[00:00:00] Speaker 02: Case number 20-5264, Corrine Wang, a balance, versus Martin J. Walsh, Secretary of Labor. [00:00:07] Speaker 02: Ms. [00:00:07] Speaker 02: Wang, for the balance. [00:00:09] Speaker 04: Welcome to Zoom for government. [00:00:11] Speaker 04: Enter your meeting ID, followed by count. [00:00:17] Speaker 00: Hold on. [00:00:20] Speaker 00: Are we ready to... Ann Sturkens. [00:00:25] Speaker 01: I believe we are ready to start. [00:00:27] Speaker 01: Yes. [00:00:28] Speaker 03: Okay. [00:00:28] Speaker 03: Thank you. [00:00:29] Speaker 03: Good morning, Council. [00:00:31] Speaker 03: Ms. [00:00:31] Speaker 03: Wang, please proceed when you're ready. [00:00:34] Speaker 04: Can you hear me? [00:00:36] Speaker 03: We can. [00:00:36] Speaker 04: Okay. [00:00:38] Speaker 04: Thank you, Your Honor. [00:00:40] Speaker 04: May it please the court. [00:00:41] Speaker 04: This is the second appeal in my Title VII action for wrongful termination. [00:00:47] Speaker 04: I contend that the district court erred again when it granted summary judgment to the government on res judicata grounds [00:00:55] Speaker 04: due to the supposed preclusive effect of a prior 2013 settlement agreement between the parties. [00:01:02] Speaker 04: The question presented can be broken down into three issues, and these are my positions. [00:01:08] Speaker 04: Number one, the district court erred in finding that I previously settled all my Title VII claims in 2013. [00:01:16] Speaker 04: It essentially found that I failed to state a claim in my complaint. [00:01:21] Speaker 04: In construing the settlement agreement, the district court misapplied the ordinary principles of contract law. [00:01:27] Speaker 04: A contract must be considered as a whole. [00:01:38] Speaker 04: I heard something. [00:01:40] Speaker 03: We did, too. [00:01:42] Speaker 03: I hope that that's not going to repeat itself. [00:01:43] Speaker 03: So why don't you continue, Ms. [00:01:45] Speaker 03: Wang, and we'll hope that that doesn't happen again. [00:01:48] Speaker 04: Oh, I'm sorry. [00:01:49] Speaker 04: In construing the settlement agreement, the district court misapplied the ordinary principles of contract law. [00:01:55] Speaker 04: A contract must be considered as a whole, yet the district court cherry picked one boilerplate term and took it out of context. [00:02:03] Speaker 04: Number two, there is another problem with the district court's finding that post-settlement, I was left solely with a wrongful termination under the Civil Service Reform Act, or CSRA. [00:02:14] Speaker 04: It contradicts this court's ruling in my first appeal, which established [00:02:19] Speaker 04: that I had a mixed case before the Merit Systems Protection Board so that my complaint was subject to the district court's jurisdiction. [00:02:26] Speaker 04: My MSPB appeal was decided in 2015 well after the settlement agreement date that I had a mixed case before the MSPB which included Title VII discrimination allegations is a settled matter. [00:02:41] Speaker 04: Number three a district court's disposal of my suit based on its sui sponte interpretation of the settlement agreement [00:02:48] Speaker 04: violated due process. [00:02:50] Speaker 04: I was prejudiced by the district court's failure to provide me with notice of the suesponte ground and an opportunity to respond as required by Federal Rule of Civil Procedure 56 Act. [00:03:02] Speaker 04: This is due to the fact that the district court incorrectly construed the settlement agreement as I had expressly reserved the right to pursue my discriminatory removal case then pending before the MSPB. [00:03:15] Speaker 04: In sum, the district court erred in granting summary judgment to the government, essentially based on my failure to state a claim because I properly pled a wrongful termination under Title VII. [00:03:27] Speaker 04: I'll do my best to answer your questions. [00:03:31] Speaker 03: In your wrongful termination claim that is presently before us, is Title VII, is there a discrimination component to that claim based on [00:03:43] Speaker 03: the protected characteristics other than disability? [00:03:48] Speaker 04: I don't have a disability discrimination claim. [00:03:51] Speaker 04: I have a Title VII claim alleging discrimination based on race, national origin, sex, and retaliation. [00:04:05] Speaker 00: Is that what was before the MSPB? [00:04:10] Speaker 04: Yes, it was. [00:04:12] Speaker 04: Before the MSPB, I also had a Rehabilitation Act claim for retaliation. [00:04:17] Speaker 00: No, I'm not talking about the rehabilitation. [00:04:18] Speaker 00: I'm talking about the things you just stated, the Title VII, the employment discrimination claims. [00:04:25] Speaker 04: Yes, those were the claims before the MSPB. [00:04:34] Speaker 00: Okay. [00:04:34] Speaker 00: I have nothing more. [00:04:35] Speaker 03: I don't know that we have any additional questions for you, Ms. [00:04:38] Speaker 03: Wang. [00:04:38] Speaker 03: Why don't we let the government present its case and then we'll give you a little bit of time for rebuttal. [00:04:43] Speaker 04: Okay, that was much easier than I expected. [00:04:46] Speaker 04: Thank you. [00:04:49] Speaker 03: Mr. DeGeneres. [00:04:52] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:04:54] Speaker 02: My name is Assistant U.S. [00:04:55] Speaker 02: Attorney Stephen DeGeneres, and I'll be arguing on behalf of the Apple League, the Secretary of Labor. [00:05:00] Speaker 02: Your honors, the judgment below should be affirmed for three reasons. [00:05:05] Speaker 02: First, the grievance that Ms. [00:05:08] Speaker 02: Wang filed that from which this case arises does not administratively exhaust the Title VII termination claims as she pursues in this action. [00:05:17] Speaker 02: Second, [00:05:18] Speaker 00: Does not what? [00:05:19] Speaker 00: What did you say? [00:05:20] Speaker 00: Does not what? [00:05:21] Speaker 02: Does not administratively exhaust the Title VII termination claims that she has pursued in this action. [00:05:28] Speaker 02: Second, the Salmon Agreement from Ms. [00:05:30] Speaker 02: Wang's first lawsuit against the Department of Labor [00:05:34] Speaker 02: settled all claims except for those that were properly preserved in a grievance. [00:05:39] Speaker 02: And because the Title VII termination claims that Ms. [00:05:42] Speaker 02: Wang is pursuing here were not so preserved in a grievance, that's not an agreement. [00:05:47] Speaker 00: Why will they not border the grievance? [00:05:51] Speaker 00: You're saying her claims don't subsume employment discrimination claims? [00:05:56] Speaker 00: We wouldn't have jurisdiction if they didn't. [00:06:00] Speaker 02: Your honor, the government's position is that the March 13, 2012 grievance properly develops the factual basis for Rehabilitation Act claims and a wrongful termination claim under the Civil Service Reform Act. [00:06:13] Speaker 02: Those two would confer jurisdiction on this court as a mixed case. [00:06:17] Speaker 02: However, the grievance from which this case arise does not include any allegations of race, national origin, or sexism. [00:06:26] Speaker 00: Does the MSPB decision disclaim [00:06:30] Speaker 00: Anything about employment discrimination? [00:06:33] Speaker 00: The case is not about employment discrimination? [00:06:36] Speaker 02: Your Honor, the MSPB's final order dismissing the claim for lack of jurisdiction does not reach the issue of the merits of Ms. [00:06:45] Speaker 02: Wang's claims. [00:06:47] Speaker 02: If I could direct the Court's attention at page 142 of the Joint Appendix, this is where the MSPB includes its discussion that it does not reach the merits of those claims, and it starts that discussion by indicating that the appellant's claims of discrimination based on disability [00:07:04] Speaker 02: retaliation for engaging in protected activity are considered only as they relate to the issue of voluntariness of the resignation. [00:07:12] Speaker 02: So the evidence in the record shows that although they did not reach the issue of the merits, the MSPB's final order considered the grievance as properly raising claims under the Rehabilitation Act and the Civil Service Act. [00:07:24] Speaker 00: But they say also retaliation. [00:07:28] Speaker 02: Yes, Your Honor. [00:07:29] Speaker 02: I believe that's in reference to protected activity underneath the Rehabilitation Act. [00:07:35] Speaker 00: I don't see the MSP be cutting it that way. [00:07:38] Speaker 00: I mean, where does it say that the employment discrimination and the district court made a finding against you and said she was terminated. [00:07:50] Speaker 00: And so there's no issue there. [00:07:52] Speaker 00: District court resolved that, again, she was terminated. [00:07:56] Speaker 00: I understood the MSPB claim to involve matters having to do with forced termination that was discriminatory in her mind. [00:08:07] Speaker 00: Now the MSPB didn't go into it fully because they went off on a jurisdictional basis that was wrong. [00:08:15] Speaker 00: But I don't see how the settlement agreement gives you a release in any way when it specifically refers to the MSPB matter specifically. [00:08:27] Speaker 02: Yes, Your Honor. [00:08:28] Speaker 00: As you can show us something that makes it absolutely clear that the grievance does not involve employment discrimination. [00:08:35] Speaker 00: I don't know how you have a release. [00:08:39] Speaker 02: Your Honor, this court's decision in Park v. Howard University is instructive on that point in that the D.C. [00:08:47] Speaker 02: Circuit reversed the below decision in that case where the D.C. [00:08:55] Speaker 02: Circuit found that [00:08:57] Speaker 02: Ms. [00:08:58] Speaker 02: Park in that case, while she had developed the factual basis in her EEO charge for both national origin and sex discrimination, she did not indicate that she was advancing a hostile work environment. [00:09:15] Speaker 03: Can we focus on the rationale that the district court adopted instead of an alternate ground for potentially affirming? [00:09:22] Speaker 03: Because if your argument is that, look, there's not even a Title VII component to the unlawful discharge claim at all, that's not what the district court relied on. [00:09:32] Speaker 03: The district court said that there's a settlement agreement and that the carve out from the settlement agreement doesn't carve out Title VII. [00:09:42] Speaker 03: a Title VII component to the unlawful termination claim. [00:09:47] Speaker 03: But if we assume that there is a Title VII component to the unlawful termination claim, which I think the district court did, if we assume that, then you're not, as I understand it, you don't defend the district court's rationale, which is that even if there is a Title VII component to the unlawful termination claim, that was still bound up in the settlement agreement. [00:10:05] Speaker 03: You, I think, agree that that would have been carved out. [00:10:07] Speaker 03: You just dispute the premise. [00:10:10] Speaker 02: Yes, your honor, if this court were to disagree with the government's position and conclude that the grievance at issue here does properly. [00:10:19] Speaker 03: Not that we disagree with you, but we just don't reach it. [00:10:21] Speaker 00: We don't reach it. [00:10:22] Speaker 00: Your court didn't reach it either. [00:10:24] Speaker 00: Your court went off on a completely different theory and one that's hard to comprehend. [00:10:30] Speaker 02: I see your honor. [00:10:31] Speaker 02: And let me try to address the court's rationale. [00:10:35] Speaker 02: I read the decision of the district court as assuming that even if the Title VII claim were preserved within the grievance, then it would be resolved. [00:10:49] Speaker 02: I don't read the order as reaching that issue. [00:10:53] Speaker 01: I'm sorry, did it would be resolved? [00:10:56] Speaker 00: No, you don't mean that. [00:10:57] Speaker 01: It would be resolved. [00:10:58] Speaker 01: You mean that it would be barred? [00:11:00] Speaker 00: You're saying there's a release that would cover that. [00:11:04] Speaker 03: That's correct, Your Honor, yes. [00:11:06] Speaker 03: But I guess what I'm saying is, actually, I think I agree with you that the district court assumed that if there were a Title VII component to the claim, then it would have been resolved. [00:11:18] Speaker 03: Now, I'm saying suppose we take the same assumption for now. [00:11:21] Speaker 03: We just assume the same thing. [00:11:23] Speaker 03: You're not defending the district court's rationale that even assuming that there is a Title VII component to the unlawful termination, that would have been resolved by the settlement agreement. [00:11:32] Speaker 03: You don't defend that. [00:11:35] Speaker 02: That's correct, Your Honor. [00:11:36] Speaker 03: Okay, so then if we agree with you and that you're not defending it, then why wouldn't we just send it back down and say the settlement agreement doesn't cover a Title VII claim, assuming that it's in there, and now the district court can decide whether it's in fact in there. [00:11:54] Speaker 00: Whether it's in there or not. [00:11:57] Speaker 02: Your honor, this court does have the discretion to affirm on any properly subordinated basis on the record. [00:12:03] Speaker 03: That discretion is rooted in norms that- Right, okay, so I just want to make sure that I understand that that whole argument is a request that we affirm on an alternate ground that's presented in the record. [00:12:16] Speaker 03: It's not a defense of the district court's rationale. [00:12:20] Speaker 03: Yes, Your Honor. [00:12:21] Speaker 03: Okay. [00:12:22] Speaker 01: And we're not bound to do that. [00:12:25] Speaker 01: Just for clarification, you agree that the district court's rationale can't be supported, right? [00:12:32] Speaker 01: You agree that if the carve out includes the Title VII claim, then it's not barred by the settlement, correct? [00:12:42] Speaker 02: Your Honor, I would agree with that. [00:12:45] Speaker 01: That's in fact the position you argue in the district court. [00:12:50] Speaker 02: Yes, and just to clarify, the government did raise at the motion for summary judgment phase, the argument about failing to exhaust the precise Title VII claims that Ms. [00:13:02] Speaker 02: Wang asserts here as well. [00:13:03] Speaker 02: It's just that the judge did not reach that decision. [00:13:07] Speaker 03: You may have full discretion to re-raise those arguments if we were to send it back, but you're also not taking the position that we're bound to address the alternate grounds for affirmance, right? [00:13:19] Speaker 03: It's just a discretionary on our part. [00:13:21] Speaker 02: That's correct, Your Honor. [00:13:22] Speaker 02: It's purely a discretionary choice on your part. [00:13:26] Speaker 02: And to the extent this panel agrees that it's properly supported, the reading of the Title VII grievance is something that is a legal prerequisite to bringing claims into federal court, both for purposes of allowing potential litigants the chance of early effective resolution at the administrative level. [00:13:47] Speaker 02: but also providing the employer agency with fair notice of the charges against it and the chance to potentially remedy those on an earlier phase. [00:13:55] Speaker 02: If this court finds that that argument is properly supported in this record, then judicial resources would be conserved by bringing to resolution a litigation that has been going on since 2015 in this case. [00:14:08] Speaker 00: The problem is you really need a record to explain what was precisely involved in that MSPB matter. [00:14:16] Speaker 00: That's why I was raising the questions I was raising with you, because it isn't entirely clear to me. [00:14:22] Speaker 00: And you clearly are not in agreement. [00:14:24] Speaker 00: And I think there are reasonable arguments both ways. [00:14:28] Speaker 00: You may or may not be right. [00:14:30] Speaker 00: Now, if there was no Title VII component, that's where I started, then of course that's a different case. [00:14:37] Speaker 00: but I don't see how you can support what the district court ruled. [00:14:40] Speaker 00: And I don't think we should do the work that the district court would do in the first instance anyway, if in fact you're right, but at least hear both sides on that issue, what was involved and that the plaintiffs or the appellants notice argument here goes to that. [00:14:56] Speaker 00: That is, I never even got a shot at what the district court was saying. [00:15:00] Speaker 00: Why would we do that? [00:15:01] Speaker 00: I think it's probably before the district court. [00:15:04] Speaker 00: The district court's theory cannot be right. [00:15:06] Speaker 00: If there was a Title VII component to the grievance, there's no race to it. [00:15:13] Speaker 00: There's no release. [00:15:14] Speaker 00: There's no nothing that would come up. [00:15:16] Speaker 00: And you're not disagreeing with that. [00:15:18] Speaker 00: So we should go back and find out whether there was. [00:15:22] Speaker 02: Your Honor, accepting the premise of your question, that if there is a Title VII claim preserved in the grievance, then the analysis of the Salmon Agreements release language will not be tenable. [00:15:35] Speaker ?: All right. [00:15:36] Speaker 03: All right. [00:15:36] Speaker 03: Let me make sure my colleagues don't have additional questions for you, Mr. DeGeneres. [00:15:39] Speaker 03: No, nothing more for me. [00:15:42] Speaker 02: Thank you. [00:15:43] Speaker 02: Yeah, thank you so much. [00:15:44] Speaker 02: And for the reasons argued in both our briefs and during this oral arguments, the department requests that the judgment below be affirmed. [00:15:51] Speaker 02: Thank you. [00:15:52] Speaker 03: Thank you, Mr DeGeneres. [00:15:54] Speaker 03: Ms. [00:15:54] Speaker 03: Wang, we'll give you one minute for rebuttal. [00:15:56] Speaker 03: Oh, actually, I'm sorry. [00:15:57] Speaker 03: You have six minutes, but you're not obligated to use it. [00:16:00] Speaker 03: It's up to you. [00:16:02] Speaker 04: Thank you, Mr. Chief Judge. [00:16:04] Speaker 04: This case turns on whether the district court's interpretation of the party's 2013 settlement agreement is correct as a matter of law. [00:16:11] Speaker 04: But the district court disregarded the basic canons of contract construction by cherry picking. [00:16:16] Speaker 04: I expressly reserve the right to pursue my removal claim, then pending as a mixed case before the MSPB. [00:16:23] Speaker 04: The government improperly resorts to an argument that I supposedly failed to exhaust administrative remedies for my Title VII claims. [00:16:33] Speaker 04: This argument is raised for the first time in this appeal, as it was no part of the district court's rationale. [00:16:42] Speaker 04: Assuming arguendo that the district court was correct in finding that post settlement, I was left with but a pure civil service claim, not a mixed case before the MSPB. [00:16:51] Speaker 04: Affirmance of the ruling under review could not follow. [00:16:54] Speaker 04: Instead, the consequences would be the district court's loss of jurisdiction over my case, avoiding of all its rulings since the remand of my case, including the ruling under review, and a retransfer of my case to the federal circuit. [00:17:07] Speaker 04: Of course, my position is that the district court's interpretation of the settlement agreement is clearly not correct. [00:17:13] Speaker 04: I don't seek to go back to the federal circuit. [00:17:15] Speaker 04: I want a jury trial. [00:17:16] Speaker 04: And finally, I would like to remind the court that I raised a due process issue. [00:17:22] Speaker 04: The district court violated my due process rights when it's found for the government on a suesponti ground without giving me notice and an opportunity to respond, particularly here where the district court was ascribing contractual intent [00:17:35] Speaker 04: It was important to comply with the requirements of federal rule of Civil Procedure 56-F. [00:17:44] Speaker 04: As the district court incorrectly construed the settlement agreement, I in fact properly pled a wrongful termination under Title VII. [00:17:52] Speaker 04: In conclusion, I ask the court to reverse and remand and to give due consideration to my motion for reassignment to a new district judge. [00:18:00] Speaker 03: Thank you, Ms. [00:18:01] Speaker 03: Wang. [00:18:01] Speaker 03: Thank you, Mr. DeGeneres. [00:18:03] Speaker 03: We'll take this case under submission.