

                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 &amp; 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  &amp; Santiago were  on brief                                                               
for appellees.
Jay A. Garcia-Gregory and  Fiddler, Gonzalez &amp;  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. &amp;                                                                         

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 &amp; 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 &amp; 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.  &amp;  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
