United States Court of Appeals
For the First Circuit
No. 96-1885
GIDEL RIVERA-FLORES,
Plaintiff, Appellant,
v.
BRISTOL-MYERS SQUIBB CARIBBEAN, ET AL.,
Defendants, Appellees.
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on April 25, 1997 is corrected
as follows:
On the cover sheet, insert prior to date of decision "Jay A.
Garcia-Gregory and Fiddler, Gonzalez & Rodriguez on brief for appellee
Prudential Insurance Company."
United States Court of Appeals
For the First Circuit
No. 96-1885
GIDEL RIVERA-FLORES,
Plaintiff, Appellant,
v.
BRISTOL-MYERS SQUIBB CARIBBEAN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose A. Fuste, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Octavio A. Diaz-Negron, Idalia M. Diaz and Peter J. Porrata for
appellant.
Carl Schuster, with whom Maria Santiago de Vidal, Maria
Maldonado-Nieves and Schuster Usera Aguilo & Santiago were on brief
for appellees.
Jay A. Garcia-Gregory and Fiddler, Gonzalez & Rodriguez on brief
for appellee Prudential Insurance Company.
April 25, 1997
LYNCH, Circuit Judge. Gidel Rivera-Flores worked
LYNCH, Circuit Judge.
first as a machine cleaner and later as a line operator for
Squibb Manufacturing Inc. ("SMI") in Humacao, Puerto Rico.
Some two years after his employment was terminated under a
severance program, Rivera, who wore a prosthetic device in
place of his lower left leg, sued SMI and its insurer,
Prudential Insurance Co., under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., the
Employee Retirement Income Security Act ("ERISA"), 29 U.S.C.
1001 et seq., and other federal and Puerto Rico employment
statutes. The employer countered with a waiver and release
which Rivera had executed when his employment terminated and
for which he received certain benefits. Rivera responded
that the release was invalid. On cross-motions for summary
judgment, the district court entered summary judgment for the
defendants. Rivera appeals. This case raises an issue of
first impression in this circuit concerning the
enforceability under the ADA of waivers and releases of
claims by employees.
We hold that the general principles for evaluating
such waivers and releases, enunciated by this court for
claims arising under other employment statutes, apply to the
ADA as well: ADA waivers and releases must be knowing and
voluntary, as evidenced by the totality of the circumstances.
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Whatever the merits of any claims Rivera had
arising out of his employment,1 he presented no competent
evidence that created a genuine issue of material fact as to
whether his waiver and release were voluntarily and knowingly
given, and whether he had the capacity to give such a
release. We affirm.
I.
Rivera was born in 1953 and has a high school
education. He began working for SMI in June 1984; before
that he worked as a police officer for ten years. Rivera's
left leg had been amputated below the knee after a motorcycle
accident he suffered in 1982 when he was a police officer.
His work assignments at SMI, despite his requests for
accommodation (which were partially met), caused his stump to
become irritated and bleed. In pain, he began exhibiting
symptoms of, and eventually received a letter from a doctor
diagnosing him with, post-traumatic stress disorder and an
anxiety disorder.
Rivera left work due to disability in December
1992. In the spring of 1993, he received a letter inviting
him to participate in a voluntary separation plan. He sent a
letter accepting this invitation. He also applied for long-
1. There is no indication in the record that plaintiff first
presented his claim to the Equal Employment Opportunity
Commission ("EEOC"), which is a prerequisite to bringing suit
under the ADA. Defendants never raised this issue and it was
not argued before us. We decline to address the matter.
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term disability benefits available through the employer and
submitted a statement in support from his attending
physician. The insurer denied the request for long-term
disability benefits; Rivera sought reconsideration in
September of 1993 and submitted further documentation to the
insurer. Rivera pursued his claims for disability benefits
throughout 1993 and thereafter.2
In the fall of 1993, faced with the shutdown of
certain of its operations, SMI sent Rivera and other
employees a letter of dismissal stating that all employees
who wished to receive voluntary separation benefits had to
sign a waiver agreement. Under the terms of the Separation
Agreement and General Release Form (the "Agreement"), dated
October 18, 1993, the employee agreed that he would make no
legal claims against the company or its insurer.3 He
received, in turn, certain benefits beyond those he was
otherwise entitled to receive. The Agreement stated that the
2. In response to his claim for disability benefits, the
Social Security Administration found in September 1994 that
Rivera was disabled and suffered from pain, post-traumatic
stress disorder and dysthymic disorder.
3. The Agreement provided in relevant part that the employee
agreed that "he shall file no action against the Company, nor
against any entity or person associated with the Company
. . . before any agency or administrative instrument, board
or court, federal or local, which might be directly or
indirectly related to his employment with the Company or with
the termination of the same." The Agreement encompassed
causes of action including but not limited to the "'Americans
with Disabilities Act,' or the local legislation that
protects persons with physical and/or mental impairments."
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signatory acknowledged that he was signing the Agreement
voluntarily, that he fully understood the Agreement, that he
had been advised to consult with a legal representative, and
that he had seven days to revoke his consent. On December 1,
1993, Rivera executed the Agreement. He never revoked his
consent. He now claims that he signed the Agreement, which
he did not read at the time, under duress and while he was
suffering under a psychiatric disability.
II.
Rivera challenges the validity of the release on
three grounds: that enforcement of the release would be
contrary to the policies animating the ADA, that the evidence
raised a dispute as to whether the execution of the release
was knowing and voluntary, and that he should have been
permitted to take additional discovery. The first two issues
are intertwined.
Courts have, in the employment law context,
commonly upheld releases given in exchange for additional
benefits. Such releases provide a means of voluntary
resolution of potential and actual legal disputes, and mete
out a type of industrial justice. Thus, releases of past
claims have been honored under the laws prohibiting race and
gender discrimination. Warnebold v. Union Pac. R.R., 963
F.2d 222, 223-24 (8th Cir. 1992); cf. Alexander v. Gardner-
Denver Co., 415 U.S. 36, 52 (1974). Such releases have also
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been honored under the ADEA, which prohibits age
discrimination in employment, e.g., Pierce v. Atchison T. &
S.F. Ry. Co., -- F.3d -- (7th Cir. Mar. 27, 1997), as well as
under ERISA, e.g., Smart v. Gillette Co. Long-Term Disability
Plan, 70 F.3d 173, 181 (1st Cir. 1995); Rodriguez-Abreu v.
Chase Manhattan Bank, N.A., 986 F.2d 580, 587 (1st Cir.
1993).
Where Congress has wanted to insure particular
protections for the employees in the procedures for obtaining
releases, it has done so, for example in the Older Workers
Benefits Protection Act amendments to the ADEA. 29 U.S.C.
626(f). No such special procedures are set forth in the
ADA.
The protection Congress wished to afford to
disabled workers is consistent, we believe, with permitting
those workers to resolve their claims by executing a release
in exchange for benefits they would not otherwise receive.
The ADA clearly encourages private resolution of employment
disputes, such as by requiring that employers attempt to make
reasonable accommodations and that the EEOC try to settle
disputes informally. See, e.g., Hodges, Mediation and the
Americans with Disabilities Act, 30 Ga. L. Rev. 431, 437
(1996). The ADA also expressly provides that its enforcement
procedures shall be the same as those for Title VII, 42
U.S.C. 12117(a), and releases have long been accepted in
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that context. In addition, although claims concerning
employment arise under Title I of the ADA, it is noteworthy
that the EEOC Regulations under Title III of the ADA (public
accommodations) expressly provide for settlement of disputes.
28 C.F.R. 36.506.
Certainly there is nothing in the ADA prohibiting
such releases. Indeed, as the district court pointed out,
the report of the conference committee on the ADA evinces an
intent to permit individuals to settle or waive claims under
the ADA by express, voluntary agreement. H.R. Rep. No. 101-
596 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 598.
Prohibiting such waivers under the ADA on policy grounds
arguably would display the same stereotyping and patronizing
attitudes toward the disabled which Congress hoped to remedy
in enacting the ADA. We conclude that such releases are
permissible under the ADA, and turn to whether the release at
issue here was valid.
Waiver and release are affirmative defenses on
which the employer bears the burden. Fed. R. Civ. P. 8(c);
see Long v. Sears Roebuck & Co., 105 F.3d 1529, 1543 (3d Cir.
1997). At a minimum, judicial review of such waivers and
releases has been designed to ensure that they are "knowing
and voluntary." Smart, 70 F.3d at 181. That analysis
necessitates some focus on the rights being waived and the
congressional intention to protect such rights. This court
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has endorsed a "totality of circumstances" approach to
determining the validity of the waiver. Id. We have found
helpful, but not exclusive, a set of six factors identified
by the Second Circuit in Finz v. Schlesinger, 957 F.2d 78, 82
(2d Cir. 1992).4
And yet, a challenge to a release by a person who
asserted to the employer that he was disabled at the time of
execution of the release may, on particular facts, warrant
heightened judicial scrutiny.5 While certain claimed
disabilities may inherently raise a question about whether
the employee has the capacity to give a knowing and voluntary
waiver, that is not the case here. It is not enough for an
employee simply to assert that he was disabled at the time he
executed the release and the employer knew it. The
definition in the ADA of "disability" covers three
categories, including the mere perception that someone is
disabled. 42 U.S.C. 12102(2); Soileau v. Guilford of
Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997). Nor is it
4. The six factors are: (1) plaintiff's education and
business sophistication; (2) the respective roles of employer
and employee in determining the provisions of the waiver; (3)
the clarity of the agreement; (4) the time plaintiff had to
study the agreement; (5) whether plaintiff had independent
advice, such as that of counsel; and (6) the consideration
for the waiver. Smart, 70 F.3d at 181 n.3.
5. Unlike waiver of pension benefits under ERISA, waiver of
welfare benefits such as those at issue here are not, as a
general matter, subject to heightened scrutiny. Rodriguez-
Abreu, 986 F.2d at 587.
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enough to assert that the nature of the disability was
psychiatric. Not all disabilities and not all psychiatric
disabilities inherently involve a question about capacity to
act knowingly and voluntarily. Cf. United States v.
Schneider, -- F.3d -- (1st Cir. Apr. 15, 1997).
Thus, the operative question is whether there is a
genuine issue as to whether Rivera had the capacity to
execute the release knowingly and voluntarily. Summary
judgment is appropriate where "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). Here, the only sworn evidence as to Rivera's
condition and its effects is the statement in his own
affidavit: "I was very depressed because I could no longer
work; anxious and confused and was under psychiatric
treatment." Rivera failed to submit an affidavit from his
treating psychiatrist or from any other medical expert.6 The
court was left with no competent medical evidence going to
6. Rivera did submit a case summary prepared by his treating
psychiatrist. However, as defendants pointed out in their
reply memorandum in support of their motion for summary
judgment, this document constituted inadmissible hearsay. It
was not supported by an accompanying affidavit. Plaintiff
failed to remedy this evidentiary infirmity even after it was
brought to his attention in this manner.
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his capacity to execute the release. Cf. Garside v. Osco
Drug, Inc., 895 F.2d 46, 49-50 (1st Cir. 1990).
Rivera did submit the decision of the
administrative law judge who presided over his collateral
action seeking disability benefits under the Social Security
Act. The administrative law judge found that Rivera suffered
from dysthymia as well as post-traumatic stress disorder.
Even giving these findings some evidentiary weight they are
insufficient, without more, to create a genuine issue of fact
as to Rivera's mental capacity. Mere evidence of diagnostic
labels without content tying them to capacity to give valid
consent is inadequate to create an issue as to the
consequences of the disorders on an individual's capacity to
give valid consent.
Rivera never states in his affidavit that his
condition was such that he could not give voluntary and
knowing consent. The social security judge's decision says
nothing on these points. And, as we said, there was no
affidavit from any doctor. Furthermore, despite his
diagnosed dysthymia and post-traumatic stress disorder,
during this period he was actively pursuing his disability
claim and did not tell his employer and its insurer that he
lacked the capacity to do so. On this record, there is no
evidence sufficient to establish lack of capacity. In
reaching this conclusion, we say nothing about the outcome in
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a case involving similar facts in which the plaintiff put on
competent medical evidence.
We consider the remaining circumstances. Rivera
had 42 days to examine the Agreement,7 discuss it with
whomever he chose and ask questions before he signed it.
Rivera attempts to raise a dispute about when he actually
received the Agreement. However, the employer filed with its
summary judgment papers a receipt for the release executed by
Rivera. Rivera has not fairly met this evidence. At most,
his affidavit says that he did not recall if he received the
release then. That is insufficient to create a genuine issue
of fact. See Ayer v. United States, 902 F.2d 1038, 1045 (1st
Cir. 1990); cf. Perez de la Cruz v. Crowley Towing & Transp.
Co., 807 F.2d 1084, 1086-87 (1st Cir. 1986).
The district court sensitively analyzed the
totality of the circumstances here, commenting on Rivera's
lack of business sophistication. The court noted that Rivera
was given the Agreement and release along with a letter of
termination, which suggested there was little room for
negotiation. However, as the district court pointed out, the
language of the release is clear and unmistakable: the
waiver clause expressly mentions the ADA and states that all
7. The Agreement was internally inconsistent in that it
provided for at least a 45-day period for examining the
document but apparently expired 44 days after the date it was
issued. We need not reach this issue, however, as plaintiff
never claimed that the Agreement was invalid for this reason.
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claims for disability are released. The district court
concluded that Rivera's sense that he was treated unjustly in
this situation does not mean that his signing the Agreement
was not voluntary or knowing.
Rivera argues that the district court was required
to rule first on the merits of his liability claims against
the employer before reaching the issue of waiver. This
argument has the matter exactly backwards. Even if Rivera
had valid claims under the ADA and other statutes, he could
have waived those claims. It was both logical and efficient
to take up first the matter of waiver.
As for Rivera's argument that he was denied
discovery, it is too little and too late. Our review of the
district court's discovery-related decisions is for abuse of
discretion, and "[w]e will intervene in such matters only
upon a clear showing of manifest injustice." Mack v. Great
Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989).
Here, Rivera never argued to the district court that he
needed additional discovery before filing his opposition to
summary judgment; nor did he file an affidavit under Fed. R.
Civ. P. 56(f). Indeed, he filed a cross-motion for summary
judgment. Under these circumstances, there was no abuse of
discretion.
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For these reasons, to the extent (if at all) that
Rivera's remaining non-ADA claims have been preserved, the
waiver and release are valid as to them.
Affirmed.
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