UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM J. GILBERT,
Plaintiff-Appellant,

v.

BALTIMORE COUNTY, MARYLAND;
                                                                    No. 00-1395
BALTIMORE COUNTY FIRE
DEPARTMENT; JOHN HOHMAN; JOHN F.
O'NEILL, Chief,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-99-3384-S)

Submitted: August 15, 2000

Decided: September 28, 2000

Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Jack L.B. Gohn, GOHN, HANKEY & STICHEL, L.L.P., Towson,
Maryland, for Appellant. Virginia Wood Barnhart, County Attorney,
James J. Nolan, Jr., Assistant County Attorney, Towson, Maryland,
for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

William J. Gilbert appeals the district court's order granting sum-
mary judgment to the Defendants on some claims and dismissing the
remaining claims. We affirm.

Gilbert is a firefighter with the Baltimore County Fire Department
(the "Department"). On February 10, 1997, Gilbert's supervisor, John
Hohman, ordered Gilbert to answer questions as part of an internal
investigation. When Gilbert refused, Hohman suspended him and
requested that his superior file "Charges and Specifications" against
Gilbert recommending his termination for the failure to obey a direct
order.

Gilbert planned to file grievances contesting both the suspension
and the proposed termination. However, on February 24, 1997, Hoh-
man advised Gilbert that during the pendency of the proceedings,
which would be approximately thirty days, Gilbert's search and res-
cue dog "Mattie" would be reassigned to work with another fire-
fighter. Gilbert stated that Mattie probably would not search properly
for another handler. Hohman replied that if Mattie failed to search,
she would be useless to the Department and would be destroyed.*
Gilbert believed this to be a threat against Mattie's life.

Gilbert thereafter permitted his union representative to negotiate a
settlement with the Department that would allow Gilbert to keep his
job and prohibit the Department from destroying Mattie. After several
_________________________________________________________________
*Hohman denies making this statement or having any conversation at
all with Gilbert between February 10 and February 24, 1997. (JA 35).
For purposes of appellate review, however, we have assumed that truth
of the version of events proffered by Gilbert. See Scheduled Airline Traf-
fic Offices, Inc. v. Objective, Inc., 180 F.3d 583, 591 (4th Cir. 1999).

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drafts, Gilbert executed a Memorandum of Settlement toward the end
of the day on February 24, 1997. The agreement stated that "the set-
tlement provisions [are] entered into voluntarily" and constitute a
"full and complete settlement of the charges and specifications against
Lieutenant William J. Gilbert." The terms of the agreement provided
for Gilbert's demotion and transfer rather than his termination,
required Gilbert to write letters of apology, and required Gilbert to
forfeit his grievances on leave and compensatory time issues. The
agreement also provided for Gilbert's resignation from the search and
rescue team. The Department agreed to retire Mattie to the care of
Gilbert and agreed to provide her veterinary care.

Gilbert alleges that he subsequently attempted to overturn the set-
tlement agreement through negotiations until November of 1999. At
that time, Gilbert filed the instant § 1983 suit alleging that Baltimore
County, the Baltimore County Fire Department, and two fire depart-
ment officials interfered with his constitutional rights. The Defen-
dants moved for summary judgment on a number of grounds, and
Gilbert filed a response in opposition. The district court granted sum-
mary judgment, finding that the settlement agreement barred most of
the federal claims and dismissing the remainder as barred by limita-
tions. The court then dismissed the state law claims for lack of juris-
diction. Gilbert timely appeals.

This Court reviews de novo a district court's order granting sum-
mary judgment and views the facts in the light most favorable to the
nonmoving party. See Scheduled Airlines Traffic Offices, Inc. v.
Objective, Inc., 180 F.3d 583, 590-91 (4th Cir. 1999). Summary judg-
ment is appropriate where no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c). Once the moving party discharges its burden by
showing that there is an absence of evidence to support the nonmov-
ing party's case, see Celotex Corp. v. Catrett , 477 U.S. 317, 325
(1986), the nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Sum-
mary judgment will be granted unless a reasonable jury could return
a verdict for the nonmoving party on the evidence presented. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

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Maryland courts have employed several tests to determine whether
an agreement is voidable for duress. Courts initially inquired as to
whether the complaining party's execution of the document was "in-
duced by harshness and threats, and the exercise of unwarrantable
authority, so excessive as to subjugate and control the freedom of (the
signatory's) will." Central Bank v. Copeland , 18 Md. 305, 319
(1862). In conjunction with the Restatement (First) of Contracts,
Copeland established two elements of duress: (1) a wrongful act or
threat by the other party; and (2) the complaining party was over-
whelmed by fear and precluded from using free will or judgment. See
Food Fair Stores v. Joy, 283 Md. 205, 217 (1978). To be "wrongful,"
the threat need not be illegal. See Eckstein v. Eckstein, 38 Md. App.
506, 515 (1978). However, for a lawful threat to be wrongful, the
means must be used so oppressively as to constitute an abuse of legal
remedies. See Food Fair Stores, 283 Md. at 217. Traditionally, courts
focused on the effect of the threat on the signatory more so than on
the wrongfulness element. See id. at 218.

The Restatement (Second) of Contracts, however, shifted the focus
to the nature of the threat itself, omitting the requirement of over-
whelming fear. See Restatement (Second) of Contracts § 175 cmt. b
(1981). Under the Restatement (Second), a contract is voidable if a
party is induced by an improper threat that leaves him no reasonable
alternative. See Restatement (Second) of Contracts § 175(1) (1981).
"A threat, even if improper, does not amount to duress if the victim
has a reasonable alternative to succumbing and fails to take advantage
of it." Restatement (Second) of Contracts§ 175 cmt. b (1981). The
Restatement further states:

          A threat is improper if the resulting exchange is not on fair
          terms, and

          a. the threatened act would harm the recipient and would
          not significantly benefit the party making the threat;

          b. the effectiveness of the threat . . . is significantly
          increased by prior unfair dealing by the party making
          the threat; or

          c. what is threatened is otherwise a use of power for ille-
          gitimate means.

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Restatement (Second) of Contracts § 176(2) (1981).

The Food Fair Stores court identified the two possible tests for
duress, but did not explicitly decide which test constituted Maryland
law. Rather the court applied both tests and found that the claim of
duress in that case failed under both. Lower courts, including the dis-
trict court in the instant case, have continued to address duress claims
under the two-element test developed from Copeland and the First
Restatement. See Meredith v. Talbot County, 80 Md. App. 174, 183
(1989); Blum v. Blum, 59 Md. App. 584, 594 (1984). Gilbert argues
on appeal that the Second Restatement governs Maryland law on the
issue of duress. We need not decide which test is actually the law as
Gilbert fails to establish duress under either the First Restatement
approach or the Second Restatement approach.

Under the two-element test applied in Copeland and Meredith, Gil-
bert must establish that his supervisor's threat was wrongful and that
Gilbert was overwhelmed with fear and unable to exercise his own
judgment when he executed the settlement agreement. Several facts
indicate that Gilbert was not actually overwhelmed with fear. First,
although Gilbert's affidavit states that he would not have signed the
agreement if Mattie's life had not been threatened, Gilbert makes it
clear that his goal in executing the settlement agreement was not only
to save Mattie but also to save his own job. Gilbert's affidavit sug-
gests he would not have signed an agreement if it would result in his
termination, which in turn suggests he was not so overwhelmed with
fear that he was unable to exercise his free will. Second, Gilbert's
own union representative negotiated and drafted the agreement. Third,
there was no actual threat of immediate harm to the dog, only mere
speculation that she might be harmed if she refused to perform for
another handler. And finally, Gilbert's affidavit demonstrates that he
knew a decision to destroy a search dog would be the subject of
"high-level discussions in the Department." In light of this knowl-
edge, it seems unlikely that Gilbert believed Hohman possessed the
unilateral authority to destroy Mattie. Thus, even assuming that Hoh-
man's threat was wrongful, Gilbert fails to satisfy the second element
of duress under Copeland and Meredith .

Under the Second Restatement's approach, Gilbert must show that
there was an improper threat that left Gilbert no reasonable alternative

                    5
but to execute the settlement agreement. Even assuming that Hoh-
man's statement was a wrongful exercise of power, Gilbert fails to
establish that the settlement agreement prepared by Gilbert's union
representative was not on fair terms such that the threat was improper
under the Second Restatement. Under the terms of the settlement
agreement, Gilbert was demoted and transferred rather than termi-
nated, Gilbert was permitted to keep his dog as a pet and the county
agreed to provide free veterinary care, and Gilbert agreed to drop his
prior grievances against the department. The terms provide at least
some benefit to both parties and cannot be deemed unfair.

Furthermore, even if the threat was improper, Gilbert fails to show
that he had no reasonable alternative but to execute the settlement
agreement. Hohman's alleged threat was merely a conditional state-
ment that if the dog would not search with another handler, she would
be useless to the Department and destroyed. Clearly, Gilbert could
have declined to execute the settlement agreement and waited to see
if the dog would in fact refuse to search with another handler. More-
over, Gilbert may have been able to pursue a legal remedy to prevent
Hohman from killing the dog. Thus, Gilbert fails to establish duress
under the Second Restatement.

We find no reversible error and affirm the order of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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