Bullock v. South Bend Community School Corporation

Filing 28

OPINION AND ORDER denying 18 Motion for Summary Judgment. Signed by Judge Rudy Lozano on 3/27/2015. (rmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
YVONNE BULLOCK,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
SOUTH BEND COMMUNITY,
SCHOOL CORPORATION,
Defendant.

3:13-cv-1093

OPINION AND ORDER
This matter is before the Court on the Plaintiff’s
Motion for Summary Judgment as to Defendant’s Counterclaim,
filed by the plaintiff, Yvonne Bullock, on August 29, 2014.
(DE #18.)

For the reasons set forth below, the motion is

DENIED.

BACKGROUND
Plaintiff,

Yvonne

Bullock

(“Plaintiff”),

filed

her

Complaint against Defendant, South Bend School Corporation
(“Defendant”),

on

October

10,

2013.

(DE

#1.)

The

Complaint alleges the following claims: Count I, Violation
of Title VII: Race Discrimination; Count II, Violation of

1

Title VII: Gender Discrimination; Count III, Violation of
the

Equal

Pay

Act;

Count

IV,

Violation

of

Title

VII:

Retaliation; Count V, Violation of the Fair Labor Standards
Act: Retaliation; Count VI, Violation of the False Claims
Act: Retaliation; and Count VII, Breach of Contract.

(Id.)

Defendant

which

filed

its

Answer

on

November

11,

2013,

included a counterclaim against Plaintiff alleging a breach
of a settlement contract.

(DE #10.)

On August 29, 2014,

Plaintiff filed the instant Motion for Summary Judgment as
to Defendant’s counterclaim.

(DE #18.)

Defendant filed

its response in opposition on September 25, 2014.
#21.)

Plaintiff did not file a reply.

(DE

The motion is ripe

for adjudication.

DISCUSSION
Summary Judgment Standard
Summary judgment must be granted when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
56(a).

FED. R. CIV. P.

A genuine dispute of material fact exists when “the

evidence is such that a reasonable jury could return a
verdict

for

the

nonmoving

party.”

Anderson

Lobby, Inc., 477 U.S. 242, 248 (1986).

v.

Liberty

Not every dispute

between the parties makes summary judgment inappropriate;

2

“[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude
the

entry

of

summary

judgment.”

Id.

In

determining

whether summary judgment is appropriate, the deciding court
must construe all facts in the light most favorable to the
non-moving party and draw all reasonable inferences in that
party’s favor.
Cir. 2010).

Ogden v. Atterholt, 606 F.3d 355, 358 (7th

“However, our favor toward the nonmoving party

does not extend to drawing inferences that are supported by
only speculation or conjecture.”

Fitzgerald v. Santoro,

707 F.3d 725, 730 (7th Cir. 2013)(citing Harper v. C.R.
Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).

A party

opposing a properly supported summary judgment motion may
not rely on allegations or denials in her own pleading, but
rather

must

“marshal

and

present

the

court

evidence she contends will prove her case.”

with

the

Goodman v.

Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
If the non-moving party fails to establish the existence of
an essential element on which he or she bears the burden of
proof at trial, summary judgment is proper.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

3

Massey v.

Material Facts
Defendant employed Plaintiff as the Executive Director
of Instruction and Curriculum from April 18, 2011, to June
30, 2012.
2012,

(Aff. Bullock, DE #19−2, ¶ 1.)

Plaintiff

filed

retaliation

with

Commission

(“EEOC”),

gender

and

employment.
in

a

a

the

racial

of

Equal

alleging

discrimination

Employment

that

discrimination

(DE #19−4.)

mediation

charge

On October 10,

Opportunity

Defendant
with

and

engaged

regard

to

in
her

The parties agreed to participate

session

conducted

by

the

Bullock, DE #19−2, ¶¶ 3,4; DE #19−5, p. 1.)

EEOC.

(Aff.

On August 26,

2013, the mediation was held at the EEOC’s Indianapolis
District Office and was facilitated by EEOC investigator,
William Rogers (“Rogers”).
DE

#19−5,

pp.

1−3.)

(Aff. Bullock, DE #19−2, ¶ 4;

Plaintiff

was

not

represented

by

counsel before or during the mediation session; the EEOC,
on

the

Hardman.

other

hand,

was

represented

by

attorney

Lyle

(Aff. Bullock, DE #19-2, ¶ 5.)

Prior to the mediation, Plaintiff provided Rogers with
a written settlement demand that included both financial
and qualitative terms.
#19−6, pp. 1−2.)

(Aff. Bullock, DE #19−2, ¶ 6; DE

At the mediation, the parties exchanged

proposals but ultimately left the mediation session after
failing to come to an agreement.

4

(Aff. Bullock, DE #19−2,

¶¶ 9-10; Dep. Rogers, DE #19−7, pp. 6−9; DE #19−5, p. 2.)
During the mediation, Plaintiff did not wish to accept a
proposal
would

without

only

financial

negotiate

compensation,

with

qualitative

and

Defendant

demands.

(Aff.

Bullock, DE #19−2, ¶ 8; Dep. Rogers, DE #19−7, pp. 6−9.)
The parties appeared to Rogers to have reached a stalemate,
and Rogers dismissed Defendant.
pp.

13,

15.)

Rogers

then

(Dep. Rogers, DE #21-2,
informed

Plaintiff

that

Defendant’s last offer would likely remain on the table.
(Id. at 16.)
Shortly after the mediation concluded, Plaintiff left
Rogers a voicemail urging him to call her back right away,
so he did.

(Aff. Bullock, DE # 19-2 ¶ 12; Dep. Rogers, DE

#19−7, ¶¶ 1−9.)

The content of their subsequent phone

communication is largely disputed.
Plaintiff maintains that, during the phone call, she
told Rogers that she would only agree to qualitative terms
with Defendant as an “intermediate step” towards reaching a
settlement.

(Aff. Bullock, DE #19−2, ¶ 12.)

Defendant, on

the other hand, presents testimony from Rogers who states
that

Plaintiff

agreed

to

accept

Defendant’s

last

offer

exactly as it was previously communicated to her during the
mediation session and to settle all of her claims.
Rogers, DE #21−2, pp. 17−19.)

5

(Dep.

Additionally, Plaintiff asserts that she definitively
told Rogers that she would not agree to a final settlement
without financial compensation.
12.)

(Aff. Bullock, DE #19−2, ¶

However, Rogers testified that Plaintiff was willing

to “take the offer where they would expunge her records,
[provide

a]

neutral

reference

[and]

I

Roggeman the central point of contact.”
#21−2, p. 17.)
with

Plaintiff

believe

make

Mr.

(Dep. Rogers, DE

Rogers stated he specifically clarified
that

Defendant’s

offer

did

not

involve

financial compensation and that Plaintiff understood this
issue

and

agreed

to

it.

(Id.)

Rogers

testified

that

Plaintiff was insistent that he immediately call Defendant
to express her willingness to settle:
[s]he insisted that I contact the respondent at –
the respondent’s counsel that day and inform them
that she was going to take the offer. . . . Ms.
Bullock expressed to me when I talked to her –
when I answered the voice mail message, she
expressed to me that she wanted – she wanted to
take the settlement before and wanted me to call
– the urgency of the call before they went back
up to South Bend because she felt if they would
have
gotten
to
South
Bend,
that
the
superintendent of the school would not allow them
to accept the offer that she was going to take.
(Id. at 18, 20.)
After
counsel

the

phone

regarding

his

call,

Rogers

discussion

6

contacted

with

Defendant’s

Plaintiff.

(Dep.

Rogers,

DE

#19−7,

pp.

12-13.)

According

to

Rogers,

Defendant’s counsel reacted as follows:
A
Q
A

He said—he said a phrase and—and words to the
effect, “You’re kidding me?” And I told him
no, that that’s what she would do.
And his response to that?
He would—he would draw up the settlement
agreement.

(Id. at 13.)
Thereafter, Rogers called Plaintiff back; the content
of this phone call is also disputed.

Plaintiff asserts

that Rogers informed her Defendant would provide her with
non-monetary
13.)

consideration.

(Aff.

Bullock,

DE

#19−2,

¶

However, Defendant presents evidence that Rogers did

not discuss any specifics during this phone call.
Rogers, DE #21−2, p. 40.)

(Dep.

Instead, Rogers stated:

I called her back and told her I got through to,
not the respondent, but Mr. Hardman, respondent’s
attorney, informed them that – I got through to
him, informed him that she was willing to take
the offer.
Then I called her back to tell her
that I got through to Mr. Hardman and that he
would be drawing up the agreement and sending it
to her . . . I can’t recall anything else besides
that.
(Id.)

Importantly, Rogers noted that the completion of the

agreement was communicated to Plaintiff:
Q
A
Q
A

Did you then notify Ms. Bullock
offer had been accepted?
Yes, conveyed it to her.
And what was her response?
I can’t recall. She – accepted.

7

that

the

(Dep. Rogers, DE #21−2, p. 20.)
After

the

Plaintiff

a

series

document

of

phone

entitled

calls,

Defendant

“Confidential

mailed

Settlement

Agreement and General Release” (“Agreement and Release”).
(Aff. Bullock, DE #19−2, ¶ 14; DE #19−8.)
2013,

Rogers

was

notified

by

On September 3,

Defendant’s

counsel

that

Plaintiff was refusing to sign the Agreement and Release
because “she only agreed to drop a portion of her demand −
$25,000,

for

Respondent’s

consideration

issues.”

for

qualitative

(Dep. Rogers, DE # 19−7, p. 14.)

Plaintiff asserts that Defendant drafted the Agreement
and

Release

immediately

without
rejected

her
the

authorization

document

once

and

she

that

received

she
it.

(Aff. Bullock, DE #19−2, ¶¶ 14,15; DE #19−6, p. 3; Dep.
Rogers, DE # 19−7, pp. 14-15.)

Rogers, on the other hand,

testified that Plaintiff had specifically insisted he call
Defendant to communicate her acceptance of their last offer
(which she knew did not include any monetary compensation);
he then conveyed that acceptance to Defendants, who drew up
the Agreement and Release based on those communications.
(Dep. Rogers, DE #21-2, pp. 18-19.)
Both parties agree that, ultimately, Plaintiff never
received

any

qualitative

consideration

(Aff. Bullock, DE #19−2, ¶ 19.)

8

from

Defendant.

Finally, it is undisputed

that

Plaintiff

retained

counsel

(Aff. Bullock, DE #19−2, ¶ 16.)
this lawsuit against Defendant.

on

September

11,

2013.

She then proceeded to file
(DE #1.)

Analysis
An agreement to settle claims in a federal court is
enforceable “just like any other contract.”

See Dillard v.

Starcon Int'l, Inc., 483 F.3d 502, 506 (7th Cir. 2007)
(quoting Lynch, Inc. v. SamataMason Inc., 279 F.3d 487, 489
(7th Cir. 2002)).
settle

the

case

applies here.

State law governs whether a contract to
was

made,

and

therefore,

Indiana

law

See Dillard, 483 F.3d at 506 (holding any

uncertainty over whether federal or state law applies to
settlement issues in federal court has been “dispelled; it
is state law.”).
In

Indiana,

settlement

agreements

are

governed

by

general contract law principles; an offer, acceptance, and
consideration

are

all

the

elements

that

required to create an enforceable contract.
McColley,

826

N.E.2d

71,

76

(Ind.

Ct.

are

normally

Zimmerman v.
App.

2005).

Settlement agreements are strongly favored in this state.
Sands v. Helen HCI, LLC, 945 N.E.2d 176, 180 (Ind. Ct. App.
2011).

The Supreme Court of Indiana has held that:

if a party agrees to settle a pending action, but

9

then
refuses
to
consummate
his
agreement, the opposing party may
judgment enforcing the agreement.

settlement
obtain a

Georgos v. Jackson, 790 N.E.2d 448 (Ind. 2003) (citations
omitted).

In

general,

there

is

no

settlement agreement be in writing.

requirement

that

a

Sands, 945 N.E.2d at

180 (citing Estate of Skalka v. Skalka, 751 N.E.2d 769, 771
(Ind. Ct. App. 2001)); see also Int’l Creative Mgmt., Inc.
v. D & R Entm’t Co., 670 N.E.2d 1305, 1312 (Ind. Ct. App.
1996).

“If one party transmits a clear and unambiguous

settlement offer which is accepted by the other party . . .
the parties have reached a binding settlement agreement.”
Pohl v. United Airlines, Inc., 110 F.Supp.2d 829, 837 (S.D.
Ind. 1999) (internal quotation marks and brackets omitted),
aff’d, 213 F.3d 336 (7th Cir. 2000).
mutually

assent

to

be

bound,

and

it

The parties must
is

their

outward

manifestation of that intent, which is determined from all
of the circumstances surrounding the case, that matters.
Zimmerman, 826 N.E.2d at 77.

“A court does not examine the

hidden intentions secreted in the heart of a person; rather
it should examine the final expression found in conduct.”
Id.
their

While some litigants believe that “they can change
mind

settlement

at

any

time

agreement[,]

unfounded in the law.”

.

before
.

.

they
that

actually
perception

sign
is

the

often

Pohl v. United Airlines, Inc., 213

10

F.3d

336,

337

(7th

Cir.

2000)

(affirming

the

district

court’s enforcement of a settlement agreement).
Plaintiff
granted

in

argues
her

counterclaim

that

favor

because,

summary

with

judgment

respect

according

to

to

should

be

Defendant’s

Plaintiff,

it

is

undisputed that there was no offer to settle, no acceptance
or

mutual

agreement.

assent,

no

consideration,

and

no

written

Defendant argues that there is indeed evidence

in the record that an enforceable settlement agreement was
reached and, as such, summary judgment is inappropriate at
this juncture.

Because factual disputes exist, the Court

will draw all reasonable inferences in Defendant’s favor
when analyzing the parties’ arguments.
As an initial matter, while Plaintiff argues that the
settlement agreement is not enforceable because it was not
reduced to writing and signed by both parties as required
by

the

Indiana

Rules

for

Alternative

Dispute

Resolution

(the “IRADR”), the Court agrees with Defendant that the
IRADR do not apply here.
relied
Supreme

upon

by

Court

Plaintiff
of

Indiana

In Vernon v. Acton, the case
to

support

determined

her
that

position,
the

the

parties’

settlement agreement was governed by the IRADR and that it
needed to be reduced to writing and signed by all parties
to be enforceable.

See generally

11

Vernon v. Acton, 732

N.E.2d 805 (Ind. 2000).

However, in so ruling, the court

specifically pointed out that the IRADR only applied to the
pre-suit mediation because, prior to the actual mediation,
the parties had signed a written agreement to mediate that
specifically incorporated the IRADR.

Id. at 807-08 (citing

Anderson v. Yorktown Classroom Teachers Ass’n, 677 N.E.2d
540, 542 (Ind. Ct. App. 1997)).

The court noted that, by

their own terms, the IRADR did “not apply to a mediation
not instituted pursuant to judicial action in a pending
case.”

Id. at 808, n. 5; see also Ind. A.D.R. R. 1.4.

The

IRADR have subsequently been amended to include a section
related to optional early (i.e. pre-suit) mediation, but
parties are only afforded the IRADR’s protections 1 if they
comply

with

its

requirements.

See

Ind.

A.D.R.

R.

8.

Specifically, Rule 8.3 provides that:
Before beginning a mediation under this Rule,
participants must sign a written Agreement To
Mediate substantially similar to the one shown as
Form A to these rules. This agreement must
provide for confidentiality in accordance with
Alternative Dispute Resolution Rule 2.11; it must
acknowledge judicial immunity of the mediator
equivalent
to
that
provided
in
Alternative
Dispute Resolution Rule 1.5; and it must require
that all provisions of any resulting mediation
settlement agreement must be written and signed
by each person and any attorneys participating in
the mediation.
1

For example, parties that utilize optional early mediation are only
bound to written settlement agreements that are signed by each party.
Ind. A.D.R. R. 8.6.

12

Ind. A.D.R. R. 8.3 (emphasis added).

Here, there is no

evidence in the record that the parties entered into a
written agreement to mediate prior to the actual pre-suit
mediation session.

Thus, the IRADR do not apply, and there

is no requirement that the settlement agreement needed to
be

signed

in

order

to

be

enforceable.

See

Sands,

945

N.E.2d at 180.
Next, while Plaintiff argues that there is no evidence
that any elements of a contract existed here, the Court
disagrees.

Viewing the facts in the light most favorable

to Defendant, once Rogers had determined that the parties
were

at

a

stalemate,

he

dismissed

Defendant

from

the

mediation session and advised Plaintiff that Defendant’s
last

offer,

which

included

qualitative

measures

but

no

financial compensation, would likely remain on the table
post-mediation.
spoke

on

the

Defendant’s

Shortly thereafter, Rogers and Plaintiff
phone,

last

and

offer,

Plaintiff
exactly

agreed

as

it

was

to

“accept”

previously

communicated during the mediation, and to settle all of her
claims.

While the terminology used by both Rogers and the

parties

to

describe

essence,

if

Rogers’

express

directive

the

situation

testimony
to

is

Rogers

13

is

convoluted,

believed,
and

his

in

Plaintiff’s
subsequent

communication to Defendant could reasonably be considered a
counter-offer
unambiguous
Defendant

by
terms

and

mediation.

Plaintiff

to

identical

rejected

by

Defendant,
to

those

with

last

Plaintiff

during

clear
offered
the

and
by

formal

Of course, Plaintiff vehemently insists that

she never wavered in her position that any agreement needed
to

contain

measures

monetary

were

compensation

only

an

and

“intermediate

that

qualitative

step”

towards

resolution; she argues that Defendant had “no reasonable
basis” to believe that she would make such a drastic shift
in her settlement demands in such a short period of time.
Yet,

according

to

Rogers’

testimony,

Plaintiff

did

just

that and urged him to call Defendant immediately to convey
her position, so he did.2
As to acceptance of Plaintiff’s oral counter-offer,
there is evidence in the record to suggest that Defendant
manifested

assent

when

its

counsel

volunteered

to

memorialize the settlement terms by drafting the Agreement

2

Plaintiff argues, without citing to any law, that the agreement is
invalid because Rogers was not authorized to transmit her position to
Defendant. However, according to Rogers, Plaintiff specifically
insisted that he immediately contact Defendant in order to do so. The
Court agrees with Defendant that Plaintiff’s express directive to
Rogers seemingly authorized him to be the “conduit of her
communications.” Because Plaintiff has failed to cite to any relevant
case law and has failed to file a reply, any argument to the contrary
is waived.

14

and Release. 3

According to Rogers, after he communicated

Plaintiff’s position to Defendant’s counsel:
A
Q
A

He said—he said a phrase and—and words to the
effect, “You’re kidding me?” And I told him
no, that that’s what she would do.
And his response to that?
He would—he would draw up the settlement
agreement.

(Dep. Rogers, DE #21−2, p. 19.)

Rogers then contacted

Plaintiff to inform her of Defendant’s acceptance:
Q
A

Did you then notify Ms.
offer had been accepted?
Yes, conveyed it to her.

(Id. at 20.)

Bullock

that

the

Again, while Plaintiff maintains that it is

“indisputable” that either party intended to be bound by
such an agreement, the evidence in the record as described
above indicates otherwise.

See Zimmerman, 826 N.E.2d at 77

(“A court does not examine the hidden intentions secreted
in the heart of a person; rather it should examine the
final expression found in conduct.”)
Finally,

as

to

Plaintiff’s

assertion

that

it

is

undisputed that no consideration existed at the time of
3

According to Defendant (as supported by Rogers’ testimony), the
draft of the Agreement and Release was simply a memorialization of the
terms that had been agreed upon. If Rogers’ testimony is believed, the
clear and unambiguous terms of the agreement were understood and agreed
upon by the parties at the conclusion of the series of phone calls.
See Pohl, 110 F.Supp.2d at 837-38 (oral settlement agreement was
enforceable where the later drafted “written document prepared by the
attorneys for final execution by the parties was not an attempt at
further negotiations between the parties.”).

15

contracting,

she

is

mistaken.

According

to

Rogers’

testimony, Defendant promised to provide Plaintiff with a
neutral employment reference, central point of contact, and
expungement

of

promise

relinquish

to

Defendant.
exchange”

her

records
her

in

return

discrimination

for

Plaintiff’s

claims

against

This is exactly the type of “bargained for
that

valid

consideration

contemplates.

See

Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363, 379
(Ind. Ct. App. 2012).

The fact that one or both parties

ultimately failed to perform those promises is irrelevant
to the issue of contract formation.
In sum, despite Plaintiff’s assertion to the contrary,
as

outlined

regarding

the

above,

material

formation

of

a

factual
valid

disputes

settlement

exist

agreement

between the parties that precludes summary judgment in her
favor.

CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

Motion

for

Summary Judgment as to Defendant’s Counterclaim, filed by
Plaintiff on August 29, 2014 (DE #18), is DENIED.

DATED: March 27, 2015

/s/ RUDY LOZANO, Judge
United States District Court

16