POINT I

SUMMARY JUDGMENT SHOULD BE DENIED, AS THERE ARE MATERIAL QUESTIONS OF FACT.

The courts have consistently held , under Fed.R.Civ.P. 56, dealing with summary judgment, that the Court is to determine if a matter should proceed to trial, or whether there are sufficient equities on one side which require that judgment be entered without the necessity of a full and complete hearing. Hall v. Tallapoosa County, 50 F.3d 1579 (11th Cir. 1995).

On motions for summary judgment the Court will not try the matter with respect to issues of fact but can only determine whether issues of fact are present which require some determination by a fact-finder. EEOC v. May & Co., 572 F.Supp. 536 (N.D. Ga. 1983). Summary judgment should be looked on favorably, in accordance with Rule 56 of the Federal Rules of Civil Procedure, where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Freeman v. Continental Gin Co., 381 F.2d 459, reh. den., 384 F.2d 365 (CA5 Miss. 1967).

In Arcadian Phosphates, Inc. v. Arcadian Corp, 884 F.2d 69 (CA 2 N.Y. 1989), the Court found that summary judgment was an appropriate procedure to determine whether a contract exists, where the question of intention is determinable by written agreements and a review of the agreements indicates that it was a binding contract. Summary judgment is appropriate to determine the construction and legal effect of an unambiguous writing, and it is for the Court, not the fact-finder, to make such determination. Summary judgment is properly used for interpreting contracts whose terms are agreed to by all parties and are clear and unambiguous, despite the parties having divergent views on what the agreement provides. Clemons v. Dougherty County, Ga., 684 F.2d 1365 (11th Cir. 1982).

There are material questions of fact in this matter that have been raised by the plaintiff. This material issue of fact requires the denial of defendant’s application for summary judgment. A material or genuine issue of fact is one which, if set forth before the Court and proved, would constitute a legal defense to the claim of the plaintiff. Keehn v. Brady Transfer & Storage Co., 159 F.2d 383 (CA7 Ill. 1947), cert. den., 331 U.S. 844. See also Rogers v. Singletary, 142 F.3d 1252 (11th Cir. 1998).

An issue of fact is not material unless it has legal, probative direction as controlling the issue submitted, and a motion for summary judgment is not a trial of the issues but is utilized for the purpose of determining whether, in fact, there are any genuine issues as to material facts.

While supported allegations in pleadings and briefs or conclusory allegations do not establish genuine issues of material fact, plaintiff’s proofs clearly establish sufficient basis on which to oppose summary judgment. Earley v. Champion Int’l Corp., 907 F.2d 1077 (11th Cir. 1990). The plaintiff’s contentions in this matter clearly sets forth more than mere "scintilla" of evidence in plaintiff’s favor and does not simply reassert factually unsupported allegations contained in any pleadings. It specifically sets forth a basis upon which this defendant should have undertaken to act with respect to the agreement in question so as to preclude the injuries sustained by the plaintiff. The facts educed and raised by plaintiff in this matter are material, in that they should, in accordance with the cases, affect the outcome of a lawsuit under applicable law. The dispute over any material fact has been held to be "genuine" if the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. Clemons, supra; Kopelowitz v. Home Ins. Co., 977 F.Supp. 1179 (S.D.Fla. 1997).

While there is no clear-cut definition for "genuine issues of material fact" in United States v. One Parcel of Real Property With Buildings, 960 F.2d 200 (CA1 R.I. 1992), the Court found that for the purposes of summary judgment, "genuine" means that evidence about the facts raised are such that a reasonable jury could resolve the issue in favor of the non-moving party and "material" means that the fact is one which might affect the outcome of the lawsuit under existing governing law. Under this definition, the plaintiff has more than sufficiently met its burden. See also Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994 (CA11 Fla. 1992); Brown Mackie College v. Graham, 981 F.2d 1149 (CA10 Kan. 1992).

Summary judgment is not to be granted lightly and is not to be a substitute for a trial of disputed issues of fact. Its use is limited to those exceptional circumstances that where there is no genuine issue as to a material fact, the moving party is entitled to judgment as a matter of law. A "genuine" issue is one which is sustained by substantial evidence. Lipschutz v. Gordon Jewelry Corp., 373 F.Supp. 375 (S.D. Tex. 1974). In the matter presently pending before this Court, the issues raised by the expert’s report clearly fall within this concept and definition.

In the case presently pending before this Court, summary judgment should be denied in order to permit the plaintiff to present its issues to the fact-finder for determination and consideration.

Consideration of summary judgment requires the applications of the standards of Harris v. H & W Contracting Co., 102 F.3d 516, 518 (11th Cir. 1996). The Court must "view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party." Stewart v. Happy Herman’s Cheshire Bridge Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). Summary judgment is proper only if the pleadings, depositions, and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Defendant has not sustained its burden in this matter.

POINT II

(Draft)

The McDonnell Douglas analysis, often referred to as a "pretext" theory, was developed to address the difficulty in obtaining direct evidence of discrimination. See Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1071 (3d Cir. 1996)(en banc), cert. denied, U.S. 117 S.Ct. 2532 (1997). In a pretext case a plaintiff must first make a prima facie case of discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 205, 506, 125 L.Ed.2d 407, 113 S.Ct. 2742 (1993); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L.Ed.2d 207, 101 S.Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). If the plaintiff succeeds in establishing these three elements, then the burden shifts to the defendant to advance legitimate, nondiscriminatory reason for making the adverse employment decision. Once the defendant has proffered such a reason, the plaintiff must raise an issue of fact regarding whether the defendant’s proffered explanation is pretextual or whether sexual discrimination was more likely than not a determinative factor in the decision. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

Pretext is "a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs;" in essence, pretext is a "cover-up" for a discriminatory purpose. Loeb v. Textron, 600 F.2d 1003, 1012 (1st Cir. 1979). In order to show pretext, the plaintiff may rely upon evidence which rebuts the proffered reason, so as to allow the fact-finder to conclude that the illegal basis motivated the employer. See Fuentes, 32 F.3d at 764. The employee need not submit direct evidence of discrimination, but must only raise a genuine issue of fact suggesting pretext by providing some evidence establishing a reasonable inference that the employer’s proffered reason for the adverse employment decision was weak, implausible, inconsistent, incoherent or contradictory so as to be unworthy of credence. Summary judgment is improper if the plaintiff points to evidence which raises doubt about the employer’s proffered basis, see Geary v. Visitation of the Blessed Mary Parish School, 7 F.3d 324, 331-32 (3d Cir. 1993); the plaintiff’s evidence need not necessarily lead to the conclusion that the employer did not act for the nondiscriminatory reasons.

The ultimate issue in any Title VII disparate treatment suit is the factual question of whether the defendant intentionally discriminated against the plaintiff on any of several impermissible bases.

Intentional discrimination can be proved by either direct or circumstantial evidence. When a plaintiff’s evidence is circumstantial, the Supreme Court has developed a three stage framework for focusing the inquiry. See McDonnell Douglas Corp., supra; Texas Dep’t of Community Affairs, supra. First, the plaintiff must create an inference of discrimination by establishing a prima facie case by a preponderance of the evidence. Texas Dep’t of Community Affairs, supra. Second, once the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to rebut the presumption of intentional discrimination by articulating legitimate, nondiscriminatory reasons for the employee’s rejection. Texas Dep’t of Community Affairs, supra. Finally the plaintiff must have an opportunity to show by a preponderance of the evidence that the defendant’s stated reasons are pretexts for discrimination and to present other evidence of discriminatory intent.

This McDonnell Douglas-Burdine burden shifting analysis is not meant to be "rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983), quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978).

Defendant argues that it has not breached the covenant of good faith and fair dealing, in that there has been no breach of the settlement agreement which was entered into between the parties in the previous litigation. Clearly, this is a question of fact and not one which can be assumed as the defendant has done so in this matter. Law as set forth by the defendant with regard to the covenant of good faith and fair dealing in the State of Georgia may be appropriate. However, the breach of a contract is a fact question and not one of law. In Allan’s of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414 (11th Cir. 1990), cited by the defendant, plaintiff concurs that this covenant is not an independent contract term, but rather "modifies the meaning of all explicit terms in a contract preventing a breach of those explicit terms de facto and performances maintained de jure. See Smithloff v. Benson, 173 Ga.App. 870, 328 S.E.2d 795 (1995)." [Cites omitted.] The issue then becomes one as to whether there was in fact a breach which is the factual contention raised by the plaintiff in this instance and, of course, denied by the defendant. The existence of the factual issues preclude the granting of summary judgment. In Topa Ins. Co. v. Acree, 209 Ga.App. 234 (1993), 433 S.E.2d 312, the Court stated:

A settlement agreement is a contract and the question of its enforceability is for the Court to decide. Gray v. Higgins, 205 Ga.App. 52, 53, 421 S.E.2d 341 (1992). A compromise of a dispute is binding on the parties...The law favors compromises, and a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract...Where parties to litigation have entered into a definite, certain, and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation. [Cites omitted.]

A settlement agreement is a new, original, and independent contract which this court has a duty to review as to the plaintiff’s factual contentions of a breach. Whether the defendant has appropriately complied with the terms and conditions of the agreement, again, are factual issues to be determined by the fact-finder.