BAIG v. NUCLEAR REGULATORY COMMISSION

Filing 55

OPINION. Signed by Judge Freda L. Wolfson on 4/10/2013. (gxh)

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
______________________________
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Plaintiff,
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vs.
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NUCLEAR REGULATORY COMMISSION
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Defendant.
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______________________________:
USMAN M. BAIG

Civil Action No. 10-0842 (FLW)

OPINION

WOLFSON, United States District Judge:
Plaintiff Usman M. Baig (“Plaintiff”), a former mechanical engineer for Defendant Nuclear
Regulatory Commission (“Defendant” or the “NRC”), alleges that during the course of his
employment, Defendant discriminated against him based on his age and Indian background. In the
instant matter, among various bases, Defendant moves for summary judgment on the ground that
Plaintiff is precluded by contract from bringing his discrimination claims to this Court because the
parties have previously agreed to amicably resolve these types of claims arising out of his
employment at the NRC.1 Having reviewed the record, the Court is satisfied that Plaintiff has settled
his discrimination claims with Defendant out-of-court, and holds that Plaintiff is barred from bring
them here. Defendant’s motion is, therefore, GRANTED.

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Defendant also argues that Plaintiff has failed to show a prima facie case of age
and ethnicity discrimination. Because the Court finds that the parties’ Settlement Agreement is
binding upon Plaintiff, the Court will not address the merits of Plaintiff’s discrimination claims.
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BACKGROUND
On this Summary Judgment Motion, the Court only recounts undisputed facts, unless noted
otherwise, relevant to the issue of the parties’ Settlement Agreement. Plaintiff was born in India
on July 18, 1944, and came to the United States to pursue his Master's Degree in Engineering in
September 1972. See Plaintiff’s Dep., T7-8. After working for the United States Navy for
approximately twenty years, Plaintiff began working with the NRC on March 25, 2007, as a
mechanical engineer within the Engineering Branch of the License Renewal Division. Id., T25:4-6.
On July 7, 2008, Plaintiff filed a complaint with the Office of Small Business and Civil Rights
(“SBCR”) at the NRC, alleging discrimination and harassment resulting in a hostile work
environment. See NRC Complaint dated July 7, 2008. According to Plaintiff, his branch chief, Mr.
Chang, referred to him as an “old man,” and excluded him from “inner circle” conversations with
peer Chinese engineers who often spoke to Mr. Chang in Chinese. Id., T59:12-19. In addition,
Plaintiff claimed that Mr. Chang excluded him from meaningful and high profile assignments, which
assignments Plaintiff believed were given to favored employees by Mr. Chang. See Id., T57:21 58:11. Plaintiff also asserts, in a conlusory fashion, that another supervisor, James Medoff,
discriminated against him. Id., T49:11-52:19.
On July 21, 2008, Plaintiff was issued a Notice of Proposed Removal. See NPR dated July
21, 2008. According to Defendant, Plaintiff was recommended by the NRC to be terminated because
of his poor performance, which was documented in a Performance Improvement Requirements
Memorandum (the “PIRM”). See PIRM dated April 16, 2008; Plaintiff’s Dep., T80:1-81:21.
Thereafter, Plaintiff sought union representation, and local union president, Dale Yielding, was
assigned as his union representative. Mr. Yielding submitted a written reply to the Notice of
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Proposed Removal. See Plaintiff’s Dep., T87:24-88-14. On or about August 12, 2008, an oral reply
to the NPR was conducted, wherein Mr. Yielding presented Plaintiff’s defense. Id. T88:15 - 90:13.
However, unswayed by Plaintiff’s efforts to oppose the proposed removal, the NRC decided to
remove Plaintiff from federal service on September 15, 2008. Id., T90:14-91:13; see Decision To
Remove from Federal Service Memo dated September 15, 2008, p. 1.
After Plaintiff was terminated, Mr. Yielding engaged in settlement discussions with the NRC
regarding Plaintiff’s discrimination complaint. See Yielding Email dated September 24, 2008.
According to Plaintiff, he took part in the input of terms of the eventual Settlement Agreement
between him and the NRC. Plaintiff’s Dep.,T113:14-20. On October 2, 2008, Plaintiff signed the
Settlement Agreement. See Settlement Agreement dated October 2, 2008. Notably, pursuant to the
Agreement, the NRC agreed to replace the word “removal” with the term “retirement” as the reason
for the termination of Plaintiff's employment. In exchange, according to the Agreement, Plaintiff
agreed to waive and withdraw his discrimination claims, including those filed with the SBCR on July
7, 2008, and generally release the NRC from all claims. See Settlement Agreement dated October
2, 2008 at ¶¶ 5, 12.
By letter to the NRC dated January 10, 2009, Plaintiff claimed that the NRC was in breach
of the Agreement, alleging that the NRC failed to properly calculate his retirement payments, and
that the Agreement should be voided because Plaintiff was coerced by the NRC officials when he
signed the Agreement. On February 11, 2009, the NRC concluded, however, that it had complied
with the Agreement. Subsequently, Plaintiff filed an appeal with the Equal Employment Opportunity
Commission ("EEOC"). See Notice of EEOC Appeal dated March 20, 2009. Upon review of the
materials, the EEOC held that because nothing in the terms of the Agreement required the NRC to
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provide Plaintiff with retirement benefits or addressed when they were to be paid or how they were
to be calculated, the NRC did not have any obligations as to the retirement benefits, and thus did not
breach the Agreement. As to the alleged coercion, the EEOC found that such an allegation could
not be established because Plaintiff had already been removed from his employment at the time of
the negotiation and execution of the Agreement.

Thereafter, Plaintiff timely requested

reconsideration of the decision, but the EEOC denied the request.
On or about February 15, 2010, Plaintiff filed the instant complaint in this Court asserting
various causes of actions. By Opinion and Order dated June 6, 2011, this Court dismissed all of
Plaintiff's claims with prejudice, except for his discrimination claims based upon national origin and
age. Defendant now moves for summary judgment on those remaining discrimination claims.
DISCUSSION
I.

Standard of Review
Summary judgment is appropriate where the Court is satisfied that “there is no genuine issue

as to any material fact and that the movant is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is genuine
only if there is “a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party,” and it is material only if it has the ability to “affect the outcome of the suit under
governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will
not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. “In considering a motion
for summary judgment, a district court may not make credibility determination or engage in any
weighing of the evidence; instead, the non-moving party’s evidence ‘is to be believed and all
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justifiable inference are to be drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247
(3d Cir. 2004) (quoting Anderson, 477 U.S. at 255); see also Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The burden of establishing that no “genuine issue” exists is on the party moving for summary
judgment. Celotex, 477 U.S. at 330. “A nonmoving party has created a genuine issue of material
fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.” Gleason v.
Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The non-moving party must present “more
than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v. County of
Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quotations omitted). Under Anderson, Plaintiff’s
proffered evidence must be sufficient to meet the substantive evidentiary standard the jury would
have to use at trial. 477 U.S. at 255. To do so, the non-moving party must “go beyond the pleadings
and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324
(quotations omitted); see also Matsushita, 475 U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172
F.3d 238, 252 (3d Cir. 1999). In deciding the merits of a party’s motion for summary judgment, the
court’s role is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are
the providence of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358 (3d
Cir. 1992).
II.

Settlement Agreement
Defendant argues that summary judgment is proper based on the fact that Plaintiff has waived

any claims relating to age or national origin discrimination by entering into the Settlement
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Agreement with the NRC. In response, while Plaintiff concedes that he physically signed the
Agreement, he claims that he had not seen or read the Agreement at the time of signing. Rather,
Plaintiff maintains that when he signed the last page of the Agreement, it was his understanding that
he would be reinstated and not retired from his position. According to Plaintiff, he realized that there
was no clause regarding his reinstatement when he received a copy of the entire Agreement some
time in December 2008. Moreover, Plaintiff also posits that his signature was procured by coercion
and fraud on the part of the NRC. Unfortunately for Plaintiff, however, the Court finds that the
Agreement is binding and it precludes him from bringing his already-settled discrimination claims
here.
Generally, a settlement agreement is considered a contract, and thus governed by basic
principles of state contract law. See, e.g., Mortellite v. Novartis Crop Protection, Inc., 460 F.3d 483
(3d Cir. 2006); In re Cendant Corp. Prides Litig., 233 F.3d 188, 193 (3d Cir. 2000); Saber v. Finance
America Credit Corp., 843 F.2d 697 (3d Cir. 1988). It is well settled that “a party who enters into
a contract in writing, without any fraud or imposition being practiced upon him, is conclusively
presumed to understand and assert to its terms and legal effect.” Rudbart v. North Jersey District
Water Supply Comm., 127 N.J. 344, 353 (1992). Indeed, “signing a contract creates a ‘conclusive
presumption that the signer read, understood, and assented to its terms.” Raiczyk v. Ocean County
Veterinary Hospital, 377 F.3d 266, 270 (3d Cir. 2004). Hence, failure to read a contract is not a
defense to being bound by the terms, and in that connection, even illiterate persons have been held
to be bound by a signed contract. See Modern Security v. Lockett, 143 A. 511 (N.J. 1928); Riverside
Chiropractic Group v. Mercury Insurance Co., 404 N.J. Super. 228, 238 (App. Div. 2008). In similar
vein, in cases of unilateral mistake, rescission or reformation of a contract is not an available remedy
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to a party where the mistake is the result of that party’s own negligence. Fleming Companies, Inc.
v. Thriftway Medford Lakes, Inc., 913 F.Supp. 837, 843 (D.N.J. 1995).
In particular, claims for discrimination may be waived by a settlement agreement during the
EEO process. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974)(an employee can
waive rights under Title VII as part of a settlement agreement); see also Hubbell v. World Kitchen,
LLC, 688 F.Supp. 2d 401, 417 (W.D. Pa. Feb. 24, 2010); Schmidt v. Shah, 696 F.Supp. 2d 44, 62
(D.D.C. Mar. 17, 2010). Indeed, EEO settlements are afforded the same treatment as voluntary
litigation settlements. Spiridigliozzi v. Bethlehem Mines Corp., 558 F. Supp. 734, 736 (W.D. Pa.
1980). Of course, a person who agrees to settle a claim during the EEO process cannot subsequently
seek the benefit of the settlement as well as the original claim that the person agreed to settle. Kirby
v. Dole, 736 F.2d 661, 664 (11th Cir. 1984).
Here, the Court first focuses on whether the discrimination claims raised by Plaintiff in this
case fall within the ambit of the Settlement Agreement. The Court’s initial consideration is whether
the Settlement Agreement complies with the requirements under the Age Discrimination in
Employment Act (the “ADEA”). Under the ADEA, for a wavier of an age discrimination claim to
be knowing and voluntary in a settlement of an EEOC charge, the following criteria must be met:
(a) the waiver is written in a manner calculated to be understood by the employee or the average
individual eligible to participate; (b) the waiver specifically refers to the rights or claims arising
under the Protection Act; (c) the individual does not waive rights or claims subsequent to the date
of execution of the waiver; (d) the individual waives his or her rights or claims in exchange for
consideration above which the individual is already entitled; (e) the individual is advised in writing

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of the right to consult an attorney prior to signing the waiver; and (f) the individual is provided a
reasonable time within which to consider the settlement agreement. See 29 U.S.C. § 626(f)(2).
In the present case, while Plaintiff argues that he was coerced and defrauded into signing the
Settlement Agreement by the NRC, Plaintiff does not raise any argument that the Settlement
Agreement fails to meet the above-referenced criteria. As to the first and second factors, there is no
dispute that Plaintiff understood, or has the capacity to understand, the terms of the Settlement
Agreement, and that the waiver specifically dealt with his age and national origin discrimination
claims. As to the claims raised by Plaintiff in this case, those arose prior to the execution date of the
Agreement. And, indeed, in exchange for being designated as “removed” by the NRC, Plaintiff
received a “retirement” designation. This designation clearly is a consideration above to which
Plaintiff was entitled. Finally, when Plaintiff signed the Agreement, he acknowledged that “he has
carefully read and fully understands all of the provisions of this Agreement and that he has had a
reasonable time to consider its terms; that he has been advised to consult with an attorney of his own
choosing before signing this Agreement; that he waives all of his claims against the [NRC], its
agents and all other claims arising up to and including the date of this Agreement.” See Settlement
Agreement dated October 2, 2008, ¶ 13. Further, Plaintiff understood that he was waiving “rights
or claims only in exchange for consideration in addition to anything of value which he already is
entitled, and, that he does not waive rights or claims that may rise after the date of this Agreement
is executed.”

Id.

Accordingly, the Court finds that the Settlement Agreement meets the

requirements set forth by the ADEA as to Plaintiff’s waiver of his age discrimination claim.

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Moreover, the Court finds that the Settlement Agreement, in two separate paragraphs,
unambiguously set forth the waiver of Plaintiff’s national origin and age discrimination claims.
Paragraph 5 of the Agreement provides:
5.

By execution of this Agreement, Employee and the Union voluntarily waive and
withdraw with prejudice any and all right to file, pursue, or litigate in any forum,
including but not limited to, the Equal Employment Opportunity Commission, the
negotiated grievance process, arbitration, the Federal Labor Relations Authority and
the Merit Systems Protection Board, any claims, complaints, appeals and wards
which relate to or arise form any issue, matter or dispute raised by or in connection
with Employee’s employment, including Employee’s EEO complaint, NRC-08-09,
and all EEO claims.

Settlement Agreement dated October 2, 2008, ¶ 5. Paragraph 12 reinforces the wavier of Plaintiff’s
discrimination claims:
12.

In consideration of the promises made herein, the parties agree that this Agreement
completely resolves all issues an each party releases the other, including for the
Agency, its employees in their individual and official capacities, from any liability,
claims, grievances, attorney fees and remedies of any type, whether known or
unknown, which the parties now have or may have by reason of any matter, cause,
act or omission arising out of or in connection with the Employee’s employment with
the Agency, including the Employee’s claims of national origin and age
discrimination, arising on or prior to the execution of this Agreement. This release
includes, but is not limited to, demands, actions, rights and claims under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and any
other federal or state statute, regulation, rule or policy, any claim for administrative,
judicial relief, or claim for damages, back pay, interest, and attorney fees arising out
of or in connection with the Employee’s employment with the Agency prior to the
execution of this Agreement.

Id., ¶ 12.

Clearly, the language of both provisions encompass Plaintiff’s waiver of his

discrimination claims – namely, age and national origin discrimination – and based upon the waiver,
Plaintiff is precluded from bringing his claims.
Notwithstanding the parties’ Settlement Agreement, however, Plaintiff insists that when he
signed the Agreement, he believed that the Agreement would reinstate Plaintiff to his position.
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Alternatively, and somewhat contradictory in nature, Plaintiff argues that there was never an
agreement. The only evidence to support either of Plaintiff’s positions is his own self-serving
statements that he proffered during his deposition and unsworn statements in his opposition brief to
Defendant’s motion; those statements are not sufficient to defeat summary judgment.
To reiterate, Plaintiff, who is opposing summary judgment, “must support each essential
element of the opposition with concrete evidence in the record.” Ullrich v. United States Secretary
of Veterans Affairs, 457 Fed. Appx. 132, 136 (3d Cir. 2012) (citations omitted). Worded differently,
in order to create a genuine issue of material fact, Plaintiff must provide sufficient evidence to permit
a factfinder to find in his favor at trial. See In re CitxCorp., Inc., 448 F.3d 672, 677 (3d Cir. 2006).
In that regard, it is wholly insufficient for Plaintiff to point to his pleadings or allegations as actual
evidence. EL v. Southeastern Pennsylvania Transportation Auth., 479 F.3d 232, 238 (3d Cir. 2007).
Nor can Plaintiff defeat summary judgment by offering his own self-serving statements as proof.
See Podobnik v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005).
As indicated earlier, New Jersey law creates a presumption that once Plaintiff signs a
document, he is presumed to have read and understood the Settlement Agreement, and more
importantly, Plaintiff is presumed to have agreed to the terms of the Agreement. He cannot now,
without any evidence, rebut such a presumption by simply stating that he did not understand the
terms of the Settlement Agreement at the time he signed it, or that he understood the Agreement to
reflect something other than what has been provided by its clear language. The Settlement
Agreement unambiguously states that “[u]pon execution of this Agreement by all parties, the Agency
shall remove from Employee’s OPF the previously issued Standard Form (SF) 50 (reflecting
“Removal” as the reason for the termination of Employee’s employment), and replace it with an SF10

50 that states “Retirement” as the reason for separating from the agency and indicate “voluntary”
retirement in all appropriate fields or codes on the form.” Settlement Agreement dated October 2,
2008, ¶ 2. In addition, the Agreement provides that “[i]n consideration for the Agency’s promise
above, the Employee voluntarily and irrevocably retires and separates from the Agency and the
Federal Service retroactive to September 15, 2008.” Id., ¶ 4. Plaintiff is presumed to have read and
understood those provisions. Even if Plaintiff neglected to read the Agreement, he bears the
consequences for having failed to do so. Riverside, 404 N.J. Super. at 238; Henningsen v.
Bloomfield Motors, Inc., 32 N.J. 358, 386 (1960).
Even more compelling, Plaintiff’s own actions after the execution of the Settlement
Agreement belie his positions on this motion. On the same day that the parties signed the Settlement
Agreement, Plaintiff requested retirement from the NRC, which action is consistent with the terms
of the Agreement. See Plaintiff’s Dep., T137:19-141:17. In addition, in December 2008, Plaintiff
sent an e-mail to his union representative, Mr. Yielding, in which he implicitly acknowledged that
the Settlement Agreement existed. Specifically, in that e-mail, Plaintiff wrote that the NRC had
“defaulted” on the agreement. See Email dated December 29, 2008. In that regard, Plaintiff
contended that his “retirement” should have started in October 2008, and he alleged that the NRC
had failed to correctly calculate his retirement payments. Id. Clearly, based upon Plaintiff’s own
writings, he was certainly aware of the terms of the Settlement Agreement, and significantly, his
retirement status. Indeed, the primary basis for Plaintiff’s subsequent appeal to the EEOC, in
January 2009, was his allegation that the NRC breached the Settlement Agreement. Finally,
Plaintiff’s arguments that the NRC coerced or somehow defrauded Plaintiff into signing the
Settlement Agreement are not supported by any evidence in the record. Other than his unsupported
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assertions, Plaintiff has adduced nothing more than his mere displeasure with the NRC. To establish
a defense of coercion or fraud, Plaintiff must “point to actual evidence in the record.” El, 479 F.3d
at 238. Because Plaintiff has failed to do so, his defenses are without merit.
CONCLUSION
For the foregoing reasons, Defendants’ motion is GRANTED and Plaintiff’s Amended
Complaint is dismissed in its entirety.
An appropriate Order shall follow.

/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge
Date: April 10, 2013

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