UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WARREN G. SMITH,
Plaintiff-Appellant,

v.
                                                                  No. 97-2786
COLUMBIA GAS TRANSMISSION
CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, Senior District Judge.
(CA-96-60-2)

Argued: March 4, 1999

Decided: April 9, 1999

Before HAMILTON and TRAXLER, Circuit Judges, and
LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Brian Joseph Skinner, Elkins, West Virginia, for Appel-
lant. David Steven Russo, ROBINSON & MCELWEE, Charleston,
West Virginia, for Appellee. ON BRIEF: William E. Robinson,
ROBINSON & MCELWEE, Charleston, West Virginia; Amos W.
Perrine, III, Legal Division, COLUMBIA GAS TRANSMISSION
CORPORATION, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Warren G. Smith ("Smith") appeals from the district court's
enforcement of a settlement agreement reached in connection with his
action for employment discrimination against Columbia Gas Trans-
mission Corporation ("Columbia Gas"). Finding no abuse of discre-
tion, we affirm.

I.

Smith, an African-American employee of Columbia Gas, brought
an action against Columbia Gas in which he alleged that he was sub-
jected to various forms of racial discrimination in violation of federal
and West Virginia law. In particular, Smith alleged that he was denied
training and promotion opportunities afforded to employees who were
not African-American. Smith further alleged that he was subjected to
racially offensive remarks and that his supervisors failed to take cor-
rective action.

The primary events giving rise to the present controversy occurred
on March 7, 1997, when Smith and Columbia Gas, at the direction of
the district court, attempted to resolve Smith's action by way of medi-
ation. After having spent several hours in mediation, the mediator,
along with the parties and their counsel, appeared before the district
court to provide a status report. The mediator advised the court that
the parties had made significant progress toward reaching a settlement
agreement, noting that they were "only a few dollars apart in the
scheme of things." The mediator then characterized the parties' dis-
pute over whether the settlement agreement would include a confi-
dentiality provision as "the sticking point." Accordingly, the district
court focused entirely upon that issue.

After an extensive discussion with the district court, the parties
resumed mediation in an effort to devise a mutually acceptable confi-

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dentiality provision. Later that afternoon, counsel for the parties
informed the court that they had reached a settlement agreement.

David S. Russo ("Russo"), counsel for Columbia Gas, drafted a
proposed settlement agreement in connection with the verbal agree-
ment reached by the parties on March 7, 1997. After reviewing the
proposed agreement, Stephen G. Jory ("Jory"), counsel for Smith,
requested that Russo adopt seven specific revisions, most of which
related to spelling, punctuation, or style. Russo revised the proposed
agreement in accordance with Jory's requests and then issued a
revised draft for review and execution by Jory and Smith.

Jory thereafter contacted Russo and requested that the agreement's
confidentiality provision, which limited dissemination of the agree-
ment's terms to specified categories of individuals, be even more spe-
cific to ensure that two particular supervisors employed by Columbia
Gas would not be advised of the terms. Although Russo did not fur-
ther revise the agreement, he did assure Jory that the supervisors in
question fell outside the scope of the confidentiality provision and,
moreover, were not among those individuals to whom Columbia Gas
contemplated dissemination of the agreement's terms. Despite these
assurances, Smith refused to execute the revised agreement.

Jory subsequently brought a motion for leave to withdraw as coun-
sel for Smith, citing "a vast misunderstanding concerning the terms
of the settlement which was announced to the Court on March 7,
1997." In response, Russo moved to enforce the revised agreement.

At a hearing conducted on the pending motions, the district court
inquired as to Smith's basis for refusing to execute the revised agree-
ment. In response, Smith indicated that the revised agreement con-
tained no provision regarding Columbia Gas' purported assurance
during the March 7, 1997 mediation that he would no longer be sub-
jected to racial discrimination:

          [W]e also, in those mediations on both parts, agreed as part
          of that mediation settlement that you have there, that these
          incidents would no longer take place; that they would assure
          fairness and equal opportunity at that plant. They have not

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          done that. They have not kept to their end of their agreement
          as well.

Smith indicated further that even after the March 7, 1997 mediation,
he had been subjected to mistreatment by his fellow employees and
that his supervisors had condoned the same.

After the district court granted Jory's motion to withdraw, Smith
retained new counsel and filed an opposition to Columbia Gas'
motion to enforce the revised agreement. Smith contended primarily
that Jory, in reaching the settlement agreement with Columbia Gas on
March 7, 1997, accepted certain terms without first discussing those
terms with Smith and obtaining consent. Accordingly, Smith argued,
he was not bound by the revised agreement because it did not reflect
the terms of settlement as he understood them.

The district court, having determined that there were factual dis-
putes concerning "the existence of a settlement agreement and/or the
authority of plaintiff's former counsel to reach a settlement agreement
on behalf of the plaintiff," conducted an evidentiary hearing on
Columbia Gas' motion to enforce the revised agreement. At the hear-
ing, Russo testified that the revised agreement accurately reflected the
settlement agreement reached verbally by the parties on March 7,
1997. Russo's testimony was bolstered by that of Amos Perrine
("Perrine"), who participated in the March 7, 1997 mediation in his
capacity as in-house counsel for Columbia Gas. Perrine testified that
the revised agreement accurately reflected the verbal agreement
reached on March 7, 1997.

The district court then heard testimony from Jory. Jory testified
that he and Smith discussed each settlement proposal offered by
Columbia Gas. Jory further testified that, at the time the parties
appeared before the district court and discussed the dispute concern-
ing a prospective confidentiality provision, he had obtained Smith's
consent with regard to each settlement term on which the parties had
already reached agreement. Jory then testified, as did Russo and Per-
rine, that the revised agreement comported with the verbal agreement
reached on March 7, 1997. The specific exchange at the hearing was
as follows:

                    4
          Q All right. In your mind did that agreement with the
          changes you suggested in your March 20th letter comport
          with the verbal agreement that had been made on March
          7th?

          A Yes, sir.

          Q . . . . Was there anything agreed to during the mediation
          on March 7th, that is not reflected in the draft settlement
          agreement that Mr. Russo sent you?

          A In my mind the answer to that is, that there is nothing
          in the agreement once it was amended, according to the sty-
          listic changes that I requested, that was not agreed to at the
          mediation. But I cannot answer the question as to what was
          in Mr. Smith's mind following mediation.

Jory later testified that Russo "did a commendable job in putting
together the document as the parties agreed to."

Smith declined to present any testimony of his own at the hearing.
Consequently, Smith provided no evidentiary support for his position
that the revised agreement did not reflect the terms of settlement as
he understood them. Indeed, Jory's testimony to the effect that he and
Smith discussed each settlement proposal and that Smith consented to
each settlement term went unrefuted.

The district court ultimately granted Columbia Gas' motion to
enforce the revised agreement and dismissed Smith's action with prej-
udice. This appeal followed.

II.

We review a district court's decision to enforce a settlement agree-
ment for an abuse of discretion. See Young v. FDIC, 103 F.3d 1180,
1194 (4th Cir.), cert. denied, 118 S.Ct. 329 (1997). We may not,
therefore, substitute our judgment for that of the district court. See
United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995). Rather,
we must decide whether the district court's exercise of discretion was
arbitrary or capricious in light of the facts. See id.

                    5
In support of his position that the district court's enforcement of
the revised agreement constituted an abuse of discretion, Smith con-
tends primarily that there was not "a meeting of the minds between
the parties." Smith also contends that Jory, in reaching the settlement
agreement on March 7, 1997, lacked express or apparent authority to
do so. We are satisfied that Smith's contentions are without merit.

At the evidentiary hearing conducted in connection with Columbia
Gas' motion to enforce the revised agreement, Russo, Perrine, and
Jory, each of whom directly participated in the March 7, 1997 media-
tion, testified that the revised agreement constituted an accurate
reflection of the verbal settlement agreement reached by the parties
on that date. Indeed, Jory described Russo's effort in drafting a pro-
posed agreement as "commendable."

The district court also heard testimony from Jory concerning his
communications with Smith throughout the March 7, 1997 proceed-
ings. In particular, Jory testified that he and Smith discussed each set-
tlement proposal offered by Columbia Gas. Indeed, Jory testified that
at the time the parties appeared before the district court and discussed
the dispute relating to the confidentiality provision, he had obtained
Smith's consent with regard to each settlement term on which the par-
ties had already reached agreement.

Based upon the foregoing testimony, none of which Smith
attempted to refute with testimony of his own, the district court could
not help but conclude that the parties reached a settlement agreement
on March 7, 1997, that the revised agreement accurately reflected the
settlement terms, and that Smith authorized Jory to reach agreement
on each term. Accordingly, we are satisfied that the district court's
enforcement of the revised agreement did not amount to an abuse of
discretion.

III.

Finding no abuse of discretion, we affirm the district court's deci-
sions to enforce the revised agreement and to dismiss Smith's action
with prejudice.

AFFIRMED

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