No. 98-1054
In the Supreme Court of the United States
OCTOBER TERM, 1998
VISALAKSHI MALLADI, PETITIONER
v.
TOGO D. WEST, JR., SECRETARY
OF VETERANS AFFAIRS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
MARLEIGH D. DOVER
DANIEL KAPLAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the district court properly granted summary judgment for respondent
in petitioner's lawsuit charging respondent with unlawful employment-related
discrimination and retaliation for protected activity.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1054
VISALAKSHI MALLADI, PETITIONER
v.
TOGO D. WEST, JR., SECRETARY
OF VETERANS AFFAIRS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The per curiam order of the court of appeals (Pet. App. 1a) is unreported.
The opinion of the district court (Pet. App. 2a-59a) is reported at 987
F. Supp. 893.
JURISDICTION
The judgment of the court of appeals was entered on July 16, 1998. A petition
for rehearing was denied on October 2, 1998 (Pet. App. 61a). The petition
for a writ of certiorari was filed on December 30, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Petitioner is a physician who has worked for the Department of Veterans
Affairs (VA) since 1985. Pet. 3. In 1988, petitioner began serving as a
staff physiatrist-a physician who specializes in the treatment of illness
by physical means-in the Physical Medicine and Rehabilitation Service (PM&RS)
of the VA Medical Center in Tuskegee, Alabama. Pet. App. 6a. The VA designated
petitioner Acting Chief of the PM&RS in September 1988, and subsequently
appointed her Chief of the PM&RS in March 1989. Ibid.
2. Between 1992 and January 1995, petitioner filed seven Equal Employment
Opportunity (EEO) administrative complaints against the VA. Pet. App. 6a.
In these complaints, petitioner alleged that the VA had discriminated against
her on the basis of her race, sex, national origin, and handicap, and had
retaliated against her for engaging in protected activity. Ibid.
In 1995, petitioner signed a "global settlement agreement" in
which she agreed to withdraw the seven EEO complaints and waived her right
to file a civil action in connection with the discriminatory and retaliatory
acts they alleged. Pet. 8; Pet. App. 6a. For its part, the VA agreed (among
other things) to "provide [petitioner] with an opportunity for management
training." Id. at 13a n.6. The VA also agreed that, should it "fail
to comply with any of the terms" of the agreement, it would reopen
petitioner's complaint for further processing. Pet. 7; Pet. App. 13a. During
the six months following the settlement, the VA notified petitioner (along
with other employees) of two opportunities for management training. See
id. at 16a. Petitioner did not respond to these notifications. See ibid.
3. In the remainder of 1995 and 1996, petitioner filed six more EEO complaints
and four administrative grievances against the VA. Pet. App. 6a-11a. Several
of these EEO complaints focused on her superiors' unwillingness to grant
petitioner's requests to fill staff positions in the PM&RS. See id.
at 6a, 7a. Petitioner's discrimination and retaliation charges included
allegations that employees of the VA had called her at home once when she
was on sick leave, shouted at her during a meeting, made negative statements
about her to an EEO counselor investigating her earlier EEO complaints,
and taken too long to respond to her request for an EEO counselor's report.
See id. at 6a-11a.
During this period, the Director of the Tuskegee Medical Center asked the
VA Central Office to conduct an external review of the PM&RS, to address
morale problems among the staff. Pet. 4; Pet. App. 7a. The VA granted the
request and assigned a committee of doctors culled from other VA offices
to conduct the external review. Pet. 4. Before visiting the Medical Center,
the committee asked the Director of the Medical Center to send them all
of the formal complaints and grievances filed by staff or patients of the
Medical Center over the prior several years. Pet. 4-5.
The committee conducted the external review in late 1995, and issued a report
summarizing its findings. Pet. App. 7a-9a. In the report, the committee
noted that it found serious problems in the PM&RS, including very low
employee morale, infighting among employees, minimal evidence of quality
improvement initiatives, and irreconcilable differences between petitioner
and her staff. Id. at 7a-8a. The committee also observed that petitioner's
"continued filing" of EEO complaints had caused her superiors
to "feel incapacitated in providing [her] with adequate direction and
assistance in management of her service." Id. at 8a; see id. at 47a.
After the report issued, the VA reassigned petitioner to another position
within the Medical Center. Id. at 9a. Petitioner's twelfth and thirteenth
EEO complaints included allegations that the VA's actions in connection
with the external review and her subsequent reassignment constituted discrimination
against her on the basis of her race, sex, national origin, and handicap,
as well as retaliation for her earlier filing of EEO complaints. Id. at
9a-11a.
4. In March 1996, petitioner filed this action in the United States District
Court for the Middle District of Florida. Pet. App. 10a. The VA moved for
summary judgment on all counts, and on December 1, 1997, the district court
granted the motion. Id. at 59a. In a 72-page memorandum opinion accompanying
its judgment, the district court carefully examined each of petitioner's
allegations and explained why none could survive the VA's motion for summary
judgment.
a. The district court first rejected petitioner's claim pertaining to the
seven EEO charges underlying the global settlement agreement. The court
acknowledged petitioner's allegation that the VA had breached the portion
of the agreement requiring the VA to provide petitioner with management
training by failing to make a "special effort" to give her "special
notice" of training opportunities. Pet. App. 16a. Observing that settlement
agreements are treated as contracts, and conceding that the VA "may
well" have breached this term of the agreement,1 the court nevertheless
rejected petitioner's claim on the ground that any breach of this term by
the VA could not be considered a "material" breach that would
entitle petitioner to the relief she sought. Id. at 16a-17a.
b. The court also rejected petitioner's attempt to use the external review
committee's report and recommendations as evidence that the VA had retaliated
against her for having filed EEO complaints. Based on "considerable
evidence" submitted by the VA, the court concluded that the reference
to petitioner's EEO complaints in the committee's report "was not intended
to indicate that management was driven by the EEO charges in any of its
decisions, but simply that the charges were a significant theme in its interaction
with [petitioner]." Pet. App. 47a. The court noted that the presence
of this "significant theme" was hardly surprising, in light of
the fact that petitioner "appear[ed] to have filed an EEO charge on
every conceivable ground she could imagine, no matter how frivolous."
Ibid.
5. The court of appeals affirmed the district court's judgment in an unpublished
one-sentence per curiam order "based on the thorough and well-reasoned
memorandum opinion of the district court." Pet. App. 1a.
ARGUMENT
The decision of the courts below was correct and does not conflict with
any decision of this Court or of any other court of appeals. Accordingly,
further review of this case is unwarranted.
1. a. Petitioner first argues (Pet. 6-8) that the courts below failed to
enforce the agreement settling prior EEO complaints, and thereby violated
the principle of Raley v. Ohio, 360 U.S. 423 (1959). This argument has no
merit. In Raley, this Court held that the criminal conviction of several
individuals for their failure to answer questions put to them by a state
"Un-American Activities Commission" violated the Due Process Clause
of the Fourteenth Amendment because the Commission's Chairman had assured
the individuals, when they were questioned, that they had a right under
the State's constitution to refuse to answer questions that might incriminate
them. Id. at 437-442. Raley has no relevance to this case. Petitioner has
not been subjected to a criminal prosecution, and has not sought to invoke
her rights under the Fourteenth Amendment.
As for petitioner's allegation that the courts below erred in their application
of certain terms of the global settlement agreement, this fact-bound claim
has no significance beyond petitioner's particular case, and thus clearly
does not merit review by this Court.
b. Furthermore, the decisions below on this matter were correct. Petitioner's
argument is based on the allegation that the VA breached the term of the
agreement providing that the VA shall, "[i]n good faith, provide [petitioner]
with an opportunity for management training." Pet. App. 13a n.6. But
the VA fulfilled this obligation by providing petitioner with two opportunities
for management training, notifying her of courses in which she could seek
to enroll. Id. at 16a. Petitioner made no effort to take advantage of either
of these opportunities. Ibid. It is not clear (and petitioner does not explain)
what more this provision could have required of the VA. And even assuming
that this clause obliged the VA to make "special" (see ibid.)
efforts to assist petitioner in obtaining management training, there is
no basis for the conclusion that the VA would not have made such efforts
had petitioner shown any interest in the training opportunities extended
to her.
In addition, the district court correctly found that any shortfall in the
VA's performance of this term could not be considered a "material"
breach of the agreement that would entitle petitioner to the relief she
sought. As the district court pointed out, a settlement agreement is a contract,
and issues of its enforcement thus must be resolved by reference to the
law of contracts.2 Pet. App. 13a-14a; see also Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 381 (1994). The court properly observed that,
pursuant to well-established principles of contract law, a party's failure
to perform a contract duty may not excuse the other party from her corresponding
duties unless the failure to perform is "material." Pet. App.
14a (citing Restatement of Contracts §§ 274, 397 (1932) and Restatement
(Second) of Contracts § 241 (1979)); see also Restatement (Second)
of Contracts § 237 (1981); Rose v. Davis, 474 So. 2d 1058, 1061 (Ala.
1985).
Among the factors considered in determining whether a breach is material
are the extent to which the other party can be adequately compensated for
the failure of performance, the likelihood that the breaching party will
cure the failure of performance, and the extent to which the breaching party's
behavior comports with standards of good faith and fair dealing. See Pet.
App. 14a-15a (citing Restatement (Second) of Contracts § 241 (1979)).
In this instance, there was no reason to doubt that petitioner could be
made whole for the alleged shortfall in the VA's performance, either by
an action for damages or by more strenuous efforts on the VA's part to enroll
petitioner in management training. Nor was there any basis upon which to
question the VA's good faith, in light of the fact that it provided petitioner
with two management training opportunities which she declined to pursue.
Contrary to petitioner's assertion (Pet. 7), a contract term providing that
one party will be released from its contractual obligations should the other
party fail to "comply with any of the terms" of the contract cannot
reasonably be read to trigger release whenever a party's performance suffers
from any conceivable shortcoming, however inconsequential. Such a clause
cannot override the parties' reasonable expectation that only a material
shortfall in performance will be treated as a failure to comply with a contract
term.
2. Petitioner also argues (Pet. 10) that the courts below erred in applying
the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), because she presented the district court with direct
evidence of retaliation by the VA. See, e.g., Trans World Airlines, Inc.
v. Thurston, 469 U.S. 111, 121 (1985) ("[T]he McDonnell Douglas test
is inapplicable where the plaintiff presents direct evidence of discrimination.");
Merritt v. Dillard Paper Co., 120 F.3d 1181, 1191 (11th Cir. 1997) (same
for allegation of retaliation); Smart v. Ball State Univ., 89 F.3d 437,
439 (7th Cir. 1996) (same). This argument is likewise meritless.
What petitioner characterizes as "direct evidence" that her reassignment
was motivated by retaliatory animus consists of a few references to her
EEO filings that appear in the report of the external review committee that
evaluated the Tuskegee Medical Center's PM&RS. Pet. 10-12. These references
offer no direct support for the proposition that petitioner's reassignment
was motivated by retaliatory animus. They are merely passing mentions included
in a much broader report that detailed numerous problems with petitioner's
management, including "very low employee morale, substantial infighting
among employees, minimal evidence of quality improvement initiatives, poor
use of the coordinator position, no communication within the service or
with the administration, irreconcilable differences between [petitioner]
and the staff, no evidence of workload validation, no process for downsizing,
no prioritization of patients to be seen, and no strategic plan." Pet.
App. 7a-8a. Evidence indicating that the report as a whole influenced the
reassignment action (Pet. 11-12), then, in no way constitutes direct evidence
that the few references to petitioner's EEO complaints contained in the
report themselves influenced this action. Indeed, as the district court
noted, given petitioner's "long and distinguished history of filing
EEO charges, * * * [i]t would have been impossible [for the committee] to
avoid" mentioning those charges in its review of the workplace environment
at the PM&RS. Pet. App. 47a. Connecting these references to the reassignment
action thus would require pure speculation.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
MARLEIGH D. DOVER
DANIEL KAPLAN
Attorneys
APRIL 1999
1 The court also stated that it agreed with the Equal Employment Opportunity
Commission's finding that this portion of the agreement had been breached.
Pet. App. 17a.
2 The courts of appeals have divided over the issue whether the interpretation
of settlement agreements disposing of claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e et seq., should be governed by the law
of the forum State, or instead by federal common law. Compare, for example,
Snider v. Circle K Corp., 923 F.2d 1404, 1407 (10th Cir. 1991) (applying
federal common law), with Morgan v. South Bend Community Sch. Corp., 797
F.2d 471, 474-479 (7th Cir. 1986) (applying state law). The issue is of
no consequence in this case, however, because, as we demonstrate infra,
the result would be the same under either approach. Cf. Sheng v. Starkey
Labs., Inc., 117 F.3d 1081, 1083 n.1 (8th Cir. 1997) (declining to reach
issue of applicable law when determination would not affect the result);
Bowden v. United States, 106 F.3d 433, 439 (D.C. Cir. 1997) (same); Ferguson
v. Flying Tiger Line, Inc., 688 F.2d 1320, 1322 n.2 (9th Cir. 1982) (same).