
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1885                                 GIDEL RIVERA-FLORES,                                Plaintiff, Appellant,                                          v.                       BRISTOL-MYERS SQUIBB CARIBBEAN, ET AL.,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The  opinion of this Court  issued on April  25, 1997 is corrected        as follows:            On  the cover  sheet, insert  prior to  date of  decision  "Jay A.                                                                        ______        Garcia-Gregory and Fiddler, Gonzalez & Rodriguez on brief for appellee        ______________     _____________________________        Prudential Insurance Company."                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1885                                 GIDEL RIVERA-FLORES,                                Plaintiff, Appellant,                                          v.                       BRISTOL-MYERS SQUIBB CARIBBEAN, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                      [Hon. Jose A. Fuste, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Octavio A.  Diaz-Negron, Idalia M. Diaz  and Peter  J. Porrata for            _______________________  ______________      _________________        appellant.            Carl  Schuster,   with  whom  Maria   Santiago  de  Vidal,   Maria            ______________                ___________________________    _____        Maldonado-Nieves and  Schuster Usera Aguilo  & Santiago were  on brief        ________________      _________________________________        for appellees.            Jay A. Garcia-Gregory and  Fiddler, Gonzalez &  Rodriguez on brief            _____________________      ______________________________        for appellee Prudential Insurance Company.                                 ____________________                                    April 25, 1997                                 ____________________                      LYNCH,  Circuit  Judge. Gidel  Rivera-Flores worked                      LYNCH,  Circuit  Judge.                              ______________            first as a machine cleaner  and later as a line  operator for            Squibb Manufacturing  Inc. ("SMI") in  Humacao, Puerto  Rico.            Some two years  after his employment  was terminated under  a            severance program,  Rivera, who  wore a prosthetic  device in            place  of his  lower  left leg,  sued  SMI and  its  insurer,            Prudential   Insurance  Co.,   under   the   Americans   with            Disabilities Act  ("ADA"),  42 U.S.C.    12101  et seq.,  the                                                            __ ____            Employee Retirement Income Security Act ("ERISA"),  29 U.S.C.               1001 et seq., and other federal and Puerto Rico employment                    __ ____            statutes.  The  employer countered with a waiver  and release            which Rivera had executed  when his employment terminated and            for  which he  received certain  benefits.   Rivera responded            that the release  was invalid.  On  cross-motions for summary            judgment, the district court entered summary judgment for the            defendants.   Rivera appeals.   This case raises  an issue of            first    impression   in   this    circuit   concerning   the            enforceability  under  the ADA  of  waivers  and releases  of            claims by employees.                      We hold that the  general principles for evaluating            such  waivers  and releases,  enunciated  by  this court  for            claims arising under other  employment statutes, apply to the            ADA as  well:  ADA  waivers and releases must  be knowing and            voluntary, as evidenced by the totality of the circumstances.                                         -3-                                          3                      Whatever  the  merits  of  any  claims  Rivera  had            arising  out of  his employment,1  he presented  no competent            evidence  that created a genuine issue of material fact as to            whether his waiver and release were voluntarily and knowingly            given,  and  whether  he had  the  capacity  to  give such  a            release.  We affirm.                                          I.                      Rivera was  born  in 1953  and  has a  high  school            education.  He  began working  for SMI in  June 1984;  before            that he worked as  a police officer for ten  years.  Rivera's            left leg had been amputated below the knee after a motorcycle            accident  he suffered in 1982  when he was  a police officer.            His  work  assignments  at  SMI,  despite  his  requests  for            accommodation (which were partially met), caused his stump to            become irritated  and bleed.   In pain,  he began  exhibiting            symptoms  of, and eventually received  a letter from a doctor            diagnosing him  with, post-traumatic stress  disorder and  an            anxiety disorder.                      Rivera  left  work  due to  disability  in December            1992.  In the spring  of 1993, he received a letter  inviting            him to participate in a voluntary separation plan.  He sent a            letter accepting this invitation.  He also applied for  long-                                            ____________________            1.  There is no indication in the record that plaintiff first            presented  his  claim  to  the  Equal Employment  Opportunity            Commission ("EEOC"), which is a prerequisite to bringing suit            under the ADA.  Defendants never raised this issue and it was            not argued before us.  We decline to address the matter.                                         -4-                                          4            term disability benefits  available through the employer  and            submitted   a  statement  in   support  from   his  attending            physician.   The  insurer  denied the  request for  long-term            disability   benefits;   Rivera  sought   reconsideration  in            September of 1993 and  submitted further documentation to the            insurer.   Rivera pursued his claims  for disability benefits            throughout 1993 and thereafter.2                      In  the fall of  1993, faced  with the  shutdown of            certain  of  its  operations,   SMI  sent  Rivera  and  other            employees a  letter of  dismissal stating that  all employees            who wished  to receive  voluntary separation benefits  had to            sign a waiver agreement.   Under the terms of  the Separation            Agreement and  General Release Form (the  "Agreement"), dated            October 18, 1993, the  employee agreed that he would  make no            legal  claims  against  the  company  or  its  insurer.3   He            received,  in  turn, certain  benefits  beyond  those he  was            otherwise entitled to receive.  The Agreement stated that the                                            ____________________            2.  In  response to  his claim  for disability  benefits, the            Social Security Administration  found in September  1994 that            Rivera was disabled  and suffered  from pain,  post-traumatic            stress disorder and dysthymic disorder.            3.  The Agreement provided in relevant part that the employee            agreed that "he shall file no action against the Company, nor            against  any entity  or  person associated  with the  Company            . . . before any  agency or administrative  instrument, board            or  court,  federal  or local,  which  might  be  directly or            indirectly related to his employment with the Company or with            the  termination of  the  same."   The Agreement  encompassed            causes of action including but not limited to the "'Americans            with  Disabilities  Act,'  or  the  local  legislation   that            protects persons with physical and/or mental impairments."                                         -5-                                          5            signatory  acknowledged  that he  was  signing  the Agreement            voluntarily, that he fully  understood the Agreement, that he            had been advised to consult  with a legal representative, and            that he had seven days to revoke his consent.  On December 1,            1993, Rivera  executed the Agreement.   He never  revoked his            consent.  He now  claims that he signed the  Agreement, which            he did  not read at the  time, under duress and  while he was            suffering under a psychiatric disability.                                         II.                      Rivera challenges  the validity of  the release  on            three  grounds:   that enforcement  of  the release  would be            contrary to the policies animating the ADA, that the evidence            raised a dispute as  to whether the execution of  the release            was  knowing and  voluntary,  and that  he  should have  been            permitted to take additional discovery.  The first two issues            are intertwined.                      Courts   have,  in  the   employment  law  context,            commonly upheld  releases given  in  exchange for  additional            benefits.    Such  releases  provide  a  means  of  voluntary            resolution of  potential and actual legal  disputes, and mete            out a type  of industrial  justice.  Thus,  releases of  past            claims have been honored under the laws prohibiting race  and            gender  discrimination.   Warnebold v.  Union Pac.  R.R., 963                                      _________     ________________            F.2d  222, 223-24 (8th Cir. 1992);  cf. Alexander v. Gardner-                                                ___ _________    ________            Denver Co., 415 U.S. 36, 52  (1974).  Such releases have also            __________                                         -6-                                          6            been   honored   under   the   ADEA,  which   prohibits   age            discrimination in  employment, e.g., Pierce v.  Atchison T. &                                           ____  ______     _____________            S.F. Ry. Co., -- F.3d -- (7th Cir. Mar. 27, 1997), as well as            ____________            under ERISA, e.g., Smart v. Gillette Co. Long-Term Disability                         ____  _____    _________________________________            Plan, 70  F.3d 173, 181  (1st Cir. 1995);  Rodriguez-Abreu v.            ____                                       _______________            Chase  Manhattan Bank,  N.A.,  986 F.2d  580,  587 (1st  Cir.            ____________________________            1993).                      Where  Congress  has  wanted  to  insure particular            protections for the employees in the procedures for obtaining            releases,  it has done so,  for example in  the Older Workers            Benefits  Protection Act amendments  to the ADEA.   29 U.S.C.              626(f).   No such special  procedures are set  forth in the            ADA.                      The   protection  Congress  wished   to  afford  to            disabled workers is  consistent, we believe, with  permitting            those workers to  resolve their claims by executing a release            in exchange  for benefits  they would not  otherwise receive.            The ADA clearly  encourages private resolution  of employment            disputes, such as by requiring that employers attempt to make            reasonable  accommodations and  that the  EEOC try  to settle            disputes informally.    See, e.g., Hodges,  Mediation and the                                    _________           _________________            Americans with  Disabilities Act,  30  Ga. L.  Rev. 431,  437            ________________________________            (1996).  The ADA also expressly provides that its enforcement            procedures  shall  be the  same as  those  for Title  VII, 42            U.S.C.   12117(a),  and releases  have long been  accepted in                                         -7-                                          7            that  context.    In  addition,  although  claims  concerning            employment arise under Title  I of the ADA, it  is noteworthy            that  the EEOC Regulations under Title III of the ADA (public            accommodations) expressly provide for settlement of disputes.            28 C.F.R.   36.506.                      Certainly there  is nothing in the  ADA prohibiting            such releases.   Indeed, as the  district court pointed  out,            the  report of the conference committee on the ADA evinces an            intent to  permit individuals to settle or waive claims under            the  ADA by express, voluntary agreement.  H.R. Rep. No. 101-            596  (1990),  reprinted   in  1990  U.S.C.C.A.N.   267,  598.                          ______________            Prohibiting  such waivers  under  the ADA  on policy  grounds            arguably would display the  same stereotyping and patronizing            attitudes toward the disabled  which Congress hoped to remedy            in  enacting the  ADA.   We conclude  that such  releases are            permissible under the ADA, and turn to whether the release at            issue here was valid.                      Waiver  and  release  are affirmative  defenses  on            which  the employer bears the burden.   Fed. R. Civ. P. 8(c);            see Long v. Sears Roebuck & Co., 105 F.3d 1529, 1543 (3d Cir.            ___ ____    ___________________            1997).  At  a minimum,  judicial review of  such waivers  and            releases has  been designed to ensure that  they are "knowing            and  voluntary."   Smart,  70 F.3d  at  181.   That  analysis                               _____            necessitates some  focus on the  rights being waived  and the            congressional intention  to protect such rights.   This court                                         -8-                                          8            has  endorsed  a  "totality  of  circumstances"  approach  to            determining the validity of the  waiver.  Id.  We  have found                                                      ___            helpful, but not  exclusive, a set of  six factors identified            by the Second Circuit in Finz v. Schlesinger, 957 F.2d 78, 82                                     ____    ___________            (2d Cir. 1992).4                      And yet, a challenge  to a release by a  person who            asserted to the employer that he was disabled at the time  of            execution of  the release  may, on particular  facts, warrant            heightened  judicial   scrutiny.5    While   certain  claimed            disabilities may  inherently raise a  question about  whether            the employee has the capacity to give a knowing and voluntary            waiver, that is not the case  here.  It is not enough for  an            employee simply to assert that he was disabled at the time he            executed  the  release  and  the   employer  knew  it.    The            definition   in   the  ADA   of  "disability"   covers  three            categories, including  the  mere perception  that someone  is            disabled.    42 U.S.C.    12102(2);  Soileau  v. Guilford  of                                                 _______     ____________            Maine, Inc.,  105 F.3d  12, 15  (1st Cir. 1997).   Nor  is it            ___________                                            ____________________            4.  The  six  factors  are:  (1)  plaintiff's  education  and            business sophistication; (2) the respective roles of employer            and employee in determining the provisions of the waiver; (3)            the clarity of the  agreement; (4) the time plaintiff  had to            study the  agreement; (5)  whether plaintiff  had independent            advice, such as  that of counsel;  and (6) the  consideration            for the waiver.  Smart, 70 F.3d at 181 n.3.                             _____            5.  Unlike waiver of pension  benefits under ERISA, waiver of            welfare benefits such  as those at  issue here are not,  as a            general matter,  subject to heightened  scrutiny.  Rodriguez-                                                               __________            Abreu, 986 F.2d at 587.            _____                                         -9-                                          9            enough  to  assert  that the  nature  of  the disability  was            psychiatric.   Not all  disabilities and not  all psychiatric            disabilities inherently involve a question about capacity  to                         __________            act  knowingly  and  voluntarily.     Cf.  United  States  v.                                                  ___  ______________            Schneider, -- F.3d -- (1st Cir. Apr. 15, 1997).            _________                      Thus, the operative question  is whether there is a            genuine issue  as  to  whether Rivera  had  the  capacity  to            execute  the  release  knowingly  and voluntarily.    Summary            judgment  is appropriate  where "the  pleadings, depositions,            answers to interrogatories, and admissions on file,  together            with  the affidavits, if any,  show that there  is no genuine            issue as  to any material  fact and that the  moving party is            entitled to  judgment as a matter  of law."  Fed.  R. Civ. P.            56(c).    Here,  the  only  sworn  evidence  as  to  Rivera's            condition  and  its  effects  is  the  statement  in his  own            affidavit: "I was  very depressed because  I could no  longer            work;  anxious   and  confused  and   was  under  psychiatric            treatment."   Rivera failed to  submit an affidavit  from his            treating psychiatrist or from any other medical expert.6  The            court  was left with  no competent medical  evidence going to                                            ____________________            6.  Rivera did submit a case summary prepared by his treating            psychiatrist.   However, as  defendants pointed out  in their            reply  memorandum  in support  of  their  motion for  summary            judgment, this document constituted inadmissible hearsay.  It            was not  supported by  an accompanying affidavit.   Plaintiff            failed to remedy this evidentiary infirmity even after it was            brought to his attention in this manner.                                         -10-                                          10            his capacity to  execute the  release.  Cf.  Garside v.  Osco                                                    ___  _______     ____            Drug, Inc., 895 F.2d 46, 49-50 (1st Cir. 1990).            __________                      Rivera   did    submit   the   decision    of   the            administrative law  judge who  presided  over his  collateral            action seeking  disability benefits under the Social Security            Act. The administrative law  judge found that Rivera suffered            from  dysthymia as  well as  post-traumatic stress  disorder.            Even giving  these findings some evidentiary  weight they are            insufficient, without more, to create a genuine issue of fact            as to Rivera's mental capacity.   Mere evidence of diagnostic            labels without content  tying them to capacity to  give valid            consent  is  inadequate   to  create  an  issue   as  to  the            consequences of the disorders  on an individual's capacity to            give valid consent.                      Rivera  never  states  in  his affidavit  that  his            condition  was  such that  he  could not  give  voluntary and            knowing consent.   The social security  judge's decision says            nothing  on these  points.   And,  as we  said, there  was no            affidavit  from  any  doctor.     Furthermore,  despite   his            diagnosed  dysthymia  and  post-traumatic   stress  disorder,            during this  period he  was actively pursuing  his disability            claim and did  not tell his employer and its  insurer that he            lacked the  capacity to do so.   On this record,  there is no            evidence  sufficient  to  establish  lack of  capacity.    In            reaching this conclusion, we say nothing about the outcome in                                         -11-                                          11            a  case involving similar facts in which the plaintiff put on            competent medical evidence.                      We  consider the  remaining circumstances.   Rivera            had  42 days  to  examine  the  Agreement,7 discuss  it  with            whomever  he chose  and ask  questions before  he signed  it.            Rivera attempts  to raise a  dispute about  when he  actually            received the Agreement.  However, the employer filed with its            summary judgment papers a receipt for the release executed by            Rivera.  Rivera has not  fairly met this evidence.  At  most,            his  affidavit says that he did not recall if he received the            release then.  That is insufficient to create a genuine issue            of fact.  See Ayer v. United States, 902 F.2d 1038, 1045 (1st                      ___ ____    _____________            Cir. 1990);  cf. Perez de la Cruz v. Crowley Towing & Transp.                         ___ ________________    ________________________            Co., 807 F.2d 1084, 1086-87 (1st Cir. 1986).            ___                      The   district   court  sensitively   analyzed  the            totality  of the circumstances  here, commenting  on Rivera's            lack of business sophistication.  The court noted that Rivera            was  given the Agreement and  release along with  a letter of            termination,  which  suggested  there  was  little  room  for            negotiation.  However, as the district court pointed out, the            language  of the  release  is clear  and  unmistakable:   the            waiver clause expressly mentions the ADA and states that  all                                            ____________________            7.  The  Agreement  was  internally inconsistent  in  that it            provided  for  at least  a  45-day period  for  examining the            document but apparently expired 44 days after the date it was            issued.   We need not reach this issue, however, as plaintiff            never claimed that the Agreement was invalid for this reason.                                         -12-                                          12            claims  for  disability are  released.    The district  court            concluded that Rivera's sense that he was treated unjustly in            this situation does  not mean that his  signing the Agreement            was not voluntary or knowing.                      Rivera argues  that the district court was required            to rule first on  the merits of his liability  claims against            the  employer  before reaching  the  issue of  waiver.   This            argument  has the matter  exactly backwards.   Even if Rivera            had valid claims under  the ADA and other statutes,  he could            have  waived those claims.  It was both logical and efficient            to take up first the matter of waiver.                      As  for   Rivera's  argument  that  he  was  denied            discovery, it is too little and too late.  Our  review of the            district court's discovery-related decisions  is for abuse of            discretion,  and "[w]e  will intervene  in such  matters only            upon a clear showing  of manifest injustice."  Mack  v. Great                                                           ____     _____            Atl.  &  Pac. Tea  Co., 871  F.2d 179,  186 (1st  Cir. 1989).            ______________________            Here,   Rivera  never argued  to the  district court  that he            needed additional discovery before  filing his opposition  to            summary  judgment; nor did he file an affidavit under Fed. R.            Civ. P. 56(f).   Indeed, he filed a cross-motion  for summary            judgment.   Under these circumstances, there was  no abuse of            discretion.                                         -13-                                          13                      For these reasons, to  the extent (if at  all) that            Rivera's  remaining non-ADA claims  have been  preserved, the            waiver and release are valid as to them.                      Affirmed.                      ________                                         -14-                                          14
