Okello v. Dominguez

Filing 109

ORDER by Judge Marilyn Hall Patel denying plaintiff's Motion to Vacate Settlement (awb, COURT-STAFF) (Filed on 2/19/2009)

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JOSEPH P. RUSSONIELLO (SBN 44332) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division ABRAHAM A. SIMMONS (SBN 146400) Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102-3495 Telephone: [phone] Facsimile: [phone] Email: [e-mail] JASON S. HEGY, ESQ. EEOC/OGC 1801 L. Street, N.W., 7th Fl. Washington, D.C. 20507 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Federal Defendant UNITED STATES DISTRICT COURT

14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN FRANCISCO DIVISION 16 LWANDA OKELLO, 17 Plaintiff, 18 v. 19 20 21 22 On February 25, 2008, the parties to these two related civil actions entered into a 23 stipulation of settlement. [Docket No. 100.] The parties submitted the settlement to the court for 24 approval and signature and this Court entered the signed the agreement into the record on 25 February 27, 2008. [Docket No. 101.] Pursuant to the agreement, plaintiff received a lump sum 26 payment of $15,000 in exchange for dismissal of the lawsuits. [Docket No. 101.] Plaintiff had 27 voluntarily retired on disability almost a year and a half earlier in September of 2006. [See 28 Docket No. 45.] No provisions in the settlement agreement addressed processing of plaintiff's NAOMI EARP, Chair, U.S. Equal Employment Opportunity Commission, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. C 04-2528 MHP No. C 06-7921 MHP [PROPOSED] ORDER REGARDING PLAINTIFF'S MOTION TO VACATE

Before:

Hon. Marilyn H. Patel

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retirement. [Docket No. 101.] This Court entered a dismissal with prejudice in accordance with the settlement agreement on May 8, 2008. [Docket No. 103.] Pursuant to the settlement, plaintiff received the compensation called for under the agreement. More than five months after the stipulation dismissing the case with prejudice, plaintiff filed the pending motion to vacate the settlement agreement and dismissal. In support of his motion, plaintiff states Judy Furukawa and OPM miscalculated his "creditable retirement years to include my prior military service . . .." Motion [Docket No. 104] at 1 (Emphasis in original). Plaintiff claims that as a result of this apparent miscalculation, he thought he would be receiving 29 years of credit for military service and a benefit of $1995.00 per month. Motion [Docket No. 104] at 1. Plaintiff claims that months after the settlement of this case, his military years of service was corrected and the recalculated amount of his benefit was only $700.17 per month. According to plaintiff, Ms. Furukawa or others may have intentionally misapplied the number of retirement years in a "successful presentation to force me into retirement." Motion [Docket No. 104] at 2. Plaintiff does not appear to claim that he was entitled to 29 years of creditable service, only that the earlier miscalculation was intentional and unlawful. Motion [Docket No. 104] at 2. The Human Resources Specialist that calculated plaintiff's retirement benefit is Judy S. Furukawa. She has submitted a declaration stating that plaintiff's lawsuit played no part in her calculation of plaintiff's benefit. Declaration of Judy S. Furukawa ("Furukawa Decl.") at ¶ 3. Plaintiff is not entitled to renege on the settlement of these two cases because he is receiving less in retirement compensation than the thought he would. Nothing in the agreement states that plaintiff will be entitled to a particular retirement benefit. To the contrary, the agreement contains an integration clause that states that "no warranties or other representations have been made on any subject other than as set forth in this Agreement." Document 101 at ¶ 15. Further, pursuant to the settlement agreement, plaintiff released all claims of which he was aware and all claims of which he was not aware at the time he signed the settlement agreement. Document 101 at ¶¶ 5, 6.
[Proposed] Order on Motion to Vacate C 04-2528 MHP

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Similarly, pursuant to the settlement agreement, any disputes that arise with respect to the implementation of the terms of the Agreement must be resolved by filing a separate action "to enforce the Agreement in district court." Document 101 at ¶ 11. The settlement agreement further provides that in the event of such a dispute, "plaintiff will not seek to rescind the Agreement . . .." Document 101 at ¶ 11. Equally as important, plaintiff has made no showing that anyone intentionally mislead him. Judy Furukawa has declared that she did not know the status of plaintiff's lawsuit when she calculated his benefit and that she performed all calculations in accordance with EEOC Office of Personnel rules and regulations. See Furukawa Decl. at ¶ 4. Indeed the evidence is that plaintiff ignored requests for further information and documentation. See Furukawa Decl. at ¶ 6. For all these reasons, plaintiff's motion is DENIED.

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2/19/2009 _______________________ DATE

HON. MARILYN HALL PATEL UNITED STATES DISTRICT JUDGE

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