Zilberstein, Elizabe v. Kendall College

NONPRECEDENTIAL DISPOSITION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 July 7, 2008*
Decided July 7, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 07-1932
ELIZABETH ZILBERSTEIN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 04 C 3777
KENDALL COLLEGE,
Defendant-Appellee. John W. Darrah,
Judge.
O RD ER
Elizabeth Zilberstein su ed Ken d all College, claim in g th at it fired h er based on her
sex, national origin, and age. After three years of wrangling in the district court—including
the recruitment and then withdrawal of two lawyers to represent Zilberstein—the parties
orally agreed to a settlement at a conference overseen by a magistrate judge. At the close of
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
No. 07-1932 Page 2
the conference the parties went on the record and Zilberstein confirmed that she
understood the general terms of the agreement: in exchange for $4,500, she would dismiss
her suit with prejudice, release any other claims, keep the terms of the settlement
confidential, and not be eligible for reinstatement.
After the conference, Kendall’s lawyer drafted a written settlement agreement, but
Zilberstein refused to sign. She told the magistrate judge that she was concerned that the
agreement would prevent a former supervisor at Kendall from giving anything more
positive than a neutral reference and that the agreement barred her from talking to a
mental health care provider about her employment at Kendall. Kendall drafted a revised
agreement in an attempt to meet Zilberstein’s concerns, but she again refused to sign.
When Kendall moved to enforce the settlement agreement, Zilberstein added a new
objection to the agreement, namely that it had been based on a mistake. She explained that
during the settlement conference she had been informed that if she pursued her claim, she
would not be allowed to use the notes she had taken during her employment. Zilberstein
did not tell the district court who so informed her, but on appeal she claims that it was the
magistrate judge. In any event, Zilberstein explained that her decision to renege on the oral
agreement was based on later advice from an attorney that she could, in fact, use her notes
in any litigation. Without holding a hearing, the district court granted Kendall’s motion to
enforce the settlement agreement. It characterized Zilberstein’s claim as one of unilateral
mistake and rejected it based on a finding that because Zilberstein knew herself to have
limited legal expertise, she bore the risk of a mistake of law. See R ESTATEMENT (SECOND) OF
C ONTRACTS §§ 153, 154.
We review the district court’s enforcement of a settlement agreement for abuse of
discretion. See Dillard v. Starcon Int’l Inc., 483 F.3d 502, 506 (7th Cir. 2007). We apply state
law, in this case that of Illinois, to determine whether there was an agreement. See id. But
because this is an employment discrimination case brought under federal law, any
settlement agreement must also be “knowing and voluntary” under federal law. See id. at
507 & n.4. The district court, which issued its ruling before our opinion in Dillard clarified
the question of how state and federal law are to be applied, analyzed the agreement under
state law only. It found the agreement valid because there was an offer, acceptance, and
meeting of the minds. That is a correct application of Illinois law, see id. at 507, and based
on the transcript made at the conclusion of the settlement conference, we hold that the
court’s finding was not an abuse of discretion. It was error for the district court to use the
Restatement’s test for unilateral mistake since Illinois law applies a slightly different test,
see, e.g. Cameron v. Bogusz, 711 N.E.2d 1194, 1198 (Ill. App. Ct. 1999), but that error is
immaterial because, under Illinois law, a unilateral mistake never voids an oral settlement
No. 07-1932 Page 3
agreement. Stover v. Mitchell, 45 Ill. 213, 215-16 (1867); Kim v. Alvey, Inc., 749 N.E.2d 368, 378
(Ill. App. Ct. 2001).
After finding that the agreement was valid under Illinois law, the district court
should have applied the “knowing and voluntary” test required by federal employment
law. Dillard, 483 F.3d at 507. Applying the test ourselves, see Riley v. Am. Family Mut. Ins.
Co., 881 F.2d 368, 373 (7th Cir. 1989), we hold that Zilberstein did not produce enough
evidence to show that her assent was not knowing and voluntary. See Pierce v. Atchison
Topeka & Santa Fe Ry. Co., 110 F.3d 431, 437-38 (7th Cir. 1997) (holding that plaintiff has
burden of production over question whether agreement was knowing and voluntary).
Although Zilberstein has argued before this court that her assent was based on defective
advice from the magistrate judge, she told the district court only the following: “I was
informed that I would not be able to use my notes, document [sic] to defend my case.” She
failed to elaborate on this vague assertion, and she failed to provide any evidence in
support of it. See Tibbs v. City of Chicago, 469 F.3d 661, 663 n.2 (7th Cir. 2006) (mere
allegations are not “evidence”). Zilberstein’s claim that her assent was based on a mistake
is in the right ballpark to make an argument that it was not knowing and voluntary, see
Riley, 881 F.2d at 373 (defining “knowing” as “done voluntarily and purposely, and not
because of a mistake or accident”), but because she did not carry her burden of producing
evidence to prove it, see Pierce, 100 F.3d at 437-38, we affirm. Finally, because the district
court did not abuse its discretion in enforcing the settlement agreement, the other
arguments that Zilberstein raises in her brief are moot.
AFFIRMED.