Mata v. United States, 09-796C

• Decision Date: 26 February 2014
• Docket Number: No. 09-796C,09-796C
• Parties: FLORENTINO L. MATA, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

FLORENTINO L. MATA, Plaintiff, v. THE UNITED STATES, Defendant.

No. 09-796C

United States Court of Federal Claims

E-Filed: February 26, 2014

Cross-Motions for Summary Judgment,

RCFC 56; Breach of Contract; Contract

Interpretation; Damages for Breach of

Contract; Subject Matter Jurisdiction;

Allegations of Fraud and Bad Faith

Lorenzo W. Tijernia, San Antonio, TX, for plaintiff.

Michael P. Goodman, Trial Attorney, with whom were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and Reginald T. Blades, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Rebecca Ausprung, Chief, Civilian Personnel Branch, United States Army Litigation Division, Fort Belvoir, VA, of counsel.

OPINION and ORDER

CAMPBELL-SMITH, Chief Judge

Florentino L. Mata (plaintiff or Mr. Mata), a former engineer with the United States Army (Army), brings this action against the United States (the government or defendant) alleging that the Army breached the parties' June 20, 2007 Negotiated Settlement Agreement (NSA). See Initial Complaint (Complaint or Compl.), Dkt. No. 7, ¶ 1.¹ Plaintiff contends that "the Army breached several terms and conditions of the NSA . . . causing the Plaintiff substantial monetary damages including but not limited to the Plaintiff losing his job of nineteen (19) years as a Professional Engineer in Federal civilian service." Id.

Before the court are Plaintiff's Motion for Summary Judgment, Dkt. No. 50, and Plaintiff's Memorandum of Law and Points of Authority in Support of His Motion for Summary Judgment (plaintiff's Motion or Pl.'s Mot.),² Dkt. No. 50-1, filed July 27, 2013; Defendant's Response to Plaintiff's Motion for Summary Judgment, Motion to Dismiss, and Cross-Motion for Summary Judgment (defendant's Motion or Def.'s Mot.), Dkt. No. 53, attached to which is an Appendix (Def.'s App.),³ Dkt. No. 53-1, filed September 23, 2013; Plaintiff's Reply to the Defendant's Response to Plaintiff's Motion for Summary Judgment and Plaintiff's Response to the Defendant's Motion to Dismiss, and Cross Motion for Summary Judgment (Pl.'s Resp.), Dkt. No. 61, attached to which are several exhibits,⁴ Dkt. Nos. 61-1 through 61-5, filed November 16, 2013; and Defendant's Reply in Support of Motion to Dismiss and Cross-Motion for Summary Judgment (Def.'s Resp.), Dkt. No. 63, filed November 27, 2013. The court also cites to certain exhibits attached to Plaintiff's Supplemental Brief and Response to the Defendant's Supplemental Brief to its Motion to Dismiss (Pl.'s Suppl. Br.), Dkt. No. 38, filed April 23, 2012.

For the reasons set forth below, the court DENIES-IN-PART and STAYS-IN-PART plaintiff's Motion and GRANTS-IN-PART, STAYS-IN-PART, and DENIES-IN-PART as MOOT defendant's Motion.

I. Background⁵

A. The Negotiated Settlement Agreement

In October 2006, plaintiff filed a whistleblower grievance against his first-line and second-line supervisors, Nicolass DeGreef (Mr. DeGreef) and Michael Swenty (Mr. Swenty), respectively. Pl.'s Mot. ¶ 1. Plaintiff subsequently filed three additional administrative grievances alleging that, a result of his whistleblower activity, he was subject to harassment, discrimination, and reprisal by his supervisors at U.S. Army South (USARSO). See id. ¶¶ 3-4, 6. In April 2007, plaintiff filed an informal Equal Employment Opportunity (EEO) complaint with the Army's Equal Employment Office alleging the same issues pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. See id. ¶ 5.

On June 20, 2007, plaintiff and USARSO's Command General entered into the NSA to resolve plaintiff's EEO complaint. Id. ¶ 7. The NSA was signed by plaintiff; Colonel Abel Concha (Col. Concha), plaintiff's third-line supervisor and the Deputy Chief of Staff of Engineers; and Bill Reimer, counsel for the Army. Id.; see Compl. ¶ 37 (identifying Col. Concha's title).

The dispute before the court centers primarily on the obligations of the Army under paragraph three of the NSA, which states, in relevant part:

3. The Agency agrees:

a. To conduct an objective independent review of [C]omplainant's 2006 performance evaluation and 11 Aug 06 letter of reprimand within 30 calendar days of the effective date [of] this agreement. . . . During the pendency of the review, the [C]omplainant's 2006 evaluation and reprimand will be withdrawn from his personnel folder and the personnel data base. If the review results in the upgrading of the performance appraisal, Complainant shall receive any and all awards issued to his counterparts with a similar rating.

b. As soon as possible during the 120 calendar day period from the effective date of this agreement with the right of Complainant to request an extension of time from the Chief of Staff, based on good cause due to no openings available during the 120 calendar day period, USARSO shall make a good faith attempt to laterally transfer/reassign [C]omplainant to an equivalent position for which he is qualified, in a directorate outside of [Deputy Chief of Staff, Engineer (DCSENG)] but within USARSO. USARSO HR shallforward to Complainant and [the Civilian Personnel Advisory Center (CPAC)] notice of any valid vacancy for which the Complainant could be deemed to be qualified by CPAC. CPAC will determine if Complainant is qualified for the vacancy and will notify the Chief of Staff of any positions for which he qualifies. The Chief of Staff will make the final determination as to the acceptability of the recommendation . . . .

c. All actions, complaints, and disciplinary issues concerning Complainant prior to the date of signing of this instrument will be null and void.

Compl. at 26-29 (NSA) ¶ 3 (emphasis added). Paragraph 4a of the NSA provides that "the Chief of Staff, USARSO[,] shall make the final determination regarding the findings of the independent review discussed in paragraph 3a," NSA ¶ 4a, and, further to paragraph 3b of the NSA, paragraph 4d provides "that if for budgetary reasons, priority placement obligations, transformation issues, or any other valid cause, the Command has the discretion to not place the Complainant in a position recommended by CPAC," NSA ¶ 4d.

Pursuant to paragraph 3a of the NSA, Colonel Robert Casias (Col. Casias) completed an independent review of plaintiff's 2006 performance evaluation and August 11, 2006 letter of reprimand. Pl.'s Mot. ¶ 12. A November 1, 2007 memorandum from Col. Casias to Colonel John Phelan (Col. Phelan), the USARSO Chief of Staff and plaintiff's fourth-line supervisor, details Col. Casias' findings and recommendations. Compl. at 30-34 (Casias Mem.). Col. Casias found that neither the 2006 performance evaluation, which rated plaintiff at a Level 4 (needs improvement), nor the August 11, 2006 letter of reprimand, were substantiated. See id. at 31, 33. Based on these findings, Col. Casias recommended, in relevant part, that plaintiff's 2006 performance evaluation be upgraded from a Level 4 to a Level 2 (excellence), that plaintiff's August 11, 2006 letter of reprimand be removed from his personnel file, and that, further to paragraph 3b of the NSA, plaintiff be "laterally transferred or reassigned as quickly as possible." Id. at 33-34.

Pursuant to paragraph 3b of the NSA, Sonia Caceres (Ms. Caceres), USARSO HR, sent plaintiff and Lou Ann Reiser (Ms. Reiser), CPAC, an e-mail on October 3, 2007 attaching two lists of all the vacancies "for which [Mr. Mata] could be deemed qualified" as of October 1, 2007.⁶ Def.'s App. A9 (Oct. 3, 2007 e-mail); see id. at A10-A13(vacancy lists). Ms. Reiser reviewed the lists of vacancies and determined that there were no equivalent engineer positions for which Mr. Mata was qualified. See Def.'s App. A5-A6 (Reiser Dep. 39:18-40:17, 41:6-14).

On November 9, 2007, Col. Phelan released to plaintiff a memorandum detailing, pursuant to paragraphs 3b and 4a of the NSA, his determinations. Compl. at 35 (Phelan Mem.). After considering Col. Casias' review, Col. Phelan intended to upgrade plaintiff's 2006 performance evaluation to a Level 3⁷ and to let stand plaintiff's August 11, 2006 letter of reprimand. Id. Col. Phelan indicated that he had "met with Ms. Lou Ann Reiser of [CPAC] concerning the search for a valid vacancy for an equivalent engineer position to which [plaintiff] could be laterally transferred . . . as required by [paragraph 3b of the] NSA." Id. Because "[n]o unencumbered vacant equivalent engineer position was found," Col. Phelan determined that plaintiff would remain in his current position. Id.

B. Plaintiff's Removal from the Army

On September 26, 2007, nearly three months after the NSA at issue in this case had been executed, the Army issued plaintiff a notice of proposed suspension for the offenses of insubordination, delay in carrying out instructions, discourtesy to a supervisor, unexcused tardiness and other attendance issues, and knowingly making false statements—all stemming from events that transpired between August 2007 and September 2007. Pl.'s Suppl. Br., Ex. 8 at 1-2 (Sept. 26, 2007 Notice of Proposed Suspension). Subsequently, plaintiff was suspended from work for fourteen days. Id., Ex. 9 at 1 (Nov. 1, 2007 Notice of Suspension). On December 13, 2007, the Army issued plaintiff a second notice of proposed suspension for the offense of misconduct stemming from events that transpired in November 2007. Id., Ex. 12 at 1-2 (Dec. 13, 2007 Notice of Proposed Suspension). Plaintiff was suspended again from work for fourteen days. Id., Ex. 13 at 1 (Feb. 4, 2008 Notice of Suspension).

On February 19, 2008, Mr. Swenty sent plaintiff a notice of proposed removal from the Army. Compl. at 111-13 (Notice of Proposed Removal). Some of the reasons cited for Mr. Swenty's proposed removal action were plaintiff's two offenses of failing to follow instructions and plaintiff's one offense of exhibiting disrespect, each of which stemmed from events that transpired on January 25, 2008. Id. at 111. Mr. Swenty also...