Campbell v. Geren

Filing 20

MEMORANDUM OPINION: For the reasons stated in this Opinion, defendant's Motion to Dismiss will be granted by an Order to be issued with this Memorandum Opinion.Signed by District Judge Leonie M. Brinkema on 05/05/09. (yguy)

IN THE UNITED STATES DISTRICT COURT FOR TI
EASTERN DISTRICT OF VIRGINIA

Alexandria Division
WILLIAM E. CAMPBELL, )

__

clerk, u.s. district court
ALEXANDRIA, VIRGINIA

Plaintiff,
v.

) }
)
)

PETE GEREN, Acting Secretary, Department of the Army, Defendant.

)
) )

l:07cv675

(LMB/JFA)

) )
MEMORANDUM OPINION

Before the court is defendant's Motion to Dismiss.
reasons stated in open court, Opinion,

For the

as supplemented by this Memorandum

the motion will be granted.
I. Background

Plaintiff William E.

Campbell

("Campbell"),

an African-

American male proceeding pro se. began his employment with the
Army as a Civil Service Engineer at Fort Belvoir, Virginia in

February 1987.

In 2000,

he took a special assignment at Fort

Lewis, Washington, where he had a lead role until 2004.

in 2003,

Colonel Charles McMaster became Campbell's "de facto supervisor."
McMaster also hired Alfred Bergeron,
contractor to support the operations

a retired army colonel,
in Fort Lewis.

as a

According to the Amended Complaint,
cut Campbell's funding,

in April 2004, McMaster

told management that Campbell would not

serve on his staff as of May 29,

2004,

and promoted Bergeron to effectively replacing

serve as director of Fort Lewis operations,
Campbell.

Campbell remained at Fort Lewis in a reduced role

after securing funding from other sources.

Once McMaster learned

of this,

according to Campbell,

he attempted to "obstruct"

Campbell's continued employment.

Campbell claims that McMaster and Bergeron conspired against

him, motivated in part by his race and age.
alleges that on June 27, 2004,

Specifically,

he

Bergeron wrote McMaster a memo

claiming that Tamara Harris,

a recently hired employee,

told him

that Campbell had sexually harassed her.

Harris met with a

representative of Fort Lewis's Equal Employment Opportunity
office on July 13, 2004; according to Campbell,

(EEO)

she did so upon

urging by McMaster and Bergeron.

According to Campbell,

although

Harris never filed a formal complaint against him,
2004,

on July 27,

the Army assigned Tom Newsome to conduct an investigation allegations pursuant to Army Regulation 15-6 (the "15-

of Harris'

6 investigation"). 15-6 investigation,

In October 2004,

upon the culmination of the

the Army proposed to suspend Campbell for 5

days.

Campbell disputed the harassment charges and appealed the
Campbell claims that in November 2004, he

proposed suspension.

was told that new allegations of harassment had surfaced against

him,

and that he should "stand down" from his scheduled appeal Campbell did

while the agency conducted further investigation.
so.

In January 2005,

Campbell was told he was being reassigned

to Fort Belvoir,

where he reported in February 2005.

In

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December 2005,

Campbell

filed an EEO complaint regarding

employment discrimination in a matter at Fort Belvoir that was
unrelated to any of the issues regarding his employment at Fort

Lewis.

That matter was resolved in February 2006 through an
(ADR) process.1

alternative dispute resolution

After completing its

investigation of the sexual harassment
the Army proposed to suspend him
that, among other things, Campbell

allegations against Campbell,
for 30 days, based on findings

committed at least six distinct acts of harassment and "repeated [his] actions on many occasions with multiple women." Although

such conduct could have been cause for removal,

given Campbell's

work history, appropriate.

the Army found that a 30-day suspension was more Campbell timely filed a memorandum opposing the On August 28, 2006, Dr. Geraldo Melendez

proposed suspension.

issued a final decision reducing Campbell's suspension to 28 days, effective September 5, to appeal 2006. Melendez's decision

authorized Campbell Protection Board

the suspension to the Merit Systems

(MSPB)

within 30 days of the effective date.
that if he believed

Melendez's decision also notified Campbell

that the disciplinary action was a result of discrimination,

he

could either include the allegations of discrimination as part of
a "mixed appeal" to the MSPB, or he could bring the

Count 6, Campbell alleges that the Army retaliated against him because of the December 2005 complaint.
--3 --

xThis proceeding is only relevant to this action because,

in

discrimination claim separately to the Fort Belvoir EEO office, in which case he was required to file his complaint within 45 days. Campbell was notified that his choice on this point would

be a binding choice of forum. In September 2006, Campbell served the suspension. On

October 5,

2006,

he filed a timely mixed appeal with the MSPB in

which he included allegations that he was discriminated against
on the basis of race and age. The mixed appeal included when, according to Campbell,
"attempted to

allegations dating back to May 2004,
McMaster

"attempted to replace" him without cause,

dissuade" other project managers from working with him,

and

ultimately engineered the investigation that culminated in the
suspension.

On November 27,

2006,

Campbell and the Army conducted a

prehearing conference with an administrative judge
Northeastern Regional Office of the MSPB.

(AJ)

at the

According to

Campbell's opposition to the defendant's Motion to Dismiss,
AJ "separated" the discrimination claims from the procedural

the

ones,

and told Campbell that his discrimination claims could be

better addressed by the EEO office.

According to Campbell,

when

he asked the AJ to formally remand the discrimination matters to

the EEO office,
directly to

he was told that he could simply take the claims

the EEO.

On December 1,

2006,

Campbell and the Army entered into a

-4-

settlement agreement under which his suspension was reduced to 19 days. Campbell certified in the agreement that he had the The settlement

opportunity to consult with a representative.2

agreement included the following relevant language:
1. In order to avoid the possibility of future disputes and protracted litigation . . . the Command and Control

Directorate Communications-Electronics,
Development and Engineering Center,
Jersey . Campbell . . . . agrees . to the

Research,

Fort Monmouth,

New

following with Mr.

William

10. Employee agrees to waive all grievance and appeal rights, including appeals to the Merit Systems Protection Board {MSPB). In addition, the Employee agrees to waive all Equal Employment Opportunity (EEO) rights related to the relevant issues of MSPB Appeal
Docket No. PH-0752-07-0011-I-1.3

12. This Agreement contains the entire understanding between the Employee and the Agency with respect to this matter. The parties understand the terms of this
Agreement.
Agreement.

The parties voluntarily enter into this

Pursuant to the settlement agreement,
MSPB appeal on December 13, 2006.

the AJ dismissed Campbell's

The order of dismissal

authorized appeal rights to the full MSPB board and to the United

not a lawyer but merely a friend Campbell brought along for moral
support.

2As explained during oral argument,

that representative was

sentence, which apparently went through three iterations. The original, typewritten version stated that Campbell agreed to waive "all Equal Employment Opportunity (EEO) complaints of the Agency's action up to and including the date of this Agreement." An initial handwritten revision that was crossed out stated the Campbell was waiving all EEO rights "related to the matters raised in the instant appeal." The final handwritten version is
quoted above.
-5-

Paragraph 10 included handwritten changes to the second

States Court of Appeals

for

the Federal Circuit.

On December 11,

2006

and then again on January 12,

2007,

Campbell attempted to take his discrimination claims to the Fort Belvoir EEO office. However, Campbell was informed that any EEO

complaints at this point were either time-barred by the 45-day

statute of limitations,

or barred by the settlement agreement.

Campbell never filed a formal EEO complaint before filing this

civil action,
2005

aside from his unrelated EEO complaint in December

that was resolved through ADR.4 In January 2007, Campbell filed a timely petition for review

of the AJ's dismissal of his MSPB appeal

-

the dismissal to which
His primary

he had agreed under the settlement agreement.

assertion was that the settlement agreement resulted in the EEO improperly rejecting his discrimination claims, and that

notwithstanding the above-quoted language in Paragraph 10 of the
settlement agreement, he believed that he would be able to raise

at least some of his discrimination claims before the EEO.

Campbell stated that he had initially submitted a timely mixed
appeal to the MSPB, and only went to the EEO after the AJ

determined that the EEO office should handle any discrimination allegations. Campbell also alleged that the settlement agreement

4In his opposition, Campbell also states that after he filed this action, he filed two separate EEO complaints, which are currently pending before the EEO office, alleging that he was
"passed over multiple times for promotions." PL's Opp. 91 5.

These complaints do not relate to the allegations in this action.
-6-

was not voluntary because the AJ had pressured him into settling,

in part by emphasizing that if the action were not settled,

the

agency could file criminal charges against him as a result of the
harassment charges. Campbell also asserted that he had not been

reimbursed for his

salary for the nine days by which his

settlement had reduced the suspension.5
discrimination claims to the EEO office,
settlement agreement,
MSPB appeal back to

He sought remand of the
vacateur of the

and remand of the remainder of his original

the AJ.

On April 4, grounds

2007,

the MSPB denied Campbell's petition on the

that there was no significant new evidence and no error The MSPB review board authorized

of law in the dismissal.
Campbell

to petition for review in the Federal Circuit.6
Campbell filed a complaint with the Equal

In May 2007,

5The MSPB remanded the salary claim to the AJ,

deeming it to

be a request to enforce the settlement agreement and not to review it. The AJ dismissed this claim on July 11, 2007 after the Army put forth unrebutted evidence that it did reimburse
Campbell.

go to a federal district court, 5 U.S.C. § 7703(b)(2), not the Federal Circuit, which only has jurisdiction to hear petitions for review of MSPB appeals that do not involve allegations of discrimination, id. § 7703(b)(1). However, Campbell was apparently directed to the Federal Circuit because the MSPB did not adjudicate the merits of his discrimination claim; rather, the MSPB merely dismissed his appeal because the matter had been settled. See Ballentine v. Merit Systems Protection Bd.. 738 F.2d 1244, 1247 (Fed. Cir. 1984) (holding that the Federal

6A petition for review of a mixed MSPB appeal normally would

Circuit has jurisdiction over MSPB decisions that do not decide
discrimination issues on the merits).
-7-

Employment Opportunity Commission

(EEOC),

claiming that the MSPB

should have considered the mixed case appeal as a whole or
remanded the discrimination claim to the EEO. In June 2007, the

EEOC denied review of the MSPB claim and issued a right-to-sue
letter. The EEOC denial stated that because Campbell had settled the EEOC lacked any jurisdiction over

his dispute with the Army,
his claims.

II. On July 13, 2007,

The Complaint at Issue. Campbell filed his initial pro se

Complaint.

After Campbell

filed an application to proceed in

forma pauperis.

the Court issued an order characterizing the case

as an appeal of a decision by the MSPB and transferred the case

to the Federal Circuit.

In a footnote in that opinion,

the Court

noted that it could not exercise jurisdiction over the action despite the presence of Title VII claims because Campbell had not pled that he had exhausted administrative remedies or attached a

right-to-sue letter from the EEOC.

On October 27,

2008,

the
and

Federal Circuit ordered the action remanded to this court, the remand was effected on January 15, 2009.

On January 16,

2009,

Campbell filed an Amended Complaint alleging nine counts,

including two due process claims and seven claims under Title VII
of the Civil Rights Act of 1964,
("Title VII"):

42 U.S.C.

§ 2000e et sea.

Count 1

(Title VII)

alleges hostile work environment

-8-

harassment by McMaster at Fort Lewis
through February 2005.

from November 2003

Count 2

(Title VII)

alleges discriminatory transfer on
through February 2005, when

account of race

from May 2004

McMaster,

motivated in part by race,

allegedly "undertook

illegal measures to remove Campbell from his employment at
Ft. Lewis." Am. Compl. 5[ 44.

Count 3

(Title VII)

alleges discriminatory investigation on
whose 15-6

account of race by McMaster and others,

investigation of Campbell,

which began in June 2004,

was

allegedly motivated in part by race.
Count 4 (Due Process) alleges that when Melendez issued his

final order of suspension on August 28,

2006,

he ignored

Campbell's right to review and appeal of all evidence used in deciding an adverse administrative action.
Count 5 (Title VII) alleges discriminatory investigation on
who, according to the

account of race by Tom Newsome,

Complaint,

"eschewed required procedures,

generated reports

that contained erroneously recorded testimony,
on reports,
Am. Compl. 31

altered dates

and recommended that Campbell be terminated."
55.

Count 6

(Title VII)

alleges that in March 2006,

less than a

month after Campbell participated in ADR regarding his
unrelated Fort Belvoir EEO claim, the Army proposed to

-9-

suspend Campbell for 30 days in retaliation for filing the
EEO complaint.

Count 7

(Title VII)

alleges that because Campbell did not 5-day suspension and planned an appeal,

accept the initial

the Army retaliated against him by soliciting additional support, fabricating new evidence, and proposing to suspend

him for 30 days and ultimately for 28.

Count 8

(Title VII)

alleges

that before and after his

departure from Fort Lewis in early 2005,

Campbell inquired

about similarly situated employment and McMaster acted to

prevent him from getting such employment,
by racial animus. Count 9 (Due rocess) alleges

motivated in part

that because Campbell refused
"let it be over with," the

to accept the adverse action and

Army withheld and failed to disclose critical evidence that would have "impugned nearly all of the allegations" against
him. Am. Compl. f 72.

The defendant has filed a filed a motion,

styled as a motion

to dismiss or alternatively for summary judgment, grounds,

on four First,

only two of which are necessary to address here.

the defendant argues that any discrimination claim that is not covered by the settlement agreement is barred for failure to exhaust administrative remedies. Second, the defendant asserts
from asserting any

that the settlement agreement bars Campbell

-10-

claims related to his

suspension.7
Standard of Review.

III.

As to its
appears

two substantive arguments,

defendant's motion

to be a motion to dismiss

for failure to state a claim

under Rule 12 (b)(6).

In reviewing a Rule 12(b)(6)

motion to

dismiss,

a court assumes

the truth of all

facts alleged in the

complaint and the existence of any fact that can be proved, consistent with the complaint's allegations, and construes facts

in the light most favorable to the plaintiff.
Markets,
180

See Eastern Shore
213 F.3d 175,

Inc.

v.

J.D.

Associates Ltd.
However,

Partnership,

(4th Cir.

2000).

"a plaintiff's obligation to

provide the grounds of his entitle[ment]
than labels and conclusions,

to relief requires more

and a formulaic recitation of the

elements of a cause of action will not do."
v. Twomblv. 550 U.S. 544, 555 (2007)

Bell Atlantic Corp.
quotation marks

(internal

and citations omitted).

Although the defendant's motion will be treated as a
12(b)(6) motion to dismiss, certain documents in addition to the

Amended Complaint have been considered in evaluating the motion.

matter jurisdiction to review the settlement agreement for any allegations of breach, and lacks personal jurisdiction over the
defendant because Campbell has not properly served the United States Attorney, the Attorney General, or the Secretary of the
Because the two grounds discussed in this opinion are

7The defendant also argues that the Court lacks subject

Army.

other grounds will not be discussed.
-11-

sufficient to grant the defendant's motion to dismiss,

these

A court may consider material outside the pleadings without

converting a Rule 12(b)(6)

motion to one for summary judgment if

the material is
Complaint"

*integral

to and explicitly relied on in the

and if the plaintiff does not challenge its
Phillips v. LCI Int'l, Inc.. 190 F.3d 609, 618

authenticity.

(4th Cir.
F.R.D.

1999);
282

see also Gasner v.
(E.D. Va. 1995)

County of Dinwiddie.

162

280,

(holding that official public they are of the settlement

records may also be considered as long as unquestioned authenticity). Specifically,

agreement between the parties,
events of

a memorandum that summarized the
2006

the prehearing conference on November 27,

("prehearing memorandum"),

and Campbell's

initial appeal

filed

with the MSPB have been considered because they are explicitly referenced in the Amended Complaint
Compl. M 29-30;

(settlement agreement,
id. 3 28;

Am.

prehearing conference,

MSPB appeal,

id.

1 27},

and Campbell has not questioned the authenticity of

any of

the documents.

IV.

Discussion.

A.

Failure to Exhaust Administrative Remedies.
which alleges hostile work

The claims in Count 1,

environment harassment at Fort Lewis from November 2003
February 2005, Count 2,

through

which alleges discriminatory transfer on

account of race in May 2004 through February 2005, which alleges that in early 2005,

and Count 8,

McMaster prevented Campbell

-12-

from getting similarly situated employment,

were not exhausted

administratively and,

therefore,

will be dismissed. a Harvev,

Before raising a Title VII claim in federal court, plaintiff must exhaust administrative remedies.
438 F.3d 404, 415-17 {4th Cir. 2006)

Laber v.

(discussing the

administrative remedy process

for federal employees).

A federal
"within 45

employee does so by first contacting an EEO counselor

days of the date of

the matter alleged to be discriminatory or,

in the case of personnel action,
date of the action." 29 C.F.R. §

within 45 days of the effective
1614.105(a)(1).8 If, after

meeting with a counselor, the complaint process,

the employee wishes

to continue with

he or she must

file a formal complaint,

which the agency must investigate.
office concludes
agency decision.

Id.

§ 1614.106.

If the EEO

there was no discrimination,
Id. § 1614.110.

it issues a final

The employee may then appeal

that decision to the EEOC,

id.

§ 1614.401(a),
id. §

or may opt to file

a civil action within 90 days,

1614.407(a).

Alternatively,

an employee who believes that he has been

subjected to an adverse personnel decision that was based in part

.. when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that

8An agency or the EEOC must "extend the 45-day time limit

.

despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within
the time limits, or for other reasons considered sufficient by the agency or the [EEOC]." 29 C.F.R. § 1614.105(a)(2).
-13-

the discriminatory matter or personnel action occurred,

that

on the employee's race may include allegations of discrimination
as part of a "mixed case appeal" to the MSPB. Id. §

1614.302(a)(2).

A choice to pursue a mixed case appeal,

rather

than filing a separate claim with an EEO office, election of remedies. Id. 1614.302(b).

is a binding

A final decision by the

MSPB in a mixed case appeal may be reviewed by the EEOC,

or the
5

employee may file a civil action in a federal district court.
C.F.R. § 1201.157.

Here,

with regard to discrimination allegations relating to

his suspension,
MSPB. However,

Campbell timely filed a mixed case appeal to the
nowhere in his Complaint or in his opposition to

the Motion to Dismiss does Campbell allege,

nor can he,

that he

timely pursued any administrative remedies regarding the

allegations in Counts 1,

2,

and 8 of the Amended Complaint,
By his own admission,

none

of which relate to his suspension.
Campbell

first raised the issue of past discriminatory conduct as
of his suspension on October 5, 2006.

part of the MSPB appeal

This was well after any claims relevant to counts 1,

2,

and 8,

all of which concerned conduct that occurred between 2003 and
2005, were already time-barred. After the settlement of his case

with the MSPB,

he attempted to bring these claims before the EEO,

which "informed" him that these claims were time-barred because
the events underlying the claims occurred well before the 45 days preceding the date he approached the EEO. Moreover, any claim

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Campbell would have

filed concerning conduct between 2003

and

2005 would have been long-since time-barred by October 2006.9 For these reasons,
failure to exhaust.
B. Settlement Agreement.

Counts

1,

2,

and 8 will be dismissed for

The remainder of Campbell's claims will be dismissed because

he agreed in the settlement agreement not to pursue any claims
related to his suspension.
Campbell "agree[d]

Specifically,

under Paragraph 10,
rights,

to waive all grievance and appeal

including appeals to the Merit Systems Protection Board
. . [and] all Equal Employment Opportunity (EEO)

(MSPB)

.

rights related PH-0752-07-0011-

to the relevant issues of MSPB Appeal Docket No.
1-1."

Campbell argues

that

the waiver does not bar his

discrimination claims because "[t]he wording in paragraph 10 of
the settlement agreement was specifically changed to ensure that

plaintiff retained all rights to pursue his unlawful Title VII discrimination claims." Pl.'s Opp. f 3. Campbell relies on the when the AJ allegedly

pre-hearing conference in November 2006,

severed all discrimination claims from Campbell's MSPB appeal.

he never filed an EEO complaint.

possible existence of past racial discriminatory after his suspension. However, even if the statute of limitations had been tolled, he has failed to exhaust administrative remedies because

the 45-day statute of limitations for his discrimination claims might have been tolled because he only became aware of the

9At oral argument, Campbell suggested that he believed that

-15-

Given that severance,

Campbell claims
issues of

that the phrase "rights
specifically

related to the relevant

[his MSPB appeal]"

excluded any claims related to discrimination.
appears to rely on the handwritten changes made

Campbell also
to the settlement

agreement,
twice.
of

which show that the waiver in Paragraph 10 was changed

The original text would have waived "all EEO complaints

the Agency's action up to and including the date of this

agreement."

It was

then revised to waive

"all EEO rights related
It was then

to the matters raised in the instant appeal."

revised again to limit the waiver to
the relevant issues of [the appeal]."

"all EEO rights related to
Campbell asserts that the

final text preserved his ability to bring claims
discrimination related to his suspension.

of

Even if Campbell's argument were accepted,
Counts 4 and 9 of the Amended Complaint,

it would not save

which explicitly allege

only Due Process violations and not discrimination claims. such, Counts 4 and 9

As

are clearly covered by the broad waiver of in Paragraph 10, and are

"all grievance and appeal rights"

unaffected by the sentence on EEO rights.

The remainder of the counts,

which do allege claims of

discrimination in connection with Campbell's suspension,

will

also be dismissed because they too are barred by the settlement
agreement. When a contract contains an integration clause and is

clear on its

face,

that contract should be construed without

-16-

resorting to parol evidence.

Moreover,

parol evidence cannot be
In re BNX Systems
2009); see

used "to create ambiguity where none exists."
Corp., No. 07-1820, 2009 WL 275105, 292 at *2 46

(4th Cir. (Va. 1982)

also Cohan v.

Thurston,

S.E.2d 45,

(holding

that

"[p]arol evidence cannot be used to first create an
Here, paragraph 12 of the

ambiguity and then remove it"). settlement agreement,

which states that the agreement "contains

the entire understanding between the Employee and the Agency with
respect to this matter," is clearly an integration clause. As

such,

if the contract is unambiguous,
evidence.

it must be interpreted

without the use of parol

Despite Campbell's

argument to the contrary,

Paragraph 10 is

not ambiguous.

Paragraph 10 clearly waives any EEO claims

concerning the issues raised in Campbell's appeal of his
suspension. Even if, as Campbell alleges, the parties agreed

that the MSPB would not adjudicate Campbell's discrimination

claims,10 once the parties settled the dispute,

the settlement

10r

held by the parties on November 27, 2006, states that the parties agreed that the five "issues to be discussed at the hearing" would be: 1) "whether the charges can be sustained," 2) "whether the action promotes the efficiency of the service," 3) "whether the penalty was reasonable," 4) "whether the Agency 15-6 investigation was improper and resulted in harmful procedural
error," and 5) "whether the Agency took the . . . suspension in reprisal for [Campbell's] appealing a proposed 5-day . .

°The prehearing memorandum, which summarizes the conference

suspension and for participating in [ADR] involving hiring practices." The Court does not find that this memorandum
supports Campbell's allegation that

the hearing would not have

addressed his discrimination claims.
-17-

To the contrary,

the third

barred them from any further litigation concerning Campbell's

suspension.

As such,

the remainder of Campbell's

claims,

all of

which concern the suspension,
V.

will be dismissed.
Conclusion.

For the above reasons,

defendant's Motion to Dismiss will be

granted by an Order to be issued with this Memorandum Opinion.

Entered this

O.

day of May,

2009.

Alexandria,

Virginia

United States District Judge

LeonieM.BrinkeW

"issue[] to be discussed" indicates that the hearing would address whether the investigation of Campbell was "improper."

the investigation was motivated by discrimination,

it could not

If

have been proper.
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