NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 21, 2014*
Decided October 22, 2014
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14‐1765
PATINA LAWSON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 12‐C‐1190
J.C. PENNEY CORPORATION, INC., Rudolph T. Randa,
Defendant‐Appellee. Judge.
O R D E R
Patina Lawson sued her former employer, J.C. Penney, in federal district court
for discrimination and retaliation under Title VII and the Equal Pay Act. The court
granted summary judgment to J.C. Penney after finding it undisputed that Lawson
validly waived any right that she had to sue J.C. Penney on these claims. Because the
*
After examining the parties’ briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(c).
No. 14‐1765 Page 2
district court correctly determined that Lawson’s waiver of her claims is valid and
enforceable, we affirm.
Lawson worked for J.C. Penney from 2004 until her layoff in June 2012. With a
B.A. from the University of Wisconsin, she began her work there as a checkout clerk
and eventually became an associate software engineer, where she read technical
materials. She consistently received satisfactory job reviews and merit‐based pay
increases. But having expected to advance further, she filed a charge of discrimination
in March 2012, alleging that J.C. Penney refused to promote her and boost her pay
because of her race. One week later J.C. Penney informed Lawson that, as part of a
company‐wide reorganization, it was eliminating many positions, including hers.
After announcing the reorganization, the company paid Lawson her final two
months of regular compensation and proposed a severance package. The company
offered a payment of $8,174.71 (about 15% of her annual salary of $52,155) in return for
a release of any employment‐related claims. The release contains three important
features. First, it bars a wide range of suits. It releases the company “from all actions …
arising out of or in any way connected with or related to [Lawson’s] employment or the
termination of [her] employment, to the fullest extent permitted by law.” The release
covers suits under federal, state, or local anti‐discrimination or anti‐retaliation laws or
for lost, unpaid, or unequal wages. It specifically cites Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e to e‐17, and the Equal Pay Act, 29 U.S.C. § 206(d). Second, it
provided Lawson advice and time for reflection. In uppercase and bold print, the
release encouraged Lawson to read its terms carefully and consult an attorney before
signing it. It also gave Lawson 45 days to decide whether to sign it and 7 days to revoke
her release, once she signed it. And by signing, she acknowledged reading the release
and understanding it. Finally, the release provides that the law of Texas controls
questions of validity, interpretation, and performance.
Lawson accepted the severance offer. She signed the release and returned it 18
days after receiving it. Soon after, J.C. Penny delivered her the severance payment.
Lawson has never attempted to revoke her acceptance. Nor has she offered to return to
J.C. Penney the money that it paid her in exchange for her release.
After receiving a right‐to‐sue letter from the EEOC, Lawson sued J.C. Penney
under Title VII and the Equal Pay Act. J.C. Penney moved for summary judgment,
arguing that Lawson had waived and released her right to bring the lawsuit. The
district court agreed with J.C. Penney. It reasoned that, under federal law as reflected in
No. 14‐1765 Page 3
the Fifth Circuit (which it applied because it wanted to adhere to the law of the federal
jurisdiction that included Texas), the waiver was valid because Lawson had entered
into it knowingly and voluntarily.
Lawson argues on appeal that the release is invalid because she did not
understand it and the district court incorrectly applied Texas law in deciding otherwise.
We find no error. The district court did not apply Texas law; it applied federal law
(albeit by assuming that it had to follow the case law of the Fifth Circuit) to determine
the validity of her assent. The district court correctly used federal law, and we do not
view each circuit as “a separate jurisdiction rather than all being part of a single
national judiciary enforcing a uniform body of federal law.” Nightingale Home
Healthcare, Inc. v. Anodyne Therapy, LLC, 626 F.3d 958, 962 (7th Circ. 2010). Most circuits,
not just the Fifth, use federal law to require that a waiver of federal claims be knowing
and voluntary. See Pierce v. Atchison Topeka & Santa Fe Ry. Co., 65 F.3d 562, 571 (7th Cir.
1995). See also OʹHare v. Global Natural Resources, Inc., 898 F.2d 1015, 1017 (5th Cir. 1990);
Bormann v. AT & T Commcʹns, Inc., 875 F.2d 399, 403 (2d Cir. 1989); Coventry v. U.S. Steel
Corp., 856 F.2d 514, 523 (3d Cir. 1988); Torrez v. Pub. Serv. Co. of New Mexico, 908 F.2d
687, 689–90 (10th Cir. 1990); but see Lancaster v. Buerkle Buick Honda Co., 809 F.2d 539, 541
(8th Cir. 1987) (state law); Runyan v. Natʹl Cash Register Corp., 787 F.2d 1039, 1044 n.10
(6th Cir. 1986) (same). In applying federal law to determine whether a waiver is
knowing and voluntary, courts typically examine the employee’s education and
business experience, the clarity of the waiver, the time the employer allowed the
employee to consider the waiver before signing, whether the employee was not
otherwise entitled to the consideration for the waiver, and whether the employee had
any input in negotiating the waiver’s terms. Pierce, 65 F.3d at 571.
The undisputed facts show that Lawson knowingly and voluntarily released any
right she had to bring this lawsuit. Lawson is college educated and has worked in
positions requiring her to read technical materials. See Hampton, 561 F.3d at 717
(reasoning that high school diploma and some college and paralegal courses supported
finding waiver voluntary and knowing). The waiver prominently stated that Lawson
was giving up any right to sue J.C. Penney for discrimination under any law, including
Title VII and the Equal Pay Act, and that she understood this. It granted her 45 days to
consider the release and consult an attorney, ample time under the law. Compare id. at
717 (ruling that six weeks was “ample time” to consider buyout offer) with Pierce v.
Atchison Topeka & Santa Fe Ry. Co., 110 F.3d 431, 440 (7th Cir. 1997) (ruling that, by
giving employee only one business day to consider severance package, employer
created “inordinate time pressure”). Finally, in exchange for releasing her claims,
No. 14‐1765 Page 4
Lawson received about 15% of her annual salary—money that she was not otherwise
entitled to. We recognize that Lawson did not negotiate the terms of the release. That
factor, however, is outweighed by the factors otherwise showing substantive and
procedural reasonableness in the exchange. See Hampton, 561 F.3d at 717. We therefore
conclude that, on the undisputed record, Lawson knowingly and voluntarily waived
her right to file these claims.
In any event, summary judgment was correct because Lawson ignored the
tender‐back requirement. At no time has Lawson offered to return to J.C. Penney the
severance payment that she received from it in exchange for releasing the claims on
which she now sues. Because her claims fall within the scope of the waiver, she cannot
sue without first seeking to rescind the release. Hampton, 561 F.3d at 717. And rescission
requires that Lawson tender to J.C. Penney the consideration that she received. Id.;
Fleming v. U.S. Postal Service AMF OʹHare, 27 F.3d 259, 260–61 (7th Cir. 1994). Without
that tender, she cannot attempt to undo her release and sue. Hampton, 561 F.3d at 717.
Moreover, no exception to the tender requirement applies here: Neither party is alleging
fraud, Lawson received adequate consideration, and no statute abrogates the tender‐
back requirement for releases of claims under Title VII and the Equal Pay Act. See
Fleming, 27 F.3d at 261–62. Therefore, the district court’s grant of summary judgment
was correct for this additional reason.
AFFIRMED.