Kinan v. Cohen, 00-1963

• Decision Date: 01 October 2001
• Docket Number: No. 00-1963,00-1963
• Citation: 268 F.3d 27
• Parties: (1st Cir. 2001) DOUGLAS A. KINAN, Plaintiff, Appellant, v. WILLIAM S. COHEN, SECRETARY OF DEFENSE, ET AL., Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 27

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

DOUGLAS A. KINAN, Plaintiff, Appellant, v. WILLIAM S. COHEN, SECRETARY OF DEFENSE, ET AL., Defendants, Appellees.

No. 00-1963

United States Court of Appeals For the First Circuit

Heard Oct. 1, 2001

Decided October 18, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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

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 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.

I.

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 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 could incorporate them into the February 11 draft agreement.

Also on February 14, the date on which the defendants' response to Kinan's complaint was due, the defendants notified the court that the parties had reached an agreement in principle and that the defendants anticipated that the parties would file a joint statement of dismissal shortly. The defendants' attorneys assert that Lathrop agreed with that action; there is nothing in the record from Lathrop on this point.

The district court entered an order on February 15 that Kinan's case was "dismissed . . . without prejudice to the right of any party, upon good cause shown, to reopen the action within thirty (30) days if settlement is not consummated."² No joint stipulation of dismissal was ever filed, and Kinan now claims he never authorized his attorney to join the defendants' report of settlement.

Kinan asserts that he did not consider the matter settled. On February 16, Kinan again contacted Lathrop by e-mail in which he raised several concerns regarding the agreement, and objected that the changes to the FECA provisions which (Kinan felt) defendants had promised in the February 11 meeting had not been made. Lathrop forwarded Kinan's comments to Brennan, prefaced by a message which stated, "[Kinan] has . . . a few more changes." Brennan responded to Lathrop by letter on February 17, stating that the Agency considered the "final changes" that Lathrop had sent to the defendants on February 14 to be an offer, which the defendants accepted by incorporating those changes into the agreement, signing it, and forwarding the agreement to Lathrop and Kinan for their signatures. Thus, as of February 17, there appeared to be an agreement, the Agency having agreed to the "final changes" Kinan requested.

In response, Kinan insisted that he did not consider anything final until he was satisfied with the language of the agreement, and Lathrop sent a message to Brennan, stating that "[Kinan] will not sign anything until he is certain that he is comfortable with it. And until then there is no 'deal.'" Lathrop sent a copy of that message to Kinan, advising Kinan that "you should be satisfied that you are comfortable with the language before you consider signing anything. You should not feel pressured into signing any settlement agreement."

On February 25, 2000, well within the thirty day period set by the district court in its February 15 order, Kinan, through Lathrop, filed a motion to reopen on the ground that a settlement "has not been consummated."³ Shortly thereafter, Lathrop withdrew as Kinan's attorney. In the reply to Kinan's motion to reopen, the defendants stated that the parties had reached an agreement and requested a status conference. Kinan, proceeding pro se, filed a second motion to reopen, denying that settlement had been reached and claiming: "The agency is now attempting . . . to force me to accept an agreement that, in no way, resembles what was communicated to both my attorney and the agency attorney."

At the status conference on April 26, 2000, Kinan (still proceeding pro se) told the court that "there was no settlement agreement" and that his attorney had so notified the court on February 25. The court admonished Kinan that there are "consequences" when a party notifies the court that it does not have to go forward with trial, and stated: "Insofar as I'm concerned this initial case is over. Except that you have every right to make sure that the settlement is enforced." Kinan protested that the parties "never came to an agreement on all of the terms and conditions" and that the defendants failed to comply with Kinan's demand that the Agency change his status to show that he had resigned rather than been terminated in time for Kinan to apply for other government jobs, which Kinan argued was a key condition of settlement.

The defendants argued that they considered the February 17 settlement agreement to be binding, and stated that they stood ready to honor that agreement. The court advised the defendants to file a motion to enforce the settlement agreement, and told Kinan that Kinan could file an opposition to the defendant's motion, along with anything else Kinan wished to file. On May 2, 2000, the defendants filed a motion to enforce the settlement agreement and dismiss Kinan's case. Accompanying the motion were affidavits by defendants' attorneys giving their version of the events surrounding the purported settlement agreement.

In his opposition to the defendants' motion to enforce the agreement, Kinan claimed that Lathrop did not have authority to unilaterally settle Kinan's case; that Kinan's acceptance of the February 11 agreement was contingent on his right to have a "final read" of the agreement to ensure that his changes were incorporated; and that material terms remained unresolved at the conclusion of the February 11 meeting. Kinan also argued that defendants had delayed and caused him to miss the opportunity to apply for other government jobs because his status was not changed from "terminated" to "resigned." Kinan's filing did not include affidavits, either his own or Lathrop's, but did include copies of e-mail messages between...