Bullock v. United States ( 2019 )

In the United States Court of Federal Claims
No. 17-445C
(Filed: September 25, 2019)
)
ELLEN P. BULLOCK, )
) Cross-Motions for Summary
Plaintiff, ) Judgment; RCFC 56; Breach of
) Contract; Oral EEO Settlement
v. ) Agreement; Regulations Requiring
) Written Settlement Agreements
THE UNITED STATES, )
)
Defendant. )
)
Michael M. Monsour, Wyomissing, PA, for plaintiff.
Steven C. Hough, Civil Division, United States Department of Justice, Washington, D.C.,
with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, and Steven J. Gillingham, Assistant Director, for defendant.
OPINION
FIRESTONE, Senior Judge.
Pending before the court in this breach of contract action are the parties’ cross-
motions for summary judgment regarding an oral settlement agreement that the plaintiff
Ellen P. Bullock alleges she entered into with the United States Department of the Army
to resolve her Equal Employment Opportunity (“EEO”) complaint. Ms. Bullock argues
that this oral agreement was breached when the Army failed to pay her $70,000, a figure
discussed during negotiations before an Equal Employment Opportunity Commission
(“EEOC”) administrative judge during a 2015 mediation. Defendant the United States
(the “government”) cross-moves for summary judgment, arguing that no oral settlement
agreement exists because, among other reasons, any settlement agreement resolving the
EEO complaint was required to be in writing pursuant to Army and EEOC regulations.
For the reasons set forth in more detail below, the court concludes that the
government is entitled to summary judgment on Ms. Bullock’s breach of contract claim.
The applicable regulations require that any settlement agreement before the EEOC had to
have been in writing and signed by the parties, but the parties did not execute any written
settlement agreement. Moreover, the circumstances within which the Federal Circuit has
recognized oral settlement agreements in similar contexts are not present here. The court
therefore GRANTS the government’s cross-motion for summary judgment and DENIES
the plaintiff’s motion for summary judgment.
I. BACKGROUND
The following relevant facts are taken from the parties’ pleadings and are
undisputed unless otherwise noted. On August 12, 2013, Ms. Bullock filed a claim under
Title VII of the Civil Rights Act with the United States Department of the Army, alleging
sex discrimination and retaliation. Def.’s Cross-Mot. at 2, ECF No. 76; Pl.’s Mot. at 5,
ECF No. 52. Ms. Bullock requested a hearing before the EEOC. Def.’s Cross-Mot. at 2.
On June 10, 2015, the EEOC assigned Administrative Judge Anita Richardson to serve as
mediation judge. Def.’s Cross-Mot. at 2; Pl.’s Mot. at 6. Attorney Claudia Lynch
represented the Army in the EEOC proceedings. Def.’s Cross-Mot. at 4.
According to Ms. Bullock, during a July 29, 2015 mediation before Administrative
Judge Richardson, the parties reached an agreement as to her non-monetary demands.
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Pl.’s Mot. at 6-8. Following that mediation, further negotiations ensued regarding Ms.
Bullock’s demand for back pay, compensatory damages, and attorney’s fees. Pl.’s Mot.
at 6, 8-9. On August 27, 2015, Administrative Judge Richardson sent an email in her role
as mediator to Ms. Bullock’s attorney stating that “[t]he agency will agree to pay
$70,000.” Pl.’s Mot., ECF No. 52-3 at 41 (Tab 12 to Elliot Aff.). Ms. Bullock’s attorney
then replied, “This is settlemt [sic]?,” to which Administrative Judge Richardson
responded, “yes for the parts that were still in dispute,” adding, “I cannot remember the
specific numbers that the agency agreed [on].” Id. at 43 (Tab 13 to Elliot Aff.).
On August 28, 2015, Administrative Judge Richardson then sent an email to the
parties, requesting the “agency’s understanding of the provisions of the settlement
agreement” and stating “[o]nce we confirm that the parties are in complete agreement, the
agency can begin work on the written settlement agreement.” Pl.’s Mot., ECF No. 52-1
at 81 (Ex. 5 to Richardson Dep.). The parties did not, however, execute a written
settlement agreement to resolve Ms. Bullock’s EEO complaint.
On September 21, 2015, Administrative Judge Richardson notified the parties that
the Army had “rescinded its settlement offer from August 27th” and that she was
notifying the EEOC that the parties had reached an impasse. Pls.’ Mot., ECF No. 52-1 at
82 (Ex. 6 to Richardson Dep.). Ms. Bullock then continued to pursue her EEO claims
before EEOC Supervisory Administrative Judge Regina N. Stephens for over a year, into
2017. Def.’s Cross-Mot. at 3-4. Administrative Judge Stevens granted summary
judgment in favor of the Army on January 11, 2017 but rescinded her decision on January
19, 2017 because Ms. Bullock had not received notice of Judge Stephens’ intent to issue
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a summary judgment ruling. Id. On February 2, 2017, Judge Stephens issued notice of
her intent to issue a decision without a hearing and set a February 28, 2017 deadline for
the parties to submit written responses. Id. On February 28, 2017, Ms. Bullock
requested a stay of the EEOC proceedings to bring a breach of contract action in this
court. Id. at 4.
Ms. Bullock filed her complaint in this court on March 28, 2017. On January 17,
2018, the court dismissed Ms. Bullock’s complaint for lack of subject matter jurisdiction
because Ms. Lynch “lacked the express or implied actual authority to bind the Army . . .
and thus there is no settlement agreement to enforce.” Bullock v. United States, 136 Fed.
Cl. 29, 33 (2018). However, on May 7, 2018, the court reconsidered its dismissal
decision, reasoning that “Ms. Lynch may have had actual settlement authority when she
represented before [Administrative Judge Richardson] that the government would pay the
plaintiff $70,000.00 and thus this court has jurisdiction to hear the case.” Order, ECF No.
35 at 3. The court ordered summary judgment briefing and permitted Ms. Bullock to take
limited discovery. See Order, ECF No. 39 at 4; Order, ECF No. 46 at 2.
This matter is now before the court on the parties’ cross-motions for summary
judgment. In her motion for summary judgment, Ms. Bullock argues that there is no
issue of material fact that the parties completed an enforceable oral contract to settle Ms.
Bullock’s EEO claims on August 27, 2015, and that Ms. Lynch had the authority to enter
into such an agreement. Pl.’s Mot. at 15-20. Ms. Bullock seeks $70,000 plus interest and
reasonable costs. Id. at 20-21.
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In its cross-motion and response, the government contends that there is no genuine
dispute of material fact that the elements of contract formation – mutuality of intent to
contract, unambiguous offer and acceptance, consideration, and authority to bind the
government – are not satisfied. See Def.’s Cross-Mot. at 7-29. As most relevant here,
the government argues that EEOC regulations and the Army’s EEO regulations require
that settlement agreements must be in writing and signed by both parties, and that the
parties’ failure to execute a written agreement evidences that they did not have a mutual
intent to contract. Id. at 9-10, 29-30. The government also argues that there is no
genuine dispute that Ms. Bullock has failed to exhaust her administrative remedies and
has materially breached the purported settlement agreement and therefore cannot prevail
on her breach of contract claim. Id. at 30-34.
In her response and reply, Ms. Bullock reiterates that Ms. Lynch had authority to
enter into the settlement agreement. Pl.’s Resp. & Reply at 13-14, ECF No. 77. She
further contends that the court should disregard the declarations of Administrative Judge
Richardson and John Shipley, Ms. Lynch’s supervisor, attached to the government’s
cross-motion, because the declarations contradict those witnesses’ deposition testimony. 1
Id. at 14-22.
The government replies, inter alia, that Ms. Bullock failed to present any evidence
on or respond to the argument that the Army and EEOC regulations require a written
1
Ms. Bullock also suggests that government counsel’s use of these two declarations “is worthy
of sanction and/or admonition.” Pl.’s Reply at 22-23. To the extent Ms. Bullock is requesting
sanctions, that request is denied. The request is procedurally improper, see RCFC 11(c)(2), and
the court does not rely on the declarations in this opinion.
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settlement agreement. Def.’s Reply at 25, ECF No. 80. The government further argues
that Administrative Judge Richardson’s and Mr. Shipley’s declarations are proper. Id. at
7-17, 28 n.19.
Briefing was completed on July 12, 2019. The parties have not requested oral
argument, and the court has determined that no oral argument is necessary.
II. STANDARD OF REVIEW
Summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC
56(a). A genuine dispute is one that could permit a reasonable jury to enter a verdict in
the non-moving party’s favor, and a material fact is one that could affect the outcome of
the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive
summary judgment, the party opposing the motion “must present evidence creating a
genuine issue of material fact.” M. Maropakis Carpentry, Inc. v. United States, 609 F.3d
1323, 1327 (Fed. Cir. 2010). In evaluating motions for summary judgment, courts must
draw any inferences from the underlying facts in the light most favorable to the non-
moving party and may not engage in credibility determinations or weigh the evidence.
Anderson, 477 U.S. at 249, 255. If no rational trier of fact could find for the non-moving
party, a genuine issue of material fact does not exist and the motion for summary
judgment may be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). With respect to cross-motions for summary judgment, courts must
determine independently the appropriateness of summary disposition in a particular case,
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evaluating each motion on its own merits. Marriott Int’l Resorts, L.P. v. United States,
586 F.3d 962, 968-69 (Fed. Cir. 2009).
III. DISCUSSION
This breach of contract case centers on whether the parties entered into an oral
settlement agreement during the parties’ 2015 mediation before Administrative Judge
Richardson. See Compl. ¶ 36; Pl.’s Mot. at 1; Pl.’s Resp. & Reply at 4. Although it is
“axiomatic that a settlement agreement is a contract,” Greco v. Dep’t of the Army, 852
F.2d 558, 560 (Fed. Cir. 1988), there are four requirements that must be satisfied to form
a contract binding on the government: “(1) mutuality of intent to contract; (2) lack of
ambiguity in offer and acceptance; (3) consideration; and (4) a government representative
having actual authority to bind the United States in contract,” Am. Bankers Ass’n v.
United States, 932 F.3d 1375, 1380-81 (Fed. Cir. 2019) (quoting Anderson v. United
States, 344 F.3d 1343, 1353 (Fed. Cir. 2003)). In certain contexts, oral settlement
agreements made during administrative proceedings, such as the purported agreement in
this case, can be binding on the government. See Tiburzi v. Dep’t of Justice, 269 F.3d
1346, 1351 (Fed. Cir. 2001). An oral agreement is not binding, however, where the
parties “did not intend to be bound until a written contract was signed,” Sargent v. Dep’t
of Health and Human Servs., 229 F.3d 1088, 1090 (Fed. Cir. 2000), or where a statute
requires a written memorialization of an oral agreement, Tiburzi, 269 F.3d at 1353(noting that a written memorialization of an oral agreement “is not necessary in the
absence of a statute requiring it” (quoting 1 Samuel Williston, Williston on Contracts §
4:8 (4th ed. 1990)).
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The applicable Army and EEOC regulations impose additional requirements that
are controlling in this case. The EEOC regulation requires that “[a]ny settlement
reached” during administrative proceedings “shall be in writing and signed by both
parties and shall identify the claims resolved.” 29 C.F.R. § 1614.603 (emphasis added);
see Def.’s Cross-Mot. at 9-10, 29-30. The Army’s EEO regulations similarly provide
that “the terms for settlement and time frames for completion will be set forth in a”
written settlement agreement, Army Reg. 690-600 ¶ 5-13.g, and that “[a]ny settlement
agreement that includes payment of compensatory damages” – such as the alleged oral
agreement here – “must be in writing,” id. ¶ 7-11.g; see Def.’s Cross-Mot. at 9-10, 29-30.
Applying these standards, the court agrees with the government that the parties did
not enter into a binding oral settlement agreement in this case and thus there cannot be a
breach of contract. As noted above, the Federal Circuit has observed that the written
memorialization of an oral agreement is necessary for the agreement to become effective
where a statute requires it. See Tiburzi, 269 F.3d at 1353. The Federal Circuit in similar
contexts has applied this principle to regulations, determining that no oral agreement
exists where regulations require that an agreement be in writing and signed by both
parties. See Mil-Spec Contractors, Inc. v. United States, 835 F.2d 865, 867-68 (Fed. Cir.
1987) (no oral settlement agreement regarding contract modification where Federal
Acquisition Regulations require modification to be in writing and signed by both parties);
SCM Corp. v. United States, 595 F.2d 595, 598 (Ct. Cl. 1979) (no oral settlement
agreement regarding contract modification where Armed Services Procurement
Regulations require modification to be in writing and signed by both parties). In
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addition, the Circuit has held that “oral assurances” made during contract negotiations do
not produce a binding implied-in-fact contract “until all the steps have been taken that the
agency procedure requires.” New Am. Shipbuilders, Inc. v. United States, 871 F.2d 1077,
1080 (Fed. Cir. 1989).
The applicable EEOC and Army regulations here require that any settlement
agreement be in writing. It is undisputed that Ms. Bullock and the Army did not sign a
written settlement agreement. Ms. Bullock argues only that the parties formed an
enforceable oral agreement. See, e.g., Compl. ¶ 36; Pl.’s Mot. at 1; Pl.’s Resp. & Reply
at 4. Moreover, the materials in the record confirm that there is no written settlement
agreement between the Army and Ms. Bullock. See, e.g., Def.’s Cross-Mot., ECF No.
76-3, Lynch Decl. ¶ 32 (Ms. Lynch, the Army’s representative, “did not sign any
settlement agreement to resolve Ms. Bullock’s EEO complaint.”); id., Ex. E at 1 (email
from Administrative Judge Stevens stating that “[t]here is no signed agreement, there is
no email accepting the terms (from the parties)”). Because the parties did not execute a
written settlement agreement, as required by the Army and EEOC regulations, any oral
agreement reached between the parties does not constitute a binding contract, and the
government is entitled to summary judgment.
Ms. Bullock fails in her summary judgment briefs to address the argument that the
EEOC and Army regulations preclude an oral settlement agreement in this case.
Moreover, the cases in which the Federal Circuit has recognized the validity of oral
settlement agreements, even though they are not later reduced to writing, are
distinguishable from this case. For example, in Tiburzi v. Department of Justice, the
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Federal Circuit upheld an oral agreement made before an administrative judge to settle a
Merit Systems Protection Board appeal, even though no written agreement was later
signed by the parties. 269 F.3d at 1349-51. The signed writing requirements of the
EEOC and Army regulations, however, were not applicable in Tiburzi. In addition, the
settlement negotiations in Tiburzi occurred before the administrative judge actually
adjudicating Mr. Tiburzi’s case, Mr. Tiburzi’s counsel “read the terms of the [settlement]
agreement into the record” before the administrative judge, and the parties expressly
“agreed that both the oral agreement and any subsequent written memorialization would
be enforceable.” Id. at 1349-50, 1353 (internal quotation marks omitted). Other Federal
Circuit cases upholding oral settlement agreements also involve settlement agreements
read into the record before the adjudicating judge. See, e.g., Brown v. Dep’t of Army, 157
F. App’x 295, 297-98 (Fed. Cir. 2005); Gray v. Dep’t of Defense, 91 F. App’x 137, 140
(Fed. Cir. 2004). In this case, in contrast, the parties’ negotiations were before an
administrative judge in her role as mediator, it is undisputed that no settlement agreement
was read into the record, and there is no evidence that the parties expressly agreed that
any oral agreement would be enforceable.
In sum, the court concludes that there is no genuine dispute of material fact that
the Army and Ms. Bullock did not enter into a written agreement. Because a written
agreement is required by EEOC and Army regulations, no binding oral agreement existed
between the parties, and the government is entitled to summary judgment.
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IV. CONCLUSION
For the reasons stated above, Ms. Bullock’s motion for summary judgment is
DENIED. The government’s cross-motion for summary judgment is GRANTED. The
judgment entered on January 17, 2018 (ECF No. 22) is VACATED. The clerk is
directed to enter judgment accordingly.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
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