                                                                 [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________
                                                                          FILED
                                     No. 04-16541               U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                               ________________________              February 21, 2006
                                                                   THOMAS K. KAHN
                                      D. C. Docket Nos.                  CLERK
                                       02-00142-CV-6
                                       02-00143-CV-6

CHARLES B. SIGAL,

                                                          Plaintiff, Counter-Defendant-
                                                                             Appellant,

                                                versus

NASH-FINCH COMPANY,

                                                          Defendant, Counter-Claimant-
                                                                             Appellee.

---------------------------------------------

CAROL J. TRIPP,

                                                          Plaintiff, Counter-Defendant-
                                                                             Appellant,

                                                versus

NASH-FINCH COMPANY,

                                                          Defendant, Counter-Claimant-
                                                                             Appellee.
                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Georgia
                         _________________________

                                (February 21, 2006)


Before EDMONDSON, Chief Judge, BLACK, and FAY, Circuit Judges.

PER CURIAM:

      These are age, gender, and disability discrimination cases brought by

plaintiff-appellants Carol J. Tripp (“Tripp”) and Charles B. Sigal (“Sigal”) against

defendant-appellee Nash-Finch Company (“Nash-Finch”) under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et. seq., and the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et. seq. Appellants

claim that the district court erred in concluding that their agreement with Nash-

Finch barred further legal action regarding appellants’ claims. The district court

determined that appellants were not entitled to pursue further legal action for their

claims under their agreement with Nash-Finch because the EEOC issued a finding

equivalent to a “no cause” finding regarding appellants’ claims. Whether or not

the EEOC’s letters of determination regarding Tripp’s and Sigal’s charges



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constituted a finding of “no cause” is the controlling issue in this case. We affirm

the district court’s conclusion that the EEOC issued “no cause” determinations to

each of the appellants, and that they are therefore precluded from taking further

legal action.

                              I. Procedural History

      Appellants Carol Tripp and Charles Sigal each filed separate lawsuits

against Nash-Finch Company on December 26, 2002 in the United States District

Court for the Southern District of Georgia. Tripp alleged age and sex

discrimination and Sigal alleged age and disability discrimination. Nash-Finch

asserted a counterclaim for breach of the non-litigation agreements executed by

Tripp and Sigal on August 19, 2002 and August 30, 2002, respectively.

      On March 17, 2003, Nash-Finch moved to dismiss and/or compel arbitration

in both cases. On August 1, 2003, the district court granted Nash-Finch’s motions

to dismiss with prejudice, construing the motions in each case as motions for

summary judgment. The court consolidated the two cases for purposes of the

August 1, 2003 order. The court determined that Tripp and Sigal had both signed

agreements with Nash-Finch which now precluded them from filing suit.

Specifically, the court concluded that the EEOC’s finding of “no cause” for

appellants’ respective charges against Nash-Finch triggered non-litigation

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provisions in the agreements.

      Tripp and Sigal appealed the district court’s grant of summary judgment and

we reversed. The district court had erred by converting Nash-Finch’s motions to

dismiss into motions for summary judgment without providing the parties with the

required ten days notice in order that they might supplement the record. See Fed.

R. Civ. P. 56.

      On remand, Tripp and Sigal received proper notice but failed to supplement

the record. Then the district court, having the same record, considered Nash-

Finch’s motions a second time and granted summary judgment. The court issued

two separate Orders dismissing each complaint with prejudice. Tripp and Sigal

now appeal those Orders. The appeals were consolidated.

                             II. Factual Background

      In February and March of 2002, Tripp and Sigal filed separate charges of

discrimination with the EEOC alleging that Nash-Finch fired them based on their

age. While the EEOC conducted its investigation of the charges, Nash-Finch

requested arbitration with the American Arbitration Association (AAA) in

accordance with the organization’s Dispute Resolution Plan.

      On May 1, 2002, Sigal amended his EEOC charge to include a charge of

discrimination in violation of the ADA. On May 14, 2002 Tripp amended her

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charge to include sex discrimination under Title VII. On July 31, 2002, the parties

were directed to arbitrate, and in response, decided instead to execute a side

agreement. Tripp and Sigal executed identical agreements, each entitled

“Memorandum of Understanding,” which contained a series of litigation

alternatives based on possible EEOC determinations. Specifically, the agreement

provided that in the event the EEOC issued a finding of “no cause,” the matter

would be closed and appellants would sign a release. If, on the other hand, the

EEOC issued a finding that was inconclusive or found that there was sufficient

evidence to support the charges, appellants would have the right to pursue their

claims. The validity and binding effect of these Memoranda is undisputed.

      On September 25, 2002, the EEOC issued a determination for each of the

two cases. The EEOC used a standard form containing ten possible reasons for

dismissal with a vertical row of boxes to the left of each possible reason. The

EEOC entered an “X” inside the box beside the eighth statement which read as

follows:

      The EEOC issues the following determination: Based upon its investigation,
      the EEOC is unable to conclude that the information obtained establishes
      violations of the statutes. This does not certify that the respondent is in
      compliance with the statutes. No finding is made as to any other issues that
      might be construed as having been raised by this charge.

Nash-Finch interpreted these as “no cause” findings and subsequently prepared

                                          5
release agreements for Tripp and Sigal in accordance with the Memoranda of

Understanding.

       Tripp and Sigal, on the other hand, interpreted the EEOC determinations as

generic right to sue letters, entitling them to pursue arbitration. Thus, they refused

to sign their respective releases and sought to go forward with the AAA

arbitration. Nash-Finch informed the AAA that it would not consent to arbitration.

Nash-Finch explained that Tripp and Sigal had contractually waived their rights to

pursue these claims. Appellants responded by filing these lawsuits in federal court.

                                       III. Discussion

       We review a district court’s grant of summary judgment de novo, viewing

evidence in the light most favorable to the opposing party. Kerr v. McDonald’s

Corp., 427 F.3d 947, 951 (11th Cir. 2005). The issue before us is whether or not

the EEOC issued a finding of “no cause” regarding appellants’ charges, thus

precluding them from compelling arbitration with appellee. We agree with the

district court, and find that the EEOC’s determination in this case constitutes a “no

cause” finding. The language of the form issued to appellants, the EEOC

regulations and procedures, and a statement by the EEOC Area Director1 all



       1
          The Area Director for the EEOC office that investigated appellants’ charges verified
that the EEOC determinations were “no cause” findings in a declaration dated April 4, 2003.

                                                6
support the conclusion that the EEOC’s determination in this case was the

equivalent of a “no cause” finding.

      The form issued to each appellant stated as the reason for dismissal that the

Commission was “unable to conclude that the information obtained establishes

violations of the statutes.” Appellants argue that the operative language of the

form indicates that the EEOC failed to draw any conclusion from the evidence

presented, and therefore the determination could not be considered a “no cause”

finding. Moreover, appellants submit that the language, quoted above, regarding

non-certification of compliance, and inapplicability to issues outside the present

charge, further support the conclusion that the EEOC was unable to make a

determination.

      We disagree. The form clearly indicates that the EEOC investigated

appellants’ charges and found that, based on the evidence submitted, appellants

were unable to establish a violation of the relevant statutes. The fact that the form

does not certify Nash-Finch’s compliance with the statutes does not mean that it

cannot constitute a “no cause” finding. The language is merely consistent with an

ordinary plaintiff’s right to sue after receiving a “no cause” finding from the

EEOC. Appellants, however, have already negotiated a different outcome by

agreeing to refrain from taking further legal action in the event of a “no cause”

                                          7
finding. For the same reasons, the fact that the form contains a standard right to

sue notice does not render it a “generic Notice of Right to Sue letter” for purposes

of the Memorandum of Understanding. This alternative in the Memoranda

assumes that the EEOC did not make a determination. We find, however, that the

EEOC made a “no cause” determination.

      Furthermore, an EEOC Area Director stated unequivocally that the forms

issued to appellants were “no cause” determinations. She explained that the forms

simply use different language to express what is commonly referred to as a “no

cause” finding. Thus, although the EEOC dismissal forms did not contain the

specific phrase “no cause,” these forms nevertheless constituted “no cause”

findings by the EEOC.

      Finally, the EEOC Area Director’s statement is consistent with EEOC

regulations and procedures. EEOC regulations state that, “Where the Commission

completes its investigation of a charge and finds that there is not reasonable cause

to believe that an unlawful employment practice has occurred, the Commission

shall issue a letter of determination to all parties to the charge indicating the

finding.” 29 C.F.R. § 1601.19(a) (2005). Notably, the regulations do not require

the use of any specific language to indicate a “no cause” determination. The EEOC

merely chose to express findings of “no cause” using the language contained in the

                                           8
forms issued to appellants, but this does not change the nature of those findings.

                                  IV. Conclusion

      The district court properly granted summary judgments to appellee, Nash-

Finch in these cases. Appellants, Tripp and Sigal each negotiated and signed an

agreement with Nash-Finch that barred their ability to take further legal action in

the event that the EEOC issued a determination of “no cause” regarding their

charges. We find that the EEOC did, in fact, issue “no cause” determinations. The

summary judgments are AFFIRMED.




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