SHAW V. NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY

Filing 25

MEMORANDUM ORDER, signed by CHIEF JUDGE THOMAS D. SCHROEDER on 04/10/2019, that Defendant's motion for summary judgment is GRANTED as to all Plaintiff's claims and that this action is DISMISSED WITH PREJUDICE. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHELLE SHAW,
Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF
PUBLIC SAFETY,
Defendant.

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1:18-CV-00049

MEMORANDUM ORDER
THOMAS D. SCHROEDER, Chief District Judge.
This case is before the court on the motion for summary
judgment by Defendant North Carolina Department of Public Safety
(“DPS”).

(Doc. 18.)

(Docs. 21, 22.)

Plaintiff Michelle Shaw opposes the motion.

Having been fully briefed (Docs. 19, 22, 24), the

motion is ready for decision.
Summary judgment is appropriate “if 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.”
56(a).

Fed. R. Civ. P.

“A genuine issue of material fact exists ‘if the evidence

is such that a reasonable jury could return a verdict for the
nonmoving party.’”

Basnight v. Diamond Developers, Inc., 146 F.

Supp. 2d 754, 760 (M.D.N.C. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).

In determining a motion

for summary judgment, the court views the “evidence in the light
most favorable to the non-moving party, according that party the

benefit of all reasonable inferences.”

Id.

Summary judgment

should be denied “unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy and
establishes affirmatively that the adverse party cannot prevail
under any circumstances.”

Guessford v. Pa. Nat’l Mut. Cas. Ins.

Co., 983 F. Supp. 2d 652, 659 (M.D.N.C. 2013) (quoting Campbell v.
Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994)).
DPS’s first ground for summary judgment is that Shaw’s claims,
which allege violations of the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., and Family Medical Leave Act, 29 U.S.C.
§ 2601 et seq., predate and are barred by a valid June 8, 2016
settlement

agreement

grievance process.

with

DPS

resulting

(Doc. 19 at 9.)

from

DPS’s

internal

Shaw acknowledges having

executed the settlement agreement, in which she agreed (among other
things) to terminate her employment with DPS on June 30, 2016, and
which contained the following language:
I have read, understand, and agree that the above terms
of agreement are an accurate account of the areas of
agreement reached in the mediation process and that all
matters in the dispute between the grievant and the
agency have been settled with the terms of this
agreement.
I understand and agree that by signing this Memorandum
of Agreement, I release the Respondent, the applicable
Agency, Commission and/or Division, and the State of
North Carolina from any and all claims that I may have
related to my emp1oyment and the alleged action(s) that
led to this grievance. I further agree and understand
that no further grievance, complaint, legal action or
remedy can be pursued against the Respondent, the
2

applicable Agency, Commission and/or Division, or the
State of North Carolina related to my employment or the
action(s) that led to this grievance.
(Doc. 19-6 at 36.)
DPS’s

motion

for

summary

judgment

is

based

on

the

same

underlying facts and settlement agreement that was at issue in
Shaw’s companion case against DPS for alleged Title VII violations
which she filed in this court, bearing case number 1:17-CV-00699.
That motion was heard in open court on March 20, 2019, and was
granted

because

the

court

concluded

that

Shaw’s

settlement

agreement resolving her grievance barred her Title VII claims based
on alleged conduct predating the agreement.
1:17-CV-00699.)

(See Doc. 47 in case

For the same reasons stated at length from the

bench at the March 20, 2019 motion hearing in case 1:17-CV-00699,
the court finds that Shaw’s settlement agreement with DPS also
bars her claims in the present case, all of which predated the
settlement agreement and fall within its plain release terms.
While employees cannot prospectively waive their statutory
rights, Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974)
(Title VII), they may release an ADA or FMLA cause of action where
there is a knowing and intelligent waiver of their right to bring
such a claim.

O.V. v. Durham Pub. Sch. Bd. of Educ., No. 1:17-

CV-691, 2018 WL 2725467, at *20 (M.D.N.C. June 6, 2018) (citing
Shirey ex rel. Kyger v. City of Alexandria Sch. Bd., No. 99-1127,
229

F.3d

1143

(4th

Cir.

2000)
3

(unpublished

table

decision))

(holding that a settlement agreement can bar an ADA claim where
the release contains a knowing and intelligent waiver of the
plaintiff’s right to bring such a claim), report and recommendation
adopted, No. 1:17-CV-691, 2018 WL 3370644 (M.D.N.C. July 10, 2018);
29 C.F.R. § 825.220(d) (permitting waiver and release of FMLA
claims based on past employer conduct); Whiting v. Johns Hopkins
Hosp., 680 F. Supp. 2d 750, 754–56 (D. Md. Jan. 6, 2010) (holding
that an employee can waive her right to bring an FMLA claim based
on

conduct

which

predates

the

signing

of

a

valid

settlement

agreement where the employee knowingly and voluntarily enters the
agreement), aff’d, 416 F. App’x 312 (4th Cir. 2011) (same); Coyne
v. Omnicare, Inc., No. CCB-14-1225, 2014 WL 4384629, at *3–4 (D.
Md. Sept. 3, 2014) (“The FMLA does not prohibit the waiver of
claims based on past conduct.”).

In O’Shea v. Commercial Credit

Corp., 930 F.2d 358, 361–62 (4th Cir. 1991), the Fourth Circuit
looked to relevant state law for determining the validity of a
release, declining to adopt a federal common law rule based on the
totality of the circumstances.

The Fourth Circuit has since

recognized that while the “precise ruling in O’Shea has of course
been superseded by the limitations on waivers of ADEA rights that
Congress created in the Older Workers Benefit Protection Act,” for
non-ADEA claims, “courts can resolve interstitial questions of
federal law either by formulating a federal common law rule or by
adopting existing state law, and that they must choose between
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these two courses on a statute-by-statute, issue-by-issue basis.”
Kendall v. City of Chesapeake, 174 F.3d 437, 441 n.1 (4th Cir.
1999). 1
When evaluating whether a waiver of ADA claims is knowing and
voluntary, district courts in the Fourth Circuit have applied both
standards, with some citing to O’Shea and Kendall and looking to
state law, and others citing to Cassiday v. Greenhorne & O’Mara,
Inc., 63 F. App’x 169 (4th Cir. 2003), an unpublished Fourth
Circuit opinion in which the court approved the district court’s
determination of a knowing and voluntary waiver of rights under
Title VII based on the totality of the circumstances.

Compare

Davis v. Old Dominion Tobacco Co., Inc., 755 F. Supp. 2d 682, 692
(E.D. Va. 2010) (citing Kendall, 174 F.3d at 441 n.1, applying
“ordinary

contract

principles,”

and

looking

to

state

law

to

determine whether the release of the plaintiff’s ADA claims was
knowing and voluntary); Eddie v. Auto Truck Transp. Corp., No.
7:06-CV-00750, 2007 WL 1874225, at *3 (W.D. Va. June 27, 2007)
(citing O’Shea, 930 F.3d at 362, when stating that “[t]o determine
whether such a waiver [of an employee’s right to sue for ADA

1

More recently, one Fourth Circuit judge has recognized in an unpublished
decision that, in the Title VII context, "circuits diverge on what an
assessment of voluntariness and knowledge entails: some look solely to
principles of contract interpretation, while other evaluate the totality
of the circumstances surrounding a purported release. . . . [T]he Fourth
Circuit lacks binding precedent on which approach governs releases of
Title VII claims." Bala v. Va. Dept. of Conservation and Recreation,
614 F. App'x 636, 641 (4th Cir. 2015) (Floyd, J., dissenting).

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discrimination] is binding, the court will look to the state law
of contracts”); and Lewis v. Extended Stay Am., Inc., 454 F.
Supp.2d 453, 457 (M.D.N.C. 2006) (“A knowing and voluntary waiver
will preclude a party from suing under federal discrimination laws,
including the ADA . . . . Under the ADA . . . , courts within the
Fourth Circuit apply ordinary contract principles to determine the
validity of a release.” (citing O’Shea, 930 F.3d at 362; Adder v.
Holman & Moody, Inc., 288 N.C. 484, 491–92 (1975))), with Smith v.
Montgomery Cty., No. 8:17-cv-03122, 2019 WL 1130156, at *7 (D. Md.
Mar. 12, 2019) (stating that the totality of the circumstances
standard articulated in Cassiday, 63 F. App’x 169, applies to ADA
cases and applying the standard to find that the plaintiff’s
agreement to waive his ADA rights was knowing and voluntary).
In the FMLA context, courts have similarly applied different
standards to determine whether an employee’s waiver of FMLA claims
was knowing and voluntary.

Compare Cruthirds v. Lacey, No. 5:14-

CV-00260, 2017 WL 3754764, at *4 (E.D.N.C. Aug. 30, 2017) (citing
Cassiday v. Greenhorne & O’Mara, Inc., 220 F. Supp. 2d 488, 493
(D.

Md.

Aug.

6,

2002),

and

applying

the

totality

of

the

circumstances standard to find that the plaintiff knowingly and
voluntarily entered into a settlement agreement resolving her FMLA
claims), with Coyne, 2014 WL 4384629, at *3–4 & n.6 (finding,
without specifying which standard applied, that the plaintiff’s
execution of an agreement and release “unequivocally covered” his
6

FMLA and state law flexible leave claims because “the terms of the
Agreement were unmistakably clear”).
Under either the state law of contracts approach or the
totality of the circumstances test, the clarity of a purported
waiver is significant.

“Settlement agreements operate on contract

principles,

the

and

thus

preclusive

effect

of

a

settlement

agreement should be measured by the intent of the parties.

Where

the parties’ intent is clear from the unambiguous terms of the
contract, construed as a whole, [courts] need not and cannot resort
to

extrinsic

evidence

of

intent.”

Bala

v.

Va.

Dept.

of

Conservation and Recreation, 614 F. App’x 636, 639 (4th Cir. 2015)
(internal quotation marks and citations omitted) (Title VII); 2 see
Coyne, 2014 WL 4384629, at *4 (finding that where the terms of the
agreement were “unmistakably clear,” the agreement barred the
plaintiff’s FMLA and state law claims).
Here, the plain language of Shaw’s June 8, 2016 settlement
agreement with DPS unambiguously indicates that she agreed to
release any and all claims she had at that time relating not only
to her grievance but to her employment at DPS as well.

This

squares reasonably with Shaw’s agreement to cease her employment
with DPS as part of the settlement.

2

(Doc. 19-7 at 16.)

Cynthia

Unpublished opinions of the Fourth Circuit are not precedential but
are accorded the weight their persuasive reasoning suggests, especially
in this area of law where few reported cases exist. See Collins v. Pond
Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).

7

Thornton, a DPS Correctional Superintendent who was the respondent
at the June 8, 2016 settlement meeting and a signatory to the
settlement agreement, states in her affidavit, and Shaw does not
dispute, that Shaw was given the opportunity to have counsel during
her consideration of the document, but she declined to do so.
(Doc. 19-6 at 4.)

She also acknowledged she understood the

settlement agreement and was not coerced into signing it.

(Id. at

36;

on

Doc.

19-7

at

15–16.)

DPS

was

entitled

to

rely

her

representation, and the agreement and waiver, which were entered
into knowingly and voluntarily, should therefore be given effect.
See Coyne, 2014 WL 4384629, at *4 n.6 (finding that although the
agreement at issue did not explicitly list the Maryland Flexible
Leave Act of 2008 as one of the laws for which claims would be
released,

the

language

in

the

agreement

covering

“any

other

federal, state or local law, rule, regulation or ordinance” was
sufficient to clearly bar such claim); Singletary v. Enersys, Inc.,
57 F. App’x 161, 164 (4th Cir. 2003) (determining collective
bargaining

agreement

provision

covering

“[a]ny

and

all

claims . . . under any federal or state employment law” to be
“clear and unmistakable,” and while “indeed quite broad, it could
not be more clear.”)
Having found that Shaw’s claims in this case are barred by
her settlement agreement with DPS, the court need not consider
DPS’s remaining arguments for summary judgment.
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For these reasons, therefore,
IT IS ORDERED that Defendant’s motion for summary judgment is
GRANTED as to all Plaintiff’s claims and that this action is
DISMISSED WITH PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
April 10, 2019

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