                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 15a0826n.06

                                           Case No. 15-1532

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                FILED
                                                                                Dec 18, 2015
                                                                            DEBORAH S. HUNT, Clerk
DONNA SOLTIS,                                               )
                                                            )
        Plaintiff-Appellant,                                )   ON APPEAL FROM THE
                                                            )   UNITED STATES DISTRICT
v.                                                          )   COURT FOR THE WESTERN
                                                            )   DISTRICT OF MICHIGAN
J.C. PENNEY CORP., INC.,                                    )
                                                            )          OPINION
        Defendant-Appellee.                                 )
                                                            )

BEFORE: SILER, MOORE, and GIBBONS; Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. After working for J.C. Penney for several

years, Donna Soltis was terminated from her position. Thereafter, she filed against J.C. Penney a

worker’s compensation claim, as well as the instant claim for violations of the Age

Discrimination in Employment Act, Title VII of the Civil Rights Act, and Michigan’s Elliott-

Larsen Civil Rights Act. After the worker’s compensation claim was settled, J.C. Penney moved

for summary judgment on the remaining claims, arguing they were released by the terms of the

settlement. The district court granted that motion, and Soltis appealed. We conclude Soltis

knowingly and voluntarily signed the Release, which unambiguously released J.C. Penney from

liability for all of the instant claims, and affirm.

                                                       I.

        Donna Soltis (Soltis) began working for J.C. Penney Corporation, Inc. (J.C. Penney) in

2004 and was eventually promoted to the position of Department Supervisor. She was fired in

April 2012, approximately six months after Brian Aspey (Aspey), Soltis’s supervisor, began
No. 15-1532
Soltis v. J.C. Penney Corp., Inc.
working for J.C. Penney. At some point,1 Soltis brought a worker’s compensation claim against

J.C. Penney, which was later settled. As part of that settlement Soltis signed a release (the

Release), which provides in relevant part:

        I, Donna L. Soltis, have filed a claim under the Michigan Workers’ Disability
        Compensation Act for injuries I allege to have resulted from my employment; and, JC
        Penney Company, Inc., has denied any liability beyond any benefits paid but has
        consented to a redemption agreement providing me, Donna L. Soltis, with consideration
        in the amount of $10,000.00.

        I, Donna L. Soltis, in consideration of the full and final settlement of my claims through
        workers’ disability compensation proceedings do hereby:

        ....

        2. Voluntarily agree . . . to forever release and discharge [J.C. Penney] . . . from any and
        all claims, grievances, arbitrations, demands, causes of action, losses, and expenses of
        every nature whatsoever known or unknown, arising out of or in connection with my
        employment by [J.C. Penney], or termination thereof, including, but not limited to, . . .
        the Age Discrimination in Employment Act of 1967 [(ADEA)] . . . [and] Title VII of the
        Civil Rights Act of 1964 [(Title VII)] . . . .

Release 1, ECF No. 56-19. The Release further provided Soltis twenty-one days to review the

Release and, with respect to the ADEA claim, seven days after signing to revoke her agreement.

        Notwithstanding the Release, Soltis brought suit against J.C. Penney and Aspey, alleging

violations of the ADEA, Title VII, and Michigan’s Elliott-Larsen Civil Rights Act. The district

court granted summary judgment in favor of J.C. Penney and Aspey. Regarding her state law

claim, it held that the Release signed by Soltis unambiguously “release[d] all claims related to

her employment with J.C. Penney and her termination,” and that the fact that the “magistrate

judge indicated that he did not need the Release” did not affect its validity. Soltis v. J.C. Penney

Corp., No. 2:13-CV-323, 2015 WL 1737057, at *2 (W.D. Mich. Apr. 16, 2015). Then, turning


1
  The parties dispute when the worker’s compensation claim was filed. Soltis argues she filed it while the instant
claims were pending, but J.C. Penney insists the worker’s compensation suit was filed first. However, for the
reasons articulated below, the broad unambiguous language of the Release precludes Soltis from bringing the instant
suit, so the timing of the claims is irrelevant.


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Soltis v. J.C. Penney Corp., Inc.
to federal law for Soltis’s Title VII and ADEA claims, the district court determined that the

balancing test articulated by Nicklin v. Henderson, 352 F.3d 1077, 1080 (6th Cir. 2003), weighed

strongly in favor of validating the Release.

                                               II.

       We review a district court’s grant of summary judgment de novo. Scheick v. Tecumseh

Pub. Sch., 766 F.3d 523, 528 (6th Cir. 2014). A motion for summary judgment is properly

granted when “the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In making this

determination, the court must inquire into “whether the evidence presents sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Terry Barr Sales Agency v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996)

(quoting Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989)).

The court must “view the evidence and draw all reasonable inferences in favor of the non-

moving party.” Scheick, 766 F.3d at 529 (quoting Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668,

673 (6th Cir. 2013)). We will apply Michigan law to Soltis’s state law claims. Chandler v.

Specialty Tires of Am., 283 F.3d 818, 823 (6th Cir. 2002) (“A federal court exercising

supplemental jurisdiction over state law claims is bound to apply the law of the forum state

. . . .”). But “[f]ederal common law controls the validity of a release of a federal cause of

action,” so we will apply federal law to her ADEA and Title VII claims. See Nicklin, 352 F.3d at

1080 (citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1481 (6th Cir. 1989)).

                                               III.

                                               A.

       On appeal, Soltis argues that the “conflict[ing]” language in the Release that she “will

resign her employment” and release “claims pertaining to her termination of employment”


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Soltis v. J.C. Penney Corp., Inc.
creates an ambiguity because at the time she signed the Release, she had already been

terminated. R. at 14, Appellant Br. 22. Therefore, she argues, the court can look to extrinsic

evidence of the parties’ intent. She does not argue that the Release is not broad enough to

encompass the instant claim, but rather asserts that she and her lawyer did not intend to release it.

Soltis maintains that the fact that there was no mention of the present case in the redemption

agreement or the Release supports this intent.

       In the course of settlement of a worker’s compensation claim, parties may agree to a

release for ancillary claims. See Beardslee v. Mich. Claim Servs., Inc., 302 N.W.2d 896, 901

(Mich. Ct. App. 1981). Basic principles of contract law apply to interpreting such releases.

Radu v. Herndon & Herndon Investigations, Inc., 838 N.W.2d 720, 726 (Mich. Ct. App. 2013).

One such principle is that all contracts must be construed as a whole. Workmon v. Publishers

Clearing House, 118 F.3d 457, 459 (6th Cir. 1997) (citing Associated Truck Lines, Inc. v. Baer,

77 N.W.2d 384 (Mich. 1956)). Moreover, the “cardinal rule” in contract interpretation is to

ascertain the parties’ intent. Omnicom Grp., Inc. v. 880 W. Long Lakes Assocs., 504 F. App’x

487, 490 (6th Cir. 2012) (quoting McIntosh v. Groomes, 198 N.W. 954, 955 (Mich. 1924)). In

an unambiguous contract, intent is established solely based on the plain language of the contract

because in such a case, “no outside evidence can better evince the intent of the parties than the

writing itself.” Id. (citation omitted); see Cole v. Ladbroke Racing Mich., Inc., 614 N.W.2d 169,

176 (Mich. Ct. App. 2000). If, on the other hand, the language of a contract is “reasonably

susceptible to more than one interpretation,” it is ambiguous, Cole, 614 N.W.2d at 176, which

allows the court to look to extrinsic evidence to determine the parties’ intent. Shay v. Aldrich,

790 N.W.2d 629, 641 (Mich. 2010). The party challenging the release must prove that it should




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Soltis v. J.C. Penney Corp., Inc.
be set aside by a preponderance of the evidence. Kellogg Co. v. Sabhlok, 471 F.3d 629, 632 (6th

Cir. 2006).

        Neither in her complaint nor in her response to J.C. Penney’s motion for summary

judgment did Soltis argue the Release was ambiguous. We have held that a party who fails to

present an issue before the district court waives the right to have it addressed on appeal.

Armstrong v. City of Melvindale, 432 F.3d 695, 699–700 (6th Cir. 2006) (citing Legg v. Chopra,

286 F.3d 286, 294 (6th Cir. 2002)). Thus, the argument is waived.

        In any event, the Release at issue is unambiguous. It releases J.C. Penney “from any and

all claims, . . . demands, [and] causes of action . . . of every nature whatsoever known or

unknown, arising out of or in connection with [Soltis’s] employment . . . including, but not

limited to, . . . [the ADEA] . . . [and] Title VII.” Release 1 (emphasis added). The plain terms

expressly release J.C. Penney from Soltis’s ADEA and Title VII claims, and the broad language

encompasses her state law claim, a claim “known” by both parties at the time the Release was

signed, and which her complaint makes clear arises out of her employment with J.C. Penney.

Because of this expansive language, it is irrelevant that the Release does not expressly mention

the instant suit was pending at the time it was signed.2 See Morris v. City of Detroit Water &

Sewage Dep’t, 20 F. App’x 466, 467–68 (6th Cir. 2001) (finding frivolous a plaintiff’s argument

that a release that “fully releases . . . any and all . . . causes of action, including . . . any tort

action, civil rights, handicapped claims, [and] wrongful discharge claims” did not release

plaintiff’s claim under the Americans with Disabilities Act because it did not specifically

reference that claim); see also Cole, 614 N.W.2d at 176 (citation omitted) (“[T]here is no broader

classification than the word ‘all.’”).           Moreover, we have noted that language releasing a


2
  The fact that two phrases in the Release could conceivably be read to imply that Soltis was still employed is also
irrelevant.


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Soltis v. J.C. Penney Corp., Inc.
defendant “from any and all claims, demands and causes of action I have or may claim to have

arising from or relating in any way to my employment or separation of employment,” bars claims

based on termination of one’s employment. See Kellogg Co., 471 F.3d at 632–34. Because the

Release is unambiguous, we will not look outside the writing for evidence of the parties’ intent.

That her attorney advised her that the instant claims were not barred by the Release is

unfortunate, but not grounds for setting it aside. See Rowady v. K Mart Corp., 428 N.W.2d 22,

26 (Mich. Ct. App. 1988) (citing Gardner v. Johnson, 210 N.W. 295, 295 (Mich. 1926)) (“[A]

person cannot avoid a written contract on the ground that he . . . supposed it was different in its

terms . . . .”).

                                                 B.

         Soltis further asserts there was no consideration for the Release, which makes it

unenforceable. She argues that the language of the redemption agreement, along with the

language in the Release stating “total settlement of $10,000.00 for future medical” supports the

contention that the $10,000 was only for settlement of the worker’s compensation claim, and

thus there was “no additional amount above and beyond the payment related to her injury.” R. at

14, Appellant Br. 20–21.

         For there to be consideration, there must be a bargained-for exchange, meaning a benefit

conferred on one side, and a detriment suffered on the other. Gen. Motors Corp. v. Dep’t of

Treasury, 644 N.W.2d 734, 738 (Mich. 2002). Settlement of a disputed claim may constitute

consideration. McElmurry v. Nine, 279 N.W.2d 301, 302 (Mich. Ct. App. 1979). Consistent

with the principle that contracts should be construed as a whole, see Workmon, 118 F.3d at 459,

even if there is no specific recitation of consideration in the release itself, if the promises in the

larger agreement are supported by consideration, so is the release. Rowady, 428 N.W.2d at 25




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Soltis v. J.C. Penney Corp., Inc.
(“[A]ll consideration paid by defendant in exchange for plaintiff’s multiple promises must be

viewed as consideration as to each promise . . . .”); see also Beardslee, 302 N.W.2d at 900–01

(“We conclude that part of the $25,000 paid to the plaintiff, although not specifically identified

or severable, was sufficient legal consideration to liquidate the plaintiffs’ potential court

claim.”).

       Although the redemption agreement does not state that the $10,000 settlement amount is

also consideration for the Release, the Release clearly does, stating that “in consideration of the

full and final settlement of [Soltis’s] claims through workers’ disability compensation,” Soltis

releases J.C. Penney from the previously discussed claims. Release 1. Contracts must be

construed as a whole, so, contrary to Soltis’s suggestion, the redemption agreement and a single

phrase from the Release cannot be read in isolation from the remainder of the agreement, which

states that the $10,000 is also consideration for the Release. If under Michigan law, a release

will be upheld even without a specific recitation of consideration in the release, Rowady,

428 N.W.2d at 25, surely a release that specifically recites consideration, as the one here, must

be upheld.

                                               IV.

       Soltis argues the release of her federal claims was not knowing or voluntary because she

did not have prior experience in signing releases but relied on her lawyer who agreed the Release

would not affect this lawsuit. J.C. Penney asserts the Release was knowing and voluntary

because Soltis completed high school and some college, had supervisory experience, was

represented by and had “conferred extensively” with counsel, and had time to consider the

Release. R. at 16, Appellee Br. 23.




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Soltis v. J.C. Penney Corp., Inc.
        Ordinary contract principles govern the validity of a release of federal law claims.

Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995). We must construe a release as a

whole, giving effect to every part. See Harris v. Lockheed Aircraft Corp., 572 F.2d 138, 141

(6th Cir. 1978). This circuit has adopted a “totality of the circumstances” test to determine

whether an employee knowingly and voluntarily waived her right to bring a suit. We consider:

        (1) [the] plaintiff’s experience, background, and education; (2) the amount of time the
        plaintiff had to consider whether to sign the waiver, including whether the employee had
        an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for
        the waiver; [and] (5) the totality of the circumstances.

Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967, 974 (6th Cir. 2007) (quoting Morrison v.

Circuit City Stores, Inc., 317 F.3d 646, 668 (6th Cir. 2003) (en banc)). We have found a waiver

to be knowing and intelligent where an employee took post-graduate courses, was a managerial

employee, had twenty-one days to review the agreement and seven days thereafter to change her

mind, and consulted a divorce attorney before signing the agreement. Gascho v. Scheurer Hosp.,

400 F. App’x 978, 981–85 (6th Cir. 2010). However, we have found a waiver not to be knowing

and voluntary where the employees were educated and did not indicate they did not understand

the waiver, but were not informed of their right to revoke the waiver and were not given

documentation about the procedures to be used in place of judicial proceedings until after they

began their employment. Alonso v. Huron Valley Ambulance, Inc., 375 F. App’x 487, 493–94

(6th Cir. 2010).

        Soltis’s situation is analogous to that of the plaintiff in Gascho and, as in that case, the

factors here weigh in favor of finding that Soltis knowingly and voluntarily waived her right to

bring this suit.

        Regarding the first factor, Soltis only argues that she has not previously dealt with

signing releases but cites no authority to support that such experience is required under our



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precedent. The nature of this litigation has not necessitated an in-depth inquiry into Soltis’s

background, but we do know that she held a managerial possession for a period of time, and

Soltis has not alerted us to anything in her background that suggests she could not understand the

basic terms of a contract. Indeed, Soltis’s brief notes the praises given to her in her work

capacity.

        Next, the Release gave her twenty-one days to consider it and seven days after signing to

revoke the ADEA portion. Gascho found a similar amount of time to consider the agreement—

twenty-one days to consider and seven days to revoke—was ample. 400 F. App’x at 982.

Moreover, Soltis concedes she consulted with counsel. That her reliance on counsel’s advice

was to her detriment does not result in the factor weighing in her favor.

       For the third factor, as discussed, the Release is unambiguous. Though Soltis asserts she

“is not a lawyer,” R. at 14, Appellant Br. 19, she “does not need a law degree to grasp the import

of these terms.” Gascho, 400 F. App’x at 982 (discussing language releasing defendant “from

any and all claims of any nature . . . based on any fact, circumstance or event occurring or

existing at or before [plaintiff’s] execution of this Agreement”).

       Fourth, as discussed, when construing the agreement as a whole, giving effect to every

part, see Harris, 572 F.2d at 141, it is evident that consideration was given for this Release.

       Finally, considering the totality of the circumstances, the fact that Soltis obtained

erroneous advice from her attorney may weigh slightly in her favor, but this fact alone is

insufficient to tip the balance of the scales that weigh so strongly against her. Thus, we conclude

Soltis knowingly and voluntarily signed the Release.




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Soltis v. J.C. Penney Corp., Inc.
                                           V.

       For these reasons, we affirm the district court’s grant of J.C. Penney’s motion for

summary judgment.




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