# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 10 , 2011 Decided July 8, 2011

No. 10

- 52 44

R ICHARD A MERICA

, A PPELLANT

v.

K AREN G. M ILLS

, A DMINISTRATOR

, S MALL B USINESS A DMINISTRATION

, A PPELLEE

Appeal from the United States District Court
for the District of Columbia (No. 1:0 3

- cv

- 0 1807 )

Richard A. Salzman argued the cause for appellant.
With him on the briefs was Douglas B. Huron

. Elizabeth A.
Grdina entered an appearance.

Alan Burch

, Assistant U.S. Attorney, a rgued the cause for appellee. With him on the brief were Ronald C. Machen

, Jr. , U.S. Attorney, and R. Craig Lawrence , Assistant U.S. Attorney

.

Before: H ENDERSON

, B ROWN

, and K AVANAUGH

, Circuit Judges

.2

Opinion for the Court filed by Circuit Judge

K AVANAU GH , with whom Circuit Judge H ENDERSON joins.

Dissenting opinion filed by Circuit Judge B ROWN

.

K AVANAUGH

, Circuit Judge : Richard America charged his former employer, the Small Business Administration, with
discrimination. America and the SBA then settle d. Under t he settlement agreement

, America received $92,500 from the
SBA

. The settlement agreement also required the SBA to provide neutral references when potential employers inquired
about America. America claims that the SBA materially
breached that requirement of the settlement agreement

. America sued the SBA in the United States District Court. After a bench trial, the District Court found no material breach and granted judgment for the SBA

. We affirm.

* * *

Richard America worked in Rural Affairs for the Small
Business Administration. In 1995, the SBA decided to re

assign his position from Washington, D.C., to Kansas City

, Missouri

. America resisted the transfer and eventually accepted an early retirement in 1997, three days before he

wou ld have been fired for failing to report to Kansas City.

America then filed several administrative complaints alleging that the SBA engaged in race, sex, and age
discrimination with respect to the attempted transfer

. In 1998,
America and the SBA settle d their dispute . America dropped
his claims in return for $92,500. As part of the settlement agreement, the SBA expunged references to America’s
retirement from his personnel file . The SBA also agreed to refer all inquiries about America from prospecti v e employers to Human Resources; t he purpose of that requirement was “to3

ensure that the SBA provided only neutral references about
him.” America v. Mills , 714 F. Supp. 2d 88, 101 (D.D.C. 2010).

After signing the settlement agreement, America expected to find quick success on the job market. He didn’t.

H e came to suspect the SBA was saying negative things about him to potential employers , in violation of the settlement
agreement.

In 2000 and 2002 , America hired a reference

- checking company known as Do cumented Reference Check to contact
th ree individuals at the SBA and pretend to be a potential employer asking about America. America believed that the subsequent reports of Documented Reference Check’s conversations with those SBA employees showed a mate rial breach of the settlement agreement. America therefore sued
the SBA in District Court.

A fter a bench trial, the District Court found that America failed to prove that the reports from Documented Reference
Check were “ a totally accurate transcriptio n of [the] phone
calls.” Id. at 99

. The District Court reached that conclusion in part because Documented Reference Check’s chief service officer gave testimony that the court found “completely
incredible.” According to the District Court, this key witn ess was “evasive and belligerent.” He “made unreasonable assertions of privacy and trade secrets regarding such straightforward facts as the company’s size and corporate structure.” He was “in a position to change a report without the knowledge of the pe rson who created the report” and may have had an incentive to satisfy clients by altering reports to
contain negative reference s

. Id. at 98.4

The re was only one relevant exception to the District
Court’s broad factual conclusion that SBA employees did n ot make the allegedly negative statements. The District Court
found that SBA employee Arnold Rosenthal told Documented
Reference Check that there was “an internal battle going on with [America’s] transfer.” See id. at 9 7 , 99

. But the District
Court conc luded that this one statement did not constitute a material breach of the settlement agreement

. We agree. I t is undisputed on appeal that Rosenthal made numerous unequivocally positive statements to Documented Reference
Check

. Rosenthal’s overall descri ption of America was quite positive, and at worst neutral. Rosenthal’s (at worst) neutral
reference about America thus does not constitute a material breach of the settlement agreement , the purpose of which was
to ensure neutral references about America

. Even under the materiality standard proposed by America, a breach is material only if it “relates to a matter of vital importance.”
Thomas v. HUD , 124 F.3d 1439, 1442 (Fed. Cir. 1997).

Amer ica has not met that standard.

In short, although Rosenthal’s c omments may have constituted a breach because he did not simply refer the caller to Human Resources, we agree with the District Court that the breach was not material because Rosenthal’s description of America was positive or, at worst, neutral. 1

1 In proceedings before the Equal Employment Opportunity Commission, the SBA conceded breach but retracted that concession about three weeks later. America argues that the SBA
should be boun d to that original concession. But the SBA’s
withdrawal is reasonable even under t he standard proposed by
America because the concession was withdrawn within “weeks, not years.” Mazaleski v. Treusdell , 562 F.2d 701, 720 (D.C. Cir. 19 7 7).5

* * *

We affirm the judgment of the District Court

.

So ordered.B ROWN , J., dissenting

. The district court’s unchallenged findings of fact are incompatible with its conclusion that the Small Business Administration did not materially breach its settlement agreement with Richard America. Therefore, I

respec tfully dissen t

.

To get America to drop his discrimination and retaliation claims, SBA agreed to refer “all inquiries from prospective employers” to Human Resources. The purpose of this agreement was, the district cour t found, “to ensure that the SBA provided only neutral references.” America v. Mills , 714 F. Supp. 2d 88, 101 (D.D.C. 2010). A n SBA employee
therefore materially breaches the agreement when he responds to a reference inquiry in a way that casts America in

a negative light

. As the district court put it, SBA’s breach was material if it “led to the provision of reference information that was not neutral and prejudiced [America] in his search for employment.” Id.

T he district court made a series of findings t h at lead inevitably to the conclusion that SBA’s breach was material. First, the district court explicitly credited a reference
checker’s transcription of SBA comments concerning “the circumstances surrounding Mr. America’s proposed transfer to Kansas City , the fact that he did not report there, [and] the
internal battle over Mr . America’s proposed transfer.” Id. at 99. Among other comments to that effect were those of SBA
executive Arnold Rosenthal . Rosenthal told the caller that “[t]here was an internal b att l e going on with [America’s]
transfer ” and that this “was a difficult experience for him.”
The district court found such comments “had to have
occurred

, ” because they involve “significant details about the SBA and Mr. America’s employment there that no one at [the
reference

- checking company] could have known without speaking to people at SBA.” Id. T he district court further2

found these specific comments by Rosenthal to be “negative

statements

. ” Id. at 97. America had been forced to retire when
he refused to accept the transfer, so he had good reason to keep that information from prospective employers.

These findings of fact are irreconcilable with the district
court’s conclusion that SBA’s breach was immaterial. The
district court tried to make sense of that conclusion by holding

, “Rosenthal’s reference to the ‘difficult experience’ that [sic

— should read “of”? ] the ‘internal battle’ over Mr. America’s possible transfer to Kansas City was not a matter of ‘vital impor tance,’ and did not ‘frustrate substant ially’ the purpose of the contract.” Id. at 102 (citation and alteration omitted). This reasoning is flawed

. G iven the district court’s own finding s that these statements were negative, id. at 97, and that the purpose of the contract was to prevent negativ e references, id. at 101, SBA’s breach necessarily “[went] to the essence and frustrate[d] substantially the purpose for which the [settlement] was agreed to.” Draim v. Virtual Geosatellite Holdings, Inc. , 522 F.3d 452, 454

– 55 (D.C. Cir. 2008).

My collea gues agree with the district court that SBA’s breach was immaterial, because they find Rosent hal’s positive

statements were more “numerous” than his negative ones

. Maj. Op. at 4. This reasoning undermines the purpose of the settlement agreement. The requir ement that a former employer refer all employment inquiries to Human Resources
is a dead letter if he may avoid material breach by simply pairing every negative statement he utters with a positive one. As anyone with hiring experience ca n attest, employmen t references

— especially references for the management

- level positions America sought

— are more art than science . Just a hint of negativity may be all it takes to warn a savvy employer away from a prospective employee. America reasonably hoped to avoid the r isk of such value judgments3

by insisting that all inquiries b e directed to Human Resources

, which could make only objective statements about his employment history

. “The judicial task in construing a contract is to give effect to the mutual intentions of t he parties.” Mesa Air Group v. DOT , 87 F.3d 498, 503 (D.C. Cir. 1996) ; see Lankford v. Platte Iron Works Co. , 235 U.S. 461, 488 (1915). The court’s interpretation violates this principle
and renders SBA’s agreement with America practically
unenforceable.

This case illustrates the pitfalls of including a non

disparagement clause in a settlement agreement between a government agency and its former employee. M emories fade

, and the difficulty of ensuring the agency’s personnel abide by the agreement grows wi th every passing year. There are good
reasons not to enter into such contracts in the first place. But a
deal’s a deal. Because I believe SBA materially breached its settlement agreement with America, I would reverse the judgment of the district court with instructions to reinstate
America’s Title VII suit

.