United States Court of Appeals,
Eleventh Circuit.
No. 95-4374.
Julio N. PUENTES, Carlos Sardina, Raul J. Paredes, Plaintiffs,
Sergio A. Balsinde, Lazaro O. Ginart, Plaintiffs-Counter-
Defendants-Appellants,
v.
UNITED PARCEL SERVICE INCORPORATED, Defendant-Counter-Claimant-
Appellee.
June 20, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-250-CIV-UUB), Ursula Ungaro-Benages,
Judge.
Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit
Judge.
CARNES, Circuit Judge:
The plaintiffs, Lazaro Ginart and Sergio Balsinde, were
terminated from their employment with the defendant, United Parcel
Service, Inc. ("UPS"), after working for the company for fourteen
and fifteen years, respectively. At the time of their
terminations, both plaintiffs were offered substantial severance
packages and the ability to "resign for personal reasons," on the
condition that they execute unambiguous releases waiving all
employment discrimination claims arising out of their
terminations.1 Both plaintiffs executed the releases.
Thereafter, the plaintiffs filed this lawsuit against UPS
alleging that they were unlawfully terminated as a result of
1
The plaintiffs do not contest that the release
unambiguously provides for a waiver of employment discrimination
claims.
employment discrimination "on the basis of national origin and/or
race," as part of UPS's ongoing pattern of terminating
management-level Hispanic employees and replacing them with
non-Hispanics. UPS moved for summary judgment, asserting that the
plaintiffs' claims were barred because each had knowingly and
voluntarily executed documents releasing UPS from liability for all
such claims. The district court granted summary judgment on that
2
basis and certified its judgment pursuant to Rule 54(b). The
plaintiffs appeal from that summary judgment. Because there is a
question of material fact regarding whether the plaintiffs were
given adequate time to review the releases before executing them,
we reverse the judgment of the district court.
DISCUSSION
In reviewing the district court's grant of summary judgment,
this Court must independently apply the same legal standards that
control the district court. Thrasher v. State Farm Fire and Cas.
Co., 734 F.2d 637, 638 (11th Cir.1984). In doing this, we review
the record and the district court's legal conclusions de novo. We
must determine whether disputed issues of fact exist, but we cannot
resolve factual disputes. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50, 106 S.Ct. 1505, 1510-11, 91 L.Ed.2d 202 (1986).
All evidence submitted must be viewed in a light most favorable to
the plaintiffs, who oppose the motion. See Matsushita Electric
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
2
Certification was necessary because another plaintiff was
involved in the suit, but not addressed in the summary judgment,
and because the plaintiffs also presented claims for slander,
which had not been ruled upon by the district court and which are
not relevant to this appeal.
1348, 1356, 89 L.Ed.2d 538 (1986).
When an employee knowingly and voluntarily releases an
employer from liability for Title VII and § 1981 claims with a full
understanding of the terms of the agreement, he is bound by that
agreement. E.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 52
& n. 15, 94 S.Ct. 1011, 1021 & n. 15, 39 L.Ed.2d 147 (1974);
Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 1352 (11th Cir.1983).
However, the waiver of such remedial rights must be closely
scrutinized. Freeman, 700 F.2d at 1352; see also Coventry v.
United States Steel Corp., 856 F.2d 514, 522-23 (3d Cir.1988) ("In
light of the strong policy concerns to eradicate discrimination in
employment, a review of the totality of the circumstances,
considerate of the particular individual who has executed the
release, is also necessary.").
In determining whether a release was knowingly and
voluntarily executed, courts look to the totality of the
circumstances. Factors that guide a court include:
the plaintiff's education and business experience; the amount
of time the plaintiff considered the agreement before signing
it; the clarity of the agreement; the plaintiff's
opportunity to consult with an attorney; the employer's
encouragement or discouragement of consultation with an
attorney; and the consideration given in exchange for the
waiver when compared with the benefits to which the employee
was already entitled.
Beadle v. City of Tampa, 42 F.3d 633, 635 (11th Cir.), cert. denied
--- U.S. ----, 115 S.Ct. 2600, 132 L.Ed.2d 846 (1995); see also
Gormin v. Brown-Forman Corp., 963 F.2d 323, 327 (11th Cir.1992).
The plaintiffs do not seriously contest that they each had
sufficient business experience to evaluate the releases they were
asked to sign, nor do they contest the clarity of the release
language. Moreover, we agree with the district court that the
consideration given in exchange for the waiver exceeds the benefits
to which the plaintiffs were already entitled. That leaves as the
plaintiffs' principal assertions that they were not given adequate
time to consider the agreement, and that they were not given a fair
opportunity to consult an attorney.
There is no bright-line test for determining what is a
sufficient amount of time for an employee to consider a release and
consult with an attorney before the employee is considered to have
signed the release knowingly and voluntarily. See Carroll v.
Primerica Fin. Servs. Ins. Mktg., 811 F.Supp. 1558, 1566
(N.D.Ga.1992) (holding that "there is a question as to whether Holt
was given three full days or less than one day to sign her
release," and that "[i]f she was given only one, then there is
indeed a genuine issue as to whether she was given sufficient
time"); E.E.O.C. v. American Express Publishing. Corp., 681
F.Supp. 216, 220 (S.D.N.Y.1988) (finding that "[t]hree days, while
not conclusive as to involuntariness, is sufficiently short to
create a question on the subject [for summary judgment purposes]");
Constant v. Continental Tel. Co., 745 F.Supp. 1374, 1382
(C.D.Ill.1990) (finding that time period between the Friday upon
which the employee received the release form and the Tuesday by
which he was required to sign it was adequate time, in light of
fact that during that "relatively short time," the employee was
able to obtain legal advice with which he was apparently
satisfied); Mullen v. New Jersey Steel Corp., 733 F.Supp. 1534,
1544-45 (D.N.J.1990) (finding that employee's signing of release
was knowing and voluntary when he had fourteen days to consider the
release); Pears v. Spang, 718 F.Supp. 441, 446 (W.D.Pa.1989)
(finding that the fact that the employee signed the release within
"several days" did not make her signing unknowing or involuntary,
in light of fact that the employer had not set a deadline by which
the employee was required to sign the release). However, the cases
seem to indicate, and we conclude, that absent some reason for
urgency, twenty-four hours is too short a period.
In this case, plaintiffs have given sworn testimony that they
were only given twenty-four hours to decide whether to sign the
releases, and that they understood that the offer would not be
valid longer than that. UPS denies that it imposed a twenty-four
hour time limitation upon the plaintiffs, but that is an issue to
be decided by a jury. Plaintiff Ginart testified in his deposition
that Saunders, the UPS manager terminating him, said, "I will give
you 24 hours to make your decision and I will be waiting for your
call as to whether or not you are going to be signing the release
form or not." Saunders testified to the contrary, that he placed
no time limit on Ginart, that he did not schedule another meeting
or set any deadline when he and Ginart concluded their first
discussion of the severance package, and that Ginart took all
initiative to call him up the following morning to say that he had
decided to sign the release form.
Likewise, Plaintiff Balsinde testified that Stevens, the UPS
manager terminating him, told him to contact him the following
morning to let him know whether he would sign the release form.
Stevens testified that he did tell Balsinde that "if he wanted me
involved with anything with regards to his resignation, that I
would be leaving by the end of the next day and that he could call
me, but he was free to call us any time that he wanted to call us."
If in fact the plaintiffs were only given twenty-four hours to
decide whether to sign the releases, that was insufficient time.
It is undisputed that neither plaintiff consulted with an attorney
before signing the releases, and a twenty-four hour time limitation
would have substantially impeded their ability to do so. Indeed,
when pressed at oral argument, UPS's attorney could offer no
justification for such a short time period.
Viewing the evidence in the light most favorable to the
plaintiffs, as we must, see Matsushita Electric, 475 U.S. at 587,
106 S.Ct. at 1356, means that "what we state as "facts' in this
opinion for purposes of reviewing the rulings on the summary
judgment motions may not be the actual facts. They are however,
the facts for present purposes." Swint v. City of Wadley, 51 F.3d
988, 992 (11th Cir.1995). With those caveats, what we must
consider as the facts for present purposes are that the plaintiffs
were given only twenty-four hours to decide whether they would sign
the releases and accept the severance packages. Additionally, the
plaintiffs had no role in deciding the terms of the releases. None
of the terms of the release were negotiated. The plaintiffs were
simply handed a printed form. Ginart requested to take a copy of
the release form home overnight to think about it, and was told
that he could not take the form out of the UPS office, because it
was a UPS document and UPS property. There is no good reason why
UPS could not provide Ginart a copy of the release form that it was
asking him to voluntarily and knowingly sign. That, like a 24-hour
time constraint, could have been motivated by a desire to impede
the employee's ability to consult with an attorney.
These factors, particularly when inferences are drawn in the
plaintiffs' favor, as is required on a motion for summary
judgement, raise a genuine issue of material fact about whether the
plaintiffs voluntarily and knowingly executed the releases. In
other words, the evidence in this case is such that a factfinder
could find that the plaintiffs did not knowingly and voluntarily
execute the releases. Accordingly, that issue may not be resolved
by summary judgment. See Fed.R.Civ.P. 56.
CONCLUSION
The judgment of the district court is REVERSED, and the case
REMANDED for further proceedings consistent with this opinion.