Appendix — Hurdle v. Sears, Roebuck & Co.

Supreme Court, U.S. |

FILED

i>.)

~~ 97.1138 Wl 2 1997

CASE NO. of -THE-CLER

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997 -

PERRIN W. HURDLE

Petitioner,

versus

SEARS, ROEBUCK AND COMPANY

Respondent,

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX

Lisa D. Collums

2208 18th St., Suite B

P. O. Box 593

Gulfport, MS 39502

(601) 863-5577

MS BAR NO.: 6399

Counsel for Petitioner

Al

INDEX TO APPENDIX

Opinion of the Fifth Circuit............

Order of Dismissal! by the District Court . . .

Memorandum Opinion by the District Court

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A5

A7

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DOCUMENT

Opinion of the Fifth Circuit

Perrin W. Hurdle

VS.

Sears, Roebuck and Company

ACURA Te SHO 46 ivan Mbenesialbth, at ciate Guat fsnmened 2 Sh Uh na arene pe NN eed ore

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 96-60321

Summary Calendar

PERRIN W. HURDLE

Vv.

SEARS, ROEBUCK AND COMPANY

PER CURIAM.

JONES, DeMOSS and PARKER, for the Court:

Appellant Perrin Hurdle appeals the summary

judgment dismissal of his age-discrimination lawsuit. He

argues that genuine issues of material fact exist which

preclude summary judgment; that the district court violated

his constitutional rights by holding that an otherwise invalid

waiver could be ratified; and that, even if it had been

ratified, the waiver he executed did not bar his age-

discrimination claim. We have reviewed the record and the

district court’s opinion and conclude that summary

judgment was properly awarded in favor of Appellee Sears,

Roebuck and Company. Accordingly, we affirm for

essentially the reasons given by the district court. See

Blakeney v. Lomas Info. Sys., Inc., 65 F.3d 482, 484-85 (Sth

Cir. 1995), cert. denied, 116 S.Ct. 1042 (1996); Wamsley v.

Champlin Refining & Chem., Inc., 11 F.3d 534, 539-40 (Sth

Cir. 1993), cert. denied, 115 S.Ct. 1403 (1995).

Hurdle’s constitutional arguments, raised for the

first time on appeal, do not show error, plain or otherwise.

AFFIRMED.

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DOCUMENT

Order of Dismissal by the U.S. District Court

Perrin W. Hurdle

vs.

Sears, Roebuck and Company

Pea

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

PERRIN W. HURDLE __

V.

SEARS, ROEBUCK AND COMPANY

ORDER OF DISMISSAL

This matter having come before the Court on the motion

of the Defendant, Sears, Roebuck and Company, for summary

judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure, and the Court having granted said motion in a

Memorandum Opinion of even date herewith; and there being

no other claims asserted by the Plaintiff.

IT IS, THEREFORE, ORDERED AND ADJUDGED,

that the above-styled cause and action should be, and the same

is hereby, dismissed with prejudice.

SO ORDERED AND ADJUDGED, this the 11th day

of April, 1996.

/s/ David Bramlette

UNITED STATES DISTRICT JUDGE

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DOCUMENT

Memorandum Opinion of U.S. District Court

Perrin W. Hurdle

vs.

Sears, Roebuck and Company

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

PERRIN W. HURDLE

SEARS, ROEBUCK AND COMPANY

MEMORANDUM OPINION

Before the Court is the motion of the Defendant, Sears,

Roebuck and Company ("Sears"), for summary judgment

pursuant to Rule 56 of the Federal Rules of Civil Procedure. In

support of said motion, Sears offers the executed release of the

plaintiff, Perrin Hurdle ("Hurdle"), discharging Sears from any

liability Sears may have arising out of Hurdle’s employment

termination. This motion necessarily involves certain

requirements codified at Title 28 Section 626(f), commonly

referred to as the Older Worker Benefit Protection Act

("OWPA"). Moreover, this Court has been called upon to

interpret said release in light of general contract law as it applies

to voidability and recision. Having reviewed the memoranda of

counsel, the attached documentation, the applicable statutory

and case law, and being otherwise fully advised in the premises,

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this Court is of the opinion that said motion is well-taken and

should be granted for the reasons set forth below.

FINDINGS OF FACT

The facts, case in a light most favorable to the plaintiff,

establish that Hurdle was terminated from his position as

Assistant Manager of the Facilities following company

reorganization. On the afternoon of July 20, 1993, store

manager Rick Wickboldt contacted Hurdle and asked Hurdle to

come to the store. Upon retiring to Wickboldt’s office,

_Wickboldt informed Hurdle that he was being laid off. Hurdie

avers that Wickboldt told him that in order to obtain severance

pay he must execute a waiver. Hurdle believed this step to be

a mere formality. Moreover, Hurdle contends that Wickboldt

expressly assured him that said release would not affect any

rights Hurdle may have against Sears for age discrimination.

Hurdle testified in his deposition that he did not read the

document but simply "scanned it." Hurdle admits that he may

have read the words but qualifies said admission by arguing that

he did not understand them at the time. Later in his deposition

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testimony, Hurdle avers that he never was advised in writing or

given the opportunity to seek legal counsel. Hurdle, does,

however, testify that he was not coerced to sign the release. The

entire meeting lasted no more than thirty minutes.

The release in question provided Hurdle forty-five days

in which to consider signing the release. In addition, a seven day

revocation period was afforded. Hurdle admits that he was

aware of, and understood, these provisions when he signed the

release. In fact, Hurdle argues that he attempted to rescind the

release with the seven day period. While Hurdle acknowledges

the presence of the forty-five day provision, he argues that he

was afforded no more than thirty minutes despite that provision.

Explaining his attempt at recision, Hurdle testified that

he contacted the Equal Employment Opportunity Commission

and relayed his story. Hurdle avers that the EEOC informed

him that he did not have a viable cause of action. Hurdle has

not, however, demonstrated to this Court that he contacted Sears

in an effort to make Sears aware of his intent at any time during

this seven day period. Following his encounter with the EEOC,

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Hurdle took no further action.

As provided by the release, Hurdle received his

entitlement under the severance package. Hurdle has not, to

date, returned said money to Sears. Hurdle has, however, set

the funds aside in a separate account. Hurdle explained by

answering the following questions:

Q. Okay. Have you at any time since your discharge

offered to return any of the money that Sears paid you following

this -- following July of "93?

A. The money was all put in an account. It’s still sitting

there until this matter is resolved.

Q. Have you ever offered it back to Sears?

A. Not until I see get a forum from someone that will

go ahead and let’s resolve this.

Q. Is your answer "no" to that question?

A. That’s correct.

A brief summary of Hurdle’s contentions will aid in tying

these factual allegations together. In short, Hurdle contends that

he signed said release under duress. As described by Hurdle, "I

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had a financial gun stuck at my head at a moment’s notice."

Hurdle further alleges misrepresentation inasmuch as Hurdle

avers that Wickboldt assured him that said waiver would not

preclude a suit based on age discrimination.

ST OF REVIEW

Summary judgment is designed "to secure the just,

speedy, and inexpensive determination of every action."

Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106

S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation and internal

quotation omitted); see Barry v. Armstrong Rubber Co., 780

F.Supp. 1097, 1099 (S.D.Miss.1991), aff'd, 989 F.2d 822 (Sth

Cir.1993), cert. denied, 114 S.Ct. 1067 (1994). A grant of

summary judgment is appropriate when, viewed in the light most

favorable to the nonmoving party, "[t]he 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 moving party bears the initial burden of establishing

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the absence of genuine issues of material fact. Little v. Liquid

Air Cor, 37 F.3d 1069 (Sth Cir. 1994)(en banc). Once the

burden of the moving party is discharged, the burden shifts to

the nonmoving party to go beyond the pleadings and show that

summary judgement is inappropriate. Litttle, 37 F.3d at 1071.

The nonmoving party is obligated to oppose the motion either

by referring to evidentiary material already in the record or by

submitted additional evidentiary documents which set out

specific facts indicating the existence of a genuine issue for trial.

Fed.R.Civ.P. 56(e); Fields v. South Houston, 922 F.2d 1183, 1187

(Sth Cir.1991). A mere scintilla will not defeat a motion for

summary judgment; there must be sufficient evidence upon

which "a reasonable jury could return a verdict for the

nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see also

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986)

(finding summary judgment appropriate even if "there is some

metaphysical doubt as to the material fact"). If the nonmovant

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satisfies its burden, summary judgment will not be granted.

Fields, 922 F.2d at 1187.

CONCLUSIONS OF LAW

Much debate looms over whether Sears complied with

the requirement set forth in the OWPA. The above colloquy

demonstrates several issues of fact concerning Sears’ compliance

with section 626(f) and the actions of Wickboldt. Even though

for purposes of this motion we must consider the release

voidable,' the Fifth Circuit has held that voidable releases are

nonetheless enforceable if ratified by the employee. Wittor v.

Shell Oil Co., 37 F.3d 1151, 1154 (Sth Cir.1994).

A waiver is ratified when the employee fails to tender

back to the employer severance benefits received in exchange for

execution of the waiver. Grillet v. Sears, Roebuck & Co., 927

F.2d 217, 220 (Sth Cir.1991). To rescind the waiver and avoid

ratification, the plaintiff must meet two burdens: (1) the plaintiff

'The Fifth Circuit has conclusively determined that defective

waiver agreements are voidable under the OWPA and not void.

Wamsley v. Champlin Refining & Chemicals, Inc., 11 F.3d 534, 539

(Sth Cir.1993).

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has to restore the status quo ante and (2) the recision has to

occur shortly after the discovery of the alleged deficiency.

Grillet, 927 F.2d at 220. "A person who signs a release, then

sues his or her employer for matters covered under the release,

is obligated to return the consideration upon learning of the

invalidity of the release." Williams v. Phillips Petroleum Co., 23

F.3d 930, 937 (Sth Cir.}, cert. denied --- U.S. ---, 115 S.Ct. 582,

130 L.Ed.2d 497 (1994). "When [an employee decides] to retain

and not tender back to [his employer], [he] manifests [his]

intention to be bound by the waivers and thus, [make] a new

promise to abide by their terms." Wamsley, 11 F.3d at 540.*

>This concept was further explained by the Fifth Circuit:

A promise is a manifestation of intention to act or refrain

from acting in a specified way, so made as to justify a promisee in

understanding that a commitment has been made. REST.CONT.

Sec. 2. That a promise has been made can be determined from

conduct as well as words. REST.CONT. Sec. 19. Here the conduct

giving rise to Appellants’ promise io perform under their waivers

was their retention of the consideration for their waivers. That

appellants may have subjectively intended something different is of

no moment.

In the final analysis, the objective theory of

contracts, as distinguished from the subjective

theory, is based on analogy to estoppel. This is

apparent whenever a person is held bound by a

contract because of this manifestations when his

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Hurdle contends that he was unaware of the waiver’s

deficiency and under the impression that he had not waived his

rights under the ADEA. Moreover, Hurdle argues that the

record is devoid of facts to demonstrate when and how Hurdle

finally became aware of the waiver’s deficiency triggering prong

two of our analysis. Likewise, Hurdle argues that he is willing

to return his benefits once a "forum" entertains his suit.

We note that this suit was filed in May of 1994

approximately eleven months past. for the plaintiff to

successfully revoke the release, Hurdle must have sought to

restore the status quo ante shortly after discovering the waiver’s

deficiency. At the very least, Hurdle would have had to return

his severance benefits after consulting an attorney about the

possibility of bringing a claim for age discrimination. Blakeney

v. Lomas Information Sys., Inc., 879 F.Supp. 645, 649 n.7

(N.D.Tex.), aff'd, 65 F.3d 482 (5th Cir.1995), cert. denied, 116

manifestations are contrary to his actual state of

mind.

1 SAMUEL WILLISTON, WILLISTON ON CONTRACTS, Sec.

98, p.362 (1957)(footnote omitted).

Wamsley, 11 F.3d at 540 n.10.

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S.Ct. 1042 (1996). Even if Hurdle tendered the benefits today,

a tender made eleven months after the filing of the suit is

untimely. Blakeney, 65 F.3d at 485 n.2. More importantly,

Hurdle has made no such tender and chose to retain the benefit

of his bargain.

Hurdle’s second argument that not tendering the money

received is not dispositive inasmuch as he set the money aside

and is willing to return such as soon as a "forum" entertains his

suit is likewise not persuasive. "Tendering a severance payment

back to the employer only upon the court’s endorsement of the

plaintiffs’ ADEA claims is not a timely revocation of the waiver."

Blakeney, 879 F.Supp. at 649; Williams, 23 F.3d at 930

("[o]ffering to tender back the consideration after obtaining relief

in the lawsuit would be insufficient to avoid a finding of

ratification"). Likewise, conditional offers do not satisfy the

tender-back rule. Grillet, 927 F.2d at 221.

CONCLUSION

This court is of the opinion that the actions of the

plaintiff in retaining the benefits of the severance package

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ratified the otherwise allegedly defective release. This

ratification created a new promise and a new obligation that is

enforceable despite the waiver’s statutory deficiencies. action.

Hurdle’s complaint sets forth additional claims pursuant

to 29 U.S.C. Sec. 623(d) (retaliation provision of the ADEA)

and 29 U.S.C. Sec. 2000e-3 (retaliation provision of Title VII).

Hurdle has not addressed these claims nor offered facts in

support of same. Rather, Hurdle has averred that the claim

asserted is one for age discrimination. Accordingly, final

judgment is appropriate inasmuch as no other claims are

asserted. An order dismissing this cause with prejudice shall

follow.

SO ORDERED AND ADJUDGED, this the 11th day

of April, 1996.

/s/ David Bramlette

UNITED STATES DISTRICT JUDGE