UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2064
ANTHONY G. ATKINSON,
Plaintiff - Appellant,
versus
M. EDWARD SELLERS; BLUE CROSS & BLUE SHIELD
OF SOUTH CAROLINA; WILLIAM R. HORTON,
Defendants - Appellees.
No. 05-2184
ANTHONY G. ATKINSON,
Plaintiff - Appellant,
versus
M. EDWARD SELLERS; BLUE CROSS & BLUE SHIELD
OF SOUTH CAROLINA; WILLIAM R. HORTON,
Defendants - Appellees.
Appeals from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CA-04-604-3)
Argued: March 14, 2007 Decided: May 23, 2007
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded with instructions to dismiss by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Wilkinson
and Judge Duncan joined.
ARGUED: Suzanne M. Caylor, Third-Year Student, WAKE FOREST
UNIVERSITY, School of Law, Winston-Salem, North Carolina, for
Appellant. Shahin Vafai, GIGNILLIAT, SAVITZ & BETTIS, Columbia,
South Carolina, for Appellee. ON BRIEF: John J. Korzen, Jose D.
Vega, Third-Year Student, WAKE FOREST UNIVERSITY, School of Law,
Appellate Advocacy Clinic, Winston-Salem, North Carolina, for
Appellant. Vance J. Bettis, GIGNILLIAT, SAVITZ & BETTIS, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Circuit Judge:
This appeal concerns an allegation that an employer breached
a settlement agreement entered into with a then-employee to settle
Title VII claims. Because the employee’s complaint alleges only a
breach of the settlement agreement and not a violation of Title VII
or any other federal statute, federal subject-matter jurisdiction
does not exist. Accordingly, the case must be dismissed.
I.
Anthony Atkinson was employed by Blue Cross & Blue Shield of
South Carolina (“Blue Cross”) from June 1997 to February 2000.
During his tenure, Atkinson applied for several internal positions
to advance his career. At the interviews for these positions, Blue
Cross personnel asked inappropriate questions regarding Atkinson’s
race and national origin. Atkinson complained to Blue Cross
management, who initiated an internal investigation. Blue Cross’s
internal investigation revealed that Atkinson had been the subject
of inappropriate remarks and interview questions and that his
managers wrongfully disclosed that he filed a grievance.
Through mediation, Atkinson and Blue Cross reached a
settlement agreement, which was reflected in a “Resignation,
Settlement Agreement and Release in Full” document (“Settlement
Agreement”). The Settlement Agreement provided that Blue Cross
would pay Atkinson a lump sum of $115,000, his accrued leave time,
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and provide employment outplacement services following the
execution of the agreement. The outplacement services would cease
after three months regardless of whether Atkinson obtained other
employment. Atkinson agreed to resign his employment at Blue Cross
and to release Blue Cross from any liability in connection with his
employment or separation, including liability under Title VII. In
addition, Atkinson agreed to waive all future rights to employment
at Blue Cross and not to seek employment from Blue Cross or its
subsidiaries or affiliates. Blue Cross paid the agreed-upon sum,
and on February 15, 2000, Atkinson resigned his employment.
Pursuant to the Settlement Agreement, Blue Cross set up an
appointment for Atkinson’s outplacement services with a
representative of Crutchfield Associates (“Crutchfield”). Atkinson
alleges that on a visit to Crutchfield’s offices, he saw two
individuals who had discriminated against him at Blue Cross, became
fearful of a possible encounter, and drove away. Neither Blue Cross
nor Crutchfield contacted Atkinson to ascertain why he stopped
using Crutchfield’s services.
On July 18, 2000, Atkinson wrote to Blue Cross authorizing the
release of his employment record to the Governor’s Office of South
Carolina (“Governor’s Office”). Blue Cross provided detailed
information, via telephone, to the Governor’s Office. As confirmed
by the reference report of the Governor’s Office and by Atkinson,
Blue Cross gave Atkinson an extremely favorable review. Atkinson
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was hired by the Governor’s Office, where he worked until March
2001. Following his employment with the Governor’s Office, Atkinson
worked as an insurance agent for ING/Life of Georgia and AIG
American General.
In August 2003, Atkinson applied for a position with State
Farm Insurance Companies (“State Farm”). After receiving a
satisfactory score on a career profile, State Farm invited Atkinson
to attend a career seminar on October 1. On November 12, State Farm
informed Atkinson via letter that he was no longer being considered
for a position because of information contained in an investigative
report conducted by ChoicePoint. Atkinson alleges that the negative
ChoicePoint report was a result of the employment verification
information that Blue Cross provided to ChoicePoint.
After receiving the letter from State Farm, Atkinson called
Blue Cross to verify his employment record. He alleges that he
received inaccurate information about the specific dates of his
employment and that a “rehire eligibility” box was checked on an
earlier Blue Cross employment verification provided to ING/Life of
Georgia, but was not checked on the verification provided to State
Farm. In addition, Atkinson spoke with Amy Stroupe, a white female
employee of Blue Cross, who told Atkinson that her employment
information was treated in a more secure manner than Atkinson’s
employment information. Atkinson believed that Blue Cross’s conduct
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was a breach of the Settlement Agreement and exchanged
correspondence with Blue Cross regarding the matter.
During the time of his correspondence with Blue Cross,
Atkinson contacted the Office of Federal Contracts Compliance
Programs (“OFCCP”), the agency responsible for enforcing Executive
Order 11246, which applied to Blue Cross as a federal contractor.1
OFCCP informed Atkinson that his allegations were “moving to the
realm of a private matter . . . governed by the [Settlement
Agreement].” S.J.A. 3. Atkinson alleges that based on this advice
he did not file a complaint with either the OFCCP or the EEOC and
instead filed suit pro se in federal court.
Atkinson filed his complaint on February 27, 2004, alleging
that Blue Cross violated the Settlement Agreement.2 Blue Cross
1
“Executive Order 11246 prohibits discrimination on the basis
of race, color, religion, sex, or national origin by federal
contractors.” Volvo GM Heavy Truck Corp. v. U.S. Dep’t of Labor,
118 F.3d 205, 206 (4th Cir. 1997) (citing Exec. Order No. 11,246,
§ 202, 3 C.F.R. 167, 168 (1965 Supp.), amended by Exec. Order No.
11,375, 3 C.F.R. 320, 321 (1967 Comp.)). The OFCCP is charged with
administering Executive Order 11246. See 41 C.F.R. § 60-1.2 (2006).
2
Atkinson’s verified complaint alleged, in full:
On December 20, 1999 Plaintiff a then employee of
the Defendants, a Federal Government contractor, executed
a “RESIGNATION, SEPARATION AGREEMENT AND RELEASE IN FULL”
as final settlement to charges of egregious civil rights
violation against Defendants under EXECUTIVE ORDER 11246
of September 24, 1965 and TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964 as amended.
The agreement which was fully executed by William R.
Horton on behalf of Defendants and Plaintiff and his
attorney Clifton Newman set forth equitable obligations,
rights, duties, and relief for Plaintiff and Defendants
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answered on March 25 but did not raise Atkinson’s failure to
exhaust his administrative remedies as an affirmative defense. On
June 24, Atkinson submitted to Blue Cross interrogatory responses
indicating that his claim was based upon Title VII as well as
breach of contract grounds. Based on Atkinson’s responses, Blue
Cross moved for leave to amend its answer. Atkinson consented to
Blue Cross’s motion and on August 11, Blue Cross filed its amended
answer, including an affirmative defense that Atkinson failed to
exhaust his administrative remedies.
On September 3, Blue Cross moved for summary judgment on
Atkinson’s claims of discrimination under Title VII and breach of
contract. Based on the Report & Recommendation from the magistrate
judge, the district court granted Blue Cross summary judgment on
the Title VII claims due to Atkinson’s failure to exhaust his
administrative remedies. The district court dismissed Atkinson’s
state contract claims without prejudice. This appeal followed.
as mutually agreed upon between Plaintiff and Defendants
as parties to a contract.
Plaintiff is contending that Defendants by acts and
omissions have violated the agreement of December 20,
1999 resulting in severe harm and loss to Plaintiff.
Request made by hand delivered letters by Plaintiff
upon Defendants to settle claim for damages arising from
the violation of the agreement of December 20, 1999 as
set forth in the said agreement have been met with
calculated intransigence.
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II.
We review a district court grant of summary judgment de novo,
resolving all doubts and inferences in favor of the nonmoving
party. Bacon v. City of Richmond, Va., 475 F.3d 633, 637 (4th Cir.
2007). A moving party is entitled to summary judgment if the
evidence shows that no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Fed R.
Civ. P. 56(c); Nat’l City Bank of Ind. v. Turnbaugh, 463 F.3d 325,
329 (4th Cir. 2006).
It is well established that “[f]ederal courts are courts of
limited jurisdiction and are empowered to act only in those
specific situations authorized by Congress.” Bowman v. White, 388
F.3d 756, 760 (4th Cir. 1968). Consequently, “[w]henever it appears
by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the
action.” Fed. R. Civ. P. 12(h)(3). The absence of subject-matter
jurisdiction may be raised at any time during the case, including
on appeal, and may be based on the court’s review of the evidence.
See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999); see also
Kontrick v. Ryan, 540 U.S. 443, 355 (2004) (“A litigant generally
may raise a court's lack of subject-matter jurisdiction at any time
in the same civil action, even initially at the highest appellate
instance.”); Mansfield, Coldwater & Lake Mich. Ry. Co. v. Swan, 111
U.S. 379, 382 (1884) (noting that on every appeal, “first and
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fundamental question,” even if not suggested by the parties, is
that of subject-matter jurisdiction).
III.
The district court treated Atkinson’s complaint as raising a
Title VII claim in addition to state-law contract claims. Because
Atkinson did not file a charge with the EEOC, the district court
granted summary judgment to Blue Cross on the Title VII claim.3 On
its face, however, Atkinson’s complaint alleged only a breach of
contract arising from Blue Cross’s violation of the Settlement
Agreement. It did not allege that Blue Cross violated Title VII or
engaged in any discriminatory conduct. Nor did the complaint allege
that Blue Cross took actions that would violate any other federal
statute. Although part of the consideration underlying the
Settlement Agreement may have been Atkinson’s waiver of Title VII
claims against Blue Cross, “[n]o federal statute makes that
connection (if it constitutionally could) the basis for federal-
court jurisdiction over the contract dispute.” Kokkonen v. Guardian
Life Ins. Co. of America, 511 U.S. 375, 381 (1994); see Morris v.
City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994).
3
On appeal, Atkinson argues that his failure to file an EEOC
charge should be excused by either the doctrine of equitable
tolling or equitable estoppel. Because we find that we lack
jurisdiction over Atkinson’s claim, we do not address Atkinson’s
failure to file with the EEOC.
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We have also recognized a “small class of ‘cases in which a
well-pleaded complaint establishes . . . that the plaintiff’s right
to relief necessarily depends on resolution of a substantial
question of federal law, in that federal law is a necessary element
of one of the well-pleaded . . . claims.’” Pinney v. Nokia, Inc.,
402 F.3d 430, 442 (4th Cir. 2005) (quoting Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 808 (1988)). “A plaintiff's
right to relief for a given claim necessarily depends on a question
of federal law only when every legal theory supporting the claim
requires the resolution of a federal issue.” Dixon v. Coburg Dairy,
Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc). In this case,
Atkinson could obtain relief on his breach of contract claim
without reference to federal law at all, if the claim were
litigated solely on the theory that Blue Cross breached the
Settlement Agreement and that breach violated South Carolina law.
Therefore, Atkinson’s complaint does not depend on the resolution
of a substantial question of federal law.
As the Tenth Circuit stated in Morris: “The jurisdictional
grant embodied in Title VII states only that federal courts have
jurisdiction over actions ‘brought under’ Title VII. This case was
brought under state contract law, not Title VII.” 39 F.3d at 1112
(citation and footnote omitted). Because Atkinson neither alleges
a violation of a federal statute nor raises a substantial question
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of federal law, his complaint does not satisfy the requirements of
subject-matter jurisdiction and must be dismissed.
IV.
Atkinson’s complaint for breach of contract based on the
Settlement Agreement does not arise under Title VII, or any other
federal statute, or depend on a resolution of a substantial
question of federal law. Thus, the district court lacked subject-
matter jurisdiction to consider Atkinson’s claims. Accordingly, we
remand this case to the district court with instructions to vacate
the judgment and dismiss the case for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1) and 12(h)(3).
VACATED AND REMANDED
WITH INSTRUCTIONS
TO DISMISS
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