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Brian J. Shine v. Td Bank Financial Group

August 2, 2011

BRIAN J. SHINE, PLAINTIFF,
v.
TD BANK FINANCIAL GROUP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kugler, United States District Judge:

NOT FOR PUBLICATION (Doc. No. 25, 26)

OPINION

This matter arises out of alleged employment discrimination on the basis of race, national origin, and disability by T.D. Bank, N.A. ("TD Bank"). During the pendency of litigation, the parties conducted extensive negotiations and reached an agreement. After the parties executed the settlement agreement, the Court dismissed the matter. Presently before the Court is the motion by Plaintiff Brian J. Shine to reopen the matter and to appoint pro bono counsel, (Doc. No. 25), and the motion to seal filed by Defendants, (Doc. No. 26). For the following reasons, Plaintiff's motions are DENIED, and Defendants' motion to seal is DENIED.

I. BACKGROUND

The background facts of this case are outlined in the Court's Opinion dated July 12, 2010. Therefore, the Court will provide additional facts as necessary to decide the pending motion.

On August 29, 2009, Plaintiff filed the Amended Complaint. The Amended Complaint includes ten causes of action: (1) "Equal Rights under the law (42 U.S.C. § 1981)"; (2) "Civil Action for deprivation of Rights (42 U.S.C. § 1983)"; (3) "Conspiracy to interfere with and failure to prevent violations against the Civil Rights of Mr. Shine[,] 42 U.S.C. § 1985 and 1986"; (4) "Damages for the intentional discrimination in employment of Mr. Shine[,] 42 U.S.C. § 1981a"; (5) "Civil Action for Deprivation of Civil Rights (42 U.S.C. § 1983)"; (6) "Unlawful Employment Practices and Intentional Discrimination (42 U.S.C. § 2000e-2, 2000e-3)"; (7) "Violations of Immigration law and discrimination of Mr. Shine on the basis of National Origin[,] 8 U.S.C. § 1324 et seq.[,] Unlawful Participation in Violation of Racketeering Influenced and Corrupt Organizations Act[,] 18 U.S.C. § 1961-1968"; (8) "Violation of the Equal Pay Act of 1963"; (9) Violation of Title I and Title VI of the Americans with Disabilities Act of 1990"; and (10) "Retaliation and Wrongful Termination by Defendants." (Am. Compl. ¶¶ 234-74).

On January 29, 2010, Defendants moved to dismiss the Amended Complaint. On July 12, 2010, the Court entered an Order: (1) granting Defendants' motion to dismiss Counts Two, Three, Five, Seven, and Eight in their entirety; (2) granting Plaintiff summary judgment regarding Counts Six and Nine against the individual Defendants; and (3) granting Plaintiff summary judgment regarding the portions of Count Ten alleging unlawful retaliation. (Doc. No. 14, at 20). In the same Order, the Court denied Defendants' motion to dismiss Counts One and Four in their entirety, and the portions of Count Ten alleging wrongful discharge. (Doc. No. 15).

Subsequently, the parties conducted extensive negotiations. On October 7, 2010, by telephone, Plaintiff asked defense counsel, Christine O'Hearn, to discuss a potential settlement. (O'Hearn Decl. ¶ 3; Ex. A). On October 8, 2010 at 9:18 a.m., O'Hearn replied via email, informing Plaintiff that Defendants rejected his prior settlement offer, but that if he wanted to make a new settlement offer, she would relay the message to TD Bank. (Id. ¶ 4). On October 8, 2010 at 1:01 p.m., Plaintiff sent O'Hearn an email demanding "payment of $50,000.00," and reiterating that he was "interested in settlement." (Id. ¶ 5; Ex. B). On October 11, 2010, O'Hearn sent an email to Plaintiff rejecting his $50,000.00 offer and making a counteroffer of $2,500.00 in exchange for execution of a settlement agreement and release. (Id. ¶ 6; Ex. C).

On October 12, 2010, Plaintiff sent an email to O'Hearn rejecting the $2,500.00 offer and making a counteroffer of $5,000.00. Specifically, Plaintiff's email states "if [TD Bank] is willing to double the offer to $5,000.00 and refrain from pursuing legal fees and/or expenses we have a deal." (Id. ¶ 7; Ex. D). The same day, O'Hearn accepted Plaintiff's counteroffer via email, and sent Plaintiff the settlement agreement and release. Paragraph 9 of the settlement agreement states:

ACKNOWLEDGEMENT. Shine acknowledges that he has read all of the terms and conditions of this Agreement, and that he has had an opportunity to discuss it with an attorney of his choosing prior to signing if he so desires. Shine understands that by signing this Agreement and accepting the terms set forth above, he is receiving benefits to which he otherwise [sic] not be entitled.

Shine understands that he is receiving such benefits as a result of entering into and complying with the terms and provisions of this Agreement. Shine acknowledges that he is signing this Agreement voluntarily and knowingly in exchange for the Settlement Payment described herein, which she [sic] acknowledges is adequate and satisfactory. (Id. ¶ 10; Ex. E). O'Hearn also advised Plaintiff to review the agreement and contact her with any questions or concerns. (Id. ¶ 8).

Plaintiff executed the agreement on October 13, 2010. (O'Hearn Decl. Ex. G). O'Hearn received a copy of the executed settlement agreement from Plaintiff via regular mail on October 14, 2010 at 1:00 p.m. (O'Hearn Decl. ¶ 12). After receiving the executed settlement agreement, O'Hearn forwarded the agreement to TD Bank for execution. (Id. ¶ 14).

On October 15, 2010, O'Hearn received the following email that Plaintiff sent on October 14:

I changed my mind Christine . . . I'm not being bullied into silence.

I'm fighting your clients for the unadultered Hell they put me through even after I requested numerous transfers.

Again, where are all the cell records? Where are all the "dates and times of flatulence?"

I'm not accepting this offer Christine.

Where [sic] on a first name basis seeing that you had nothing to do with the horrible acts of your clients against me.

Again, $50,000.00 and this whole matter is settled. Firm offer.

Your clients have nothing to go after even if this or any other court beyond the American Rule.

This communication I will also be sending to the judge. I'm worth far more than $5,000.00[.] Your clients put me through Hell and in the interests of Justice I hereby repeal my agreement to your client's gross and repugnant offer. (Id. ΒΆ 15; Ex. I). Plaintiff sent the email on October 14 at 11:28 p.m. On October 15, 2010, O'Hearn ...


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