Campbell v. Geren , 353 F. App'x 879 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1764
WILLIAM E. CAMPBELL,
Plaintiff - Appellant,
v.
PETE GEREN, Acting Secretary, Department of the Army,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:07-cv-00675-LMB-JFA)
Submitted: November 12, 2009 Decided: November 30, 2009
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William E. Campbell, Appellant Pro Se. R. Joseph Sher,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Plaintiff William E. Campbell appeals the district
court’s order dismissing his Amended Complaint alleging
violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e to e-17 (2006). Campbell raised nine claims in
his action before the district court: that his supervisor,
Colonel Charles McMaster, created a hostile work environment at
Fort Lewis from November 2003 through February 2005 (Count 1);
McMaster effected the illegal removal of Campbell from his
employment on account of his race (Count 2); McMaster initiated
an investigation of Campbell on account of his race (Count 3);
Campbell’s twenty-eight day suspension violated his due process
rights (Count 4); the agency investigator discriminated against
Campbell on account of his race in recommending termination for
sexual harassment (Count 5); Campbell’s twenty-eight day
suspension for sexual harassment was imposed to retaliate
against him because he filed an Equal Employment Opportunity
(“EEO”) claim (Count 6); and appealed a proposed five-day
suspension (Count 7); after Campbell was removed from Fort
Lewis, McMaster acted to prevent Campbell from obtaining other
employment on account of his race (Count 8); the United States
Army violated his due process rights in withholding and refusing
to disclose evidence in Campbell’s favor (Count 9). In
dismissing Campbell’s complaint, the district court found that
2
Campbell failed to exhaust his administrative remedies regarding
Counts 1, 2, and 8, and that the remaining counts were barred by
a settlement agreement Campbell signed with the Army, disposing
of sexual harassment claims raised against Campbell and
suspending him for nineteen days. Campbell filed a timely
appeal.
On appeal, Campbell first alleges that Counts 1, 2,
and 8 were made known to the Army in 2004, and the Army failed
to properly investigate them. Therefore, Campbell requests that
“timeliness statutes . . . be tolled and all claims adjudicated
on the merits in District Court.” Next, Campbell asserts that
the settlement agreement only pertained to those issues
“relevant” to the appeal of his recommended twenty-eight day
suspension for sexual harassment to the Merit Systems Protection
Board (“MSPB”), and therefore the settlement did not bar the
remaining Counts of his complaint, as they were not relevant to
his appeal. Additionally, Campbell asserts that the district
court erred in disallowing the use of parol evidence to
interpret the settlement agreement following its finding that
the agreement was not ambiguous. We affirm.
We review a district court’s dismissal for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). Philips v. Pitt.
County Memorial Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009). In
so doing, we accept all well-pleaded factual allegations as
3
true, and view the complaint in the light most favorable to the
plaintiff. Id. at 180. In order to survive a motion under Rule
12(b)(6), a plaintiff’s “factual allegations must be enough to
raise a right to relief above the speculative level,” and there
must be “enough facts to state a claim for relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007).
I. Counts 1, 2, and 8
“Title VII of the Civil Rights Act of 1964 creates a
right of action for both private-sector and certain federal
employees alleging employment discrimination on the basis of
race, color, religion, sex, or national origin.” Laber v.
Harvey, 438 F.3d 404, 415 (4th Cir. 2006). However, prior to
utilizing this right of action, all employees must first exhaust
their available administrative remedies. Id. In the context of
a federal employee, this requires that the employee consult an
agency EEO counselor within forty-five days of the
discriminatory act to try to informally resolve the matter. See
29 C.F.R. § 1614.105(a)(1) (2008).
Here, it is clear that the district court did not err
in dismissing Counts 1, 2, and 8 for Campbell’s failure to
exhaust his administrative remedies. Though Campbell now
asserts that he spoke with EEO counselors and various agency
4
representatives about the hostile work environment created by
McMaster, the record and pleadings are bereft of any reference
to such conversations, and Campbell fails to allege that he
actually filed a complaint with the EEO office. Though Campbell
cites to two documents in support of his contentions —
specifically, an “EEO Counselor Report of Inquiry dated July 13,
2004” and “AR 15-6 Findings dated June 3, 2005” — it is apparent
from the dates of these documents that they relate to the Army’s
investigations of sexual harassment complaints against Campbell,
and not complaints lodged by Campbell. Accordingly, because
Campbell failed to allege in his complaint that he met with an
EEO counselor to attempt to informally resolve his grievances
concerning the alleged hostile work environment, the district
court did not err in granting summary judgment on Counts 1, 2,
and 8.
II. Remaining Counts
Campbell next asserts that the district court erred in
determining that the remaining counts of his complaint were
barred by his settlement agreement. The settlement contained
the following pertinent language limiting Campbell’s right to
further challenge issues disposed of by the agreement:
“Employee agrees to waive all grievance and appeal rights,
including appeals to the . . . [MSPB]. In addition, the
5
employee agrees to waive all . . . [EEO] rights related to the
relevant issues of MSPB Appeal Docket No., PH-0752-07-0011-I-1.”
Campbell contends that, because the MSPB settlement only
disposed of issues “relevant” to the appeal of his suspension,
the settlement did not bar his discrimination or due process
claims. Additionally, Campbell contends that the district court
erred in finding that the terms of the settlement were not
ambiguous, and therefore disallowing the use of parol evidence
to determine issues “relevant” to the appeal.
First, even if Campbell’s assertions are correct, his
due process claims (Counts 4 and 9) are barred by the settlement
agreement. Regardless of whether the second sentence of
paragraph ten, waiving Campbell’s EEO rights, is ambiguous, the
first sentence, waiving all grievance and appeal rights, is not.
As Campbell’s due process claims do not concern discrimination,
Counts 4 and 9 are barred by the settlement agreement.
“[S]ettlement agreements are treated as contracts
subject to the general principles of contract interpretation.”
Byrum v. Bear Inv. Co., 936 F.2d 173, 175 (4th Cir. 1991).
Where a contract is clear and unambiguous on its face, courts
must interpret the contract according to the plain meaning of
its terms. Ott. v. L & J Holdings, LLC, 654 S.E.2d 902, 905
(Va. 2008). In such an instance, courts do not look for meaning
beyond the contract itself. Id. However, where a document is
6
ambiguous, courts may look to parol evidence in order to
ascertain the intent of the parties. Id.Assuming without deciding that the district court
erred by finding that the settlement agreement was not
ambiguous, and therefore should have permitted the use of parol
evidence to ascertain the “relevant issues” of the appeal, it is
clear that Campbell’s remaining claims were resolved as part of
the settlement agreement. The relevant issues of the MSPB
hearing are specifically delineated in a November 27, 2006
“Memorandum on Prehearing Conference.” The memorandum clearly
sets out the issues relevant to the MSPB appeal: (1) whether
the charges against Campbell can be sustained; (2) “whether the
action promotes the efficiency of service;” (3) “whether the
penalty was reasonable;” (4) whether the investigation pursuant
to Army Regulation 15-6 (the “AR 15-6 investigation”) against
Campbell was proper or resulted in procedural error; and
(5) whether the twenty-eight day suspension was in reprisal for
Campbell’s appeal of his original proposed five-day suspension
and the ADR resolution of Campbell’s unrelated discrimination
claim. After reviewing Campbell’s remaining claims that he
asserts were erroneously dismissed, it is apparent that even had
the district court permitted the introduction of parol evidence
to clarify the terms of the settlement agreement, no conclusion
could be reached other than that the parties entered these
7
remaining claims to be fully and finally resolved by the
administrative settlement.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
8