268 F.3d 27 (1st Cir. 2001), 00-1963, Kinan v. Cohen

Docket Nº:00-1963
Citation:268 F.3d 27
Party Name:DOUGLAS A. KINAN, Plaintiff, Appellant, v. WILLIAM S. COHEN, SECRETARY OF DEFENSE, ET AL., Defendants, Appellees.
Case Date:October 18, 2001
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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268 F.3d 27 (1st Cir. 2001)

DOUGLAS A. KINAN, Plaintiff, Appellant,



No. 00-1963

United States Court of Appeals, First Circuit

October 18, 2001

Heard Oct. 1, 2001


[Hon. William G. Young, U.S. District Judge]

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Sarah L. Levitt for appellant.

Barbara Healy Smith, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellees.

Before Boudin, Chief Judge, Coffin, Senior Circuit Judge, and Lynch, Circuit Judge.

LYNCH, Circuit Judge.

This is another case in which a plaintiff has sued his employer, counsel appear to have resolved the matter, and plaintiff denies there is a settlement. Cf. Quint v. A.E. Staley Mfg. Co, 246 F.3d 11 (1st

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Cir. 2001). Douglas Kinan appeals from district court orders dismissing the action, refusing to reopen, and enforcing a purported settlement agreement with his former federal employer, the Defense Logistics Agency. The district court dismissed Kinan's Title VII retaliation claim and tort claims against the defendants after the defendants notified the court that the parties had reached an agreement. Kinan, proceeding pro se after parting company with his attorney, timely sought to have his case reopened, arguing that he did not authorize his attorney to agree to defendants' proffered agreement, which he said lacked key provisions. The defendants, in turn, moved to enforce the settlement. The district court, without an evidentiary hearing, granted the defendants' motion in part, finding that there was, indeed, an enforceable settlement agreement, and that the only remaining dispute was over other terms of that agreement.


We summarize those facts in the record which are uncontested, except where noted; the district court did not make any findings of fact.

Kinan was an Equal Employment Specialist within the Equal Employment Office of the Defense Logistics Agency, a component of the U.S. Department of Defense, and worked on claims of discrimination against the Agency. In 1998, Kinan filed an internal complaint alleging that the Agency had taken adverse employment actions against Kinan in retaliation for Kinan's advocacy on behalf of certain employees who felt that they were victims of discrimination. After the Agency rejected Kinan's claim, Kinan brought suit in district court. While that action was pending, in 1999 Kinan filed suit against one of his supervisors charging harassment.1

Kinan and his attorney, Scott Lathrop, began meeting with the defendants in late December 1999, to discuss a possible settlement. Negotiations went well enough that on January 10, 2000, the parties agreed to a joint request to extend the deadline for defendants' response to Kinan's amended complaint. The material terms of the contemplated agreement, according to the defendants, provided that: 1) the Agency would eliminate from Kinan's personnel file all evidence of Kinan's removal from service; 2) the defendants would pay $32,500 in satisfaction of all of Kinan's claims; 3) Kinan would sign a resignation letter; and 4) Kinan would withdraw with prejudice all pending actions against the defendants, including his actions in district court and his administrative actions pending before the Merit Systems Protection Board.

Lathrop reviewed the proposed agreement with Kinan. Kinan sought to include a provision preserving his pending Federal Employment Compensation Act ("FECA") claims, and also emphasized the need to change his status from "terminated" to "resigned" in time to allow him to meet application deadlines for other government jobs. The parties continued to negotiate the terms over the following weeks. After a lengthy meeting involving all parties on February 11, the parties appeared to be close to reaching an agreement. Kinan reiterated his demand for a provision requiring the Agency to withdraw its controversion of Kinan's FECA claim. Jerome Brennan, one of the defendants' attorneys, advised Kinan that he was without authority to agree to that term, but that he would

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seek to have it incorporated into the agreement. According to Brennan, Kinan "gave his word" that he would sign the agreement if it contained that provision. The defendants were aware that Kinan wished to do a "final read" of the settlement agreement before signing it.

Later that day, Lathrop forwarded to Brennan additional changes Kinan wanted to make to the proposed FECA claim language. Three days later, on February 14, Kinan sent more revisions to Lathrop, which Lathrop again forwarded to Brennan. Lathrop then sent what he referred to as Kinan's "final changes" by e-mail to Brennan so that Brennan...

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