Karin Weng v. Martin J. Walsh ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2022 Decided April 8, 2022
No. 20-5264
KARIN WENG,
APPELLANT
v.
MARTIN J. WALSH, SECRETARY OF LABOR,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00504)
Karin Weng, pro se, argued the cause and filed the briefs
for appellant.
Stephen M. DeGenaro, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were R. Craig
Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.
Before: SRINIVASAN, Chief Judge, TATEL, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
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EDWARDS, Senior Circuit Judge: From 1995 until 2012,
Karin Weng (“Weng” or “Plaintiff”) was employed as an
Employee Benefits Law Specialist at the U.S. Department of
Labor (“Department” or “Defendant”). In December 2010,
after filing a number of complaints against Department
officials, Weng filed a lawsuit against the Department in the
District Court. See Weng v. Solis, No. 1:10-cv-02051 (D.D.C.)
(“Weng I”). Her complaint alleged race, national origin, and
sex discrimination in violation of Title VII of the Civil Rights
Act of 1964, as well as retaliation in violation of Title VII and
the Rehabilitation Act. The parties settled their dispute in Weng
I, and the District Court dismissed the action in December
2013. The settlement agreement “provides for the full and
complete satisfaction” of “all claims relating to [Weng’s]
employment with the Department,” “[e]xcept as specifically
provided” elsewhere in the release. Joint Appendix (“J.A.”)
126 (emphasis added).
While Weng I was still pending, Weng was informed she
would be terminated. Weng then sent an email to her superiors
purporting to resign in lieu of removal; and in March 2012, she
filed a Grievance through her union representative contesting
her removal. In April 2015, Weng filed the present lawsuit
claiming that her removal was motivated by retaliation, in
violation of Title VII and the Rehabilitation Act, and race,
national origin, and sex discrimination, in violation of Title
VII. See Weng v. Perez, No. 1:15-cv-00504 (D.D.C.) (“Weng
II”). After protracted litigation on ancillary matters, the District
Court granted the Department’s motion for summary
judgment, reasoning that Weng had released her removal-
related claims in the settlement agreement that concluded Weng
I. Weng v. Scalia, No. 1:15-cv-00504, 2020 WL 3832950, at
*5-7 (D.D.C. July 8, 2020). Weng now appeals.
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We reverse the District Court’s judgment. We hold that the
disputed settlement agreement did not release the Department
from all Title VII claims. To the contrary, the settlement
agreement contains an express carveout allowing Weng to
pursue any claims included in the separate Grievance that she
had filed against the Department complaining about the
Department’s failure “to conform to laws and regulations
governing its treatment of Ms. Weng, including, but not limited
to, . . . the Civil Rights Act of 1964.” J.A. 115. We remand for
the District Court to consider in the first instance whether that
Grievance preserved the claims Weng advances in this
litigation.
I. BACKGROUND
Weng is an Asian woman of Taiwanese national origin.
From 1995 until March 2012, she worked as an Employee
Benefits Law Specialist in the Department’s Employee
Benefits Security Administration Office of Exemption
Determinations (“Office”). According to Weng, she “never
received a negative performance evaluation, nor any formal
counseling or discipline, from 1995 to 2005.” Second Am.
Compl. ¶ 38, J.A. 169. During the timeframe at issue, Weng’s
union representative – the American Federation of Government
Employees, Local No. 12, AFL-CIO (“Local 12”) – had a
collective-bargaining agreement with the Department.
Weng alleges that, from the time she joined the Office,
“she, along with other minority employees, was subjected to
offensive racial, ethnic, and/or sexually charged slurs,
comments, and jokes by [Office] management officials.” Id.
¶ 34, J.A. 168. Beginning in 2004, two of Weng’s coworkers
filed Equal Employment Opportunity (“EEO”) complaints
against Office management. Weng appeared as a witness in her
coworkers’ cases, and she alleges that the harassment against
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her escalated after she testified in support of a colleague.
Starting in 2006, Weng also filed multiple EEO complaints and
union grievances about her working conditions.
In December 2010, Weng, represented by counsel, filed a
lawsuit against the Department in the District Court. See
Weng I. Her complaint alleged race, national origin, and sex
discrimination in violation of Title VII of the Civil Rights Act
of 1964, as well as retaliation in violation of Title VII and the
Rehabilitation Act. The District Court dismissed the action in
December 2013 after the parties reached a settlement. The
settlement agreement “provides for the full and complete
satisfaction” of “all claims relating to [Weng’s] employment
with the Department,” “[e]xcept as specifically provided”
elsewhere in the release. J.A. 126 (emphasis added). The scope
of Weng’s release of claims against the Department is the
central issue before the court in this appeal. See Section II.B,
infra.
In April 2011, a few months after Weng filed Weng I, she
was told during a mid-year review that her performance was
unacceptable. The Department placed her on a performance
improvement plan in the summer of 2011. In early 2012, Weng
received a notice of proposed removal, which stated that she
had failed to improve her performance to an acceptable level.
On March 7, 2012, Weng received a decision from the Office’s
Acting Director sustaining the proposed removal and
informing Weng that she would be terminated on March 9,
2012. On March 9, Weng sent an email to her supervisors
stating that she resigned her position “in lieu of removal.”
Weng v. Perez, Civ. Action No. 15-504, at 4 (D.D.C. Oct. 15,
2015), reprinted in J.A. 150.
Weng challenged the removal decision pursuant to the
negotiated grievance procedure prescribed in the collective-
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bargaining agreement between Local 12 and the Department.
The Grievance alleged that the Department “failed to conform
to laws and regulations governing its treatment of Ms. Weng,
including . . . the Civil Rights Act of 1964,” inter alia. J.A. 115.
The dispute proceeded to arbitration, where the arbitrator
determined that he lacked jurisdiction over the Grievance
because Weng failed to establish that her resignation was
involuntary.
Weng appealed the arbitrator’s decision to the Merit
Systems Protection Board (“MSPB”), an independent
adjudicator established pursuant to the Civil Service Reform
Act (“Act”), 5 U.S.C. § 1101 et seq. See Kloeckner v. Solis, 568
U.S. 41, 44 (2012) (citing 5 U.S.C. §§ 1204, 7512, 7701). The
Act provides “a framework for evaluating personnel actions
taken against federal employees.” Perry v. Merit Sys. Prot. Bd.,
137 S. Ct. 1975, 1980 (2017) (citation omitted). For certain
serious personnel actions – including removal – “the affected
employee has a right to appeal the agency’s decision to the
MSPB.” Id. (citation omitted). The MSPB also has jurisdiction
to hear “mixed” cases, which are those “in which the asserted
claim (or claims) both arises under a federal employment
discrimination law (such as Title VII) and also relates to or
stems from an action [such as removal] that is within the
[MSPB’s] jurisdiction.” Niskey v. Kelly, 859 F.3d 1, 6 (D.C.
Cir. 2017) (citations omitted). However, “[a]n employee who
voluntarily resigns . . . has no right to appeal to the MSPB.”
Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340-11 (Fed. Cir.
2001) (citation omitted).
In Weng’s case, the MSPB adopted an administrative
judge’s recommendation that the appeal be dismissed for lack
of jurisdiction based on Weng’s supposed failure to establish
that her termination was involuntary. The MSPB’s order
6
informed Weng that she had the right to request review from
the Federal Circuit.
Proceeding pro se, Weng then filed the instant action, Weng
II, in the District Court. This lawsuit is based solely on claims
arising from her removal. Weng’s complaint alleges retaliation,
in violation of Title VII and the Rehabilitation Act, and race,
national origin, and sex discrimination, in violation of Title
VII. In 2015, the Department moved to dismiss for lack of
jurisdiction. The District Court granted the motion, reasoning
that petitions for review of the MSPB’s jurisdictional
dismissals must be filed in the Federal Circuit, rather than in
the district courts. Weng v. Perez, Civ. Action No. 15-504
(D.D.C. Oct. 15, 2015), reprinted in J.A. 147-56. Weng
appealed to this court, which summarily affirmed the District
Court’s judgment. See Order, Weng v. Perez, No. 15-5299
(D.C. Cir. Nov. 8, 2016). The District Court then transferred
the case to the Federal Circuit. However, an intervening
Supreme Court decision clarified that the district courts, not the
Federal Circuit, are the proper fora to hear “mixed” cases
dismissed by the MSPB on jurisdictional grounds. Perry, 137
S. Ct. at 1988. This court then granted Weng’s petition for
rehearing and vacated its previous order. See Order, Weng v.
Acosta, No. 15-5299 (D.C. Cir. Oct. 3, 2017). We remanded
the matter, and the Federal Circuit transferred the case back to
the District Court.
Before the District Court in Weng II, the Department filed
a motion for summary judgment or, alternatively, for judgment
on the pleadings. The Department argued, inter alia, that
Weng’s action involved some of the same claims or causes of
action resolved in Weng I. The Department thus argued that,
under the doctrine of res judicata, it was entitled to judgment
in its favor on any claims for which Weng had already obtained
relief.
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The District Court granted the Department’s motion for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure as to the Rehabilitation Act claims
and denied the motion as to the Title VII claims. Weng v.
Pizzella, No. 1:15-cv-00504, 2019 WL 6109268, at *7-8
(D.D.C. Oct. 31, 2019). The court concluded that Weng’s
Rehabilitation Act claims were barred because the relevant
allegations pertained to claims that had been conclusively
decided. Id. at *7. As to the Title VII claims, however, the court
reasoned that “a dispute of fact between the parties as to which
specific conduct [Weng] has recovered on, and which she has
not,” rendered judgment on the pleadings inappropriate. Id.
at *8.
Following discovery, the Department moved for summary
judgment on the Title VII claims. In its analysis, the District
Court stated that it “ha[d] already established that [Weng] was
effectively terminated” before she sent the email purporting to
resign in lieu of removal. Weng v. Scalia, No. 1:15-cv-00504,
2020 WL 3832950, at *2 (D.D.C. July 8, 2020) (citation
omitted), reprinted in J.A. 356. Nonetheless, the District Court
granted summary judgment to the Department, concluding that
the Weng I settlement agreement “settled any claims within the
Grievance related to discrimination and retaliation under Title
VII.” Id. at *7. The trial court also denied Weng’s request to
amend her complaint. Id. at *4-5.
Weng now appeals pro se, renewing only her Title VII
claims.
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II. ANALYSIS
A. Standard of Review
“We review the [D]istrict [C]ourt’s grant of summary
judgment de novo.” United States v. Greer, 987 F.3d 1089,
1091 (D.C. Cir. 2021) (citation omitted).
B. The Weng I Settlement Agreement Did Not Release
Any Removal-Related Title VII Claims Included in
the Grievance
The District Court granted the Department’s motion for
summary judgment because it concluded that the Weng I
settlement agreement released the Department from all Title
VII claims relating to Weng’s removal. As explained below,
the unambiguous terms of the settlement agreement foreclose
the District Court’s reading.
“We interpret a settlement agreement under contract law.”
Keepseagle v. Perdue, 856 F.3d 1039, 1047 (D.C. Cir. 2017)
(citation omitted). If a contract’s terms “are unambiguous on
their face, interpretation is considered a question of law
appropriately resolved by this court.” United States ex rel.
Dep’t of Lab. v. Ins. Co. of N. Am., 131 F.3d 1037, 1042 (D.C.
Cir. 1997) (citation omitted).
In relevant part, the Weng I settlement agreement’s release
provision states:
8. Release. Except as specifically provided in this
paragraph, this Stipulation provides for the full and
complete satisfaction of all claims which have been or
could have been asserted by plaintiff in the above-
captioned civil action, and all claims relating to her
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employment with the Department of Labor, . . . unless
they are among the subjects specifically described
below and made part of the listed matters. Plaintiff
hereby fully and forever releases and discharges the
[Department] from any and all rights and claims of
every kind, . . . including without limitation any rights
or claims under . . . Title VII . . . . [P]laintiff agrees,
through this Stipulation, to settle and release all such
rights and claims, provided, however, that, except for
claims that would cover in whole or part anything
within the period of her complaint ending April 24,
2009, nothing in this Stipulation shall affect Plaintiff’s
ability to pursue any claims that she has currently
pending that are the subject of any of the following:
...
(iii) [Grievance], on appeal to the Merit
Systems Protection Board . . . .
This reservation i[s] not intended to, and does not,
increase or decrease Plaintiff’s or Defendant’s rights
or claims in those matters, and Defendant reserves all
defenses that the Agency may have in defending against
those claims.
J.A. 126-28 (emphases added).
In granting the Department’s summary judgment motion,
the District Court interpreted this release to mean that, “even to
the extent the Settlement Agreement carved out the Grievance,
its broad terms settled any claims within the Grievance related
to discrimination and retaliation under Title VII.” Weng, 2020
WL 3832950, at *7. It reasoned that the provision stating that
“Plaintiff hereby fully and forever releases” the Department
“from any and all rights and claims of every kind,” “including
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without limitation any rights or claims under . . . Title VII,”
indicated that the removal-related Title VII claims raised in the
instant action were among those claims settled in Weng I. See
id. (citation omitted).
We disagree. The contract’s express terms make clear that
Weng did not release any Title VII claims raised in her
Grievance. The release’s terms are subject to the proviso
“[e]xcept as specifically provided in this paragraph,” and the
paragraph specifically provides that “nothing” in the release
“shall affect Plaintiff’s ability to pursue any claims that she has
currently pending that are the subject of” the MSPB appeal
involving the Grievance. J.A. 126-28 (emphasis added).
Similarly, the provision carves out from the release any claims
that “are among the subjects specifically described below and
made part of the listed matters,” and the listed matters include
Weng’s MSPB appeal of the Grievance. Id. at 126, 128. The
paragraph also states that the reservation “i[s] not intended to,
and does not, increase or decrease Plaintiff’s or Defendant’s
rights or claims in those matters.” Id. at 128. Given these plain
terms, any claims – including Title VII claims – that “[we]re
the subject of” the Grievance on appeal to the MSPB are carved
out from the release. See id. at 127-28.
Indeed, counsel for the Department conceded at oral
argument that the Department does not believe the Weng I
settlement agreement resolved any removal-related Title VII
claims included in Weng’s Grievance. Nor did the Department
advance this argument in its summary judgment briefing before
the District Court. See generally Def.’s Mot. Summ. J.,
reprinted in J.A. 277-306; Def’s Reply Supp. Mot. Summ. J.,
reprinted in J.A. 336-51. To the contrary, the Department
acknowledged that “Plaintiff’s Grievance is identified as one
of several matters carved out of the parties’ settlement
agreement,” and that “Plaintiff’s settlement agreement does not
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preclude her from litigating claims she raised in her
Grievance.” Def.’s Mot. Summ. J. 22, J.A. 296 (citations
omitted).
Before this court, the Department instead advances a
distinct argument: that “Weng failed to administratively
exhaust any Title VII claims” related to her removal because
she did not “include those claims in the [G]rievance.” Final Br.
of Appellee 20. According to the Department, the Grievance
“does not include any allegations that the Department
terminated Weng because of her race, national origin, or sex,
or for prior EEO conduct.” Id. Therefore, the Department
contends that Weng failed to exhaust the removal-related Title
VII claims she now advances.
Weng disputes this assertion, stressing that the Grievance
“invok[ed] both 5 U.S.C. § 2302” – which “references Title
VII” – “and the Civil Rights Act of 1964.” Appellant’s Reply
Br. 10. She also argues that the MSPB “acknowledged Weng’s
Title VII claims, despite not reaching the merits thereof.” Id.
at 11.
In its summary judgment ruling, the District Court did not
address the Department’s argument that the Grievance failed to
identify Weng’s Title VII claims. We decline to reach the issue
in the first instance and instead remand for the District Court to
do so, assuming the court determines that the Department
raised the argument.
For the reasons set forth above, we hold that the Weng I
settlement agreement does not release any removal-related
Title VII claims included in Weng’s Grievance. We therefore
reverse the District Court’s ruling to the contrary.
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III. CONCLUSION
For the foregoing reasons, we reverse the District Court’s
judgment and remand the case for further proceedings
consistent with this opinion.