

                United States Court of Appeals
                    For the First Circuit
                                         
No. 97-1363

                   AMERICAN AIRLINES, INC.,

                     Plaintiff, Appellee,

                              v.

    RADAMES CARDOZA-RODRIGUEZ, MARTA ELAINE COLL-FIGUEROA,
ISABEL DE LA PAZ, MARIA D. GARCIA-CACERES, ERNESTO LOPEZ-GARCIA
      ANA L. MARIN DE RIVERO, CARMEN ANA MARTINEZ-RIVERA
CARMEN ALICIA MATTOS, GUILLERMO ORTIZ-ROSA, MARGARITA SANTIAGO-NEGRON
                AND MARGARITA ZEQUEIRA-JULIA,

                   Defendants, Appellants.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

      [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                                                  

                                         

                            Before

                     Stahl, Circuit Judge,                                                     
                Bownes, Senior Circuit Judge,                                                        
                  and Lynch, Circuit Judge.                                                      

                                         

Ivan A. Ramos,  with whom Ramos &amp;  Ramos-Camara, was on brief  for                                                           
appellants.
Terence G.  Connor, with whom  Laura F. Patallo,  Morgan, Lewis  &amp;                                                                              
Bockius  LLP, Carlos  A.  Rodriguez-Vidal,  and  Goldman  Antonetti  &amp;                                                                              
Cordova, were on brief for appellee.               
                                         

                       January 7, 1998
                                         

          STAHL,   Circuit   Judge.     Defendants-appellants                      STAHL,   Circuit   Judge.                                              

Radames Cardoza-Rodriguez  et al., ("employees")  appeal from                                             

the  district court's issuance  of a declaratory  judgment in

favor  of plaintiff-appellee  American Airlines  ("American")

enforcing  releases of  age discrimination forms  executed by

appellants  and  dismissing their counterclaims under the Age

Discrimination  in Employment Act of 1967 ("ADEA"), 29 U.S.C.

   621 et seq. and  Puerto Rico Law 100.  We reverse  in part                         

and   vacate  and  remand   in  part  the   district  court's

declaration  that  the  releases  at  issue are  enforceable.

Nonetheless,  we affirm the district court's grant of summary

judgment  on   the  employees'   counterclaim,  finding   the

employees' ADEA claims time-barred.

                              I.                                          I.                                            

                          Background                                      Background                                                

          Because the  district court issued  the declaratory

judgment  on  plaintiff's  motion  for  summary judgment,  we

recite the  facts in a light most favorable to the non moving

party,  the employees. DeNovellis  v. Shalala, 124  F.3d 298,                                                         

305 (1st Cir. 1997).   

          On  September  21,  1994, as  part  of  a workforce

reduction  program,  American  offered  certain  reservation,

ticket, and cargo agents in the Commonwealth of  Puerto Rico,

the   opportunity  to  participate   in  a   Voluntary  Early

Retirement  Program  ("VERP").   The  VERP  provided  for the

                             -2-                                          2

addition  of five  years to  each  employee's actual  age for

purposes of  calculating  retirements  benefits,  five  years

additional credited service, cash bridge payments of $400 per

month until the employee became eligible to receive benefits,

immediate retirement  medical benefits  and travel  benefits.

To be eligible to participate in the VERP an  employee had to

be at the  maximum pay scale in their  job classification and

at least forty-five years of age.

          American informed  the employees  of the  program's

details by  providing  various VERP-related  documents.   The

introduction to the "Terms and Conditions" booklet describing

the  program warned  the  employees  to  read  the  materials

carefully, and  provided a participation deadline of November

11,  1994,  with  a  seven  day  rescission  period after  an

election  to  participate.    In  order  to  participate,  an

employee was required  to sign a "Voluntary  Early Retirement

Election  Form" attesting that  the decision  was "completely

voluntary, final and  irrevocable," that he  or she had  been

given  forty-five days  to make  the  election, and  that all

rights to reemployment with American were being relinquished.

The election form also stated that, on an employee's last day

of work, he  or she  would be  required to  sign a  "Complete

Release of All Claims," absolving American of all employment-

related    liability     including,    specifically,     "age

discrimination claims."

                             -3-                                          3

          The VERP  election form  required each  employee to

attest  to  having read  the  entire  release form  prior  to

electing to retire early.   By the terms of the release,  the

employee agreed  not to  bring any  legal proceeding  against

American  in any  court, administrative agency,  or tribunal,

that the employee would forfeit the extra retirement benefits

if  the employee breached  a material release  term, and also

provided the  party successfully enforcing the  release costs

and  attorney's  fees.   The  release  contained  a provision

stating:  "I  have  had reasonable  and  sufficient  time and

opportunity   to   consult   with   an   independent    legal

representative   of  my  own  choosing  before  signing  this

Complete  Release  of   All  Claims."    Although   the  VERP

documentation  advised the  employee to  discuss the  program

with their  families and  to "consult  a financial  advisor,"

neither  the  release  nor  any  of  the  VERP  documentation

explicitly advised the employees to consult an attorney prior

to executing  the release  or electing to  retire.   The only

mention  of independent  legal advice  was  contained in  the

release, which was not to be signed until the employee's last

day of work.  Each employee signed  the release on his or her

last day of work. 

          The appellants elected to participate  in the early

retirement  program on various  dates throughout the election

period.  The earliest election occurred on  October 11, 1994,

                             -4-                                          4

the latest on December 13, 1994.  The VERP also provided that

the  employees'  termination   dates  would  depend  on   the

restructuring process; therefore,  after their election,  the

employees  continued to  work.   Over  the  next ten  months,

American  began to terminate them individually.  The earliest

termination occurred on  December 30, 1994, while  the latest

did  not  occur  until  September  29,  1995.     After  each

termination,  American paid  the  VERP's enhanced  retirement

benefits.  For several months (the  precise period is unclear

from  the  record),  each  of  the  appellants  accepted  and

retained these benefits. 

          On   October  27,  1995,  over  a  year  after  the

appellants elected to participate in  the VERP, they began to

file administrative  age discrimination claims with  both the

Puerto Rico  Anti-Discrimination Unit  ("ADU") and  the Equal

Employment Opportunity Commission ("EEOC") variously claiming

that   their  election  to   participate  in  the   VERP  was

involuntary and that American had discriminated against  them

on the basis of age.  In general, the complaints alleged that

certain  management employees  had  led  older  employees  to

believe that  American planned to move the  operations in the

reservation  and cargo  departments  to  another location  or

subcontract  to an  outside company,  placing  their jobs  in

jeopardy.   However, once  the employees  elected to  retire,

American asked  them to  train new,  younger replacements  to

                             -5-                                          5

fill their  jobs.   The claimed threatened  job losses  never

materialized.

                             -6-                                          6

                             II.                                         II.                                            

                      Prior Proceedings                                  Prior Proceedings                                                   

          On  April 18, 1996,  American Airlines responded to

the  appellants'  ADU  filings  by  initiating  the   instant

declaratory judgment action.   See 28 U.S.C.   2201.   In its                                              

pleadings,  American asked  the district  court  to issue  an

order declaring the rights and obligations of  the parties in

connection with the VERP under the Employee Retirement Income

Security Act of 1974, 29 U.S.C.   1132(a)(3).1  Subsequently,

                                                    

 1.  Although  neither party has  addressed the issue,  it is
 our  duty  to inquire  sua  sponte into  our  subject matter
 jurisdiction.   In re  Recticel Foam  Corp., 859  F.2d 1000,                                                        
 1002 (1st  Cir. 1988).   American  brought this  declaratory
 judgment  action under  ERISA, which  provides  for a  civil
 action: 

          by a .  . . fiduciary  (A) to enjoin  any
          act or practice which violates the  terms
          of  the  plan,  or (B)  to  obtain  other
          appropriate  equitable   relief  (i)   to
          redress  such   violations  or   (ii)  to
          enforce any provisions . . . of the terms
          of the plan. 

 29 U.S.C.   1132(a)(3).  American seeks a declaration of the
 parties' obligations under the plan in light of the release.
 We need  not confront the  question of whether    1132(a)(3)
 directly authorizes a declaratory  judgment in this context.
 Compare Winstead v. J.C. Penny Co., Inc., 933 F.2d 576, 578-                                                     
 79  (7th Cir.  1991)  (  1132(a)(3)  allows  a fiduciary  to
 obtain  a declaration  regarding its  obligations  under the
 terms  of a plan),  with Gulf Life  Ins. Co. v.  Arnold, 809                                                                    
 F.2d 1520,  1523 (11th  Cir. 1987)  (   1132(a)(3) does  not
 allow an  insurer to obtain  a clarification of its  duty to
 pay  severance programs). In  Franchise Tax Bd.  v. Laborers                                                                         
 Vacation Trust, 463 U.S. 1 (1983) the Supreme Court stated:                            

          Federal  courts   have  regularly   taken
          original  jurisdiction  over  declaratory
          judgment   suits   in   which,   if   the

                             -7-                                          7

American  moved under Fed.  R. Civ. P.  67 to have  the court

approve  the deposit  of future  payments  of the  employees'

retirement benefits into a court-designated bank account (the

"court registry").  The court granted that motion, and, since

May 1996,  American has paid  the monthly payments  due under

the VERP into an interest-bearing account.

          The employees  counterclaimed against  American for

age discrimination under the ADEA, the Older Workers Benefits

Protection Act ("OWBPA"), 29 U.S.C.   626(f), and 29 L.P.R.A.

   146 et seq., known  colloquially as Puerto Rico "Law 100."                         

Evidently,  once  the  district  court  allowed  American  to

deposit the  employees' retirement  benefits  into the  court

registry, a  number of the original employee counterclaimants

abandoned  their claims.   Of  the  twenty-one employees  who

                                                    

          declaratory judgment defendant  brought a
          coercive  action to  enforce its  rights,
          that  suit  would necessarily  present  a
          federal question. 

 Id. at 19; see also  id. at 19 n.19 (discussing jurisdiction                                     
 in   declaratory    judgment   actions    involving   patent
 infringement);  cf.  Colonial Penn  Group, Inc.  v. Colonial                                                                         
 Deposit  Group, 834 F.2d  229, 234 (1st  Cir. 1987) (quoting                           
 Franchise   Tax  Bd.,  463   U.S.  at  19,   and  dismissing                                 
 declaratory judgment action where threatened coercive action
 was based on state law).   Here, the underlying controversy,
 whether characterized as  the employees' right to  sue under
 American's retirement plan,  see 29 U.S.C.    1132(a)(1)(B),                                             
 or as a claim under the ADEA and  OWBPA, clearly  presents a
 wholly  federal question.   As a result,  American's request
 for a declaratory judgment "arises under" 28 U.S.C.   1331. 

                             -8-                                          8

brought  the original counterclaim, only eleven remain in the

case on appeal.

          On  July  22,  1996,  American  moved  for  summary

judgment requesting a declaration that: (1) the employees had

ratified the release  agreement under both federal  and local

law; and  (2) the  defendants could  not maintain any  claims

relating to their early retirement.  American  also moved for

summary judgment  on  the  employees'  counterclaim  arguing,

inter  alia,  that the  employees administrative  filings had                       

been untimely.   The court granted American's motion,  and on

January 27, 1997, issued a declaratory judgment that:

          (1) Defendants have  ratified the release
          agreements  entered   into  by   them  in
          connection with their acceptance of early
          retirement benefits from American; 

          (2)  the   release  agreements   preclude
          defendants   from   raising   any  claims
          against   American   relating   to  their
          employment or  retirement, including  the
          claims for  age discrimination  under the
          [ADEA, OWBPA, and Puerto Rico Law], 

          (3)  Defendants  failed   to  file  their
          claims  of  age discrimination  with  the
          EEOC    and    Puerto     Rico's    Anti-
          Discrimination Unit within the applicable
          limitations period. 

In  light of  this declaration,  the  district court  granted

American's motion for summary judgment on the employees' ADEA

and Law 100 counterclaims.  This appeal followed. 

                             III.                                         III.                                             

                      Standard of Review                                  Standard of Review                                                    

                             -9-                                          9

          We  "review a  district  court's  grant of  summary

judgment de novo."  Marrero-Garcia  v. Irizarry, 33 F.3d 117,                                                 .                                                            

119 (1st Cir.  1994).  Summary  judgment is appropriate  when

"the pleadings, depositions,  answers to interrogatories, and

admissions  on files, 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).  In reviewing  an award of

summary judgment, we must scrutinize the  record in the light

most  amiable to the party opposing the motion, indulging all

reasonable  inferences in that party's favor.  Griggs-Ryan v.                                                                      

Smith, 904 F.2d 112, 115 (1st Cir.1990).  Notwithstanding the                 

liberality of this standard, the nonmovant cannot simply rest

on unsworn allegations.  Morris  v. Gov't Dev. Bank of Puerto                                                                         

Rico, 27  F.3d 746,  748 (1st  Cir.  1994).   "[T]o defeat  a                

properly supported motion for summary judgment, the nonmoving

party  must  establish  a  trial-worthy  issue by  presenting

'enough competent evidence  to enable a finding  favorable to

the nonmoving party.'"  LeBlanc v. Great American Ins. Co., 6                                                                      

F.3d 836, 842 (1st Cir. 1993) (quoting Goldman v. First Nat'l                                                            .                                                                          

Bank  of  Boston,  985  F.2d  1113,  1116  (1st  Cir. 1993)).                            

Finally,  "[a]n  appellate  panel is  not  restricted  to the

district  court's reasoning but can affirm a summary judgment

on  any independently sufficient ground."  Mesnick v. General                                                                .                                                                          

Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).                     

                             -10-                                          10

                             -11-                                          11

                             IV.                                         IV.                                            

                          Discussion                                      Discussion                                                

          Here, we  are  faced with  two distinct  questions.

First,  was   the  district  court's   declaration  that  the

employees' release  operated as a  bar to their ADEA  and Law

100  claims correct?   Second,  if the  release does  not bar

their claims, are the employees' claims nonetheless barred as

a  matter of  law?    We answer  the  first  question in  the

negative, disagreeing with the district court's determination

that  the employees' release  bars their  ADEA counterclaims.

We agree, however,  that the statute of  limitations bars the

employees' counterclaim.

1.  Is the Release Enforceable?                                           

          American  presents two  alternative arguments  that

the  release the  employees signed  is  enforceable: (1)  the

release complied with  the OWBPA, 29 U.S.C.    626(f) or, (2)

if the  release is  invalid under the  OWBPA, by  refusing to

return the  enhanced retirement benefits  they received under

the VERP, the  employees ratified the release.   We disagree.

We find that the employees'  release of their ADEA claims did

not comply with the OWBPA and that the ratification  doctrine

                             -12-                                          12

does not apply  to invalid ADEA waivers.2   We consider their                                                    2

arguments in turn. 

                                                    

2.  We emphasize that  our holding is limited to  releases of
ADEA  claims that  are invalid  under the OWBPA.   We  do not
decide  or express  any  opinion  on  whether  the  employees
validly released their non-ADEA claims. See infra part IV.2.                                                              

                             -13-                                          13

          a. Compliance with the OWBPA                                                  

          Although  the  district court  did  not  reach this

issue,  American  contends  that we  can  affirm  the court's

declaration  because the  releases  the employees  signed are

valid under the OWBPA.  We disagree.

          For  an  employee's  waiver of  ADEA  rights  to be

enforceable, it must be "knowing and voluntary."   See, e.g.,                                                                        

Long v. Sears Roebuck &amp; Company, 105 F.3d 1529, 1534 (3d Cir.                                           

1996).   Prior to  the enactment of  the OWBPA,  courts split

over how to determine whether  a waiver of rights was knowing

and  voluntary.     Some  courts   used  "ordinary   contract

principles" such as fraud, duress, mutual mistake, or lack of

consideration,  see O'Shea  v. Commercial  Credit  Corp., 930                                         .                                                                     

F.2d  358, 362  (4th  Cir.),  cert. denied,  112  S. Ct.  177                                                      

(1991); Shaheen v. B.F. Goodrich  Co., 873 F.2d 105, 107 (6th                             .                                                  

Cir. 1989); Moore  v. McGraw Edison Co., 804  F.2d 1026, 1033                                                   

(8th  Cir.  1986),  while others  formulated  a  "totality of

circumstances"  test,  see  Bormann  v. AT&amp;T  Communications,                                                                         

Inc., 875 F.2d 399, 403 (2d Cir.), cert. denied, 493 U.S. 924                                                           

(1989); Coventry v.  U.S. Steel Corp., 856 F.2d  514, 518 (3d                                                

Cir. 1988).   To  resolve  this split,  Congress enacted  the

OWBPA,  29  U.S.C.     626(f),  which  amended  the  ADEA  by

mandating  that a  waiver  of  ADEA  claims  contain  certain

minimum  information to constitute  a "knowing and voluntary"

waiver: 

                             -14-                                          14

          (1)  The  release must  be  written in  a
          manner calculated to be understood by the
          employee  signing  the  release,  or  the
          average     individual    eligible     to
          participate;

          (2)  the release must  specifically refer
          to claims arising under the ADEA;

          (3)  the  release  must  not  purport  to
          encompass claims that may arise after the
          date of signing;

          (4)  the     employer     must    provide
          consideration for the ADEA claim above
          and beyond that to which the employee
          would otherwise already be entitled; 

          (5)  the  employee  must  be  advised  in
          writing to consult with an attorney prior                                                               
          to executing the agreement;                                                

          (6)  the employee must be  given at least
          45  days  to  consider  signing  if   the
          incentive is offered to a group; 

          (7)  the release must  allow the employee
          to  rescind the  agreement  up to  7 days
          after signing; and 

          (8)  if   the  release   is  offered   in
          connection with an exit incentive or 
          group termination  program, the  employer
          must provide information  relating to the
          job titles and ages of those eligible for
          the   program,   and   the  corresponding
          information relating to  employees in the
          same job titles who were not eligible for
          the program.

See 29 U.S.C.   626(f)(1)(A)-(H) (emphasis added).               

          The  OWBPA also explicitly places the burden on the

party asserting the validity of a waiver to  demonstrate that

the waiver was "knowing and voluntary."  See Id.   626(f)(3);                                                            

Raczak v.  Ameritech  Corp., 103  F.3d 1257,  1261 (6th  Cir.                                       

                             -15-                                          15

1997).    To  prevail  on  a  motion  for  summary  judgment,

therefore, American needed  to demonstrate that there  was no

genuine  issue  of  material  fact  as  to  whether  the VERP

complied with each  of the section 626(f)  requirements.  See                                                                         

Griffin v.  Kraft General Foods,  Inc., 62  F.3d 368,  371-72                                                  

(11th Cir. 1995). 

          Surprisingly,  the  VERP documents  comprising  the

agreement  did  not  specifically  advise  the  employees  to

consult with an attorney prior to executing the release.  See                                                                         

29  U.S.C.       626(f)(1)(E).3     Although  each   employee

acknowledged  on the  VERP  election  form  having  read  the

release before making his or her election, the only reference

to  consulting legal counsel  appears in the  release itself,

which was not to be executed until the employee actually left

work a number of months later.  When the employees elected to

retire, however, they promised to  sign the release on  their

termination date as a  condition of receiving benefits.   The

release  states only: "I  have had reasonable  and sufficient

time and  opportunity to  consult with  an independent  legal

                                                    

3.   On  appeal, American argues  that the  VERP informed the
employees that: 

   [E]ach employee should obtain  whatever advice he or she
   required including consultation with  personal attorneys
   or advisors  and should make  an informed  and voluntary
   choice whether to participate in the plan. 

Although American  cites to  documentation to  support   this
contention,  nowhere except  in  the release  does the  cited
material mention private legal counsel. 

                             -16-                                          16

representative  of  my  own   choosing  before  signing  this

Complete Release of All Claims."   The VERP Agreement itself,

although  it advised employees  to consult financial  and tax

advisors,    to   seek    advice    from   local    personnel

representatives,  and to  attend  retirement seminars,4  said

nothing  about seeking  independent  legal  advice  prior  to

making  the election to  retire and  agreeing to  execute the

release as the statute dictates.

          Given  the  burden  OWBPA  places on  employers  to

demonstrate   their    agreements   contain    the   required

information,  the  reference  contained  in  the  release  is

insufficient to satisfy    626(f)(1)(E).   "Congress's intent

in enacting   626  was to compel employers to provide data so

that  an  employee  considering  waiving  ADEA  rights  could

assess,  with the assistance of  counsel, the viability of an                                                    

ADEA claim."  Raczak, 103  F.3d at 1259 (emphasis  supplied).                                

For this purpose, section 626(f)(1)(E) provides that a waiver

is  not knowing  and  voluntary  unless  "the  individual  is

advised in  writing  to consult  with  an attorney  prior  to

executing the agreement."  To advise is to "caution," "warn,"

or  "recommend."  See Webster's Third New World International                                                                         

Dictionary 32 (1986).   This statutory requirement  could not                      

be more clear, nor its  purpose more central to the statutory

                                                    

4.      It also  advised  divorced  employees to  consult  an                                              
attorney regarding the effects of certain payment options.

                             -17-                                          17

scheme  at issue, especially  in light of  Congress's concern

with  discrimination in  the suspect  context  of group  exit

programs.5

          American argues that the waiver form complied  with

the OWBPA because there is no dispute that the employees were

fully  aware that only  persons in their  classifications who

were  over the age  of 45 and  at the highest  pay rates were

                                                    

5.  The legislative history of the OWBPA states: 

    In  the  context   of  ADEA  waivers,  the   Committee
    recognizes    a   fundamental    distinction   between
    individually   tailored   separation  agreements   and
    employer programs targeted at groups of employees.
                             . . .
    During  the  past  decade,  in  particular,  employers
    faced with  the  need to  reduce  workforce size  have
    resorted   to   standardized  programs   designed   to
    effectuate  quick  and  wholesale  reductions.     The
    trademark  of involuntary  termination  programs is  a
    standardized formula  or package of employee  benefits
    that  is available  to more  than one  employee.   The
    trademark  of  voluntary   reduction  programs   is  a
    standardized formula  or package of benefits  designed
    to   induce  employees   voluntarily  to  sever  their
    employment.  In  both cases, the terms of the programs
    generally  are not subject  to negotiation between the
    parties.   In  addition, employees  affected by  those
    programs  have  little or  no  basis  to suspect  that
    action  is  being  taken  based  on  their  individual
    characteristics.    Indeed,  the   employer  generally
    advises them  that the termination  is not  a function
    of   their    individual   status.      Under    these                                                                      
    circumstances,  the need  for adequate information and                                                                      
    access  to   advice  before  waivers  are   signed  is                                                                      
    especially acute.                                  

S.  Rep.  No.  101-263,  at  32  (1990),  reprinted  in  1990                                                                   
U.S.C.C.A.N. 1509, 1537-38 (emphasis added). 

                             -18-                                          18

eligible, that they were releasing age claims in exchange for

enhanced benefits, and  that they were provided  with all the

advice the statute required.  We disagree.  The fact that the

employees may have known they were waiving rights in exchange

for enhanced  retirement benefits  does  not satisfy  section

626(f)(1)(E).   We read section  626(f)(1)(E) to mean what it

says: employers must  advise employees in writing  to consult

an attorney prior to executing  a release of ADEA claims. The

failure to advise the employees to  consult with counsel goes

to the  heart of  the statute's purpose.6   Because  American

failed to directly advise their employees to consult a lawyer

before making the election, we rule, as a matter of law, that

                                                    

6.  In  light of the OWBPA's imprecise terms, some violations
may be  so technical as  to be de  minimis, and thus  may not
invalidate an  otherwise valid  release of  ADEA claims.  See                                                                         
Raczak,  103 F.2d at  1260. American's failure  adequately to                  
advise  the employees  to  obtain  counsel is  in  no way  de
minimis.                              

                             -19-                                          19

American failed to meet its burden under the OWBPA.7  See  29                                                                     

U.S.C.   626(f)(1).

          b. Ratification of the Employees' ADEA Waiver                                                                   

          As we have said, the  district court did not decide

whether the  release complied with  OWBPA.   Rather, it  held

that  the  employees'   acceptance  of  enhanced   retirement

benefits, as well as their opposition to the court's order to

deposit  the  disputed  retirement  funds  into  the  court's

registry pending the outcome of  this litigation, constituted

a  ratification  of  the  original  release  agreement.    We

disagree.

          In the  past,  we  have  applied  the  ratification

doctrine  to  enforce  an otherwise  invalid  release  on the

ground that "'[a] contract or release, the execution of which

is induced by  duress, is voidable, not void,  and the person

                                                    

7.   As the employees point out, the waiver is also deficient
in  another manner.   The waiver broadly  prohibits employees
from  maintaining   "any  legal  proceedings  of  any  nature
whatsoever  against American  et  al.  before  any  court  or                                                
administrative  agency" and  requires  them  to "direct  that
agency or court  to withdraw from or dismiss  the matter with
prejudice"  if  the  agency  assumes  jurisdiction  on  their
behalf.  Section  626(f)(4), however, states: "No  waiver may
be used to justify interfering with the protected right of an
employee to file a charge or participate  in an investigation
or proceeding conducted by the Commission."  Cf. E.E.O.C.  v.                                                                     
Astra U.S.A., Inc., 94 F.3d  738, 744 (1st Cir. 1996) ("[A]ny                              
agreement  that  materially   interferes  with  communication
between an employee and the Commission sows the seeds of harm
to the public interest"); E.E.O.C. v. Cosmair, Inc., 821 F.2d                                                               
1085,  1089-90  (5th  Cir.  1987)(holding pre-OWBPA  that  an
employee cannot  waive the  right to file  a charge  with the
EEOC). 

                             -20-                                          20

claiming duress must  act promptly to repudiate  the contract

or release or he will be  deemed to have waived his right  to

do so.'"  In re Boston Shipyard Corp., 886 F.2d 451, 455 (1st                                                 

Cir. 1989) (quoting Di Rose  v. PK Management Corp., 691 F.2d                                                               

628,  633-34  (2d  Cir.  1982)).    The  related  tender-back

doctrine  requires a party seeking  to avoid a contract based

on  duress to first  return any consideration  received.  See                                                                         

Deren  v. Digital  Equipment Corp.,  61 F.3d  1, 1  (1st Cir.                                              

1995).  American asserts that the employees' retention of the

enhanced benefits received from the VERP ratified the invalid

waiver.  The retention of benefits is relevant, however, only

if  the  ratification  and  tender-back  doctrines  apply  to

waivers of ADEA claims after the adoption of the OWBPA.

          The circuits are split on whether the acceptance of

benefits  ratifies  an  otherwise   invalid  waiver  of  ADEA

claims.8    A   majority,  both  before  and   after  OWBPA's

enactment,  have held that  neither ratification  nor tender-

back is  appropriate when  employees have  signed an  invalid

ADEA waiver.   See  Howlett v. Holiday  Inns, Inc.,  120 F.3d                                                              

598,  601-03  (6th  Cir. 1997)  (post-OWBPA);  Long  v. Sears                                                                         

Roebuck  &amp; Co.,  105 F.3d  1529, 1533  (3d Cir.  1997) (post-                          

OWBPA); Oberg  v. Allied  Van Lines, Inc.,  11 F.3d  679 (7th                                                     

                                                    

8.  This issue has been argued before the Supreme Court and a
decision   is  currently   pending.  See   Oubre   v.  Energy                                                                         
Operations, Inc., 1996  WL 28508 (E.D. La.),  aff'd, 102 F.3d                                                               
551 (5th Cir. 1996), cert. granted, 117 S. Ct. 1466 (1997)).                                               

                             -21-                                          21

Cir.  1993) (post-OWBPA), cert. denied, 511 U.S. 1108 (1994);                                                  

Forbus  v. Sears,  Roebuck &amp;  Co., 958  F.2d 1036  (11th Cir.                                             

1992)  (holding,  pre-OWBPA,  that  the  ADEA  displaced  the

tender-back  doctrine); cf.  Raczak  v. Ameritech  Corp., 103                                                                    

F.3d  1257, 1260 (6th Cir. 1997)(affirming without a majority

rationale the  district court's refusal to apply ratification

doctrine to an invalid ADEA waiver).  In addition, a district

court in this  circuit has sided with the  majority view. See                                                                         

Soliman v.  Digital Equip. Corp.,  869 F. Supp. 65  (D. Mass.                                           

1994).   The  Fourth and  Fifth  Circuits and  some  district

courts, however, have held that a waiver that does not comply

with  the  OWBPA  is  voidable,  rather  than  void;  thus, a

plaintiff  who  retains   retirement  benefits  ratifies  the

invalid waiver.  See Blistein  v. St. John's College, 74 F.3d                                                                

1459, 1466 (4th Cir. 1996);  Blakeney v. Lomas Info. Sys., 65                                                                     

F.3d 482,  484 (5th Cir.  1995); see  also Hodge v.  New York                                                                         

College   of  Podiatric  Medicine,  940  F.  Supp.  579,  582                                             

(S.D.N.Y. 1996); Bilton  v. Monsanto Co.,  947 F. Supp.  1344                                                    

(E.D. Mo. 1996).    The    arguments    for    and    against

incorporating the ratification and tender-back doctrines into

the ADEA have been thoroughly reviewed in these cases, and we

will not repeat their analysis fully.  

          The decisions  in favor  of ratification  primarily

argue  that, because Congress  used "the terms  'knowing' and

'voluntary,' which parallel the common-law concepts of fraud,

                             -22-                                          22

duress,  and  mistake,  it  is  apparent  that  Congress  was

defining only those  circumstances in which a  contract would

be voidable, not when it  would be void."  Blistein, 74  F.3d                                                               

at  1466.  A voidable contract can, of course, be ratified by

subsequent conduct.  See id.   Accordingly, in the absence of                                        

any language  in the  statute indicating  that a waiver  that

contravenes the OWBPA cannot be ratified, the common-law rule

still operates. See Wamsley  v. Champlin Ref. &amp; Chems.  Inc.,                                                                        

11 F.3d 534, 539-40 (5th Cir. 1993).

          The  majority view rests  on two primary arguments:

(1) the plain  language of OWBPA and  its legislative history

indicate that Congress  did not intend ratification  to apply

to releases that are invalid  under OWBPA, see Long, 105 F.3d                                                               

at  1537; and (2) the OWBPA  displaced the common-law tender-

back doctrine under  Hogue v. Southern Ry. Co.,  390 U.S. 516                                                          

(1968).   We reject the view adopted by the  Fourth and Fifth

Circuits and adopt  the majority position.  At  common law, a

waiver of rights was  simply a contract, subject  to defenses

like duress  or mistake.   When Congress  enacted the  OWBPA,

however,  it specifically  rejected  using ordinary  contract

principles to govern the validity of ADEA waivers.  Long, 105                                                                    

F.3d at  1539 (reviewing  legislative history);  see also  S.                                                                     

Rep. No.  101-293, see supra  note 4, at 32  (disapproving of                                        

the approach adopted in Lancaster v. Buerkle Buick Honda Co.,                                                                        

809 F.2d 539  (8th Cir. 1987)).  Instead,  Congress enacted a

                             -23-                                          23

"floor" of specific procedures an employer must follow before

an employee's waiver is effective.   See S. Rep. No. 101-293,                                                    

supra  note  4, at  32  (noting that  the  OWBPA "establishes                 

specified minimum requirements that must be satisfied  before

a  court may  proceed  to  determine  factually  whether  the

execution of a waiver was 'knowing and voluntary'").  Section

626(f)(1) states a clear rule: an individual  "may not waive"

an ADEA claim unless  the waiver is "knowing and  voluntary."

And a waiver is not knowing and voluntary unless the employer

complies with the eight OWBPA requirements.  See id.                                                                

          Incorporating the  ratification doctrine  into this

statutory  scheme would  emasculate the  Act.   "Through  the

OWBPA Congress  sought to  insure that  employees faced  with

deciding whether  to sign an  ADEA waiver and forego  an ADEA

claim be provided  with sufficient information to  allow them

to evaluate  the merits of  that claim."   Long, 105  F.3d at                                                           

1542.  The ratification doctrine  rests on a fiction that the

retention  of  benefits by  the  injured party  forges  a new

contract once  the fraud has  been discovered.  Id.  at 1539.                                                               

An employee, however, "could no  more assent to the waiver of

his ADEA claim after having signed the defective release than                                

he could at  the time of signing  it."  Howlett, 120  F.3d at                                                           

601 (emphasis in original).  To allow the simple retention of

benefits  to validate a  noncomplying waiver would  mean that

                             -24-                                          24

OWBPA applied to the first contract, but not to the fictional

second contract.  See Long, 105 F.3d at 1540.                                        

          When, as here, an employer fails in the simple task

of advising  its employees  to consult  an attorney  prior to

electing to  retire, the  employee is more  likely to  face a

critical   decision   without  the   knowledgeable   guidance

necessary to assess whether he or she is possibly a victim of

age  discrimination.     If  the  ratification   doctrine  is

incorporated  into  this  scheme,  an employer  could  obtain

waivers  without advising the employee to consult an attorney

and then put  the employee to the difficult  choice of giving

up essential benefits in order  to protect his or her rights.

The very  problem that Congress  enacted the OWBPA  to remedy

could  thus   resurface,  albeit   through  the   back  door.

Therefore, incorporating the  ratification doctrine into  the

OWBPA could act to undermine the incentives  for employers to

follow  OWBPA's  procedures  and  deter  the  prosecution  of

meritorious claims.  Cf. Hogue  v. Southern Ry. Co., 390 U.S.                                                               

516 (1968) (holding  that the Federal Employer  Liability Act

displaced the common-law tender-back requirement).9

                                                    

9.  American relies on Deren v. Digital Equip. Corp., 61 F.3d                                                                
1   (1st  Cir.  1995)  in  contending  that  ratification  is
appropriate unless Congress  indicates a clear intent  to the
contrary.  Such  reliance is misplaced.  In  Deren, the court                                                              
held  that an employee's waiver of  ERISA claims was ratified
by  his retention of  benefits for three  and one-half years.
Unlike the  ADEA waivers  here, however,  the validity of  an
ERISA  waiver is governed  by federal  common-law principles,
see Smart v. Gillette Co. Long-Term Disability  Plan, 70 F.3d                                                                

                             -25-                                          25

          The  conflict between  common-law ratification  and

the statutory scheme at issue here is particularly stark when

an  employer  seeks to  induce  an employee  to  accept early

retirement.  Here, the employees voluntarily agreed to retire

in exchange  for enhanced  benefits  without which,  American

assures us, they would have remained on the job at American's

highest pay scale.  Courts applying the ratification doctrine

to  ADEA claims  have  stated  that  the  employees  must  be

required  to restore  the status  quo  by tendering-back  the

benefits  they  received  for  waiving  their  claims.    See                                                                         

Blakeney,  65  F.3d  at  485.    This  position  is  arguably                    

plausible in the context of a unilateral termination when  an

employee receives  severance benefits  an employer would  not

have paid but for the  release.  See, e.g., Wamsley, 11  F.3d                                                               

at 72.   In  the context of  a voluntary  retirement program,

however,  tendering  back  the  benefits  received  does  not

restore the status quo.

          For instance,  American does not  contend that  the

employees  should, as a  precondition to suing,  refuse their

retirement benefits  and seek  reinstatement.  American  does

not,  in  other  words, contemplate  the  restoration  of the

status quo.   Rather, American wants to  use the ratification

doctrine to  retain the  economic benefit  of the  employees'

                                                    

173,  178 (1st  Cir. 1995),  rather  than a  detailed set  of
statutory  procedures.  Therefore, Deren does not require the                                                    
incorporation of the ratification doctrine into the OWBPA.

                             -26-                                          26

decisions  to retire early -- a decision obtained by American

in  violation of the OWBPA.  As  the Forbus court noted, this                                                       

result could  "encourage egregious  behavior on  the part  of

employers in forcing certain employees into early  retirement

for the economic benefit of the company."  958 F.2d at 1041.

          We therefore join the majority of courts which have

considered  the   issue  and  conclude  that   an  employee's

retention of benefits does not act to ratify a waiver of ADEA

claims  that fails  to comply  with  the OWBPA.10   Thus,  we

reverse the  district  court's declaration  that the  release

precludes defendants  from raising age  discrimination claims

under the ADEA.

                                                    

10.   Our holding  is limited  only to  waivers that  violate
OWBPA's requirements.  Whether the  ratification and  tender-
back doctrines apply to a waiver that complies with the OWBPA
but is not  "knowing and voluntary"  for a different  reason,
see Reid v.  IBM Corp., 1997 WL 357969, at *4 (S.D.N.Y 1997),                                  
is a separate question, one we need not reach today. 

                             -27-                                          27

2. Ratification of the Employees' Law 100 Waivers                                                             

          Our rejection of  the ratification doctrine in  the

ADEA  context has implications  for whether, as  the district

court s judgment declares, the release bars non-ADEA  claims.

Though cursory mention  of state law was made  in the summary

judgment motions,  both parties  centered their arguments  on

the question of whether the  release, as a whole, was subject

to  the ratification doctrine  under federal and  Puerto Rico

law.  The district court opinion is unclear as to whether the

release,  despite  the  employees'  invalid  waiver  of  ADEA

claims,  nonetheless  would  bar their  Puerto  Rico  Law 100

claims,  as  well  as  any  other  claims  relating  to their

employment.  In reaching a conclusion that it does, the court

merely  stated: "The  result  is the  same under  Puerto Rico

law."  

          In  Long,  the  Third  Circuit,   facing  the  same                              

problem, explained:  

          [T]he district court rested  its grant of
          summary judgment as to  all claims on its
          finding that the  release as a  whole was
          voidable and had been ratified . . . . 
          Our holding,  confined as  it is to  ADEA
          releases  invalid under  OWBPA, does  not
          automatically dispose of the remainder of
          [the employee's]  claims as might  be the
          case if we had rested our decision on the
          void/voidable distinction.

105  F.3d at  1544-45.   To ensure  that  the parties  had an

adequate opportunity to  litigate this issue, the  Long court                                                                   

vacated the district court's entry of summary judgment on the

                             -28-                                          28

non-ADEA  claims and remanded for further consideration.  Id.                                                                         

at 1545.   We  think the same  prudent approach  is warranted

here.   While we  express no opinion on  the issue, we vacate

the district court's  declaration that the release  bars non-

ADEA claims and  remand that issue for  further consideration

consistent with  our opinion.11  Cf. Eagle-Picher Industries,                                                                         

Inc. v.  Liberty Mut. Ins. Co.,  829 F.2d 227,  246 (1st Cir.                                         

1987)  (vacating language in final judgment and remanding for

further consideration).

                              V.                                          V.                                            

      Monetary Benefits Deposited in the Court Registry                  Monetary Benefits Deposited in the Court Registry                                                                   

          In May 1996, the district court ordered the deposit

of  the   employees' retirement  benefits  into an  interest-

bearing account pursuant to Fed.  R. Civ. P. 67.  During  the

                                                    

11.   As already  noted, we affirm  the court's dismissal  of
ADEA  and Law  100  claims  because they  are  barred by  the
statute  of  limitations.    See  infra.     The  statute  of                                                   
limitations does not,  however, provide an independent  basis
for affirming the district court's declaratory judgment.  The
district  court s declaratory judgment  had three  parts: (1)
that the release was ratified, (2) that the release precludes
all employment   related claims (including ADEA  claims), and               
(3) that the  employees  age discrimination claims  are time-
barred.   On appeal, we  must determine if the  trial court's
declaratory judgment, a final ruling  that is res judicata in
any  future litigation concerning this release, is correct in
all respects.   See  10A Charles A.  Wright, et  al., Federal                                                                         
Practice  and  Procedure,        2771  (1983)("A  declaratory                                    
judgment is  binding on the  parties before the court  and is
res  judicata in  subsequent proceedings  as  to the  matters
declared. . . .").   The statute of limitations  is  relevant
only to the  third part of the district   court s declaratory
judgment.   Therefore, we  must reach the  ratification issue
despite the fact  that the employees  counterclaim  is barred
by the limitations period.

                             -29-                                          29

pendency  of this action, these funds have been accumulating.

The question  remains as  to their  proper disposition.   The

record  reflects that  American choose  not  to address  this

issue  on summary  judgment and  neither party  raises it  on

appeal.   Therefore, we do  not reach  this issue.   We note,

however, that  these funds  are due  to the employees  unless

there exists  a basis for their retention.  We leave this for

the  district court  to  determine  on  remand  in  a  manner

consistent with this opinion. 

                             VI.                                         VI.                                            

                   Statutes of Limitations                               Statutes of Limitations                                                      

          The   district  court   granted  American   summary

judgment  on  the  ground  that  the  applicable  limitations

periods  barred  all  of the  employees'  counterclaims.   We

affirm as  to the  federal claims,  although we clarify  that

four of the employees' Law 100  claims were not barred by the

statute of limitations. 

1. The ADEA Claims                              

          In  "deferral states"  (states  which have  enacted

employment  discrimination   laws)  such   as  Puerto   Rico,

employees must file charges of unlawful age discrimination in

employment with the  EEOC within 300 days  "after the alleged

unlawful  practice occurred."  29 U.S.C.    626(d).  American

contends  that the employees filed  their claims with the ADU

and the  EEOC outside the  300-day time limit imposed  by the

                             -30-                                          30

ADEA.  We agree.    To  determine   the  timeliness   of  the

employee's complaint, we must specifically  identify when the

unlawful  practice that the employees claim violated the ADEA

occurred.  See Lorance v. A.T. &amp; T. Techs., 490 U.S. 900, 904                                                      

(1989).   The gravamen of  the employees'  complaint is  that

American misled them into believing that they were faced with

an impossible choice:  retire with enhanced benefits  or face

termination  when   American   eliminated   the   cargo   and

reservations  operations  in  San Juan.    In  Vega v.  Kodak                                                                         

Caribbean Ltd., 3 F.3d 476 (1st Cir. 1993), we explained that                          

such a "take it or leave it" choice that discriminates on the

basis of age is unlawful.

          To transform an offer of early retirement
          into   a   constructive    discharge,   a
          plaintiff must  show that  the offer  was
          nothing more  than a charade,  that is, a
          subterfuge   disguising   the  employer's
          desire to  purge the  plaintiff from  the
          ranks  because  of  his age.  .  .  . [A]
          plaintiff who has  accepted an employer's
          offer  to retire can be said to have been
          constructively discharged when  the offer
          presented was, at  rock bottom, a  choice
          between early retirement with benefits or
          discharge without benefits . . . . 

Id. at 480  (citations and internal quotations  omitted).  If               

the VERP was  a charade, then American  discriminated against

the employees by providing them  no choice but to participate

in   an  early  retirement  program  offered  only  to  older

employees.     As  the   alleged  discriminatory   act,  this

constructive discharge triggered the limitations period.  See                                                                         

                             -31-                                          31

Young v. Nat'l Ctr. for Health Servs. Research, 828 F.2d 235,                                                          

238 (4th Cir. 1987); cf. Kimzey v. Wal-Mart Stores, Inc., 107                                                                    

F.3d 568,  573 (8th  Cir. 1997) (applying  rule in  Title VII

case).    It follows  that,  at  the latest,  the  applicable

statutes  began to run when each  employee accepted the VERP.

All the employees accepted the  VERP more than 300 days prior

to  filing  their  administrative  claims.12  Therefore,  the

employees claims are time-barred.

          The  employees'  arguments  to   the  contrary  are

flawed.  The  employees first argue that the  statute did not
                                                    

12.  The  defendants/employees have  provided a  table titled
"Summary of  Relevant Dates"  that set  forth the  applicable
election  and filing  dates for  calculating the  limitations
periods.   American has  not disputed  the accuracy  of these
dates. 

                          VERP         ADU        Days                                       VERP         ADU        Days 
        Employee        Accepted      Filing    Post VERP                    Employee        Accepted      Filing    Post VERP

   Cardoza-Rodriguez    10/18/94     10/29/95      376
   Coll-Figueroa        10/28/94     10/27/95      364

   De La Paz            10/11/94     10/27/95      381

   Garcia-Caceres       10/12/94     11/15/95      399
   De Rivero            10/14/94     10/27/95      378

   Martinez-Rivera      12/12/94     10/27/95      318

   Mattos                11/3/94     10/27/95      356
   Ortiz-Rosa           10/18/94     11/15/95      393

   Santiago-Negron      10/21/94     10/30/95      374

   Zequiera-Julia       12/13/94     10/27/95      317

   Lopez-Garcia         11/10/94     11/15/95      370

                             -32-                                          32

start to run until they actually left American's employ after

electing to  retire early.   This argument is meritless.   In

Delaware State College v. Ricks, 449 U.S. 250, 257 (1980) the                                           

Supreme Court held that a plaintiff's Title VII claim accrued

when  the employee  was  denied tenure  due  to alleged  race

discrimination,  not  when  his  actual  employment  contract

expired one year later.   Because the allegedly unlawful  act

was  the denial  of tenure,  the termination date  itself was

merely the "inevitable  consequence" of prior  discrimination

and thus did  not trigger the statute of limitations.  Id. at                                                                      

257-58.  Here,  the employees' job termination  was similarly

the inevitable result of their decision to participate in the

VERP.

          The  employees' contend  that their  discrimination

claims did not accrue until younger workers actually replaced

them.    This  argument  fails  because  a  prima  facie  age

discrimination claim does not necessarily require replacement

by a younger worker.  See Sanchez  v. Puerto Rico Oil Co., 37                                                                     

F.3d 712, 719  n.7 (1st Cir. 1994) (citing  cases).  Instead,

when  an  employer  implements  a  reduction-in-force,   "the

[employee] may demonstrate  either that the employer  did not

treat age neutrally or that  younger persons were retained in

the  same position."    Hildalgo  v.  Overseas  Condado  Ins.                                                                         

Agencies,  Inc., 120 F.3d  328, 333 (1st  Cir. 1997)(internal                           

quotations omitted).  We have stated categorically:

                             -33-                                          33

          "[W]hen  an employee  knows  that he  has
          been  hurt  and   also  knows  that   his
          employer has inflicted the injury, it  is
          fair  to   begin  the   countdown  toward
          repose.  And the plaintiff need  not know
          all the  facts that support his  claim in
          order for countdown to commence."  

Morris, 27 F.3d  at 750. When the employees  signed the VERP,                  

they knew that the program was offered only to employees over

forty-five  years of  age.   And it  was then,  the employees

allege, that American presented them with a "take it or leave

it"  choice between early  retirement and losing  their jobs.

As a  result,  by  the  time  the  employees  were  allegedly

pressured   into  accepting   early   retirement,  they   had

sufficient information to  bring their discrimination  claim.

See id.                   

          In this case, the limitations period commenced when

the  employees elected  to participate  in the  VERP.   Thus,

unless there exists a basis for equitable modification of the

limitations period, all the employees' ADEA claims are barred

as a matter of law.

2. Equitable Estoppel and Tolling                                             

          The  employees   contend  that  the   doctrines  of

equitable estoppel  and equitable  tolling should  save their

claims.13  We reject the application of these doctrines here.

                                                    

13.  The   ADEA  filing  period  is  akin  to  a  statute  of
limitations and thus, subject to equitable modification.  See                                                                         
Mercado-Garcia v. Ponce Federal Bank,  979 F.2d 890, 895 (1st                                                
Cir. 1992).

                             -34-                                          34

          Equitable estoppel  is invoked when an  employee is

aware  of his ADEA rights, but does  not make a timely filing

due  to his reasonable  reliance on his  employer's deceptive

conduct.  Kale v. Combined Ins. Co. of America, 861 F.2d 746,                                                          

752 (1st  Cir. 1988).   The employees  have failed  to allege

such conduct  here.   Rather, they  have simply parroted  the

same  events that gave  rise to their  underlying claim: that

American misled them as to the reason for the VERP.  There is

no  evidence  that  American caused  the  employees  to delay

bringing their lawsuit, or otherwise "lulled the plaintiff[s]

into  believing  that it  was  not  necessary for  [them]  to

commence  litigation."  Dillman v. Combustion Eng., Inc., 784                                                                    

F.2d 57, 60 (2d  Cir. 1986).  Thus, equitable estoppel is not

warranted.  

          Equitable tolling is appropriate when the plaintiff

demonstrates "excusable  ignorance" of his  statutory rights.

Kale, 861  F.2d at  752.  Equitable  tolling does  not apply,                

however, if an  employee is actually or  constructively aware

of his or  her ADEA  rights.  Id.  at 753.   An employee  has                                             

actual knowledge of  his rights if  he "learns or is  told of

his ADEA rights,  even if he becomes only  generally aware of

the  fact there is  a statute outlawing  age discrimination."

Id.               

          In  this  case,  each  employee  signed   the  VERP

election  form, which contained a paragraph attesting that he

                             -35-                                          35

or  she had read  the release.   The release stated  that the

employees were releasing American from any age discrimination

claims he or she may have had.   Therefore, the employees had

actual  knowledge of  their ADEA  rights.   In addition,  the

employees have alleged here that, shortly after inducing them

to sign the  VERP, American went on a  "recruitment frenzy of

new  reservation   agents"  and  announced  that   the  cargo

department  would remain  in Puerto  Rico despite  American's

earlier  claims.   In  light of  these facts,  the employees'

claim  that their "excusable"  ignorance caused them  to wait

far  longer  than   300  days  to  pursue   their  claims  is

untenable.14   See Cada v. Baxter Healthcare  Corp., 920 F.2d                                                               

446, 452 (7th Cir. 1990)  (holding that equitable tolling was

not warranted when the employee discovered, three weeks after

receiving  notice of his termination, that a younger employee

would replace him). 

3. The Puerto Rico Law 100 Claims                                               

          The employees contend that their Law 100 claims are

not barred by the statute of limitations.  In pertinent part,

                                                    

14.    The employees  allude  to  the  theory  of  continuing
violations, which applies when a plaintiff alleges repetitive
instances of discrimination perpetuated over time. See Havens                                                                         
Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982); United Air                                                                         
Lines,  Inc.  v.  Evans,  431  U.S. 553,  558  (1977).    The                                   
employees  have,  however,  failed  properly  to  allege  any
factual basis for finding an act of discrimination within the
limitations  period.  This claim  therefore fails as a matter
of law.

                             -36-                                          36

Law 100 forbids  adverse employment actions based on  any one

of  several  protected characteristics,  including age.   See                                                                         

P.R.  Laws Ann. tit.  29,   146  (1985); Sanchez,  37 F.2d at                                                            

723.   Under substantive  Puerto Rico law  generally, actions

for civil  liability based on  fault commence "from  the time

the aggrieved person  had knowledge thereof."  P.R. Laws Ann.

tit. 31,    5298  (1991); Rodriguez v.  Nazario De  Ferrer et                                                                         

al., 121 P.R. Dec. 347,  P.R. Offic. Trans. No. CE-86-417, at               

9 (P.R. 1988).  

          In Olmo v. Young &amp;  Rubicam of P.R., Inc., 110 P.R.                                                               

Dec. 740 (P.R.  1981), the Supreme Court of  Puerto Rico held

that the one  year statute of limitations in  Article 1868 of

the  Puerto Rico Civil Code applied to  Law 100 claims.  Like

ADEA claims, a cause of action under Law  100 accrues when an

employee becomes  aware of  his injury  through receipt of  a

termination  notice.15  See Rodriguez, P.R. Offic. Trans. No.                                                 

                                                    

15.  The  employees  cite  Sanchez v.  A.E.E.,  97  J.T.S. 45                                                         
(1997)  for the proposition  that the statute  of limitations
under  Law  100 begins  to  run from  the  last  day that  an
employee  was  employed.    American  contests  this reading,
asserting that the  case dealt with a hostile  and persistent
sexual harassment  work  atmosphere,  was  issued  without  a
formal  opinion, and  thus, has  no precedential  value.   We
direct the employees' attention to  U.S. Ct. of App. 1st Cir.
Rule 30.7, 28 U.S.C.A. (West 1997): 

    Whenever an  opinion of the  Supreme Court  of Puerto
    Rico  is  cited in  a brief  and oral  argument which
    does not appear  in the bound  volumes in English, an
    official,   certified   or   stipulated   translation
    thereof  with three conformed copies  shall be filed.

                             -37-                                          37

CE-86-417, at  9; see  also Montalban v.  Puerto Rico  Marine                                                                         

Management,  Inc., 774 F. Supp. 76, 77 (D.P.R. 1991)(applying                             

Puerto  Rico  law).     Therefore,  in   the  context  of   a

constructive  discharge,  the  date  the  employee  elects to

retire triggers  the Law 100  limitation period.  All  of the

employees' claims, with the exception of four discussed below

(Coll-Figuera, Martinez-Rivera, Mattos,  and Zequiera-Julia),

are thus barred by statute of limitations as a matter of law.

          The  remaining four employees'  Law 100  claims are

not time-barred; they fail on the merits  as a matter of law.

To survive summary judgment, an employee must submit at least

some evidence  upon which  a jury  could properly  proceed to

find an  employer  guilty  of  age discrimination.    See  De                                                                         

Arteaga v. Pall Ultrafine Filtration Corp., 862 F.2d 940, 941                                                      

(1st  Cir. 1988)  (affirming  summary  judgment  on  Law  100

complaint  for lack  of  evidence).    With  respect  to  the

remaining  four  employees,  the  record  is  devoid  of  any                                                                         

competent  evidence demonstrating  that they were  victims of

age  discrimination.     These  four  employees  have  failed

individually to  submit even sworn affidavits  attesting that

they suffered  age discrimination.   Rather,  they appear  to

rely wholly  on the  general allegations  contained in  their

                                                    

The  employees have  not  complied with  this rule.  Thus, we
decline their  invitation to find  that the  Supreme Court of
Puerto Rico has overruled Rodriguez.                                                 

                             -38-                                          38

complaint and the affidavits of their fellow employees.  Such

evidence cannot withstand a motion for summary judgment.  See                                                                         

Fed. R. Civ. P. 56(c); see also  Mesnick, 950 F.2d at 822 (an                                                    ,                                                    

appellate panel  can affirm on  any independently  sufficient

ground).

                            VIII.                                        VIII.                                             

          In conclusion,  we hold  that the  release violated

the OWBPA  and that the employees' retention of benefits does

not act to  ratify a waiver  that failed to  comply with  the

OWBPA.   We therefore  reverse that portion  of the  district

court's judgment  declaring that the  employees' retention of

benefits  ratified  the release  of  their ADEA  claims.   We

vacate and remand  to the district court  to further consider

the issue  of whether the  release bars non-ADEA claims.   We

affirm the district  court's entry of summary judgment on the

employees' counterclaims. 

          Affirmed in  part;  reversed in  part; vacated  and                                                                         

remanded in part.  No costs.                             

                             -39-                                          39
