# Lexine PERDUE, Appellant, v. ROY STONE TRANSFER CORPORATION; Lonnie Hodges; Ben Koontz; Appellees

> Court of Appeals for the Fourth Circuit · October 5, 1982 · 690 F.2d 1091

URL: https://www.frixlaw.com/law-library/cases/9469808

## Case

- **Full name:** 29 Fair empl.prac.cas. 1673, 30 Empl. Prac. Dec. P 33,094 Lexine Perdue v. Roy Stone Transfer Corporation Lonnie Hodges Ben Koontz
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** October 5, 1982
- **Citations:** 690 F.2d 1091; 30 Empl. Prac. Dec. (CCH) 33,094; 29 Fair Empl. Prac. Cas. (BNA) 1673; 1982 U.S. App. LEXIS 25037
- **Precedential status:** Published
- **Opinion:** Dissent by Widener
- **Judges:** Winter, Butzner, Widener
- **Cited by:** 65 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469808

## How later opinions describe it (automated extraction)

- holding that the receipt of a right-to-sue notice is unnecessary because “it is entitlement to a ‘right to sue’ notice, rather than its actual issuance or receipt, which is a 9 prerequisite”
- holding that "it is entitlement to a 'right to sue’ notice, rather than its actual issuance or receipt, which is a prerequisite to the jurisdiction of the federal courts” under Title VII
- recognizing that one of the policies behind the required issuance of the right-to-sue letter is that it “initiates the running of the statute of limitations for private actions”
- explaining that “the issuance of a ‘right to sue’ notice initiates the running of the statute of limitations for private actions” under Title VII

## Opinion text

WIDENER, Circuit Judge,
dissenting:
I respectfully dissent.
While I agree with the majority that under appropriate circumstances the plaintiff may bring an action on her underlying Title VII claim, I must dissent from the majority’s conclusion that the plaintiff does not need a right to sue letter from the EEOC in order to proceed with her case. I would thus affirm the district court’s dismissal of the case for lack of jurisdiction, although for somewhat different reasons.
The settlement agreement before us is an executory accord which bars further proceedings on the claim, assuming that each party fulfills the accord. 6 Corbin on Contracts §§ 1268-1269 (1962). See 42 U.S.C. § 2000e-5(f)(l); Trujillo v. Colorado, 649 F.2d 823, 826-27 (10th Cir. 1981). If there be a material breach of executory accord, such as is alleged in this case, the breaching party may no longer assert the existence of the accord as a bar to the suit on the underlying action. Brown v. Spofford, 95 U.S. 474, 483-484 , 24 L.Ed. 508 (1877). Thus, the non-breaching party may bring suit either to enforce the accord or on the underlying action itself. DeVilliers v. Atlas Corp., 360 F.2d 292, 295 (10th Cir. 1966); Corbin, supra §§ 1271-1275. Brown specif - *1096 ically held that the suit on the underlying cause of action could proceed absent performance of the executory accord.
I believe the majority correctly premises its opinion “. . . on plaintiff’s untested allegation that the company was guilty of a total breach of the settlement agreement.” I do not agree with the majority, however, when it concludes that “... . it is entitlement to a right to sue notice rather than its actual issuance or receipt, which is aprerequisite to the jurisdiction of the federal courts under § 2000e-5(f)(l).” This interpretation of the statute effectively reads EEOC out of a part of its role in the administration of the statute, not to mention the fact that it is contrary to the statements of the Supreme Court in McDonnell Douglas and Alexander, and our own holding in United Black Firefighters, although that last holding was not necessarily phrased as a want of jurisdiction.
A literal reading of § (f)(1) would seem to justify the withholding of the right to sue letter by the EEOC, for the EEOC must send the right to sue letter if it “... has not entered into a conciliation agreement to which the person aggrieved is a party... . ” This was the position taken by the district court as well as EEOC, and, in a case in which the settlement agreement replaced the cause of action, that position would doubtless be justified. But, as I have mentioned, this is an executory accord, and under Brown the breaching party may not assert the existence of the accord as a bar to the suit on the underlying action if it has been breached. I do not think that the statute contemplates that Title VII settlements in the form of executory accords should be treated any differently than the Brown decision indicates. The situation before us is one which is not covered by a literal reading of the statute.
There is no reason why the language of the Supreme Court in McDonnell Douglas and Alexander cannot be complied with, as well as the statute, § (f)(1), construed reasonably, by requiring the EEOC to issue its right to sue letter upon the allegation of a total breach of the settlement agreement. Plaintiff had available an effective remedy for procuring her right to sue letter. She could have made the EEOC a party to the proceedings, and the court thus could have required the EEOC to issue its right to sue letter. Plaintiff’s failure to make the EEOC a party to the case must justify the dismissal by the district court for want of jurisdiction because of the absence of the right to sue letter. The absence of the EEOC in the suit means that “complete relief cannot be afforded among those already parties.” FRCP 19(a).
The course I advocate is not overly technical nor should it provide an unnecessary stumbling block or procedural difficulty for a plaintiff who claims a settlement agreement has been breached. Moreover, it is justified and indeed required as I will briefly outline below.
In our case, the facts surrounding the settlement agreement, as they appear to us from this record, seem to be relatively straightforward, and any dispute between the parties as to those facts would seem to be between the plaintiff and the defendant. But that may not always be the case, and is not necessarily true here. The meaning of settlement agreements may not always be clear from the face of the agreement, or there may be claims of fraud, mistake, etc. What was said and by whom, prior to and contemporaneously with the execution of the agreement, among the parties to the agreement, the plaintiff, the EEOC, and the defendant, may often be admissible in evidence. For example, whether an agreement is an executory accord or an accord and satisfaction may well be subject to parol proof. In those cases the EEOC should obviously be a party, and its position in the matter is bound to have weight. 1 Since we cannot anticipate what facts will come out when everything concerning this settlement *1097 agreement is explored, I think the EEOC is an indispensable party to the action under FRCP 19. 2 It is a party to the agreement. Its obligation is to foster such agreements. It has the sole right to issue the jurisdictional right to sue letter. Without the right to sue letter the case should not proceed. These reasons alone satisfy the requirement that it be made a party to the case. To repeat, in its absence, complete relief cannot be afforded those already parties. FRCP 19(a).
The above reasons aside, there is another flaw in the majority’s reasoning in treating the “total breach of the settlement agreement” as the “jurisdictional fact” (SI. op. p. 1095) rather than treating the right to sue letter as such.
Under the principles of Osborn v. Bank of the United States, 9 Wheat 738, 6 L.Ed. 204 (1824), Bell v. Hood, 327 U.S. 678 , 66 S.Ct. 773 , 90 L.Ed. 939 (1946), and Smith v. Sperling, 354 U.S. 91 , 77 S.Ct. 1112 , 1 L.Ed.2d 1205 (1957), when there are facts which go to the jurisdiction of the court as well as to the merits of the case, the court should proceed to the merits. Otherwise, many federal question claims would be dismissed for want of jurisdiction. Osborn has set forth the rule in a statement which so far as I know has not been questioned:
“There is scarcely any case, every part of which depends on the Constitution, laws, or treaties of the United States. The questions, whether the fact alleged as the foundation of the action, be real or fictitious; whether the conduct of the plaintiff has been such as to entitle him to maintain his action; whether his right is barred; whether he has received satisfaction, or has in any manner released his claims, are questions, some or all of which may occur in almost every case; and if their existence be sufficient to arrest the jurisdiction of the court, words which seem to be intended to be as extensive as the Constitution, laws, and treaties of the Union, which seem designed to give the courts of the government the construction of all of its acts, so far as they affect the rights of individuals, would be reduced to almost nothing.” p. 820. (Italics added).
Along the same line, Bell v. Hood holds that where there is a question as to whether or not a federal cause of action has been stated and the case is dismissed, the dismissal should be on the merits and not for want of jurisdiction. Of like import is Smith v. Sperling, a case with facts closely akin to those existing here. The diversity jurisdiction of the court depended on the existence of fraud because of a question of realignment of parties. The case was dismissed by the district court for want of jurisdiction because it found fraud did not exist, and its decision was affirmed by the court of appeals. The decision was reversed because the issue of the existence of fraud went both to the jurisdiction of the court as well as to the merits of the case. The Supreme Court held that the ease must proceed to trial on the merits instead of being dismissed for want of jurisdiction. It described the trial of the fraud issue as a preliminary matter going to the court’s jurisdiction as “. . . a time consuming, wasteful exercise of energy on a preliminary issue in the case.” 354 U.S. at p. 95 , 77 S.Ct. at 1114 . In the case before us, it is at once apparent that if the settlement agreement has not been breached that is a defense to the merits of the action, and it should not be tried as a preliminary matter going to the jurisdiction of the court. Smith is precisely on point on this question.
I thus think that with an available opportunity to obtain the right to sue letter the majority in its decision unnecessarily contravenes the language of the Supreme *1098 Court in McDonnell Douglas and Alexander as well as Osborn, Bell, and Smith .
In conclusion, I should say that the question of whether or not a jury is required is not before us, so footnote 8 to the majority opinion is bound to be dicta. So far as the opinion may intimate, however, that the breach of the settlement agreement is not triable to a jury, I do not agree. If the validity of the settlement agreement is a question properly to be tried to a jury in a trial of the underlying cause of action on its merits, then the fact that the same matter may also go to the jurisdiction of the court does not diminish the right of the parties to trial by jury as to that issue. Again, such a holding is contrary to the principles of Osborn, Bell, and Smith , and would enable parties to avoid trial by jury in many federal question claims by simply trying to the court as a preliminary matter the fact common to both the question of jurisdiction and the merits.
. Lamar v. EEOC, 25 EPD, 1131, 641 (N.D.Ill.1981), is an illustration of the problems which may arise. In that case the plaintiff alleged that she had entered into a settlement agreement because EEOC had wrongly advised her that her only alternative to accepting the employer’s settlement offer was to receive nothing.
. If EEOC were held to be an improper party to the case, thus making relief unavailable by that method, then mandamus would certainly lie under 28 U.S.C. § 1361 “.. . to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff” because the plaintiff should be entitied to her right to sue letter on an allegation of a breach of the settlement agreement. The duty of EEOC to issue the letter is ministerial and other relief would be unavailable. See Cook v. Arentzen, 582 F.2d 870, 876 (4th Cir. 1978).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469808. Public record. Not legal advice.