NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 8, 2011*
Decided December 8, 2011
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐1440
THADDEUS TODD, JR., Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 CV 3827
KOHL’S DEPARTMENT STORES, INC.,
Defendant‐Appellee. Marvin E. Aspen,
Judge.
O R D E R
Thaddeus Todd sued Kohl’s Department Stores claiming employment
discrimination on the basis of age, race, and gender. The parties attended a settlement
conference before a magistrate judge on March 1, 2010, but that conference ended without
agreement. The next day, however, Todd’s lawyer, Michael Clarke, telephoned counsel for
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 11‐1440 Page 2
Kohl’s and extended a settlement offer. The company’s lawyer acknowledged the offer that
same day by e‐mail, and then forty minutes later sent a second e‐mail announcing that
Kohl’s had accepted the offer. Attached to the second e‐mail was a draft of the settlement
agreement. Over the next two days the lawyers exchanged e‐mails incorporating minor
changes to the agreement, and on March 4 counsel for Kohl’s finalized the document and
sent it to Clarke, who had said that Todd would be coming to his office to sign it that
afternoon. Todd did not sign, however, and on March 25 Clarke notified Kohl’s that Todd
no longer wished to settle.
Kohl’s moved to enforce the settlement agreement, arguing that the parties had
reached a binding oral contract on March 2. Around this time Todd told Clarke that he no
longer desired his services, and the district court permitted Clarke to withdraw. Todd then
filed a pro se response asserting that the settlement agreement had been negotiated by
Clarke without his knowledge or consent. The company’s motion was referred to the
magistrate judge who had conducted the settlement conference.
After presiding over an evidentiary hearing at which Todd and Clarke testified, the
magistrate judge recommended granting the motion filed by Kohl’s. The magistrate judge
concluded under that Illinois law, which governs, see Dillard v. Starcon Int’l, Inc.,
483 F.3d
502, 506–07 (7th Cir. 2007), the parties on March 2 had reached an oral agreement despite
the immaterial edits made by the lawyers over the next two days. And, the magistrate
judge continued, Todd had knowingly consented to the terms of that agreement and was
bound by it. As recounted by the magistrate judge, Todd had admitted during the
evidentiary hearing that he actively participated in the negotiations which followed the
failed settlement conference, that he understood the material terms reached on March 2,
and that he had told Clarke that those terms were satisfactory. Todd had also testified,
however, that his acceptance was only a “test” of Clarke’s loyalty and did not reflect his
true intent. The magistrate judge did not believe this testimony about a “test” but also
noted that the oral agreement would be enforceable regardless because Todd had never
told Clarke or Kohl’s that he did not really mean what he said. The district court adopted
the magistrate judge’s findings and recommendation and dismissed Todd’s suit.
On appeal, Todd ignores the magistrate judge’s account of what he said at the
evidentiary hearing and again asserts that he was unaware of the settlement negotiations
which occurred after March 1; Todd also insists that Clarke lied when he testified to the
contrary. But Todd has not supplied us with a transcript of the evidentiary hearing, so we
cannot meaningfully review the magistrate judge’s factual findings. Federal Rule of
Appellate Procedure 10(b)(2) provides that an appellant who argues “that a finding or
conclusion is unsupported by the evidence or is contrary to the evidence . . . must include
in the record a transcript of all evidence relevant to that finding or conclusion.” Dismissal
No. 11‐1440 Page 3
under this rule is appropriate if the absence of a transcript precludes meaningful review,
Morsich v. United States,
653 F.3d 522, 529 (7th Cir. 2011), even when an appellant is
proceeding pro se, see Woods v. Thieret,
5 F.3d 244, 245–46 (7th Cir. 1993). Although we
could direct Todd to supplement the record, see FED. R. APP. P. 10(e); RK Co. v. See,
622 F.3d
846, 853 (7th Cir. 2010), we decline to do so because Todd has not challenged or even
discussed the magistrate judge’s finding that he admitted conveying his agreement to the
settlement. That admission defeated Todd’s opposition to the motion to enforce the
settlement; it does not matter if he harbored a different intention because, under Illinois
law, contract formation “‘depends on what the parties express to each other and to the
world, not on what they keep to themselves.’” Newkirk v. Vill. of Steiger,
536 F.3d 771, 774
(7th Cir. 2008) (quoting Skycom Corp. v. Telstar Corp.,
813 F.2d 810, 815 (7th Cir. 1987)). We
thus dismiss the appeal.
Kohl’s asks us to sanction Todd for filing a frivolous appeal, but the company’s
lawyers have failed to submit the “separately filed motion” necessary for us to consider
that request. See FED. R. APP. P. 38; Matrix IV, Inc. v. Am. Nat. Bank & Trust Co. of Chi.,
649
F.3d 539, 553 (7th Cir. 2011); Greviskes v. Univs. Research Ass’n, Inc.,
417 F.3d 752, 761 (7th
Cir. 2005). Additionally, Kohl’s is on shaky ground demanding sanctions. The company
asserts that Todd’s pro se brief fails to meet several requirements of Federal Rule of
Appellate Procedure 28(a), yet, just like Todd, Kohl’s failed to obtain a transcript of the
evidentiary hearing. Throughout its appellate brief Kohl’s recounts the critical “facts,”
including Todd’s admissions at the evidentiary hearing, not by citing to a transcript of the
hearing as required by subsections (a)(7) and (b) of Rule 28, but by citing what is said in the
magistrate judge’s decision. That decision is the subject of this appeal; it is not a record of
what transpired at the evidentiary hearing. Todd’s appeal may be frivolous, but we cannot
make that determination without the transcript that neither party provided.
DISMISSED.
