                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-1764


WILLIAM E. CAMPBELL,

                  Plaintiff - Appellant,

             v.

PETE GEREN, Acting Secretary, Department of the Army,

                  Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:07-cv-00675-LMB-JFA)


Submitted:    November 12, 2009            Decided:   November 30, 2009


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William E. Campbell, Appellant Pro Se.      R. Joseph Sher,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Plaintiff      William       E.       Campbell    appeals    the    district

court’s     order       dismissing       his        Amended        Complaint    alleging

violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e to e-17 (2006).                    Campbell raised nine claims in

his   action     before    the   district         court:       that    his    supervisor,

Colonel Charles McMaster, created a hostile work environment at

Fort Lewis from November 2003 through February 2005 (Count 1);

McMaster    effected      the    illegal          removal    of     Campbell    from    his

employment on account of his race (Count 2); McMaster initiated

an investigation of Campbell on account of his race (Count 3);

Campbell’s twenty-eight day suspension violated his due process

rights (Count 4); the agency investigator discriminated against

Campbell on account of his race in recommending termination for

sexual     harassment       (Count      5);        Campbell’s        twenty-eight       day

suspension       for    sexual    harassment          was     imposed    to    retaliate

against him because he filed an Equal Employment Opportunity

(“EEO”)    claim       (Count    6);   and        appealed     a    proposed    five-day

suspension     (Count     7);    after    Campbell          was     removed    from    Fort

Lewis, McMaster acted to prevent Campbell from obtaining other

employment on account of his race (Count 8); the United States

Army violated his due process rights in withholding and refusing

to    disclose     evidence      in    Campbell’s           favor    (Count    9).      In

dismissing Campbell’s complaint, the district court found that

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Campbell failed to exhaust his administrative remedies regarding

Counts 1, 2, and 8, and that the remaining counts were barred by

a settlement agreement Campbell signed with the Army, disposing

of    sexual      harassment       claims       raised     against     Campbell     and

suspending      him       for   nineteen   days.         Campbell    filed   a   timely

appeal.

               On appeal, Campbell first alleges that Counts 1, 2,

and 8 were made known to the Army in 2004, and the Army failed

to properly investigate them.               Therefore, Campbell requests that

“timeliness statutes . . . be tolled and all claims adjudicated

on the merits in District Court.”                  Next, Campbell asserts that

the     settlement         agreement    only      pertained     to     those     issues

“relevant” to the appeal of his recommended twenty-eight day

suspension for sexual harassment to the Merit Systems Protection

Board (“MSPB”), and therefore the settlement did not bar the

remaining Counts of his complaint, as they were not relevant to

his appeal.          Additionally, Campbell asserts that the district

court     erred      in    disallowing      the    use    of   parol    evidence    to

interpret the settlement agreement following its finding that

the agreement was not ambiguous.                We affirm.

               We review a district court’s dismissal for failure to

state a claim under Fed. R. Civ. P. 12(b)(6).                       Philips v. Pitt.

County Memorial Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009).                        In

so    doing,    we    accept     all   well-pleaded       factual    allegations    as

                                            3
true, and view the complaint in the light most favorable to the

plaintiff.          Id. at 180.       In order to survive a motion under Rule

12(b)(6), a plaintiff’s “factual allegations must be enough to

raise a right to relief above the speculative level,” and there

must    be    “enough    facts     to    state     a    claim    for    relief     that    is

plausible on its face.”                Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 570 (2007).



                                I. Counts 1, 2, and 8

              “Title VII of the Civil Rights Act of 1964 creates a

right    of    action     for   both     private-sector         and     certain    federal

employees      alleging     employment        discrimination           on   the   basis    of

race,    color,       religion,       sex,   or    national     origin.”          Laber   v.

Harvey, 438 F.3d 404, 415 (4th Cir. 2006).                          However, prior to

utilizing this right of action, all employees must first exhaust

their available administrative remedies.                      Id.     In the context of

a federal employee, this requires that the employee consult an

agency        EEO      counselor        within         forty-five       days      of      the

discriminatory act to try to informally resolve the matter.                               See

29 C.F.R. § 1614.105(a)(1) (2008).

              Here, it is clear that the district court did not err

in   dismissing        Counts    1,    2,    and   8    for   Campbell’s       failure     to

exhaust       his     administrative         remedies.          Though      Campbell      now

asserts that he spoke with EEO counselors and various agency

                                              4
representatives about the hostile work environment created by

McMaster, the record and pleadings are bereft of any reference

to   such      conversations,      and       Campbell       fails    to       allege   that   he

actually filed a complaint with the EEO office.                               Though Campbell

cites     to     two   documents         in       support    of      his       contentions     —

specifically, an “EEO Counselor Report of Inquiry dated July 13,

2004” and “AR 15-6 Findings dated June 3, 2005” — it is apparent

from the dates of these documents that they relate to the Army’s

investigations of sexual harassment complaints against Campbell,

and not complaints lodged by Campbell.                              Accordingly, because

Campbell failed to allege in his complaint that he met with an

EEO counselor to attempt to informally resolve his grievances

concerning the alleged hostile work environment, the district

court did not err in granting summary judgment on Counts 1, 2,

and 8.



                                 II. Remaining Counts

               Campbell next asserts that the district court erred in

determining       that    the     remaining        counts     of     his      complaint    were

barred by his settlement agreement.                         The settlement contained

the following pertinent language limiting Campbell’s right to

further        challenge        issues       disposed       of      by        the   agreement:

“Employee       agrees     to    waive       all    grievance       and       appeal   rights,

including       appeals    to     the    .    .    .   [MSPB].           In    addition,      the

                                               5
employee agrees to waive all . . . [EEO] rights related to the

relevant issues of MSPB Appeal Docket No., PH-0752-07-0011-I-1.”

Campbell      contends    that,       because    the   MSPB    settlement       only

disposed of issues “relevant” to the appeal of his suspension,

the settlement did not bar his discrimination or due process

claims.      Additionally, Campbell contends that the district court

erred   in    finding    that   the    terms    of   the   settlement    were   not

ambiguous, and therefore disallowing the use of parol evidence

to determine issues “relevant” to the appeal.

             First, even if Campbell’s assertions are correct, his

due process claims (Counts 4 and 9) are barred by the settlement

agreement.       Regardless       of    whether      the   second    sentence    of

paragraph ten, waiving Campbell’s EEO rights, is ambiguous, the

first sentence, waiving all grievance and appeal rights, is not.

As Campbell’s due process claims do not concern discrimination,

Counts 4 and 9 are barred by the settlement agreement.

             “[S]ettlement      agreements       are   treated      as   contracts

subject to the general principles of contract interpretation.”

Byrum v. Bear Inv. Co., 936 F.2d 173, 175 (4th Cir. 1991).

Where a contract is clear and unambiguous on its face, courts

must interpret the contract according to the plain meaning of

its terms.      Ott. v. L & J Holdings, LLC, 654 S.E.2d 902, 905

(Va. 2008).     In such an instance, courts do not look for meaning

beyond the contract itself.             Id.     However, where a document is

                                          6
ambiguous,          courts   may     look      to    parol    evidence       in    order    to

ascertain the intent of the parties.                    Id.

               Assuming      without      deciding       that       the   district       court

erred     by     finding      that       the     settlement         agreement      was     not

ambiguous, and therefore should have permitted the use of parol

evidence to ascertain the “relevant issues” of the appeal, it is

clear that Campbell’s remaining claims were resolved as part of

the   settlement        agreement.             The   relevant       issues    of   the    MSPB

hearing       are    specifically        delineated      in     a    November      27,    2006

“Memorandum on Prehearing Conference.”                        The memorandum clearly

sets out the issues relevant to the MSPB appeal:                               (1) whether

the charges against Campbell can be sustained; (2) “whether the

action promotes the efficiency of service;” (3) “whether the

penalty was reasonable;” (4) whether the investigation pursuant

to Army Regulation 15-6 (the “AR 15-6 investigation”) against

Campbell       was     proper      or    resulted      in     procedural       error;      and

(5) whether the twenty-eight day suspension was in reprisal for

Campbell’s appeal of his original proposed five-day suspension

and the ADR resolution of Campbell’s unrelated discrimination

claim.         After    reviewing       Campbell’s      remaining         claims    that    he

asserts were erroneously dismissed, it is apparent that even had

the district court permitted the introduction of parol evidence

to clarify the terms of the settlement agreement, no conclusion

could    be     reached      other      than    that   the    parties        entered     these

                                                7
remaining      claims   to    be   fully       and     finally   resolved      by   the

administrative settlement.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions    are    adequately        presented       in   the    materials

before   the    court   and    argument        would    not   aid     the   decisional

process.

                                                                              AFFIRMED




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