     Case: 18-41189      Document: 00515059950         Page: 1    Date Filed: 08/01/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-41189                           August 1, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
KENISHA S. BOYD,

              Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:15-CV-708


Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Kenisha S. Boyd (“Boyd”) appeals the district court’s
judgment, which enforced the settlement agreement between Boyd and her
former employer, Defendant-Appellee Texas Department of Criminal Justice
(“TDCJ”). Finding that Boyd has not shown that the district court abused its
discretion in enforcing the settlement agreement, we AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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         I.   PROCEDURAL HISTORY
         Boyd is an African-American female who began working as a parole
officer for TDCJ in 2005. On October 9, 2014, Boyd left her employment with
the TDCJ.
         On May 11, 2015, after receiving the notice of the right to sue from the
Equal Employment Opportunity Commission, Boyd filed a Title VII suit
against TDCJ in federal district court, alleging racial discrimination and
retaliation claims. On October 2, 2015, Boyd and TDCJ filed a Joint Advisory
to the Court Regarding Mediator, stating that the “parties have agreed that
they will seek to have this cause of action mediated before Magistrate Judge
Keith Giblin.” The district court appointed Magistrate Judge Giblin as the
mediator.
         On January 6, 2016, a mediation was conducted by the magistrate judge.
After several hours of mediation, the magistrate judge stated on the record
that the parties had reached an “amicable result – solution in this case.” The
magistrate judge continued as follows: “What I’ll do is I’ll dictate the terms of
the settlement into the record and I’ll ask the attorneys from each side to voice
whether or not that’s their understanding of the settlement.” The magistrate
judge announced that it was his understanding that (1) TDCJ agreed to pay
Boyd $9,875 in full consideration of her claims; (2) TDCJ wanted it on the
record that the appropriate State authority would have to approve the
settlement; (3) TDCJ agreed to denote in Boyd’s personnel file that she had left
voluntarily for personal reasons; and (4) both parties would pay their own
costs.
         The magistrate judge then asked Boyd’s attorney, Ms. Davis-Smith,
whether those were the terms of the settlement, and she responded “Yes,
Judge.” Counsel for TDCJ also agreed on the record that those were the terms
of the settlement and clarified that “since it does go through the State of Texas
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settlement process, that can take upwards to 180 days.” The magistrate judge
then stated: “That’s the norm, everyone knows that.” The docket sheet minute
entry provides that the “parties requested and the court would recommend that
the parties be given 180 days to submit closing documents.” The next day, the
magistrate judge filed a Mediator’s Report stating that “[i]n accordance with
the Court’s order, a mediation conference was held on January 6, 2016. The
conference resulted in settlement. All parties and counsel were present.”
      On March 4, 2016, Boyd and TDCJ, through their attorneys, filed a joint
motion to stay or abate the proceedings. The joint motion provided that on
January 6, 2016, “the parties successfully mediated all claims in this matter”
with the magistrate judge.     The joint motion also stated that “[o]nce the
agreement was read into the record and affirmed by the parties, TDCJ made
an announcement that it would take approximately six (6) months for the
settlement to be ‘officially’ approved by the state of Texas.” Additionally,
although the settlement release had been drafted, it had not been approved by
the state. Thus, the parties requested until June 30, 2016 “to prepare and
finalize the terms of their agreement.” The district court issued an order
granting the motion to stay until June 30, 2016.
      On July 13, 2016, the parties filed an amended joint motion to stay the
proceedings that contained the same language stating that the agreement had
been read into the record and affirmed by the parties. The motion further
stated that the parties were still waiting on the approval of the state of Texas
and requested the stay until August 31, 2016. The district court granted the
motion to stay the proceedings.
      On August 24, 2016, counsel for Boyd, Ms. Shelly Davis-Smith, filed a
motion to withdraw as counsel, stating that she was unable to effectively
communicate with Boyd. Boyd consented to the motion, and TDCJ did not
oppose the motion. The court granted the motion to withdraw. The next day,
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                                     No. 18-41189
Boyd filed a motion to substitute Timberly J. Davis as her attorney of record,
which the district court granted.
      On September 1, 2016, Boyd, through her new counsel, filed an opposed
motion to vacate the settlement agreement. The motion alleged that Boyd had
informed her attorney that she wanted to proceed to trial and that Boyd had
never signed any release or agreement. The motion also argued that Boyd
reasonably inferred that TDCJ’s counsel lacked the authority to bind TDCJ
because the agreement needed further approval. TDCJ filed an opposition to
the motion to vacate the settlement, stating that the parties agreed on the
record as to the terms of the settlement agreement as set forth by the
magistrate judge. The opposition also provided that the approval needed was
for payment of the money from the state treasury and not as to the terms of
the settlement agreement.
      The district court denied Boyd’s motion to vacate the settlement
agreement, finding that there was a “binding settlement between the parties,
notwithstanding Boyd’s subsequent refusal to sign the settlement documents.”
Boyd appealed this order to the Fifth Circuit. Because there was no final
decision by the district court, the appeal was dismissed for lack of jurisdiction. 1
      On September 14, 2018, the district court held a status conference, and
the parties agreed to further discussions before the magistrate judge. The
district court issued an order staying the case.           However, the subsequent
discussions were unfruitful.




      1  Meanwhile, TDCJ also filed a motion for summary judgment, arguing that Boyd’s
race discrimination and retaliation claims should be dismissed on the merits. Boyd filed a
response arguing that the motion for summary judgment should be denied; or in the
alternative, further discovery should be allowed. The district court denied the motion for
summary judgment without prejudice while the previous appeal was pending before this
Court.

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                                   No. 18-41189
      On November 16, 2018, TDCJ filed a motion to enforce the settlement
agreement. On December 11, 2018, the district court held a hearing on the
motion to enforce the settlement agreement. The district court concluded that
Boyd’s attorney, Ms. Davis-Smith, agreed to the terms of the settlement
agreement on Boyd’s behalf and in her presence at the January 6, 2016
mediation. Boyd did not challenge the settlement when the magistrate judge
articulated the terms of the settlement agreement. Further, it was not until
almost seven months later that Boyd first indicated to the court that she
opposed the settlement agreement and moved for substitute counsel to vacate
it. Thus, the court concluded that Boyd was bound by the terms of the January
6, 2016 settlement agreement and entered judgment. Boyd timely filed a
notice of appeal.
      II.    ANALYSIS
      Boyd contends that the district court erred in finding that the settlement
agreement was valid and enforceable. This Court reviews a district court’s
order enforcing a settlement agreement for abuse of discretion. Quesada v.
Napolitano, 701 F.3d 1080, 1083 (5th Cir. 2012).                “The validity and
enforcement of a Title VII settlement agreement are matters of federal law.”
Id. (footnote omitted). “[F]ederal law requires that a settlement of a Title VII
claim be entered into ‘voluntarily and knowingly’ by the plaintiff.” Fulgence v.
J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir. 1981) (citations
omitted). “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.” Id. (emphasis added). 2



      2  Under federal law, there is not a requirement that a settlement be reduced to
writing. Fulgence, 662 F.2d at 1209.
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                                 No. 18-41189
      Boyd argues that the agreement is not enforceable because TDCJ could
not have had actual knowledge of her acceptance either through her words or
deeds. Boyd is correct that she remained silent on the record during the
mediation on January 6, 2016. However, her attorney did not remain silent.
As previously set forth, after the magistrate judge announced on the record
that the parties had “come up with an amicable result – solution in this case,”
he articulated the terms of the settlement agreement. The magistrate judge
asked Boyd’s attorney if those were the terms of the settlement, and she
responded affirmatively. Thus, contrary to Boyd’s assertions otherwise, TDCJ
had actual knowledge of Boyd’s acceptance through her counsel. Our caselaw
makes clear that an attorney of record is presumed to have authority to enter
into a settlement agreement for her client. Quesada, 701 F.3d at 1083. The
party seeking to vacate the settlement has the burden of proving that the
“attorney had no right to consent to its entry.” Id. & n.8. Boyd points to an
email she sent to her attorney after the mediation in which she inquires about
the “status of things [with respect to] proceeding to trial.” This email was sent
a week after the mediation in which Boyd’s counsel accepted the settlement
agreement. We have explained that emails sent to counsel after the settlement
offer had been accepted “have no bearing on the validity of the settlement.” Id.
at 1084. Additionally, in the order appointing the magistrate judge as the
mediator, the district court expressly stated that the Mediation Plan requires
the presence of all parties, representatives, and professionals “with full
authority to negotiate a settlement.” Boyd has failed to demonstrate with
affirmative proof that her counsel had no right to consent to the settlement
agreement on January 6, 2016. Id. at 1083.
      Boyd also relies on the fact that she refused to sign the settlement
documents. This argument has no merit. “If a party to a Title VII suit who
has previously authorized a settlement changes his mind when presented with
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                                   No. 18-41189
the settlement documents, that party remains bound by the terms of the
agreement.” Fulgence, 662 F.2d at 1209 (citations omitted).
      Finally, Boyd asserts that TDCJ placed a condition precedent on its offer
when it included the condition that the Attorney General and Texas State
Comptroller must approve the settlement. Boyd therefore argues that because
the condition precedent of approval did not happen until almost nine months
after the date of the mediation, there was no contractual obligation created and
no contract formed. We are not persuaded by this argument. There are two
types of conditions precedent. Crest Ridge Constr. Grp., Inc. v. Newcourt, Inc.,
78 F.3d 146, 150 (5th Cir. 1996). “A condition precedent to the formation of a
contract prevents the formation of a contract except upon realization of the
condition.” Id. (citation omitted). “A condition precedent to an obligation to
perform, on the other hand, does not prevent contract formation, but does
prevent a duty to perform from arising except upon realization of the
condition.” Id. (citation omitted).
      In Scott v. Livingston, a prisoner contended that TDCJ did not intend to
be bound by the settlement agreement involving a First Amendment claim
because the state attorneys representing TDCJ did not have the “final
authority to approve the settlement, which required approval by the Attorney
General, Governor, and Comptroller of Texas.” 628 F. App’x 900, 903 (5th Cir.
2015).   That is the same condition precedent contained in the instant
settlement agreement.       This Court rejected the prisoner’s argument,
explaining that it was a condition precedent that “in no way negates TDCJ’s
intention to be bound.”      Id.      Because that opinion is unpublished and
interpreted Texas law, it is not controlling.      Nonetheless, it is persuasive
authority for holding that the condition of approval from the state authorities
was a condition precedent to an obligation to perform and thus, did not prevent
the instant settlement agreement.         Cf. Crest Ridge Constr. Grp., Inc., v.
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Newcourt, Inc., 78 F.3d 145, 150 (5th Cir. 1996) (stating that, based on the
extensive dealings between the parties, the jury could have concluded that the
“subject to credit department approval” term was at most a condition precedent
to the obligation to perform and did not prevent contract formation) (Texas and
Uniform Commercial Code case).
      Further, at the mediation hearing on January 6, 2016, when TDCJ’s
attorney sought to clarify that the approval process from the State of Texas
could take upwards of 180 days, the magistrate judge responded that was the
“norm, everyone knows that.” The magistrate judge’s comments on the record
indicate that this is a well-known, common practice.             Cf. Westlake
Petrochemicals, L.L.C. v. United Polychem, Inc., 688 F.3d 232, 239–240 (5th
Cir. 2012) (noting that the evidence showed that industry custom permitted
payment and credit terms to be completed after formation of the buy and sell
contract and thus such a term was only a condition precedent to the obligation
to perform) (Texas and Uniform Commercial Code case). In the instant case,
we are persuaded that the approval condition was a condition precedent to the
obligation to perform and did not prevent the formation of the settlement
agreement. Accordingly, Boyd has not shown that the district court abused its
discretion by ordering the enforcement of the settlement agreement.
      III. CONCLUSION
      For the above reasons, the district court’s judgment is AFFIRMED.




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