UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CONNIE MAYS, Case No. 1:17-cv-808

Plaintiff,

Litkovitz, M.J.

vs.

VETERANS CANTEEN SERVICE, et al., ORDER

Defendants.

Plaintiff Connie Mays brings this pro se action against the Veterans Canteen Service

(“VCS”)1 and Charles Doyle2 alleging a breach of a settlement agreement under Title VII of the 

Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e. (Doc. 7, at PageID 22-23). This matter is 

before the Court on defendant the Secretary of the Department of the Veterans Affairs’3 motion 

to dismiss (Doc. 35) and plaintiff’s response in opposition (Doc. 37). 

I. Factual Allegations 

The complaint and attachment thereto4 allege the following facts. Plaintiff worked as an 

acting supervisor at the VCS in Cincinnati, Ohio. Several years ago, she initiated the Equal 

1 “VCS is part of the Department of Veteran Affairs and ‘is an instrumentality of the United States, created for the 

primary purpose of making available to veterans of the Armed Forces who are hospitalized or domiciled in hospitals 

and homes of the Department, at reasonable prices, articles of merchandise and services essential to their comfort 

and well-being.’” Morgan v. Veterans Canteen Serv., No. 1:17-cv-3671, 2018 WL 3208195, at *1 (S.D. Ind. June 

29, 2018) (citing 38 U.S.C. § 7801).

2 Mr. Doyle is not mentioned in the body of the complaint or the attachments thereto, and it is not clear what role, if 

any, he had in the actions alleged by plaintiff.

3 “42 U.S.C. §§ 2000e–16 and 2000e–5 provide that the sole defendant in a federal discrimination suit shall be the 

head of the agency.” Tolliver v. Thomas, 914 F.2d 258 (6th Cir. 1990) (citing Hancock v. Egger, 848 F.2d 87, 89 

(6th Cir. 1988)). Therefore, the proper defendant in this case is the Secretary of the Department of Veterans Affairs 

and not the Veterans Canteen Service or Charles Doyle. Apparently recognizing this fact, the Secretary of the 

Department of Veterans Affairs appears in this case for defendants. The Court shall construe this matter as brought 

against the Secretary only and dismisses this case against the Veterans Canteen Service and Charles Doyle.

4 In ruling on a motion to dismiss under Rule 12(b)(6), the Court can consider “exhibits attached thereto, public 

records, items appearing in the record of the case and exhibits attached to [the] defendant’s motion to dismiss, so 

long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat’l 

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Employment Opportunity (“EEO”) complaint process believing she had been the subject of

unlawful discrimination. On March 13, 2013, plaintiff and the Department of Veterans Affairs 

(“the Agency”) entered into a settlement agreement to resolve the dispute. The settlement 

agreement provides, in relevant part:

The VCS Assistant Canteen Chief will submit a corrected SF-50 form for the award 

of retroactive back pay due to Complainant. This back pay began on June 1, 2012 

and ended on October 9, 2012 for Complainant when she assumed and performed 

the supervisory duties during the absence of a supervisor during this period. The 

VCS Assistant Canteen Chief will re-submit the corrected form to Payroll within 

15 days of the final signature on this agreement and Complainant will be provided 

a copy of the action for her records.

(Doc. 7, at PageID 26). 

On or about February 15, 2017, plaintiff sent a letter to the Agency alleging that the 

Agency breached the settlement agreement. Plaintiff alleged the Agency failed to provide her 

with the retroactive backpay for June 1, 2012 to October 9, 2012 at the same rate that her 

Caucasian counterpart received. Plaintiff alleged that for the last three years she “had been 

working with someone from Human Resources to establish what the proper rate was but was 

unable to garner the information.” (Id.). 

On March 14, 2017, the Agency dismissed plaintiff’s allegation of breach of the 

settlement agreement as untimely under 29 C.F.R. § 1614.504(a). It also dismissed her argument 

regarding the disparity in salaries as beyond the scope of the settlement agreement. On

September 25, 2017, the United States Equal Employment Opportunity Commission (EEOC)

affirmed the dismissal of plaintiff’s administrative complaint on appeal. (Id.). 

Plaintiff appealed the EEOC decision to this federal court, alleging that the VCS agreed 

to make her whole following the informal mediation. Plaintiff states she is “still not at the pay 

Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). See also Mediacom Southeast LLC v. BellSouth 

Telecommunications, Inc., 672 F.3d 396, 399 (6th Cir. 2012).

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grade or step raise” that she should be. (Id., at PageID 23). Plaintiff states that after five years 

she brought this to the attention of the regional director, but he presented her with the “same job 

description and lower the grade down.” (Id., at PageID 23-24). As relief, plaintiff seeks the 

appropriate back pay, pay grade, and step increase. (Id., at PageID 24). 

II. Defendant’s motion to dismiss

Defendant Secretary of the Department of Veterans Affairs moves to dismiss the 

complaint for plaintiff’s failure to timely exhaust her administrative remedy for enforcing the 

settlement agreement under 29 C.F.R. § 1614.504. This regulation provides, in relevant part:

Any settlement agreement knowingly and voluntarily agreed to by the parties, 

reached at any stage of the complaint process, shall be binding on both parties. 

Final action that has not been the subject of an appeal or civil action shall be binding 

on the agency. If the complainant believes that the agency has failed to comply 

with the terms of a settlement agreement or decision, the complainant shall notify 

the EEO Director, in writing, of the alleged noncompliance within 30 days of when 

the complainant knew or should have known of the alleged noncompliance. The 

complainant may request that the terms of settlement agreement be specifically 

implemented or, alternatively, that the complaint be reinstated for further 

processing from the point processing ceased.

29 C.F.R. § 1614.504(a). Defendant contends that plaintiff failed to notify the EEO Director of 

the breach of the settlement agreement within 30 days of the alleged noncompliance and instead 

waited nearly four years to notify the Agency of the breach. Although defendant is correct in its 

assessment, the Court dismisses this case on an alternate ground: lack of subject matter 

jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

5

It is well-settled that the United States is immune from suit except where such immunity 

has been waived by statute. United States v. Shaw, 309 U.S. 495, 500-01 (1940); Blakely v. 

United States, 276 F.3d 853, 870 (6th Cir. 2002); Ecclesiastical Order of the Ism of Am, Inc. v. 

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“[F]ederal courts have a duty to consider their subject matter jurisdiction in regard to every case and may raise the 

issue sua sponte.” Answers in Genesis of Kentucky, Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th 

Cir. 2009).

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Chasin, 845 F.2d 113, 115 (6th Cir. 1988). The Department of Veterans Affairs is an agency of 

the United States government and therefore cannot be sued absent a Congressional waiver of 

sovereign immunity. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990). Any waiver 

of sovereign immunity must be strictly construed, unequivocally expressed, and cannot be 

implied. United States v. King, 395 U.S. 1, 4 (1969); Soriano v. United States, 352 U.S. 270, 

276 (1957). See also Lane v. Pena, 518 U.S. 187, 192 (1996). Absent an explicit waiver of 

sovereign immunity by statute, suits against the government or its agents must be dismissed.

Loeffler v. Frank, 486 U.S. 549, 554 (1988); United States v. Mitchell, 463 U.S. 206, 212 (1983).

While the United States has waived its sovereign immunity for employment 

discrimination suits brought by federal employees under 42 U.S.C. § 2000e–16(c), it has not 

waived immunity for suits alleging a breach of settlement agreement by an agency of the United 

States. See Taylor v. Geithner, 703 F.3d 328 (6th Cir. 2013). In Taylor, the Sixth Circuit held

that the government’s sovereign immunity for Title VII claims alleging the government’s breach 

of a settlement agreement has not been waived by statute or regulation. “[N]othing in 42 U.S.C. 

§ 2000e–16(c) indicates that it is intended to waive sovereign immunity for claims other than 

discrimination.” Id. at 335. Nor does the pertinent regulation expressly waive sovereign

immunity for such claims. Id. Instead, Congress limited its waiver of sovereign immunity to the 

remedies specifically provided in 29 C.F.R. § 1614.504. Id. Section 1614.504 sets forth the 

“exclusive procedures by which a complainant may seek relief” for breach of a settlement 

agreement. Id. A complainant may either: (1) “seek injunctive relief, i.e., specific performance 

of the settlement agreement, within the agency structure”; or (2) request reinstatement of the 

underlying claims—“what is essentially an unraveling of the settlement agreement so that the 

complainant can pursue the underlying discrimination claims.” Id. Only if the complainant 

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requests reinstatement and exhausts her administrative remedies can the claims be reviewed in 

federal court. Id. See also Munoz v. Mabus, 630 F.3d 856, 862 (9th Cir. 2010) (“Had Munoz 

chosen to reinstate his underlying discrimination complaint instead of seeking specific 

performance, his claim could eventually have been heard in federal court after exhausting 

administrative procedures.”). 

In this case, the Court is without jurisdiction over plaintiff’s breach of settlement 

agreement claim. Section § 1614.504(a) does not permit federal court enforcement of the 

settlement agreement in this case. Nor did plaintiff seek reinstatement of her underlying 

discrimination claim giving rise to the settlement agreement, which could have been heard by the 

federal court after plaintiff had exhausted her administrative remedies. Therefore, this Court is 

without jurisdiction to review her breach of settlement agreement claim in this case. This case is 

DISMISSED for lack of subject matter jurisdiction, and defendant’s motion to dismiss (Doc. 35)

is DENIED as moot.

IT IS SO ORDERED. 

Date: 

Karen L. Litkovitz

United States Magistrate Judge

5/13/2020

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