United States District Court, D. Maryland, Southern Division
DEEDE L. COPELAND, Plaintiff,
VILMA DAPKUTE et al., Defendants.
W. GRIMM UNITED STATES DISTRICT JUDGE.
Deede L. Copeland (“Copeland”) signed a
settlement agreement waiving her right to pursue
employment-discrimination claims against a former employer
and various colleagues and supervisors. Mot. to Enforce 2,
ECF No. 45. A right-to-revoke provision allowed Copeland to
withdraw her assent to the agreement by delivering an express
written revocation to a specifically named individual
(Kristin Arnold) at a specifically designated physical
address (the one listed in paragraph 8 of the agreement) no
later than eight days after she signed the agreement.
Copeland emailed her employer hours before the deadline,
expressing her wish to “revoke the signed agreement at
this time, ” Email to Emcor HR, ECF No. 43-1, but a
hard-copy written revocation was not delivered until the
following day, see Mot. to Enforce 3-4. The primary
question here is whether the attempted revocation was
is beyond cavil that, generally speaking, the express terms
of a contract bind the parties and courts should not meddle
in the affairs of the parties by modifying terms of the
agreement to assist a disadvantaged party.”
Baltrotsky v. Kugler, 910 A.2d 1089, 1096 (Md.
2006). Applying principles of Maryland contract law, I
conclude that Copeland failed to timely revoke her assent to
the settlement agreement in the manner it required.
Copeland's motion to reopen the case, ECF No. 43, is
granted, but only for the limited purpose of ruling on
Defendants' motion to enforce the signed settlement
agreement, ECF No. 45. See Collins v. Bank of Am.
N.A., No. PJM 06-1411, 2010 WL 2892559 (D. Md. July 20,
2010). The Court grants Defendants' motion.
Court also grants the defense's motion to place the
settlement agreement under seal, ECF No. 55, but only in
part. As several portions of the agreement are germane to my
decision on the motion to enforce, I direct Defendants to
file a redacted version of the agreement in accordance with
this Memorandum Opinion.
initiated this suit against her then-employer, Emcor Services
Combustioneer Corp. (“Combustioneer”),
several executives (collectively, the
“Defendants”) on June 7, 2017. Compl., ECF No.
1. Her Complaint, filed pro se, accused Defendants
of discriminating against her on the basis of her race, age,
and disability and of maintaining a hostile work environment.
Id. at 3. The Complaint asserted claims under Title
VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e to 2000e-17; the
Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621-634; and the
Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. §§ 12112-12117.
October 2017, after the parties agreed to enter into
settlement discussions, this Court ordered the appointment of
pro bono counsel to represent Copeland “for the limited
purpose of representation at a settlement conference.”
October 2017 Order, ECF No. 28. The Court referred the case
to a United States magistrate judge the following month.
Order of Reference, ECF No. 38. A settlement conference was
to follow on April 6, 2018, but that became unnecessary
because on April 3, 2018, the parties reached an agreement to
settle the case. Mot. to Enforce 2. This Court promptly
issued a Local Rule 111 Settlement Order dismissing the suit.
Settlement Order, ECF No. 42; see Loc. R. 111
(authorizing the court to enter an order dismissing a case
upon notification that the case has been settled). The Order,
dated April 4, 2018, stated: “The entry of this Order
is without prejudice to the right of a party to move for good
cause within sixty (60) days to reopen this action if
settlement is not consummated.” Settlement Order.
signed the agreement on April 13, 2018. Settlement Agreement
¶ 8, ECF No. 54. Under its terms, Copeland agreed to
release “any and all claims which she may have”
against Defendants, including any claim of discrimination,
harassment, or retaliation under Title VII or the ADA, as
well as all claims under the ADEA. Id. ¶ 4(a).
The agreement affirms that the release “is fairly and
knowingly made” but reserves Copeland's
“right to challenge the knowing and voluntary
nature” of the agreement under the Older Workers
Benefit Protection Act (“OWBPA”) and the ADEA.
Id. ¶¶ 4(c), 5.
OWBPA establishes a number of conditions that must be
satisfied before a person may waive her rights or claims
under the ADEA. See 29 U.S.C. § 626(f)(1)-(2).
Those conditions, which will be discussed more fully below,
include guarantees that the person has had an opportunity to
consult independent counsel and a “reasonable period of
time within which to consider the agreement.”
Id. To that end, the settlement agreement here
included an acknowledgement that Defendants advised Copeland
to “consult her own attorney prior to” accepting
the agreement and that Copeland “was afforded a period
of twenty-two (22) days to consider [the] Agreement and to
decide whether to accept it.” Settlement Agreement
present purposes, the most critical provision of the
agreement is in paragraph 18. This paragraph, labeled
“Right to Revoke Agreement, ” empowered Copeland
to revoke the agreement within “a full eight (8)
calendar days following her execution of this
Agreement.” Id. ¶ 18. To properly revoke,
the agreement states, Copeland “must deliver or cause
to be delivered to Kristin Arnold at the address listed
in paragraph 8 of this Agreement an express written
revocation, no later than 11:59 p.m. EDT on the eighth
calendar day following the date Ms. Copeland signs this
Agreement.” Id. (emphasis added). Copeland, it
says, “acknowledges that this Agreement shall not
become effective or enforceable until the effective date,
which is the first calendar day after the expiration of the
eight-day revocation period described above.”
a court is not privy to confidential communications between a
client and counsel, but Copeland has filed a series of emails
between herself and her appointed counsel which shed some
light on what transpired as the deadline to revoke the
settlement agreement neared. See Copeland Emails
1-7, ECF No. 43-1. In the earliest of these emails, which
shows an April 20, 2018, timestamp, Copeland informed her pro
bono counsel that there had been a “[g]reat shift in
circumstances” on account of new information she had
just received “out of the blue” from the U.S.
Equal Employment Opportunity Commission
(“EEOC”). Id. at 4. The email asked counsel
to help her review her options, commenting that she would
“rather pay for a good fight” and continue
pursuing her claims with the EEOC but would be willing to
“settle today at 200k, ” provided the company
“pays half of the cost on the taxes owed to the
IRS.” Id. at 4-5.
attorney with the firm wrote back an hour later, explaining
the steps Copeland would need to take to revoke her assent to
the agreement. Id. at 3. The email stated:
If you want to revoke you have [to] deliver or cause to be
delivered to Kristin Arnold at EMCOR Government Services,
2800 Crystal Drive, Suite 600, Arlington, VA, 22202, no later
than 11:59 p.m. on the eighth calendar day following the date
you signed the attached settlement agreement. That means you
have until tomorrow night (April 21, 2018) to make the
Id. The email concluded: “We view our
involvement in this matter as complete at this time, and so
you will have to do this on your own.” Id. at
after that, the attorney emailed Copeland again, apparently
memorializing a conversation they had just had by phone.
Id. at 1. There, the attorney repeated the
instructions for revoking assent and advised Copeland to
“read [the enclosed agreement] carefully before you
act.” Id. The email noted that the
company's offices were likely closed for the day and that
it was unclear whether they would be open the next day, a
Saturday. “We expect that [the company] will
argue that you did not timely revoke if you deliver it after
tomorrow, and you will have to argue that you could not
deliver it because the office was closed. We can't opine
on whether this will work or not.” Id.
Copeland's attorney added: “You can also try
emailing the notice of revocation to Ms. Arnold and
Emcor's counsel, although you should be aware that
the agreement requires a physical delivery to Emcor's
offices in order to revoke.” Id.
emailed Emcor Government Services Vice President of Human
Resources Kristin Arnold just before noon on April 21, 2018,
the morning of the deadline. Copeland Emails 6. The email
stated in part: “Based on a phone call I received from
the EEOC un-expectantly on 4/19 I have to revoke the signed
settlement agreement at this time.” Id. The
email went on to propose a $200, 000 settlement, saying,
“This is the only offer I am willing to accept at this
time without an attorney. . . . Do not call me to negotiate
from a courier service show a courier made an unsuccessful
attempt to hand-deliver a written revocation to Emcor
Government Services's office in Arlington, Virginia, that
afternoon, noting the “place was close[d].”
Invoice 8, ECF No. 43-1. A follow-up attempt on April 22,
2018 - the day after the deadline - was successful.
Id. at 13.
filed a motion on May 11, 2018, asking the Court to
“please reinstate” her case for several reasons.
Mot. to Reopen 1, ECF No. 43. The motion explains, first,
that the “minimal amount” the parties had
initially agreed upon “could not be achieved.”
Id. It next asserts that Copeland signed the
agreement “based on the fact that no one could provide
me answers regarding additional retaliation charges, ”
but that the subsequent call from the EEOC “left me
even more furious about making my initial decision and trying
to be humble and just move forward.” Id. at
1-2. The motion continues to state that, “now that I am
in a better state of mind and my confidence is restored,
” she would like the Court to dismiss the case without
prejudice and “allow [her] to refile [the] case with an
attorney please and present all charges at one time.”
Id. at 2.
soon filed a response in opposition in Copeland's motion,
arguing Copeland was bound by the signed settlement
agreement. Mot. to Enforce. I explained in a letter order
that I construe Defendants' filing as a motion to enforce
the settlement agreement and ordered further briefing, June
11 Letter Order, ECF No. 46, which the parties have since
provided, see Pl.'s Resp. in Opp'n, ECF No.
49; Defs.' Reply, ECF No. 51.
facilitate my review of the defense's motion, I ordered
Defendants to submit to the Court a copy of the settlement
agreement. ECF No. 53. Defendants complied. ECF No. 54. Their
submission was accompanied by a motion to place the agreement
under seal, ECF No. 55, on which I rule below.
first address Copeland's motion to reopen the case. As it
is not possible to rule on this motion without scrutinizing
the settlement agreement itself, I will consider
Defendants' motion to enforce the agreement in tandem
with Copeland's motion. Only after ruling on these