ELAINE D. KAPLAN, District Judge.
Pro se plaintiff Jimmi Tyler Rebish is a former employee of the Department of the Interior's Bureau of Reclamation (the Bureau). In 2008, the Bureau notified him that it intended to reassign him from its Idaho office to its Denver, Colorado office. Mr. Rebish invoked the agency's internal grievance procedure, claiming that the reassignment was proposed in retaliation for protected activity. The grievance process resulted in a settlement agreement which, among other things, contained neutral reference and confidentiality provisions.
According to Mr. Rebish, the Bureau breached its obligations under these provisions when certain Bureau employees allegedly provided third parties with negative information about him. He further claims that the Bureau has failed to respond to his requests that it investigate and address these alleged breaches. Mr. Rebish also complains about the Bureau's refusal to reinstitute the agency's mediation process to address his concerns. Finally, Mr. Rebish alleges that he has been unable to obtain employment since he left the Bureau and has suffered both pecuniary and non-pecuniary injuries as a result of the Bureau's actions,
Presently before the Court is Mr. Rebish's motion for summary judgment and for certain miscellaneous relief, as well as the government's motion for summary judgment. For the reasons set forth below, Mr. Rebish's motions are
Prior to the fall of 2008, Mr. Rebish was employed as a civil rights program specialist in the Bureau's Boise office.
Because Mr. Rebish believed that the Bureau had proposed his transfer in retaliation for his involvement in another Bureau employee's Equal Employment Opportunity case, he invoked the Bureau's internal administrative grievance procedure.
In the October 2008 agreement, Mr. Rebish withdrew his grievance and released the Bureau from liability for "any and all formal or informal complaints and appeals, claims for emotional pain and suffering, any and all claims known or unknown, [and] appeals, charges, or grievances against the Agency. . . having arisen on or prior to the date of th[e] Agreement."
In exchange, the Bureau agreed to: 1) provide Mr. Rebish with a monetary payment; 2) maintain Mr. Rebish in a paid status until October 17, 2008, after which his personnel file would reflect that he had "be[en] removed from the rol[l]s of the Bureau of Reclamation based on his declination of his directed reassignment"; 3) place Mr. Rebish on the Department of the Interior's "Reemployment Priority list for the local area," but not with respect to positions specifically with the Bureau; 4) expunge Mr. Rebish's official personnel file of all material related to his grievance; and 5) not place the agreement in Mr. Rebish's official personnel file.
In addition, and as pertinent to the issues Mr. Rebish raises in this case, section 4(d) of the agreement provided that "[u]pon the effective date of th[e] agreement, [the Bureau would] provide [Mr. Rebish] with a neutral reference that will be given by Ms. Ellie Hasse or her identified successor."
In addition, section 7 of the agreement contained safeguards against the disclosure of the terms of the agreement or its surrounding circumstances. It stated that both parties agreed "that the terms and conditions of th[e] Agreement . . . and the facts surrounding the settlement . . . are . . . confidential and are not to be discussed with anyone," except as required by law, as discussed by Mr. Rebish with immediate family, accountants, lawyers, or taxing authorities, or as required "for the limited purposes of implementing or enforcing the terms of the Agreement."
According to Mr. Rebish, in the years since he left the Bureau in 2008, he has applied for hundreds of jobs in both the public and private sectors, but has received no job offers. 2d Am. Compl. in 9, 36-37; Pl.'s Mot. at 9.
Eventually, Mr. Rebish came to believe that the Bureau had violated the terms of the agreement "by publicly disclosing confidential information about his employment and circumstances of separation from the Bureau." Pl.'s Mot. at 8-9;
Mr. Rebish claims that he contacted various individuals both within and outside the Bureau seeking an investigation of and redress for these alleged breaches. Pl.'s Mot. at 10-11;
In the meantime, in the fall of 2012, Mr. Rebish filed a complaint with the United States Office of Special Counsel (OSC), alleging that the Bureau "breached the Agreement and took adverse actions against him." 2d Am. Compl. ¶ 102. In March 2013, OSC concluded that there were "no reasonable grounds to believe that the [Bureau] provided negative references to [Mr. Rebish's] prospective employers because of [his] whistleblowing."
Thereafter, Mr. Rebish filed two actions with the Merit Systems Protection Board (MSPB).
On October 21, 2014, Mr. Rebish, acting pro se, filed a complaint in this court. Docket No. 1. In that complaint, he alleged that the Bureau had engaged in "six years of reprisal or retaliation, prohibited personnel practices, confidentiality breaches and breaches of privacy act notice." Compl. ¶ 2. He further claimed that as a result of these actions he had been unable to "regain employment," resulting in "financial hardship" as well as "pecuniary and non-pecuniary losses involving depression, embarrassment, humiliation, loss of professional standing and reputation, loss of enjoyment of life, adverse effect to physical health and marriage (divorce), real estate, [and] depleted retirement accounts."
The government moved to dismiss the complaint in part for lack of jurisdiction.
Thereafter, on May 20, 2015, and with Mr. Rebish's peiniission, the Court referred his case to the court's Pro Bono/Attorney Referral Pilot Program. Order, Docket No. 16. Mr. Rebish apparently obtained some informal advice from a law firm through this referral, but did not secure counsel to represent him in this litigation.
Mr. Rebish's attorney engaged in substantial work on his behalf in the ensuing months. In addition to propounding interrogatories and requests for the production of documents on the government, he assisted Mr. Rebish in responding to the government's discovery requests. He also filed an amended and then a second amended complaint on Mr. Rebish's behalf. Docket Nos. 48, 53.
The second amended complaint is the currently operative pleading. In it, Mr. Rebish alleges two causes of action: 1) breach of contract based upon a breach of the neutral reference and confidentiality provisions of the settlement agreement; and 2) breach of the implied covenant of good faith and fair dealing, based upon the Bureau's failure to disclose the agreement to its personnel as necessary to implement its terms, and on its failure to take appropriate corrective action to address the alleged breaches of the agreement. 2d Am. Compl. ¶¶ 151-94.
On July 25, 2016, while discovery was ongoing, Mr. Rebish's attorney moved to withdraw as his counsel. Docket No. 65. On August 1, 2016, the Court held a conference call on the motion in which both Mr. Rebish and his counsel participated.
On November 15, 2016, the Court issued a scheduling order in which it adopted the parties' proposed schedule for the completion of discovery by January 17, 2017, with briefing on cross-motions for summary judgment thereafter. Docket No. 84. During discovery, on November 28, 2016, Mr. Rebish filed a "Motion for Court Ordered Depositions or Equivalent Legal Relief & Motion to Compel Disclosure, Discovery & Ad[]missions Against Government," in which, among other things, Mr. Rebish sought an order compelling the government to pay for any depositions he wished to take. Docket No. 85. On December 1, 2016, the Court denied Mr. Rebish's motion, directing his attention to the court's rules for discovery and advising him that if he believed the government had wrongfully failed to disclose or respond to certain requests, he could file a motion to compel specifically identifying any such instances. Order, Docket No. 86, The Court also informed Mr. Rebish that it lacked the authority to order the government to pay for depositions Mr. Rebish wished to take.
On February 3, 2017, Mr. Rebish filed another motion seeking various relief, which he titled a "motion for court interv[]ention to provide relief, compel discovery against govern[me]nt, hold government in contempt of court for obstruction of justice, have sanctions brought against government, partial or full summary judgment & injunction/restraini[n]g order against government." Docket No. 88. In light of the existing summary judgment briefing schedule, the Court construed this filing as a motion for summary judgment and for miscellaneous relief.
On February 9, 2017, Mr. Rebish filed a motion for "telephonic conference & to amend[] Plaintiff's motion for court interv[]ention to provide relief, compel discovery against government, hold government in contempt of court for obstruction of justice, have sanctions brought against government, partial or full summary judgment & injunction/restraini[n]g order against government." Docket No. 89. On February 16, 2017, the Court granted Mr. Rebish's motion to amend, but denied his motion for a telephonic conference, Order, Docket No. 90, and his amended motion was docketed that same day, Docket No. 91.
The government filed its response and cross-motion for summary judgment on March 21, 2017. Docket No. 92. Mr. Rebish filed a response and reply on April 17, 2017, Docket No. 93, while the government filed its reply on May 3, 2017, Docket No. 94.
The standards for granting summary judgment are well established. Summary judgment may be granted where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Rule 56(a) of the Rules of the Court of Federal Claims (RCFC);
"The moving party bears the burden of establishing the absence of any genuine issue of material fact," and all significant doubts regarding factual issues must be resolved in favor of the party opposing summary judgment.
"A settlement agreement is a contract" whose interpretation is a question of law.
In this case, the government acknowledges the existence of a valid contract and agrees that certain obligations and duties arise out of that contract. However, it defines some of those duties differently than does Mr. Rebish, and argues that Mr. Rebish has presented no evidence that the government has, in fact, breached any of its duties under the contract, Thus, according to the government, even if the Court assumes that Mr. Rebish's co-workers provided negative information about him to third parties, it would not establish that the Bureau breached its obligations under the agreement's neutral reference provision. Further, the government argues that Mr. Rebish has introduced no evidence to support his allegations that the Bureau breached the agreement's confidentiality provision. And, it argues that none of Mr. Rebish's allegations breach the agreement's implied duty of good faith and fair dealing.
Finally, and in any event, the government asserts that even if Mr. Rebish could demonstrate a breach of some duty under the contract, the government would remain entitled to summary judgment because Mr. Rebish failed to produce any evidence linking such a breach to the injury he alleges: his inability to secure employment.
For the reasons set forth below, the Court agrees with the government. It therefore concludes that the government is entitled to summary judgment as to all of Mr. Rebish's claims. Finally, to the extent that what Mr. Rebish seeks here is reinstatement and a reopening of the agency grievance procedure, this Court lacks authority to grant such relief.
As pertinent to the parties' dispute, the settlement agreement states that "the Bureau of Reclamation agrees to provide Grievant with a neutral reference that will be given by Ms. Ellie Hasse or her identified successor." 2d Am. Comp'. Ex. 1 at 2-3. It also provides that "Ms. Hasse will only provide the following information in regard to any reference check: (1) current or past position(s) and title(s); (2) current or past grade(s); and (3) dates of employment."
Mr. Rebish claims that this provision required the Bureau to affirmatively prevent employees other than Ms. Hasse or her identified successor from providing references concerning Mr. Rebish, even where, as in this case, Mr, Rebish directed third parties to other Bureau employees for that purpose. Further, Mr. Rebish argues that—although he had no obligation to direct prospective employers to Ms. Hasse (and in fact was free to direct them to others)—the agreement obligated the Bureau to put mechanisms in place to prevent other Bureau employees from providing a reference concerning Mr. Rebish.
The government, on the other hand, contends that the neutrality provision does not require the Bureau to actively prevent Bureau employees whom Mr. Rebish has identified as references from providing such references. Instead, according to the government, the provision obligates the Bureau only to make Ms. Hasse or her designated successor available to provide a neutral reference on the agency's behalf, should a prospective employer seek the Bureau's views about Mr. Rebish's tenure. See Def.'s Mot. at 12-13. According to the government, Mr. Rebish chose not to avail himself of his contractual right; instead, he directed third parties to his former co-workers at the Bureau to provide references in their personal capacities. The Court agrees with the government.
The interpretation of a contract begins with its plain language.
Here, the plain language of the neutral reference provision imposes on the Bureau only a single obligation: to "provide Grievant with a neutral reference that will be given by Ms. Ellie Hasse or her identified successor." 2d Am. Compl. Ex. 1 at 3. Unlike other agreements containing neutral reference or similar provisions, the agreement between Mr. Rebish and the Bureau includes no language that obligates the Bureau to ensure that its employees generally refer inquiries from third parties to Ms. Hasse or her designee.
Indeed, it appears that Mr. Rebish himself did not view the agreement as precluding Bureau employees generally from responding to requests for references, or as requiring them to direct inquiries to Ms. Hasse. Thus, he admits that he specifically directed third parties to other individuals at the Bureau for purposes of securing what he expected would be positive references provided in their personal capacities.
Further, it is well-established that a contract should be read as a whole such that all of its provisions have meaning and make sense.
Finally, the government's interpretation of the neutral reference provision better addresses the Federal Circuit's often-expressed concern about the problematic character of such provisions, which has led it to admonish that such provisions should be construed "strictly according to their terms."
To be clear, the Court recognizes that—irrespective of the concerns the Federal Circuit has outlined—the government will not be relieved of express provisions that require employees to channel reference requests to a single individual and/or express prohibitions against other employees providing references to third parties.
For these reasons, the Court rejects Mr. Rebish's interpretation of the neutral reference provision. It finds that the provision obligated the Bureau to provide him with a neutral reference through Ms. Hasse or her identified successor, but did not impose an obligation on the Bureau to affirmatively prevent its employees from providing references (whether positive, negative, or neutral) in their personal capacities. Mr. Rebish has failed to come forward with any evidence demonstrating a breach of the neutral reference provision, properly construed. Accordingly, the government is entitled to judgment as a matter of law regarding this claim.
As described above, in section 7 of the agreement, the parties agreed that the terms of the agreement and the facts surrounding it would be kept confidential and would not be disclosed except under limited circumstances. Mr. Rebish has asserted that certain co-workers allegedly disclosed information required to be kept confidential to third parties in violation of this provision. The government, however, contends that Mr. Rebish "has not identified a single piece of evidence to demonstrate that [the Bureau] disclosed confidential information to anyone," and thus that it is entitled to summary judgment on this claim.
"In response to a summary judgment motion" a plaintiff cannot rely upon "mere allegations, but must set forth by affidavit or other evidence specific facts" supporting his claims.
Based on the record before it, the Court concludes that Mr. Rebish's claim cannot survive the government's summary judgment motion because it is based almost entirely on his own speculation. Thus, Mr. Rebish did not depose the co-workers alleged to have made the improper disclosures or provide the Court with declarations from the third parties he claims received such disclosures. Indeed, he did not supply any evidence at all in opposing the government's motion for summary judgment.
Because Mr. Rebish is a pro se plaintiff, the Court has also taken into consideration parts of the record that Mr. Rebish did not submit in opposition to the government's motion. Thus, attached to Mr. Rebish's original pro se complaint are what appear to be notes on Custer Agency letterhead that memorialize a phone call between a Wendy Alexander and Kerry Whitford. 2d Attach. to Compl. The notes, however, do not provide evidence of a disclosure of the "terms and conditions of th[e] Agreement . . . and the facts surrounding the settlement." In fact, the notes suggest that Ms. Whitford may have been unaware of the existence of the settlement agreement.
Mr. Rebish also attached to his pro se complaint handwritten notations on questionnaires that apparently were used as guides in conducting phone calls with Ben Weinischke, Kerry Whitford, and Karl Stock. 3d Attach. to Compl. In interrogatory responses, Mr. Rebish stated that he believed these documents were notes of conversations between Bureau employees and the Custer Agency and Ms. Harshman in which certain Bureau employees breached the confidentiality provision in some unspecified way. Def.'s Mot. App. at A140-44. But the notes themselves are unsigned and unlabeled, and the notations consist of cryptic sentence fragments. The Court does not consider this "evidence" competent to support Mr. Rebish's assertions that Mr. Weinischke, Ms. Whitford, or Mr. Stock made unauthorized disclosures of the terms or circumstances of the settlement agreement.
In short, Mr. Rebish's bald assertions that Bureau employees disclosed the terms or the circumstances of his settlement agreement to third parties are not supported by any specific facts in the record. Accordingly, the government is entitled to judgment as a matter of law as to Mr. Rebish's claim that the Bureau violated section 7 of the agreement.
As noted above, lelvery contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement."
"What is promised or disclaimed in a contract helps define what constitutes `lack of diligence and interference with or failure to cooperate in the other party's performance."
Mr. Rebish argues that the Bureau violated its duty of good faith and fair dealing in several respects. First, he contends that the Bureau had a good faith obligation to notify its employees of the neutrality provision in order to ensure their compliance with it. As the Court has concluded, however, the neutrality provision does not obligate employees of the Bureau generally not to respond to reference requests. It would therefore not be reasonable or appropriate, particularly in light of the confidentiality provision, to infer a good faith duty on the part of the Bureau to infolui all its employees of the neutral reference provision's requirements.
Mr. Rebish's second argument based on the duty of good faith and fair dealing is that the Bureau was implicitly bound to investigate and address his allegations of breach. He grounds this duty in the government's "obligation under [section] 7 to implement and enforce the Agreement." 2d Am. Compl. J 182. But Mr. Rebish has taken the terms "implement and enforce" out of context: as discussed, those terms are part of the agreement's confidentiality provision, which allows the government to disclose the terms of the agreement "for the limited purposes of implementing or enforcing" them.
For these reasons, the Court rejects Mr. Rebish's argument that the Bureau had a good faith obligation to put in place mechanisms to ensure that employees generally did not respond to requests for references about Mr. Rebish. It also finds that the Bureau did not have a good faith obligation to investigate Mr. Rebish's complaints concerning the Bureau's compliance with the agreement. Mr. Rebish's claim based on the duty of good faith and fair dealing thus lacks merit.
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In summary, for the reasons discussed above, Mr. Rebish has not demonstrated an essential element of his breach-of-contract claims—the breach of an obligation arising out of the agreement—and the government is therefore entitled to judgment as a matter of law as to Counts I and II of the complaint.
In any event, the government is entitled to summary judgment as to all of Mr. Rebish's contract claims because he has failed to produce any evidence that his inability to secure employment was causally related to any disclosure of information by the Bureau to a prospective employer. In fact, he does not explicitly allege that he was excluded from consideration for any specific position as a result of a negative reference from a Bureau employee. Instead he alleges more generally and in conclusory fashion (based upon "information and belief") that the alleged disclosures of information about him to unspecified third parties "negatively impacted," "adversely affected," or "compromised" his ability to secure employment in the federal, public, and private sectors. 2d Am. Compl. ¶¶ 11, 43-44, 70, 104, 130, 144, 146-47, 169, 170, 193.
To make the non-breaching party whole, it is entitled to recover its reasonably foreseeable expectation damages for breach of contract, but only where such damages "are caused by the breach of the promisor."
As noted, in his complaint, Mr. Rebish alleges that the Bureau's breaches of the neutral reference and confidentiality provisions and of its implied obligations have affected his ability to secure a new job, resulting in "significant personal and financial hardships."
Notwithstanding his responses to interrogatories, Mr. Rebish asserts that the Bureau provided "information about Mr. Rebish that was deemed confidential under the Agreement" to the Bureau of Land Management after it had interviewed him. Pl.'s Mot. at 24. According to Mr. Rebish, this information "influenced the agency's consideration of Mr. Rebish" and led to him not receiving an offer of employment.
Similarly, in his reply brief, Mr. Rebish stated that Brian Sutherland provided a negative reference about him to the Small Business Administration. Pl.'s Cross Resp. at 9. But Mr. Rebish's claim is based on a mischaracterization of an email from Mr. Sutherland to another Bureau employee, Dean W. Teasdale. In the December 23,2011 email, which the government produced in discovery and has introduced into the record, Mr. Sutherland states that he received a call about Mr. Rebish in 2008 from someone at the Small Business Administration in Boise. Def.'s Suppl. App. at SAl. In the email, Mr. Sutherland stated that he "informed the call[er] that [he] would have to transfer the call to the HR Manager for response."
In short, other than this one instance, Mr. Rebish has failed to produce any evidence that any employer to whom he applied for a job even requested a reference about him from the Bureau. Nor has he produced any evidence that he was eliminated from consideration for a position as a result of such a reference. Accordingly, even assuming the actions about which he complains constituted breaches of the agreement, Mr. Rebish has failed to present any evidence of a causal link between any of those breaches and the financial injury he has alleged. For this reason as well, and because he would bear the burden of establishing causation at trial, the government is entitled to summary judgment as to his breach of contract claims.
Finally, the Court notes that one of Mr. Rebish's primary goals in this litigation appears to be securing an order from the Court setting aside the agreement, requiring the Bureau to reinstate him, and directing the Bureau to reopen the administrative grievance process.
As this Court held in ruling on the government's motion to dismiss, however, it does not have jurisdiction to review the merits of the reassignment action that served as the basis for the grievance that Mr. Rebish filed and that the parties subsequently settled.
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As set out above, there is no genuine dispute of material fact as to the claims asserted in the second amended complaint, and the government has thus demonstrated that it is entitled to judgment as a matter of law on those claims. Therefore, Mr. Rebish's motion for summary judgment is
In his motion papers, Mr. Rebish has requested relief related to the discovery process. Specifically, he asks the Court to "compel discovery against the government, hold the government in contempt of court for obstructing justice, [and] have sanctions brought against the government." PL's Mot. at 1. Mr. Rebish further states that the government should "provide what Mr. Rebish asked for in interrogatories, production of documents and respond appropriately to requests for admissions," and claims that "[t]he government has something that they are not giving Mr. Rebish."
As the Court previously informed Mr. Rebish, a motion to compel must "specifically identify] which information he alleges the government has wrongfully failed to disclose." Order at 2, Docket No. 86. Mr. Rebish does not identify the specific requests for admissions or interrogatories the government has improperly refused to answer or what documents it has wrongly refused to furnish to him. He also did not include with his motion the certification required by RCFC 37, stating that he "has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." RCFC 37(a)(1). And though his reply brief contains a sentence that mimics the language of the rule, "[g]ood faith cannot be shown merely through perfunctory parroting of statutory language" but "mandates a genuine attempt to resolve the discovery dispute."
Mr. Rebish's additional requests for sanctions fail for similar reasons. RCFC 37(b) provides for sanctions when a party fails to comply with a court order regarding discovery. The Court has not issued any discovery orders in this case and therefore RCFC 37(b) is inapplicable. Rules 37(c) and (d) relate to sanctions for failing to appropriately respond to certain discovery requests, but Mr. Rebish has not specifically identified any alleged failings. Rather, he merely makes conclusory assertions that the government has not satisfied his discovery demands. Such assertions are not sufficient to impose sanctions under RCFC 37. Further, to the extent the government responded to Mr. Rebish's discovery requests with objections, with which Mr. Rebish now takes issue, sanctions are not available under RCFC 37(d).
For the reasons set forth above, Mr. Rebish's motion for summary judgment is
