The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
REPORT AND RECOMMENDATION
The case is before me for a Report and Recommendation on Roxann J. Franklin-Mason's ("plaintiff" or "Franklin-Mason") Motion to Enforce Settlement Agreement and for Sanctions ("Plains. Mot.").
On October 31, 1996, plaintiff, an African American female, brought a Title VII action against her former employer, the United States Navy, in the United States District Court for the District of Columbia. Plaintiff claimed that defendant discriminated against her on the basis of her race and gender by not giving her a position for which she believed she was qualified and for which she applied.
On November 4, 1997, this case was referred to me for a Report and Recommendation. On April 9, 1998, the case was re-referred to me for settlement purposes. After meeting with the parties on several occasions, a settlement agreement was reached and on April 7, 1999, the Stipulation of Settlement ("Stip.") was docketed.*fn1
On December 10, 1999, following entry of the stipulation, plaintiff filed an emergency motion to enforce the terms of the settlement. The court accepted her filing, and on May 12, 2000, Judge Sullivan denied her motion without prejudice and ordered the parties to meet in person to attempt to resolve any remaining problems regarding the implementation of the settlement agreement. Plaintiff moved to enforce the settlement agreement twice more, and Judge Sullivan denied these motions. On November 9, 2001, plaintiff moved, for a fourth time, to enforce the terms of the settlement agreement. On July 8, 2002, Judge Sullivan recused himself and the case was reassigned to Judge Roberts, who subsequently referred plaintiff's fourth motion to me for a Report and Recommendation.
After initially reviewing plaintiff's motion and the terms of the settlement agreement, I concluded that there remained genuine issues of material fact. I therefore held a hearing on the matter and was awaiting the parties' stipulations as to proposed findings of fact and conclusions of law when it occurred to me that this court may lack jurisdiction over the matter. Further complicating the issue is the fact that plaintiff has engaged a total of four attorneys, at various points in the case, and that plaintiff has also filed a new lawsuit, in which she claims that the Navy's actions since the case was settled constitute retaliation for the filing of the original suit. I will first address the jurisdictional issues. I will then proceed to my findings of fact and conclusions of law as to plaintiff's two remaining claims. By separate Report and Recommendation, I will address plaintiff's retaliation claim.
A claim for breach of a Title VII settlement agreement is a contract claim within the Tucker Act*fn2 and belongs in the Court of Federal Claims unless this court, pursuant to the parties' agreement, retains jurisdiction to enforce the settlement agreement that resolved the Title VII action. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381-82 (1994); Rochon v. Gonzales, 438 F.3d 1211, - (D.C. Cir.) (citing Hansson v. Norton, 411 F.3d 231, 232 (D.C. Cir. 2005) and Brown v. United States, 389 F.3d 1296, 1297 (D.C. Cir. 2004)).
In this case, a dismissal order was entered by Judge Sullivan on February 26, 1999. Less than two months later, the parties filed their joint stipulation of settlement, the same stipulation that was approved by Judge Sullivan and docketed on April 7, 1999. According to paragraph 21 of the settlement agreement, "[e]xecution of this stipulation shall constitute a dismissal of this action with prejudice, effective upon approval by the Court, pursuant to Federal Rules of Civil Procedure 41(a)(i)(ii)." Stip. ¶ 21. Thus, although an initial order of dismissal was entered by Judge Sullivan on February 26, 1999, a second order of dismissal was entered on April 7, 1999 and it is the language contained within this second order of dismissal that is key to determining whether or not this court may properly assert jurisdiction over the current conflict.
Paragraph 21 of the settlement agreement deems the stipulation itself an order of dismissal. Thus, compliance with the settlement agreement is necessarily a term of that order. Second, the settlement agreement/dismissal order includes an express stipulation retaining this court's jurisdiction. According to paragraph 22 of the parties' settlement agreement, "[s]hould any party breach terms of this Stipulation of Settlement, the other party, shall have the right to seek enforcement of the Stipulation with the Court including, but not limited to, monetary damages." Stip. ¶ 22. This is an express stipulation of retention of jurisdiction "with the Court." Finally, and as noted above, the settlement agreement is not just embodied in the dismissal order, it is the dismissal order. The court cannot imagine what more the parties could have done to ensure the court's retention of jurisdiction over this matter or to convey their express intent that the court do so.
II. Plaintiff's Fourth Motion to Enforce Settlement Agreement and for Sanctions
On February 2, 3, and 4, and on April 8, 2005, the court held an evidentiary hearing on plaintiff's fourth motion to enforce the settlement agreement. At the conclusion of the hearing, the court directed the parties to address the propriety of the testimony given by Abbey Hairston ("Hairston") and to file proposed findings of fact and conclusions of law.
A. The Propriety of Hairston's and Smith's Testimony
On the fourth day of the hearing, plaintiff called Hairston as a rebuttal witness. Hairston, who was plaintiff's attorney at the time of the mediation proceedings in this case, testified about a meeting that she, along with plaintiff and plaintiff's husband, attended with Military Sealift Command ("MSC") personnel. In addition, Hairston testified about events that occurred both prior to and after the settlement agreement was signed. Gregory Smith ("Smith"), then-counsel to MSC,*fn3 also provided testimony.
At the hearing, the court raised sua sponte the issue of whether Hairston's testimony violated the Federal Rules of Evidence. Tr. 4/8/05 at 5. The court allowed Hairston to testify but sealed the record pending the court's resolution of whether or not the testimony would be admitted. Although not argued at trial, the court will now consider both parties' views as to the propriety of Hairston's and Smith's testimony.
The confidentiality of settlement discussions that take place before a judge is governed first and foremost by the dictates of that individual judge. Prior to the commencement of all settlement discussions that take place before me, I advise counsel and the parties that all statements made during the negotiation process are deemed confidential. In addition, I also issue a written order to that effect. Generally speaking, I have seldom found a reason sufficiently compelling to warrant a breach of that confidentiality,*fn4 although, in some rare instances, such a breach may be appropriate. Before considering such instances, however, we must first review the parameters of Rule 408 of the Federal Rules of Evidence, which imposes its own set of restrictions on the use of evidence obtained during settlement discussions.*fn5
In drafting Rule 408, the Advisory Committee "recognized that it was in the public interest, and in the interest of individual litigants, to encourage consensual resolution of disputes." Wayne D. Brazil, Protecting the Confidentiality of Settlement Negotiations, 39 HASTINGS L.J. 955, 958 (1988). Thus, the rule provides that "[e]vidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount." Fed. R. Evid. 408.
The two individuals whose testimony is at issue played a key role in the negotiation of the settlement agreement and their testimony as to what took place after the signing of the agreement clearly falls within that category of information protected under Rule 408. Both parties, however, have agreed that this testimony should be permitted. Generally, a party's disclosing what occurred at settlement discussions over the objection of the other would surely deter others from being frank during those discussions. When, however, they both agree to the disclosure, there is no such inhibition; parties in future settlement discussions will know that their objection will, in itself, suffice to prevent the disclosure unless a exception based on some other principle applies. I will therefore permit the testimony to be considered although it might fall within the prohibition of Rule 408.
B. Detailed Findings of Fact
1. On January 27, 1999, while negotiations between the parties were still on-going, Smith sent Assistant United States Attorney, Alex Shoaibi ("Shoaibi"), a memorandum describing the position MSC was willing to offer plaintiff as part of the settlement agreement. PEX 2 at 2-3. On January 29, 1999, Shoaibi forwarded the memorandum to Hairston. PEX 2 at 1; DEX 3 at 1. In his cover letter to Hairston, Shoaibi specifically noted that all of the details regarding plaintiff's position had not yet been finalized. Id.
2. On February 5, 1999, Hairston replied to Shoaibi's letter. PEX 3. Hairston thanked him for the proposed settlement offer and outlined plaintiff's remaining concerns, including concerns relating to the proposed chain of command. Id. at 1-2. Hairston also suggested that a meeting be arranged between plaintiff and the persons she would be reporting to should she accept the settlement offer. Id.
3. On February 23, 1999, Hairston sent Shoaibi a letter stating that she was concerned about the delay in scheduling the meeting she had proposed in her February 5, 1999 letter. PEX 5. Hairston stated further that plaintiff would not sign the agreement unless there was such a meeting and the parties were able to arrive at a mutual understanding.*fn6 Id. at 1.
4. Although it is unclear whether the meeting occurred before or after the signing of the settlement agreement, what is clear is that the meeting occurred sometime before plaintiff returned to work. In attendance were plaintiff, plaintiff's husband, Hairston, Commodore Nelson ("Nelson"), Captain Penix ("Penix"), and Smith. Tr. 2/2/05 at 30 (testimony of Franklin-Mason); Tr. 2/2/05 at 169-73 (testimony of Smith); Tr. 2/3/05 at 216 (testimony of Nelson); Tr. 2/4/05 at 7-8 (testimony of Penix); Tr. 4/8/05 at 11 (testimony of Hairston). At the meeting, NFAF*fn7 officials advised plaintiff that she would be responsible in part for developing her new position. Tr. 4/8/05 at 21, 31 (testimony of Penix). Plaintiff was also told of Nelson's plan to establish a business office in NFAF that would include a GS-15 business manager and a GS-14 financial manger to whom plaintiff would report. Tr. 2/2/05 at 32-33 (testimony of Franklin-Mason); 2/5/05 at 244-45 (testimony of Nelson). Significantly, plaintiff was not told that the new business office in NFAF had already been authorized but rather that it was in the planning stage. Tr. 2/3/05 at 218-19 (testimony of Nelson). Finally, plaintiff was advised that when she came to work she would be reporting to Penix. Tr. 2/2/05 at 172 (testimony of Smith); Tr. 2/3/05 at 63-64 (testimony of Smith).
5. The parties finalized the settlement agreement on April 1, 1999 and it was approved by Judge Sullivan on April 7, 1999.
6. On July 21, 1999, Hairston sent plaintiff an e-mail telling her that Smith had confirmed that plans for the restructuring of the NFAF financial office had not yet been approved and asking plaintiff to be patient. PEX 49. In the same e-mail, Hairston also told plaintiff that she had received reassurances from Smith that plaintiff's job description would be clarified. Id.
7. Just before Christmas of 1999, Nelson obtained approval to create four GS-14 positions. Tr. 2/3/05 at 51 (testimony of Smith); Tr. 2/3/05 at 220 (testimony of Nelson). Nelson did not obtain approval for the GS-15 business manager's position. Id.
8. On February 11, 2000, Carolyn J. Berry, Principal Classifier, COMSC, updated plaintiff's position description to add the word "Senior" before the words "Financial Analyst." PEX 15.
9. That same day, Smith sent Hairston an e-mail explaining his understanding of the meaning of paragraph 2 of the settlement agreement. PEX 4 at 1. Smith indicated that he did not believe that the settlement agreement's use of the word "Senior" with regard to plaintiff's title was typical under established Office of Personnel Management classification standards. Id. Rather, Smith noted that "[i]t may, however, be used as a term of art (so to speak) internally within organizations to reflect the highest level(s) of non-supervisory or lead positions to differentiate among other positions in the same series at lower levels." Id. Smith also noted that "an employee is considered a part of management at the GS-13 grade level if their duties require use of discretion, limited supervision, and involves [sic] issues of a complex nature as opposed to simple, recurrent, administrative duties." Id. at 2.
10. On April 14, 2000, Smith sent Hairston an e-mail in which he indicated inter alia that plaintiff's position description had been changed to include the word "Senior" before the words "Financial Analyst." PEX 10 at 1.
11. On May 11, 2000, plaintiff's official title was amended to include the word "Advisor" after the words "Senior Financial Analyst." PEX 15.
12. On June 13, 2000, Penix signed a letter of recommendation for plaintiff. DEX 50
13. On June 28, 2000,*fn8 Penix signed a performance plan and appraisal form for plaintiff. DEX 6 at 1. The rating period was from May 1, 1999 to April 30, 2000. Id. Plaintiff received "acceptable" ratings for four categories: 1) supervision and human resources management, 2) managerial responsibilities, 3) equal employment opportunity and 4) internal management control. Id. at 2. In the narrative portion of the appraisal, plaintiff was described as "a valued member of the Naval Fleet Auxiliary Force (NFAF) program." Id. at 1. In addition, Penix wrote the following: "Additionally, she has provided the Program Manger with advice, subsequent to her liaison with the Comptroller's staff, regarding several financial policy and procedure challenges. Ms. Mason will be an integral part of the intense effort to implement the Oracle FMS and will be relied upon to exercise her leadership and managerial expertise as a senior level staff member." Id.
14. On September 11, 2000, plaintiff received an e-mail from Mike Fleszar, an accountant with the Office of the Comptroller, stating that, as per Admiral Savitsky ("Savitsky"), nobody was to receive any financial reports prior to his monthly Admiral's brief and that if the reports were requested prior to the brief, he would have to approve the request. Tr. 2/2/05 at 62-65 (testimony of Franklin-Mason); PEX 18 at 2. Three days later, plaintiff sent Penix an e-mail asking that she be designated as a PM1 staff member who was authorized to receive preliminary financials. PEX 18 at 1. Plaintiff believed that her ability to perform financial analysis was purposefully being blocked by Savitsky. Tr. 2/2/05 at 68-69 (testimony of Franklin-Mason).
15. On September 21, 2000, Nelson, on behalf of Penix, signed plaintiff's performance plan and appraisal form. Tr. 2/3/05 at 119-23 (testimony of Franklin-Mason); Tr. 2/3/05 at 225 (testimony of Nelson); DEX 7 at 1. The rating period was from April 1, 1999 to April 30, 2000. As with her June 28, ...