The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff Richard America brought this action against his former employer, the Small Business Administration ("SBA"), for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. Defendant SBA argued that plaintiff failed to state a claim because his allegations of discrimination against the SBA were released by a settlement agreement signed in September 1998. Plaintiff acknowledges the settlement agreement but claims that it was breached by the defendant and thus does not bar this lawsuit.
The Court previously denied a motion by the SBA to dismiss, treating it as a motion for summary judgment. Discovery now has concluded and the matter is before the Court on defendant's post-discovery motion to dismiss or for summary judgment. Both parties rely on materials outside the pleadings, so the Court will treat this motion as one for summary judgment. Defendant moves for judgment on the grounds that (1) plaintiff failed to exhaust the administrative remedies called for by the settlement agreement, and (2) plaintiff cannot show that defendant in fact breached the agreement. After careful consideration of the parties' papers, the relevant case law and the entire history of the case, the Court rejects defendant's arguments and finds that genuine disputes as to material facts remain that can only be resolved by trial.*fn2 The Court therefore will deny defendant's motion.
The Court's Opinion of December 27, 2006 describes the factual background to this dispute, which need not be repeated here. See America v. Preston, 468 F. Supp. 2d 118 (D.D.C. 2006). What is important is that the parties entered into a settlement agreement on September 11, 1998 which resolved all of plaintiff's discrimination complaints (the "Settlement Agreement"). See Mot., Ex. 1, Settlement Agreement. Paragraph 6 of the Settlement Agreement stated that "all inquiries [about plaintiff] from prospective employers received by OFA shall be referred to and handled by the Agency's Office of Human Resources." Id. ¶ 6. The Settlement Agreement also provided that if plaintiff believed that the SBA had failed to comply fully with the terms of the Settlement Agreement, plaintiff shall notify the Agency's Assistant Administrator for Equal Employment Opportunity and Civil Rights Compliance, in writing and in accordance with the provisions of Title 29, Code of Federal Regulations, Section 1614.504, of the alleged non-compliance within thirty (30) calendar days of when he knew or should have known of the alleged noncompliance, and may request that the terms of this Settlement Agreement be specifically implemented or, alternatively, that the formal EEO administrative process be reinstated from the point processing ceased.
This Court previously held that defendant had breached the Settlement Agreement when its employees did not immediately forward telephone calls by Linda Oparnica of Documented Reference Check ("DRC") to defendant's Human Resources Department as required by paragraph 6 of the Settlement Agreement. See America v. Preston, 468 F. Supp. 2d at 123-24. It also held that the question of whether the breach was material, and therefore whether rescission of the Settlement Agreement and reinstatement of plaintiff's Title VII claims was appropriate, was a question for a jury. See id. at 124-25. Based upon information produced in discovery, defendant now moves for summary judgment on different grounds - (1) that by not contacting the EEO Administrator upon learning of an alleged breach of the Settlement Agreement in 2000, plaintiff failed to exhaust his administrative remedies under the Agreement and thereby waived his right to assert further alleged breaches later; and (2) that plaintiff cannot prove, with admissible evidence, that the alleged 2002 conversations actually occurred.
Summary judgment may be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).
An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support his claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
A. Failure to Act upon 2000 DRC Report
Defendant argues that plaintiff's claims should be dismissed because plaintiff did not contact the EEO Director within thirty days of having received a report from DRC in December 2000 (the "2000 DRC Report") that SBA had violated paragraph 6 of the Settlement Agreement on September 14, 2000, as required by paragraph 10 of the Settlement Agreement. It is undisputed that plaintiff did not contact the EEO Director or otherwise inform defendant of the alleged breach in 2000. In fact, he did nothing until he received a second report from DRC concerning ...