UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 Appellant. 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Unpublished opinions are not binding precedent in this circuit.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 Transmission Corporation ("Columbia Gas"). Finding no abuse of discretion, we affirm.

I.

Smith, an African-American employee of Columbia Gas, brought

an action against Columbia Gas in which he alleged that he was subjected 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 corrective 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 mediation. 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' dispute over whether the settlement agreement would include a confidentiality 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 agreement 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 agreement's terms to specified categories of individuals, be even more specific to ensure that two particular supervisors employed by Columbia

Gas would not be advised of the terms. Although Russo did not further 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 counsel 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 agreement. In response, Smith indicated that the revised agreement contained no provision regarding Columbia Gas' purported assurance

during the March 7, 1997 mediation that he would no longer be subjected 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 disputes 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 hearing, 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 concerning 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 Perrine, that the revised agreement comported with the verbal agreement

reached on March 7, 1997. The specific exchange at the hearing was

as follows:

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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 stylistic 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 prejudice. This appeal followed.

II.

We review a district court's decision to enforce a settlement agreement 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.

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In support of his position that the district court's enforcement of

the revised agreement constituted an abuse of discretion, Smith contends 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 mediation, 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 proposed agreement as "commendable."

The district court also heard testimony from Jory concerning his

communications with Smith throughout the March 7, 1997 proceedings. In particular, Jory testified that he and Smith discussed each settlement 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 parties 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 decisions to enforce the revised agreement and to dismiss Smith's action

with prejudice.

AFFIRMED

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