[00:00:22] Speaker 00:
Next case is Roxanne Franklin Mason versus the United States, 2016, 1985.

[00:00:32] Speaker 00:
Ms.

[00:00:33] Speaker 00:
Jones, when you are ready.

[00:00:37] Speaker 04:
Good morning, Your Honor.

[00:00:39] Speaker 04:
May it please the court.

[00:00:41] Speaker 04:
My name is Lisa Jones.

[00:00:42] Speaker 04:
I represent Roxanne Franklin Mason.

[00:00:46] Speaker 04:
Ms.

[00:00:46] Speaker 04:
Mason appeals the denial of her motion for summary judgment, as well as the grant of the defendants

[00:00:52] Speaker 04:
the Department of Navy's motion for summary judgment relative to her breach, the breach of her settlement agreement with the Navy arising from unemployment discrimination, Title VII case.

[00:01:06] Speaker 02:
There's a lot in here that you're arguing, but just so we can pare it down a little bit.

[00:01:11] Speaker 02:
Absolutely.

[00:01:11] Speaker 02:
You agreed that your fraud and the inducement claim has to fail because

[00:01:17] Speaker 02:
because you have not repudiated the contract yourself and given the money back, and that you can't have a certain inducement claim unless you're prepared to repudiate the contract on your side and give up the benefits?

[00:01:30] Speaker 04:
I'm sorry.

[00:01:31] Speaker 04:
I don't want to interrupt you, Your Honor.

[00:01:33] Speaker 04:
Go ahead.

[00:01:33] Speaker 04:
I don't disagree with that.

[00:01:34] Speaker 04:
I would suggest, though, Your Honor, that the facts underlying the claim do bolster Ms.

[00:01:42] Speaker 04:
Franklin-Mason's claim relative to the breach of good faith and fair dealing.

[00:01:46] Speaker 04:
Okay.

[00:01:49] Speaker 04:
But Your Honor, when Miss Franklin Mason negotiated her return to duty as a part of the settlement agreement, remember she did not have to return to duty.

[00:02:03] Speaker 04:
The Navy was facing a trial date and some re-judgment denial and a back pay calculation of

[00:02:15] Speaker 04:
more than a million dollars.

[00:02:16] Speaker 03:
Yes, but we know all those facts.

[00:02:18] Speaker 03:
So get to what you think are your strongest points on how the Navy breached the settlement agreement.

[00:02:24] Speaker 00:
And what are your clients' damages as a result of that?

[00:02:29] Speaker 04:
Well, the Navy argued, Your Honor, that the Court of Federal Claims erred in determining that the breach of

[00:02:45] Speaker 04:
their obligation to have a financial manager, the NFAF financial, GS-15 financial manager.

[00:02:52] Speaker 00:
Well, how was your client injured by any breach of that nature?

[00:02:59] Speaker 04:
She was injured, Your Honor, because she could not perform the work that she anticipated that she would be performing.

[00:03:08] Speaker 04:
nor did she perform the work that she anticipated.

[00:03:11] Speaker 00:
But what damage has she suffered as a result of that?

[00:03:16] Speaker 00:
She got her job back.

[00:03:17] Speaker 00:
She did get some financial work.

[00:03:21] Speaker 00:
And the government says there were reasons why they didn't have a financial manager.

[00:03:30] Speaker 00:
She was allowed to work.

[00:03:31] Speaker 00:
So what are her damages?

[00:03:34] Speaker 00:
Rather than just an argument with someone.

[00:03:37] Speaker 00:
I'm sorry?

[00:03:38] Speaker 00:
Rather than just having something to argue about.

[00:03:40] Speaker 00:
How was she hurt?

[00:03:42] Speaker 04:
She was hurt in the same way that she was hurt from the standpoint that although she was on the payroll,

[00:03:55] Speaker 04:
to the extent that her ability to have promotional opportunities was frustrated, to the extent that by the time she filed her motion for preliminary injunction, that she was not given any work for almost nine months, frustrated her ability to be a functioning employee at the Department of the Navy.

[00:04:23] Speaker 02:
I guess my question is then, why wouldn't, I mean, there are different types of breaches of contract.

[00:04:29] Speaker 02:
So to the extent that they had financial obligation to pay or back pay, to pay the attorney's fees, to create the TSP account, you agree now that those things actually occurred, right?

[00:04:41] Speaker 02:
The financial obligations under the settlement agreement, the Navy fulfilled those.

[00:04:47] Speaker 02:
Eventually, yes.

[00:04:49] Speaker 04:
And the expungement as well?

[00:04:50] Speaker 04:
No, I don't think there's any record evidence that it fulfilled its obligation to expunge the OPM within 60 days as noted in the contract.

[00:05:03] Speaker 03:
No, but it was ultimately expunged, even though it was within 60 days.

[00:05:06] Speaker 04:
We argue that that's an issue of fact.

[00:05:08] Speaker 04:
The, the, the affidavit- Isn't it expunged?

[00:05:10] Speaker 03:
There are multiple pieces of evidence in this record that say that people who reviewed her employment file demonstrate that it's not there now.

[00:05:20] Speaker 03:
May not have been done in 60 days.

[00:05:22] Speaker 03:
Might not have been.

[00:05:23] Speaker 03:
But it is not there now, right?

[00:05:25] Speaker 03:
You have no piece of evidence.

[00:05:26] Speaker 03:
You've put forth no piece of evidence that would suggest it hasn't been expunged.

[00:05:29] Speaker 03:
There's no copy currently floating around that you're aware of that show it.

[00:05:33] Speaker 04:
Well, to the extent that she's no longer a federal employee, but I would argue, particularly given the fact that the defendant has given us two versions within this litigation of the OPF file, one version that has a set of documents and another version that has at least one, another set of documents or at least one document that is not in the other version, raise questions about whether or not this is actually her official file.

[00:06:04] Speaker 04:
And I would argue, Your Honor, I would submit to you that the affidavits and declarations offered by the defendant by the Navy on that score raises an issue of fact about whether this was a reconstructed file that, at least at some point before she left the Navy, that file was not expunged.

[00:06:28] Speaker 04:
And to the extent that that file might not have been expunged, I would argue,

[00:06:32] Speaker 04:
And to the extent that she was trying to get additional opportunities via transfer or reassignment and other applications, there may be an issue of fact as to whether or not that information in her OPF file may have contributed to her inability to move within the government.

[00:06:54] Speaker 02:
So there's two pieces in my question.

[00:06:57] Speaker 02:
if we're talking about the non-monetary obligations, all right, to give her certain kinds of assignments and to give her certain kinds of supervisory, those are the kinds of things that normally that breach would lead to a specific performance requirement, right?

[00:07:18] Speaker 02:
Correct.

[00:07:19] Speaker 02:
Okay.

[00:07:19] Speaker 02:
And now you're saying that they also could have flowed into

[00:07:25] Speaker 02:
other kinds of damages because there were other opportunities.

[00:07:29] Speaker 02:
Is there anything in the record that specified that she applied for a different position and wasn't able to get it because she didn't do the right kind of work or that there was a transfer that she sought and didn't get it because of a breach by the Navy of the non-monetary portions of the contract?

[00:07:53] Speaker 04:
I believe there is, Your Honor, and if I... I'm not sure if I'm going to be able to put my finger on it immediately, but I believe that there is not only testimony, but... And I believe there's testimony that is incorporated in the Joint Appendix where Ms.

[00:08:17] Speaker 04:
Franklin Mason testifies

[00:08:20] Speaker 04:
that there was a circumstance in which she had asked Mr. Pennex, number one, asked Mr. Pennex to help her prepare a letter of recommendation so that she could seek other opportunities within the Navy.

[00:08:32] Speaker 04:
There's also, I believe, record evidence about conversations that she had with the Navy after she came back in November of 2002.

[00:08:47] Speaker 04:
And there's a letter in

[00:08:49] Speaker 04:
In fact, we were looking at it yesterday.

[00:08:51] Speaker 04:
There's a letter from the Navy's attorney relative to a conversation that she was having with Ms.

[00:08:59] Speaker 04:
Franklin Mason's attorney about attempting to get Ms.

[00:09:05] Speaker 04:
Franklin Mason a reassignment or a transfer.

[00:09:09] Speaker 02:
Right, but there was nothing that... That's just because she didn't want to be working with particular people.

[00:09:15] Speaker 02:
or she wanted other kinds of opportunities.

[00:09:17] Speaker 02:
There was no reference to that being something that would either have enhanced her resume or given her a step increase or more pay.

[00:09:29] Speaker 02:
There's nothing like that in the record that I could find.

[00:09:31] Speaker 04:
Well, I would argue that to the extent that she was complaining, and there's record evidence, I believe that

[00:09:41] Speaker 04:
at least in the motions that her attorneys at the time were filing with the district court about the fact that the way the supervisory hierarchy was constructed, notwithstanding the terms of the settlement agreement, in part prevented her from some promotional opportunities within MSC.

[00:10:07] Speaker 04:
That was one of the main issues that she was discussing.

[00:10:10] Speaker 02:
But none that were defined, none that she sought, none that it's clear would provide her with monetary relief?

[00:10:18] Speaker 04:
Well, to the extent that the conversations surrounding her return to duty.

[00:10:28] Speaker 04:
And that's why I started with that.

[00:10:31] Speaker 04:
And those conversations were surrounding not only the hierarchy that she would be

[00:10:36] Speaker 04:
that she would be performing under once she returned to work.

[00:10:41] Speaker 04:
Obviously, she wasn't going to be going back to the office of the Consulate.

[00:10:44] Speaker 00:
Ms.

[00:10:44] Speaker 00:
Jones, you're well into your rebuttal time.

[00:10:46] Speaker 00:
I assume you'd like to save it?

[00:10:48] Speaker 04:
Yes, Your Honor.

[00:10:49] Speaker 04:
Do you want me to finish?

[00:10:51] Speaker 04:
I'm following you.

[00:10:51] Speaker 04:
Yeah, I got it.

[00:10:53] Speaker 04:
Thank you.

[00:10:55] Speaker 00:
Ms.

[00:10:55] Speaker 00:
Enlow.

[00:11:00] Speaker 01:
May it please the Court.

[00:11:02] Speaker 01:
The Court should affirm the decision of the Court of Federal Acclaims on all three counts.

[00:11:05] Speaker 01:
As for count one and two, there's no liability and no damages.

[00:11:10] Speaker 01:
Now, it's true that the Navy did not hire this financial manager position, but this is not a material breach of the settlement agreement.

[00:11:17] Speaker 01:
She got a comparable experience performing comparable work with supervisors with comparable financial backgrounds.

[00:11:23] Speaker 01:
It's important to note that the supervisor she did work for, Penix and later Captain Herb,

[00:11:28] Speaker 01:
And then the program manager, Mr. Nelson, they would have been supervising this financial manager that she was supposed to report to had that position ever been funded.

[00:11:37] Speaker 02:
Now, the Navy, this settlement agreement certainly had some financial obligations, but it had a lot of other stuff that the Navy said it was going to do, right?

[00:11:48] Speaker 02:
And putting aside the question of whether you can incorporate other surrounding conversations, but even just in the document itself, the Navy said it was going to do a lot of things.

[00:11:57] Speaker 02:
And so it's not good enough for the Navy just to say, we gave her all the financial benefits that the settlement agreement promised, and to say the rest of it was up to us whether or not we could pull it off.

[00:12:09] Speaker 02:
I mean, they actually entered into a settlement agreement that settled a case where they were facing some serious liability, and they committed to do certain things.

[00:12:20] Speaker 01:
Yes, Your Honor, and several points on that.

[00:12:22] Speaker 01:
First is that they fulfilled the rest of these obligations that don't have financial components, such as the training, such as the OPF.

[00:12:28] Speaker 01:
The Navy did fulfill those obligations.

[00:12:31] Speaker 01:
And the Navy fulfilled even the obligations that had financial components.

[00:12:35] Speaker 01:
The Navy, there was no material breach here.

[00:12:39] Speaker 01:
What about the kind of work that she was doing?

[00:12:42] Speaker 01:
She got financial work.

[00:12:43] Speaker 01:
The record is full of evidence that she got financial work.

[00:12:46] Speaker 01:
The most striking evidence is this performance evaluation from 2000.

[00:12:50] Speaker 01:
which was Franklin Mason admitted that she wrote most of it and she also signed it.

[00:12:55] Speaker 01:
And that's at appendix 549.

[00:12:57] Speaker 01:
That performance evaluation specifically acknowledges that she designed and instituted a financial management system for the office.

[00:13:05] Speaker 01:
She advised and consulted other managers in the comptroller's office before the release of financial statements.

[00:13:11] Speaker 01:
She troubleshoot these financial statements to make sure any errors were fixed.

[00:13:16] Speaker 01:
that she worked on amending current policies and procedures and oversaw financial management trends.

[00:13:21] Speaker 01:
That's all in this 2000 evaluation.

[00:13:24] Speaker 01:
That's what she was doing the first year.

[00:13:25] Speaker 01:
The record is also full of instances of other financial work.

[00:13:29] Speaker 01:
For example, there are several emails, one dealing with budget questions from the big Department of the Navy review.

[00:13:35] Speaker 01:
That's at appendix 818.

[00:13:37] Speaker 01:
There's a couple of emails regarding the tri-annual review of commitments and obligations report, and that the financial staff at this office was directed to review all outstanding financial commitments on liquidated obligations, unpaid balances.

[00:13:51] Speaker 01:
And that's at appendix 269 and 267.

[00:13:55] Speaker 01:
She also was doing a financial handbook.

[00:13:57] Speaker 01:
She was supposed to incorporate her thoughts and ideas in that.

[00:14:00] Speaker 01:
It's at 823 and 594.

[00:14:02] Speaker 01:
And then finally, Captain Herb,

[00:14:05] Speaker 01:
tried to give her this monthly variance assignment and the variances were to look at the budget and then see the execution and figure out what's the variance how does it vary between the two and why and that was key that was key to cap mr. Nelson and that's what miss Franklin Mason thought she was going to be doing when she came to work she admits that at

[00:14:28] Speaker 01:
Appendix 291.

[00:14:30] Speaker 01:
She thought she was going to be doing this monthly variance.

[00:14:32] Speaker 03:
So even if there was a potential breach in that she wasn't an advisor to the financial manager because there was none, the court of federal claims held there were no damages.

[00:14:46] Speaker 03:
To your knowledge, was there anything in this record that established, for example, that as a result of one of the breaches, she alleges that she wasn't able to gain promotions or employment,

[00:14:57] Speaker 03:
or mobility or something.

[00:15:00] Speaker 01:
I'm not aware of anything like that in the record, Your Honor.

[00:15:02] Speaker 03:
I'll also speak to the reconstructed file, because I didn't think the reconstructed file had the potential removal in it either.

[00:15:10] Speaker 03:
I thought that the record showed that... Appellant's counsel said, well, there were two different files, so... Well, there may have been two different files, there may have been some confusion, but I didn't think either file demonstrated that the Navy was failing.

[00:15:24] Speaker 03:
Navy?

[00:15:25] Speaker 03:
It's the Navy.

[00:15:25] Speaker 03:
It's failing to meet with its obligation to expunge.

[00:15:29] Speaker 01:
That's correct, Your Honor.

[00:15:30] Speaker 01:
The personnel file that's in the record, first of all, it's immaterial, whether it's original or reconstructed.

[00:15:36] Speaker 01:
That doesn't matter.

[00:15:37] Speaker 01:
The settlement agreement simply says, expunge the files.

[00:15:40] Speaker 01:
The Navy did that.

[00:15:42] Speaker 01:
There was a human resources employee in 2005 at the evidentiary hearing in front of Magistrate Judge Faciola who reviewed her file.

[00:15:48] Speaker 01:
So it didn't contain any references to her proposed removal from the 80s.

[00:15:54] Speaker 01:
And then in 2015, another employee reviewed this file, and you have the file itself.

[00:15:59] Speaker 01:
There is simply nothing in the record showing that the Navy didn't expunge the files.

[00:16:05] Speaker 01:
And even if it didn't, even if there was something in the record, which there's not, she's not proven any damages.

[00:16:10] Speaker 01:
She hasn't shown that she tried to go get other jobs with this file, and those were denied, for example.

[00:16:15] Speaker 01:
Ms.

[00:16:15] Speaker 01:
Franklin-Mason in her reply brief points to one line of testimony at page 999 in the appendix,

[00:16:22] Speaker 01:
saying that she sent Pennix's letter of recommendation out to other, to vacancy announcements.

[00:16:28] Speaker 01:
That's not sufficient.

[00:16:29] Speaker 01:
There's no indication of whether or not anybody even offered her a job on that.

[00:16:33] Speaker 01:
That's literally the entirety of the record on whether or not she saw other jobs.

[00:16:38] Speaker 03:
So it's unclear whether or not she was denied any jobs and to the extent... Or even whether her potential future employers were made aware of the information they shouldn't have been made aware of.

[00:16:49] Speaker 03:
Exactly, Your Honor, yes.

[00:16:55] Speaker 01:
If the court has no further questions, for these reasons and for the reason state court agrees with you.

[00:17:00] Speaker 00:
Thank you, Ms.

[00:17:01] Speaker 00:
Enloe.

[00:17:02] Speaker 00:
Ms.

[00:17:02] Speaker 00:
Drones has about a minute and a half to move up.

[00:17:05] Speaker 00:
I'm sorry, you have... You have 1.43.

[00:17:07] Speaker 04:
Okay, yeah.

[00:17:17] Speaker 04:
In five years of being at the Navy, Ms.

[00:17:21] Speaker 04:
Franklin Mason was given

[00:17:25] Speaker 04:
in the first three years, clerical assignments, an oracle assignment, and no financial work.

[00:17:39] Speaker 04:
No series 500 financial work.

[00:17:43] Speaker 04:
Miss Franklin Mason, I submit to you, provided material facts that raises an issue of fact that precluded summary judgment on this issue.

[00:17:52] Speaker 02:
What about her own

[00:17:54] Speaker 02:
Writings in her own evaluation.

[00:17:57] Speaker 02:
I'm sorry.

[00:17:57] Speaker 02:
What about her own writing in her own evaluation where she describes all the financial work?

[00:18:03] Speaker 04:
This is if you if you compare the the performance evaluation with the letter of recommendation The again, and I believe it's in the testimonies in the record where miss Franklin Mason says that she had asked the that Mr. Pinnix did write a letter of recommendation so that she could leave and

[00:18:24] Speaker 04:
And it's within the context, and I believe it's in the record, where she says, I'm not doing the things that I thought I was going to be doing while I was here.

[00:18:36] Speaker 04:
Help me get out.

[00:18:38] Speaker 04:
And if you compare the letter of recommendation with the performance evaluation and the position description, it mirrors particularly the letter of recommendation that she and Pennex wrote.

[00:18:55] Speaker 04:
Now, Ms.

[00:18:56] Speaker 04:
Franklin Masonwood doesn't argue that she has performed that work before.

[00:19:01] Speaker 04:
She performed it when she was working for the office of the comptroller back in the 80s.

[00:19:07] Speaker 04:
She just didn't do it while she was at PM1.

[00:19:10] Speaker 04:
I see that I'm out of time.

[00:19:12] Speaker 04:
Does the court have any additional questions?

[00:19:14] Speaker 04:
No.

[00:19:15] Speaker 00:
Thank you, Ms.

[00:19:16] Speaker 00:
Jones.

[00:19:17] Speaker 00:
We'll take the case under advisement.