UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

BETTY WHITE, )

Plaintiff, )

) CAUSE NO. 2:12-CV-1-JD-PRC 

v. )

)

LOWE’S HOME CENTERS, INC., )

Defendant. )

FINDINGS, REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE PURSUANT TO

28 U.S.C. § 636(b)(1)(B) & (C)

This matter is before the Court on Defendant’s Sealed Motion to Enforce Settlement and

Dismiss with Prejudice [DE 21], filed by Defendant Lowe’s Home Centers, Inc. (“Lowe’s”) on May

24, 2012.

On June 27, 2012, District Court Judge Jon DeGuilio entered an Order [DE 25] referring this

matter to the undersigned Magistrate Judge for a report and recommendation on the instant motion

pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge’s

combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the

following reasons, the Court recommends that the District Court grant the motion.

PROCEDURAL BACKGROUND

On January 3, 2012, Plaintiff Betty White filed a Complaint against Defendant Lowe’s,

alleging a claim under Title VII for sexual harassment and intimidation by her supervisor during her

employment with Lowe’s as well as claims for “negligent hiring/supervision/retention” and

intentional infliction of emotional distress. On March 2, 2012, Ms. White filed an Amended

Complaint to properly name Lowe’s. On March 5, 2012, Lowe’s filed a motion asking the Court

to correct the spelling of Lowe’s name in the caption, which the Court granted on March 7, 2012.
On May 24, 2012, Lowe’s filed a Motion to Seal and the instant Sealed Motion to Enforce

Settlement and Dismiss with Prejudice. On May 31, 2012, the Court received a letter from Ms.

White, personally, and not through counsel, in which Ms. White asked permission to proceed with

this case pro se. On June 4, 2012, the Court issued an order, declining to take action on the letter

because Ms. White continued to be represented by counsel.

On June 7, 2012, Ms. White’s attorney, Jewell Harris, Jr., filed a Motion to Withdraw

Appearance. 

On June 27, 2012, Judge DeGuilio issued an order referring the Motion to Enforce

Settlement and Dismiss with Prejudice to the undersigned Magistrate Judge. In the Order, Judge

DeGuilio also noted that Attorney Harris’ Motion to Withdraw asks both for leave of Court to

withdraw his appearance and also asks the Court to enforce the attorney fee agreement entered into

between his firm and Ms. White. Judge DeGuilio denied with leave to refile that portion of the

Motion to Withdraw seeking enforcement of the attorney fee agreement.

On June 2, 2012, the Court set the Motion to Enforce Settlement and Dismiss with Prejudice

for a hearing for July 12, 2012, ordering Ms. White, Attorney Harris, and counsel for Lowe’s to be

present in person. On July 5, 2012, Attorney Harris filed a motion to continue the hearing, which

was granted on July 10, 2012, and the hearing was reset to July 16, 2012.

On July 16, 2012, the Court held a motion hearing on the Motion to Seal, the Motion to

Enforce Settlement and Dismiss with Prejudice, and the Motion to Withdraw. At the hearing, the

Court granted the Motion to Seal, ordering that the Motion to Enforce Settlement and Dismiss with

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Prejudice be sealed and that the hearing be sealed as well.1

 The Court took evidence and heard the

testimony of Ms. White and Attorney Harris.

On July 17, 2012, Lowe’s filed a Citation of Supplemental Authority.

FACTUAL BACKGROUND

On March 13, 2012, counsel for Lowe’s sent Attorney Harris, Ms. White’s attorney, a letter

that explained Lowe’s view of the case and concluded with an offer of settlement. The final

paragraph of the letter provided that Lowe’s had authorized counsel to extend a settlement offer of

$[A], subject to several conditions.2 See Def. Mot., Exh. A. This offer amount of $[A] was not

accepted by Ms. White.

On May 3, 2012, counsel for Lowe’s sent an email to Attorney Harris regarding the parties’

settlement negotiations. Within that correspondence, counsel for Lowe’s stated, “I now extended

a final offer of [$B] with the same terms previously set forth.” Def. Mot., Exh. B.3 Later on May

3, 2012, Attorney Harris called counsel for Lowe’s and orally accepted the offer of settlement. 

Attorney Harris also responded to Lowe’s “final offer” by email, writing “Deal.” In the same email

Attorney Harris wrote, “How soon can your client process payment?”

1

 Although the motion and the hearing were sealed for good cause because of the frequent inclusion of the terms

of the confidential settlement agreement, this Report and Recommendation is not sealed as the Court has redacted the

confidential terms of the agreement to the extent it was necessary to include them. See Union Oil Co. of California v.

Leavell, 220 F.3d 562 (7th Cir. 2000) (“Calling a settlement confidential does not make it a trade secret, any more than

calling an executive’s salary confidential would require a judge to close proceedings if a dispute erupted about payment

(or termination).”).

2

 The Amount of $[A] is found in the first line of the second full paragraph on the second page of Exhibit A

to Defendant’s Sealed Motion to Enforce and Dismiss With Prejudice. See Def. Mot., Exh. A, p. 2 (“My client has

authorized me to extend $[A], . . . .”).

3

 The Amount of $[B] is found in the third line of the May 3, 2012, 5:14 p.m. email sent by “Kathleen

Anderson” to “Jewell” on the first page of Exhibit B to Defendant’s Sealed Motion to Enforce and Dismiss With

Prejudice. See Def. Mot., Exh. B.

3
On May 7, 2012, counsel for Lowe’s sent an email to the Court’s case management deputy

clerk, copied to Attorney Harris, explaining that the “parties cannot state in the public record that

a settlement has been reached” but could file a notice indicating that a stipulation for dismissal was

forthcoming in the immediate future.

Later on May 7, 2012, Attorney Harris responded to that email, informing the deputy clerk

that “we agree with the representations made by” counsel for Lowe’s.

On May 8, 2012, counsel for Lowe’s sent an email to Attorney Harris to confirm that it was

acceptable to “go ahead and file the notice” with the Court. Attorney Harris responded by asking

counsel for Lowe’s to call him. During the ensuing phone call, Attorney Harris informed counsel

for Lowe’s that Ms. White now planned to decline the settlement offer. 

Counsel for Attorney Harris followed up on that conversation with an email later on May

8, 2012, indicating that “I cannot approve the notice to be filed with court. Earlier today I advised

[counsel] that there were issues that came up with my client that I have not been able to resolve. Ms.

White has asked that I withdraw from her case. I believe that we should request a conference call

with the Magistrate. Please advise.” Def. Br., Exh. D, p. 2.

On May 10, 2012, the Court held a status conference, which was conducted on the record. 

At the conference, Attorney Harris stated that his client had “approved the settlement.” Def. Br.,

Exh. E, p. 3 (status conference transcript). Attorney Harris further stated that he told counsel for

Lowe’s that “we had an agreement on the amount so they could start preparing the paperwork.” Id.

at p.4. Attorney Harris then stated that “[a] few days later” he received an email from Ms. White

“basically indicating that she didn’t want to go forward with the settlement.” Id. at p. 4. This was

an “absolute surprise” for Attorney Harris. At the status conference, Attorney Harris stated that Ms.

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White’s disagreement was not over the amount of the settlement offer but rather that she was telling

him that she “disagrees with the idea of settling altogether.” Id. at 5.

At the hearing on July 16, 2012, Ms. White provided the following testimony. She hired

Attorney Harris on a contingency basis and did not pay him any money for his representation. 

Attorney Harris sent her a copy of the March 2012 letter from Lowe’s offering settlement for $[A],

she read the letter, and she responded to Attorney Harris by phone that she would not accept the

offer. She disagreed with the waiver and confidentiality terms of the proposed settlement. Months

later, Ms. White received a phone call from Attorney Harris communicating a $[B] offer from

Lowe’s. She asked Attorney Harris to counter with $[C] and asked Attorney Harris to get back to

her about what the conditions of the settlement offer were.4

 Attorney Harris told her that he would

withdraw his appearance if she did not accept the offer and that he felt she was wronged but that he

could not win the case. She felt pressured to settle before discovery deadlines had to be extended,

and she would have preferred to wait to discuss settlement until after discovery.

However, Ms. White testified that, during that same conversation on May 3, 2012, she did

communicate acceptance of Lowe’s $[B] settlement offer to Attorney Harris. She testified that she

accepted the $[B] offer “if the other conditions are met.” In her mind, she considered the

“conditions” to be further discussion of additional settlement for damages of front pay and back pay. 

She was remembering a previous discussion that she and Attorney Harris had regarding front pay

and back pay. Yet, she testified that she did not talk to Attorney Harris about front pay and back pay

during their conversation on May 3, 2012. She believed that the offer of $[B] was only payment for

her to maintain the confidentiality of the settlement. 

4

 The Amount of $[C] is found in the recording of the July 16, 2012 sealed hearing.

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Ms. White testified that Attorney Harris never got back to her regarding the other terms of

the settlement. She then emailed Attorney Harris, asking him to contact her about the terms of the

settlement. Attorney Harris responded that the settlement had already been accepted. She felt that

Attorney Harris should have declined the $[B] settlement offer because front pay and back pay had

not been included. She has calculated that the total back pay and front pay minus the unemployment

compensation she received would total $350,000. She is still open to settlement.

At the July 16, 2012 hearing, Attorney Harris gave the following testimony. The March 13,

2012 letter from counsel for Lowe’s outlined Lowe’s defense, which raised issues for Attorney

Harris regarding the feasibility of Ms. White’s claims. He took the initial $[A] settlement offer to

Ms. White, which she rejected. He communicated the rejection to counsel for Lowe’s. Through

further negotiations between counsel, counsel for Lowe’s reluctantly agreed to get authority to settle

for $[B]. Attorney Harris felt that $[B] was a fair settlement amount. Lowe’s then extended a

settlement offer of $[B] and required an immediate response before discovery continued.

Attorney Harris testified that Ms. White said “yes” to the $[B] settlement offer made by

Lowe’s. There was no discussion by Ms. White of any other conditions on the day of that

conversation. Attorney Harris stated that during their original consultation, before the Complaint

was filed, he and Ms. White had discussed back pay and front pay. He believes that, on May 3,

2012, he communicated to her that the $[B] offer was to settle the entire case. He understood Ms.

White’s reference to the same “conditions” they had previously discussed to mean the conditions

of the March 2012 settlement offer, except for the dollar amount of the offer, and one additional

negotiated term agreed to by Lowe’s. He did not understand “conditions” to include back pay and

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front pay. Attorney Harris felt the terms of the March 2012 proposed settlement agreement were

customary. 

Attorney Harris believed there was agreement on accepting the $[B] offer. He

communicated the acceptance to Lowe’s and asked that the documents be circulated. Subsequently,

Ms. White contacted Attorney Harris and told him she did not want to accept the settlement offer. 

He then contacted Lowe’s counsel and explained that Ms. White did not want to go forward with

the settlement. Attorney Harris does not remember receiving a copy of the proposed written

settlement agreement.

Attorney Harris testified that he felt that Ms. White had given him actual authority to settle

this case and that she had accepted the $[B] offer verbally. Attorney Harris felt that Ms. White

understood that he was the sole negotiator with Lowe’s.

ANALYSIS

In the instant motion, Lowe’s asks the Court to enforce the settlement agreement that it

believes was entered into by Ms. White to settle the case for $[B]. 

Oral agreements to settle a Title VII claim are enforceable in federal court and need not be

reduced to writing. Glass v. Rock Island Refining Corp., 788 F.2d 450, 455 (7th Cir. 1986). 

“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.; see also Lyles v. Commercial Lovelace Motor

Freight, Inc., 684 F.2d 501, 504 (7th Cir. 1982) (citing Alexander v. Garnder-Denver Co., 415 U.S.

36 n. 15 (1974)) (“Where a plaintiff knowingly and voluntarily agrees to settle his claims, he is

bound by his agreement.”). The question of whether the parties entered into an enforceable oral

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settlement agreement in a federal suit is governed by state law–in this case, that of Indiana. See

Dillard v. Starcon Int’l, Inc., 483 F.3d 502, 506 (7th Cir. 2007) (Title VII) (quoting Lynch, Inc. v.

SamataMason Inc., 279 F.3d 487, 490 (7th Cir. 2002) (holding that any uncertainty over whether

federal or state law applies to the enforcement of the settlement of a federal suit has been “dispelled;

it is state law”). 

In its written motion, Lowe’s argues that it appears Ms. White has a case of buyer’s remorse

and now is unhappy with the settlement amount, which appears to be based on Attorney Harris’

statements at the May 10, 2012 status conference that he believed that Ms. White’s disagreement

was not over the amount of the settlement but rather that she was telling him that she “disagrees with

the idea of settling altogether.” However, at the hearing on July 16, 2012, Ms. White’s testimony

revealed that she had agreed verbally to the $[B] settlement amount but that, in her mind, the $[B]

amount was only to ensure the confidentiality of the settlement and that, in her mind, the issue of

settling her claims for back pay and front pay had yet to be negotiated. As argued at the hearing,

Lowe’s now contends that Attorney Harris had actual and implied authority to settle the case for

$[B] subject to the terms set out in the original March 13, 2012 agreement.

Under Indiana law, in order to bind a client to a settlement agreement, “the attorney must

have either express, implied, or apparent authority, or must act according to the attorney’s inherent

agency power.” Koval v. Simon Telelect, Inc., 693 N.E.2d 1299, 1301 (Ind. 1998); see Pohl v.

United Airlines, 213 F.3d 336, 338 (7th Cir. 2000) (citing Koval for this statement of the law). 

When settlement occurs in an out of court proceeding, an attorney does not have implied or apparent

authority simply because he has been retained. Id. Authority, which is the “power of the agent to

affect the legal relations of the principal by acts done in accordance with the principal’s

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manifestations of consent to him,” can be express or implied. Id. at 1302 (quoting Restatement

(Second) of Agency § 7 (1958)). The authority may be given “by words or other conduct, including

acquiescence.” Id. As for implied authority, the Supreme Court explained that it “can arise from

words used, from customs, or from the relations of the parties. The agent is authorized if the agent

is reasonable in drawing an inference from the principal’s actions that the principal intended to

confer authority.” Id. (citing Restatement (Second) of Agency § 7 (1958)). Moreover, “[t]he client

may not intend for the attorney to settle a claim but may nonetheless imply that intention to the

attorney. If so, the client is bound by a resulting settlement.” Id. at 1303 n. 6; see also Pohl, 213

F.3d at 339 (“The testimony of Pohl’s attorney, which the court credited, would have been enough

to establish implied authority to settle, even if express authority had not been found.”).

The Court finds that Ms. White gave Attorney Harris express and implied authority to settle

during their phone conversation on May 3, 2012, in which she told Attorney Harris that she agreed

to the $[B] settlement amount subject to the “conditions.” Ms. White testified that she did accept

the $[B] settlement offer. Although Ms. White has testified that what she meant by other

“conditions” was additional negotiation for settlement money for back pay and front pay, she did

not communicate this understanding to Attorney Harris. There was no discussion during that

conversation of back pay and front pay. The discussions between Ms. White and Attorney Harris

regarding back pay and front pay occurred during the initial consultation on the case. At the time

of their May 3, 2012 conversation, the case had moved into a new phase of settlement negotiation. 

In the interim, an initial settlement offer in March 2012, which contained not only a settlement offer

but also the technical terms of settlement, had been communicated to Ms. White and was considered

by Ms. White. It was reasonable for Attorney Harris to believe on May 3, 2012, that Ms. White’s

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reference to other “conditions” of settlement was to the terms of settlement set forth in the first offer

in March 2012. Attorney Harris acted reasonably under the circumstances in relying on Ms. White’s

words and manifestations to him to communicate acceptance of the $[B] settlement offer to Lowe’s. 

Thus, Ms. White is bound by the settlement.

CONCLUSION

Based on the foregoing, the Court RECOMMENDS that the District Court GRANT

Defendants’ Sealed Motion to Enforce Settlement Agreement and Dismiss With Prejudice [DE 21].

The Court further RECOMMENDS that, should the District Court adopt this Report and

Recommendation, the District Court:

(1) Declare that the settlement agreement of May 3, 2012, was entered into

knowingly and voluntarily and is fully enforceable and, in particular, provides that

Lowe’s will pay Ms. White $[B] “minus applicable taxes/withholdings, to [Plaintiff]

in exchange for a full release; a confidentiality clause (with a 50% liquidated

damages provision) addressing all negotiations, terms, and the fact of any settlement;

waiver of reinstatement; no admission of liability; dismissal of the lawsuit; and other

standard terms;”

(2) Order Ms. White to execute the document found at Exhibit F of Lowe’s sealed

Motion [DE 21], which memorializes the already enforceable settlement agreement;

and

(3) Order this matter be dismissed with prejudice within 28 days of the Court’s Order

adopting the Report and Recommendation regardless of whether Ms. White executes

any document. 

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This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(C). 

Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have fourteen (14) days after being served with

a copy of this Recommendation to file written objections thereto with the Clerk of Court. The

failure to file a timely objection will result in waiver of the right to challenge this Recommendation

before either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902,

904 (7th Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); The Provident Bank v.

Manor Steel Corp., 882 F.2d 258, 260-261 (7th Cir. 1989); Lebovitz v. Miller, 856 F.2d 902, 905

n.2 (7th Cir. 1988). 

SO ORDERED this 19th day of July, 2012.

 s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: All counsel of record

Betty Jane White Evans at (1) 2130 Whipperwill Road, Kileen, TX, 76542 and 

(2) 416 Taft Street, Gary, IN, 46404 

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