       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Nicklin v. Henderson                        No. 02-5183
    ELECTRONIC CITATION: 2003 FED App. 0450P (6th Cir.)
                File Name: 03a0450p.06                    Kentucky, for Appellee. ON BRIEF: James M. Morris,
                                                          Sharon K. Morris, MORRIS & MORRIS, Lexington,
                                                          Kentucky, for Appellant. Thomas Lee Gentry, ASSISTANT
UNITED STATES COURT OF APPEALS                            UNITED STATES ATTORNEY, Lexington, Kentucky, for
                                                          Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                                             _________________

 RAYMOND NICKLIN ,                 X                                              OPINION
         Plaintiff-Appellant,       -                                         _________________
                                    -
                                    -   No. 02-5183         SILER, Circuit Judge. Plaintiff Raymond Nicklin petitions
             v.                     -                     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
 WILLIAM J. HENDERSON ,             -
 Postmaster General, United                               order of the EEOC Office of Federal Operations (“OFO”). It
                                    -                     found that a settlement agreement, entered into before the
 States Postal Service,             -                     OFO order, barred Nicklin’s discrimination claim. Nicklin
            Defendant-Appellee. -                         argues that the USPS waived the settlement issue by not
                                    -                     raising it at the OFO level, and, therefore, the district court
                                   N                      should have simply enforced the order. Because we find the
        Appeal from the United States District Court      settlement agreement provides a separate legal bar at the
     for the Eastern District of Kentucky at Lexington.   district court level, regardless of what happened at the OFO
  No. 99-00443—Karl S. Forester, Chief District Judge.    agency level, we AFFIRM.

              Argued: September 18, 2003                                    I. BACKGROUND

        Decided and Filed: December 19, 2003                In 1989, Nicklin sustained an on-the-job injury to his left
                                                          knee as a letter carrier for the USPS in Ormond Beach,
  Before: SILER, BATCHELDER, and COOK, Circuit            Florida. Due to this impairment, Nicklin was placed on
                     Judges.                              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
                       COUNSEL                            removed. Prior to this denial Nicklin had over 200 Florida
                                                          claims decided by, or pending in front of, the EEOC.
ARGUED: James M. Morris, MORRIS & MORRIS,
Lexington, Kentucky, for Appellant. Thomas Lee Gentry,      Nicklin challenged the denial based on disability
ASSISTANT UNITED STATES ATTORNEY, Lexington,              discrimination, in violation of the Rehabilitation Act of 1973,

                            1
No. 02-5183                        Nicklin v. Henderson        3    4     Nicklin v. Henderson                         No. 02-5183

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

consider the agreement, had negotiated it for several days           filed in any forum or location” and further did not intend or
prior, securing a favorable term excluding his workers               indicate any claims, besides the workers compensation
compensation claim, and was well aware of his right to               claims, to be excluded. Thus, at most Nicklin made a
counsel from his numerous prior discrimination claims.               unilateral mistake that the Kentucky claim was excluded.
Given that Nicklin does not seriously challenge the other four       Since unilateral mistakes are insufficient to set aside the
factors, we uphold the district court’s finding that he              agreement, Nicklin’s mistake claim fails. Brown, 872 F.2d at
knowingly and voluntarily entered into the settlement                174-175.
agreement.
                                                                       Nicklin also asserts fraud. He swore out an affidavit that
   This court can also set aside the agreement for mistake or        “Hopper specifically told me” the settlement only released the
fraud. See Brown v. County of Genesee, 872 F.2d 169, 174-            Florida claims. If this were true, a triable issue of fact might
75 (6th Cir. 1989). Nicklin bears the burden of showing that         exist. However, Nicklin subsequently backed off this
the settlement he made was invalid because of fraud or a             assertion in his deposition, testifying that they “only
mutual mistake under which both parties acted; a unilateral          discussed the Florida ones” and not that Hopper made any
mistake on his part will not invalidate the agreement. Id.           affirmative statement that the Kentucky claim was excluded.
Nicklin argues that the agreement covers only his Florida            Thus, without any affirmative fraudulent statement to induce
discrimination claims, asserting both mistake and fraud.             his reliance, Nicklin’s fraud claim fails.
  The settlement was a general release of all Nicklin’s claims,        In sum, the district court properly found Nicklin knowingly
clearly covering his Kentucky transfer claim. The agreement          and voluntarily entered the agreement, and that there was no
reads that it is:                                                    voidable mistake or fraud.
  [i]n complete and final settlement of any and all cases in             Failure to Assert the Settlement at the Agency Level
  any and all forms or forums at any stage of appeal or
  processing including but not limited to EEOC, NLRB,                   Having found a valid settlement, we next consider the
  MSPB, and any court or courts and without prejudice to             effect of the USPS’s inadvertent failure to raise the settlement
  the position of the Postal Service in this or any other case       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
  Nicklin claims he understood the agreement to only cover           USPS failed to raise the settlement, and subsequently failed
the Florida claims, leaving the Kentucky claim intact.               to move to reconsider within the thirty-day time limit. See 29
However, the plain language of the agreement unambiguously           C.F.R. § 1614.407 (1998). Nicklin claims that the district
covers all his claims, and specifically references “all EEOC”        court was required to blindly enforce the OFO decision
or “EEO” actions six times in the one-and-a-half page                without considering the settlement. He further argues that the
document. Nor does the agreement differentiate between the           doctrine of res judicata prevents the USPS from raising the
USPS branches; it covers all claims in any forum “concerning         settlement at the district court level because the USPS waived
the United States Postal Service.” The USPS negotiator,              the settlement argument by not raising it in the earlier OFO
Thomas Hopper, testified that he intended the release to cover       proceeding.
“any and all of [Nicklin’s] claims against the Postal Service,
No. 02-5183                        Nicklin v. Henderson        7    8      Nicklin v. Henderson                     No. 02-5183

  Nicklin’s argument has some support. Courts have applied            We further note our decision prevents a windfall to Nicklin.
res judicata to administrative law decisions employing a trial      He received $12,500 in settlement of all his claims. If we
type hearing. See Drummond v. Commissioner of Social                were to ignore the settlement and enforce the OFO order,
Security, 126 F.3d 837, 841 (6th Cir. 1997). Additionally, he       Nicklin would receive additional compensation in the form of
correctly asserts that a federal employee is entitled to have the   back pay, interest, and other benefits for a claim he already
district court enforce a favorable administrative determination     settled. It “goes without saying that courts can and should
without having the court delve into the merits de novo. See         preclude double recovery.” EEOC v. Waffle House, 534 U.S.
Haskins v. United States Dep’t of the Army, 808 F.2d 1192,          279, 297 (2002).
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              We find Nicklin’s remaining arguments without merit.
Circuit found the IRS could not relitigate in the district court
the EEOC’s specific determination that Girard timely filed his          AFFIRMED.
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.
