The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION & ORDER
Plaintiff Jorge A. Quiroz brings this action against the United States
Postal Service ("USPS") and its Postmaster General, for alleged
violations of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. ("Title VII"), in the form of
discrimination on the basis of national origin. This matter comes before
the court on a motion by defendants for summary judgment, or, in the
alterative, to dismiss for failure to prosecute. For the following
reasons, defendants' motion is denied.
Plaintiff is an Ecuadorian male, employed as a mechanic by USPS
currently and at all relevant times. On December 26, 2000, plaintiff
filed the complaint in the instant case, alleging that he had been
subjected to discriminatory treatment by defendants on the basis of his
national origin, and to retaliation for his having filed complaints with
the Postal Service Equal Employment Opportunity ("EEO") office regarding
his treatment. On May 9, 2001, plaintiffs counsel sent a letter to Judge
Batts, before whom this case was pending until its transfer to the
undersigned on October 15, 2003, requesting that the action be placed on
the suspense calendar. The letter stated that on or about March 9, 2001,
plaintiff had filed new EEO claims of discrimination and retaliation, and
requested that the instant action be placed on the suspense calendar
"until the Agency issues a Final Decision regarding plaintiffs new claims
so that they can be brought under the jurisdiction of this court." The
letter also stated that upon the issuance of a Final Decision plaintiff
wished "to file his claims in federal court and consolidate all matters."
Despite defense counsel's objections, Judge Batts granted this request on
May 23, 2001.
On January 28, 2002, plaintiff signed a Settlement Agreement with his
union and USPS. The agreement referenced four grievances, and included
the following sentence: "It is understood that this agreement is in full
complete settlement of all outstanding administrative EEO complaints or
appeals, in this or any other forums, filed by the grievant."
In a letter dated February 14, 2002, Mitchell Sturman, the manager of
EEO Compliance and Appeals with USPS, New York Metro Area, wrote a letter
to plaintiffs counsel, attaching the settlement agreement. The letter
quoted the portion of the agreement that we quoted in the previous
paragraph, and made the following statements: "A check of our records
indicates that there is one complaint, case no. 1 A-103-0022-01, filed on
October 18, 2001, which was pending a determination to accept or dismiss
the complaint when the above mentioned agreement was executed. It should
also be noted that I have been advised that during the settlement
discussion that your client was in fact in telephone communication with
you and that the agreement signed [sic] with your concurrence. Based on
the foregoing, case no. 1A-103-0022-01 is now closed as is any other
complaints [sic] initiated prior to January 28, 2002. If you disagree
with any of the information set forth, you are afforded 7 calendar days
from receipt of this letter to respond. Absent any response, this matter
will remain closed with no rights of appeal." Neither plaintiff nor
plaintiffs counsel responded to the letter.
On December 10, 2002, plaintiffs counsel wrote a letter to Judge Batts,
which was apparently not copied to defense counsel. In that letter, he
noted that "[p]laintiff requested that this matter be placed on the
suspense calendar due to other pending EEO matters filed with the postal
agency," and stated that "Currently, I am awaiting the issuance of the
Agency's Final Decision so that plaintiff can file the additional claims
in federal court." He repeated his intention, upon issuance of a final
decision, to "request that the above referenced matter be placed on the
active calendar" and to "move the court to consolidate all cases." He
concluded that "I expect to received [sic] the Agency's Final Decision by
January 31, 2003."
On June 3, 2003, defendants' counsel wrote to plaintiffs counsel,
enclosing a proposed stipulation and order, dismissing the instant action
with prejudice. The letter referenced the January 28, 2002, settlement,
and asked that plaintiffs counsel sign the stipulation "in order to
administratively close this matter." Plaintiffs counsel did not respond.
On July 18, 2003, plaintiffs counsel made the following statements in a
letter to Judge Batts: "The court placed this matter on the suspense
calendar because of outstanding administrative complaints pending in the
Postal Agency's EEO. Such outstanding complaints have been recently
disposed of. Currently there are no administrative EEO matters pending.
Accordingly, I respectfully request that the court order the above
referenced matter be placed on the court's active calendar and schedule a
conference to set up a discovery schedule." By an order of the same date,
Judge Batts directed the Clerk of the Court to remove the case from the
court's suspense calendar.
By letter dated July 23, 2003, defendants' counsel requested permission
to move to dismiss the action, or, in the alternative, for a pre-motion
conference. The settlement agreement and a failure by plaintiffs counsel
to prosecute the case were given as twin reasons supporting dismissal.
On October 15, 2003, the case was reassigned to the undersigned. On the
same day, the court ordered the parties to appear at a pre-trial
conference on November 3, 2003. By order dated October 27, 2003 the court
granted defense counsel's request for permission to move to dismiss the
action. In the court established a briefing schedule for the motion.
Plaintiff's counsel failed to appear at the November 3, 2003, pre-trial
conference, at which the court set November 14, 2003, as the date by
which defendants' counsel was to serve and file the motion to dismiss. In
a fax dated November 3, 2003, plaintiffs counsel informed the court that
in the light of the court's October 27, 2003, order granting leave to
file a motion to dismiss, he had "assumed the conference would not
proceed as initially scheduled."
Defendant has moved for summary judgment on the ground that plaintiffs
claims in the instant action are unambiguously waived by that portion of
the settlement agreement that reads "It is understood that this agreement
is in full complete settlement of all outstanding administrative EEO
complaints or appeals, in this or any other forums, filed by the
grievant." Plaintiff argues in response that the settlement does not
apply to the instant action.
A settlement is a contract, that once entered into is binding and
conclusive. Janneh v. GEF Corp., 887 F.2d 432, 436 (2d Cir. 1989), cert.
denied, 498 U.S. 865, 111 S.Ct. 177 (1990), abrogated on other grounds,
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S.Ct.
1992(1994). The proper interpretation of a contract is a question of law
for the court. Harris Trust & Sav. Bank v. John Hancock Mut. Life
Ins. Co., 970 F.2d 1138, 1147-48 (2d Cir. 1992); see Walk-In Med. Ctrs.,
Inc. v. Breuer Capital Corp., 818 F.2d 260, 263 (2d Cir. 1987) ("The
determination of whether a contract term is ambiguous is a threshold
question of law for the court."). "Where the intention of the parties is
clearly and unambiguously set forth, effect must be given to the intent