                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 6, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 PAULA ADUDDELL,
               Plaintiff–Appellant,                      No. 10-6139
          v.                                      (D.C. No. 08-CV-00718-R)
 GARDNER TANENBAUM GROUP,                                (W.D. Okla.)
 L.L.C.,
               Defendant–Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and GORSUCH, Circuit Judges.


      Paula Aduddell appeals from the district court’s grant of summary

judgment in favor of her former employer, Gardner Tanenbaum Group, L.L.C.

(“GTG”), on her claim of retaliation in violation of Title VII, 42 U.S.C. § 2000e-

5. The district court concluded both that Ms. Aduddell failed to raise a material

dispute of fact with respect to pretext and that the claim was barred by a release

contained in a severance agreement signed by Ms. Aduddell and GTG. Because

we agree Ms. Aduddell’s claim is barred by an enforceable severance agreement,

we AFFIRM without reviewing the merits of her Title VII claim.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                BACKGROUND

      GTG is a real estate development and property management company. Ms.

Aduddell was Executive Vice-President of Real Estate Services and was involved

in developing, marketing, and leasing the company’s properties. In 2005, the

EEOC filed suit against GTG, alleging numerous violations of Title VII. In April

2007, Ms. Aduddell provided deposition testimony unfavorable to GTG. GTG

and the EEOC ultimately settled the case.

       On June 20, 2007, GTG’s president informed Ms. Aduddell the company

planned to modify her compensation structure so that, as GTG claimed, her

incentive structure would be more consistent with other GTG employees and the

company’s own business model. Ms. Aduddell resigned that same day. Two days

later, she e-mailed a resignation letter to GTG in which she accepted a three-

month severance salary in exchange for her resignation. The following week,

GTG’s counsel sent an “Agreement and General Release” to Ms. Aduddell for her

review and signature. The agreement provided a payment to Ms. Aduddell in

exchange for her release of all potential legal claims. GTG modified the

agreement at Ms. Aduddell’s request, then resent it for her further review.

      The final copy of the agreement, which by its terms is interpreted under

Oklahoma law, contained several paragraphs concerning its execution, revocation,

and notice. Paragraph 2 provided Ms. Aduddell with a severance payment in

consideration for her obligations under the agreement. Paragraph 5 provided for a

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general release by Ms. Aduddell of claims against GTG which she had or may

have had as of the date of the agreement. Paragraph 6(4) of the agreement

provided Ms. Aduddell the right “to consider this Agreement for a period of up to

twenty-one (21) days prior to her execution of same and of this right to revoke

this Agreement for a period of seven (7) days after its execution by the parties.”

(Appellant’s App. at 122.) Paragraph 6(4) also stated “[t]his Agreement will not

become effective until the stated revocation period has elapsed or expired.” (Id.)

Paragraph 9, titled “notices,” stated in relevant part “notices, demands and

communications required or preferred to be given in connection with this

Agreement shall be in writing.” (Id.) The agreement closed with the following

sentence: “The parties hereto have executed this Agreement on the date set forth

above,” followed by two signature lines, one for GTG’s president and the other

for Ms. Aduddell. (Id. at 123.)

      On June 29, Ms. Aduddell signed and hand-delivered the agreement to

GTG. Upon receiving the agreement from Ms. Aduddell, GTG’s owner and CEO

personally acknowledged its receipt and told her “we’ll get you your check.” (Id.

at 116.) GTG’s president signed the agreement later that day and delivered the

agreement to the company’s accounting department to initiate a check request.

      On July 4, Ms. Aduddell notified GTG’s counsel she had signed the

agreement and delivered it to GTG’s CEO. On July 9, ten days after she and

GTG’s president signed the agreement, Ms. Aduddell e-mailed GTG’s counsel to

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ask when she would receive a copy of the signed agreement and her severance

check. That same day, she received from GTG’s counsel a double-signed copy of

the agreement. She picked up her severance check the following day. Then, on

July 13, fourteen days after she and GTG’s president signed the agreement, Ms.

Aduddell notified GTG she was invoking her right to revoke.

      Upon receipt of Ms. Aduddell’s revocation letter, GTG filed a declaratory

judgment action in the District Court of Oklahoma County, arguing that Ms.

Aduddell’s attempted revocation of the agreement was untimely because it

occurred more than seven days after the agreement’s execution. Ms. Aduddell

counterclaimed for her alleged lost earnings, and the parties bifurcated the case in

order to first try the revocation issue. On cross-motions for summary judgment,

the court then granted summary judgment for Ms. Aduddell. The parties

subsequently stayed the case, and it remains stayed to this day.

      In July 2008, Ms. Aduddell commenced this Title VII retaliation action

against GTG in the U.S. District Court for the Western District of Oklahoma,

alleging the company’s action resulted in a loss of approximately $900,000 in

earned commissions. GTG defended itself both on the merits and by renewing its

claim that the severance agreement barred Ms. Aduddell from bringing her suit.

On summary judgment, the district court decided to rule on the revocation issue

and concluded, contrary to the state court’s decision, that Ms. Aduddell’s

revocation was untimely. It also concluded Ms. Aduddell failed to establish one

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of GTG’s proffered reasons for modifying her compensation structure was

pretextual. This appeal followed.

                                    DISCUSSION

      We review the grant of summary judgment de novo, applying the same

standards as the district court. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d

1187, 1195 (10th Cir. 2008). We view the facts, and all reasonable inferences

those facts support, in the light most favorable to the nonmoving party, here Ms.

Aduddell. See id. Because our review is de novo, we need not separately address

arguments that the district court erred by viewing evidence in the light most

favorable to GTG and by treating disputed issues of fact as undisputed. Rivera v.

City & Cnty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004). “The court shall

grant summary judgment 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.”

Fed. R. Civ. P. 56(a).

      As a threshold matter, we must determine whether the district court erred

by revisiting the question of whether Ms. Aduddell revoked the severance

agreement within seven days of its execution. Although the Oklahoma County

District Court had already determined Ms. Aduddell revoked the agreement in

time, under the instant circumstances we do not require the district court to reach

an identical conclusion. The state court’s interlocutory decision receives no

preclusive effect, and principles of comity merely instruct the district court to

                                         -5-
exercise its discretion in deciding whether to defer to the state court’s ruling or

render its own judgment. See, e.g., Blinder, Robinson & Co., Inc. v. SEC, 692

F.2d 102, 105-06 (10th Cir. 1982). Because the state court issued its decision as a

“journal entry,” with no findings of fact or conclusions of law, the district court

was within its discretion to independently consider the revocation issue. We

therefore first turn our review to this part of the district court’s decision.

      “[G]enerally, it is said that every contract results from an offer and the

acceptance thereof.” Armstrong v. Guy H. James Constr. Co., 402 P.2d 275, 277

(Okla. 1965). Oklahoma courts “must give effect to mutual intent of the parties

as expressed in the language of the contract, so long as it is unambiguous on its

face and there exists no fraud, accident, or pure absurdity affecting the

agreement.” Gamble, Simmons & Co. v. Kerr-McGee Corp., 175 F.3d 762, 767

(10th Cir. 1999) (internal quotation marks omitted) (citing Okla. Stat. tit. 15, §

154). Thus, “ ‘it is the duty of the court to place itself, as far as possible, in the

situation of the parties at the time their minds met upon the terms of the

agreement, and from a consideration of the writing itself, ascertain their

intention.’ ” Sinclair Oil & Gas Co. v. Bishop, 441 P.2d 436, 442-43 (Okla.

1967) (quoting Bearman v. Dux Oil & Gas Co., 166 P.2d 199, 201 (Okla. 1917).

“ ‘[I]f this cannot be done from the instrument itself, the circumstances under

which it was made, and the subject-matter to which it relates, may be considered,

and with these aids, the court should so interpret the contract as to give effect to

                                           -6-
the mutual intention of the parties as it existed at the time of contracting, so far as

that intention is ascertainable and lawful.’ ” Id.

      It is undisputed GTG offered Ms. Aduddell a severance agreement for her

to either accept or reject within twenty-one days and Ms. Aduddell signed the

agreement and returned it to GTG. Therefore, absent clear language in the

agreement requiring something more, we would conclude that Ms. Aduddell

accepted GTG’s offer and thus end the inquiry. However, the agreement also

required two signatures in order to be executed. Thus, absent any other operative

terms in the contract, we conclude that the agreement is fully executed once both

parties have signed.

      Ms. Aduddell argues the agreement could not be executed until GTG both

signed the agreement and provided written notice or exchange of its signature to

Ms. Aduddell. Nothing in the agreement expressly requires such an act.

Paragraph 6 does not mention notice, and Paragraph 9 only directs how and when

notice shall be deemed given, not whether notice is required. Although Oklahoma

law requires a party to communicate its assent to a contract, GTG met this

obligation first by offering the written agreement for Ms. Aduddell’s review and

acceptance and then again by communicating its assent to Ms. Aduddell in written

and verbal discussions up to and during her June 29 delivery of the signed

agreement. The agreement did not require GTG to provide Ms. Aduddell with

any further communication beyond what she had already received in order to

                                          -7-
execute the contract and begin the seven-day revocation period.

      Regardless, Ms. Aduddell was on notice that her revocation period began

on June 29. She knew from reading the agreement that its payment provision

would not become effective until after the seven-day revocation period. She was

also twice informed by GTG’s counsel that her severance payment would be

delivered seven days after she signed the agreement. On June 29, when she

signed and hand-delivered the agreement to GTG’s CEO, he personally

acknowledged its receipt and told her “we’ll get you your check.” One week

later, Ms. Aduddell contacted GTG’s counsel and asked when she would receive a

copy of the agreement and her severance check, and she received her check

shortly thereafter. Because Ms. Aduddell knew GTG would not pay her severance

until after the revocation period had expired, she was on notice her revocation

period began on June 29 and ended by the time she received her check. Her

attempted revocation on July 14 was therefore untimely.

      Because we find that Ms. Aduddell’s release of claims against GTG is

enforceable, we need not reach the merits of her retaliation claim. We therefore

AFFIRM the district court’s order granting summary judgment.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge


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