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Polk v. Sherwin-Williams Co.

United States District Court, D. Connecticut

March 29, 2017

JOHN POLK, Plaintiff,
v.
SHERWIN-WILLIAMS COMPANY, Defendant.

          MEMORANDUM OF DECISION

          MICHAEL P. SHEA, UNITED STATES DISTRICT JUDGE

         Plaintiff John Polk filed this lawsuit against his former employer, the Sherwin-Williams Company (“Sherwin-Williams”), claiming racial discrimination and retaliation in violation of the Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq., and the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. 46a-60, et seq. (ECF No. 1.) On October 18, 2016, Sherwin-Williams filed a “motion to enforce” an un-executed settlement agreement allegedly entered into by the parties before the lawsuit was filed. (ECF No. 20.) As explained below, I treat this motion as a motion for summary judgment based on a defense of release. And because a reasonable juror could find that the parties did not intend to be bound by the settlement agreement until it was signed, I DENY the motion.

         I. Legal Standard

         A “motion to enforce” is not the proper vehicle for Sherwin-Williams' argument regarding the alleged settlement agreement, because the agreement was allegedly reached at a time when no case was pending in any court. “‘A district court has the power to enforce summarily, on motion, a settlement agreement reached in a case that was pending before it.'” Nieves v. Cmty. Choice Health Plan of Westchester, Inc., 2011 WL 5533328, at *3 (S.D.N.Y. Aug. 31, 2011) (quoting Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir.1974)) (emphasis added); see also Janus Films, Inc. v. Miller, 801 F.2d 578, 583 (2d Cir. 1986) (“A court's authority to enforce a settlement by entry of judgment in the underlying action is especially clear where the settlement is reported to the court during the course of a trial or other significant courtroom proceedings.”) The court's authority does not extend to agreements reached at a time it does not have jurisdiction over the case. Indeed, after a case has been dismissed, “there are only two ways in which a district court may retain ancillary jurisdiction to enforce the terms of a settlement agreement: it may expressly retain jurisdiction over enforcement of the agreement in an order of the court, or it may incorporate the terms of that agreement in such an order.” Hendrickson v. United States, 791 F.3d 354, 359-60 (2d Cir. 2015) (citation, quotation marks, and alteration omitted). Summary enforcement authority does not extend to a private settlement agreement reached prior to the start of litigation, such as the agreement at issue here. See also Roberson v. Giuliani, 346 F.3d 75, 80 (2d Cir. 2003) (“[T]he enforcement of a [private] settlement agreement normally proceeds in state courts unless there is an independent basis for federal jurisdiction.”)[1]

         Instead, I treat Sherwin-Williams' motion as a motion for summary judgment, based on what I anticipate will be a defense of release, although Sherwin-Williams has not yet filed an answer. See, e.g. Ferguson v. Ferrante, 664 F.App'x 58, 60 (2d Cir. 2016) (summary order) (reviewing defendant's motion for summary judgment based on argument that prior settlement agreement had released him from all claims in the action). Under Federal Rule of Civil Procedure 56(b), “a party may file a motion for summary judgment at any time until 30 days after the close of all discovery, ” including before filing an answer. See Advisory Committee's Note to 1946 Amendment to Fed.R.Civ.P. 56; see also Weldon v. United States, 845 F.Supp. 72, 81 n.9 (N.D.N.Y. 1994) (affirmative defenses may be presented in pre-answer motions). Where “matters extrinsic to the pleadings have been presented to and not excluded by the court, and the parties have been given reasonable opportunity to present all material pertinent to the issues raised by this motion, the court will treat the motion as one for summary judgment.” Bloomquist v. Brady, 894 F.Supp. 108, 113 (W.D.N.Y. 1995). Here, the parties have presented evidence outside of the pleadings regarding the purported settlement agreement, and have jointly stated that “neither discovery, nor an evidentiary hearing, is required in advance of the Court's consideration of Defendant's Motion.” (ECF No. 25 at 1.)

         In reviewing Sherwin-Williams' motion for summary judgment, I must “construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013) (citation and quotation marks omitted). Summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The “party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists.” Goenaga v. Mar. of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). An issue of fact is “material” if it “might affect the outcome of the suit under the governing law.” Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 97 (2d Cir. 2000) (citation and quotation marks omitted). “A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (citation and quotation marks omitted).

         II. Undisputed Facts [2]

         Sherwin-Williams terminated Mr. Polk's employment on February 24, 2015. (ECF No. 20-2 at 2.) On April 17, 2015, Attorney Robert M. Fortgang, then counsel for Mr. Polk, wrote a letter to Sherwin-Williams. (Id. at 2-4.) Mr. Fortgang claimed that Mr. Polk had been wrongfully terminated and requested “negotiation, the ultimate objective of which would be the execution of a Severance Agreement and Release of All Claims.” (Id. at 3.)

         The parties apparently engaged in the requested negotiations, and on June 30, 2015, Mr. Fortgang emailed Sherwin-Williams' counsel, stating:

Our client has accepted Sherwin-Williams' offer of: (1) one month of severance; (2) outplacement counseling; and (3) reclassifying Mr. Polk's reasons for termination from “gross misconduct” to a “mutual voluntary separation from Sherwin-Williams.” In this regard, kindly provide an agreement at your earliest convenience.

(Id. at 7.) Mr. Fortgang also requested “an employment reference that coincides with the agreement that his separation was a mutual decision to voluntarily separate… as soon as possible.” (Id.) Sherwin-Williams' counsel replied the same day, asking how the severance should be allocated and stating, “[a]s far as employment references go, we have work verification service that will confirm his dates of employment and position held; we will not comment further. This is consistent with Company policy.” (Id. at 6-7.) Fifteen minutes later, Mr. Fortgang responded, describing the desired severance allocation and providing a copy of his law firm's W-9. (Id. at 6.)

         On July 10, 2015, an associate of Mr. Fortgang wrote to Sherwin-Williams' counsel, “to follow up on the status of Mr. Polk's settlement agreement, ” asking, “When can we expect said document?” Then, on July 22, 2015, Sherwin-Williams' counsel responded by emailing a draft settlement agreement to Mr. Fortgang. (Id. at 11-18.) In the body of the email, counsel wrote, “Please let me know if you wish to discuss. Otherwise, please execute and return to me so I can process the payment.” (Id. at 11.)

Mr. Fortgang replied with proposed revisions on July 27, 2015:
On June 30th I wrote to you on behalf of my client accepting Sherwin Williams' offer of: (1) one month of severance; (2) outplacement counseling; and (3) reclassifying Mr. Polk's reasons for termination from “gross misconduct” to a “mutual voluntary separation from Sherwin-Williams.” As currently written, the Separation Agreement lacks any reference to outplacement counseling and the ...

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