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James Scott v. Janet A. Napolitano

July 10, 2012

JAMES SCOTT,
PLAINTIFF,
v.
JANET A. NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER GRANTING AN EVIDENTIARY HEARING IN CONNECTION WITH DEFENDANT'S MOTION TO ENFORCE SETTLEMENT AND DENYING PLAINTIFF'S MOTION TO ENFORCE SETTLEMENT

Plaintiff and Defendant have filed competing motions to enforce settlement. For the reasons discussed below, the Court GRANTS an evidentiary hearing in connection with Defendant's motion to enforce settlement and DENIES Plaintiff's motion to enforce settlement.

I. FACTUAL BACKGROUND

A. District Court Case

Prior to his termination in 2007, Plaintiff was a Special Agent and Criminal Investigator with the Department of Homeland Security's ("DHS") Federal Protective Service ("FPS"). Plaintiff was terminated after he refused to provide responses to certain medical questions and refused to release his medical records. On April 23, 2008, Plaintiff commenced this suit.

Plaintiff sued Defendant for (1) disability discrimination in violation of the Rehabilitation Act of 1973, 29 US.C. § 794(a); (2) retaliation; and (3) age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA").

In an Order filed on May 3, 2010 ("Summary Judgment Order"), the Court granted partial summary judgment in favor of Plaintiff on Plaintiff's claim for violation of the Rehabilitation Act/ADA based on disability-related inquiries. The Court granted summary judgment in favor of Defendant on Plaintiff's claims for disability discrimination under the Rehabilitation Act/ADA, retaliation under Title VII, and violation of the ADEA.

B. Mediation and Memorandum

After the Court issued its Summary Judgment Order, the parties agreed to retain the private services of a mediator. At the mediation, both parties were represented by legal counsel. After two days of mediation, the parties executed a Memorandum of Settlement ("Memorandum") dated August 12, 2010. (Def. NOL, Ex. 1.)

The Memorandum provides that the parties "agree to the following settlement terms" and that the "terms set forth herein are to be included in a formal settlement agreement to be signed by the partes." The Memorandum explains that the formal settlement agreement will contain "other normal settlement terms and shall be subject to the approval of the parties, which approval shall not be unreasonably withheld."

The terms set forth in the Memorandum include:

* Plaintiff shall receive retirement benefits under the MRA retirement plan, which will pay him approximately $12,100 per year at age 56 and approximately $17,100 per year at age 60, including survivor's benefits and COL adjustments at age 62. The parties acknowledge that the OPM must approve the retirement plan and will calculate the actual payments payable to Plaintiff. This settlement is subject to Plaintiff's approval of the amounts and terms determined by OPM, which approval shall not be unreasonably withheld.

* Defendant shall pay Plaintiff the sum of $655,000, which includes $5,000 to purchase his years of military service, $150,000 to defer the costs of health insurance for Plaintiff and his family, and $500,000 for emotional distress and attorney's fees.

* Defendant shall pay the entire cost of the mediation and all mediation fees paid by Plaintiff will be reimbursed to him.

* All documentation in Plaintiff's personnel file related to the discipline at issue in this case shall be removed and the file will indicate that Plaintiff voluntarily resigned.

* A neutral reference procedure will be established with respect to future employment inquiries.

* In the future, Plaintiff is free to apply for employment with any federal government agency other than DHS.

* Plaintiff shall release the Government from all claims related to his employment or this action.

C. Post-Mediation Settlement Discussions

According to Plaintiff, after signing the Memorandum, he began ...


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