James Cyrus v. Univ. of Toledo

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0141n.06
No. 20-3913
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Apr 01, 2022
DEBORAH S. HUNT, Clerk
JAMES CYRUS, )
)
Plaintiff-Appellee,
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v.
) COURT FOR THE NORTHERN
UNIVERSITY OF TOLEDO, et al., ) DISTRICT OF OHIO
)
Defendants, )
OPINION
)
OPPORTUNITIES FOR OHIOANS WITH )
DISABILITIES, BUREAU OF SERVICES )
FOR THE VISUALLY IMPAIRED, )
Defendant-Appellant. )
)
Before: CLAY, DONALD, and NALBANDIAN, Circuit Judges.
CLAY, J., delivered the opinion of the court in which DONALD, J., joined.
NALBANDIAN, J. (pp. 18–27), delivered a separate dissenting opinion.
CLAY, Circuit Judge. Defendant Opportunities for Ohioans with Disabilities (“OOD”),
Bureau of Services for the Visually Impaired (“BSVI”), appeals from the district court’s grant of
Plaintiff James Cyrus’ motion to enforce the settlement agreement, in this case arising under the
Randolph-Sheppard Act (“RSA”), 20 U.S.C. § 107, et seq, and Ohio’s state equivalent, Ohio
Admin. Code 3304:1-21-01. For the reasons set forth below, we AFFIRM the district court’s
order enforcing the settlement agreement.
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I. BACKGROUND
A. Factual Background
Congress enacted the RSA in 1936 to “provid[e] blind persons with remunerative
employment[.]” 20 U.S.C. § 107(a). It thus created a statutory framework for “blind persons
licensed under the [act] . . . to operate vending facilities on any Federal property.”1 Id. The act
divides responsibility between state and federal agencies and designates a state licensing agency
(“SLA”) “to issue licenses to blind persons who are citizens of the United States for the operating
of vending facilities on Federal and other property in such State for the vending of newspapers,
periodicals, confections, tobacco products, foods, beverages, and other articles or services
dispensed automatically or manually and prepared on or off the premises[.]” 20 U.S.C.
§ 107a(a)(5). Ohio’s statutory equivalent of the RSA is the so-called “mini-RSA.” State v. United
States, 986 F.3d 618, 621 (6th Cir. 2021). Ohio’s mini-RSA extends priority to blind vendors on
all in-state governmental property, which includes the University of Toledo Health Science
Campus (“University;” “Health Science Campus”).
Plaintiff James Cyrus is a licensed blind vendor in the Business Enterprise Program of
BSVI, a division of OOD. Since 1993, Cyrus has operated various vending machines and grab-
and-go food and beverage kiosks at the Health Science Campus under the RSA and Ohio’s mini-
RSA.
1. The Parties’ Contracts
The Bureau-Grantor Agreement and the Operator Agreement govern the parties’
relationships. In 1993, OOD and the Health Science Campus entered into an initial Grantor
1
The statute defines a “vending facility” as “automatic vending machines, cafeterias, snack
bars, cart services, shelters, counters, and such other appropriate auxiliary equipment as the
Secretary may by regulation prescribe[.]” 20 U.S.C. § 107e(7).
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Agreement; an additional Grantor Agreement was executed in June 2018 (“2018 Grantor
Agreement”). Under the 2018 Grantor Agreement, a “licensed blind vendor,” i.e., Cyrus, was
granted “the exclusive right to operate a combination coffee kiosk and sandwich stand[.]” (Grantor
Agreement, Ex. B, R. 2-1, PageID # 42). The Grantor Agreement obligates the signatories
(and, derivatively, Cyrus2) to perform specific duties. For example, BSVI is required to “provide
[to the blind vendor] any necessary equipment, initial supplies, and other services necessary[.]”
(Grantor Agreement, Ex. B, R. 2-1, PageID # 42). Likewise, BSVI is also required to make sure
that the blind vendor “offers a variety of coffee, coffee drinks, smoothies, tea, sandwiches, and
other food products and provides choices of bread, meats, cheeses[,] and toppings for customizable
sandwich options.” (Id. at PageID # 43). While the University is not responsible for maintenance
or repair of BSVI-owned equipment, it agreed to “[e]nsure that all food storage space can be locked
and/or appropriately secured by OOD/BSVI’s Vendor to prevent tampering or theft.” (Id. at
PageID # 45). The parties shared a “[j]oint[]” obligation “to maintain the security of the premises.”
(Id. at PageID # 46).
The other relevant contract is the Operator Agreement. Ohio Admin. Code 3304:1-21-
01(G)–(H). Cyrus entered into a 1993 Operator’s Agreement with BSVI; the contract assigned
Cyrus Facility #304, which includes multiple vending sites, including a kiosk known as Market
Café, on the Health Science Campus.3 A 2010 Operator Agreement superseded the 1993 version
and remains in effect.
2
At the district court, the parties disagreed as to whether Cyrus was an intended beneficiary
or an incidental beneficiary to the Grantor Agreement. This question is not argued on appeal.
3
Consistent with the mini-RSA, Cyrus’ compensation is derived from the net profits. (Ex.
A, R. 2-1, PageID # 37).
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2. Issues Arise
The long-standing relationship between Cyrus, the University, and OOD soured once
Cyrus expanded his food-services operation to include a catering component. The Grantor
Agreement does not directly mention catering services, but it envisions “delivery services.”
(Grantor Agreement, Ex. B, R. 2-1, PageID # 43). Even though the agreement itself does not
specify catering, Cyrus asserts that University personnel and BSVI representatives assured him
that the Grantor Agreements posed no barrier to him expanding his services with a catering
component. In reliance on these representations, Cyrus avers that he purchased University-
approved catering equipment, invested personal financial resources, and hired employees,
including an executive chef, a sous-chef, and an operations manager. Soon after catering
operations commenced, the University protested, contending that the parties’ contracts did not
contemplate catering.4 The University food service employees’ union filed a grievance and agreed
with the University that the pre-existing collective bargaining agreement prevented Cyrus from
engaging in catering activities. Frustrated with the union’s position, Cyrus filed suit and sought
injunctive relief from the district court to continue the catering operations.
Separately, at some point in early 2019, Cyrus and his staff noticed missing inventory from
the unlocked storage area used by Cyrus on the Health Science Campus. Consistent with its
statutory duty under the mini-RSA, OOD provided Cyrus with an initial inventory for the kiosk in
July 2018. Ohio Admin. Code 3304:1-21-05(C). This inventory was stored in the University’s
Mumford Library basement, adjacent to the food preparation area. The storage space had a pull-
down metal security partition; however, the University had not installed a hasp to accommodate a
4
The University of Toledo runs its own catering operation, called the Food and Nutrition
Services. (Catering Policy, Ex. A, R. 12-1).
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padlock. Because there were no active security cameras, the storage area remained unlocked and
unwatched.
Cyrus attests that he has been instructed over the years that absent an emergency, a vendor
should not contact the police directly about vending operations but should go through OOD’s local
representative. Accordingly, as indicated below, beginning at least in February 2019, Cyrus
notified Lynette Hustwick, OOD’s local representative, of the missing inventory and the lack of
security:
February 1, 2019: Lyn, When are we going to be able to access the security camera’s
by the coffee kiosk? Amy is reporting that there are a number of items that are showing
up missing.
May 1, 2019: Lyn, We are still seeing a large amount of theft from the Market Café.
Deena the manager is reporting whole bottle of syrups are waking from upstairs and
over the weekend the staffs tip money was stolen from the Market Café. It look like
bags of coffee are being stolen as well. I not sure if they are being taken from
downstairs or from upstairs at this point . . . Our food costs/Starbucks inventory costs
are running well above what it should be. The matter of theft and security cameras
need to be addressed.
May 5, 2019: Hi Lyn; Theft has been reported again and again to both UT and [the
Bureau] . . . The clear attitude that I have gotten from both UT and [the Bureau] about
theft, is at best total indifference . . . What immediate steps will UT and BEP be taking
to help in this matter?
June 14, 2019: Hi Lyn; FYI; we had Starbucks deliver a pallet of product yesterday and
we had to order another pallet for delivery next week. Do we have a date certain on
securing the storage area yet?
August 22, 2019: Hi Lyn; We are still seeing stuff missing in the large storage room. David
is reporting that there is at least (150 five hours energy drinks missing from the large
storage room this morning. They are stored right behind the cages that we have the
Starbucks inventory stored.
(Pl.’s Br. at 6–7 (quoting Mot. to Enforce Settlement Agreement, R. 41-1, PageID ## 572–76)
(verbatim e-mail communications)). A hasp was eventually installed to secure the inventory
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storage area on July 17, 2019. After the installation, Cyrus reports that the loss of missing
inventory came to an end.5
B. Procedural History
On August 2, 2019, Cyrus filed his complaint for injunctive relief and a motion for a
temporary restraining order (“TRO”) against Defendants: (1) Sharon Gaber, the President of the
University of Toledo; (2) the University of Toledo; (3) Kevin Miller, Director of OOD; (4) Gregory
Dormer, Director of the BSVI; and (5) the BSVI, a component of OOD. Defendants opposed the
TRO. Defendants Miller, Dormer, OOD, and BSVI (i.e., all Defendants other than Gaber) filed a
joint response in opposition, contending that the district court lacked subject-matter jurisdiction,
that Cyrus had failed to exhaust administrative remedies, and that the request for injunctive relief
should be denied on the merits. Separately, Defendant Gaber and the University of Toledo filed
an opposition to the motion for a TRO, advancing similar defenses.
On August 20, 2021, Cyrus filed his amended complaint for injunctive relief against the
University of Toledo, BSVI/OOD, and American Federal of State, County, and Municipal
Employees (“AFL-CIO”) Local 2415. He asked the district court to enjoin Defendants from
preventing Cyrus from engaging in catering activities through the kiosk. The district court
postponed the August 7, 2019 hearing on the motion for a TRO so the parties could discuss a
settlement, following which, all defendants other than Defendant OOD were dismissed.
1. The Settlement Agreement
The parties engaged in settlement negotiations on September 23, 2019, which ostensibly
ended in a mutual agreement between OOD and Cyrus. Matthew Lampke, Chief Counsel for
5
However, Cyrus notes, beverage items were noticed to be missing in August 2019, i.e.,
after the hasp was installed. Cyrus determined that the theft occurred prior to the installation of
the hasp but was not detected because the box was in a concealed location, hidden from view.
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OOD, recited into the record the settlement agreement. The parties agreed to four principal terms,
summarized below.
First, the parties agreed that Cyrus would discontinue catering services but offer an
expanded menu at the kiosk and that OOD would supply a new convection oven:
As between OOD and UT, the parties have agreed to return to the previous business
model under the Bureau Grantor Agreement. This would include removing food
delivery, but it would include such items as pre-made sandwiches, single servings,
made-to-order items, [D]anishes, cookies, donuts, and grab-to-go. This is subject to
the health department inspection[,] and that no hood would need to be installed in order
to return to the previous business model.
(Tr., R. 33, PageID # 365).
Second, the parties agreed that OOD would give Cyrus an inventory credit adjustment for
unused catering items:
As between OOD and Mr. Cyrus, the parties have agreed to conduct an inventory of
the open food that was obtained for the food delivery catering service, and will conduct
a count out/price out in the next week or two, and pay the inventory up to $5,000.
(Id.).
Third, and the basis of the appeal, the parties agreed that OOD would give an inventory
credit adjustment for Starbucks products stolen from the Market Café if Cyrus provided “adequate
documentation:”
With regards to OOD and Mr. Cyrus and the claim of lost inventory of up to $15,000,
on Mr. Cyrus’ supplying of adequate documentation, which would include police
reports, receipts and pricing, OOD would pay up to $15,0006 for the loss [of] inventory,
subject to [Ohio Vendors Representative Committee (“OVRC”)] active participation.
And that would -- Mr. Cyrus would provide those receipts within the next week or so,
and then OOD would seek out the active participation with OVRC thereafter, and make
6
On November 15, 2019, about three months after the settlement negotiations concluded,
the Ohio Vendors Representative Committee voted to provide up to $15,000 for lost product to
settle the lawsuit.
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payment on after that active participation had concluded, on agreement on the adequate
documentation.
(Id. at PageID # 366).
Fourth, Cyrus agreed to dismiss this suit and his grievance with prejudice:
And, finally, with regards to the entire lawsuit, Mr. Cyrus would agree to dismiss this
suit and his grievance with prejudice, the grievance being against OOD for failure to
advocate, and to release all causes of action against any party to this action arising from
the coffee kiosk at the UT Medical College Campus.
(Id. at PageID ## 365–66). After a ten-minute, off-the-record discussion, Lampke clarified:
Additionally, to clarify that UT and OOD will clarify the [Bureau-Grantor Agreement]
itself and negotiate the terms. The terms will not include an all-inclusive made-to-
order for all items, but may include certain items that would be made-to-order.
The discussion of the lost inventory up to $15,000 will be a credit to Mr. Cyrus’
inventory and not a payment to him.
And, finally, the release discussed does not include any other pending actions or
grievances between Cyrus and OOD, other than what was discussed. And just to
clarify, what was discussed was this pending lawsuit and the grievance filed regarding
the underlying matter in this lawsuit for failure to advocate on the coffee kiosk.
(Id. at PageID # 367). Another off-the-record discussion led to the following clarification:
With respect to the inventory for which Mr. Cyrus will be credited, there will be
documentations available to -- it will be supplied to OOD, and finalization of the
settlement will be subject to agreement with respect to Mr. Cyrus -- between Mr. Cyrus
and OOD with respect to that issue.
(Id. at PageID # 369).
2. Post-Settlement Disagreements
After the settlement agreement, Cyrus informed OOD that he could not produce police
reports documenting that he (or his employees) ever called the police to report the theft of the
Starbucks products. At the district court’s behest, OOD asked the campus police department to
search its telephone logs and incident reports. That search yielded just one police report of loose
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relevance, memorializing an employee’s report of $40 missing from a tip-jar.7 However, other
documentation was forthcoming; Cyrus provided OOD with documentation establishing the value
of the lost inventory: (1) a list of items Cyrus purchased to replace missing coffee; (2) the written
communications, excerpted above, that Cyrus sent Hustwick regarding the missing inventory; and
(3) copies of all related receipts, which amounted to $7,118.79.
3. Motion to Enforce Settlement Agreement
On June 4, 2020, Cyrus had not yet received an inventory credit and thus filed a motion to
enforce settlement seeking a $7,118.79 credit adjustment from Defendant OOD for the inventory
loss. The parties waived a hearing and discovery related to the disputed issues. The district court
granted Cyrus’ motion on July 28, 2020, finding the settlement agreement as a whole and the term
“adequate documentation” unambiguous, and the agreement did not require Cyrus to provide
police reports. OOD appeals that order and asks this Court to reverse the district court’s judgment
and dismiss this case with prejudice.
II. DISCUSSION
A. Standard of Review
“This Court reviews for clear error the district court’s factual determination that the parties
had agreed to settlement terms; however, we review the district court’s decision to grant a motion
to enforce the settlement based on its preliminary factual finding for an abuse of
discretion.” RE/MAX Int’l, Inc. v. Realty One, Inc., 271 F.3d 633, 645 (6th Cir. 2001) (citing
7
Why there are no additional police reports is not entirely clear. It is unlikely that the
University of Toledo Policy Department simply failed to create a report (indeed, the defense points
out that all police calls generate incident or police reports in a record-management system). What
seems more likely is that Cyrus informed OOD of the thefts and incorrectly assumed that OOD
informed University police on his behalf. (Pl.’s Br. at 7 (“Based on what Ms. Hustwick reported
to Cyrus, and based on his own observations, Ms. Hustwick contacted Hospital Security on
multiple occasions following Cyrus’ reports of theft.”))
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another source). “A district court abuses its discretion when it applies the incorrect legal standard,
misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” United
States v. Fowler, 819 F.3d 298, 303 (6th Cir. 2016) (quoting another source)).
“Because settlement agreements are a type of contract, the formation and enforceability of
a purported settlement agreement are governed by state contract law.” Smith v. ABN AMRO Mortg.
Grp. Inc., 434 F. App’x. 454, 460 (6th Cir. 2011) (citation omitted). “Under Ohio law, ‘a valid
settlement agreement . . . requir[es] a meeting of the minds as well as an offer and
acceptance.’” Id. (quoting Rulli v. Fan Co., 79 Ohio St.3d 374, 683 N.E.2d 337, 338 (1997)).
“Where a contract’s meaning is clear on its face, that meaning controls.” In re AmTrust Fin.
Corp., 694 F.3d 741, 750 (6th Cir. 2012). To determine whether a contract’s meaning is clear on
its face, we “consider the language of the agreement, the context in which that language appears
and other traditional canons of construction.” Prater v. Ohio Educ. Ass’n, 505 F.3d 437, 441 (6th
Cir. 2007). No evidentiary hearing is required where an agreement is clear and unambiguous, and
no issue of fact is present. Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976).
“If, after applying these rules of interpretation, the contract remains ambiguous,” meaning a
contractual provision is subject to two reasonable interpretations, then the parties’ original
understanding of the contract’s terms may be ascertained through extrinsic evidence. Prater, 505
F.3d at 441; Shifrin v. Forest City Enters., Inc., 597 N.E.2d 499, 501 (1992). If disputed material
facts exist, then an evidentiary hearing is generally compulsory. Kukla v. Nat’l Distillers Prods.,
Co., 483 F.2d 619, 622 (6th Cir. 1973).
B. Analysis
Factually, this case is straightforward: OOD argues that Cyrus supplying police reports was
a condition precedent needed before it would issue a credit adjustment. Cyrus disagrees and insists
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that he has complied with the agreed-upon obligation to provide adequate documentation proving
the value of the inventory loss. Recall the relevant part of the agreement states:
With regards to OOD and Mr. Cyrus and the claim of lost inventory of up to $15,000,
on Mr. Cyrus’ supplying of adequate documentation, which would include police
reports, receipts[,] and pricing, OOD would pay up to $15,000 for the loss [of]
inventory, subject to [Ohio Vendors Representative Committee (“OVRC”)] active
participation. And that would -- Mr. Cyrus would provide those receipts within the
next week or so, and then OOD would seek out the active participation with OVRC
thereafter, and make payment on after that active participation had concluded, on
agreement on the adequate documentation.
(Tr., R. 33, PageID # 36). Choppy as this oral agreement is, the district court found the term
“adequate documentation” unambiguous (a finding OOD does not challenge). In particular, the
district court held that all the agreement envisioned was that Cyrus would provide “evidence
sufficient to establish the value of the lost inventory.” (Order, R. 42, PageID # 609). Cyrus did
so when he provided a list of replacement coffee items he purchased, receipts of replaced inventory
amounting to $7,118.79, and e-mail correspondence to OOD regarding the missing inventory.
The basic question is whether the settlement agreement defines “adequate documentation”
to require all three documentary categories (“police reports, receipts[,] and pricing”). The more
nuanced question is whether the list of “police reports, receipts[,] and pricing” functions as a
limitation on the preceding term, “adequate documentation”—and thus, when coupled with the use
of the conjunctive “and,” indicates that each of the three categories of documentation was required.
Alternatively, does the phrase “which would include,” regardless of the subsequent use of the word
“and,” indicate that the list of “police reports, receipts[,] and pricing” are non-exhaustive examples
of “adequate documentation.” The record appears to support the latter interpretation.
A three-pronged approach guides this Court’s analysis. First is a brief discussion of some
relevant legal principles regarding the nature and enforceability of settlement agreements. Second,
to determine whether “police reports” were a required condition precedent to OOD’s performance,
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the settlement agreement transcript is reviewed to understand the full context in which OOD
agreed to provide a credit-inventory adjustment. Third is a contractual interpretation of the
meaning of the following emphasized terms: “Mr. Cyrus’ supplying of adequate documentation,
which would include police reports, receipts[,] and pricing.” (Tr., R. 33, PageID # 366 (emphasis
added)).
1. Legal Principles Concerning Settlement Agreements
This Court has long recognized that district courts retain “broad, inherent authority and
equitable power” to enforce settlement agreements. Bostick Foundry Co. v. Lindberg, Div. of Sola
Basic Indus., Inc., 797 F.2d 280, 282–83 (6th Cir. 1986) (citation omitted). Here, by granting the
motion to enforce the settlement agreement, the district court determined there was an offer,
acceptance, and meeting of the minds and that an enforceable agreement existed, thereby
prompting OOD’s specific performance. Circuit courts are reluctant to disrupt settlement
agreements. For example, the Tenth Circuit would not “derail a settlement agreement expressly
resolving payment, release, and dismissal terms because of alleged disputes over additional terms.”
Gates Corp. v. Bando Chem. Indus., Ltd., 4 F. App’x 676, 686 (10th Cir. 2001). The Eighth Circuit
similarly stated: “The fact that the parties left some details for counsel to work out during later
negotiations cannot be used to abrogate an otherwise valid agreement.” Sheng v. Starkey Labs.,
Inc., 117 F.3d 1081, 1083 (8th Cir. 1997). This is precisely the scenario here. Counsel left some
unspecified details that would need to be ironed out before the case could be dismissed, i.e., the
precise value of the credit adjustment. That OOD is unhappy with the fruits of those subsequent
discussions cannot be used as a basis to rescind a valid settlement agreement.
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2. Context of Agreement to Provide Inventory Credit
On appeal, OOD asserts that the district court abused its discretion by committing clear
error in transforming “police reports” from a required precondition to OOD’s performance into an
optional term. But when reading the settlement agreement transcript in its entirety, we find OOD’s
argument that “police reports” were required specious.
OOD argues it agreed in detrimental reliance on Cyrus’ representation at the mediation that
he would provide all three categories of information to validate his allegations of theft. Contrary
to OOD’s assertion, nothing in the settlement agreement indicates that the parties’ discussion of
“police reports” was aimed at substantiating that a theft occurred. OOD contends that Cyrus must
provide at least two police reports in order to prove that a theft occurred; however, the word “theft”
does not even appear in the settlement proceedings transcript (nor, for that matter, do the words
“stolen,” “steal,” or any other synonym indicating improper appropriation). More generally, and
as a normative matter, a police report would not necessarily substantiate a theft. All a police report
does is verify that someone called the police. Some other proof, such as video evidence, might be
required to confirm the theft; but such evidence was not envisioned by the settlement agreement
and was also not possible since the University had not activated the surveillance cameras.
Moreover, a careful review of the settlement agreements indicates the centrality not
specifically of “police reports” but of “receipts” or other documentation. The sentence after the
“police reports, receipts[,] and pricing” sentence is illuminating; it states that Cyrus would
“provide those receipts within the next week or so . . . and [then OOD would] make payment.”
(Tr., R. 33, PageID # 366 (emphasis added)). The word “those” refers to the “police reports,
receipts[,] and pricing.” A plain reading of the agreement strongly suggests that all Cyrus needed
to provide was documentation establishing the value of the lost inventory. Cyrus did so when he
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provided receipts indicating lost inventory of $7,118.79, far less than the agreed-upon ceiling of
$15,000. It would be a bridge too far to argue that Cyrus supplying “police reports,” a term which
appears only once in the settlement agreement, was a mandatory condition to issuing the credit.
It is also unclear from where OOD draws its assertion that Cyrus was required to produce
“police reports that he personally filed with the police to substantiate his claimed losses from
alleged thefts.” (Def.’s Br., R. 12 at 8 (emphasis added)). Nothing in the transcript states that any
police report Cyrus would supply must be those he personally filed. Additionally, OOD argues
that the district court ignores the plain and ordinary meaning of the term “police reports.” Yet the
defense pleadings fail to identify the definition upon which the district court relied; nor does OOD
offer the plain and ordinary meaning of the term (though OOD is correct that the term is
unambiguous).
The purpose of the adequate documentation was to confirm the amount lost; nowhere in
the settlement agreement does OOD appear to dispute that the loss occurred. Cyrus provided
adequate documentation in the form of receipts and e-mails sent to OOD’s local representative
reporting missing inventory. In combination, these documents established the value of the missing
merchandise and fulfilled the bargained-for term of “adequate documentation.”
3. Contractual Interpretation
The remaining discussion is devoted to the contractual interpretation of the phrase “which
would include” and the term “and,” following the term “adequate documentation” in the settlement
agreement. (Tr., R. 33, PageID # 366).
With regards to OOD and Mr. Cyrus and the claim of lost inventory of up to $15,000,
on Mr. Cyrus’ supplying of adequate documentation, which would include police
reports, receipts[,] and pricing, OOD would pay up to $15,000 for the loss inventory,
subject to OVRC active participation. And that would -- Mr. Cyrus would provide
those receipts within the next week or so, and then OOD would seek out the active
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participation with OVRC thereafter, and make payment on after that active
participation had concluded, on agreement on the adequate documentation.
33, PageID # 366 (emphasis added)).
a. Meaning of the Phrase “Which Would Include”
The first interpretive question is the meaning of “include” in the language reading:
“adequate documentation, which would include police reports, receipts[,] and pricing.”
Defendant insists that “‘adequate documentation’ shall include the production of ‘police
reports.’” (Reply Br., ECF No. 19 at 6). This interpretation contorts the settlement agreement too
much. “Include” is inclusionary and a term of expansion rather than limitation. Put differently,
the word “include” ushers in a list of examples of adequate documentation. Nowhere does the
transcript indicate that any one of those categories is required or essential.
Reading the word “include” as introducing a non-exhaustive list of examples is consistent
with Sixth Circuit precedent. Even where a contract contains more mandatory language, such as
“shall include,” the Sixth Circuit finds that the phrase “demonstrates that the list . . . is not
exhaustive.” United States ex rel. Felten v. William Beaumont Hosp., 993 F.3d 428, 434 (6th Cir.
2021) (citing Samantar v. Yousuf, 560 U.S. 305, 317 (2010) (“It is true that use of
the word ‘include’ can signal that the list that follows is meant to be illustrative rather than
exhaustive.”)).
Applying the foregoing to this case, the phrase “which would include police reports,
receipts[,] and pricing” indicates that the list is non-exhaustive and merely introduces examples of
adequate documentation. The settlement agreement reads that if any documentation were adequate
alone, it would be unnecessary to provide additional, duplicative documentation. The use of the
word “include,” in conjunction with the fact that the settlement agreement lacks emphatic
indication that each of the three categories is required, supports affirming the district court’s order.
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b. Meaning of the Word “And”
The use of the word “and” in the settlement agreement’s phrase, “police reports, receipts[,]
and pricing,” does not undermine the preceding analysis. It is true that the general rule is that the
word “and” should be understood in its “‘ordinary’ conjunctive sense.” OfficeMax, 428 F.3d at
589 (citing another source). However, just as well established is that “and” can be either
conjunctive or disjunctive depending on the fuller context. Noell v. Am. Design, Inc., 764 F.2d
827, 833 (11th Cir. 1985) (citation omitted) (“It is an established princip[le] [t]hat the word ‘or’ is
frequently construed to mean ‘and,’ and vice versa, in order to carry out the evident intent of the
parties.”). As the Fifth Circuit artfully put it: “[T]he word ‘and’ is not a word with a single
meaning, for chameleonlike, it takes its color from its surroundings.” Peacock v. Lubbock
Compress Co., 252 F.2d 892, 893 (5th Cir. 1958).
By way of example, the Sixth Circuit has interpreted the word “and” in the disjunctive
when reviewing a telecommunications statute. Officemax, 428 F.3d at 588. That statute defined
“communications services” as “local telephone service, toll telephone service, and teletypewriter
exchange service.” Id. (emphasis added). “And” connoted the disjunctive because those three
communications services were “generally mutually exclusive and because no service exists that
can satisfy all three definitions at once.” Id.
The Eleventh Circuit embraced a similar approach when reviewing a retirement plan under
which an employee forfeited accrued benefits if he were found “guilty of committing theft, fraud
or embezzlement . . . and if he [was] determined to have disclosed or released to third parties the
Employer’s trade secrets.” Noell, 764 F.2d at 829 (emphasis added). “And” was read in the
disjunctive because, if it were given its literal interpretation, then the forfeiture clause would only
be triggered where an employee was first found guilty of theft, fraud, or embezzlement and then
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
later disclosed trade secrets to a third party. Id. at 833 (“It would be unreasonable to conclude that
an employer, who has provided its employees with benefits in excess of those required by law,
would place such an onerous burden on itself with respect to the termination of the benefits.”). So,
even though the policy clearly used the word “and,” the Eleventh Circuit held it to mean that either
a conviction of theft, fraud, or embezzlement or disclosing trade secrets to third parties were alone
sufficient to revoke the accrued benefits.
The rationales animating Officemax and Noell extend to this case. Any one of the three
example categories of adequate documentation, i.e., “police reports, receipts[,] and pricing,” alone
might be sufficient to pinpoint the exact amount of lost inventory. The word “and” in the phrase
“police reports, receipts[,] and pricing” signifies the disjunctive because any three of those
categories could establish what amount, under the agreed-upon ceiling of $15,000, OOD would be
required to credit Cyrus’ inventory.
III. CONCLUSION
For the reasons set forth above, this Court AFFIRMS the judgment of the district court.
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
NALBANDIAN, Circuit Judge, dissenting. I agree with the majority that this case turns
on the interpretation of the settlement agreement. The relevant provision provides that Cyrus
would receive reimbursement for lost inventory on his “supplying of adequate documentation,
which would include police reports, receipts and pricing.” (R. 33, PageID 36.) The question here
is whether this provision required Cyrus to provide “police reports” before he can be reimbursed.
The majority answers no. But the text, context, and Cyrus’s own actions compel the opposite
conclusion. For this reason, I respectfully dissent.
I.
A.
Begin with the text. The main interpretive question centers around what kind of list
“include” introduces. Courts have come out in different ways on this question. Sometimes they
interpret “include” to introduce a non-exhaustive, illustrative list of examples. See In re Hartman,
443 N.E.2d 516, 517 (Ohio 1983); see also Samantar v. Yousuf, 560 U.S. 305, 317 (2010). But at
other times, they interpret it to introduce an exhaustive list to which nothing can be added. See
Bellemar Parts Indus., Inc. v. Tracy, 725 N.E.2d 1132, 1136 (Ohio 2000); see also Premier Health
Care Invs., LLC v. UHS of Anchor, L.P., 849 S.E.2d 441, 450-53 (Ga. 2020) (looking at state and
federal cases); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Text
132-33 (2012) (explaining that while the verb “include” “introduces examples, not an exhaustive
list,” “the courts have not invariably so held”).
Here the majority concludes that “include” introduces an illustrative list. Maj. Op. at 15.
But I think three interpretive clues point to the exhaustive reading. First, the list here contains
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
specific items without a unifying theme, and courts, including the Ohio Supreme Court,1 have
given “include” an exhaustive reading in a similar context. Second, “include” here is modified by
the verb “would,” making it mandatory and not illustrative. Finally, the list is joined by the
conjunctive “and,” which further supports the exhaustive reading. I address each in turn.
Specific List. Take the first interpretive clue, the type of list. When “include” introduces
a specific list, courts tend to read it as being exhaustive. See Tracy, 725 N.E.2d at 1136. And
that’s especially true when the list includes examples of things that are unrelated, without a general
unifying principle. See Dong v. Smithsonian Inst., 125 F.3d 877, 880 (D.C. Cir. 1997). This makes
sense. After all, if the drafters of a document have thought of specific examples, it is likely that
they wanted those examples to be included and others excluded.
Consider these cases. In Tracy, the Ohio Supreme Court was asked to decide whether
“employment services” constitute “things transferred . . . in a manufacturing operation” under the
sales tax exemption statute. 725 N.E.2d at 1136. The statute defined “thing” to “include[] all
transactions included in” three specific subdivisions of the statute. Id. Those subdivisions didn’t
mention “employment services,” and so the court held that employment services weren’t “things
transferred.” Id. In reaching this conclusion, the court explained that the Ohio General Assembly
“chose to include only those three specific service transactions.” Id. It didn’t matter that the list
of specific transactions was introduced by “include.” See id. at 1137 (Stratton, J., dissenting in
part) (arguing that “thing” encompasses “employment services” because “include” introduces “an
illustrative list”). So the Ohio Supreme Court has given “include” an exhaustive reading when it
introduces a specific list of examples.
1
As the majority correctly points out, the agreement is governed by Ohio law. Maj. Op.
at 10.
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
And so has the United States Supreme Court. In Carcieri v. Salazar, the Court read a list
that followed “shall include” to be exhaustive because the categories were “discrete.” 555 U.S.
379, 391-92 (2009). The question was whether a specific tribe fell within the definition of “Indian”
under the Indian Reorganization Act. Id. at 382. Under the statute, “Indian . . . shall include” one
of three categories.2 Id. at 388 (quoting 25 U.S.C. § 465). The government argued that by using
“shall include,” Congress did not mean to exhaust all definitions but left a gap for the government
to define. Id. at 391. But the Court disagreed. Id. It found that Congress “explicitly and
comprehensively defined the term” because it “includ[ed] only three discrete definitions.” Id. at
392. And it further explained that if Congress had meant for “include” to “encompass” other tribes
than the ones listed, then it “would have not needed to enact these additional statutory references
to specific Tribes.” Id. In other words, when Congress uses a list of specific examples to define
a term, then the list is exhaustive—even when introduced by “include.”
And the D.C. Circuit has also read a specific list that follows “include” as exhaustive. See
Dong, 125 F.3d at 880. The court was asked to consider if the Smithsonian was covered by the
definition of “agency” under the Privacy Act. Id. at 877. Under the statute, “agency . . . includes
any executive department, military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch . . . or any independent regulatory
agency.” Id. at 878 (quoting 5 U.S.C. § 552(f)). The plaintiff argued that because the statute uses
the word “include,” the court should read it as being non-exhaustive. Id. at 880. But the D.C.
Circuit disagreed. Id. It recognized that “‘includes’ normally does not introduce an exhaustive
2
The provision stated in full: “The term ‘Indian’ as used in this Act shall include all persons
of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction,
and all persons who are descendants of such members who were, on June 1, 1934, residing within
the present boundaries of any Indian reservation, and shall further include all other persons of one-
half or more Indian blood . . . .” 25 U.S.C. § 465.
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
list,” but it found that the specific categories do not have a “general principle” unifying them, so
it didn’t give include its illustrative reading. Id. So when the list following “include” is composed
of different items, without a general unifying principle, then the list is meant to be exhaustive and
not illustrative.
So too here. The terms “police reports, receipts, and pricing” are all specific categories
without a general principle unifying them. Receipts show whether Cyrus bought the items that he
alleges were stolen. As for pricing, those go to how much the missing items cost. And finally,
police reports provide evidence that the items were, in fact, stolen.3 The three are specific
categories that prove different things about the alleged theft. The parties thought of these
examples, agreed to them, and should be bound by them.4
Would Include. A second interpretive clue further supports an exhaustive reading. In the
relevant provision, the word “include” is modified by the verb “would.” (R. 33, Settlement Tr.,
PageID 366.) So we should interpret the phrase “would include” as a whole. After all, in Ohio,
courts interpreting a contract “may not ignore the existence of any word or phrase.” State ex rel.
Harris v. Rubino, 119 N.E. 3d 1238, 1245 (Ohio 2018) (emphasis added). Rather, they should
give every word its “ordinary meaning” and avoid “rewriting the contractual agreement of the
parties.” Miller v. Marrocco, 504 N.E.2d 67, 67 (Ohio 1986).
3
The majority seems to think that a police report only proves that someone filed a report
with the police. Maj. Op. at 13. But I disagree. When an item of value is stolen, it is typical to
report it to the police. And, generally, false reporting is a separate crime. See Ohio Rev. Code §
2917.32. So it is reasonable to think that OOD would have wanted police reports as evidence to
confirm the alleged thefts. Admittedly, police reports might not be the best way to prove that a
theft has actually occurred. But the parties thought they were a good enough measure, and we
shouldn’t substitute our own judgment for theirs.
4
This is especially the case here because the terms of the settlement agreement were recited
into the record. So the parties knew of the terms. This was not a case in which these terms were
part of boilerplate language in the contract.
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
So what kind of list does “would include” introduce? An exhaustive one where every item
is required. This is because the term “would” is the past tense of “will.” 20 The Oxford English
Dictionary, 344 (2d ed. 1989). And “will” denotes certainty. See id. at 344 (“An inclination to do
something, as contrasted with power or opportunity.”); Merriam-Webster’s Collegiate Dictionary
1433 (11th ed. 2014) (defining “will” as a verb “used to express capability or sufficiency”).
To see this, compare “would” and “will” with “could” and “can.” If I say, “I will visit Paris
next month” this means that I, in fact, will visit Paris next month. But if I say, “I can visit Paris
next month,” then I am only expressing a possibility of visiting, not that I will visit. The same is
true for “in my prime, I would run five miles a day” compared with “in my prime, I could run five
miles a day.” In the second example, it is not clear if the speaker actually ran five miles a day;
instead, he seems to be expressing only his ability to do so. Thus, the words “would” and “will”
represent certainty, where “could” and “can” represent possibility.
And our Court agrees. We have noted the difference between “would” and “could,” saying
that choosing to use “the term ‘would’ in place of ‘could,’ appears rather clearly to have required
a greater degree of certainty.” Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 131 (6th Cir.
1979). Indeed, we explicitly rejected a reading of a statute that “would substitute ‘could’ for
‘would.’” See Ky. Res. Council, Inc. v. Env’t Protection Agency, 467 F.3d 986, 994 (6th Cir.
2006). So a court should respect the drafter’s choice in using “would” instead of “could.”
Here the parties made that choice. They agreed that adequate documentation “would
include” police reports. They did not say, “adequate documentation that could include police
reports,” which might have made “police reports” only an example in an illustrative list. Instead,
they deliberately chose to use the words “would include,” and we shouldn’t read “could” into the
agreement when the parties chose to use “would.”
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
For its part, the majority relies on a recent case from our Court to support its broad reading.
See United States ex rel. Felton v. William Beaumont Hosp., 993 F.3d 428, 434 (6th Cir. 2021).
There, we noted that a list following “shall include” was “not exhaustive.” Id. And this would
suggest that “would include” also introduces a non-exhaustive list. But Felton is distinguishable.
The Felton court was emphasizing the broad nature of the relief provision of the False
Claims Act. See 993 F.3d at 434. That provision provides that “[r]elief . . . shall include
reinstatement . . . [two] times the amount of back pay, interest on the back pay, and compensation
for any special damages . . . .” 31 U.S.C. § 3730(h)(2). The court interpreted “shall include” to
say that the listed remedies were definitely included but that other remedies were also available.
Felton, 993 F.3d at 434. Importantly, the analysis didn’t turn on “shall include” alone. Id. Instead,
the court also looked to that phrase “in combination with” a separate provision entitling an
employee broadly to “all relief necessary.” Id.
Thus, in light of the surrounding language and context, the Felton provision listed optional
remedies that the plaintiff may or may not ask for but that had to be available. Here, the mandatory
language, in context, introduces requirements that Cyrus must meet before he can be reimbursed.
The conjunctive. Finally, one more clue makes this list exhaustive: The use of the word
“and.” Because the settlement agreement joins “police reports,” “receipts,” and “pricing” with the
conjunctive “and,” the parties intended for “would include” to join a list of required items. Had
the settlement agreement used the disjunctive “or,” then there would be a strong argument that the
list is meant to provide examples and Cyrus would not need to submit every item on the list. After
all, the word “or” can show that any one item on the list is enough by itself to provide adequate
documentation. See Stone v. Wingo, 416 F.2d 857, 865 (6th Cir. 1969) (noting that when a statute
is written in the disjunctive, “proof of any one” term “is sufficient”). But the agreement uses the
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
conjunctive “and,” so all three items are required. See Scalia & Garner, supra, at 116 (“With the
conjunctive list, all three things are required . . . .”); cf. United States v. Estrada, 876 F.3d 885,
887 (6th Cir. 2017) (“Because the requirements are conjunctive, the alien must satisfy all three
prongs.”).
The majority tells us that “and” can sometimes be used in the disjunctive, to mean “or.”
That is true in some contexts, but not as a general rule. See Officemax, Inc. v. United States, 428
F.3d 583, 588 (6th Cir. 2005) (explaining that Congress sometimes uses “and” in the disjunctive).
In fact, this Court, after looking at dictionary definitions, legal usage guides, and case law,
concluded that “‘and’ usually does not mean ‘or.’” Id. at 589. And Ohio courts too usually
interpret “and” in the conjunctive. Clagg v. Baycliffs Corp., 695 N.E.2d 728, 780 (Ohio 1998).
So when does “and” not actually mean “and”? When it would give “an incoherent reading
of a statute.” Officemax, 428 F.3d at 589; cf. Scalia & Garner, supra, at 234 (“A provision may be
either disregarded or judicially corrected as an error . . . if failing to do so would result in a
disposition that no reasonable person could approve.”). But here, reading “and” in its natural
conjunctive sense doesn’t lead to any incoherence or absurdity. There is nothing incoherent about
OOD wanting police reports along with receipts and pricing before reimbursing Cyrus. As already
stated, police reports show whether the items were stolen, and this is different from what the other
two items prove. Thus, because the agreement uses “and” to link the list of documentation
together, that list is exhaustive, and each is required.
In sum, the text of the settlement agreement required Cyrus to provide police reports before
OOD would reimburse him.
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
B.
Next, turn to the broader context of the agreement. Other provisions of the agreement
support the reading that the phrase “would include” introduces a list of required items. That’s
because when the parties wanted the term “include” to introduce a list of examples, they knew how
to provide for it.
For example, in the first term of the agreement, the parties used “would include” twice.
They agreed to return to their previous business model, saying “[t]his would include removing
food delivery, but it would include such items as pre-made sandwiches, single service, made-to-
order items, danishes, cookies, donuts, and grab-to-go.” (R. 33, Tr., PageID 365 (emphasis
added.)) In one sentence, the parties used “would include” in an exhaustive sense and an
illustrative sense. In the first instance, “would include” introduces only one item, the removing of
food delivery. It is hard to see how this can be merely illustrative. Compare this with the second
usage, where “such as” follows “would include.” Generally, “such as is used to introduce
examples of a class” as in “for example.” 17 The Oxford English Dictionary 102 (2d ed. 1989);
see also Maple Drive Farms Ltd. P’ship v. Vilsack, 781 F.3d 837, 853 (6th Cir. 2015) (explaining
that “such as” introduces a non-exhaustive list and means “of this kind” (quoting Bryan A. Garner,
A Dictionary of Modern Legal Usage 849 (2d ed. 1995))). So when the parties wanted “would
include” to be illustrative, they modified it to indicate their intent.
Another provision is also illustrative. The parties agreed that there will be further
negotiations over the Bureau Grantor Agreement terms which “will not include an all-inclusive
made-to-order for all items but, may include certain items that would be made-to-order.” (R. 33,
PageID 367 (emphasis added).) Here too the parties knew how to give “include” its non-
exhaustive reading by adding “may” before it. And as this Court has noted, “[t]he term ‘may’ . . .
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
indicate[s] a certain measure of likelihood or possibility.” Old Life Ins. Co. of Am. v. Garcia,
411 F.3d 605 (6th Cir. 2005).
Thus, the parties knew how to make the term “include” introduce an illustrative list. For
the relevant provision that contains “police reports,” they used “would include” instead of a
different formulation. They did not use “may include,” nor did they use “such as” to modify it.
And as the Supreme Court has explained, it is “a general rule” that “use of certain language in one
part and different language in another can indicate that different meanings were intended.”
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 155 (2013) (cleaned up). This suggests that
when the parties didn’t modify “would include,” they meant the list that follows to be exhaustive.
See Scalia & Garner, supra, 107 (“The expression of one thing implies the exclusion of
others . . . .”). Thus I would read the language to mean what the parties intended it to mean and
would find that “would include” introduces an exhaustive list.
C.
Lastly, consider Cyrus’s own conduct. Even if one rejects the reading of the agreement
that requires Cyrus to provide police reports, the above analysis at least shows that this reading is
a reasonable one. See Premier Health, 849 S.E.2d at 448 (explaining that “there is more than one
potentially plausible interpretation of ‘include’”). And a contract that has more than one
reasonable reading is ambiguous. Alexander Local Sch. Dist. Bd. of Educ. v. Village of Albandy,
101 N.E.3d 21, 34 (Ohio 4th Dist. 2017). When faced with ambiguous contracts, Ohio courts can
look to extrinsic evidence, which includes “any acts by the parties that demonstrate the
construction they gave to their agreement.” Id. And "[e]ven post-contract formation conduct” is
“relevant in construing ambiguous contract language.” William Powell Co. v. Onebeacon Ins. Co.,
75 N.E.3d 909, 917 (Ohio 1st Dist. 2016).
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No. 20-3913, Cyrus v. Univ. of Toledo, et al.
Here Cyrus’s actions show how he understood the contract. Cyrus did in fact submit a
police report. But that report had nothing to do with substantiating the theft of the items that he
wanted reimbursement for. Instead, it was a report about money that was stolen from a tip jar. So
it wasn’t “adequate documentation” for purposes of the reimbursement provision. But the
submission of this police report strongly suggests that Cyrus understood the agreement as requiring
him to submit police reports. After all, why else would he submit a police report that had nothing
to do with the items he wanted reimbursement for? Thus, even if the settlement provision is
ambiguous, which it’s not, Cyrus’s conduct favors resolving the ambiguity against him.
II.
The text, context, and Cyrus’s own conduct all compel the conclusion that he needed to
submit police reports. Because he has not provided adequate police reports, I respectfully dissent.
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