United States Court of Appeals
For the First Circuit
No. 01-1914
COURTNEY MELANSON,
Plaintiff, Appellant,
v.
BROWNING-FERRIS INDUSTRIES, INC. and ALLIED WASTE, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Shannon Liss-Riordan with whom Harold L. Lichten and Pyle, Rome,
Lichten & Ehrenberg, P.C. were on brief for appellant.
Andrew C. Pickett with whom Laurie J. Hurtt and Jackson Lewis
Schnitzler & Krupman were on brief for appellees.
February 19,2002
CAMPBELL, Senior Circuit Judge. In October 2000, Courtney
Melanson filed an action in the district court under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., against her
former employer, Browning Ferris Industries, Inc. and Allied Waste,
Inc. (the "Company").1
Melanson alleged that she had been subject to sexual
harassment while employed by the Company and that she had been laid off
in retaliation for her complaints of harassment. The Company defended
on the ground that, in consideration of her receipt of severance pay,
Melanson had executed a release waiving her right to sue and hence this
action was barred. Asserting that no genuine issues of material fact
existed as to the validity of the release, the Company moved for
summary judgment. Melanson responded that it could not be determined
on the summary judgment record that the release effectively waived her
statutory right to bring this suit. The district court disagreed and
granted the Company’s motion.
While there is no case in this circuit dealing explicitly
with an employee’s release of Title VII rights in similar
circumstances, our precedent leaves little room for doubt that such a
release, like a release of other federal statutorily-created rights,
must be knowing and voluntary, as evidenced by the totality of the
1
BFI and Allied Waste merged in late 1999. Although some of
the events described occurred prior to the merger, we refer to
both entities throughout as the Company.
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circumstances, and that, if it is, the terms of the release will
ordinarily be given their legal effect. Rivera-Flores v. Bristol-
Meyers Squibb Caribbean, 112 F.3d 9, 11 (1st Cir. 1997).2 Our conclusion
that the application of a release to a Title VII claim is governed by
the same principles as apply to other federal statutory claims is
supported by the Supreme Court’s statement in Alexander v. Gardner-
Denver Co., 415 U.S. 36, 51 (1974), that "presumably an employee may
waive his cause of action under Title VII as part of a voluntary
settlement." It is also supported by the case law from our sister
circuits, see, e.g., Bormann v. AT&T, 875 F.2d 399, 402 (2d Cir. 1989);
Stroman v. W. Coast Grocery Co., 884 F.2d 458, 461 (9th Cir. 1989);
Rogers v. Gen. Elec. Co., 781 F.2d 452, 454 (5th Cir. 1986). In the
present case, both the terms and the circumstances of the release in
question indicate that Melanson’s release of her Title VII rights was
knowing and voluntary. Melanson points to no competent evidence from
which a trier of fact could reasonably conclude otherwise. We affirm.
I.
Melanson was a junior in high school when, in April 1997, she
began working part-time for the Company as a customer service
2
Of course, an employee may not waive a claim pursuant to
the Age Discrimination and Employment Act, 29 U.S.C. § 621 et
seq., if the release does not also satisfy the stringent demands
set forth by Congress in the Older Workers Benefit Protection
Act. 29 U.S.C. § 262(f)(1); Oubre v. Entergy Operations, Inc.,
522 U.S. 422, 426 (1998).
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representative. Upon graduating from high school in May 1998, she
became a full-time, at-will employee. Melanson alleges that,
throughout her tenure at the Company, she was subject to repeated and
unwanted sexual advances by her immediate supervisor. While Melanson
did not report the harassment, Melanson’s then-boyfriend and Company
employee, Andre Nagy, brought it to the attention of management in May
1999. Immediately following the disclosure, Melanson requested a
stress-related leave of absence from work. During her leave, Melanson
contacted an attorney about the possibility of an employment
discrimination suit against the Company. She spoke briefly with the
attorney on the phone, but never attended an appointment they
scheduled. Upon her return to the Company in September 1999, Melanson
was assigned to a different office location than her alleged harasser.
Meanwhile, Browning Ferris was negotiating a merger with
Allied Waste, Inc. The merger, according to the Company, resulted in
the need to downsize its workforce. On October 1, 1999, Jack Manning,
the general manager of the Company, notified Melanson that she was
being laid off. Manning informed Melanson that the severance package,
which included two weeks of pay for every year of continuous employment
with the Company, would be sent to her for her review. Melanson
received the original severance package, including a benefits
calculation form and a release, on October 9, 1999. She immediately
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contacted Manning via e-mail to complain that the benefits calculation
was erroneous.
As you and I discussed on Friday October 1st, you
agreed to lay me off with a severance package of
two weeks for every YEAR OF SERVICE with BFI. I
received a package in the mail as you said I
would, and it said my date of hire was 4-1-98.
This is wrong. My start date with BFI was 4-1-
97. Granted, I was not hired at full time, but
nowhere does it say that I had to work there full
time. It reads exactly "BENEFIT FORMULA: Two
weeks of weekly BASE SALARY or BASE WAGES per
continuous Year of Service. . . ." Instead of
receiving 2 weeks at 400, I should be receiving
4 weeks at 400.
Manning responded that a new severance package, reflecting
a start date of April 1, 1997, would be sent to her. After a
frustrating delay of almost two months, during which Melanson
threatened to file a "formal complaint," she received a new severance
package with the same error. Although it was not company policy to
provide severance pay for years of part-time work, Manning instructed
Melanson to correct the start date and to alter the calculation amount
from $800 to $1,600 with a note to the processor to contact Manning
about the changes. Melanson complied, signing and dating the benefit
calculation form on December 7, 1999. The previous day, Melanson had
read and signed the two page release included in the severance package.
The release stated among other things, that the employee "knowingly
and voluntarily releases and discharges forever [the Company] from any
and all . . . claims, demands, actions and causes of action . . .
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arising out of or related in any way to the employee’s
employment. . . .," including explicitly those arising under the Civil
Rights Act of 1964, of which Title VII is a part, and any state
employment statutes including "employment discrimination statutes."3
Melanson returned these documents, including the executed release, to
the Company and received in return a $1,600 severance check which she
said she needed to relieve her financial burdens and apparently
thereafter utilized in some fashion.
Approximately six months following her discharge, Melanson
again contacted an attorney regarding her claims of sexual harassment
3In pertinent part the release provided:
A. Employee . . . knowingly and voluntarily releases
and discharges forever [the Company] from any and
all debts, claims, demands, actions and causes of
action . . . arising out of or related in any way
to the Employee’s employment . . . .
B. . . . Employee knowingly and voluntarily
releases any claims arising under the Civil
Rights Acts of 1866, 1871, 1964 and 1991 . . . ;
state employment statutes including but not
limited to wage payments statutes, employment
discrimination statutes . . . .
C. Employee understands and agrees that by signing
this Release, Employee is giving up any and all
claims arising out of or relating in any way to
Employee’s employment or termination thereof . .
.
D. The Release is given in exchange for any benefits
Employee will receive . . . [which] Employee
agrees are sufficient consideration for the
Release.
E. Employee acknowledges and agrees that he/she has
been given 45 days to consider this Release,
understands its terms, and is signing it
knowingly and voluntarily.
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and her subsequent termination from the Company. To clear the way for
a lawsuit, Melanson attempted to return her severance pay, an offer
that was rejected by the Company. This suit followed. Recognizing
that the effect and validity of the release were potentially
dispositive, the parties agreed to bifurcate the litigation to resolve
the enforceability of the release before spending their resources on
protracted discovery on the merits of Melanson’s sexual harassment
allegations.
II.
Waiver and releases are affirmative defenses on which the
employer bears the burden. Fed. R. Civ. P. 8(c). It is incumbent upon
the employer to establish that the release was knowing and voluntary.
Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d 173, 181 (1st
Cir. 1995). In determining the validity of a release, this court has
adopted a "totality of the circumstances" approach. Id. To aid in
this inquiry, we have looked to a non-exclusive set of six factors.4
It bears repeating that "[g]enerally, no single fact or circumstances
is entitled to talismanic significance on the question of waiver." Id.
It is not necessary that each be satisfied before a release can be
4The six factors are: (1) plaintiff’s education and
business experience; (2) the respective roles of the employer
and employee in the 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.
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enforced. The essential question is whether, in the totality of the
circumstances, the individual's waiver of her right can be
characterized as "knowing and voluntary."
We review the district court’s grant of summary judgment de
novo. Lennon v. Rubin, 166 F.3d 6, 8 (1st Cir. 1999). Summary
judgment is appropriate only 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). Once a defendant moves for
summary judgment and places in issue the question of whether the
plaintiff's case is supported by sufficient evidence, the plaintiff
must establish the existence of a factual controversy that is both
genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st
Cir. 1990). To carry this burden, the plaintiff must "affirmatively
point to specific facts that demonstrate the existence of an authentic
dispute." McCarthy v. N.W. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.
1995).
Melanson claims that the record reflects a significant
factual dispute regarding whether she knowingly and intentionally
released her claims against the Company. Melanson says she was under
financial stress and was a young, depressed, single mother with a
limited education, and without independent advice when she signed and
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returned the release. Further, she contends that she lacked the
business acumen to negotiate the terms of the release; that the release
lacked clarity; and finally that the consideration for the release was
inadequate. In essence, Melanson attempts to implicate all six factors
in her argument.
In her affidavit before the district court, Melanson
outlined, in some detail, a history of depression and treatment for
bulimia. Melanson did not, however, present competent medical evidence
indicating that these conditions would cause her to lack the capacity
to make a knowing and voluntary waiver of her rights. Rivera-Flores,
112 F.3d at 12; see also Morais v. Cent. Beverage Corp. Union
Employee’s Supplemental Ret. Plan, 167 F.3d 709, 714 (1st Cir. 1999).
We made clear in Rivera-Flores that an incapacity to knowingly and
voluntarily execute a release will not be inferred simply from the
showing, standing alone, that the party suffered from some psychiatric
disorder. Rivera-Flores, 112 F.3d at 12. Nor may incapacity or
duress, without more, be inferred from merely the emotional and
financial stress associated with loss of a job. To hold otherwise
would be to make it virtually impossible for employers and employees to
enter into binding settlements of employment disputes occasioned by job
losses, lay-offs and the like. The record lacks competent evidence
that Melanson was without the capacity to make a knowing and voluntary
waiver of her Title VII rights at the time she executed the release.
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Nor do the other factors argued by Melanson demonstrate a
genuine factual issue concerning whether the release was knowing or
voluntary. Melanson was not deficient in education. To the contrary,
she graduated from high school with honors and was enrolled in college
courses. The language in the release, which Melanson admitted to
reading prior to signing, is well within a lay person’s comprehension.5
It expressly discharges the Company from all claims and causes of
action arising out of or relating to Melanson’s employment and
termination; it specifically releases any claims under the Civil Rights
Act of 1964, to which Title VII belongs, and under state employment
discrimination statutes. Morais, 167 F.3d at 714 (upholding a clearly
worded release signed by plaintiff with an eighth grade education); see
5Melanson’s assertion in her affidavit that when she saw the
release she "did not have time to think about it" does not
undercut her deposition testimony that she read the release
prior to signing it. On appeal, Melanson takes issue with the
district court’s decision to disregard portions of her affidavit
"which clearly contradicted her earlier deposition testimony."
Melanson v. Browning Ferris Indus., Inc., No. 00-12102, 2001 WL
1094910 at *2 (D. Mass. Oct. 25, 2001). A party may not create
an issue of fact by submitting an affidavit in opposition to a
summary judgment motion that clearly contradicts the affiant's
previous deposition testimony. Morales v. A.C. Orssleff’s EFTF,
246 F.3d 32, 35 (1st Cir. 2001); Colantuoni v. Alfred Calcagni
& Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994). The district court
failed to expound on what it deemed "clear contradictions" thus
it is difficult to ascertain what contradictory factors were
involved in its evaluation but even considered in its entirety,
the affidavit contains no information that creates a genuine
issue of material fact as to the knowing and voluntary nature of
Melanson’s release.
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note 3, supra. Melanson’s ability to read and understand that she was
releasing all potential claims is not disputed. Her actual complaint
seems not to be that she did not know she was releasing future claims
of the type she now pursues, but that she "should be able to break the
release" because "the $1,600 I had received in severance pay was not
nearly adequate to compensate me for the distress I had suffered."
Melanson, moreover, was not rushed into signing the release.
She had approximately two months to review the release and seek
independent advice if she so wished. During this time, Melanson could
have contacted the same attorney she had spoken to just months earlier
to discuss her sexual harassment suit. The Company did not set a
deadline for the return of the severance package and it neither
encouraged nor discouraged Melanson from obtaining outside counsel.
Finally, the consideration for the release, while not large when
compared to the potential damages in a successful sexual harassment
case, nonetheless provided Melanson, an at-will employee, with benefits
that the Company was not obligated otherwise to provide. Smart, 70
F.3d at 182.
As we can discern no genuine issue of material fact regarding
whether Melanson made a knowing and voluntary release of her rights, we
agree with the district court that the release is valid and enforceable
in accordance with its terms.
Affirmed. Costs to appellees.
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