of anxiety and depression. Defendants granted plaintiff's request for nearly five months, from November 12, 1998 through March 30, 1999. On March 30, 1999, Dennis Tucker, plaintiff's immediate supervisor, told her that she would be placed back on administrative leave until Elmore returned from vacation and could meet with her. Three weeks later, on April 20, 1999, plaintiff met with Elmore as part of his investigation into her possible violation of confidentiality policies. Elmore told plaintiff that he suspected that she had violated the policies and that she would likely be disciplined. Elmore told her that the disciplinary action could include termination from employment. From the time plaintiff returned from FMLA leave on March 30, 1999 through June 8, 1999, plaintiff remained on administrative leave.
Before she returned from FMLA leave, on March 11, 1999, plaintiff filed a second charge of discrimination with the EEOC. In that charge, she alleged that defendants had retaliated against her by placing her on administrative leave on October 30, 1998 and denying her access to the county grievance procedures.
From the time she filed her 1998 lawsuit through August 26, 1999, plaintiff was represented by attorney Ruth Benien. On June 8, 1999, the parties and counsel attended a mediation session regarding both the federal lawsuit and the second EEOC charge. At the end of the session, the parties reached an oral agreement to resolve the claims in both the lawsuit and the EEOC proceeding. The mediator recited the operative terms of the agreement and no party objected. In essence, the agreement provided that defendants would pay plaintiff's salary through December 31, 1999 (approximately $35,000.00 subject to all benefits and deductions, etc.), though plaintiff would not perform any job duties during that period; that defendants would pay plaintiff $30,000.00 up front, with up to $2,500.00 in taxable costs; and that defendants also would pay $20,000.00 to plaintiff's counsel. In return, plaintiff agreed to return all documents in her possession, dismiss both her lawsuit and her EEOC charge, immediately submit a letter of resignation effective December 31, 1999, and refrain from reapplying for employment with defendants. In addition, the parties mutually agreed that they would not disparage one another and that the agreement would remain confidential to the extent consistent with Kansas law. See Transcript Of Hearing On August 26, 1999 (Doc. #88 in Case No. 98-2152) at 61-62, 69-74, 86-89. The parties agreed that defense counsel would draft written settlement documents which embodied the terms of the agreement.
On June 9, 1999, the day after the mediation session, counsel for all parties informed the Court that they had settled all claims in the suit. Accordingly, the Court ordered that the case be administratively terminated without prejudice to the parties' rights to reopen the proceedings for good cause shown. See Order (Doc. #56 in Case no. 98-2152) filed June 9, 1999. Plaintiff later decided that she did not want to settle. Plaintiff refused to sign the written settlement agreement which defense counsel had prepared after consultation with plaintiff's counsel, and she requested that the case be reopened. On June 29, 1999, Benien filed a motion to reopen the 1998 lawsuit. Simultaneously, Benien filed a motion to withdraw as plaintiff's attorney. On July 9, 1999, defendants asked the Court to enforce the oral agreement reached at mediation.
In August 1999, attorney Lee Hollis entered his appearance for plaintiff. At a hearing on August 26, 1999, the Court overruled plaintiff's motion to reopen the case and sustained defendants' motion to enforce the settlement agreement. The Court held that plaintiff had voluntarily entered into the settlement agreement. Plaintiff asked that the Court reconsider these rulings. On November 22, 1999, the Court sustained plaintiff's motion in part and overruled it in part. See Memorandum And Order (Doc. #89 in Case No. 98-2152). The Court held that the parties had knowingly and voluntarily reached an oral settlement agreement but that the release of plaintiff's ADEA claim was invalid and should be excluded from the terms of the agreement. See id. The Court ordered the parties to finalize and execute the settlement agreement by December 1, 1999. See id. Plaintiff again asked that the Court reconsider. On December 30, 1999, the Court overruled plaintiff's motion except that to the extent plaintiff's EEOC charge related to her ADEA claim, the Court excused plaintiff from any obligation to withdraw it. See Memorandum And Order (Doc. #94 in Case No. 98-2152) filed December 30, 1999 at 5-6.
On January 20, 2000, plaintiff amended her second charge of discrimination with the EEOC. Plaintiff added a claim that defendants had retaliated against her by constructively discharging her from employment effective December 31, 1999 (the date on which her resignation was to become effective). On January 21, 2000, the EEOC advised plaintiff that based on the Court's ruling, she was not required to withdraw that portion of her second charge which pertained to the ADEA. The EEOC explained:
Under the ADEA, EEOC is only required to attempt settlement of the claim under the provisions set forth by Section 7(d) of the ADEA. Such attempt to settle was offered by EEOC through its mediation program. This letter is to notify you that EEOC has decided not to pursue this matter further under ADEA. Should you wish to file lawsuit under ADEA you will have ninety (90) days from receipt of this notice to do so. Please note that ADEA does not require a Charging Party to receive a Notice of Right to Sue in order to file a lawsuit.
Exhibit O to Defendants' Memorandum In Support Of Motion For Summary Judgment (Doc. #9) filed July 25, 2000 (emphasis in original).
On March 15, 2000, plaintiff asked the Court for leave to add an additional ADEA retaliation claim. See Plaintiff's Motion To File First Amended Complaint And Suggestions In Support Thereof (Doc. #104) filed March 15, 2000 at 1. In her proposed amended complaint, plaintiff included retaliation claims based on her placement on administrative leave on October 30, 1998, her "continuation" on leave on March 30, 1999 and her constructive discharge on December 31, 1999. See id., attached First Amended Complaint. In her motion, plaintiff stated that the EEOC letter dated January 21, 2000 constituted a "right-to-sue" letter for the proposed claims. See id.
On March 29, 2000, Hollis asked the EEOC for a right-to-sue letter with respect to plaintiff's Title VII claim. Counsel stated:
Your letter dated January 2[1], 2000 addressed Ms. Smith's ADEA claim, stating that she had 90 days to sue on that claim. You did not address her Title VII claim. Although the court has ruled that claim was settled, we intend to appeal that determination, and we request that you issue a right-to-sue letter on that claim also.
Exhibit R-1 to Defendants' Memorandum In Support Of Motion For Summary Judgment (Doc. #9). On March 30, 2000, the EEOC issued a right-to-sue letter on plaintiff's additional Title VII claim. Exhibit R-2 to Defendants' Memorandum In Support Of Motion For Summary Judgment (Doc. #9). The EEOC stated:
This is written in response to your letter of March 29, 2000, . . . After further deliberations regarding your request, I have determined that it is appropriate to honor same. I do so because of your attempt to amend said charge to include additional Title VII issues which were not subject to the mediation process or subsequent agreement.
Id.
On March 31, 2000, in Case No. 98-2152, the Court sustained defendants' motion for summary judgment on plaintiff's remaining claims under the ADEA. See Memorandum And Order (Doc. #108). The Court also overruled plaintiff's request for leave to add a claim for retaliation under the ADEA. See id. at 29. The Court noted that plaintiff's proposed retaliation claim involved her allegation that from October 15, 1996 through November 12, 1998, defendants had retaliated against her for filing the lawsuit and the original EEOC charge. See id. at 27. In its order, the Court did not refer to plaintiff's claim that she was constructively discharged from her employment on December 31, 1999. Because plaintiff's motion to amend was untimely, the Court overruled it. See id. at 27-28. Plaintiff filed her motion to amend nearly two years after her original complaint and nine months after the parties informed the Court that they had settled the case. The Court noted that if plaintiff desired to file the proposed retaliation claim, she could file a separate lawsuit. See id. at 28. On May 1, 2000, plaintiff filed another notice of appeal in Case No. 98-2152. On May 17, 2000, the Tenth Circuit dismissed plaintiff's first appeal (filed in August 1999) for lack of jurisdiction. On June 12, 2000, at her request, the Tenth Circuit dismissed plaintiff's second appeal at her request. On June 27, 2000, plaintiff filed the instant action alleging retaliation under the ADEA.
Analysis
A. Statute Of Limitations
I. Plaintiff's Complaint
After a party has filed a charge of age discrimination or retaliation with the EEOC, that party must wait at least 60 days before filing a civil action. See 29 U.S.C. § 626(d). In addition, after the EEOC dismisses or otherwise terminates an ADEA charge, it must notify the charging party who has 90 days to bring a civil action against the respondent. 29 U.S.C. § 626(e); see Forest v. United States Postal Serv., 97 F.3d 137, 141 (6th Cir. 1996). Compliance with the 90-day requirement is a statutory precondition that functions like a statute of limitations. Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983).
Defendants maintain that plaintiff's suit is barred because she did not file it within 90 days of the EEOC's right-to-sue letter dated January 21, 2000. Plaintiff first argues that a reasonable jury could find that in the letter of January 21, 2000, the EEOC did not intend to terminate her amended charge filed January 20, 2000 because the letter did not refer to the amended charge. Other than the letter itself, plaintiff does not cite any record evidence to support her contention. In her affidavit, plaintiff states that "it is possible" that the EEOC did not intend to terminate her amended charge but "those facts are known only by the EEOC and its employees." Declaration Of Paula Smith ¶ 2, Exhibit F to Plaintiff's Memorandum In Opposition To Defendants' Motion For Summary Judgment Regarding Defendants' Counterclaim (Doc. #23) filed September 15, 2000. As noted above, a party opposing a motion for summary judgment cannot rely on mere speculation in the hope that something will turn up at trial. See Conaway, 853 F.2d at 794. On September 22, 2000, the Court granted plaintiff an extension of time to obtain an affidavit from an EEOC employee on this issue. See Order (Doc. #24 in Case No. 00-2286) at 4-5. Plaintiff has not sought an additional continuance or filed an affidavit from an EEOC employee.
In addition to the lack of admissible evidence to support her claim that the EEOC letter dated January 21, 2000 did not address her amended charge dated January 20, 2000, plaintiff's argument is directly refuted by her court filings. On March 15, 2000, she represented to the Court that the EEOC letter dated January 21, 2000 constituted a right-to-sue letter on her ADEA retaliation claims. See Plaintiff's Motion To File First Amended Complaint And Suggestions In Support Thereof (Doc. #104) filed March 15, 2000 at 1. She asked the Court for leave to amend her complaint to add claims based in part on (1) her placement on administrative leave on October 30, 1998; (2) her continuation on administrative leave on March 30, 1999; and (3) her alleged constructive discharge on December 31, 1999. See id., attached First Amended Complaint ¶¶ 7, 14, 22-24. She alleged that she had exhausted all administrative remedies and that the EEOC had issued her a right-to-sue letter on January 21, 2000. See id., attached First Amended Complaint ¶¶ 23-24. As of March 15, 2000, plaintiff obviously thought that the EEOC had addressed her amended charge dated January 20, 2000 because her proposed amended complaint was nearly a verbatim copy of her amended charge. Compare id., attached First Amended Complaint with plaintiff's amended charge dated January 20, 2000, attached as exhibit 1 to Appendix To Plaintiff's Memorandum In Opposition To Defendants' Motion For Summary Judgment (Doc. #43) filed January 30, 2001. Moreover, in a letter dated March 29, 2000 to the EEOC, counsel for plaintiff conceded that the EEOC's letter of January 21, 2000 "addressed Ms. Smith's ADEA claim." Exhibit R-1 to Defendants' Memorandum In Support Of Motion For Summary Judgment (Doc. #9). Finally, in late April 2000, counsel for plaintiff negotiated with defense counsel to extend to May 1, 2000 the deadline to file suit. The negotiations between counsel were clearly based on the understanding that the EEOC had terminated plaintiff's amended charge on January 21, 2000. In sum, a reasonable jury would necessarily find that the EEOC terminated its investigation of plaintiff's ADEA retaliation claims on January 21, 2000 including her amended charge filed on January 20, 2000.
In a related argument, plaintiff contends that a reasonable jury could find that in its letter dated March 30, 2000, the EEOC intended to dismiss plaintiff's amended charge filed on January 20, 2000. Again, other than the letter itself, plaintiff does not cite any evidence — she relies solely on the hope that an EEOC employee will testify at trial to this fact. Such speculation, however, is insufficient to defeat a motion for summary judgment. See Conaway, 853 F.2d at 794. Moreover, plaintiff ignores the fact that the EEOC letter dated March 30, 2000 was in response to the letter from plaintiff's counsel dated March 29, 2000. That letter stated:
Your letter dated January 2[1], 2000 addressed Ms. Smith's ADEA claim, stating that she had 90 days to sue on that claim. You did not address her Title VII claim. Although the court has ruled that claim was settled, we intend to appeal that determination, and we request that you issue a right-to-sue letter on that claim also.
Exhibit R-1 to Defendants' Memorandum In Support Of Motion For Summary Judgment (Doc. #9). In response, the EEOC stated:
This is written in response to your letter of March 29, 2000, . . . After further deliberations regarding your request, I have determined that it is appropriate to honor same. I do so because of your attempt to amend said charge to include additional Title VII issues which were not subject to the mediation process or subsequent agreement.
Exhibit R-2 to Defendants' Memorandum In Support Of Motion For Summary Judgment (Doc. #9). In an attempt to evade the unambiguous language of these two letters, plaintiff argues that the actual "Notice of Suit Rights" section in the letter dated March 30, 2000 refers to both Title VII and the ADEA, and is not limited to Title VII claims. Of course, plaintiff omits the fact that this section is a form which refers to Title VII, the ADEA, the Americans with Disabilities Act ("ADA") and the Equal Pay Act. Plaintiff never raised a claim under the ADA or the Equal Pay Act. No reasonable person would blindly ignore the first page of the personalized letter from the EEOC and seize on the pro forma reference to the ADEA in the document which includes references to two other statutes which plaintiff did not even mention in her administrative charges. Indeed, plaintiff does not argue that she herself read the documents in this manner — she only argues, without evidentiary support, that the EEOC may have intended the letter to cover her ADEA claims. See plaintiff's Memorandum In Opposition To Defendants' Motion For Summary Judgment (Doc. #42) filed January 30, 2001 at 17.
Finally, plaintiff argues that a reasonable jury could find that the period for filing her complaint is subject to equitable tolling. "[E]quitable tolling of the ADEA . . . is appropriate only where the circumstances of the case rise to the level of active deception . . . where a plaintiff has been "lulled into inaction by her past employer, state or federal agencies, or the courts." Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (internal quotations and citations omitted). "When such deception is alleged on the part of an employer, the limitations period will not be tolled unless an employee's failure to timely file results from either a deliberate design by the employer or actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." Id. (internal quotations and citations omitted).
First, plaintiff contends that defendants lulled her into inaction because on April 19 and 20, 2000, counsel for defendants urged plaintiff's counsel (Hollis) to refrain from filing suit on the remaining ADEA claims until the parties had attempted to settle them. Plaintiff's position is untenable in light of the letters between counsel. On April 19, 2000, defense counsel stated:
the County will not raise the statute of limitations as it relates to the 90 day period within which to file suit so long as the suit is filed no later than May 1, 2000. That will give us time to work on a settlement. As you know, the 90 day period is not jurisdictional. If that is not acceptable, then I suggest that you file suit but delay serving until May 1, 2000.
Elmore Depo. Exh. 15, attached to plaintiff's appendix (Doc. #43) (emphasis added). On April 20, 2000, defense counsel informed Hollis that the BOCC would meet the following Monday to discuss plaintiff's settlement proposal. Defense counsel stated, "I will let you know as soon after Monday's meeting as I can. Again, I encourage to withhold filing until I can get back to you." Id. On April 25, 2000, defense counsel sent a counter proposal to plaintiff's counsel. Id. Based on this sequence of events, plaintiff states that she "believed that these settlement negotiations tolled the time in which [she] was required to file suit on [her] remaining ADEA claims." Declaration of Paula Smith dated January 30, 2001 ¶ 14, attached to plaintiff's appendix (Doc. #43). No reasonable jury, however, could find in plaintiff's favor on this issue. First, the Court notes that plaintiff was represented by able counsel during the settlement negotiations in April of 2000. Plaintiff does not contend that Hollis told her that based on the negotiations, she could delay filing suit for over two months. Second, plaintiff's claims were not tolled forever. Although defense counsel stated that defendants would not object if plaintiff filed suit before May 1, 2000, plaintiff does not explain how defense counsel led her to believe that she could file suit nearly two months later on June 27, 2000. Plaintiff has not come forward with admissible evidence to establish that defendants deliberately caused her to delay filing charges until June 27, 2000.
The Court cannot reconcile plaintiff's statements in her declarations. She contends that as of early April 2000, she was essentially proceeding pro se because Hollis told her that he could not represent her in a new lawsuit. See Declaration Of Paula Smith dated January 30, 2001 ¶ 13, attached as Exhibit 2 to Appendix To Plaintiff's Memorandum In Opposition To Defendant's Motion For Summary Judgment (Doc. #43). She then states that in late April 2000, she thought that the statute of limitations was tolled because Hollis was negotiating with opposing counsel on her remaining ADEA claims. See id. ¶ 14. In yet another declaration, plaintiff states that she did not know the content of the negotiations between Hollis and defense counsel. See Declaration Of Paula Smith dated August 15, 2000 ¶ 4, attached as Exhibit F to Plaintiff's Memorandum In Opposition To Defendants' Motion For Partial Summary Judgment Regarding Defendants' Counterclaim (Doc. #23) filed September 15, 2000.
Plaintiff also argues that the statute of limitations was equitably tolled because the EEOC itself lulled her into inaction. Once again, plaintiff bases her argument on the fact that the actual "Notice of Suit Rights" section of the letter dated March 30, 2000 refers to both Title VII and the ADEA. As explained above, plaintiff's argument is without merit. In addition, the Court notes that plaintiff was represented by counsel who on March 29, 2000 asked for the right-to-sue letter with respect to her Title VII claim only. The EEOC hardly can be accused of active deception in such circumstances. Finally, plaintiff's contention that she thought that the letter dated March 30, 2000 applied to her ADEA retaliation claims is inconsistent with her argument that in late April 2000, she thought that the statute of limitations had been tolled by the settlement negotiations between counsel. If the letter dated March 30, 2000 triggered the statute of limitations, plaintiff would have no reason to think that any tolling of her claim was necessary in late April of 2000.
Plaintiff notes that the EEOC did not send her a copy of the letter dated March 30, 2000. Plaintiff does not explain the significance of this fact. The EEOC sent the letter to Hollis, who had requested it. Moreover, plaintiff does not claim that Hollis failed to timely give her a copy of the letter. To the extent plaintiff did not receive a copy of the letter, she cannot claim that it misled her.
For the above reasons, plaintiff's retaliation claims are barred under the ADEA. Defendants therefore are entitled to summary judgment on plaintiff's complaint.
B. Retaliation Under The ADEA
As explained above, plaintiff's retaliation claims are barred because she did not timely file suit after the EEOC dismissed her administrative charge. In addition, plaintiff's retaliation claim based on her constructive discharge on December 31, 1999 lacks substantive merit. The ADEA prohibits an employer from discriminating against an employee because the employee "has opposed any practice made an unlawful employment practice" by the ADEA. 29 U.S.C. § 623(d). To prevail on an ADEA retaliation claim, plaintiff must establish that retaliation was a determining factor in the employer's challenged decision. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996) (citing Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir. 1988)). Plaintiff need not show that retaliation was the sole reason for the adverse employment action, but she must show that retaliation "made the difference" in the employer's decision. Greene, 98 F.3d at 557 (quoting EEOC v. Sperry Corp., 852 F.2d 503, 507 (10th Cir. 1988)).
The Court does not address the substantive merit of plaintiff's retaliation claim based on her placement on administrative leave. The Court also declines to address defendant's alternative argument that plaintiff's retaliation claims are barred because she did not timely raise them in Case No. 98-2152.
Plaintiff contends that defendants constructively discharged her on December 31, 1999, in retaliation for her filing an ADEA claim. Defendants correctly point out that plaintiff's constructive discharge claim is precluded by the Court's rulings in Case No. 98-2152. In that action, the Court held that pursuant to the settlement agreement, plaintiff voluntarily agreed to resign her position with JCDS as of December 31, 1999. See Memorandum And Order (Doc. #89) filed November 22, 1999 at 3. "If an employee resigns of her own free will, even as a result of the employer's actions, that employee will not be held to have been constructively discharged." Jeffries v. State of Kan., 147 F.3d 1220, 1223 (10th Cir. 1998) (citing Yearous v. Niobrara County Mem'l Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997)). Based on the Court's rulings in Case No. 98-2152, no reasonable jury would find that plaintiff was constructively discharged.
Plaintiff's claim is also precluded by the Court's ruling in Case No. 98-2152 that she cannot resign for purposes of one claim but not another. Plaintiff bases her constructive discharge claim on the theory that she has resigned only for purposes of her Title VII claims and that such resignation is not valid as it applies to her ADEA claims. See Declaration of Paula Smith dated September 8, 2000 ¶ 8, attached as Exhibit B to Plaintiff's Memorandum In Opposition To Defendants' Motion For Partial Summary Judgment Regarding Defendants' Counterclaim (Doc. #23) filed September 15, 2000. In Case No. 98-2152, the Court held that plaintiff's waiver of her ADEA claim was invalid because it was not written. See Memorandum And Order (Doc. #89) filed November 22, 1999 at 3-4. The Court noted, however, that "except for plaintiff's release of her ADEA claim, defendants are entitled to enforce the terms of the oral agreement reached by the parties on June 8, 1999." See id. at 5. In response, plaintiff again argued that she should not be required to resign because her agreement to resign was linked to her ADEA claim. In its order dated December 30, 1999, the Court specifically rejected plaintiff's argument. See Memorandum And Order (Doc. #94) at 4-5. The Court explained:
A careful review of the oral agreement reveals that plaintiff's agreement to resign was not inextricably linked to her ADEA claim. Plaintiff agreed to resign on December 31, 1999, to refrain from seeking re-employment and to dismiss her claims. Defendants promised substantial consideration in return, and they stand willing to perform their promises in their entirety. Plaintiff agreed to resign in direct consideration for defendants' agreement to pay money to plaintiff and her attorney. The only clear link between plaintiff's promise to resign and the agreement to settle her ADEA claims is that plaintiff made both promises and both promises were part of the global agreement.
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The fact that plaintiff may be able to avoid her ADEA obligations does not render her other obligations unenforceable, particularly in light of defendants' agreement to fully perform their obligations.
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plaintiff agreed to resign in exchange for monetary payments by defendants. No statutory provision requires that such an agreement be in writing. Moreover, an ADEA plaintiff is entitled to resign from her employment without also waiving her age discrimination claim or, conversely, waiving her age discrimination claim without also resigning from employment. By refusing to enforce the release of plaintiff's ADEA claims but enforcing the balance of the settlement agreement, the Court affords plaintiff the benefit of all bargained-for consideration, and more, since she retains both the agreed consideration and the ability to pursue her unsettled ADEA claims.
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In sum, the Court adheres to its prior ruling that the ADEA release can be easily severed and that plaintiff's agreement to dismiss her ADEA claims was not essential to the overall agreement. Therefore the unenforceability of the ADEA release does not void any other portion of the agreement.
Id. Plaintiff appealed the Court's rulings in Case No. 98-2152, but later decided to dismiss those appeals and file a new lawsuit. Based on the Court's rulings in Case No. 98-2152, plaintiff cannot maintain in this action that she did not resign on December 31, 1999.
On September 22, 2000, the Court again held that in this action (Case No. 00-2286), plaintiff cannot challenge the validity of the settlement agreement. See Order (Doc. #24 in Case No. 00-2286, Doc. #122 in Case No. 98-2152) at 2-4. In bold letters, the Court noted that " as a result of the settlement agreement, to which plaintiff voluntarily agreed, plaintiff was required to resign from her employment with defendants on December 31, 1999." Id. at 2-3. Plaintiff chooses to ignore the express language of the Court's orders of November 22, 1999, December 30, 1999 and September 22, 2000. Instead plaintiff seizes on one sentence in the Court's order on plaintiff's motion to amend where it noted that "[i]f plaintiff desires to file the proposed retaliation claim, she may file a separate lawsuit." Memorandum And Order (Doc. #108 in Case No. 98-2152) filed March 31, 2000 at 28. In that order, the Court overruled plaintiff's motion to amend as untimely and prejudicial to defendants. See id. at 27-28. The Court expressed no opinion on the merits of any subsequent suit.
Defendants also argue that plaintiff's constructive discharge claim fails because she cannot show that her working conditions were intolerable. Plaintiff maintains that her working conditions were intolerable because she faced a choice between resigning or being fired. Initially the Court rejects plaintiff's argument because she has not presented admissible evidence that defendants told her that she had to resign or be fired. Even if plaintiff could present admissible evidence on this point, she has not shown that the choice between resignation (accompanied by a settlement payment) and termination constitutes intolerable working conditions. Although both choices were undesirable to some degree, plaintiff did not have to resign. She could have chosen to allow defendants to terminate her without a settlement payment and then pursue her court action. Rather than take that avenue, however, plaintiff (after advice by an attorney) chose to resign for substantial monetary consideration. The fact that she is now unhappy with her choice does not convert defendants' settlement offer to an intolerable choice.
For these additional reasons, defendants are entitled to summary judgment on plaintiff's retaliation claim based on her alleged constructive discharge on December 31, 1999.
II. Defendants' Counterclaim
Defendants argue that they are entitled to summary judgment on their claim that plaintiff breached the implied covenant of good faith and fair dealing in the settlement agreement. Plaintiff does not contest that the interpretation and enforcement of settlements agreements concerning federal claims under Title VII is governed by Kansas law. See Morris v. City of Hobart, 39 F.3d 1105, 1111-12 (10th Cir. 1994), cert. denied, 514 U.S. 1109 (1995). Under Kansas law, "[e]very contract implies good faith and fair dealing between the parties to it, and a duty of co-operation on the part of both parties." Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792, 801 (1987) (quoting 17 Am.Jur.2d, Contracts § 256, renumbered as 17A Am. Jur.2d (Rev.) § 380). Parties shall not "intentionally and purposely do anything to prevent the other party from carrying out his part of the agreement, or do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Daniels v. Army Nat'l Bank, 249 Kan. 654, 658, 822 P.2d 39, 43 (1991) (quoting Bonanza, 242 Kan. at 222, 747 P.2d at 801).
On October 30, 2000, pursuant to the parties' joint motion, the Court dismissed the remaining portion of defendants' counterclaim. See Order (Doc. #28).
Defendants maintain that plaintiff breached her implied covenants because she filed suit seeking damages for her constructive discharge on December 31, 1999. Plaintiff argues that she has not breached the implied covenants of good faith and fair dealing because based on the Court's rulings, her ADEA claims were specifically preserved in the settlement agreement. As explained above, plaintiff's constructive discharge claim under the ADEA is clearly barred by the Court's orders in Case No. 98-2152. On the present record, however, the Court cannot find as a matter of law that plaintiff knew of this fact at the time she filed suit. See St. Catherine Hosp. of Garden City v. Rodriguez, 25 Kan. App.2d 763, 765, 971 P.2d 754, 756 (1998) (whether good faith and fair dealing standard satisfied is question of fact). Indeed plaintiff states that she thought that her actions were consistent with the Court's rulings and the settlement agreement. In sum, defendants have not shown as a matter of law that plaintiff "intentionally" filed her constructive discharge claim for the purpose of destroying or injuring the rights of defendants to receive the fruits of the settlement agreement. See Bonanza, 242 Kan. at 222, 747 P.2d at 801. Accordingly, defendants' motion for summary judgment on their counterclaim is overruled.
Plaintiff also argues that her performance under the agreement was excused based on the anticipatory breach of defendants. Because the Court finds in favor of plaintiff on other grounds, it need not address plaintiff's alternative argument.
IT IS THEREFORE ORDERED that Defendants' Motion For Summary Judgment (Doc. #8) filed July 25, 2000 be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that Defendants' Motion For Partial Summary Judgment Regarding Defendants' Counterclaim (Doc. #13) filed August 17, 2000 be and hereby is OVERRULED.