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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 815

## Text

| 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

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PURE BP PORES PROC OING ooiincnnsccccccceccccscccccccessceees il
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I RE ED oo. cvecoceccuvccevevevsercancnccansceneee Vv
REFERENCE TO OPINION BELOW .....W00. ee 1
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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

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APPENDIX A

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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).

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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.

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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.

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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.

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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

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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

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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.

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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.

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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

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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.

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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

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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).

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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.

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1585%3A1. Public record. Not legal advice.