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Kriesch v. Vilsack

United States District Court, District of Columbia

March 22, 2013

PENNY E. KRIESCH, Plaintiff,
THOMAS JAMES VILSACK, Secretary of Agriculture, Defendant

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For PENNY E. KRIESCH, Plaintiff: George Michael Chuzi, LEAD ATTORNEY, KALIJARVI, CHUZI & NEWMAN & FITCH, P.C., Washington, DC.

For THOMAS JAMES VILSACK, Secretary of Agriculture, Defendant: Michelle Lo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.


ROSEMARY M. COLLYER, United States District Judge.

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After years of litigation and settlement discussions, Penny E. Kriesch, an employee of the Department of Agriculture, and Thomas J. Vilsack, Secretary of Agriculture, agreed to resolve this employment-discrimination case in August 2009. [1] The parties stipulated that in return for dismissing the case and releasing all claims, Ms. Kriesch, would receive, inter alia, a sum of money, a promotion, and an appointment to a position at the University of Maryland pursuant to a special cooperation agreement between Agriculture and the University. Dissatisfied with Agriculture's implementation of the settlement agreement, Ms. Kriesch now asks the

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Court to compel Agriculture to comply with her interpretation of the bargain. For the reasons set forth below, the Court concludes that Ms. Kriesch has received the full benefit of the deal she struck and denies her motion.


A. Background Facts and Settlement Agreement

Ms. Kriesch, an African-American woman, had been employed by the United States Department of Agriculture (" USDA" ) Animal and Plant Health Inspection Service (" APHIS" ) for approximately seventeen years before filing the instant lawsuit on December 14, 2005. Am. Compl. [Dkt. 9] ¶ 11. She advanced claims of adverse personnel actions, hostile work environment, and denial of a promotion under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., deriving from " seven alleged discriminatory and/or retaliatory courses of conduct." See Kriesch v. Johanns, 468 F.Supp.2d 183, 185 (D.D.C. 2007). The Court denied USDA's motion to dismiss, to transfer venue and/or for summary judgment on January 5, 2007, concluding that Ms. Kriesch had sufficiently stated her claims, that summary judgment prior to discovery was premature, and that a transfer of venue was inappropriate. See id. at 185-90. Following a period of discovery, two referrals to mediation, and repeated requests for more time to negotiate, the parties filed a Proposed Stipulation of Settlement and Dismissal on August 14, 2009, Dkt. 56, which the Court approved on August 20, 2009, Dkt. 57 (" Settlement Agreement" ).

In the Settlement Agreement, the parties agreed that the lawsuit would be dismissed with prejudice on certain terms set out in the agreement and in attachments thereto. Id. at 1. The Court reviews those terms here only as needed to resolve Ms. Kriesch's motion. USDA agreed to pay Ms. Kriesch $220,000 immediately and, beginning August 16, 2009, to promote Ms. Kriesch " to the GS-15 step 6 level, as an [APHIS] Liaison in the Office of the Director, Plant Protection and Quarantine, Plant Health Programs" for a three-year period, after which Ms. Kriesch would voluntarily resign. [2] Id. ¶ ¶ 1-2. USDA further assented to amending Ms. Kriesch's employment records to reflect positive ratings for two years, to removing reference to a suspension, and to providing her with a positive reference letter. Id. ¶ ¶ 5-6, 10;

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see also id., Ex. C [Dkt. 57-3] (Reference Letter).

The primary subject of dispute is paragraph 3 of the Settlement Agreement, which provided:

3. Intergovernmental Personnel Act Assignment: Defendant will detail Plaintiff, via the Intergovernmental Personnel Act (" IPA" ) to the University of Maryland, in an APHIS Liaison position with the University of Maryland effective . . . beginning August 16, 2009, and not to exceed August 31, 2012 . . . . See Exhibit A. In this capacity, Plaintiff will be responsible for supporting USDA interests in the University of Maryland College of Agriculture and Natural Resources, Plant Protection Center, and related programs. The IPA is further structured as follows:
a. The APHIS Liaison assignment is a three (3) years posting ending August 31, 2012 . . . . If annual renewal of the IPA is required, USDA and the University of Maryland will obtain such renewal at the end of the first year and second year of the IPA.
b. As APHIS Liaison, Plaintiff will be accorded the university rank of Adjunct Professor with all appropriate privileges of University of Maryland afforded to similar persons of the rank of Adjunct Professor, provided that any such privileges do not conflict with Federal law, regulations, and guidance covering APHIS employees. Plaintiff's tour of duty as APHIS Liaison will be governed by the Memorandum of Understanding between USDA and the University of Maryland. See Exhibit B.
c. As APHIS Liaison, Plaintiff will be provided with an appropriate office at the University of Maryland College of Agriculture and Natural Resources, including storage, and appropriate staff and material support including administrative help, office furnishing, computer and other electronic devices, printing and photocopy privileges and other reasonable assistance, supplies, and support, including funds to ensure the success of the program.
d. During the term of the IPA, Plaintiff will be assigned work and supervised by the Dean of the College of Agriculture and Natural Resources of the University [of] Maryland (or his/her designee, which currently is the Department Chair of the College of Agriculture) who will be responsible for preparing her mid-year and annual performance ratings. The APHIS Director of Plant Health Programs will serve as Plaintiff's agency contact and second-line supervisor of record. Federal supervisory oversight will exist during Plaintiff's detail. Plaintiff's position will be officially and permanently assigned to the Office of the Director, USDA, APHIS, Plant Protection Quarantine, Plant Health Programs, for all organizational actions.
e. During the term of the IPA, Plaintiff will receive a GS-15 position description and will be assigned duties consistent with that description.
. . .
g. If, for any reason, the IPA is terminated by USDA or the University of Maryland before August 31, 2012 . . . and Plaintiff has not at that time separated from USDA, she will be reassigned to USDA at the GS-15 level with GS-15 duties to a Washington, D.C. metropolitan area or Maryland location of the Agency's choosing, up until August 31, 2012 . . . .
h. Plaintiff has no authority to cancel, withdraw, or rescind the IPA at any time prior to August 31, 2012 . . . but she may voluntarily separate from USDA (and the APHIS liaison assignment) at any time during the period . . . .

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In return for these promises from USDA, Ms. Kriesch agreed to " separate from APHIS no later than August 31, 2012" and never again seek employment with " APHIS or any other current Marketing and Regulatory Program agencies of USDA . . . after August 31, 2012." Settlement Agreement ¶ ¶ 6, 9. She also agreed to dismiss all pending administrative complaints with prejudice and to release all claims against USDA. See id. ¶ ¶ 12-13.

The parties further agreed that each would have a right to cure or respond to any allegation of a breach of the agreement within thirty days and that each would " make a good faith effort to resolve any dispute arising from or regarding [the agreement] before bringing the dispute to the Court's attention." Id. ¶ 23. The Settlement Agreement, which is to be interpreted according to District of Columbia law, id. ¶ 26, also contained a merger clause, id. ¶ 17; a statement that the doctrine of contra proferentem would not apply, id. ¶ 19; and a requirement that each party " take such actions and [ ] execute such additional documents as may be necessary or appropriate to fully effectuate and implement" the agreement, id. ¶ 22. By signing the document, Ms. Kriesch--who was represented by counsel--acknowledged that she had read the agreement, discussed it with her attorney, and understood it. Id. ¶ 28.

A document titled " Assignment Agreement" (hereinafter " 2009 IPA Agreement" ) and signed by Ms. Kriesch was attached as Exhibit A to the Settlement Agreement. See id., Ex. A [Dkt. 57-1]. The 2009 IPA Agreement recorded Ms. Kriesch's assignment to the University of Maryland College of Agriculture and Natural Resources from August 17, 2009, to August 16, 2011, pursuant to Title IV of the Intergovernmental Personnel Act of 1970 (" IPA" ), 5 U.S.C. § § 3371-76. See 2009 IPA Agreement at 1-2. It stated that Ms. Kriesch's " [a]ssignee position/title" would be " Special Assistant/Adjunct Profess[or]" and that her immediate supervisor at the University of Maryland was Dr. William Kenworthy, Acting Department Chair of the Department of Plant Science and Landscape Architecture. Id. at 1. The " Reason for Mobility Assignment" stated, in relevant part: " We are seeking to establish an APHIS Liaison position with the University of Maryland (UM [or UMD]) for the purpose of supporting USDA interests at the UM College of Agriculture and Natural Resources, Plant Protection Center. Such a position will enhance and advance programs of mutual interest between the parties including joint project planning and implementation, extension and outreach, teaching other [sic] authorized interests of the Plant Protection Center." Id. at 2. The " Reason for Mobility Assignment" also listed ten " interests" that were repeated immediately below in the " Position Description" section of the 2009 IPA Assignment. Id. The " Position Description" section stated that Ms. Kriesch would " serve as [Plant Protection and Quarantine]'s principal liaison with the University of Maryland College of Agriculture and Natural Resources" and would " facilitate ongoing initiatives and further expand opportunities related to . . ."

[S]tudent recruitment, retention, education and development; plant pest identification and related systematics studies; agricultural and environmental extension; implementing field programs; performing program monitoring, risk forecasting, and economic analyses; establishing linkages among various entities; facilitating the transfer of technologies between the UM, [Plant Protection and Quarantine], industry, and others; leveraging resources from diverse sources for plant pest management;

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international cooperation and development; and integrating the Plant Protection Center with Federal, State and inter- and intra-university programs.


Also attached to the Settlement Agreement as an exhibit was a lengthy Memorandum of Understanding (" MOU" ) between the University of Maryland College of Agriculture and Natural Resources and USDA Plant Protection and Quarantine, executed by representatives of both parties in July 2009. Id., Ex. B. The Court will summarize only the relevant parts of the MOU here. The MOU referenced an earlier memorandum, entered into by APHIS and the University of Maryland in 2006, that had " outline[d] opportunities for collaborative programs." MOU at 2. The 2009 MOU stated that its purpose was " to establish an APHIS Liaison position with UM specifically responsible for supporting USDA interests in the UM College of Agricultural [sic] and Natural Resources, Plant Protection Center (PPC), and related programs" in order to " further enhance the already ongoing initiatives, provide impetus for additional activities . .., and further expand opportunities in new directions." Id. at 1-2. According to the MOU, " [t]he Plant Protection Center (PPC) is part of the campus of UM in College Park, Maryland" and " is located in the College of Agriculture and Natural Resources." Id. at 3. Under the MOU, the University would " have the right to assess the qualifications and suitability of any APHIS employee nominated to serve as the APHIS Liaison." Id. The MOU did not state what title would be given to the APHIS Liaison; instead, it provided that " appropriate UM policies and procedures governing liaison appointments may apply to the extent that they do not conflict with the appropriate Federal rules." Id. at 4.

B. Events After Execution of Settlement Agreement

Ms. Kriesch's complaints in her post-settlement filings pertain exclusively to the terms and conditions of her detail at the University of Maryland. She does not assert that USDA has breached any other portion of the Settlement Agreement. E.g., Reply [Dkt. 67] at 1 (arguing that USDA failed to " ensure her a title of Adjunct Professor with the University of Maryland; implement the Plant Protection Center, for which she was supposed to be working; and provide adequate funding for her position" ). Accordingly, it is apparent that Ms. Kriesch received a lump sum payment of $220,000; she was promoted to GS-15, step 6 and paid accordingly until August 31, 2012; she was appointed as an APHIS Liaison to the University of Maryland; her employment records were properly amended; and she received a reference letter. Id. at 4 (" APHIS indeed promoted Ms. Kriesch, paid her the lump sum, gave her the reference letter, and amended her personnel file . . . ." ).

1. Title Issues

The parties' August 2009 conciliation was regrettably short-lived. Ms. Kriesch began expressing discontent with USDA's implementation of the Settlement Agreement almost immediately. She complained by letter to Brandi Peters of the Office of General Counsel of USDA about various issues three times before 2009 ended. Pl. Mot, Ex. 5 [3] [Dkt. 63-5] at 51-55 (Jan. 4, 2010 Letter from Brandi Peters (" Jan. 4, 2010 Letter" ));

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see also Pl. Mot., Ex. 4 [Dkt. 63-4] (collection of e-mails from late 2009 regarding Ms. Kriesch's complaints). [4] Most relevant for present purposes is that the University of Maryland advised USDA on September 23, 2009, that it could not appoint Ms. Kriesch as an Adjunct Professor because Ms. Kriesch did not have a terminal degree in a relevant field. [5] See Jan. 4, 2010 Letter at 51-52. The University stated that its policy, promulgated by the University's Faculty Affairs Office, could not be reconsidered. Id. at 52. Prior to advising USDA of this issue, Dr. Kenworthy had submitted Ms. Kriesch's title to the Faculty Affairs Office as " Faculty Research Assistant," a position " for faculty with duties primarily in research, scholarship, or artistic creativity." [6] Id. at 52-53 (citing University of Maryland Policy on Appointment, Promotion and Tenure of Faculty § I.B).

In the January 4, 2010 Letter, Ms. Peters advised Ms. Kriesch that the Agency had " no control, authority, or oversight over the Faculty Affairs Office at UMD and its decisions to approve/deny employees' titles at UMD." Id. at 53. However, USDA was " consistently attempt[ing] to work with UMD, as well as with [Ms. Kriesch], to reach an amenable resolution," including proposing alternative titles for her while on detail, such as " Lecturer," " Faculty Research Associate," " Director," and " Coordinator." Id.; see also Pl. Mot, Ex. 4 at 1 (" [USDA] was interested to get your opinion of establishing a working title at UMD as 'Director & Lecturer of APHIS Plan Bio-security Program,' 'Director & Lecturer of APHIS Plant Protection and Quarantine Program,' or some other variation." ). The January 4, 2010 Letter also stated, without further detail, that Ms. Kriesch had expressed concern about her " position description/detail duties." Jan. 4, 2010 Letter at 53. USDA responded by advising Ms. Kriesch that USDA was not " responsible for assigning ...

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