United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2516
                                    ___________

Thomas L. Harris,                       *
                                        *
            Plaintiff - Appellant,       *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
R.I. Brownlee, Acting Secretary,         * Eastern District of Arkansas.
United States Department of the Army, *
                                        *
            Defendant - Appellant.      *
                                   ___________

                              Submitted: December 11, 2006
                                 Filed: February 26, 2007
                                  ___________

Before LOKEN, Chief Judge, MURPHY, and SHEPHERD, Circuit Judges.
                             ___________

MURPHY, Circuit Judge.

       Thomas Harris filed a complaint with the Equal Employment Opportunity
Commission (EEOC) alleging that his employer, the United States Army Corps of
Engineers (Corps), discriminated against him because of his race. The Corps and
Harris agreed that they would settle the dispute by having an independent classifier
review his employment grade level. After the reviewer did not find fault with his
classification, Harris filed this suit claiming that the review was inadequate and that
the Corps breached the settlement agreement. The district court1 granted summary
judgment to the Secretary of the Army, and Harris appeals. We affirm.

                                          A.

       Thomas Harris served as an accounting officer in the resource management
department of the Corps' Little Rock office until his retirement in September 2004.
Thomas McCrary, chief of the resource management office in Little Rock,
recommended to the district commander in 1998 that Harris be reclassified from a GS-
12 to a GS-13 level employee because of the assignment of additional duties. The
human resources office for the southwestern division conducted a review of Harris'
position the following year, but did not find ample justification for an upgrade of his
position to GS-13.

       After he received an annual performance rating of satisfactory instead of
exceptional in 2001, Harris filed a discrimination complaint with the EEOC alleging
that because of his race and protected conduct undertaken before the EEOC his annual
performance rating had been downgraded and his position not upgraded to the GS-13
level. Instead of proceeding to investigate the complaint, the Corps entered into a
Negotiated Settlement Agreement with Harris in November 2001 in which it agreed
to an independent review of his position. The agreement required that the Corps and
Harris agree on an independent classifier to "conduct a classification review ('desk'
audit)" of Harris' position. As part of the desk audit, the classifier would be
"instructed to consider the Position Descriptions of GS-12 and GS-13 Accounting
Officer positions" from offices which had adopted standardized position descriptions
originally created by the Fort Worth office. The agreement further required that the
classifier "interview three Accounting Officers GS-12 and three Accounting Officers


      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.

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GS-13" as part of the audit. The Corps agreed to pay Harris' attorney $1,000 for her
"assistance on this case," and Harris waived "his right to pursue administrative or
judicial action in any forum" concerning the matters raised in his complaint.

       The parties agreed that Wayne Kessler, a classification specialist for a private
contractor, would conduct the audit. Kessler met with Harris and McCrary in June
2002 and prepared his report that August. Kessler was not made aware of the terms
of the settlement agreement. Although he reviewed position descriptions for
accounting officers in the Fort Worth, Tulsa, Galveston, and Savannah districts, he did
not conduct interviews with any other accounting officers. In his August report
Kessler concluded that Harris' position should be classified at the GS-12 grade. He
also created a revised position description which he felt more accurately described
Harris' duties.

       Harris filed a petition with the Corps alleging that it had failed to comply with
the terms of the settlement agreement. The Army determined that the audit had
substantially complied with the terms of the agreement and denied the petition. Harris
appealed the agency's decision to the EEOC, which affirmed the decision of the Corps
because the audit had "substantially complied with the settlement agreement."

                                          B.

       Harris brought this suit in September 2003. He claims under Title VII of the
Civil Rights Act that he has been discriminated against on account of his race by the
Corps and that he should be classified as a GS-13 grade employee. Along with an
upgrade of classification level, he seeks equitable relief, damages for mental anguish,
punitive damages, and attorney fees. He also claims that the Corps breached the
settlement agreement and that his 2001complaint should be reinstated or in the
alternative the court should order the Corps to comply with the terms of the
agreement. The Corps responds that it did not discriminate against Harris and that it

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did not breach the agreement. In the event that the court determines it did breach the
agreement, the Corps asserts that it should not reach the merits of Harris'
discrimination and retaliation claims because he has yet to exhaust his administrative
remedies on those.

          The parties filed a joint motion for stay of discovery and all other deadlines
on May 19, 2005. The motion stated that "whether there is a material breach of the
Negotiated Settlement Agreement is the threshold issue to be determined by the
Court" and requested that all the deadlines be stayed pending a determination by the
court of whether the Corps breached the agreement. The district court granted the
motion and directed Harris to file a motion to enforce the settlement agreement to
facilitate determination of the breach issue. The Corps responded to Harris' motion
by arguing that he was not entitled to specific performance of the agreement and by
filing a motion for summary judgment.

        Earlier in 2005 the parties had deposed Kessler, the independent classifier. He
testified that he had been asked to perform a position classification audit of Harris'
position, in contrast to a consistency review which compares and classifies multiple
positions. The audit resulted in Kessler's determination that Harris' position was
properly classified as GS-12. In reaching this conclusion, Kessler testified that the
position descriptions of other accounting officers at the GS-12 and GS-13 levels were
of marginal value because there were no evaluative statements explaining why
classifiers had graded those officers at the different levels. He also stated that
interviews of other officers would not be relevant to a classification of Harris'
performance and that he based his classification on the Office of Personnel
Management standards. According to Kessler, he prepared a new position description
for Harris after he met with him and his supervisor and Harris did not dispute the
accuracy of the description.




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       The district court denied Harris' motion for specific performance of the
agreement and granted summary judgment to the Corps on his contract claim. It
concluded that it only had jurisdiction over that claim and noted that Harris had not
exhausted administrative remedies regarding his discrimination and retaliation claims.
It then dismissed the breach of contract claim, holding that Harris was not entitled to
specific performance of the agreement or reinstatement of his complaint, the two
forms of relief available to him on this claim. See 29 C.F.R. § 1614.504(a).

      Harris appeals, arguing that the district court erred when it concluded that the
government did not materially breach the terms of the settlement agreement and that
we should either enforce the agreement or reinstate his complaint. We review a grant
of summary judgment de novo, taking the evidence in the light most favorable to the
non moving party. Larson v. Kempker, 

, 939 (8th Cir. 2005).

                                          C.

        Harris argues that he did not receive the benefit of the bargain contemplated in
the settlement agreement and that the Corps' failure to comply with all its terms
constitutes a substantial and material breach of the agreement. As a result, he requests
that we either order specific enforcement of the agreement or permit reinstatement of
his original discrimination complaint. See 29 C.F.R. § 1614.504(a). The Corps asserts
that it did not materially breach the settlement agreement and that Harris received the
benefit of the bargain he made in the negotiated agreement. Moreover it argues,
specific performance of the agreement would be impossible since it would violate the
statutory requirement that employees be paid in conformance with standards published
by the Office of Personnel Management and would also be impractical because Harris
is now retired and his former supervisor is deceased.

      A plaintiff alleging that the government failed to comply with the terms of a
Title VII Negotiated Settlement Agreement can "request that the terms of the

                                          -5-
settlement agreement be specifically implemented or, alternatively, that the complaint
be reinstated." 29 C.F.R. § 1614.504(a). Settlement agreements, including those
entered into by the government, are viewed in light of governing contract principles,2
Gilbert v. Monsanto Co., 

, 700 (8th Cir. 2000); Sheng v. Starkey Labs.,
Inc., 

, 1083 (8th Cir. 1997), and a party is not entitled to rescission of
a contract absent a material breach of the agreement. Vereen v. Hargrove, 

, 765 (Ark. App. 2003). Harris is thus not entitled to rescission of the agreement
and reinstatement of his complaint absent a material breach of the agreement by the
Corps. 

breach of contract is material is measured by examining the
"extent to which the injured party will obtain the substantial benefit . . . reasonably
anticipated." DHC Resort, LLC v. Razorback Entertm't Corp., 

, 976 (8th
Cir. 2003) (citing Restatement (Second) of Contracts § 241(a) (1981)); see also

.

      Harris asserts that he did not receive the benefit he anticipated when he entered
into the agreement because the independent classifier did not interview other
accounting officers at the GS-12 and GS-13 levels and failed to consider the position
descriptions prepared by the Fort Worth office. We disagree.

       The Corps is required by law to assign Harris' class and grade "in conformance
with standards published by the Office of Personnel Management," 5 U.S.C. § 5107,
and the independent classifier determined that Harris was appropriately placed at the
GS-12 level after performing a full desk audit, interviewing both Harris and his
supervisor, and reviewing the Office of Personnel Management Standards. The
undisputed evidence in the record establishes that the classifier considered position


      2
       This Court has never determined whether federal or state law governs the
enforcement of Title VII settlement agreements. See Sheng v. Starkey Labs., Inc., 

, 1083 n.1 (8th Cir. 1997). Since the parties do not dispute that the basic
contract principles determinative in this case are the same under either Arkansas or
federal law, we need not address this question. 

for other GS-12 and GS-13 accounting officer personnel which were
based on the Office of Personnel Management Standards and that he prepared a
revised position description for Harris based on his job duties. Although the Corps
is permitted "when facts warrant" to "change a position which it has placed in a class
or grade," 

provided no evidence from which a reasonable fact finder
could conclude that the classifier erred when he determined that Harris was properly
classified as a GS-12 level employee or that the classifier's recommendation would
have changed if he had spoken with other accounting officers.

       Based on the circumstances of this case and the independent review of Harris'
position performed by the classifier, we conclude that Harris received the benefit of
the bargain that he "reasonably expected," Restatement (Second) of Contracts,
§ 241(a) (1981), when he entered into the settlement agreement. The district court did
not err when it determined that the Corps did not materially breach the agreement.
Because Harris does not assert that he is entitled to relief absent a material breach of
the agreement, we need not reach other issues raised by the parties.

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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