IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-20870
_____________________
PAULINO ZAVALA,
Plaintiff-Appellant,
versus
CITY OF HOUSTON, TEXAS,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-3098)
_________________________________________________________________
September 24, 1999
Before JOLLY and SMITH, Circuit Judges, and SARAH S. VANCE,*
District Judge.
PER CURIAM:**
The issue presented in this appeal is whether Paulino Zavala
has waived his right to assert federal and state civil rights
claims against the City of Houston in this cause by entering into
a “Confidential Last Chance Agreement” and an “Acknowledgment and
Acceptance of the Offer of a Twenty Calendar Day Suspension.” We
conclude that the terms of the agreements do not evidence an intent
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
to waive the right to pursue these civil actions against the City
of Houston, Texas.
The agreements contain the following, relevant language:
Confidential Last Chance Agreement
I, Paulino Zavala, employee no. 84155, on this day agree
to accept the following terms of Police Chief C. O.
Bradford’s offer of a 20 calendar day suspension and non-
disclosure agreement.
***
I agree to waive any appeal I may have by law or
otherwise.
***
Neither I nor my representative will publish or disclose
any information about this procedure, investigation of
case no 96-1832 or settlement.
Acknowledgment and Acceptance of the Offer of a
Twenty Calendar Day Suspension
I, Paulino Zavala, Employee No. 84155, employed in the
City of Houston Police Department as a Police Officer, on
this day accept the offer of a 20 calendar day suspension
in lieu of an indefinite suspension from C. O. Bradford,
Chief of Police, and waive any and all rights to appeal
the suspension. I understand that this offer is made
pursuant to §143.119(f) of the TEX. LOC. GOV’T. CODE and
by accepting this offer of a 20 calendar day suspension,
I am waiving my rights of appeal including appeal to both
the Firefighters’ and Police Officers’ Civil Service
Commission and/or to a third party Hearing Examiner.
The City of Houston argues that the agreements are a release
or waiver by Officer Zavala of any state or federal claims that he
may have had as a result of the City’s investigation. In support
of its argument, the City points to the nondisclosure agreement as
evidencing a broad waiver of all rights to sue in any court. Thus,
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the City argues that because he can disclose no information
concerning his suspension in case number 96-1832, Officer Zavala is
foreclosed from pursuing this cause of action against the City for
employment discrimination and retaliation. We find no merit in
this argument based on the narrow waiver language embodied in each
agreement.
The release of federal claims is governed by federal law.
Williams v. Phillips Petroleum Co., 23 F.3d 930, 935 (5th Cir.
1994). Although public policy favors the voluntary settlement of
claims and enforcement of releases, a party advocating such a
release must demonstrate that his opponent signed a release that
addresses the claims at issue. Id. The “Confidential Last Chance
Agreement” and the “Acknowledgment and Acceptance of the Offer of
a Twenty Calendar Day Suspension” constitute a waiver of Officer
Zavala’s right to appeal his disciplinary suspension. This lawsuit
cannot possibly be considered an appeal from his disciplinary
suspension.
A waiver of a federal remedial right is not lightly to be
inferred. Watkins v. Scott Paper Co., 530 F.2d 1159, 1172 (5th
Cir. 1976). Any writing asserted as a waiver must specifically
address the rights that it allegedly waives and must be strictly
construed. Such a degree of specificity is necessary to
demonstrate an actual voluntary and knowing waiver. Furthermore,
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any ambiguity contained in a waiver, like any other contract, must
be construed against the party who drafted it.
As to the state law claim, a federal court exercising
supplemental jurisdiction over a state law claim must apply the
substantive law of the state in which it sits. United Mine Workers
v. Gibbs, 389 U.S. 715, 726 (1966). With regard to Officer
Zavala’s claim under the Texas Whistleblower Act, the sufficiency
of any waiver will be evaluated pursuant to Texas state law. Under
Texas law, in order to effectively release a claim, a releasing
instrument must mention the claim to be released. Victoria Bank &
Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991). Additionally,
general categorical release clauses are narrowly construed. Id.;
Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 422 (Tex. 1984).
Thus, the analysis of the validity of the waiver under Texas state
law does not render a significantly different result from the
analysis under federal common law. See HECI Exploration Co. v.
Holloway, 862 F.2d 513, 523 (5th Cir. 1988) (holding federal common
law and Texas state law on waiver do not differ significantly).
A straightforward reading of the writings in this case leads
to the conclusion that each agreement is limited to a specific
waiver of Officer Zavala’s right to appeal his twenty calendar day
disciplinary suspension in a specific case, number 96-1832. Under
no guileless reading of this narrow language can the “Confidential
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Last Chance Agreement” or the “Acknowledgment and Acceptance of the
Offer of a Twenty Calendar Day Suspension” be expanded to
constitute a waiver of Officer Zavala’s right to assert a civil
action against the City of Houston. Thus, the lower court erred in
holding that the City of Houston proved, as a matter of law, that
Officer Zavala released his federal and state civil rights claims.
Although these agreements plainly do not affect Officer
Zavala’s right to assert a claim for violation of federal or state
law in federal court, the nondisclosure clause contained in the
agreement may, or may not, limit his ability to successfully
prosecute any such claims. We do not address in any way how these
agreements may affect the admissibility of evidence in this
proceeding nor affect other rights or obligations that the parties
may claim as a result of these agreements. We only hold that the
agreements do not act as a bar to pursuing his claim in the
district court. How far that pursuit may go is, in the first
instance, for the district court to say.
For the forgoing reasons, the judgment of the district court
is REVERSED and REMANDED for further proceedings not inconsistent
with this opinion.
REVERSED and REMANDED.
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