United States District Court, Northern District of New York
September 30, 2002
ROGER G. DAIGLE, PLAINTIFF,
E. TOGO WEST, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.
The opinion of the court was delivered by: Frederick J. Scullin, Chief District Judge
MEMORANDUM-DECISION AND ORDER
I. PROCEDURAL HISTORY
Plaintiff Roger G. Daigle commenced the lead case in this consolidated
action on January 31, 2000. See Dkt. No. 1 in Daigle v. West,
5:00-CV-0189 (FJS) (DEP) ("00-CV-0189"). That complaint asserted numerous
causes of action against multiple defendants, many of whom were employed
at one time, or are currently employees, at the Syracuse Veterans
Administration Hospital ("VA Hospital").
Plaintiff thereafter filed an amended complaint in that case pursuant
to this Court's Order filed March 23, 2000 (00-CV-0189 at Dkt. No. 3), to
which Defendants filed an answer. See id. at Dkt. No. 38.
On July 5, 2000, Plaintiff filed another lawsuit against Togo West, the
Secretary of the Department of Veterans Affairs, and other Defendants.
See Daigle v. West, 5:00-CV-1055 (FJS) (DEP) ("00-CV-1055"), Dkt. No.
1.*fn1 By Order filed October 20, 2000, Magistrate Judge David E.
Peebles consolidated 00-CV-1055 with 00-CV-0189, designating 00-CV-1055 as
the member case.*fn2 See Dkt. No. 28 in 00-CV-1055.
On March 13, 2001, Defendants moved to dismiss the amended complaint
filed in 00-CV-0189 and the complaint filed in 00-CV-1055 as against all
Defendants with the exception of Secretary West. See Dkt. Nos. 53-55.
Plaintiff opposed the motion to dismiss, see Dkt. Nos. 59 and 60, and
filed a separate motion to amend his amended complaint in 00-CV-0189. See
Dkt. Nos. 57-58. In response to Plaintiff's motion to amend, Defendants
cross-moved to dismiss, in its entirety, Daigle's amended complaint in
00-CV-0189. See Dkt. Nos. 62-64. Plaintiff opposed Defendants'
cross-motion, see Dkt. Nos. 65-66; Defendants filed a reply to such
opposition. See Dkt. No. 67.
On June 15, 2001, Plaintiff filed a motion to amend the complaint filed
in 00-CV-1055. See Dkt. Nos. 68-69. Defendants opposed that motion, see
Dkt. No. 74; Plaintiff filed a reply to that opposition. See Dkt. No.
On March 28, 2002, this Court issued a Memorandum-Decision and Order
relating to such motions. See Dkt. No. 104 ("March, 2002 Order"). In that
Order, the Court granted in part Defendants' motions to dismiss.
Specifically, as to the amended complaint filed in 00-CV-0189, the Court
granted Defendants' motion to dismiss causes of action one through eight
as against all Defendants except Secretary West and dismissed all of the
remaining claims in the amended complaint filed in 00-CV-0189. See
March, 2002 Order at 7-10. Additionally, this Court granted Defendants'
motion to dismiss the complaint filed in 00-CV-1055 as against all
Defendants except Secretary West. See id. at 10-11.*fn3
Before this Court issued its March, 2002 Order, Defendants filed a
motion for summary judgment as to the complaint filed in 00-CV-1055. See
Dkt. No. 84. Subsequent to the March, 2002 Order, Plaintiff submitted
papers in opposition to the motion for summary judgment, see Dkt. Nos.
106-108, to which Defendant filed his reply. See Dkt. No. 110.*fn4
Plaintiff began working as a medical clerk for the VA Hospital in its
surgical intensive care unit ("SICU") in May, 1991.*fn5 At the time,
Plaintiff was fifty years old and held a Master's Degree in Business
Administration. In the summer of 1991, Plaintiff began working with Eva
Homeyer, a registered nurse in the SICU. Plaintiff alleges that from that
time until about October, 1992, Homeyer sexually harassed him. As a
result, on December 1, 1992, Plaintiff filed a written complaint of
employment discrimination, attributable to his sex, with the Veterans
Administration, which was designated as case no. 93-1620.*fn6
Equal Employment Opportunity Investigator Jesse Raymond began
investigating Plaintiff's claim of harassment in June 1993, and on August
9, 1993, he issued his report regarding Plaintiff's claims. See
Investigative Summary and Analysis of Investigator Raymond, dated August
9, 1993, Dkt. No. 88 at Exhibit "B-1a."*fn7 In that report, Investigator
Raymond found that although Plaintiff established a prima facie case of
sexual harassment/discrimination, his case was adequately rebutted by
other employees of the VA Hospital. See id. Investigator Raymond
[i]t appears that Eva Homeyer did harass the
complainant because of him being different and that he
was unable to perform and fit-in as she would have
preferred. But, it was not due to him being male.
However, the allegations failed to be proven with a
preponderance of evidence worthy of a positive
recommendation. Therefore, I recommend a finding of no
See id. at Part IV.
On September 11, 1993, Plaintiff requested a hearing with the Equal
Employment Opportunity Commission ("EEOC") regarding his complaint.
Thereafter, Plaintiff and Mark Antinelli, the assistant personnel officer
for the VA Hospital, met to discuss the possibility of reaching a
settlement relating to Plaintiff's claims. These discussions culminated
in a Settlement Agreement between Plaintiff and the VA Hospital regarding
case no. 93-1620.*fn8 See Complaint at Exhibit "A" ("Settlement
Agreement"). Under the terms of the Settlement Agreement, which was
executed on and effective as of December 10, 1993, the parties agreed to
settle EEO Complaint 93-1620 in exchange for the consideration set forth
in the Settlement Agreement.
On July 20, 1995, Plaintiff filed a written request to re-open EEO
Complaint 93-1620 ("July, 1995 request to re-open"). In that request,
Plaintiff claimed that the Settlement Agreement had been breached because
(1) he was wrongfully forced to undergo "medical and psychiatric exams"
by management at the VA Hospital;*fn9 (2) he had been subjected to acts
of intimidation; harassment and abuse; (3) he and patients of the VA
Hospital were subjected to offensive names, jokes and ridicule; (4) his
car had been vandalized; (5) co-workers had "gone through [his] personal
effects;" and (6) his new coat had been thrown in the trash. See
Complaint at Exhibit "G."*fn10
On June 12, 1996, the Department of Veterans Affairs ("DVA") issued a
determination regarding Plaintiff's allegations that the Settlement
Agreement had been breached. The letter noted that Plaintiff alleged that
he had endured "continuous acts of
reprisal since the signing of the
Settlement Agreement" but determined that, pursuant to
29 C.F.R. § 1614.504(c), Plaintiff's allegations of subsequent acts
of discrimination were to be processed as separate complaints and did not
entitle him to re-open the Settlement Agreement. See Letter from DVA to
Daigle, dated June 12, 1996, reproduced at Complaint, Exhibit "F." The
DVA therefore concluded that the Settlement Agreement had not been
breached. See id.*fn11
On July 9, 1996, Plaintiff appealed that decision to the EEOC. See
Complaint at Exhibit "E." On October 10, 1997, the EEOC issued a decision
in which it affirmed the DVA's finding that the Settlement Agreement had
not been breached. See id. at Exhibit "D." That decision also noted that
the allegations of discrimination that Plaintiff cited in support of his
request to re-open EEO Complaint 93-1620 all occurred subsequent to the
execution of the Settlement Agreement and were therefore properly
considered as separate complaints of discrimination under
29 C.F.R. § 1614.106. See Complaint at Exhibit "D." Plaintiff filed a
request for reconsideration of that decision, see id. at Exhibit "C;"
however, the EEOC denied that request on March 30, 2000. See id. at
Exhibit "B." In that decision, the EEOC notified Plaintiff of his right
to file a civil action in this District within ninety days of the date
Plaintiff received the EEOC's decision.
In his complaint filed in 00-CV-1055, Plaintiff argues, inter alia,
that the Settlement Agreement is unenforceable because he was pressured
and coerced into entering into such agreement and, alternatively, that
the Settlement Agreement should be enforced and this Court find that it
was breached by the VA Hospital. See Complaint at ¶¶ 3, 9, 14-15.
A. Exhaustion of Administrative Remedies
The Court first considers which of the claims Plaintiff asserted in
00-CV-1055 may properly be considered in light of the exhaustion rule
applicable to cases brought under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII").
As then-Chief Judge Thomas J. McAvoy noted:
"A district court only has jurisdiction to hear Title
VII claims that either are included in an EEOC charge
or are based on conduct subsequent to the EEOC charge
which is `reasonably related' to that alleged in the
EEOC charge." Butts, 990 F.2d at 1401 (citing Stewart
v. United States Immigration and Naturalization
Serv., 762 F.2d 193, 198 (2d Cir. 1985)); see also
Shah v. New York State Dep't of Civil Serv., 168 F.3d 610,
613-14 (2d Cir. 1999); Brown v. Coach Stores, Inc.,
163 F.3d 706, 712 (2d Cir. 1998).
Findlay v. Reynolds Metals Co., 82 F. Supp.2d 27, 32 (N.D.N.Y. 2000).
Plaintiff administratively exhausted and raised the July, 1995 claims
in the complaint filed in 00-CV-1055. See, e.g., Complaint at ¶¶ 26,
32-33. However, Plaintiff also alleges that he has been subjected to acts
of reprisal "from 1992 through the present date." See id. at ¶
A federal district court may only properly consider claims that were
not administratively exhausted if the conduct subsequent to the EEOC
charge is "reasonably related" to the claims raised in the EEOC charge.
F. Supp.2d at 32 (citations omitted). The Second Circuit has
recognized three instances when allegations not specifically alleged in
the administrative charge are nonetheless "reasonably related" to the
charge of discrimination so as to excuse strict adherence to the
exhaustion requirement. The first category of "reasonably related" claims
relates to allegations where the complained-of conduct can reasonably be
expected to grow out of the charge of discrimination and therefore fall
within the scope of the EEOC investigation. See Butts v. City of N.Y.
Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1402 (2d Cir.
1993) (citing Smith v. American President Lines, Ltd., 571 F.2d 102, 107
n. 10 (2d Cir. 1978)) (other citation omitted). "The second type of
`reasonably related' claim is one alleging retaliation by an employer
against an employee for filing an EEOC charge." Id. (citing Malarkey v.
Texaco, Inc., 983 F.2d 1204 (2d Cir. 1993)) (other citations
omitted).*fn13 "`The third type of reasonably related claim is
where a plaintiff alleges further incidents of discrimination carried out in
precisely the same manner alleged in the EEOC charge.'" Coleman v. Bd. of
Educ., No. 96 CIV. 4293, 2002 WL 63555, *3 (S.D.N.Y. Jan. 16, 2002) (quoting
[Butts, 990 F.2d] at 1401-02); Almendral v. New York State Office of Mental
Health, 743 F.2d 963, 967 (2d Cir. 1984).*fn14
In light of the foregoing, this Court must discern from Plaintiff's pro
se complaint those acts of reprisal which he did not specifically
reference in his July, 1995 request to re-open and then consider whether
any such claims may properly be asserted in this action despite his
failure to exhaust them.
Plaintiff claims that Dr. Ispahani wrongfully diagnosed him as having a
condition of "intense paranoia." See Complaint at ¶ 49. That
incident occurred subsequent to Plaintiff's EEO Complaint and could
reasonably be expected to grow out of the charge of discrimination, which
alleged, in part, that Plaintiff was wrongfully required to undergo a
Thus, this claim may be considered despite Plaintiff's failure to
exhaust it. See Dortz v. City of New York, 904 F. Supp. 127, 140-41
(S.D.N.Y. 1995) (plaintiff's claim of retaliation was "reasonably
related" to that which was previously alleged in plaintiff's EEOC
charges, thereby allowing for judicial redress of such claims).
However, most of the other allegations in Plaintiff's complaint relate
to matters that he claims occurred prior to the filing of his EEO
Complaint 93-1620. See, e.g., Complaint at ¶¶ 27-32, 35,*fn15
38-42, 45-48, 54-55.*fn16 The exception to the
concerning matters that are "reasonably related" to the EEO complaint
"`only applies to . . . acts occurring subsequent to the filing of the
administrative charge.'" Woodcock v. Montefiore Med. Ctr.,
48 F. Supp.2d 231, 235 n. 4 (E.D.N.Y. 1999) (quotation omitted) (emphasis
added); see Fitzgerald v. Henderson, 36 F. Supp.2d 490, 502 (S.D.N.Y.
1999) (collecting cases).*fn17
Accordingly, the Court finds that it is without jurisdiction to
consider those claims asserted in the complaint filed in 00-CV-1055 which
relate to conduct that occurred prior to July 20, 1995.
Next, in addition to matters that occurred before Plaintiff filed his
EEO Complaint, his pro se pleading also references alleged acts of
reprisal that occurred after he brought that complaint. For example,
Plaintiff contends that (1) he is only permitted to enter the VA Hospital
under police escort, see Complaint at ¶¶ 59, 61-62;*fn18 (2) he is
being denied affordable mental health care outside the VA Hospital; (3)
outside mental health care providers are wrongfully required to contact
"VA police" in order to arrange payment for his visits; and (4) he was
wrongfully terminated from his job at the VA Hospital. See id. at ¶¶
As to the security escort requirement, the submissions before the Court
in the lead case to this consolidated action indicate that such
requirement was imposed because Plaintiff had threatened the Director of
the VA Hospital. See Dkt. No. 3 in 00-CV-0189 at Exhibit "G" at ¶
10. Nothing before the Court indicates that the requirement that a police
escort accompany Plaintiff whenever he seeks services from the VA
Hospital is related, in any way, to EEO Complaint 93-1620. Thus, the
Court concludes that this claim is not properly raised in 00-CV-1055. See
Findlay, 82 F. Supp.2d at 32.
As to the remaining acts of reprisal, which Plaintiff claims occurred
after July 20, 1995, nowhere in either his complaint or in his papers in
opposition to the present motion for summary judgment does Plaintiff
provide factual allegations relating to these claims upon which this Court
could properly find that they are reasonably related to EEO Complaint
93-1620. A plaintiff has the burden of affirmatively demonstrating that a
court has jurisdiction over his claims. See Luckett v. Bure, 290 F.3d 493,
496-97 (2d Cir. 2002) (citations omitted); Park Place Entm't Corp. v.
Arquette, 113 F. Supp.2d 322, 323 (N.D.N.Y. 2000) (citation omitted);
McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1107 (10th Cir. 2002)
("because failure to exhaust administrative remedies is a bar to subject
matter jurisdiction, the burden is on the plaintiff as the party seeking
federal jurisdiction to show, by competent evidence, that she did
exhaust" (citation omitted)).
With the exception of Plaintiff's claim regarding Dr. Ispahani's
conduct, the Court finds that Plaintiff has not established that the
claimed acts of reprisal which occurred subsequent to the filing of
EEO Complaint 93-1620 are reasonably related to that charge. Thus, this
Court cannot consider such claims in 00-CV-1055 because they do not fall
within any of the three exceptions to the exhaustion requirement discussed
in Butts and its progeny.
In light of the above, the Court finds that it is without jurisdiction
to consider any of the claims asserted in 00-CV-1055 with the exception
of the July, 1995 claims and the allegations in 00-CV-1055 which relate
to Dr. Ispahani's diagnosis of Plaintiff. See Oshinsky v. New York City
Hous. Auth., No. 98 CIV 5467, 2000 WL 218395, *14 (S.D.N.Y. Feb. 23,
2000) (dismissing for lack of subject matter jurisdiction several of
plaintiff's Title VII claims where plaintiff failed to raise same in EEO
complaint); Patrick v. Henderson, 255 F.3d 914, 915 (8th Cir. 2001)
(district court has jurisdiction to hear claims that were properly
exhausted notwithstanding fact that court does not have jurisdiction over
other claims that were not exhausted).
The Court now considers whether Defendant is entitled to summary
judgment as to the claims that Plaintiff properly asserted in the
complaint filed in 00-CV-1055.
B. Legal Standards
The standards governing motions for summary judgment are well-settled.
A court may not properly grant a motion for summary judgment unless "the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c).
In assessing the record to determine whether there is a genuine issue
as to any material fact, the district court is required to resolve all
ambiguities and draw all reasonable factual inferences in favor of the
party against whom summary judgment is sought. See, e.g., Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Balderman v. United States
Veterans Admin., 870 F.2d 57, 60 (2d Cir. 1989). In ruling on the
motion, the court is not entitled to weigh the evidence. See Beatie v.
City of New York, 123 F.3d 707, 710-11 (2d Cir. 1997); May Ship Repair
Contracting Corp. v. Barge Columbia New York, 160 F. Supp.2d 594, 598
Rather, if there is any evidence in the record from any source from
which a reasonable inference could be drawn in favor of the nonmoving
party, summary judgment is improper. See Beatie, 123 F.3d at 711; Brady
v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988).
C. Merits of Defendant's Motion
Defendant claims that Plaintiff freely entered into the Settlement
Agreement and that federal regulations provide a means by which Plaintiff
can assert his claims of retaliatory conduct. Defendant further argues
that since the parties resolved claims raised in Plaintiff's complaint in
00-CV-1055 in the Settlement Agreement, this Court should affirm the
EEOC's finding that Plaintiff did not establish that the VA Hospital did
not breach the Settlement Agreement. See Dkt. No. 85 at 13.
Plaintiff claims that the Settlement Agreement is "inherently
unenforceable." See Complaint at ¶ 3. He also argues, in the
alternative, that enforcement of the Settlement Agreement requires that
the DVA re-open EEO Complaint 93-1620. See Dkt. No. 106 at 8.
The Court initially considers whether the Settlement Agreement is
binding upon the parties and, if so, whether Defendant is entitled to
summary judgment on Plaintiff's remaining claims.
1. Validity of Settlement Agreement
Federal law governs whether settlement agreements in employment
discrimination actions brought pursuant to Title VII are valid. Cf.
Sears, Roebuck & Co. v. Sears Realty Co.,, 932 F. Supp. 392, 398
(N.D.N.Y. 1996) (citing Fulgence v. J. Ray McDermott & Co.,
662 F.2d 1207, 1209 (5th Cir. 1981)). Additionally, where a party has
raised a settlement agreement as a defense to a lawsuit, the court must
make factual determinations as to the issues surrounding the agreement.
See Saksenasingh v. Sec'y of Educ., 126 F.3d 347, 349 (D.C. Cir. 1997)
In considering Plaintiff's claim that he was pressured and coerced into
signing the Settlement Agreement, see Complaint at ¶ 14, this Court
notes that the Second Circuit utilizes a "totality of circumstances" test
in order to determine whether a release of Title VII claims is both
knowing and voluntary. See Reid v. IBM Corp., No. 95 Civ. 1755, 1997 WL
357969, *5 (S.D.N.Y. June 26, 1997) (citing Nicholas v. NYNEX, Inc.,
929 F. Supp. 727, 730 n. 1 (S.D.N.Y. 1996)). Factors relevant to this
(1) the Plaintiff's education and business
experience; (2) the amount of time Plaintiff had
possession of or access to the agreement before
signing it; (3) the role of the Plaintiff in deciding
the terms of the agreement; (4) the clarity of the
agreement; (5) whether the Plaintiff was represented
by or consulted with an attorney; and (6) whether the
consideration given, in exchange for the waiver of
claims, exceeds employee benefits to which the
employee was already entitled by law.
Tung v. Texaco Inc., 150 F.3d 206, 208 (2d Cir. 1998); see Bormann v.
AT&T Communications, 875 F.2d 399, 403 (2d Cir. 1989); Livingston v.
Bev-Pak, Inc., 112 F. Supp.2d 242, 247 (N.D.N.Y. 2000); Reid, 1997 WL
357969, at *5.
Consideration of these factors leads this Court to conclude that
Plaintiff knowingly and voluntarily executed the Settlement Agreement.
Plaintiff is college-educated and holds a Master's Degree in Business
Administration. The agreement was, by Plaintiff's own admission, the
product of discussion and negotiations between himself and Antinelli, and
Plaintiff successfully negotiated the removal of a provision in the
agreement that would have prevented him from disclosing the terms of the
agreement. See Daigle Tr. at 160-63. Additionally, as is discussed more
fully below, the Court finds that the contents of the Settlement
Agreement are both clear and unambiguous and that it afforded Plaintiff
the right to return to his original SICU assignment upon his request. See
Settlement Agreement at ¶ 6.*fn19
Since the totality of circumstances establish that Plaintiff freely
executed the Settlement Agreement and that both parties provided valid
consideration relating to same, the Court concludes that the Settlement
Agreement between Plaintiff and the VA Hospital is enforceable.*fn20
2. The EEOC's finding that the Settlement Agreement had not
In finding that the Settlement Agreement had not been breached, and
therefore denying Plaintiff's request to re-open
EEO Complaint 93-1620,
both the DVA and the EEOC implicitly found that 29 C.F.R. § 1614.504(c)
precluded a finding that the Settlement Agreement had been breached. That
section of the Code of Federal Regulations, which is entitled "Compliance
with Settlement Agreements and Final Action," provides, in part, that
when a party believes that the agency has failed to comply with the terms
of a settlement agreement or decision
(c) Prior to rendering its determination, the [EEOC]
may request that parties submit whatever additional
information or documentation it deems necessary or may
direct that an investigation or hearing on the matter
be conducted. If the [EEOC] determines that the agency
is not in compliance and the noncompliance is not
attributable to acts or conduct of the complainant, it
may order such compliance or it may order that the
complaint be reinstated for further processing from
the point processing ceased. Allegations that
subsequent acts of discrimination violate a settlement
agreement shall be processed as separate complaints
under § 1614.106 or § 1614.204, as
appropriate, rather than under this section.
29 C.F.R. § 1614.504(c).
Defendant argues that all of the allegations in the July, 1995 claims
are based upon Plaintiff's claims that employees of the VA Hospital
engaged in subsequent acts of discrimination and/or retaliation, and
therefore Plaintiff was required to file separate complaints with the
EEOC regarding such allegations, rather than seek to re-open EEO
Complaint 93-1620. See Dkt. No. 85 at 15-17.
Generally, an agency's interpretation of a settlement agreement is
entitled to deference under the principles enunciated in Chevron U.S.A.,
Inc. v. Natural Res. Defense Council, 467 U.S. 837, 843-44 (1984). See
New York Inst. of Dietetics, Inc. v. Riley, 966 F. Supp. 1300, 1312
(S.D.N.Y. 1997) (citation omitted). However, federal courts must first
make a de novo determination of whether a settlement agreement is
ambiguous; where the agreement is unambiguous, the court need not review
the agency's interpretation as to such agreement but instead should make
its own determination regarding the agreement's terms. See id. (citations
In the present case, the Settlement Agreement clearly provides, inter
alia, that the VA Hospital would assure Plaintiff's right (1) "to work in
an environment which is free from sexual harassment" and (2) "not [to] be
subjected to reprisal for his use of the discrimination complaint
process." See Settlement Agreement at ¶¶ 3, 7. Since the terms of the
Settlement Agreement are clear and unambiguous, this Court should not
look beyond the four corners of the agreement itself to interpret the
parties' intentions or read additional restrictions into the agreement.
See, e.g., John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp.,
22 F.3d 458, 462 (2d Cir. 1994).*fn21
Moreover, were this Court to add as a gloss to the Settlement Agreement
the cited regulations (as Defendant urges), paragraphs three and seven of
the Settlement Agreement would effectively be rendered meaningless.
Interpreting the Settlement Agreement in such a manner "violates [a]
cardinal principle of contract construction: that a document should be
read to give effect to all its provisions
and to render them consistent
with each other." Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52,
63 (1995) (citations omitted); United States v. Int'l Bhd. of Teamsters,
Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 970 F.2d 1132,
1136 (2d Cir. 1992) (courts "must avoid an interpretation of an agreement
that renders one of its provisions superfluous" (citations omitted)); see
also Restatement (Second) of Contracts § 203(a) (1981) ("an
interpretation which gives a reasonable, lawful, and effective meaning to
all the terms is preferred to an interpretation which leaves a part
unreasonable, unlawful, or of no effect").
Next, although not raised in Defendant's motion, the Court notes that
the portions of the Settlement Agreement that Plaintiff claims Defendant
breached; i.e., the VA Hospital's assurances of Plaintiff's right to work
in an environment free from sexual harassment and to not subject him to
reprisal for his use of the discrimination process may be viewed as
Defendant's pre-existing duties and therefore not valid consideration.
E.g., Airlines Reporting Corp. v. S & N Travel, Inc., 58 F.3d 857,
864 (2d Cir. 1995) ("performance of  pre-existing duty cannot suffice
as consideration for a valid agreement") (citing 3 Williston on Contracts
§ 7:36, at 569); LaGuardia Assocs. v. Holiday Hospitality
Franchising, Inc., 92 F. Supp.2d 119, 129 (E.D.N.Y. 2000) (citations
omitted). However, there was other, valid consideration present in the
Settlement Agreement which rendered it enforceable. For example, in
exchange for Plaintiff's promise to settle EEO Complaint 93-1620, the VA
Hospital agreed to allow Plaintiff to return to his original assignment
in the VA Hospital's SICU within one year from the date the Settlement
Agreement was executed. See Settlement Agreement at ¶ 6.
It is hornbook law that although some of the consideration to a
contract may be invalid, a contract is enforceable so long as a portion
of the consideration provided in same is valid. See 2 Corbin, Contracts
§ 5.13, p. 63 (1995) ("one valid consideration is enough"); see,
e.g., Spaulding v. Benenati, 86 A.D.2d 707, 708 (3d Dep't) ("[c]ontracts
involving multiple promises are enforceable, even though one of the
bargained for promises is void, so long as the remaining promises are
sufficient consideration for what was given in exchange") (citing 1
Williston, Contracts [3d ed.], § 134, p 566; § 137A, p 594;
Restatement, Contracts 2d, § 80, pp 204-205)), appeal dismissed,
56 N.Y.2d 803 (1982).
Defendant also appears to argue that this Court should defer to the
determinations of the DVA and EEOC that the VA Hospital did not breach
the Settlement Agreement. See Dkt. No. 85 at 17. However, it has been
held that no deference is to be afforded to a finding by the DVA on the
issue of whether a Settlement Agreement has been breached. See
Saksenasingh, 126 F.3d at 350. Although in the present case the EEOC
subsequently affirmed the DVA's finding that no breach had occurred, the
Court notes that "there should be no confusion that [EEOC investigators]
cannot usurp the judiciary's role in determining whether there is a
genuine issue of material fact." Williams v. Alabama Indus. Dev't Tr'g,
146 F. Supp.2d 1214, 1224 (M.D.Ala. 2001) (citing Dickerson v. Metro.
Dade County, 659 F.2d 574, 579 (5th Cir. 1981) ("in Title VII
litigation, the district court reviews the evidence de novo, independent
of any determination by the EEOC")) (other citation and footnote
omitted); Allen v. Crosby, 416 F. Supp. 1092, 1094 (E.D.Pa. 1976) (where
plaintiff has exhausted his administrative remedies,
he is entitled to a
trial de novo in federal court) (citing Ettinger v. Johnson, 518 F.2d 648
(3d Cir. 1975)), aff'd, 556 F.2d 564 (3d Cir. 1977).
Defendant has not cited, and this Court has not found, authority which
stands for the proposition that federal district courts are to afford
deference to a finding by the EEOC as to whether a party has breached the
terms of a Settlement Agreement. Since this Court finds that no such
deference is warranted, it considers whether this Court may find, as a
matter of law, that the Settlement Agreement was not breached.
It is well-settled that whether a breach of a contract has occurred is
a question of fact that cannot properly be resolved in the context of a
motion for summary judgment. See United States for Use of N. Maltese
& Sons, Inc. v. Juno Constr. Corp., 759 F.2d 253, 255 (2d Cir. 1985)
("[i]t is hardly necessary to cite authority for the proposition that
whether there has been a breach of contract is a question of fact"
(citation omitted)); Inner City Broad. Corp. v. Galaxy Broad., No. 95 CIV
0656, 1996 WL 328744, *2 (S.D.N.Y. June 13, 1996) (where facts
surrounding question of whether defendant breached contract with
plaintiff remain in dispute, motion for summary judgment denied); Germain
v. Staten Island Boat Sales, Inc., 248 A.D.2d 507, 507 (2d Dep't 1998)
("the Supreme Court correctly denied that branch of the plaintiff's
motion which was for summary judgment on the cause of action alleging
breach of contract, as there is a question of fact as to whether the
defendant materially breached the contract" (citations omitted)); Owens
v. West, 182 F. Supp.2d 180, 195-97 (D.Mass. 2001) (denying motion for
partial summary judgment where genuine issues of material fact exist as to
liability of the DVA concerning breach of EEOC Settlement Agreement).
Since the Court cannot find, as a matter of law, that the claims
Plaintiff raised in his July, 1995 request to re-open (as well as his
claims relating to Dr. Ispahani) do not constitute a breach of the terms
of the Settlement Agreement, the Court denies Defendant's motion for
summary judgment as it relates to such claims.
In light of the foregoing, the Court dismisses, for lack of subject
matter jurisdiction, all claims asserted in Plaintiff's complaint filed
in 00-CV-1055, with the exception of those which were specifically
mentioned in his July, 1995 request to re-open as well as his claim
relating to Dr. Ispahani's diagnosis of him. As to those claims, this
Court has subject matter jurisdiction and denies Defendant's motion for
summary judgment regarding such claims.
According, after carefully considering the file in this matter, the
parties' submissions, and the applicable law, and for the reasons stated
herein, the Court hereby ORDERS that Defendant's motion for summary
judgment is GRANTED IN PART and DENIED IN PART. The Court DENIES the
motion to the extent that it seeks summary judgment as to the July, 1995
claims, as well as Plaintiff's claims regarding Dr. Ispahani's diagnosis
of him and GRANTS the motion as to ALL OTHER CLAIMS asserted in
00-CV-1055 with respect to the member case due to this Court's lack of
subject matter jurisdiction over such claims.
IT IS SO ORDERED.