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Lee Mathis v. Liberty Moving Co. and United Van Lines

October 26, 2011

LEE MATHIS, PLAINTIFF,
v.
LIBERTY MOVING CO. AND UNITED VAN LINES, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

MORANDUM & ORDER

On May 18, 2011, the Court held a hearing to determine whether Plaintiff Lee Mathis breached the confidentiality provision of the Settlement Agreement (the "Agreement") that he reached with Defendant Liberty Moving Company ("Liberty") to end his employment discrimination case. At the end of the hearing, the Court rejected Liberty's claim that Plaintiff breached the Agreement multiple times, and it reserved judgment as to Liberty's claim that he breached the Agreement once. Mid-way through the hearing, Plaintiff asserted a claim that Liberty also breached the Agreement; the Court reserved judgment on this issue as well. Having considered the evidence and the parties' post-hearing letters, the Court concludes that neither Plaintiff nor Liberty proved their claims.

BACKGROUND

Plaintiff, a 72-year-old black male, worked at Liberty, a moving company, from approximately late 2001 until 2006. (Tr. 142, 162-63.) The parties disagree as to the precise nature of Plaintiff's employment status--e.g., whether he was a day laborer or a Liberty employee--but essentially Plaintiff was paid to help load and unload Liberty's moving vans. (Tr. 141-42.) Plaintiff was known among his colleagues as "Big Lee." (Tr. 58.) In 2008, Plaintiff sued Liberty for race and age discrimination after Liberty allegedly assigned Plaintiff fewer shifts in favor of younger, non-black laborers. (See Third Am. Compl. ¶¶ 15-26.) In the course of pursuing his case, Plaintiff and his counsel spoke with many Liberty employees about joining the suit or testifying on Plaintiff's behalf. (Tr. 144.) In December 2010, the parties settled Plaintiff's lawsuit and entered into the Agreement.

To settle the case, Liberty agreed to pay Plaintiff $68,646.46 in exchange for a general release. The Agreement was executed on December 10, 2010, and it provided for the settlement amount to be paid in four installments: (1) $2,500 paid to Plaintiff by December 20, 2010; (2) $27,500 paid to Plaintiff thirty days after the Agreement was executed; (3) $8,646.46 paid to Plaintiff's appointed counsel to cover the costs of Plaintiff's lawsuit; and (4) a final $30,000 paid to Plaintiff 120 days after the Agreement was executed. (Agreement ¶¶ 4-4.4.)

The Agreement also contained a confidentiality provision, which provided in relevant part that:

Commencing on November 18, 2010, Plaintiff, Plaintiff's counsel, LIBERTY representatives Mr. Michael Federico, Sr., Ms. Cindy Federico, Mr. Michael Federico, Jr. and Mr. Anthony Federico and UNITED representatives Mr. Michael DiRaimondo, Mr. Joseph Schmelzle and Mr. Keith McFarland shall maintain the existence and terms of this Agreement in strict confidence, and shall make no disclosure thereof to any other party except as provided herein below. Notwithstanding the foregoing, Plaintiff, LIBERTY or UNITED may disclose the existence and terms of this Agreement only as follows:

6.1 to the extent necessary to enforce or comply with the terms of this Agreement, but only after seven (7) days prior written notice given by the disclosing Party to the other Party. (Agreement ¶¶ 6-6.1.)

Cindy Federico, a co-owner of Liberty and a participant in the settlement negotiations (Tr. 8), testified that, from Liberty's standpoint, the confidentiality clause was a critical component of the settlement because Liberty was concerned about having to defend copycat lawsuits brought by other minority laborers. (Tr. 8, 13, 43.) The parties agreed that any confidentiality breach would result in liquidated damages of $10,000:

A Party's failure to comply with any part of [the Confidentiality provision] shall be considered a material and substantial breach of this Confidential Settlement Agreement and General Release. Plaintiff and LIBERTY mutually agree that either Party shall be entitled to recover as liquidated damages from the other Party the sum of $10,000.00 for any breach of [the Confidentiality provision]. The Parties further agree this liquidated damages provision is an integral part of the consideration for this Agreement and is included in this Agreement to relieve them from the burden of proving actual damages resulting from any breach of [the Confidentiality provision]. (Agreement ¶ 8.)

Federico told Liberty's comptroller, John Kenyon, about the Agreement so that he could prepare the Plaintiff's payments. (Tr. 11-12.) Liberty did not notify Plaintiff that it planned to inform Kenyon about the Agreement. (Tr. 28-29.) With Kenyon's help, Liberty made the first three payments substantially on schedule.

Liberty was due to make its fourth and final payment to Plaintiff 120 days after the Agreement was executed, or approximately the second week of April 2011. Before Liberty cut its last check, however, one of its employees received a voicemail that caused Liberty to suspect that Plaintiff had breached the confidentiality agreement. On April 5 or 6, Liberty's over-the-road dispatcher, Robert Franklin, received a voicemail in which the caller stated, among other things, that "Big Lee getting' his money this week" and that it was "Somebody else turn to get rich." (See Tr. 72-73 (indicating that the voicemail was played for the Court).) Franklin recognized the caller, who did not identify himself, as Desmond Estrick (Tr. 72), one of Liberty's former laborers and a friend of Plaintiff's (see Tr. 61). Franklin testified that he had heard Estrick's voice many times before. (Tr. 64-65.) Franklin brought the voicemail to his supervisors' attention, and Liberty decided to withhold Plaintiff's final check and investigate the possible confidentiality breach. (Tr. 37-38.)

As part of its investigation, Liberty had Franklin call Estrick to find out whether Plaintiff had told Estrick about the settlement and the impending $30,000 payment. (See Tr. 128.) Franklin called Estrick twice during the evening of April 8, 2011, and he recorded both phone calls with a digital voice recorder. The first call, the recording of which was not played for the Court, lasted more than twenty minutes and consisted largely of Franklin's attempting to get Estrick to admit that he had left the voicemail. (Tr. 122.) Estrick repeatedly denied that he had left Franklin any message about Plaintiff. (Tr. 114-15.) A few hours later, Franklin called Estrick back and, using a second telephone, played for Estrick the voicemail (which had been saved to Liberty's voicemail system). Confronted with the recording, Estrick laughed and remembered leaving the message. (April 8, 2011 8:00 p.m. Call; see also Tr. 80 (indicating that tape was played for the Court).) On that call, Estrick explained that he had heard through the grapevine that "Big Lee" was getting a "package" soon from Liberty, and he denied that Plaintiff told Estrick this information. (April 8, 2011 8:00 p.m. Call.)

For his part, Plaintiff denied that he told anyone about the Agreement and said that he went so far as to tell his wife that the settlement money was the result of a lottery win. (Tr. 149.) He said that he speaks with Estrick "probably every week." (Tr. 146.) At the time of the hearing, their most recent conversation had occurred the weekend before, during which Estrick asked Plaintiff to borrow money. (Tr. 146.) Estrick, like many of Plaintiff's former colleagues who knew of his lawsuit, occasionally asks Plaintiff about the status of the case. (Tr. 146.) According to Plaintiff, he tells Estrick and anyone else who asks that the action is still in the courts and that he is waiting to hear from his lawyer. (Tr. 146.) There was evidence during Plaintiff's ...


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