703 F.3d 328 (6th Cir. 2013), 11-6122, Taylor v. Geithner

Docket Nº:11-6122.
Citation:703 F.3d 328
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:Sheryl TAYLOR, Plaintiff-Appellant, v. Timothy GEITHNER, Secretary, Department of Treasury, Defendant-Appellee.
Attorney:David H. Shapiro, Swick & Shapiro, P.C., Washington, D.C., for Appellant. Harriett Miller Halmon, United States Attorney's Office, Memphis, Tennessee, for Appellee. David H. Shapiro, Swick & Shapiro, P.C., Washington, D.C., for Appellant. Harriett Miller Halmon, United States Attorney's Office, M...
Judge Panel:Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges. MOORE, J., delivered the opinion of the court in which MERRITT, J., joined, and McKEAGUE, J., joined in part. McKEAGUE, J. McKEAGUE, Circuit Judge.
Case Date:January 02, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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703 F.3d 328 (6th Cir. 2013)

Sheryl TAYLOR, Plaintiff-Appellant,

v.

Timothy GEITHNER, Secretary, Department of Treasury, Defendant-Appellee.

No. 11-6122.

United States Court of Appeals, Sixth Circuit.

January 2, 2013

Argued: Oct. 4, 2012.

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ARGUED:

David H. Shapiro, Swick & Shapiro, P.C., Washington, D.C., for Appellant.

Harriett Miller Halmon, United States Attorney's Office, Memphis, Tennessee, for Appellee.

ON BRIEF:

David H. Shapiro, Swick & Shapiro, P.C., Washington, D.C., for Appellant.

Harriett Miller Halmon, United States Attorney's Office, Memphis, Tennessee, for Appellee.

Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

MOORE, J., delivered the opinion of the court in which MERRITT, J., joined, and McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 340-43), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge.

At issue in this appeal is a matter of first impression for this court: whether Congress has waived sovereign immunity for breach-of-settlement-agreement claims brought under Title VII against the federal government as employer. Plaintiff-Appellant Sheryl Taylor, an employee of the Internal Revenue Service (" IRS" ), brought breach-of-settlement-agreement and retaliation claims against Defendant-Appellee Timothy Geithner based on alleged noncompliance with the settlement agreement by the IRS and on a series of purported retaliatory actions taken by her supervisor. The district court dismissed the breach-of-settlement-agreement claim for lack of subject-matter jurisdiction and granted Geithner's motion for summary judgment on the retaliation claim. Taylor appeals both determinations.

Because Congress has not expressly waived sovereign immunity for breach-of-settlement-agreement claims, we AFFIRM the district court's dismissal for lack of subject-matter jurisdiction on that claim. However, Taylor has produced sufficient evidence to establish a prima facie case of retaliation, and we therefore REVERSE the district court's grant of summary judgment to Geithner on Taylor's retaliation claim. We REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Sheryl Taylor is an employee of the IRS. In early 2004, Taylor began applying for a series of promotions and transfers, and she was rejected from all until she received a promotion on September 17, 2006. On June 25, 2004, after being denied a promotion, Taylor filed her first discrimination complaint with the agency. R. 63-10 (Individual Compl. of Employment Discrimination at 1-3) (Page ID # 570-72). In July 2004, Taylor was assigned

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to work in a unit supervised by Ethel Shields, where Taylor remained until September 17, 2006. R. 53-1 (Recommendation Email at 1) (Page ID # 443); R. 63-1 (Shields Decl. ¶ 4) (Page ID # 539). During her time working in this unit, Taylor alleges that Shields took several retaliatory actions against Taylor, including written reprimands, a three-day suspension without pay, and providing negative references for Taylor to prospective employers, which in turn, Taylor alleges, caused her to have been rejected from fifty-two positions. Based on these alleged actions, Taylor filed additional complaints with the agency for retaliation.

On July 19, 2005, the IRS and Taylor entered into a settlement agreement resolving Taylor's April 13, 2005 Equal Employment Opportunity (" EEO" ) pre-complaint of discrimination. R. 53-1 (Resolution Agreement at 1) (Page ID # 444). The agreement required the IRS to remove records of Taylor's three-day suspension from specific files and required Taylor to waive further litigation on this claim. Id. at 1-2 (Page ID # 444-45). It also contained procedures by which Taylor could report noncompliance with the settlement agreement by the IRS. Id. These procedures track the language of 29 C.F.R. § 1614.504, a key provision discussed below.

On August 18, 2005, Taylor took advantage of these procedures and sent a letter to the agency alleging noncompliance by the IRS with the settlement agreement. See R. 53-1 (Department of Treasury 2006 Final Agency Decision at 1) (Page ID # 449). Specifically, Taylor contended that the IRS did not remove the record of the three-day suspension from her Time and Attendance file. Id. On November 1, 2006, the agency issued a decision concluding that although the IRS had breached the referenced portion of the settlement agreement, the IRS was currently in compliance because it had removed the record upon receiving this inquiry. Id. at 2 (Page ID # 450). The final agency decision contained a statement regarding notice of appeal rights, which cited § 1614.504. Id. Taylor later filed a second complaint with the agency based on the same allegations, and this complaint was similarly denied. R. 53-1 (Department of Treasury 2008 Final Agency Decision at 1) (Page ID # 465). Taylor did not appeal either decision.

On October 22, 2008, Taylor filed a complaint in the U.S. District Court for the Western District of Tennessee alleging a retaliation claim against Geithner under 42 U.S.C. § 2000e-16(a). R. 1 (Compl.) (Page ID # 1-5). On January 20, 2009, Taylor amended her complaint to include a breach-of-settlement-agreement claim. R. 5 (Am. Compl. at ¶ ¶ 23-24) (Page ID # 18-19). Geithner filed a motion to dismiss Taylor's breach-of-settlement-agreement claim for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and a motion for summary judgment on Taylor's retaliation claim. R. 53 (Def.'s Mot. to Dismiss & Mot. for Summ. J. at 1) (Page ID # 383). The district court granted Geithner's motions as to both claims and subsequently denied Taylor's Rule 59(e) motion to amend or alter the judgment. Taylor v. Geithner, No. 08-2735, 2011 WL 2669061 (W.D.Tenn. July 6, 2011); R. 100 (Order Denying Plaintiff's Mot.) (Page ID # 865).

II. BREACH-OF-SETTLEMENT-AGREEMENT CLAIM

We review de novo a dismissal for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 919 (6th Cir.2009). When the district court rules on a factual challenge to subject-matter

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jurisdiction, however, we review the factual findings for clear error. Id.

At issue is whether Congress has waived sovereign immunity for breach-of-settlement-agreement claims brought under Title VII against the federal government as employer. " The United States, as sovereign, is immune from suit save as it consents to be sued...." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). " The doctrine of sovereign immunity serves as a bar to suit against the United States unless the government has explicitly waived sovereign immunity. A waiver of sovereign immunity must be clear, express, and unambiguous; it cannot be implied from vague language." United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1325 (6th Cir.1993) (internal citations and quotation marks omitted). In the Title VII context, it is clear that Congress has waived sovereign immunity for discrimination actions brought against the federal government; however, we have not yet reached whether this waiver extends to breach of a settlement agreement entered into by an employee and the federal government that is based on an underlying discrimination claim. See Steiner v. Henderson, 354 F.3d 432, 434 (6th Cir.2003) (" Title VII of the Civil Rights Act of 1964 ... as amended by the Equal Employment Opportunity Act of 1972 ... provides the exclusive judicial remedy for claims of discrimination in federal employment." ).

The EEOC has promulgated a regulation that squarely addresses how to report agency noncompliance with a settlement agreement. 29 C.F.R. § 1614.504. This regulation clearly outlines the agency procedures available to a complainant, yet it remains silent as to whether a complainant may seek further remedies, such as appealing to federal court. Taylor and Geithner construe this silence differently; however, because an express waiver is required in order to waive sovereign immunity, we adopt Geithner's position.

Under § 1614.504, a complainant must notify the agency EEO director in writing of the alleged noncompliance, requesting either specific implementation of the agreement or a reinstatement of the underlying complaint. Id. § 1614.504(a). If the complainant does not receive a timely decision from the agency or is not satisfied with the decision made by the agency, she may appeal to the EEOC. Id. § 1614.504(b). Given this language, it is clear that a plaintiff could not bring a breach-of-settlement-agreement claim in federal court prior to exhausting the avenues provided in § 1614.504, and at oral argument Taylor clarified that she is not attempting to raise such a claim.

Rather, Taylor brings the breach-of-settlement-agreement claim under Title VII, which raises the more nuanced issue as to whether a plaintiff who has exhausted her administrative remedies may file a civil action for breach of settlement agreement in federal court under 42 U.S.C. § 2000e-16(c). 1 Geithner counters that this provision does not apply to breach-of-settlement-agreement claims, and, even if it did apply, Taylor has not timely filed her claim, as required by the provision. Appellee Br. at 10-13, 13 n.2. In contending that Title VII encompasses breach-of-settlement-agreement claims, Taylor relies on out-of-circuit cases supporting breach-of-

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contract claims between private employees and employers, arguing these cases evince a legislative history that strived to...

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