Raymond Nicklin v. WILLIAM J. HENDERSON, Postmaster General, United States Postal Service

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0450P (6th Cir.)
File Name: 03a0450p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RAYMOND NICKLIN,
Plaintiff-Appellant,
v.
WILLIAM J. HENDERSON,
Postmaster General, United
States Postal Service,
Defendant-Appellee.
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No. 02-5183
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 99-00443—Karl S. Forester, Chief District Judge.
Argued: September 18, 2003
Decided and Filed: December 19, 2003
Before: SILER, BATCHELDER, and COOK, Circuit
Judges.
_________________
COUNSEL
ARGUED: James M. Morris, MORRIS & MORRIS,
Lexington, Kentucky, for Appellant. Thomas Lee Gentry,
ASSISTANT UNITED STATES ATTORNEY, Lexington,
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Kentucky, for Appellee. ON BRIEF: James M. Morris,
Sharon K. Morris, MORRIS & MORRIS, Lexington,
Kentucky, for Appellant. Thomas Lee Gentry, ASSISTANT
UNITED STATES ATTORNEY, Lexington, Kentucky, for
Appellee.
_________________
OPINION
_________________
SILER, Circuit Judge. Plaintiff Raymond Nicklin petitions
this court for review of his disability discrimination action
against the United States Postal Service (“USPS”). The
district court denied Nicklin enforcement of a favorable final
order of the EEOC Office of Federal Operations (“OFO”). It
found that a settlement agreement, entered into before the
OFO order, barred Nicklin’s discrimination claim. Nicklin
argues that the USPS waived the settlement issue by not
raising it at the OFO level, and, therefore, the district court
should have simply enforced the order. Because we find the
settlement agreement provides a separate legal bar at the
district court level, regardless of what happened at the OFO
agency level, we AFFIRM.
I. BACKGROUND
In 1989, Nicklin sustained an on-the-job injury to his left
knee as a letter carrier for the USPS in Ormond Beach,
Florida. Due to this impairment, Nicklin was placed on
medical restriction and assigned to a distribution clerk
position. In 1994 the Lexington, Kentucky Post Office
denied him a transfer, and subsequently denied his request for
reconsideration even after his medical restrictions had been
removed. Prior to this denial Nicklin had over 200 Florida
claims decided by, or pending in front of, the EEOC.
Nicklin challenged the denial based on disability
discrimination, in violation of the Rehabilitation Act of 1973,

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No. 02-5183 Nicklin v. Henderson 3
29 U.S.C. § 701 et. seq. When the USPS found no
discrimination, Nicklin appealed to the EEOC OFO in 1995.
On January 13, 1997, the USPS Florida branch and Nicklin
entered a settlement agreement for $12,500 releasing “any
and all cases in any and all forms or forums at any stage of
appeal or processing.” Subsequently on March 26, 1998, the
OFO reversed the earlier USPS decision on appeal, finding
that Nicklin was discriminated against by the Kentucky
branch of the USPS. Apparently, the Florida USPS had not
notified the Kentucky USPS of the settlement; consequently,
the settlement was never raised by the USPS or considered by
the OFO.
In July 1998, after the expiration of the thirty-day time limit
for an internal OFO appeal, see 29 C.F.R. § 1614.407 (1998),
the USPS realized the error and forwarded a copy of the
settlement to the OFO. The settlement reached the OFO
within thirty days of a different OFO decision on one of
Nicklin’s Florida claims, and the OFO honored the settlement
sua sponte even though it found the USPS had waived the
agreement by not asserting it earlier. However, before the
OFO could consider the settlement’s effect on his Kentucky
claim, Nicklin filed this action in the district court to enforce
the OFO’s decision.
Nicklin asserted that since it was a simple enforcement
action the district court should not question the merits of the
OFO award. He argued that the USPS had waived its right to
assert the settlement by not raising it in the OFO proceeding.
The district court nonetheless found that the USPS could
assert the settlement claim, that Nicklin had ratified any
problems with the agreement by failing to “tender back” the
$12,500 consideration, and granted summary judgment for
the USPS.
Nicklin then appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and review the district court’s
grant of summary judgment de novo. Kennedy v. Superior
Printing Co., 215 F.3d 650, 655 (6th Cir. 2000). Taking the
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evidence in the light most favorable to Nicklin, Anderson v.
Liberty Lobby, 477 U.S. 242, 255 (1986), we will uphold the
grant of summary judgment if there is no genuine issue as to
any material fact such that the USPS is entitled to judgment
as a matter of law. See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
II. DISCUSSION
The Validity of the Settlement Agreement
We start with the validity of the settlement agreement itself,
because if it does not apply to Nicklin’s Kentucky transfer
claim, whether the USPS has waived its application is
irrelevant. Nicklin argues he did not knowingly and
voluntarily assent to the agreement, and that it did not cover
his Kentucky claim.
Federal common law controls the validity of a release of a
federal cause of action. Street v. J.C. Bradford & Co., 886
F.2d 1472, 1481 (6th Cir. 1989). For discrimination cases,
the Sixth Circuit uses a balancing test to determine whether
a settlement agreement was entered into knowingly and
voluntarily. We consider the following factors: (1) Nicklin’s
experience, background, and education; (2) the amount of
time Nicklin had to consider the release, including whether he
had the opportunity to consult with a lawyer; (3) the clarity of
the release; (4) the consideration for the release; and (5) the
totality of the circumstances. See Adams v. Philip Morris,
Inc., 67 F.3d 580, 583 (6th Cir. 1995).
The district court properly granted summary judgment
against Nicklin. Nicklin contests the time he was given to
consider the agreement and argues that he was not offered
counsel. According to him, he was given the agreement and
told to sign it and return it “as soon as possible.” Nicklin
claims that this only gave him one day to read, consider, and
sign the agreement. However, the district court found it
“undisputed” that Nicklin never requested additional time to

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No. 02-5183 Nicklin v. Henderson 5
consider the agreement, had negotiated it for several days
prior, securing a favorable term excluding his workers
compensation claim, and was well aware of his right to
counsel from his numerous prior discrimination claims.
Given that Nicklin does not seriously challenge the other four
factors, we uphold the district court’s finding that he
knowingly and voluntarily entered into the settlement
agreement.
This court can also set aside the agreement for mistake or
fraud. See Brown v. County of Genesee, 872 F.2d 169, 174-
75 (6th Cir. 1989). Nicklin bears the burden of showing that
the settlement he made was invalid because of fraud or a
mutual mistake under which both parties acted; a unilateral
mistake on his part will not invalidate the agreement. Id.
Nicklin argues that the agreement covers only his Florida
discrimination claims, asserting both mistake and fraud.
The settlement was a general release of all Nicklin’s claims,
clearly covering his Kentucky transfer claim. The agreement
reads that it is:
[i]n complete and final settlement of any and all cases in
any and all forms or forums at any stage of appeal or
processing including but not limited to EEOC, NLRB,
MSPB, and any court or courts and without prejudice to
the position of the Postal Service in this or any other case
. . . .
Nicklin claims he understood the agreement to only cover
the Florida claims, leaving the Kentucky claim intact.
However, the plain language of the agreement unambiguously
covers all his claims, and specifically references “all EEOC”
or “EEO” actions six times in the one-and-a-half page
document. Nor does the agreement differentiate between the
USPS branches; it covers all claims in any forum “concerning
the United States Postal Service.” The USPS negotiator,
Thomas Hopper, testified that he intended the release to cover
“any and all of [Nicklin’s] claims against the Postal Service,
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filed in any forum or location” and further did not intend or
indicate any claims, besides the workers compensation
claims, to be excluded. Thus, at most Nicklin made a
unilateral mistake that the Kentucky claim was excluded.
Since unilateral mistakes are insufficient to set aside the
agreement, Nicklin’s mistake claim fails. Brown, 872 F.2d at
174-175.
Nicklin also asserts fraud. He swore out an affidavit that
“Hopper specifically told me” the settlement only released the
Florida claims. If this were true, a triable issue of fact might
exist. However, Nicklin subsequently backed off this
assertion in his deposition, testifying that they “only
discussed the Florida ones” and not that Hopper made any
affirmative statement that the Kentucky claim was excluded.
Thus, without any affirmative fraudulent statement to induce
his reliance, Nicklin’s fraud claim fails.
In sum, the district court properly found Nicklin knowingly
and voluntarily entered the agreement, and that there was no
voidable mistake or fraud.
Failure to Assert the Settlement at the Agency Level
Having found a valid settlement, we next consider the
effect of the USPS’s inadvertent failure to raise the settlement
at the EEOC OFO administrative decision stage. The OFO
found the USPS had discriminated against Nicklin and
awarded him back pay, interest, and other benefits. The
USPS failed to raise the settlement, and subsequently failed
to move to reconsider within the thirty-day time limit. See 29
C.F.R. § 1614.407 (1998). Nicklin claims that the district
court was required to blindly enforce the OFO decision
without considering the settlement. He further argues that the
doctrine of res judicata prevents the USPS from raising the
settlement at the district court level because the USPS waived
the settlement argument by not raising it in the earlier OFO
proceeding.

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No. 02-5183 Nicklin v. Henderson 7
Nicklin’s argument has some support. Courts have applied
res judicata to administrative law decisions employing a trial
type hearing. See Drummond v. Commissioner of Social
Security, 126 F.3d 837, 841 (6th Cir. 1997). Additionally, he
correctly asserts that a federal employee is entitled to have the
district court enforce a favorable administrative determination
without having the court delve into the merits de novo. See
Haskins v. United States Dep’t of the Army, 808 F.2d 1192,
1199 n.4 (6th Cir. 1987). Nicklin’s main support is Girard v.
Rubin, 62 F.3d 1244, 1247 (9th Cir. 1995), where the Ninth
Circuit found the IRS could not relitigate in the district court
the EEOC’s specific determination that Girard timely filed his
complaint with the agency.
Although the USPS may have waived the settlement at the
administrative level, the agreement poses a separate legal bar
at the enforcement stage. The settlement agreement applied
to all future actions, and forbade him to file any future
“appeal, complaint, charge, grievance, etc. of any kind” in
“the Federal Courts.” Therefore, the USPS properly asserted
the settlement as a separate bar at the district court
enforcement action level, independent of what happened at
the administrative level. The district court alluded to this,
finding that the USPS was not requesting a merits review of
the underlying OFO judgment, but merely asserting a legal
bar to the enforcement. Under this reasoning, we uphold the
district court’s summary judgment dismissing Nicklin’s
enforcement action.
Girard is distinguishable because there the government was
trying to relitigate the timeliness of a complaint filed with the
agency. If the USPS were only trying to assert that the OFO
should have considered the settlement, we might consider
Girard persuasive. In the instant case, however, the USPS is
instead asserting the settlement as an independent bar to the
enforcement action at the district court level, not that the OFO
should have honored the settlement at the agency level.
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We further note our decision prevents a windfall to Nicklin.
He received $12,500 in settlement of all his claims. If we
were to ignore the settlement and enforce the OFO order,
Nicklin would receive additional compensation in the form of
back pay, interest, and other benefits for a claim he already
settled. It “goes without saying that courts can and should
preclude double recovery.” EEOC v. Waffle House, 534 U.S.
279, 297 (2002).
We find Nicklin’s remaining arguments without merit.
AFFIRMED.

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