18, 2000." It urged Ms. Wise to review the settlement. Exs. 7-11, Def.'s
Reply; Exs. D & E, Pl.'s Opp'n to Def.'s Mot. (Pl.'s Opp'n).
The record does not disclose whether Ms. Wise responded, but DOE's
motion to enforce the settlement agreement followed shortly thereafter.
Oral settlement agreements in Title VII cases are fully enforceable.
See Taylor v. Gordon Flesch Co., 793 F.2d 858, 862 (7th Cir. 1986).
"Absent a factual basis rendering it invalid, an oral agreement to settle
a Title VII claim is enforceable against a plaintiff who knowingly and
voluntarily agreed to the terms of the settlement or authorized his
attorney to settle the dispute." Fulgence v. J. Ray McDermott & Co.,
662 F.2d 1207, 1209 (5th Cir. 1981). A plaintiff who consents to a
settlement on the advice of counsel or whose attorney actively negotiates
settlement on the plaintiff's behalf is presumed to have knowingly and
voluntarily consented to settlement on the agreed terms absent fraud or
duress. See Pierce v. Atchison, 65 F.3d 562, 571 n. 1 (7th Cir. 1995).
Ms. Wise makes no claim of fraud or duress.
By her own admission, Ms. Wise "knowingly and voluntarily" agreed to
settle this case on November 16, 1999. Decl. for Lorraine Wise ¶ 3
(attached to Pl.'s Opp'n). She also concedes that she discussed the terms
of the settlement with her lawyers and that she empowered them to settle
the case, following the Court's "rulings and the unsuccessful arguments
by counsel to counter them." Pl.'s Opp'n at 2. The attorneys representing
DOE have also submitted sworn affidavits stating that the parties shook
hands on the deal and considered the case settled when they left the
courthouse on the evening of November 16, 1999. See Kirshner Decl. ¶¶
7-9 (attached to Def.'s Mot.); Rubio Decl. ¶¶ 9, 11 (attached to
A legally enforceable oral contract must contain all of the material
terms of the contract, and those terms must be "reasonably ascertainable
from the acts and words of the parties." Taylor, 793 F.2d at 862.
However, "the fact that the exact language of a written settlement
agreement had not been finalized does not demonstrate that the parties
did not intend to be bound by their agreement." Varga v. Baker, No.
92-5064, 1993 WL 20073 at *1 (D.C.Cir. Jan.5, 1993). Parties to an oral
agreement may condition their agreement upon their later acceptance of
the written formulation of that agreement, but there is no suggestion
that the oral agreement in this case included such a condition.
The material terms of the parties' oral agreement are readily
ascertainable from the three drafts of the settlement agreement and the
comments they engendered, as well as the oral representations of the
parties. Those terms — that Ms. Wise and her counsel each would
receive $10,000; that all information about the AWOL charge and the
14-day suspension would be removed from Ms. Wise's personnel file; and
that the AWOL and suspension days would be converted to leave without pay
— remained unchanged throughout the parties' negotiations over
other details. Those terms were clearly offered and accepted, and the
agreement they formed is enforceable, unless the other issues over which
the parties negotiated — the precise nature of the release
language, the expungement of certain information from Ms. Wise's
personnel file, the tax consequences of the payments, and the date of
payment — are so integral to the settlement that failure to reach
agreement on them nullifies the oral agreement.
The exact wording of the release language appears to be Ms. Wise's most
serious concern. At the April 18, 2000 status conference, indeed, it was
my understanding that this was the only remaining unresolved issue. As a
practical matter, however,
this issue is a non-issue. Whether or not Ms. Wise signs a release, she
will be precluded from bringing her discrimination claims against
individual defendants, see Gary v. Long, 59 F.3d 1391, 1399 (D.C.Cir.
1995) (Title VII does not provide for liability against individuals), and
she will be precluded from litigating in a later case claims that were
alleged in her complaint in this case.
Nor can Ms. Wise avoid the enforcement of the material terms of her
agreement with DOE by insisting that DOE perform the impossible. It is
neither feasible nor lawful for DOE physically to expunge all records of
this case. It can — and will — remove references to the AWOL
charge and the suspension from Ms. Wise's personnel record, but it must
maintain a record of this settlement. The oral agreement was for DOE to
expunge what it reasonably can.
Similarly, DOE cannot change the tax laws for Ms. Wise. The question of
who will pay the tax she will incur on her portion of the settlement is
between her and her former attorneys, and it will have to remain there.
The issue of the timing of the payment to Ms. Wise has been mooted by
the passage of time. Only Ms. Wise's failure to abide by her agreement
has prevented a check from being cut by the Treasury Department in a
It is accordingly this 18th day of July, 2000,
ORDERED that defendant's motion to enforce the settlement [# 78] is
granted. Ms. Wise cannot be forced to sign a release, of course, but,
upon presentation to the Court of "proof that DOE has tendered $10,000 to
Ms. Wise and $10,000 to her former counsel; that DOE has expunged all
references to the AWOL claim and the 14-day suspension from Ms. Wise's
personnel file; that DOE's records have been amended so that the AWOL and
14-day suspension are recorded as leave without pay; and that DOE has
credited Ms. Wise with eight hours of annual leave, an order will issue
denying plaintiff's motion to vacate this Court's February 16, 2000 order