Petition for Writ of Certiorari — Thoman v. Concept, Inc.

| APR 29 1980

Fy ‘

; ey & F. SPANIOL, JR.

No. JOSEPH ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

CLAUDE LEWIS THOMAN,

Petitioner,

S

CONCEPT, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MARVIN J. ROSENBERG

Counsel of Record

10 Cuttermill Road

Great Neck, New York 11021

(516) 487-3900

QUESTIONS PRESENTED

1. What standard should be applied by the trier of

fact in determining whether a release under the Age

Discrimination in Employment Act, 29 U.S.C. 621 et. seq.

(ADEA), has been entered into knowingty and voluntarily?

2. How should a jury be instructed as to the

appropriate standard to apply?

ii

PARTIES TO THE PROCEEDING

All parties to the proceeding are identified in the

caption of the case.

ili

TABLE OF CONTENTS

SPIE WUE CUED oo. ccovceccncccrvecessvotevecscesscevevecceesense i

PURE BP PORES PROC OING ooiincnnsccccccceccccscccccccessceees il

Ew scaulvevsvcouscceveesveceustvesevocsres ili

I RE ED oo. cvecoceccuvccevevevsercancnccansceneee Vv

REFERENCE TO OPINION BELOW .....W00. ee 1

RRUPEPPUEPEE BPE DUPPRRSIEIEC. LIOOIN <o.cvccocccccscccccevccecceccccescoeee 1

I ED . sepavuwavessvensuesdesvvesueseeaveve ]

a IE ee ?

REASONS FOR GRANTING THE WRIT ..............0....00005- 5

I. THERE IS A CONFLICT AMONGST

THE CIRCUITS REGARDING THE

STANDARD TO BE APPLIED IN

DETERMINING WHAT CON-

STITUTES A KNOWING AND

VOLUNTARY RELEASE UNDER

Teen ecules weace 6

Il. THE LOWER COURTS NEED

GUIDANCE ON HOW JURIES ARE

TO BE INSTRUCTED REGARDING

THE APPROPRIATE STANDARD ............... 10

occa ince onsissnccsesusnessavvey cocievenss 1]

iV

APPENDIX A

Opinion of the Fifth Circuit Court of

Appeals in No. 88-6210 dated January

23, 1990. .....cecsssscerscsessscrseccnenensonsnrsenenenersrsess

APPENDIX B

Opinion of the Fifth Circuit Court of

Appeals in No. 87-2377 dated

September 25, 1987 .....-sssesseesecsseeeeeeces

APPENDIX C

Memorandum Opinion of the District

Court for the Southern District of

Texas dated February 24, 1987....... eeREeL

APPENDIX D

Judgment of the District Court for the

Southern District of Texas dated

November 29, 1988 ......c::::ssscecesseesesseeeseesteess

APPENDIX E

Order of the Fifth Circuit Court of

Appeals dated February 20, 1990

denying suggestion for rehearing en

banc ..... Ra Dee mm nT

eae 1-A

23-A

29-A

TABLE OF AUTHORITIES

Cases:

Page

Bormann v. A.T. & T. Communications, Inc., 875 F.2d 399

(2d Cir.) cert. denied, _ U.S. _, 110 S. Ct. 292

IEEE niciaincsessarsaiesopiiiciersocsanspteetipcadettanestenatlanati Regattas 5

Coventry v. U.S. Steel Corp., 856 F.2d 514

Ee Als SED neccanapbteclanpecteccudersnauiacuabeaiouemantiean a

Lancaster v. Buerkle Buick Honda, 809 F.2d 539

(8th Cir.) cert. denied, 482 U.S. 928 (1987) oo... =» MG |

Mayo v. Borden, Inc., 784 F.2d 671

Hetty WON sivcnasnicastagdacetmrotstaecteaitialan teen ates 9

Moore v. McGraw Edison Co., 804 F.2d 1026

SN GS FINI ccsnccsciescesercnscsnaianpanaaanaaecdatecne eae 8

Mosley v. St. Louis Southwestern Ry., 634 F.2d 942

(Sth Cir.) cert. denied, 452 U.S. 906 (1981) veces. 8

Rogers v. General Electric Co., 781 F.2d 452

Ge Ce. DONG eieicetenececedssenmccihesstamnonetibsete tak 8

Runyan v. National Cash Register Corp., 787 F.2d 1039

(6th Cir.) cert. denied, 479 U.S. 850 (1986). ............ 5,7

Statutes:

Age Discrimination in Employment Act, 29 U.S.C.

Bee Ge FOE cicciconaacannecai passim

Department of Commerce, Justice and State,

the Judiciary and Related Agencies Appropriation Act,

P.L. 100-459, 102 stat. 2186 (1989) ......ccesceseeseseeeee: 6

vi

Regulations:

Equal Employment Opportunity Commission, Specific

Exemptions, 29 C.F.R. $1627.16(C) .....ssseseseseseseseseseseeeenens 6

Legislative Materials:

S.168, 101st Cong., Ist Sess. 135 Cong. Rec.

(January 25, 1969) ...........0.c0rrecrseeeseoresseneseroerersersagessseeres 1]

S.14509, 100th Cong., 2nd Sess. 134 Cong. Rec.

IE Fhe IED Sesiivcenssavinvanvcmeciacunneerniavenmnniemiannnasa eis 11

REFERENCE TO OPINION BELOW

The opinion of the Fifth Circuit Court of Appeals in

Claude Lewis Thoman, Plaintiff-Appellant v. Concept, Inc.,

Defendant-Appellee, No. 88-6210, (“Thoman II”), is

unpublished and is reproduced in Appendix A of this Petition.

A prior opinion of the court of appeals (“Thoman I”)

and memoranda and orders of the district court are reproduced

in Appendices C, D and E.

GROUNDS FOR JURISDICTION

1. The judgment appealed from was rendered by the

Fifth Circuit Court of Appeals on January 23, 1990. A

suggestion for rehearing en banc was denied by Order dated

Feb. 20, 1990. The jurisdiction of this Court to review the

judgment of the Fifth Circuit is invoked under 28 U.S.C. §

1254(1).

STATUTE INVOLVED

This case involves The Age Discrimination in

Employment Act, 29 U.S.C. 621, et. seg., which provides in

relevant part:

§623. Prohibition of Age Discrimination

(a) Employer Practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any

individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual’s age;

(2) to limit, segregate, or classify his employees

in any way which would deprive or tend to

deprive any individual of employment

opportunities or otherwise adversely affect his

status as an employee, because of such

individual’s age; or

(3) to reduce the wage rate of any employee in

order to comply with this chapter.

STATEMENT OF THE CASE

Petitioner, Claude Lewis Thoman, brought this action

complaining that he was discharged from his position as

regional sales representative by Respondent, Concept, Inc., on

account of his age in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et. seq. (the basis

of federal jurisdiction), and in breach of his contract of

employment. At the time he was terminated Thoman, whose

gross income was upwards of $100,000.00 per year, was called

to an airport meeting with Concept’s national sales manager

and given the choice of (1) signing a resignation/release and

receiving $9,000.00, the equivalent of approximately one

month’s commission, or (2) being terminated on the spot. The

language of the release was as follows:

I, the undersigned, hereby accept the above as

complete termination pay and forever release and

discharge Concept, its subsidiaries and its

directors, officers and employees from any and all

present and future claims, demands; damages,

actions and causes of action including but not

limited to, claims arising out of worker's

compensation laws and other employee and

employee related law and regulations.

Despite asking if he could see an attorney before he signed the

document, Thoman was denied the opportunity to consult with

counsel and was required to make an immediate decision. Thoman

signed the release and accepted the money.

At an early stage of the litigation the trial court entered

summary judgment against Thoman, sua sponte, essentially

reasoning that a common law accord and satisfaction standard

applied to the release of an ADEA claim. (See Appendix C)

The Fifth Circuit reversed, and in a per curiam opinion (See

Appendix B, “Thoman I”) articulated the factors to be

considered in determining whether the release was knowingly

and voluntarily executed, with particular emphasis on the

following:

Our review of the facts reveals that Thoman, in

his letter to the judge, disputed several facts

material to a finding that the release was

knowingly and voluntarily executed. Thoman

asserted that he did not understand that the release

waived discrimination claims, that he was not

advised that he could consult counsel and had no

Opportunity to do so, and that Jackson induced

him to immediately sign the release. The broad

language of the release does not refute Thoman’s

allegation that he did not know he was waiving

his discrimination claim. The only evidence

concerning Thoman’s education or legal

experience was Concept’s bare statement that

Thoman’s sales position provided him with

contract experience. In short, the district judge

entered a summary judgment despite disputed and

unsubstantiated facts concerning the

effectiveness of the waiver.

(Appendix B, p. 21-A)

Following such reversal the case proceeded to trial and

at the close of the case the trial court refused to instruct the jury

on the knowing and voluntary issue by advising it of the factors

identified in Thoman I. Rather, over Plaintiff's objection, the

court instructed the jury on the question “Did Thoman

knowingly and voluntarily release his age discrimination claim

against Concept when he signed the document dated February

21, 1985 and accepted the $9,000 from Concept as follows:

Thoman acted knowingly if he had the ability to

understand the release even if he was mistaken

about the effect of the release or failed to read the

release.

Voluntarily means that Thoman signed the release

and accepted the check intentionally. Voluntarily

also means that Thoman made a free choice even

though the pressures of personal and financial

circumstances may limit an individual’s range of

alternatives. You may consider the education,

background, experience, and position of the

employee together with all of the circumstances

of the signing of the waiver. Although Concept is

not required to leave an offer open for any length

of time, it may not force an employee to sign the

waiver. You may also consider the value of

Concept’s performance under the waiver. For the

release to have been involuntary, something

substantial is required; a change of mind or

second thought is not enough.

The jury answered the question “yes,” judgment was

entered against Thoman (See Appendix D), and the case was

appealed to the Fifth Circuit again. (See Appendix A, “Thoman

II”). Although the court in Thoman II found that the first

sentence of the instruction regarding “knowing” was in error,

it considered the error harmless in light of the evidence that

Thoman had read the release, thought it waived a worker’s

compensation claim, and also harbored some concerns

regarding previous statements made to him about his age.

(Appendix A, p.7-A) Similarly, although the court agreed that

the factors listed in Thoman I were all relevant, it reasoned that

the trial court’s reference to “all of the circumstances of the

Signing of the waiver” along with the companion argument of

Thoman’s counsel precluded any necessity to articulate the two

factors which Thoman deemed most important to the jury’s

determination: 1) the denial of an Opportunity to consult with

counsel prior to signing the release, and 2) the Clarity (or lack

of it) of the language of the release. (Appendix A, p. 9-A)

REASONS FOR GRANTING THE WRIT

For years now, Congress, the courts and the EEOC have

grappled with the problem of unsupervised releases under the

Age Discrimination in Employment Act, 29 U.S.C., § 621, et.

seq. (ADEA). Although releases are obviously entered into

under other civil rights statutes as well, releases under the

ADEA are particularly problematic because they are generally

executed before any charge has been brought or claim

articulated, and thus, are not likely to be supervised by any

agency or court. Despite all of the debate, however, there is still

no clear standard for the trier of fact to apply in determining

the validity of an ADEA release.

While all are in agreement that a release must be

entered into knowingly and voluntarily in order to be valid, that

is where the agreement ends. The circuit courts are split, with

the Sixth and Eighth Circuits applying the standard of

“ordinary contract principles,” Runyan v. National Cash

Register Corp., 787 F.2d 1039 (6th Cir.), cert. denied, 479 U.S.

850 (1986) and Lancaster v. Buerkle Buick Honda, 809 F.2d

539 (8th Cir.), cert. denied, 482 U.S. 928 (1987); the Second

and Third Circuits applying a “totality of the circumstances”

standard, Bormann v. A.T. & T. Communications, Inc., 875 F.2d

399 (2d Cir.) cert. denied, ___ U.S. _, 110 S. Ct. 292 (1989)

and Coventry v. U.S. Steel Corp., 856 F.2d 514 (3d Cir. 1988);

and the Fifth Circuit now, as a practical matter, falling

somewhere in between. The EEOC has also advocated use of

the “totality of the circumstances” Standard, but Congress,

apparently in the belief that unsupervised releases should be

curtailed, has suspended enforcement of the Commission’s

final rules. See 29 C.F.R. § 1627.16(c); Departments of

Commerce, Justice and State, The Judiciary and Related

Agencies Appropriations Act, 1989, P.L. 100-459, 102 Stat.

2186, 2216 (1988).

In an area of such critical public concern, trial courts

must have a consistent standard to follow, both for

consideration by the judge alone in the event of summary

disposition, and for instructing the jury that is found in

virtually every age discrimination case that goes to trial. As this

case so vividly demonstrates, no standard can have meaning if

it is not properly communicated to the ultimate trier of fact.

I. THERE IS A CONFLICT AMONGST THE

CIRCUITS REGARDING THE STANDARD

TO BE APPLIED IN DETERMINING WHAT

CONSTITUTES A KNOWING AND

VOLUNTARY RELEASE UNDER THE ADEA.

The holding in Thoman II plainly suggests that the Fifth

Circuit has now positioned itself somewhere between the

“totality of the circumstances” standard followed by the

Second and Third Circuits and the “ordinary contract

principles” standard followed by the Sixth and Eighth Circuits.

Although in Thoman II the Fifth Circuit acknowledged that the

totality of circumstances surrounding a release needed to be

explored, it effectively retreated from that test and validated a

jury instruction which was rooted in the application of strict

contract principles. The disputed jury instruction is a perfect

example of why the two standards cannot be so intertwined.

In the context of waivers under the ADEA, the Second

and Third Circuits (and the EEOC) have explicitly endorsed the

“totality of the-circumstances” approach which requires

“careful evaluation of the release form itself, and of the

complete circumstances in which it was executed ... to assure

that the goals of the ADEA are preserved.” Coventry v. U.S.

Steel Corp., 856 F.2d 514, 523 (3d Cir. 1988). As stated in

Bormann v. A.T. & T. Communications, Inc., 875 F.2d 399, 403

(2d Cir.), cert. denied, _ US._,110S. Ct. 292 (1989), those

circumstances would include: (1) the plaintiff's education and

business experience; (2) the amount of time the plaintiff had

possession of or access to the agreement before Signing it; (3)

the role of the plaintiff in deciding the terms of the agreement;

(4) clarity of the agreement; (5) whether the plaintiff was

represented by or consulted with an attorney; (6) whether the

consideration given in exchange for the waiver exceeds

employee benefits to which the employee was already entitled

by contract or law; (~) whether the employer encouraged or

discouraged the plaintiff to consult an attorney; and (8)

whether the plaintiff had a fair Opportunity to consult an

attorney. These latter two factors, both of which were added by

Bormann to the Coventry list, have particular importance in the

context of the instant case, where Thoman specifically

requested and was denied the opportunity to consult with an

attorney, and the trial court refused to instruct the jury in any

way regarding the availability of counsel.

In contrast to the broad approach of the Second and

Third Circuits, the Sixth and the Eighth Circuits follow a much

narrower, harsher standard based on “ordinary contract

principles.” See Lancaster v. Buerkle Buick Honda, 809 F.2d

539, 541 (8th Cir.) cert. denied, 482 U.S. 928 (1987); Runyan

v. National Cash Register Corp., 787 F.2d 1039, 1044 n. 10 (6th

Cir.) cert. denied, 479 U.S. 850 (1986). Under that standard,

only the plaintiff's capacity and the presence of see ye deceit,

or unconscionable overreaching” are really at issue. 1 Moore v.

McGraw Edison Co., 804 F.2d 1026, 1033 (8th Cir. 1986).

The Fifth Circuit’s willingness to forgive the first

sentence of the disputed instruction in Thoman II and its

corresponding unwillingness to require enunciation of particular

factors it previously recognized in Thoman I, Rogers v. General

Electric Co., 781 F.2d 452, 456 (Sth Cir. 1986) and Mosley v. St.

Louis Southwestern Ry., 634 F.2d 942, 947 (Sth Cir.) cert. denied,

452 U.S. 906 (1981), underscores both a retreat from the “totality

of the circumstances” approach and the articulation of a

contradictory standard. In reversing the trial court’s grant of

summary judgment the court in Thoman I specifically noted that

there were material fact issues that bore upon whether Thoman

knowingly executed the release, including the lack of opportunity

to consult with counsel and the language of the release itself.

Indeed, Thoman | implicitly recognized the lack of clarity in the

release language by noting that “[t]he broad language of the

release does not refute Thoman’s allegation that he did not know

he was waiving his discrimination claim.” (Appendix B, p. 21-A)

Nevertheless, the court in Thoman II found that the error in the

first sentence of the instruction, which made “knowing” simply a

measure of mental capacity (“Thoman acted knowingly if he had

the ability to understand the release...”), was harmless in light of

the evidence, counsel’s argument, and the later reference in the

instructions to considering “all of the circumstances” surrounding

the release. The court in Thoman II gave the jury greater credit

than it would give a trial court.

1

- Although it stated that ordinary contract principles should apply, the Court in

Runyan also looked to other factors, thus perhaps placing itself more in line

with the Fifth Circuit.

Plaintiff is mindful of the broad latitude that trial courts

must be given in shaping jury instructions and the language of

Mayo v. Borden, Inc., 784 F.2d 671, 677 (5th Cir. 1986) cited

in Thoman II at page 6 regarding the need for “substantial and

ineradicable doubt” before a case may be reversed on the basis

of an erroneous instruction, but as the Mayo court cautioned,

one must look to “the charge as a whole,” not simply the

disputed instruction. Even if the error in the first sentence of

the instruction here can somehow be diminished by the

argument of counsel as to “all of the circumstances” how can

that be squared with the standard admonitions of the charge

that:

Statements, objections, or arguments made by the

lawyers are not evidence. Although the lawyers

may in their closing statements point out things

that they think are significant, it is your

recollection on interpretation of the evidence that

controls in this case. What the lawyers say does

not bind you.

In considering the evidence, you must follow

the instructions in this Charge and all other

instructions that you have been given.

You are not to question the wisdom of the

law; you must apply it as I give it to you.

Can there be any doubt that if a trial court made a

knowing finding based on mental Capacity, as required by the

disputed instruction, that the error would be deemed harmful

under the “totality of the circumstances” standard. By

rationalizing away the first sentence of the instruction, as well

as the exclusion of certain factors that the court previously

noted would bear upon a “knowing” finding, with the argument

10

of counsel, the court in Thoman II adopted a different standard

for determining what constitutes a knowing and voluntary

release under the ADEA, thus adding further to the conflict

amongst the circuits.

II. THE LOWER COURTS NEED GUIDANCE

ON HOW JURIES ARE TO BE INSTRUCTED

REGARDING THE APPROPRIATE

STANDARD.

The difficulty that the trial court experienced here in

fashioning a proper jury instruction on the knowing and

voluntary standard cannot be ignored.

As noted, any number of appellate courts have

addressed the specific factors that comprise the totality of

circumstances that a trial court must analyze in relation to this

issue. Yet, for the jurors who must decide whether an ADEA

plaintiff has released a civil right knowingly and voluntarily,

only the district judge’s instructions serve as guidance. In fact,

the judge, as he did in the present case, will instruct the jury

that only his instructions should be used to guide them on the

law, not the arguments of counsel. So while judges, lawyers,

and legislators may know all the details of when and how older

workers may release this civil right, the jury may be woefully

ignorant of the appropriate standard to be applied, depending

on the accuracy and completeness of the court’s instructions.

Rights protected by the ADEA have been found to be

too important for their release to be based on the common law

1]

of contracts and yet, as is obvious here, the standard articulated

by trial court was more akin to that than anything else.?

Likewise, these rights are too important to be based on the

guesswork of a jury as to what constitutes “all of the

circumstances” it may consider in determining whether such

rights have been knowingly and voluntarily waived. Is the

opportunity to consult with counsel (particularly, as here,

where it is asked .or and denied), for example, as important as

appellate decisions, EEOC guidelines and the proposed Age

Discrimination in Employment Waiver Protection Act,>

Suggest? If it is, then it should be specifically communicated

to the jury in the Court’s charge, and not left to the argument

of counsel. The same, of course, is true of the other factors as

well. Both trial courts and juries need the guidance of this

Court.

CONCLUSION

Adverse employment decisions that have particular

effect on older workers are a fact of American economic life.

Employers who seek to avoid ADEA litigation frequently

require releases as a condition of remuneration to the

discharged or laid off employee within the protected bracket of

the Act. As Congress has obviously noted, some employers will

abuse this option, and whether the releases they obtain are valid

will remain a common question for the courts.

It is evident that the conflict amongst the circuits

7” Indeed, even the court in Thoman II was under the mistaken belief that the

disputed instruction addressed both Thoman’s age claim and contract claim.

In fact, it did not. (See language of Question No. 1, quoted at p. 5, and Appendix

A, p. 7-A.)

" See 101st Cong., Ist Sess. 135 Cong. Rec. $168 (January 2S, 1989) and 100th

Cong., 2d Sess. 134 Cong. Rec. $14509 (October 4, 1988).

12

regarding the proper way to instruct a jury on the waiver of

ADEA rights must be resolved. The Sixth and Zighth Circuits

have historically applied a rather harsh “ordinary contract

principles” standard. Under this standard, a signature alone

may serve to forever release the valuable civil right to be free

from age discrimination in employment. The Second and Third

Circuits, on the other hand, have looked more broadly to the

“totality of the circumstances” in deciding whether or not to

uphold the validity of such releases. Ironically, in Thoman |

and Thoman II, the Fifth Circuit has employed both standards.

If the state of the law is such that it confuses the same circuit

in the same case, then it is time for the Supreme Court to favor

the Bar with guidance.

Respectfully submitted,

Great Neck, New York 11021

(S16) 487-3900

ATTORNEY OF RECORD

FOR PETITIONER

1-A

APPENDIX A

2-A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIRTH CIRCUIT

88-6210

CLAUDE LEWIS THOMAN,

Plaintiff-Appellant,

VERSUS

CONCEPT, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-86-1955)

(January 23, 1990)

Before GEE, JONES, and SMITH, Circuit Judges :

JERRY E. SMITH, Circuit Judge : |

Plaintiff Claude Lewis Thoman filed suit against his

former employer, Concept, Inc. (“Concept”), alleging breach

of his employment contract and violations of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. 55

621-634. The jury returned a verdict in favor of Concept,

{r-

Local Rule 47.5.1 provides: “The publication of opinions that have no

precedential value and merely decide particular cases on the basis of

well-settied principles of law imposes needless expense on the public and

burdens on the legal profession.” Pursuant to that rule, the court has determined

that this opinion should not be published.

finding that a release signed by Thoman at the time of his

resignation operated as a waiver of any contractual or Statutory

claims. On appeal, Thoman contends that the district court

erroneously instructed the jury on the elements of an effective

waiver of discrimination claims and improperly excluded

evidence of Concept’s written personnel policies. Finding no

reversible error, we affirm.

I. Background and Procedural History,

Thoman worked as a sales representative for Concept

from September 1977 until February 21, 1985, when he

resigned under threat of termination. For several months prior

to his resignation, Thoman had been aware that his job with

Concept was in jeopardy. Beginning in June 1984, he had

received several letters from his supervisor, Robert Jackson,

criticizing his job performance.

Thoman allegedly suspected, however, that Jackson’s

letters were merely a “paper trail” designed to conceal

Concept’s true reason for deciding to terminate him — his age.”

At trial, Thoman testified that Jackson told him in January 1985

that he was “too old for the job” and that Concept wished to

replace him with a younger employee. Concept’s witnesses

disputed these allegations and testified instead that Thoman

was fired because of his failure to meet his sales quota.

In February 1985, Jackson met with Thoman at a hotel

in Houston. Jackson began the meeting by telling Thoman,

“Lew, I’m going to have to let you go,” but he then offered

. Thoman was 42 years of age at the time of his resignation and was therefore

protected by the ADEA, which prohibits discrimination against “individuals

who are at least 40 years of age but less than 70 years of age.” 29 U.S.C. §

631(a).

4-A

Thoman a choice: He could either accept Concept’s decision to

terminate him or resign his position and receive $9,000 in

severance pay, an amount to which he would not otherwise have

been entitled. If he chose to resign and to accept the $9,000,

Thoman would be required to sign an agreement releasing

Concept from “any and all present and future claims, demands,

damages, actions and causes of action including but not limited

to, claims arising out of workers’ compensation laws and other

employee and employee-related laws and regulations.” Jackson

refused Thoman’s requests for more time and for the

opportunity to consult an attorney before signing the release.

Thoman then read the agreement, told Jackson that he had no

objection to waiving workers’ compensation claims because he

did not have “a bad back, or bad feet, or anything,” signed it,

and walked away. The meeting between Jackson and Thoman

lasted approximately five minutes, and Thoman had the release

in his possession for “maybe a minute.” Although Thoman was

concerned about Jackson’s remarks regarding his age and

wondered whether Concept could legally “get rid of him” for

that reason, he signed the release anyway in order to “get his

$9,000.” This case is before us for the second time. At an earlier

stage of this litigation, the district court determined that the

release operated as an “accord and satisfaction” of any

contractual or statutory claims which Thoman might have had

against Concept; therefore, the court entered a sua sponte

summary judgment for Concept. In an unpublished opinion,

Thoman v. Concept, Inc., No. 87-2377 (Sth Cir. Sept. 25, 1987)

(“Thoman J”), we reversed and remanded for further

proceedings, concluding (i) that the district court had applied

an incorrect legal standard in assuming that the release was

effective as an accord and satisfaction even if it was not

knowingly and voluntarily executed and (ii) that material

factual disputes regarding the circumstances surrounding the

release precluded entry of a summary judgment to the effect

that the release had been knowingly and voluntarily executed.

Following remand, the case proceeded to trial. At the

close of the evidence, the district judge directed the jury, inter

alia, to find whether Thoman had “knowingly and voluntarily”

waived his contractual and statutory claims and gave the

following instruction on the meaning of that requirement:

Thoman acted knowingly if he had the ability to understand

the release even if he was mistaken about the effect of the

release or failed to read the release. Voluntary means that

Thoman signed the release and accepted the check

intentionally. Voluntarily also means that Thoman made a free

choice even though the pressures of personal and financial

circumstances may limit an individual’s range of alternatives.

You may consider the education, background, experience and

position of the employee together with all the circumstances

of the signing of the waiver. Although Concept is not required

to leave the offer open for any length of time, it may not force

an employee to sign the waiver. You may also consider the

value of Concept’s performance under the waiver. For the

release to have been involuntary, something substantial is

required; a change of mind or second thought is not enough.

Informed by this instruction, the jury concluded that the release

was a knowing and voluntary waiver of Thoman’s Statutory and

contractual claims and returned a verdict in favor of Concept.

Thoman now appeals only the adverse judgment on his

Statutory claims.

H. The Jury Instruction.

A.

We begin our review of the challenged jury instruction

with a brief discussion of the law regarding waivers of civil

rights claims. While such waivers do not ordinarily violate

public policy, Rogers v, General Electric Co,, 781 F.2d 452,

454 (Sth Cir. 1986), they must be entered into knowingly and

voluntarily. Alexander v, Gardner-Denver Co,, 415 U.S. 36, 52

6-A

n. 15 (1974); Mosley v, St. Louis Southwestern Ry,, 634 F.2d

942, 946 n. 5 (Sth Cir. Unit A Jan. 1981), cert. denied, 452 U.S.

906 (1981). Federal law requires that waiver not be “lightly

inferred.” Watkins v. Scott Paper Co., 530 F.2d 1159, 1172 (Sth

Cir.), cert. denied, 429 U.S. 861 (1976). Thus, instead of

presuming, as in an ordinary contract dispute, that a “signature

implies understanding,” id., the trier of fact must consider all

of the circumstances surrounding the signing of the release.

In determining whether a release was knowingly and

voluntarily executed, courts have looked to a number of

factors, including (1) whether the document unambiguously

released the employee’s discrimination claims, Rogers, 781

F.2d at 456; (2) whether the employee was given the

opportunity to consult an attorney before signing the release,

id.; (3) whether the employee had education or legal experience

that would enable him to understand the release, id.; (4)

whether the evidence suggested overreaching or other

improper conduct by the employer, Mosley, 634 F.2d at 947;

and (5S) whether the employer’s return promise provided

substantial relief. Jd, at 946. No one factor, however, has been

held dispositive of the inquiry.

B.

When reviewing the adequacy of a trial court’s

instructions to the jury, we must “consider the charge as a

whole, in connection with the contentions made by the

parties..., and from the standpoint of the jury. If the charge in

general correctly instructs, then even though a portion is

technically imperfect, no harmful error is committed.”

Troutman v. Southern Ry, Co., 441 F. 2d 586, 590 (Sth Cir.),

cert, denied, 404 U.S. 871 (1971). Trial courts are afforded

wide discretion in shaping jury instructions, Corey v. Jones,

650 F.2d 803, 806 (Sth Cir. Unit B July 1981), and we will

reverse a verdict because of an erroneous instruction only when

we are left with “substantial and ineradicable doubt whether

the jury has been properly guided in its deliberations.” Mayo

v. Borden, Inc., 784 F.2d 671, 672 (Sth Cir. 1986) (citations

omitted). With these general principles in mind, we address

each of Thoman’s challenges to the jury charge.

Thoman first argues that the first sentence of the

instruction (“Thoman acted knowingly... even if he was

mistaken about the effect of the release or failed to read the

release.”) was misleading because it enabled the jury to

conclude that a knowing and voluntary waiver could be

presumed from Thoman’s signature on the release form. While

we agree that this statement was erroneous in light of Watkins’s

admonition that waiver not be lightly inferred, we conclude

that the error was harmless. Thoman admitted at trial that he

read the release, and his statements regarding workers’

compensation indicate that he realized that the release waived

at leasi one type of legal claim. He further testified that he

signed the release despite his concerns about Jackson’s remarks

regarding his age. Thus, when viewed in connection with the

evidence and arguments presented at trial, the first sentence of

the charge could not have misled the jury or resulted in any

prejudice to Thoman.

Thoman next contends that the last sentence of the

instruction (“For the release to have been involuntary,

something substantial is required; a change of mind or second

thought is not enough.”) improperly suggested that he bore the

burden of proving that the waiver was not knowingly and

voluntarily executed. However, a plain reading of the

challenged sentence indicates that it does not speak to the issue

of burden of proof. Instead, it suggests only that an initially

valid waiver does not become invalid because the plaintiff later

changes his mind or realizes that he might have obtained more

money by taking the defendant to court.

8-A

This is a correct statement of the law. As we noted in

Mosley, 634 F.2d at 946 n. 5, “[A] settlement agreement may

[not] be avoided... [merely because] a claimant later

demonstrates that he or she settled for less than might

otherwise have been obtained through litigation.” Thus, we

conclude that Thoman was not prejudiced by the last sentence

of the jury charge.

Finally, Thoman argues that the district court erred in

failing to enumerate six factors> used in determining whether

a release was knowingly and voluntarily executed. He claims

to have been prejudiced primarily by the omission of two of

those factors: the opportunity to consult counsel and the clarity

of the language in the release. As we noted above, however,

waivers are evaluated under a “totality of the circumstances”

test, with no one factor being dispositive. See Rogers, 781 F.2d

at 452; Mosley, 634 F.2d at 942; Watkins. Hence, Thoman was

not entitled to any particular enumeration of factors, but only

to an instruction that directed the jury, as this one did, to

consider “all of the circumstances of the signing of the waiver.”

Thoman was allowed to introduce evidence regarding

the circumstances he believed to be important. Thoman

testified that he was not given the opportunity to consult a

lawyer before signing the release, and his counsel emphasized

the importance of that fact in his closing argument. No Concept

witness disputed Thoman’s testimony on that point, and

Concept’s counsel did not attempt to exclude that evidence or

- Thoman’s proposed jury instruction listed six factors. As Concept points out,

however, the courts also have looked to numerous other factors in evaluating

the validity of waivers of civil rights claims.

9-A

to argue that the opportunity to consult a lawyer was irrelevant

in determining whether the release had been knowingly and

voluntarily executed.

The jury thus was aware that Thoman had signed the

release without the benefit of legal advice and could take that

into account in reaching its verdict. The jury also was allowed

to read the release form itself and to decide whether its

language was clear and unambiguous and whether Thoman in

fact understood that it released his ADEA claims. Apparently,

the jury simply concluded that Thoman, who has a college

education and experience with insurance and sales contracts,

was able to understand the release without consulting an

attorney.

Thus, each of Thoman’s individual challenges to the

instruction must fail, and a review of the charge as a whole

Satisfies us that it adequately stated the law regarding waivers

of discrimination claims. The jury was properly directed to

determine whether the release was knowingly and voluntarily

executed and, in making that determination, to consider “all of

the circumstances of the signing of the waiver,” including the

“education, background, experience and position of the

employee” and “the value of Concept’s performance under the

waiver.” The jury was further advised that the waiver had to be

the product of a “free choice” and that Concept could not force

Thoman to sign a release. Because the instruction does not

leave us with “substantial and ineradicable doubt whether the

jury was properly guided in its deliberations,” Mayo, 784 F.2d

at 672, we cannot reverse the judgment on that ground.

10-A

Ill. Personnel Policies.

Thoman also asks us to review one of the district court’s

evidentiary rulings. At trial, Thoman sought to introduce

evidence of Concept’s written personnel policies. He wished to

demonstrate that Concept did not ordinarily terminate its

salespeople for failing to meet quotas and that therefore its

Stated reason for terminating him was a mere pretext. While

such a showing would have been relevant to his discrimination

claim, we have already concluded that the jury was properly

instructed on the issue of waiver and therefore was entitled to

find that Thoman had released any discrimination claims he

may have had. We therefore conclude that this evidentiary

question is irrelevant to the outcome of Thoman’s appeal, and

hence we decline to review its merits.

AFFIRMED.

APPENDIX B

12-A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-2377

Summary Calendar

CLAUDE LEWIS THOMAN,

Individually and on behalf

of others similarly situated,

Plaintiff-Appellant,

7.

CONCEPT, INC. ,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-86-1955)

( September 25, 1987)

Before REAVLEY, RANDALL and JOLLY, Circuit J udges.

PER CURIAM:*

“Local Rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases

on the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession.”

Pursuant to that Rule, the court has determined that this opinion

should not be published.

Lewis Thoman appeals from a summary judgment and

denial of his motion for a new trial in a suit against his former

employer for age discrimination and breach of his employment

contract. Because there were genuine issues of material facts

surrounding Thoman’s execution of a waiver and release of his

claims, we conclude that summary judgment was

inappropriate, and we reverse.

I.

Claude Lewis Thoman ("Thoman") sued his former

employer, Concept, Inc. ("Concept") for age discrimination

under the Age Discrimination in Employment Act of 1967, as

amended ("ADEA"), 29 U.S.C. §§ 621-34, and breach of his

employment contract. During discovery, the district court

entered summary judgment for Concept on its own motion

because the court found that undisputed facts established that

Thoman had validly waived his claims in a written agreement

signed at the time he resigned from employment. Thoman filed

a timely motion for a new trial, alleging errors of procedural

and substantive law and presenting evidentiary material to

create a factual dispute concerning the voluntariness of the

written waiver. The district court denied the motion, and

Thoman appealed from the final judgment.

Because the district court disposed of this case by

summary judgment against Thoman, we present the facts in the

light most favorable to him. Thoman worked for Concept as a

sales representative from September, 1977, until February 21,

1985. On that date, Thoman (who was over forty years old) met

with Robert Jackson ("Jackson"), Concept’s National Sales

Manager, who terminated his employment. In the brief meeting

(lasting three or four minutes) held at a Houston airport,

Thoman formally resigned to avoid being discharged and

signed a previously prepared document purporting to release

Concept from all claims “arising out of worker's compensation

14-A

laws and other employee related laws and regulations."! In

return, Concept agreed to pay Thoman all earned comissions

and $9,000 severance pay, which he later received. According

to Thoman, he did not know before the meeting that its purpose

was to discuss his termination; he signed the release because

Jackson told him that if he did not, he would be discharged

without severance pay; and he executed the agreement without

understanding the potential consequences of Signing the

document and without the opportunity for meaningful

deliberation or consultation with legal counsel.

In a scheduling conference on January 20, 1987, the

parties discussed the issue of waiver, a defense asserted by

Concept in its answer. At that time, the district court orally

instructed the parties to submit statements of their positions in

written memoranda by certain dates — Thoman, by January 28,

and Concept, by February 9. Although the parties characterize

the court’s instructions differently, their responses suggest that

- The material portion of the release read:

I, the undersigned, hereby accept the above as complete termination pay and

forever release and discharge Concept, its subsidiaries and its directors,

officers and employees from any and all present and future claims, demands,

damages, actions and causes of action including but not limited to, claims

arising out of worker’s compensation laws and other employee and employee

related laws and regulations.

In subsequent portions of the document, Thoman agreed not to make

disparaging remarks about Concept, not to disclose trade secrets or confidential

information, and to return any samples, reports, or other confidential data in

his possession.

15-A

the judge communicated his belief that waiver was a potentially

dispositive issue and his desire that the parties provide factual

information concerning the execution of the release and legal

authority” The court apparently found that the parties’

submissions provided a sufficient basis for summary judgment;

the court, on its own motion, entered judgment against Thoman

on February 24, accompanied by a “Memorandum on Summary

Judgment.”

The court’s analysis of the waiver issue, as presented in

its memorandum, is somewhat unclear. The court stated that

summary judgment was proper because Thoman conceded

“that there are no disputes over his acts which constitute a

waiver.” The court expressly assumed for its analysis that the

release was not knowing or voluntary. However, the court also

noted that the only “objective duress” asserted by Thoman was

Jackson’s statement that if Thoman was terminated, he would

not receive severance pay. The court proceeded to distinguish

discrimination cases holding that particular releases were

non-binding. See, ¢.g.. Mosley v. St. Louis Southwestern Ry.

634 F.2d 942 (5th Cir. Unit A Jan. 1981), cert, denied, 452 U.S.

906 (1981). Stating that public policy favors voluntary

settlement of employment discrimination claims (citing Rogers

vy. General Elec, Co., 781 F.2d 452, 454 (Sth Cir. 1986)), the

court concluded that the agreement signed by Thoman operated

ir

The record contains no transcript of the conference, and the conference

memorandum merely lists pre-trial deadlines. Arguably, Thoman did not

understand that the court might summarily dismiss the case because he merely

submitted a letter addressed to the district judge. However, the letter stated

“(t]he material facts surrounding the execution of this release” and argued legal

authority concerning valid waivers of discrimination claims. Concept filed

“Defendant’s List of Authorities and Statement of Facts Regarding Plaintiff's

Waiver of Claims” with a certificate of service upon Thoman’s counsel. The

court later stated that the parties had “briefed” the issue.

16-A

as an “accord and satisfaction” and precluded any further

litigation of contractual or statutory claims."

On March 6, 1987, Thoman filed a motion for a new

trial. In his motion, Thoman argued that (1) the entry of

summary judgment was procedurally incorrect because he

received insufficient notice of the court’s pending action, (2)

summary judgment was improper because the court relied on

Concept’s unsubstantiated statement of facts to establish

waiver, a defense which Concept was required to prove, and

(3) the court applied the wrong legal standard in finding that

the release effectively waived Thoman’s ADEA claim. In

addition, Thoman submitted additional evidentiary materials to

controvert facts stated in the court’s memorandum and to

establish that the waiver was not knowing and voluntary. On

April 3, the court denied Thoman’s motion without stating any

reason for its decision.

Thoman appealed on April 13 and raised the following

issues: (1) whether the district court erred in granting summary

judgment on its own motion based on unsubstantiated

Statements of fact and in finding that the written release signed

by Thoman constituted a valid waiver of his claims; and (2)

whether the district court abused its discretion in denying

Thoman’s motion for a new trial after receiving additional

evidence purporting to show that the waiver was not knowing

or voluntary. In his appellate brief, Thoman presents arguments

substantially similar to those he made before the district court

in his new trial moiion to support his position that summary

judgment was improper.

In response, Concept argues that the entry of summary

judgment was procedurally correct because Thoman received

adequate notice of the court’s pending action at the scheduling

conference and, alternatively, that Thoman was not prejudiced

by any error because he had an adequate Opportunity to present

17-A

evidence. Concept also argues that summary judgment was

proper because the statements of fact submitted by the parties

were functionally equivalent to admissions and provided a

sufficient basis for a determination that no factual issues

existed. Finally, Concept contends that the district court's

rulings were correct because undisputed facts established that

Thoman effectively waived his claims.

I.

We review a summary judgment by the same standards

that control the district court’s determination. Russel] _v.

Harrison, 736 F.2d 283, 287 (Sth Cir. 1984). The court must

draw all inferences in favor of the party opposing summary

judgment and determine that there is no genuine issue as to any

material fact. Id,; Fed. R. Civ. P. 56(c). In this case, the district

court entered summary judgment against Thoman because it

found no genuine issue on the facts necessary to establish a

valid waiver and release, affirmative defenses to Thoman’s

statutory and contractual claims. Thus we will review the facts

most favorably to Thoman and determine whether the district

court’s finding was correct.

Before reaching the merits of the judgment, we first

address Thoman’s assertions that the district court’s action was

procedurally improper. The district court entered summary

judgment on its own initiative based solely on the pleadings, a

copy of the written agreement executed by the parties when

Thoman resigned, and the statements submitted by counsel for

the parties following the scheduling conference. The Supreme

Court has stated: “[D]istrict courts are widely acknowledged

to possess the power to enter summary judgments sua sponte,

so long as the losing party was on notice that she had to come

forward with all of her evidence.” See Celotex Corp, v. Catrett,

U.S., 106 S. Ct. 2548, 2554 (1986). One could reasonably

conclude that Thoman did not receive that notice.

18-A

Concept now seeks to characterize the district judge’s

oral instructions at the scheduling conference as an invitation

for cross-motions for summary judgment. Answer Brief of

Defendant- Appellee Concept, Inc. at 4, 7. However, the

parties’ actual responses belie that characterization. Concept

did not file a motion and did not present evidentiary materials

to establish its defense as the summary judgment procedure

normally requires. In fact, Thoman merely submitted a letter to

the judge; he apparently did not view the judge’s instructions

as a request for a formal document nor a request for evidence.

Assuming, however, that the district judge’s comments

during the conference provided adequate notice that he was

considering summary disposition of the case, we question

whether Concept’s filed statement of facts provided a sufficient

basis for summary judgment. According to the Supreme Count,

a court acting on a summary judgment motion should rule

“against a party who fails to make a showing sufficient to

establisn the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial.” Celotex, 106 S. Ct. at 2552-53. Although Celotex

involved the sufficiency of a plaintiff's showing on the

elements of his claim, the logical corollary of the Court’s

Statement is that a defendant must make a sufficient showing

to establish his affirmative defense (on which he bears the

burden of proof at trial) in order to receive a summary judgment

in his favor.

Accordingly, Concept bore the burden of producing

evidence to establish the validity of the waiver and release. The

only evidence presented to the district court, aside from the

agreement itself, was the unsubstantiated assertions of counsel,

who apparently had no personal knowledge of the

circumstances surrounding the execution of the agreement.

Consequently, Concept argues on appeal that Thoman’s

Statement of facts in his letter to the judge should be treated as

19-A

an admission or stipulation that established a sufficient basis

for summary judgment.* We view this posturing as

unnecessary because we judgment conclude that the district

court’s substantive decision was erroneous.

A release of an employment discrimination claim

ordinarily does not violate public policy, but a release waiving

such statutory rights must be knowing and voluntary. Rogers v.

General Elec. Co., 781 F.2d 452, 454 (Sth Cir. 1986) (citing

Alexander v, Gardner-Denver Co,, 415 U.S. 36, 51 (1974)).

Federal law determines whether a release of a federal statutory

claim was properly obtained, and federal law requires that a

valid waiver not be lightly inferred. Id, at 454-55 (citing

Watkins v, Scott Paper Co., 530 F.2d 1159, 1172 (Sth Cir.), cert.

denied, 429 U.S. 861 (1976)). These rules have been applied in

ADEA cases. See, eg. . E.E.0.C, v. Cosmair Inc., 821 F.2d

1085, 1091 (Sth Cir. 1987).

In Rogers, the court affirmed a summary judgment

against an employee because the undisputed proof established

that she knowingly and voluntarily executed a release. The

a Concept cites United States v. One Heckler-Koch Rifle, 629 F.2d 1250, 1253

(7th Cir.1980), where the court assumed that a party’s representation to the

district court, which was neither in a pleading nor affidavit, could be treated

as an admission and a basis for summary judgment. We also note that

stipulations are a proper evidentiary basis for a summary judgment and that

uncontested statements of fact may sometimes be treated as stipulations.

Munoz v. International Alliance of Theatrical Stage Employees & Moving

Picture Mach. Operators, 563 F.2d 205, 213-14 (Sth Cir. 1977).

20-A

court relied on these facts: (1) the document clearly and

unambiguously released the discrimination claims (under Title

VII);4(2) before signing the release, the employee was advised

both orally and in writing that she could consult an attorney;

(3) the employee’s testimony indicated that at the time she

executed the release, she believed she had a valid

discrimination claim against her employer; and (4) rather than

pursuing legal remedies, she accepted $800 in exchange for a

release. Rogers, 781 F.2d at 456. The court also noted that a

Significant fact was that the employee, an educated person, had

previously been employed to read and analyze complex

Department of Defense contracts. Id. at 456 n.8.

Similarly, in Mosley v. St, Louis Southwestern Ry., 634

F.2d 942 (Sth Cir. Unit A Jan. 1981), cert. denied, 452 US. 906

(1981), the court reversed the district court’s finding that

employees had voluntarily and knowingly waived their

discrimination claims because they were denied access to

counsel. The court also considered the employees’ limited

formal education, their lack of legal experience, the ambiguous

circumstances surrounding the signing of the settlement

agreements, and the fact that the employer's return promise

provided insubstantial relief. Id. at 946.

From these cases, it is clear that the district court

applied an improper legal standard in determining that Thoman

validly waived his ADEA claim. The court assumed that the

release was not knowing or voluntary and proceeded to find

The document signed by the employee specifically released all claims resulting

from violations of any equal employment Opportunity laws, including Title

VII. It also stated that the employee had a right to consult an attorney and

acknowledged that she was voluntarily accepting the payment as a full

settlement.

that the agreement operated as an “accord and satisfaction.”

Our review of the facts reveals that Thoman, in his letter to the

judge, disputed several facts material to a finding that the

release was knowingly and voluntarily executed. Thoman

asserted that he did not understand that the release waived

discrimination claims, that he was not advised that he could

consult counsel and had no opportunity to do so, and that

Jackson induced him to immediately sign the release. The

broad language of the release does not refute Thoman’s

allegation that he did not know he was waiving his

discrimination claim. The only evidence concerning Thoman’s

education or legal experience was Concept’s bare statement

that Thoman’s sales position provided him with contract

experience. In short, the district judge entered a summary

judgment despite disputed and unsubstantiated facts

concerning the effectiveness of the waiver.

Concerning Thoman’s contractuai claim, the district

court concluded that the release operated as an “accord and

satisfaction” and therefore precluded further litigation of

Thoman’s breach of contract claim. Thoman’s challenge to this

conclusion is that Concept did not make a sufficient showing

to support it. In his letter to the district judge, Thoman stated

that he signed the release not as a settlement of his breach of

contract claim, but merely as a precondition to receiving

severance pay. Thoman’s employment contract was not

presented to the district court, and the terms of the release

agreement do not unambiguously express the parties’ intent to

settle a contractual dispute. Thus we conclude that summary

judgment on the contractual claim was also premature.

Because we hold that summary judgment was

inappropriate in this case, we need not consider the denial of

Thoman’s motion for a new trial.

22-A

III.

For the above reasons, the summary judgment is

REVERSED.

APPENDIX C

24-A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVESIONU-S.DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

FILED

FEB 24 1987

CLAUDE LEWIS THOMAN, § JESSE E. CLARK, CLERK

BY DEPUTY:

§ /s/ J. Richard

Plaintiff, §

8

VS. § CIVIL ACTION NO. H-86-1955

§

CONCEPT, INC., §

§

Defendant. §

MEMORANDUM OF SUMMARY JUDGMENT

The issue of waiver was raised at a Rule 16 pre-trial

conference and later briefed by both parties. Because the

plaintiff concedes that there are no disputes over his acts which

constitute a waiver, the court will grant summary judgment for

the Concept on Claude Thoman’s suit for age discrimination

and for breach of an employment contract. The parties have

furnished a copy of a settlement agreement, signed by Thoman

at the time of his resignation in consideration for $9,000 and

February commissions; it releases the employer from

contractual and statutory claims. The employer had no

obligation to pay Thoman $9,000.

Because of judicial reluctance to apply rules of contract

law to the administration of remedial civil rights statutes, the

court will for the purpose of this analysis indulge the plaintiff's

assertion that his release was not knowing or voluntary.

Thoman worked for Concept, Inc., as a primary sales

representative, earning in excess of $100,000 a year through

the sales position, Thoman acquired experience making and

interpreting contracts. The contract at issue here was executed

“ by Thoman and his supervisor at a hotel lounge during a brief

meeting. Thoman’s resignation letter, which he read before

signing, is short and simple. It discharges Concept "from any

and all present and future claims... including but not limited to

claims arising out of worker’s compensation laws and other

employee and employee related laws and regulations." The

only objective duress which Thoman points to is a reminder by

his supervisor that, were he io be terminaied, it would be

without severance pay. That the meeting was brief and the

release prepared in advance does not amount to duress or

trickery.

This controversy is not analagous to cases in which

releases of discrimination claims have been held not to be

binding because the employee at the time of execution was

ignorant about the consequences of his release. The Supreme

Court held that a maintenance worker’s submission to

arbitration of a claim under the nondiscrimination clause of a

collective bargaining agreement was not a binding waiver of

his Title VII claims. Alexander v. Gardner-Denver Company,

94 S. Ct. 1011, 1021 (1974). Unlike the maintenance worker in

Alexander, who signed a collective bargaining agreement

which his employer claimed was a waiver, Thoman was given

a personal resignation letter, advised by his supervisor of what

his alternative was, accepted $9,000, and has not offered to

return the settlement. In Watkins v. Scott Paper Co., 530 F.2d

1159 (Sth Cir. 1976), black litigants with limited formal

edcation sued their employer, a company with a history of

racial discrimination. The court held a waiver signed by the

employees as applicants non-binding. Thoman not only held a

management position but his sales responsibilities required a

26-A

familiarity with contracts. The resignation letter here is not an

unknowing blanket waiver for acts in the future.

Thoman, unlike the plaintiffs in Mosley who asked to

see an attorney before signing a release but were not given the

chance to consult one, never hesitated to accept the $9,000

settlement. Mosley v, St. Louis Southwestern Railway, 634

F.2d 942 (Sth Cir. 1981). According to the defendant, Thoman

commented when signing the agreement that it was a relief

since he knew his termination was imminent. It is

inconceivable that Thomas would have refused to sign the

agreement if it had contained the words “age discrimination.”

The claims of involuntariness or lack of knowledge are more

likely to be substantiated when the employee has little

education, money, or legal experience, such as the plaintiffs in

Mosley who worked as brake-yardmen. The fact that a lay

person does not consult an attorney before signing a release

does not require the court to find that the waiver was not

knowing. _Rogers v. General Elec, Co., 781 F.2d 452, 456 f.n.

7 (Sth Cir. 1986) (holding that employee validly released Title

VII claims against employer by signing waiver in exchange for

$800).

Public policy favors voluntary settlement of

employment discrimination claims brought under Title VII. Id.

at 454. The settlemeni, signed by Thoman on February 14,

1985, operates as an accord and satisfaction and precludes any

further litigation of contractual or statutory claims against the

defendant.

Signed on February _24_, 1987, at Houston, Texas.

Lynn N. Hughes

United States District Judge

27-A

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION “YE KCrR STRICT

CLAUDELEWIS THOMAS) § eae aa

Individually and onbehalfof § FILED

others similarly situated, § NOV 29 1988

JESSE E. CLARK,

Plaintiff, § Fn

§ /s/ R. Thomas

§

VS. § CIVIL ACTION NO. H-86-1955

§

CONCEPT, INC. §

§

Defendant. §

FINAL JUDGMENT

Claude Lewis Thoman takes nothing against Concept,

Inc. .

Signed on November _29th_, 1988, at Houston, Texas.

Lynn N. Hughes

United States District Judge

29-A

APPENDIX E

30-A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

U.S. COURT OF APPEALS

No. 88-6210 FILED

FEB 20 1990

GILBERT F. GANUCHEAU

CLAUDE LEWIS THOMAN, Etc., CLERK

Plaintiff-Appellant,

versus

CONCEPT, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(Opir ion _1/23/90_, 5 Cir., 198_, __ F.2d__)

( February 20, 1990 )

Before GEE, JONES and SMITH, Circuit Judges.

PER CURIAM:

(X ) Treating the suggestion for rehearing en banc as a petition

for panel rehearing, it is ordered that the petition for panel

rehearing is DENIED. No member of the panel nor Judge in

regular active service of this Court having requested that the

Court be polled on rehearing en banc (Federal Rules of

Appellate Procedure and Local Rule 35), the suggestion for

Rehearing En Banc is DENIED.

( ) Treating the suggestion for rehearing en banc as a petition

for panel rehearing, the petition for panel rehearing is

DENIED. The judges in regular active service of this Court

having been polled at the request of one of said judges and a

31-A

majority of said judges not having voted in favor of it (Federal

Rules of Appellate Procedure and Local Rule 35). the

suggestion for Rehearing En Banc is DENIED.

CLERK’S NOTE:

ENTERED FOR THE COURT: ore TRAD AND LOCAL.

RULES 41 FOR STAY OF THE

/s/ J, Smith MANDATE

United States Circuit Judge

.

Judge King did not participate in the consideration

of the suggestion for rehearing en banc.