United States Court of Appeals
For the First Circuit
No. 08-2435
JUAN GALERA,
Plaintiff, Appellant,
v.
MIKE JOHANNS,
SECRETARY, DEPARTMENT OF AGRICULTURE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Bámily López-Ortiz, with whom López Toro Estudio de Derecho y
Notaría, was on brief for appellant.
Lisa E. Bhatia-Gautier, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
were on brief for appellee.
July 14, 2010
TORRUELLA, Circuit Judge. Juan R. Galera ("Galera")
seeks review of the decision of the U.S. District Court for the
District of Puerto Rico granting motions for summary judgment in
favor of appellee, the U.S. Secretary of Agriculture. That
decision concerned Galera's claims under the retaliation provision
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
3(a).1
Galera appeals the decision on two grounds. First, he
contends that the district court erred in finding that a settlement
agreement entered into by the parties barred his claims. Second,
he argues that the district court erred in concluding that he
failed to prove that the purported legitimate non-discriminatory
reason for the adverse employment action taken against him was
pretextual. After careful consideration, we affirm.
I. Background
A. Facts2
1
42 U.S.C. § 2000e-3(a) provides, in relevant part:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or
applicants for employment . . . because he has opposed
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
subchapter.
2
"The facts are drawn from the parties' statements of material
uncontested facts and the exhibits submitted by the parties at the
summary judgment stage. Because this is an appeal from a grant of
summary judgment, we recite the facts in the light most favorable
-2-
Galera began working in 1995 for the U.S. Department of
Agriculture ("USDA"). At that time, he served as the Supervisory
Plant Protection and Quarantine Officer (commonly referred to as
"Port Director") of Work Unit I (airport operations) of the Plant
Protection and Quarantine division ("PPQ") of the Animal and Plant
Health Inspection Service ("APHIS"). After an administrative
rotation, effective January 21, 2001, Galera became the Port
Director for Work Unit II (maritime operations), and Leyinski
Wiscovitch-Iglesias ("Wiscovitch"), then-Port Director for Work
Unit II, became the Port Director for Work Unit I.
In early 2001, Gary Greene, then the USDA State Plant
Health Director ("SPHD") for Puerto Rico and the U.S. Virgin
Islands, resigned from his position. Galera applied for the
position, but was not selected. As a result, on November 1, 2001,
Galera filed a formal Equal Employment Opportunity ("EEO")
complaint ("the November 2001 complaint") alleging discrimination
based on his Puerto Rican national origin and, because he had filed
a formal complaint of discrimination against Greene in 2000,3
reprisal.
Between Greene's resignation in 2001 and October 2002,
the SPHD position was filled temporarily and then was again
to plaintiff-appellant, [Galera]." Martínez-Rodríguez v. Guevara,
597 F.3d 414, 416 n.1 (1st Cir. 2010).
3
Galera's 2000 complaint of discrimination is not at issue in
this case.
-3-
vacated. By October 2002, Wiscovitch had applied for and been
promoted to the SPHD position, thus leaving the Port Director
position for Work Unit I vacant.
In March 2003, PPQ was reorganized pursuant to the
Homeland Security Act such that certain functions, including those
of Work Unit II, shifted to the Department of Homeland Security
("DHS"). Consequently, many of the staff employed in this work
unit, including Galera, were transferred to DHS. On March 9, 2003,
DHS acquired Galera's Port Director position.
A vacancy announcement for the Port Director position for
Work Unit I, which had remained vacant since October 2002 due to
budget uncertainty, was then posted from May 12 until May 19, 2003.
Galera applied for the advertised vacancy.
Wiscovitch, the selecting official, received a slate of
seven candidates, including Galera, who were considered the best
qualified for the position.4 Appellee contends that, based on the
results of two review panels, Wiscovitch selected another employee
for the Port Director position.
On December 11, 2003, Galera contacted an EEO Counselor
at the Alternate Dispute Resolution Center ("the Center") of
APHIS's Civil Rights Enforcement and Compliance office. According
to the EEO Counselor's report, "Galera filed an allegation of
4
The record does not disclose who submitted the slate of
candidates to Wiscovitch.
-4-
discrimination based on [r]eprisal," to which the Center assigned
an informal case number. Galera alleged that he had previously
filed an EEO complaint5 and that, in 2003, Wiscovitch and Harabin
retaliated against Galera by not selecting him for the Work Unit I
Port Director position.
On June 28, 2004, Michael A. Lidsky, Resolving Official
for USDA, signed a Settlement Agreement ("Agreement")6 related
5
According to the EEO Counselor's report, "Galera stated that he
previously filed an EEO complaint in March 2003 against [USDA] for
being transferred to DHS in which Mr. Harabin was named as the
Responding Official." Other than this report, there is no
reference in the record to Galera's March 2003 EEO complaint.
Regardless of whether a complaint was filed in November 2001 or
March 2003 (or both), the fact that Galera had previously filed at
least one EEO complaint is undisputed.
6
The Agreement provided, in relevant, part:
This [Agreement] made by and between [Galera] and [USDA]
constitutes a full, complete, and voluntary final
settlement and release of any and all alleged employment
concerns raised in [Galera's] formal EEO complaint dated
November 1, 2001 . . . , as well as in any other
grievances, appeals, civil actions, or complaints filed
with the United States Equal Employment Opportunity
Commission (hereinafter "EEOC") . . . or any other
Federal agency, administrative tribunal, or court
concerning [Galera's] employment with [USDA] through the
date that the last signatory below signs and dates this
Agreement (hereinafter "the effective date of this
Agreement"). There are no other terms, written or oral,
that are not included in the text of this Agreement.
As part of the Agreement, Galera agreed:
A. To withdraw, with prejudice, EEO complaint dated
November 1, 2001 . . . and any other EEO complaints
(formal or informal) brought against [USDA] . . .
concerning or arising out of [Galera's] employment with
[USDA] arising prior to the effective date of this
-5-
to Galera's 2001 formal complaint of discrimination. On July 6,
2004, Galera and his counsel signed the Agreement. Eight days
later, a DHS official affixed the last signature, making the
Agreement effective.7
Agreement. . . . [Galera] further agrees not to raise
any new grievances, appeals, civil actions or complaints
of any nature with the EEOC . . . or any other Federal
agency, administrative tribunal or court regarding any
aspect of his employment with [USDA] or any of the issues
outlined in his November 1, 2001, EEO complaint arising
prior to the effective date of this Agreement;
B. To release, waive, and withdraw any and all other
complaints, grievances, appeals, or civil actions which
have been filed with the EEOC . . . or any other Federal
agency, administrative tribunal or court against [USDA]
. . . for any concerns arising out of Complainant's
employment with [USDA] prior to the effective date of
this Agreement. This Agreement in no way prevents
[Galera] from exercising his rights in accordance with 29
C.F.R. § 1614, in any other matter that arises after the
effective date of this Agreement.
C. To voluntarily waive, release, and forever discharge
[USDA], its employees, representatives and agents from
any claims, demands, or causes of action which he has, or
may have, arising from the identified complaint of
discrimination or any other claim or alleged claim of
employment discrimination against [USDA] arising prior to
the effective date of the Agreement. This release
includes, but is not limited to, a release of any right
to administrative, judicial, congressional, or any other
kind of relief, or of any claim to back pay or other
forms of compensation, as to allegations raised in EEO
complaint dated November 1, 2001 . . . or any other claim
or alleged claim of employment discrimination against
[USDA] regarding any aspect of his employment with [USDA]
arising prior to the effective date of this Agreement,
except as found in this Agreement . . . .
7
Given that Galera had been transferred from USDA to DHS,
officials representing each agency signed the Agreement, which
spanned his employment at both agencies.
-6-
B. Procedural History
On August 11, 2004, Galera filed a formal EEO complaint
of discrimination based on retaliation against APHIS with the
Employment Complaints Division of USDA's Office of Civil Rights.
On December 14, 2004, Galera submitted a letter to the Office of
Civil Rights, requesting a final agency decision on the complaint.
On March 9, 2006, the Office of Civil Rights issued a "Final Agency
Decision" finding that "no relief or corrective action [wa]s
warranted or ordered in this matter." The Office of Civil Rights
determined that there was "sufficient evidence to establish that
[Galera] engaged in protected activity [by filing a discrimination
complaint], and that he was subsequently disadvantaged when he was
not selected to the Port Director position," but "the activity was
not within sufficient proximity to the employment actions
challenged in this complaint to support an inference of causation."
The Office of Civil Rights also determined that "[e]ven, assuming
arguendo, that [Galera] can prove a prima facie case,
[APHIS] . . . articulated a legitimate, nondiscriminatory reason
for its selection decision." The Office of Civil Rights found
"that [Galera] . . . failed to demonstrate that [APHIS's]
legitimate, nondiscriminatory reasons were a pretext for
discrimination," or that "his qualifications were 'plainly
superior' to that of the Selectee."
-7-
On June 22, 2006, Galera brought this action in the U.S.
District Court for the District of Puerto Rico. On July 19, 2006,
he filed an Amended Complaint against USDA alleging "reprisals
taken against [him] for engaging in prior [EEO] activity consisting
in the filing of a formal complaint of discrimination based on
national origin." He claimed that USDA had "engag[ed] in
discriminatory employment and recruitment practices at [PPQ]
against him in retaliation for having engaged in protected
activity," in violation of Title VII of the Civil Rights Act of
1964, as amended. See 42 U.S.C. § 2000e-3(a). Galera sought
compensatory damages totaling approximately $300,000, back pay,
attorney's fees, and reimbursement of the costs incurred in
litigation. He also requested reinstatement to his former position
as Port Director of PPQ's Work Unit I or, alternatively, front pay.
On May 30, 2008 and June 13, 2008, Appellee filed two
separate motions for summary judgment. In an opinion and order
issued on September 10, 2008, the district court, granting both
motions, held: (1) that the Agreement barred the instant action
because Galera had agreed to waive any complaints presented against
USDA prior to the effective date of the Agreement (July 14, 2004);
and (2) that Galera failed to establish pretext. Galera
subsequently filed this appeal. Because we find that the Agreement
covered the time frame of the alleged retaliatory conduct and
complied with the relevant regulation, 29 C.F.R. § 1614.603, we
-8-
affirm the district court's decision without addressing the merits
of Galera's retaliation claim.
II. Discussion
A. Standard and Scope of Review
"We review the district court's grant of summary judgment
de novo." Foley v. Town of Randolph, 598 F.3d 1, 5 (1st Cir.
2010). Summary judgment is only appropriate where "the pleadings,
the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law." Id.
(quoting Fed. R. Civ. P. 56(c)(2)) (internal quotation marks
omitted).
B. Analysis
Galera contends that the district court erroneously
concluded that the Agreement barred his claims of discrimination
based on retaliation. He asserts that the Agreement only
identifies the formal complaint dated November 1, 2001 and, as a
result, the Agreement should not be interpreted as precluding his
subsequent claims of retaliation.8 He also argues that the
8
Galera also suggested for the first time at oral argument that
the Agreement could not preclude his claims of retaliation, for
which a formal complaint had not yet been filed by the time the
Agreement had been signed, because a Title VII cause of action does
not begin to accrue until a formal complaint of discrimination has
been filed. The Supreme Court has reaffirmed, however, that "the
time for filing a charge of employment discrimination with the
[EEOC] begins when the discriminatory act occurs," and that "this
rule applies to any discrete act of discrimination, including
-9-
district court, in reaching its conclusion, failed to consider the
actions taken by the parties after the Agreement was signed as
evidence of their intent, namely, to settle exclusively the
November 2001 complaint.9 USDA maintains, however, that it is
entitled to summary judgment because Galera waived all claims,
formal and informal, against USDA prior to July 14, 2004, when the
Agreement he signed came into effect.
The district court rejected Galera's arguments, noting
that "the conduct plaintiff Galera is complaining [of] in the
instant Amended Complaint took place prior to the effective date of
the Agreement and should be considered as covered by the same," and
thus "the Agreement covered and waived the instant Amended
Complaint." Galera v. Johanns, No. 06-1625, slip op. at 13 (D.P.R.
Sept. 10, 2008). We agree.
termination, failure to promote, denial of transfer, and refusal to
hire." Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621
(2007) (superceded on other grounds by Lilly Ledbetter Fair Pay Act
of 2009, Pub. L. No. 111-2, 123 Stat. 5) (citation and internal
quotations marks omitted) (emphasis added). In any case, "because
[Galera] raised this argument for the first time at oral argument,
we refuse to consider it." Pleasures of San Patricio, Inc. v.
Méndez-Torres, 596 F.3d 1, 7 n.2 (1st Cir. 2010).
9
"[C]ourts should refrain from resorting to extrinsic evidence
where a contract is utterly unambiguous . . . ." Southex
Exhibitions, Inc. v. R.I. Builder's Ass'n, 279 F.3d 94, 102 (1st
Cir. 2002). Although "the term 'extrinsic evidence' is imprecise,"
it includes the "post-contract conduct" of the parties. Nat'l Tax
Inst., Inc. v. Topnotch at Stowe Resort & Spa, 388 F.3d 15, 19-20
(1st Cir. 2004). Because we find that the Agreement here is
unambiguous, we need not address this issue in our decision.
-10-
We have previously found that "our precedent leaves
little room for doubt that [an employee's release of Title VII
rights], like a release of other federal statutorily-created
rights, must be knowing and voluntary, as evidenced by the totality
of the circumstances, and that, if it is, the terms of the release
will ordinarily be given their legal effect." Melanson v.
Browning-Ferris Indus., Inc., 281 F.3d 272, 274 (1st Cir. 2002)
(citation omitted). Galera does not contend that he unknowingly or
involuntarily released his claims against USDA, and thus our
inquiry is limited to the terms of the Agreement's release.
As per 29 C.F.R. § 1614.603, "[a]ny settlement [of
complaints of discrimination] reached shall be in writing and
signed by both parties and shall identify the claims resolved."
The Agreement here, which was in writing and signed by both
parties, provided a general waiver that covered all claims within
the applicable time period, thus complying with the regulation.
Contrary to Galera's assertions, the Agreement did not limit its
scope to the November 2001 complaint. Instead, the Agreement
referred to the November 2001 complaint and "any other grievances,
appeals, civil actions, or complaints filed with the [EEOC] . . .
or any other Federal agency, administrative tribunal, or court
concerning [Galera's] employment with [USDA] through [the effective
date of this Agreement]." In signing the Agreement, Galera agreed
to withdraw the November 2001 complaint and "any other EEO
-11-
complaints (formal or informal) brought against [USDA] . . .
arising prior to the effective date." Galera further agreed "not
to raise any new grievances, appeals, civil actions or complaints
of any nature with the EEOC . . . or any other Federal agency,
administrative tribunal or court regarding any aspect of his
employment with [USDA] . . . arising prior to the effective date."
General waivers of this nature which are, as here, knowing and
voluntary, have previously been found valid. See, e.g.,
Rivera-Olmo v. State Ins. Fund Corp., 250 F. App'x 365, 366 (1st
Cir. 2007) (finding that an employee waived her right to sue under
a federal employment statute where the settlement agreement,
entered into knowingly and voluntarily, provided that the employee
"releas[ed] and forever discharg[ed] [employer] for any and all
claims [arising out of her complaint] without limitation . . .
including . . . a release and discharge for any potential and/or
actual liability for causes of action [under]" various laws,
including a federal employment statute)(quotation marks omitted);
Melanson, 281 F.3d at 275 (concluding that a knowing and voluntary
release, under which employee "release[d] and discharge[d] forever
[employer] from any and all . .. claims, demands, actions, and
causes of action . . . arising out of or related in any way to the
employee's employment . . .," including under Title VII, was
enforceable).
-12-
The alleged retaliatory conduct in the instant case
extended until November 19, 2003, when Galera was not selected for
Work Unit I's Port Director position. Because this conduct
occurred prior to the effective date of the Agreement, July 14,
2004, and the Agreement complied with the relevant regulation, we
find that Galera's claims are barred.
III. Conclusion
For the foregoing reasons, we affirm the district court's
judgment.
Affirmed.
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