William Campbell v. Pete Geren

Filing 920091130

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 court's order William E. his Campbell Amended appeals the district alleging

dismissing

Complaint

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to e-17 (2006). his action before the district Campbell raised nine claims in 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 for (Count 5); Campbell's was twenty-eight to day

suspension

sexual

harassment

imposed

retaliate

against him because he filed an Equal Employment Opportunity ("EEO") claim (Count 7); 6); and appealed a proposed removed five-day from Fort

suspension

(Count

after

Campbell

was

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 him for claims raised against Campbell filed a and

suspending appeal.

nineteen

days.

Campbell

timely

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." the settlement agreement only Next, Campbell asserts that 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. court erred Additionally, Campbell asserts that the district 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. In as

County Memorial Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009). so doing, we accept all well-pleaded 3 factual allegations

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." 544, 555, 570 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

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 on the federal basis Laber of v.

employees race,

alleging

employment sex,

discrimination or national

color,

religion,

origin."

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 See

discriminatory act to try to informally resolve the matter. 29 C.F.R. § 1614.105(a)(1) (2008).

Here, it is clear that the district court did not err in dismissing his Counts 1, 2, and 8 for Campbell's Though failure to now

exhaust

administrative

remedies.

Campbell

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. cites to two documents in support of his

Though Campbell 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 "Employee including challenge agrees appeals to to issues waive the . disposed all . 5 of by and In the agreement: rights, the

grievance . [MSPB].

appeal

addition,

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. erred in Additionally, Campbell contends that the district court 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. (Va. 2008). Ott. v. L & J Holdings, LLC, 654 S.E.2d 902, 905 In such an instance, courts do not look for meaning Id. 6 However, where a document is

beyond the contract itself.

ambiguous,

courts

may

look

to

parol Id.

evidence

in

order

to

ascertain the intent of the parties. Assuming erred by finding without that deciding the

that

the

district was

court not

settlement

agreement

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 are agreement. The relevant in a issues of the 27, MSPB 2006

hearing

specifically

delineated

November

"Memorandum on Prehearing Conference."

The memorandum clearly (1) whether

sets out the issues relevant to the MSPB appeal:

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 7 the parties entered these

remaining

claims

to

be

fully

and

finally

resolved

by

the

administrative settlement. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

8