
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1705                                   SHARON M. SMART,                                Plaintiff, Appellant,                                          v.                   THE GILLETTE COMPANY LONG-TERM DISABILITY PLAN,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Richard  L. Burpee, with whom Burpee & DeMoura was on brief,               __________________            ________________          for appellant.               John  H. Mason, with whom  Richard P. Ward,  David T. Lyons,               ______________             _______________   ______________          and Ropes & Gray were on brief, for appellee.              ____________                              _________________________                                  November 22, 1995                              _________________________                               SELYA, Circuit Judge.  Plaintiff-appellant Sharon Smart                    SELYA, Circuit Judge.                           _____________          sued The Gillette Company Long-Term  Disability Plan (Plan or LTD          Plan) for benefits she  asserts were wrongfully denied her.   The          district  court ruled that Smart had waived her claim.  See Smart                                                                  ___ _____          v. The Gillette Co.  Long-Term Disability Plan, 887 F.  Supp. 383             ___________________________________________          (D. Mass. 1995).  We affirm.          I.  BACKGROUND          I.  BACKGROUND                    We  take  the  underlying facts  principally  from  the          parties' pretrial stipulations.   The Gillette Company (Gillette)          hired appellant in  1976.  In time,  she became a  senior product          analyst.   Her job involved travel in connection with the testing          of Gillette products.   In 1986, appellant injured her  left knee          in a work-connected  automobile accident.  Between 1986 and 1990,          she underwent four surgical procedures in hopes  of repairing the          damage to her  knee.   She worked sporadically  during the  first          half of this period, but not at all after September 8, 1988.                    On  September  7, 1988,  Gillette, bent  on terminating          appellant's  at-will  employment  at  year's end  as  part  of  a          reduction  in force, sent her  a letter that  outlined a proposed          severance  arrangement.   Under it,  appellant for  a time  would          receive severance  pay and assorted  benefits to which  she would          not   otherwise  be   entitled,   but  would   go  quietly   into          unemployment's  dark night,  releasing  any and  all federal  and          state  claims she might have  against Gillette.   The September 7          letter  listed  the LTD  Plan  among the  extended  benefits that          appellant would enjoy if she accepted the proposal.                                          2                    Apparently  concerned about her injured knee, appellant          did not  immediately embrace the suggested  severance terms, but,          rather,  began  a   negotiation  aimed   at  excluding   workers'          compensation  claims from  the  sweep of  the requested  release.          Gillette eventually  acquiesced and,  on December 16,  1988, sent          appellant  a new letter that differed from the September 7 letter          in two important respects.  First, it expressly excluded workers'          compensation claims from the general release.  Second, it did not          mention the LTD Plan (an omission that had the effect of dropping          the Plan from the list of benefits that would continue during the          severance period).                    Appellant  reviewed the  December  16 letter  with  her          lawyer and signed  it on  December 29.   Gillette terminated  her          employment  effective  December  31.     As  per  the  agreement,          appellant  collected severance  pay until  November 4,  1989, and          received  the  other benefits  listed in  the December  16 letter          throughout the severance period (i.e., January 1 through November          4, 1989).   During that same time frame, she settled her workers'          compensation  claim for  $43,750  and began  collecting $887  per          month in social security disability payments.                    On October 2, 1991,  appellant filed an application for          benefits   under  the   Plan,  alleging   that  she   had  become          "permanently and  totally disabled" during the  severance period.          Gillette's corporate counsel denied  the application out of hand.          After  a  series  of  fruitless  requests   for  reconsideration,          appellant sued.                                          3                    The district court did not reach any of the  variegated          issues associated with whether appellant did (or did not) display          a total and permanent disability as defined by the LTD Plan while          still  a participant in it.   The court  instead found in effect,          after an evidentiary hearing  replete with stipulated facts, that          appellant's  Plan participation  ended when her  employment ended          (December 31, 1988), and  that, therefore, she had  no cognizable          claim in respect to  a disability that did not  materialize until          sometime in 1989 at the earliest.          II.  DISCUSSION          II.  DISCUSSION                    After  careful examination of  the record,  the briefs,          and the applicable law, we hold that the severance agreement made          no  provision  for  extended   participation  in  the  LTD  Plan.          Consequently, Smart's appeal fails.  For ease  in explanation, we          divide our analysis into moieties.                             A.  The Severance Agreement.                             A.  The Severance Agreement.                                 _______________________                    Appellant  argues  that  the  terms  of  the  severance          agreement did not include a surrender of Plan benefits, but that,          to the  exact contrary, the parties intended  to permit appellant          to enjoy such benefits  as part of the consideration  tendered by          Gillette for  the release.   We approach this  contention mindful          that the December  16 letter agreement,  signed by both  parties,          represents a contract between Smart and Gillette that potentially          affects  rights  protected  by  the  Employee  Retirement  Income          Security Act (ERISA), 29  U.S.C.    1001-1461 (1988),  and, thus,          is  likely subject to interpretation in accordance with tenets of                                          4          federal  common law.1   See Pilot Life  Ins. Co. v.  Dedeaux, 481                                  ___ ____________________     _______          U.S. 41, 56 (1987).                    In construing the terms  of contracts that are governed          by federal common law,  we are guided by "common-sense  canons of          contract interpretation."  Burnham v. Guardian Life Ins. Co., 873                                     _______    ______________________          F.2d  486, 489  (1st  Cir. 1989).   One  such canon  teaches that          contracts  containing  unambiguous  language  must  be  construed          according to their plain and natural meaning.  See id.  "Contract                                                         ___ ___          language  is usually  considered ambiguous  where an  agreement's          terms are inconsistent on their face or where the phraseology can          support reasonable  differences of opinion  as to the  meaning of          the words  employed and obligations undertaken."   Fashion House,                                                             ______________          Inc.  v.  K mart  Corp., 892  F.2d  1076, 1083  (1st  Cir. 1989).          ____      _____________          Interpreting  unambiguous terms  is  an  activity  that  requires          judges to  expound the law  rather than to  find the facts,  and,          therefore,   a  trial  court's  interpretive  determinations  are          subject to plenary review.  See, e.g., Allen v.  Adage, Inc., 967                                      ___  ____  _____     ___________          F.2d 695,  698 (1st Cir. 1992).   In most cases,  the question of          whether  a contract term is ambiguous also presents a question of          law subject  to plenary review.  See  id.; see also RCI Northeast                                           ___  ___  ___ ____ _____________          Servs. Div.  v. Boston  Edison Co., 822  F.2d 199, 202  (1st Cir.          ___________     __________________          1987).                                        ____________________               1We  need  not probe  this point  too  deeply.   Because the          result here is unaffected by choice  of law, we can simply assume          (as  have  the  litigants  and  the  lower  court)  that  federal          statutory  and  common law  supply the  rules  of decision.   See                                                                        ___          Fashion House,  Inc. v. K  mart Corp., 892  F.2d 1076, 1092  (1st          ____________________    _____________          Cir. 1989).                                          5                    If  an  inquiring  court concludes  that  an  ambiguity          exists in  a contract,  the ultimate  resolution of  it typically          will  turn on  the  parties' intent.    Exploring the  intent  of          contracting  parties often (but  not always) involves marshalling          facts  extrinsic to the language of the contract documents.  When          this  need  arises, these  facts,  together  with the  reasonable          inferences  extractable therefrom,  are together  superimposed on          the  ambiguous words  to  reveal the  parties' discerned  intent.          This construct ordinarily  requires the judge in  a non-jury case          to resolve questions of fact rather  than questions of law.   See                                                                        ___          In re Newport  Plaza Assocs., 985 F.2d  640, 645 (1st Cir.  1993)          ____________________________          (stating  that   "the  interpretation  of   [ambiguous]  contract          language, itself acknowledged, becomes a question of fact for the          jury  rather  than  a  question  of  law  for  the  judge");  RCI                                                                        ___          Northeast,  822 F.2d  at  202 (explaining  that  when "the  plain          _________          meaning of a contract  phrase does not spring  unambiguously from          the  page or from the  context, its proper  direction becomes one          for  the  factfinder,  who must  ferret  out  the  intent of  the          parties").  In such circumstances, a reviewing court will  uphold          the factfinder's resolution of the  question unless it is clearly          erroneous.  See Fed. R. Civ.  P. 52(a); see also In re Navigation                      ___                         ___ ____ ________________          Technology Corp., 880 F.2d 1491, 1495 (1st Cir. 1989).          ________________                    In  this  case,  appellant's  assault  focuses  on  the          following language in the severance agreement:                    In  consideration  of the  severance  pay and                                                              ___                    other benefits to be  provided you as part of                    ______________________________                    The Gillette Company's Restructuring Program,                    you  do hereby  . .  . release  and  agree to                                          6                    indemnify and hold harmless  [Gillette] . . .                    from any and all claims, charges, complaints,                    or causes of action, now existing, both known                    and  unknown  or   arising  in  the   future,                    including but not  limited to, all claims  of                    breach of contract . . ., or [claims] arising                    from  alleged violations of .  . . any  . . .                    local, state,  or federal law,  regulation or                    policy  or any  other  claim relating  to  or                    arising   out   of   your   employment   with                    [Gillette] or  termination thereof  .  . .  .                    (Emphasis supplied.)          According  to  appellant,  the  underscored  phrase is  ambiguous          because the agreement makes no reference to the LTD Plan, leaving          up  in  the air  whether Smart  will  retain coverage  during the          severance period as a  part of the consideration ("severance  pay          and other benefits") for the general  release.  Thus, appellant's          thesis  runs,  the  trial  court  should  have  mulled  extrinsic          evidence    including  the September  7 letter    to  resolve the          uncertainty, and,  had it done so, would  perforce have concluded          that  the  phrase "other  benefits"  in  the December  16  letter          encompassed extended coverage under the LTD Plan.                    Appellant's  mental gymnastics  are  nimble,  but  they          score low marks for substance.   Accepted canons of  construction          forbid the balkanization of  contracts for interpretive purposes.          See Fashion House,  892 F.2d  at 1084 (examining  agreement as  a          ___ _____________          whole  to interpret one  part); see also  Restatement (Second) of                                          ___ ____  _______________________          Contracts   202 cmt. d (1981) (explaining that "[w]here the whole          _________          can be  read to give significance  to each part,  that reading is          preferred").  Here, when  the phrase "other benefits" is  read in          the full context of  the document, the language is  not ambiguous          at all.  The  preceding paragraphs of the letter  agreement spell                                          7          out  precisely  which benefits,  in  addition  to severance  pay,          appellant  will  receive  in  exchange for  the  release.    They          include, with  various qualifications, extended  participation in          employee health and dental plans, life insurance, a savings plan,          and  an  employee  stock  ownership plan.    Viewed  against this          backdrop,  it  is  pellucid that  the  later  use  of the  "other          benefits" terminology  refers to  the benefits enumerated  in the                                                                     ______          text of the document itself.          ___________________________                    We  think  that this  case is  a  classic example  of a          situation in  which the hoary maxim expressio  unius est exclusio                                              _____________________________          alterius is helpful.  The maxim instructs that, when parties list          ________          specific items in a document, any item not so listed is typically          thought  to be excluded.  See, e.g.,  FDIC v. Singh, 977 F.2d 18,                                    ___  ____   ____    _____          22-23  (1st Cir. 1992)  (applying expressio  unius rule).   While                                            ________________          this  interpretive maxim  is not  always dispositive,  it carries          weight;  and when,  as now,  there is  absolutely nothing  in the          agreement's  text  that hints  at  some  additional item  lurking          beyond the enumerated list, we see no reason why the maxim should          not be controlling.  We conclude  from what is written within the          four  corners of  the  severance agreement,  therefore, that  the          phrase "other  benefits" simply  and unambiguously describes  the          benefits enumerated in the agreement itself (and, hence, does not          include continued coverage under the Plan).                    Appellant  has  a  fallback  position.    She  doggedly          insists  that,  regardless of  the  language of  the  December 16          letter, evidence  from the  parties' negotiations and  "course of                                          8          performance"  reveals  that  they actually  intended  to  include          extended coverage under the Plan as part of the consideration for          the release.  This insistence is misplaced.                    As  a  general  rule,   a  court  should  not  consider          extrinsic evidence  to  give meaning  to  a contract  unless  the          contract's terms  are vague or ambiguous.  See Rodriguez-Abreu v.                                                     ___ _______________          Chase  Manhattan Bank, 986 F.2d 580, 586 (1st Cir. 1993); Bellino          _____________________                                     _______          v. Schlumberger  Technologies, Inc.,  944 F.2d 26,  32 (1st  Cir.             ________________________________          1991).  However,  if the evidence  is not offered  to infuse  the          contract with meaning,  but only  to demonstrate that  a term  is          vague or ambiguous in the first place,  then the situation may be          different;  courts sometimes  may  ponder extrinsic  evidence  to          determine  whether   an  apparently   clear   term  is   actually          uncertain.2    See  Restatement  (Second), supra,     212  cmt. b                         ___  _____________________  _____          (suggesting that  determinations of  ambiguity are best  "made in          the light of the relevant evidence of the situation and relations          of  the   parties,  the   subject  matter  of   the  transaction,          preliminary  negotiations and statements  made therein, usages of          trade,  and the course of dealing between the parties"); E. Allan          Farnsworth,  Farnsworth on  Contracts    7.12,  at 277-78  (1990)                       ________________________          (approving this view); see also Arthur L. Corbin, Contracts   579                                 ___ ____                   _________          (1960) (to like effect).   But this exception is narrow  at best,          and is inapposite here.  In the most permissive of jurisdictions,          extrinsic  evidence  will  be   considered  for  the  purpose  of                                        ____________________               2In our  view, this possibility  should not alter  or affect          the rule that  the determination  of ambiguity is,  in the  first          instance, a question of law for the judge.                                          9          determining  whether an  ambiguity exists only  if it  suggests a          meaning   to  which   the  challenged   language  is   reasonably          susceptible.  See Farnsworth, supra,   7.12, at 278.  In no event                        ___             _____          may  extrinsic  evidence  be  employed  to   contradict  explicit          contract  language or to drain an agreement's text of all content          save ink  and paper.   See Burnham, 873 F.2d  at 489 (admonishing                                 ___ _______          that "courts have no right  to torture language in an  attempt to          force  particular results  or to  convey delitescent  nuances the          contracting parties neither intended or imagined").                    In this case, the extrinsic evidence to which appellant          points reveals  nothing remotely  resembling an amphiboly  in the          contextual meaning of "other benefits."  That evidence falls into          two categories.   The first category  juxtaposes the September  7          and  December 16 letters,  and asks  us to  remark the  fact that          extended  Plan participation  was included  as part of  the first          offer, and then  deleted without special  mention from the  offer          which appellant  actually accepted.   But even  if remarked  this          fact confirms, rather  than refutes, that LTD  Plan benefits were          intended to  be outside the "other  benefits" explicitly promised          in  the  December 16  agreement.    Put another  way,  Gillette's          deletion of the Plan from the list of preserved benefits bolsters          the applicability of the expressio unius maxim.                                   _______________                    The  second category  of  extrinsic  evidence to  which          appellant adverts  is cobbled together  from a series  of letters          written  by   Gillette's  counsel  in  the   process  of  denying          appellant's claim for LTD Plan benefits on its merits.  Appellant                                          10          maintains  that these  missives  prove  that,  in the  course  of          performing  the  terms  of  the  severance  agreement,  the  Plan          administrator   interpreted   the   agreement  as   commemorating          appellant's potential eligibility for benefits.   Although courts          sometimes  rely  on  such  "course of  performance"  evidence  to          interpret   ambiguous  contract  terms,  see,  e.g.,  Agathos  v.                                                   ___   ____   _______          Starlite  Motel, 977 F.2d 1500,  1509 (3d Cir.  1992); Schultz v.          _______________                                        _______          Metropolitan Life Ins. Co., 872 F.2d 676, 679 (5th Cir. 1989), we          __________________________          do not find appellant's evidence useful here.                    For one thing, the correspondence in question postdates          the accrual of the dispute between the  parties   indeed, it came          into being only after the severance agreement itself  had expired             whereas course-of-performance evidence typically involves "the          conduct of  the  parties before  the  advent of  a  controversy."                                   ______          Schultz, 872 F.2d at 679 (emphasis supplied).  For another thing,          _______          the targeted  correspondence, which  seems to  assume appellant's          eligibility  under the Plan in September of 1989, involves only a          single  claim  for benefits.    These  communiques, whether  read          singly  or  in the  ensemble,  do  not affirmatively  acknowledge          either  an   extension  of   coverage   or  appellant's   generic          entitlement  to   benefits.     On  the  whole,   therefore,  the          correspondence falls short of evincing the repeated dealings that          might  constitute a  course  of performance  between the  parties          sufficient  to  indicate that  "other  benefits"  means something          different than what the contract itself discloses.  See generally                                                              ___ _________          Restatement (Second), supra,   202(4) (explaining that "course of          ____________________  _____                                          11          performance" is relevant "[w]here  an agreement involves repeated          occasions for  performance"); id. cmt.  g (noting that  course of                                        ___          performance "is not conclusive of meaning," and that such conduct          "must  be weighed in the light of  the terms of the agreement and          their possible meanings").                    To  sum up,  whether  or  not  we  refer  to  extrinsic          evidence, the severance agreement  is free from ambiguity.   That          agreement effectively  extinguishes  appellant's claim  in  that,          contrary  to appellant's  advertisement,  it does  not include  a          promise to  extend Plan  coverage.   The  remaining issue,  then,          concerns the validity of the severance agreement.                               B.  The Putative Waiver.                               B.  The Putative Waiver.                                   ___________________                    Appellant labors to convince  us that the agreement she          signed  was  invalid because  it amounted  to  a waiver,  and the          waiver,  in turn, was unenforceable  under ERISA.   We think that          this formulation misconstrues the issue.  As we see it, no waiver          is  in play here.   Appellant signed a  severance agreement under          which Gillette promised  her some extended benefits  (but not LTD          Plan benefits).  That  agreement could not have waived  her right          to participate  in the Plan  during the severance  period because          she had no such right unless the employer affirmatively agreed to                                ___________________________________________          enlarge  her eligibility under the Plan.  As we have ascertained,          _______________________________________          see supra Part II(A), Gillette did no such thing.          ___ _____                    To  be sure, the waiver argument can be recast in terms          of  appellant's  release of  all  claims she  might  have against          Gillette    a  release that  purportedly surrenders  claims under                                          12          ERISA for the  wrongful denial of  benefits.  This  is at best  a          bootstrap approach  to creating  a justiciable waiver  issue, for          one can scarcely release claims that one does  not possess.  And,          moreover,  we are at loss to see how an employer can "wrongfully"          deny  benefits to which an  employee (or, more  precisely put, an          ex-employee)  is not entitled in the  first place.  See Ronald J.                                                              ___          Cooke,  ERISA  Practice  and Procedure     2.08,  at 2-28  (1995)                  ______________________________          (emphasizing  that "ERISA  affords  no rights  or protections  to          those who are not participants" in a benefit plan).                    At any rate, even if we assume that we are dealing with          an  actual   rather  than  an   ersatz  waiver,  the   waiver  is          permissible.  Congress passed ERISA in part to protect the rights          of employees who  choose to participate in welfare benefit plans.          See  29 U.S.C.    1001; see also  Firestone Tire &  Rubber Co. v.          ___                     ___ ____  ____________________________          Bruch,  489 U.S.  101,  113 (1989).    To achieve  that  end, the          _____          statute establishes a private  right of action for  employees who          allege  that a plan  administrator wrongfully denied  a claim for          benefits due under  the provisions of the plan.   See 29 U.S.C.                                                              ___          1132(a).   But Congress  did  not go  so far  as  to prohibit  an          employee from  waiving her  right to  participate in  an employee          welfare benefit plan.  See Rodriguez-Abreu, 986 F.2d at 587; Finz                                 ___ _______________                   ____          v. Schlesinger, 957 F.2d  78, 81 (2d Cir.), cert. denied,  113 S.             ___________                              _____ ______          Ct. 72 (1992); Laniok v. Advisory Comm. of the Brainerd Mfg.  Co.                         ______    ________________________________________          Pension Plan, 935 F.2d  1360, 1364-66 (2d Cir. 1991);  Lumpkin v.          ____________                                           _______          Envirodyne  Indus.,  Inc., 933  F.2d 449,  455 (7th  Cir.), cert.          _________________________                                   _____          denied,  502 U.S. 939  (1991); Leavitt v.  Northwestern Bell Tel.          ______                         _______     ______________________                                          13          Co., 921 F.2d 160, 161-62 (8th Cir. 1990).          ___                    Of course,  despite the fact that  employee waivers are          not  forbidden,  ERISA  evinces  Congress's  intent  to  preserve          employee pension and benefit rights.  See, e.g., Laniok, 935 F.2d                                                ___  ____  ______          at  1367.  In ERISA cases, therefore, courts should scrutinize an          ostensible waiver with care  in order to ensure that  it reflects          the purposeful relinquishment of an employee's rights.  See Finz,                                                                  ___ ____          957  F.2d at 81;  In re Heci  Exploration Co., 862  F.2d 513, 523                            ___________________________          (5th Cir. 1988).   At a  minimum, such waivers, to  be effective,          must be "knowing  and voluntary."   Rodriguez-Abreu, 986 F.2d  at                                              _______________          587.                    In Finz, building on Laniok, the Second Circuit crafted                       ____              ______          a  compendium  of six  factors that  are  often relevant  to this          inquiry.3   We  find this  list helpful  rather than  conclusive.          Generally,  no  single  fact   or  circumstance  is  entitled  to          talismanic  significance  on the  question  of waiver.    Only an          inquiry  into the  totality  of the  circumstances can  determine          whether there has been a  knowing and voluntary relinquishment of          an ERISA-protected benefit.  See, e.g., Leavitt, 921 F.2d at 162.                                       ___  ____  _______                                        ____________________               3These six factors include:   (1) the plaintiff's education,          business   experience,  and  sophistication;   (2)  the  parties'          respective roles in deciding the final terms of the  arrangement;          (3)  the agreement's clarity; (4) the amount of time available to          the plaintiff to  study the  agreement before acting  on it;  (5)          whether the plaintiff had independent advice   such as the advice          of counsel   when she signed the agreement; and (6) the nature of          the consideration tendered in exchange for the waiver.  See Finz,                                                                  ___ ____          957 F.2d at 82; Laniok, 935 F.2d at 1368.                          ______                                          14          For that reason, every case is sui generis.4                                         ___ _______                    The  inquiry into  waiver  consists  of two  questions:          whether a  party actually knew  she was relinquishing  a benefit,          and whether she acted  voluntarily in doing so.   Answering these          companion questions is a fact-intensive exercise, and the trier's          factfinding is entitled to  deference (unless it is tainted  by a          mistake of  law).  See Irons v. FBI, 811  F.2d 681, 684 (1st Cir.                             ___ _____    ___          1987)  ("Where the conclusions of  the trial court  depend on its          election among conflicting facts or its choice of which competing          inferences to draw from  undisputed basic facts, appellate courts          should  defer  to  such  fact-intensive  findings,  absent  clear          error.").                    Measured  against  this  standard,  the  lower  court's          findings are irreproachable.  The court correctly synthesized the          law.   It then surveyed, inter  alia, the six Finz  factors.  See                                   _____  ____          ____            ___          Smart,  887 F.  Supp. at  386.   It found  appellant to  be well-          _____          educated  and  commercially  sophisticated  (she  had  a  college          degree, some postgraduate business courses, and over ten years of          professional experience at Gillette),  and to have negotiated the          specific terms of the severance  agreement.  Those terms provided          her with  benefits that Gillette  was not otherwise  obligated to                                        ____________________               4In  Rodriguez-Abreu,  for  example,  the  plaintiff  was  a                    _______________          manager who knew that  he could not accept the  severance package          while at  the same time retaining  long-term disability benefits,          and  who  had consulted  with  an  accountant before  making  his          decision.    We  upheld a  finding  that  he  had validly  waived          continued participation in a long-term disability plan as part of          his  acceptance of a voluntary severance package.  See Rodriguez-                                                             ___ __________          Abreu, 986 F.2d at 588.          _____                                          15          furnish.  The final version of the agreement was very clear,  and          appellant reviewed  it with  an attorney  of her  choosing before          signing it.  Without exception, these findings   which cover five          of the six Finz factors   are supportable.                     ____                    The  court's remaining  finding    that  appellant  had          adequate  time  to  review  the severance  agreement  before  she          executed  it    is  not quite  so  clear-cut.   Nevertheless,  it          implicates only one of  several factors that are involved  in the          decisional calculus, and, in any event, we do not think  that the          court  committed  clear  error   in  determining  that  the  time          available  to   Smart  was  sufficient  to   permit  a  complete,          thoughtful  perscrutation   of  the  operative   version  of  the          agreement.  We explain briefly.                    The lower court rested  the controverted finding on the          notion  that appellant  had  over  three  months  to  review  the          agreement  before signing it.  See id.  This temporal computation                                         ___ ___          assumes that the relevant interval began with appellant's receipt          of  the  September  7  letter.   Appellant  attacks  the  court's          underlying premise on the ground that the relevant interval began          with her receipt of  the December 16 agreement, leaving  her less          than two weeks in which to review the proposal.                    This is a case  of the glass being half-empty  or half-          full, depending  on  how the  observer opts  to characterize  it.          Appellant  did have  more  than  three  months  within  which  to          consider the prospect  of early,  forced retirement  and to  mull          those  provisions peculiarly  important  to her  condition  (like                                          16          workers'  compensation  and  LTD   Plan  benefits).    One  could          reasonably expect her  to have been especially  attentive to such          provisions  in reading the revised version of the document.  What          is  more,   a  twelve-day   period  seems   ample  to  permit   a          sophisticated businesswoman  and her lawyer  carefully to  review          the terms of a fairly straightforward severance agreement even if          the review had to proceed from scratch.                    In  fine,  taking into  account  the  total complex  of          events, the  district court's  fact-based finding  that appellant          knowingly and voluntarily waived her claim to benefits under  the          Plan is supportable.5          III.  CONCLUSION          III.  CONCLUSION                    We need go no further.  Appellant negotiated and signed          a  contract  that  unambiguously   excluded  her  from   extended          participation  in  Gillette's  LTD   Plan.    In  so  doing   she          simultaneously  relinquished any  ERISA-protected  claims.    The          trial  court  found  that  her  actions  were  both  knowing  and          voluntary.    Discerning  no  error,  we  will  not  disturb  the          judgment.                                        ____________________               5Although appellant admitted  that she  understood when  she          signed the  severance agreement that  she was waiving  all claims          under both federal  and state  law, she also  testified that  she          "did not know  what ERISA was when  she signed the release;  that          she  did not know that she  was releasing any rights under ERISA;          and that she  did not intend to release  any rights under ERISA."          This  testimony does  not diminish our  respect for  the district          court's finding of  waiver.   An employee does  not need to  know          about her  rights under  ERISA to  know that  she is  waiving her                            ____________          rights under a benefit plan that ERISA happens  to protect.  Once                 ____________________          appellant intentionally  let slip her opportunity  to participate          in  the  benefit plan,  she  no  longer  possessed a  substantive          "right" protected by ERISA.                                          17          Affirmed.          ________                                          18
