Opposition Brief — Malladi v. West

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No. 98-1054

In the Supreme Court of the Gnited States

OCTOBER TERM, 1998

VISALAKSHI MALLADI, PETITIONER

Toco 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 Attorne y

General

MARLEIGH D. DOVER

DANIEL KAPLAN

Attorneys

Departmen: of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the district court properly granted sum-

mary judgment for respondent in petitioner’s lawsuit

charging respondent with unlawful employment-related

discrimination and retaliation for protected activity.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Bowden v. United States, 106 F.3d 433 (D.C. Cir.

ROTI UGE diekichaicihabebiah bd bakcsostbh shbuiibenibiabiaiieiin Adina dudpiciadbdidieitnatenngensnrvomsaceees 7

Ferguson v. Flying Tiger Line, Inc., 688 F.2d 1320

SIN TT: IIIT sd cinieliithsbecesindaipsondeentnepicesschaneniivdsnnebestebentnnideenesins 7

Kokkonen v. Guardian Life Ins. Co. of Am., 511

IE CIOL SiGibeckidcliianiades haiaanhiiih dicks janencenatinatesnionessiinnanctiniecis 7

McDonnell Douglas Corp. v. Green, 411 U.S. 792

III itched lala dacsactichindipiolihintannipiiadicinatembsnessiheniecuseepsneutiveeqnses s

Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th

a ITE dosed inbdlen’ Aciaaisidaidgepcssnagcabnhagaiatin somesonhabvonnceemeecdesons s

Morgan v. South Bend Community Sch. Corp.,

er ly FOE eathcarsdttacinprsnsisnebcncsvicsvesesnscnomnces 7

Raley v. Ohio, 360 U.S. 423 (1959) ..........ccsccccssescorsesssencerers 5,6

Rose v. Davis, 474 So. 2d 1058 (Ala. 1985) 20.0... eee 7

Sheng v. Starkey Labs., Inc., 117 F.3d 1081

SR ai asentldenstioes 7

Smart v. Ball State Univ., 89 F.3d 437 (7th Cir.

UIE sais Guilt Sid sitet aekcaacbeeedstias tas ibeaahaliedabeonbabpaedacideonequcsioess 8-9

Snider v. Circie K Corp., 923 F.2d 1404 (10th Cir.

UTE Foi sieaclisaieiaacaiceebchvipoissah ths deseeie Ves iioneiieihabioniiceasbiscaincnbaseeneestenes 7

Trans World Airlines, Inc. v. Thurston, 469 U.S.

I ec sala aeedasuhdininbodonnnsnbianes 8

Constitution and statute:

U.S. Const. Amend. XIV (Due Process Clause) ................. 6

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

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(IIT)

Miscellaneous: Page

Restatement of Contracts (1932) ............ SER Et ae A 7

Restatement (Second) of Contracts (1979) .....ccccccccccceseeeees 7.3

Restatement (Second) of Contracts (1981) .......ccccccccccccceoeees 7

aN ATER SN aR SO Rca

Jn the Supreme Court of the United States

OCTOBER TERM, 1998

No. 98-1054

VISALAKSHI MALLADI, PETITIONER

Vv.

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. la) 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).

(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 treat-

ment 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 ap-

pointed her Chief of the PM&RS in March 1989. Jbid.

2. Between 1992 and January 1995, petitioner filed

seven Equal Employment Opportunity (KEQO) admin-

istrative 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. Jbid.

In 1995, petitioner signed a “global settlement agree-

ment” 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.” Jd. 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 pro-

cessing. 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.

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3. In the remainder of 1995 and 1996, petitioner filed

six more EEO complaints and four administrative

grievances against the VA. Pet. App. 6a-lla. 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 allega-

tions 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 com-

plaints, 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 com-

plaints 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. Jd. at 7a-8a. The committee also observed

that petitioner’s “continued filing” of EEO complaints

had caused her superiors to “feel incapacitated in pro-

viding [her] with adequate direction and assistance in

4 os

management of her service.” Jd. at 8a; see id. at 47a.

After the report issued, the VA reassigned petitioner

to another position within the Medical Center. Jd. at

Ya. Petitioner’s twelfth and thirteenth EEO complaints

included allegations that the VA’s actions in connection

with the external review and her subsequent reassign-

ment 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 com-

plaints. Jd. 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. /d. at 59a. In a 72-

page memorandum opinion accompanying its judgment,

the district court carefully examined each of peti-

tioner’s allegations and explained why none could sur-

vive 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 settle-

ment agreements are treated as contracts, and con-

ceding that the VA “may well” have breached this term

of the agreement,’ the court nevertheless rejected

petitioner’s claim on the ground that any breach of this

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.

term by the VA could not be considered a “material”

breach that would entitle petitioner to the relief she

sought. Jd. at 16a-17a.

b. The court also rejected petitioner’s attempt to use

the external review committee’s report and recommen-

dations‘as evidence that the VA had retaliated against

her for having filed EEO complaints. Based on “con-

siderable 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 surpris-

ing, 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.” bid.

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 memo-

randum opinion of the district court.” Pet. App. la.

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. Jd. 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 agree-

ment providing that the VA shall, “[iJn good faith,

provide [petitioner] with an opportunity for manage-

ment training.” Pet. App. 13a n.6. But the VA fulfilled

this obligation by providing petitioner with two op-

portunities for management training, notifying her of

courses in which she could seek to enroll. Jd. at 16a.

Petitioner made no effort to take advantage of either of

these opportunities. /bid. 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.) ef-

forts 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 ex-

tended to her.

In addition, the district court correctly found that

any shortfall in the VA’s performance of this term could

ai i

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 agree-

ment is a contract, and issues of its enforcement thus

must be resolved by reference to the law of contracts.”

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 Con-

tracts §§ 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

* 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 seg., 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).

party will cure the failure of performance, and the

extent to which the breaching party’s behavior com-

ports with standards of good faith and fair dealing. See

Pet. App. 14a-15a (citing Restatement (Second) of Con-

tracts § 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 train-

ing. 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 short-

coming, 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 com-

mittee that evaluated the Tuskegee Medical Center’s

PM&RS. Pet. 10-12. These references offer no direct

support for the proposition that petitioner’s reassign-

ment was motivated by retaliatory animus. They are

merely passing mentions included in a much broader

report that detailed numerous problems with peti-

tioner’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, irrecon-

cilable differences between [petitioner] and the staff, no

evidence of workload validation, no process for down-

sizing, 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 in-

fluenced 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 environ-

ment at the PM&RS. Pet. App. 47a. Connecting these

references to the reassignment action thus would re-

quire pure speculation.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.