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Copeland v. Dapkute

United States District Court, D. Maryland, Southern Division

October 30, 2018

VILMA DAPKUTE et al., Defendants.



         Plaintiff 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 effective.

         “It 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.

         The 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.


         Copeland initiated this suit against her then-employer, Emcor Services Combustioneer Corp. (“Combustioneer”), [1] and several executives (collectively, the “Defendants”) on June 7, 2017.[2] 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.

         In 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.

         Copeland 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.

         The 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 ¶ 7.

         For 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.” Id.

         Usually, 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”).[3] 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.

         An 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 delivery.

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 3-4.

         An hour 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.[4] “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.

         Importantly, 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. (emphasis added).

         Copeland 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 please.” Id.

         Invoices 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.

         Copeland 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.

         Defendants 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.

         To 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.


         I will 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 ...

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