United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 20, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50723
Summary Calendar
MICHAEL CHEN,
Plaintiff-Counter Defendant-
Appellant,
versus
APPLIED MATERIALS, INC.,
Defendant-Counter Claimant-
Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CV-602
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Applied Materials, Inc. (Applied) hired Michael Chen as a
Software Engineer on August 28, 2000. Very shortly thereafter,
Applied discovered problems with his performance, ultimately
leading to his departure on April 29, 2001. Chen participated in
Applied’s Voluntary Separation Plan (VSP), pursuant to which he
signed a general release of claims. In exchange for $33,000
*
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that this opinion should not be published and is not precedent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.
No. 03-50723
-2-
severance pay, Chen gave up his right to any and all claims,
known and unknown, under Title VII of the Civil Rights Act of
1964. In the face of his explicit and unequivocal release of
claims, Chen nonetheless filed a complaint with the Equal
Employment Opportunity Commission and eventually this lawsuit
alleging discrimination based on race and national origin.1
Chen appeals the district court’s denial of his motion for
summary judgment, its grant of summary judgment to Applied, and
its award of attorney’s fees and costs to Applied. He also makes
a myriad of unsubstantiated and meritless claims with respect to
the judge of the district court.
Even if Applied’s answer was untimely filed, the district
court did not abuse its discretion in denying Chen’s motion for
summary judgment based on default.2 Cf. In re Dierscheke, 975
F.2d 181, 183 (5th Cir. 1992).
Chen argues that Applied was not entitled to summary
judgment because (1) he signed the release under duress, (2) he
did not receive consideration for the release, (3) the release is
void, and (4) his claims are not covered by the release. First,
Chen’s allegation that he felt he had to sign the release in
order to have a chance at continued employment is insufficient to
establish duress. The release stated in plain language that he
1
Chen also asserts that he was discriminated against based
on age, but he did not include this claim in his complaint.
2
Applied disputes whether its answer was untimely filed,
but this question is irrelevant to resolution of the case.
No. 03-50723
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was releasing all claims as a condition of his severance payment,
that he had 45 days to review the release, and that he was
advised to consult an attorney before signing it. See Williams
v. Phillips Petroleum Co., 23 F.3d 930, 935 (5th Cir. 1994).
Second, Chen’s claim that the money he received was wages, rather
than consideration for the release, is not supported by the
record. The Earnings Statement accompanying the check listed the
money as “VSP Pay,” and Chen has submitted no affidavit or other
competent summary judgment evidence that it was intended as
normal wages. Third, Chen signed and returned the release within
the 45-day limitation, so it is not void. The time spent by
Applied in its inter-office mail delivery is not relevant to
Chen’s date of delivery. Fourth, Chen’s claim of discrimination
in Applied’s refusal to rehire him is based on false promises he
contends were made to him to induce him to sign the release.
This claim is based on a promise allegedly made before the
release and is therefore prohibited by it. The district court
properly granted summary judgment to Applied based on the
release.
Applied was entitled to attorney’s fees and costs based on
the release. Applied’s entitlement to the fees and costs comes
from the contractual provision in the release requiring Chen to
pay all attorney’s fees and costs of any suit he brings against
Applied in violation of the release. Thus Chen’s arguments based
on the standards to be used in awarding attorney’s fees in civil
No. 03-50723
-4-
rights lawsuits are inapposite. The district court did not abuse
its discretion in determining the proper amount of the fees. See
Davis v. City of Abbeville, 633 F.2d 1161, 1163 (5th Cir. 1981).
Chen claims for the first time on appeal that the district
court should have recused himself. Requests for recusal not
raised until appeal are waived. See Andrade v. Chojnacki, 338
F.3d 448, 454 (5th Cir. 2003). Chen’s allegations of bias have
no support, and he has not shown plain error.
AFFIRMED.