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April 24, 1987

Monmohan Sahni, Plaintiff
Marion Barry, Defendant

Aubrey E. Robinson, Jr., Chief Judge.

The opinion of the court was delivered by: ROBINSON

Aubrey E. Robinson, Jr., Chief Judge

 This matter comes before the Court for a determination of whether the parties to this action reached a valid settlement offer. The Court held an evidentiary hearing on March 26, 1987, pursuant to the February 2, 1987 record of the Court of Appeals for the District of Columbia Circuit, at which Plaintiff, his wife Renu Sahni, and two attorneys who represented Plaintiff in this matter, June Kalijarvi and George Chuzi, testified.


 Plaintiff filed a Title VII action in this Court against his former employer, the District of Columbia. Before trial was to commence, the Defendant offered to settle the case for $ 20,000. On December 6, 1985, Plaintiff met with his trial counsel June Kalijarvi at her office and she presented the settlement offer to him. Tr. 8, 11, 49. Plaintiff refused to settle the case *fn1" and the matter came before the Court for trial on December 9, 1985. Tr. at 49, 63.

 On December 10, 1985, before the second day of trial was to begin, Ms. Kalijarvi asked Plaintiff for permission to reopen settlement negotiations. She was concerned that the testimony during the first day of trial had not been favorable to Plaintiff, and she was afraid he would lose the case. Tr. at 50. Plaintiff consented to reopening negotiations. Tr. at 50-51. Defendant once again offered to settle the case for $ 20,000 in cash. Tr. at 10-11, 12, 51. Plaintiff was unsatisfied with this figure, Tr. at 12, and asked Ms. Kalijarvi to seek a better settlement. Tr. at 52. Ms. Kalijarvi had several meetings with Assistant Corporation Counsel Arthur Burger who was handling the case for the District of Columbia. The conclusion of these discussions was that Defendant was unwilling to settle for more than $ 20,000 in cash. Tr. at 52.

 After these negotiations were complete, Ms. Kalijarvi recommended to Plaintiff that Mr. Chuzi come to the Courthouse so that they could all talk. She telephoned Mr. Chuzi and he arrived at the Courthouse thereafter. Tr. at 53, 75-76. Plaintiff called his wife at the request of one of his attorneys and asked her to come to the Courthouse as well. Tr. at 13, 53, 65. She arrived around lunchtime and the four of them met in the Courthouse cafeteria. Tr. at 13-14, 37, 53.

 During the conversation in the cafeteria, Ms. Kalijarvi recommended that Plaintiff accept the $ 20,000 settlement offer. Mrs. Sahni asked Ms. Kalijarvi why her assessment of the case had changed. Tr. at 14, 37-38, 54. Ms. Kalijarvi responded that based on Plaintiff's testimony the day before, she believed the Court could find that the District government had a legitimate, non-discriminatory reason for firing Plaintiff and that she believed Plaintiff would ultimately lose the case. Tr. at 54. Mr. Chuzi also told Plaintiff and his wife that they should consider the settlement offer because he and Ms. Kalijarvi were not sure any longer that Plaintiff would prevail on the merits and that if he did prevail, he would probably recover less than $ 20,000. He explained to the Sahnis that the risk-loss assessment of Plaintiff's case had shifted because of unexpected testimony by Plaintiff (that everyone in his office has been treated badly) and unfavorable evidence from another individual who Ms. Kalijarvi believed had made a very credible witness. Tr. at 76-79. The attorneys then suggested that Plaintiff and his wife discuss their options between themselves. Tr. 14, 38.

 During their private conversation, Plaintiff's wife stated her opinion that Plaintiff's lawyers seemed to be dropping the case. She said that because he could not get another lawyer in the middle of trial, he should accept the settlement. Tr. 15-16, 21, 22, 38-40, 42. Plaintiff was unusually quiet during this discussion. Tr. at 39-40.

 When the two attorneys again joined Plaintiff and his wife, Mrs. Sahni asked whether they could arrange for a postponement of the trial so that they could think about their options. Tr. at 40. Ms. Kalijarvi told them that a postponement was not possible and that they must come to a decision. Tr. at 15, 40. Mr. Chuzi again explained why the attorneys' perception of the case had changed. Tr. at 80-81. Mrs. Sahni then told the attorneys that she did not like the idea of settling, but that she and her husband had no choice in the matter and that they would accept the settlement. Tr. at 43, 54-55, 66, 82. She asked Mr. Chuzi to try to get "other things . . . thrown in(to)" the settlement offer. She did not say that the $ 20,000 alone was unacceptable. Tr. at 43.

 Plaintiff was present at this conversation, and although he did not speak, he "gave . . . a passive gesture of acquiescence." Tr. at 82. The Court believes that Plaintiff's demeanor was crestfallen and unhappy, but that he agreed to the settlement." Tr. at 82. Mr. Chuzi testified:

In my mind's eye I have a picture, and I will try to put that picture into words the best I can. It is a picture of Mr. Sahni cocking his head and nodding it, not a nod of affirmance, but a nod of so-be-it, . . . . It is not a 'yes, that is what I want' type of nod. But it is a nod of 'this is what is, and this is what is.' It was a combination of a shrug and a nod.

 Tr. at 97. When asked by the Court whether it could be considered a gesture of defeat, Mr. Chuzi answered, "Yes." Tr. at 97-98.

 Plaintiff could not dispute the testimony about this period of time because his "mind totally flipped," and his recollections were "hazy." Tr. at 16, 22, 23. He said that although he was sitting with his wife and his attorneys, "I don't recall participating any at all. I am not even sure whether I was there frankly." Tr. at 17. He testified that for a period of time he "was walking around in a daze or something." Tr. at 18. Plaintiff did know, however, that his attorneys had never told him ...

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