Green v. Fairmont Hotel Mgmt

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                           No. 96-30353

                          Summary Calendar
                       _____________________


SUSAN HAMMOND GREEN,

                               Plaintiff-Appellant,

          v.

FAIRMONT HOTEL MANAGEMENT COMPANY; SWIG INVESTMENT COMPANY,
also known as SIC Company
                              Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                           (94-CV-4157 C)
_________________________________________________________________
                          October 14, 1996
Before KING, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Susan Green challenges the district court’s grant of summary

judgment in favor of the Fairmont Hotel Management Company in her

suit seeking severance pay after the termination of her employment.

The district court found that Green was precluded from recovery

because she had voluntarily signed a General Release and Covenant


     *
      Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

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Not to Sue at the time of her termination.              Finding no error, we

affirm.

                                I. BACKGROUND

        The Fairmont Hotel Management Company (“the hotel”) hired

Green     as   an   at-will   employee       in   September   1975.     Shortly

thereafter, Green became the hotel’s Director of Human Resources.

In August of 1993, Green was informed that she could no longer be

the Director of Human Resources.             Given the option of applying for

a lower level position or leaving, Green             chose to resign.

        In conjunction with her departure from the hotel, Green signed

a General Release and Covenant Not to Sue (“the Release”).               Prior

to signing the document, Green negotiated several changes in its

terms, such as the substitution of a $5,000 cash payment in lieu of

career counseling services.1       Including the $5,000, Green received

a total of $26,500 for signing the release.            In return, the release

provided that Green fully released the hotel “from all actions . .

. including but not limited to any claims relating to wages,

benefits, penalties and attorneys’ fees arising under applicable

federal, state or municipal statute, . . . [or] any state or

federal discrimination charges . . . .”                  The agreement also

releases the hotel from “any contract or tort claim related in any

manner to Releasor’s employment and/or termination.”

        The representations and warranties section of the Release

    1
     The hotel does not generally offer career counseling services
to terminated employees.

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provides that the Releasor “represents, warrants and agrees” that

she has signed the release voluntarily, and that she “[did] not

rely upon any statement, representation, or promise of Releasees or

of any agent, attorney, or other representative of or for Releasees

in executing this Release, or in settling this dispute.”                The

release further provides that the Releasor “acknowledges and agrees

that no other consideration has been or will be furnished or paid

by these Releases.”        The Release is “intended to be final and

binding and to be effective as a full             and final accord and

satisfaction    of   any   and   all   disputes   between   Releasees   and

Releasor.”

     Approximately eight months after signing the Release, Green

made a formal demand for additional severance pay.2           The Release

contains a mandatory arbitration clause, but the parties were

unable to agree on its scope.          Green subsequently filed suit in

Louisiana state court alleging that the hotel had violated a

Louisiana statute requiring the payment of any amount owed to an

employee upon termination.3 In the alternative, Green alleged that

the hotel’s failure to pay her two weeks severance pay for each

year of employment, as it had done on occasion for its male

     2
        The hotel has no written policy on severance pay.
    3
     Green alleged that she consulted an attorney who assured her
that signing the release would not preclude her from demanding
severance pay. Green did not disclose the name of the attorney
before the entry of summary judgment, but in her motion for
rehearing, she alleged that she had spoken to one of the hotel’s
attorneys.

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employees, constituted sex discrimination.              The defendants removed

to   federal   court    on   diversity       grounds   and    moved   for   summary

judgment on the grounds that the Release was valid and enforceable

as a matter of law, or, in the alternative, that Green ratified the

Release by keeping the money given to her by the hotel.                           The

district court granted the motion, and Green timely appealed.

                                II. DISCUSSION

       We review a summary judgment de novo, applying the same

standards used by the district court.             Norman v. Apache Corp., 19

F.3d 1017, 1021 (5th Cir. 1994).              In reviewing the evidence, we

view all facts and inferences in the light most favorable to the

nonmoving party.       Lemelle v. Universal Mfg. Corp., 18 F.3d 1268,

1272   (5th    Cir.    1994).    Summary       judgment      is   proper    “if   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).

       The district court’s jurisdiction was based on diversity of

citizenship.     Thus, the district court correctly applied Louisiana

law to this Louisiana-centered dispute.                Under Louisiana law, a

compromise, such as the Release, has the force of a judgment and

cannot be set aside in the absence of error in the person, error on

the matter in dispute, fraud, or violence.              LA. CIV.CODE arts. 3078

& 3079; Brown v. Drillers, Inc., 630 So. 2d 741, 747 & n.9 (La.



                                         4
1994); see Bailey v. Martin Brower Co., 658 So. 2d 1299, 1301 (La.

App. 1 Cir. 1995)(“A release of claim or claims, when given in

exchange for consideration, is a compromise and constitutes the

basis for a plea of res judicata.”).

     Green argued to the district court, and she argues here, that

the Release should not be enforced because she was materially

mistaken about whether it covered severance pay.       She claimed that

she only signed the Release after a lawyer - on rehearing, it

became the hotel’s lawyer - assured her that she would still be

able to pursue a claim for severance pay.       Green did not assert a

claim for fraud.   Green’s reliance on the erroneous advice of the

attorney, however, does not affect the enforceability of the

Release.

     Transactions or compromises “can not be attacked on account of

any error in law or any lesion.”       LA.CIV.CODE art. 3078; Brown, 630

So. 2d at 747; Kozina v. Zeagler, 646 So. 2d 1217, 1220 (La. App.

5 Cir. 1994); Carter v. Jefferson 597 So. 2d 128, 130 (La. App. 5

Cir. 1992), writ denied, 600 So. 2d 609 (La. 1992).        In Carter, the

court dismissed an insurance company’s demand of repayment of a

settlement.   Carter, 597 So. 2d at 131.      The insurance company had

not realized until after it had settled that the insured’s policy

did not include liability coverage.          Id. at 130.     Finding the

settlement to be enforceable, the court stated, “Alliance made an

error of law when it assumed Ms. Jefferson’s policy included

liability as well as collision and comprehensive coverage.            It

                                   5
cannot now attack its compromise for this error of law.”      Id.

Likewise, Green cannot now attack the Release based on her own

error of law.     The district court correctly concluded that the

Release signed by Green precluded her suit.

                          III. CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




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