dissenting:
The Norfolk Shipbuilding and Drydock Corporation (Norfolk Ship) made a slight but significant error, which may or may not be decisive here insofar as the order to reinstate Robert T. Nance with back pay is concerned. It simply failed to cross all the t’s and dot all the i’s by not complying exactly with the Government’s settlement form LS-471. The AU, the Benefits Review Board, and most recently the majority have employed various legal and logical gymnastics to convert that failure at contract integration into a breach by Norfolk Ship of the statutory prohibition on employers from discriminating against employees who file Longshore and Harbor Workers’ Compensation Act (LHWCA) claims.
I disagree with the conclusion that there was discrimination as set forth in section 49 of the LHWCA, 33 U.S.C. § 948a, by reason of supposed retaliation by discharging Nance from his job after the parties entered into an agreement to settle pending claims for disability compensation, age discrimination, discrimination under section 49 and a grievance to his union. I would, therefore, reverse the decision of the Benefits Review Board.
Norfolk Ship believed, as the AU agreed, and even the majority leaves unchallenged (since it does not reach the issue) the finding that Norfolk Ship believed that Norfolk Ship could properly condition settlement of LHWCA claims upon voluntary termination of employment by the employee. It was further found that Norfolk Ship has acted uniformly to require termination in every case where such a belief has come into play. In the circumstances, I fail to perceive discrimination, either as retaliation or in any other form, as a result of attempted implementation of that honestly held belief.
Norfolk Ship has discharged Nance on an erroneous belief that he agreed to resign. Since he had not agreed to resign he might have a right to reinstatement, back pay or other damages. However, such rights do not arise under the LHWCA. The LHWCA only provides for reinstatement and back pay when an employee is discriminated against in retaliation for bringing a LHWCA claim. That did not occur in the *188present case so reinstatement rights did not accrue under the LHWCA. Rather, an employee was discharged on the erroneous belief that he had agreed to resign. Nance’s right to force Norfolk Ship to rectify its error, if it exists, must come from some other source, e.g., a union contract, common or other statutory law. The existence vel non of such other rights is not before the Court.
To reach a conclusion of discrimination as the majority has done seems to disregard the holding in Ellett v. Giant Food, Inc., 66 Md.App. 695, 505 A.2d 888 (1986). The LHWCA operates as the workers’ compensation law for the District of Columbia. Ellett filed a claim under the LHWCA that was pending when she was discharged from Giant’s employ. Several months following the discharge she and Giant settled the LHWCA claim. In that agreement, Ellett agreed that she had no section 49 claim. She later brought an alleged abusive discharge claim. The Court of Special Appeals of Maryland affirmed the entry of summary judgment on that claim in favor of Giant. The court indicated that, when she agreed that she had no section 49 claim, she agreed that she had not been fired in retaliation for claiming compensation. Her statement was tantamount to a release and the court would not allow her later to repudiate it. Id. 66 Md.App. at 701-02, 505 A.2d at 871.
In that case, Giant had fired Ellett, and was not prohibited from, after the fact, negotiating an agreement with her that she had not been fired in retaliation for claiming LHWCA compensation. Logically then, an employer should be able to do the reverse under the LHWCA, namely, negotiate a waiver of section 49, i.e., condition the settlement on a right to discharge, pri- or to making the settlement.
The Board concluded that the LHWCA prohibits such agreements and that even the attempt by Norfolk to negotiate for one is retaliatory. The majority did not reach the issue of whether the LHWCA prohibits such agreements, it concluded that the AU properly found discriminatory intent under the facts of the case. Because I believe, and will later show, that the AU’s finding of discriminatory intent under the facts of the present case is irrational, I reach the issue left open by the majority.1 Not only was the Board’s decision that the LHWCA prohibits the employer from negotiating for and accepting an employee’s resignation as a term of a settlement of LHWCA claims without citation, but the only reason that it gave for its decision was its belief that the beneficent purpose of the LHWCA required its result. That conclusion is at odds with the general federal policy in favor of settlements, at odds with analogous authority and at odds with the LHWCA.
*189Those cases considering an analogous issue — whether an employee can waive his or her remedial rights in settlement of an employment discrimination claim find that employees can waive. The cases are analogous to the LHWCA because an agreement to waive remedial rights like reinstatement and back pay under equal employment opportunity laws is equivalent to an agreement to waive a section 49 claim or an agreement to resign. All mean that the claimant will not invoke a right to challenge a dismissal. Courts construing Title YII and the like have not adopted a flat prohibition on the waiver of remedial rights as the Board did in the present case. Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n. 15, 94 S.Ct. 1011, 1021-22 n. 15, 39 L.Ed.2d 147 (1974) (presuming that employee can waive a cause of action under Title VII as part of a voluntary settlement); Freeman v. Motor Convoy, Inc., 700 F.2d 1339 (11th Cir.1983); Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207 (5th Cir.1981) (holding that an oral agreement to settle a Title VII claim is enforceable).
Additionally, to the extent that there is a difference between settlement of employment discrimination claims and LHWCA claims, that difference militates in favor of more generous court recognition of LHWCA settlements. Under the LHWCA, settlements are void unless approved by the deputy commissioner or the AU. 33 U.S.C. §§ 915, 908(i).2 Therefore, it is less likely that employers will overreach with LHWCA settlements since neutral third party approval of them is first required. Further, section 8 of the LHWCA, 33 U.S.C. § 908, in providing for settlement approval does not differentiate among the LHWCA claims that can be settled. There is no suggestion that while other LHWCA claims can be settled, a section 49 claim cannot be settled.
Although the Board’s approval of the AU’s decision is not supported by the proffered justification, I would, nevertheless, consider any other possible reasons to support the AU’s decision. The AU offered another. He found that while a section 49 waiver or an agreement to resign might not flatly be prohibited, there was no such agreement in the present case, and that Norfolk Ship’s termination of Nance was retaliatory since done pursuant to a Norfolk Ship standard policy of terminating all lump sum settlement recipients. That justification is the one upon which the majority bases its affirmance.
While I agree with the first part of the conclusion of the AU, that there was no enforceable agreement of Nance to resign, I cannot agree with the second. The AU found as a fact that Norfolk Ship acted on a sincere belief, later proved erroneous, “that a voluntary quit by Mr. Nance was included in the settlement.” 19 Ben.Rev. Bd.Serv. (MB) 115(AU), 124(AU) (Aug. 4, 1986). Yet he nonetheless found discrimination, a section 49 violation, by virtue of Norfolk Ship’s uniform practice of asking a claimant to give up his or her right to employment in order to settle a LHWCA compensation claim. That finding is arbitrary and should be set aside. Dickens v. Tidewater Stevedoring Corp., 656 F.2d 74, 76 (4th Cir.1981).
On the one hand the AU assumed that Norfolk Ship could, upon an honest belief that it was entitled to do so, ask for, negotiate and accept a waiver of an employee’s right to employment as part of a settlement. It found that Norfolk Ship thought that it had, in the present case, done so. Yet when Norfolk Ship attempted to act pursuant to that belief, though implementation was flawed, the AU found the action impermissibly retaliatory. That elevates form over substance and irrationally whipsaws Norfolk Ship. Under the AU’s resolution, Norfolk Ship’s behavior would have been proper, the resignation provision enforceable and the section 49 claim barred had the resignation provision been properly written into the settlement agreement. The AU’s resolution allows the mere failure of integration into the written document to give rise to a retaliation claim, *190while admitting that including such a provision would have been in order. The failure to put a term requiring termination of employment into the agreement means that Norfolk Ship cannot enforce that term because it is not part of the agreement. Thus, Norfolk Ship had no right to terminate Nance on the basis of the settlement agreement. Since Norfolk Ship did not have that right it may have to rehire him. However, such a right to reinstatement would come, not' under the LHWCA, but under an employment agreement like a union contract or perhaps under a common law or other statutory right. If Nance has such a right he can enforce it under its terms. I offer no opinion on the existence or enforceability of such a right since the issue was not presented to this Court.
In the present case, Nance attempts to enforce a right to continued employment of another sort, the right to continued employment after making a LHWCA claim. That right is breached if the employer fires a claimant because he filed a claim. But that is not this case. Norfolk Ship fired Nance because it thought that he had agreed to be terminated. It was an incorrect reason but it was not an impermissible one.
A section 49 claim necessarily looks to the intent of the employer. The employer must have a retaliatory intent. Holliman, at 760-761 (citing Geddes v. Benefits Review Board, 735 F.2d 1412 (D.C.Cir.1984)). Here, the AU found that Norfolk Ship believed that it had a contractual right to terminate Nance. That is conclusive proof of lack of retaliatory intent, of intent to discriminate.
The AU (and the majority in its affirmance) instead, in a twist of logic, somehow inferred that the policy of asking for, negotiating and accepting such waivers to continued employment was tantamount to a discriminatory intent. That inference might be appropriate in a case in which there is little or no direct evidence regarding the employer’s intent, but that is not the case at bar. The AU concluded that Norfolk Ship terminated Nance because it thought it had a contractual right to do so. To infer in the face of that finding that the termination was in retaliation for claiming compensation under the LHWCA is irrational and arbitrary and should be set aside.
I would reverse the Board and, therefore, dissent.
. It is irrational and arbitrary to conclude that Norfolk Ship discriminated against Nance while simultaneously concluding that it acted pursuant to what it believed was its contractual right. In order for such conduct to be “discriminatory" for section 49 purposes, the acquisition itself of the contractual right and hence the belief of its existence must be forbidden. The Board recognized that logical necessity and found that the acquisition of the right is forbidden. I recognize that logical necessity vel non must be pursued and reach the issue but disagree with the Board’s interpretation of the LHWCA.
The majority suggests that the logical quagmire that I posit while persuasive at first glance disappears on further reflection. For me it does not disappear. The import of the majority's reflection is somewhat lost on me, but it suggests that the inconsistency can be removed if one considers that Norfolk Ship and Nance may not have agreed that Nance would resign. See, supra, at 187. Whether Norfolk Ship and Nance agreed for Nance to resign is not relevant to this claim of discrimination. As the majority has persuasively pointed out, because such an agreement was not made part of the Form LS-471, Norfolk Ship and Nance did not enforceably agree for Nance to resign.
The majority suggests that whether they actually agreed for Nance to resign and made a mistake in integration or whether they never agreed is important to resolution of whether Norfolk Ship discriminated against Nance. It is not. What is critical in the present case alleging discrimination is Norfolk Ship’s intent. Holliman v. Newport News Shipbuilding and Dry Dock Co., 852 F.2d 759 (4th Cir.1988). The AU found that Norfolk Ship believed that Nance had agreed to resign. That is the critical inquiry, and it was resolved by the AU.
If Norfolk Ship believes that Nance agreed to resign it does not discriminate against him when it terminates him unless its acquisition of the right (and belief) that Nance agreed to resign is itself discriminatory under the LHWCA. That issue must be reached to decide the case.
. See supra at 185-186 where the majority opinion discusses procedures incident to settlement approval,