                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0271n.06
                             Filed: May 16, 2008

                                         07-3804

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


TOUMANY SAYON SAKO,                          )
                                             )
       Plaintiff-Appellant,                  )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
OHIO     DEPARTMENT                   OF     )   SOUTHERN DISTRICT OF OHIO
ADMINISTRATIVE SERVICES,                     )
                                             )
       Defendant-Appellee.                   )



       Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.


       PER CURIAM. The plaintiff, Toumany Sako, appeals the district court’s order

granting summary judgment to the defendant, the Ohio Department of Administrative

Services (ODAS), on Sako’s Title VII claim. The district court based its decision on Sako’s

explicit waiver of this claim in a settlement agreement between the two parties. Sako

contends that his waiver is invalid because (1) it was not supported by adequate

consideration and (2) he did not make the waiver knowingly and voluntarily. The district

court found no merit to either claim – correctly, we conclude. We therefore affirm the

district court’s judgment.


       Sako had been employed by ODAS as a security officer for over four years at the

time of his termination. It resulted from a confrontation between Sako and his immediate
Sako v. Ohio Department of Administrative Services
07-3804

supervisor, Troy Ogle, concerning Sako’s participation in a “world languages celebration”

presented by the Ohio Department of Education, to which Sako was invited because he

is originally from Africa and speaks several languages. According to ODAS officials, a

“miscommunication” about Sako’s permission to take time off from work for this project led

to a reprimand for not properly coordinating his participation. The supervisor reported that

Sako became insubordinate during the disciplinary process, and Sako was eventually

terminated as a result. Sako disputed ODAS’s version of events, maintaining that the

discipline and eventual termination were part of a continuing pattern of harassment by his

supervisors.


        After his termination, Sako filed a grievance with his union, the Ohio Civil Service

Employees Association (OCSEA), as well as discrimination claims with the Ohio Civil

Rights Commission and the Equal Employment Opportunity Commission and a claim for

unemployment benefits. The union negotiated a settlement of Sako’s grievance, leading

to the signing of a “grievance settlement agreement.” The agreement reads in relevant

part:


              This agreement is made November 23, 2005 by and between the
        Department of Administrative Services (DAS); the Ohio Civil Service
        Employees Association, Local 11, AFSCME (OCSEA), and Toumany Sako
        (Employee), parties hereto.
              WHEREAS, there is now pending a grievance filed by the above
        named employee and OCSEA against DAS pursuant to the Collective
        Bargaining Agreement. . . ;
                 WHEREAS, DAS denies any liability in connection with the alleged
        claim;

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               WHEREAS, all parties hereto wish to reach a full and final settlement
       of all matters and causes of action arising out of the claim set forth above;
               Now, therefore, all parties hereto, in consideration of their mutual
       covenants and agreements to be performed, as hereinafter set forth, agree
       as follows:
       1.     This document will serve as the Employee’s resignation. The
              resignation will be coded as SO1 with effective date 6/22/05.
              EHOC will indicate “REMOVAL CHNGD TO RESIGNATION
              PER GRIEV STLMT EFF 6/22/05.”
       2.     The Employee will be paid a lump sum of $6,500.00. The
              Employee will be responsible for all applicable deductions.
       3.     This document will serve to withdraw [the] grievance. . . .
       4.     The Employee will withdraw the following pending actions:
              OCRC discrimination claim (COL) 71062205 (32115) 063005;
              EEOC 22A A5 03419; any other allegations that may be
              pending.
              Unemployment Determination ID # 212217618-1, and take no
              further action to seek unemployment benefits.
               OCSEA agrees to waive any and all rights it may currently or
       subsequently possess to obtain any reparation, restitution or redress for its
       members as a result of the events which formed the basis of the
       aforementioned grievance, including the right to have the grievance resolved
       through arbitration, or through resort to administrative appeal or through the
       institution of legal action.
              OCSEA agrees to withdraw the aforementioned grievance and to
       waive its rights to pursue any and all claims that may arise as a result of the
       implementation of the terms of the Agreement.


Directly after this language appear four signature lines, two for Department representatives

and two for union representatives, followed by this provision:


       (This settlement is valid without the Employee’s signature. The Employee’s
       signature is only needed to obtain waiver of individual rights.)



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       Employee agrees:
              To waive any and all rights they [sic] may currently or subsequently
       possess to receive any reparation, restitution or redress for the events which
       formed the basis of the aforementioned grievance, including the right to
       resort to administrative appeal or through the institution of legal action.
       Employee specifically agrees to withdraw the following actions which are
       currently pending:
              OCRC discrimination claim (COL) 71062205 (32115) 063005;
              EEOC 22A A5 03419; any other allegations that may be
              pending.
              Unemployment Discrimination claim ID # 212217618-1, and
              take no further action to seek unemployment benefits.
           I have read the above paragraph and I am making a KNOWING and
       VOLUNTARY Waiver of my rights as set forth above.


There is then a signature line for Sako. All parties signed and dated the agreement.


       Despite the terms of the agreement, Sako did not withdraw his EEOC claim and,

after receiving a right-to-sue letter, filed the instant action against ODAS, alleging national

origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e,

et. seq. The defendant moved for summary judgment on the basis of the settlement

agreement, and Sako opposed it, arguing (1) that the agreement was not supported by

adequate consideration and (2) that his waiver in the agreement was not knowing and

voluntary. The magistrate judge to whom the case was referred by consent of the parties

granted summary judgment to the defendant.


       Although Sako argued below that the consideration for his waiver was inadequate

based on his calculation that the monetary value of unemployment compensation


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07-3804

payments was greater than the $6,500 lump sum that he was awarded under the

settlement agreement, he makes an entirely different argument on appeal, contending that

there was no consideration at all.


       The validity of waivers of federal causes of action is governed by federal law, and

we “examine waivers of employee rights under normal contract principles.” Shaheen v.

B.F. Goodrich Co., 873 F.2d 105, 107 (6th Cir. 1989). Therefore, “[p]roperly executed

waivers of possible employment-related discrimination claims knowingly and voluntarily

made between an employee and his employer will be enforced absent the typical

exceptions,” including “lack of consideration.” Id. Consideration is “[s]omething (such as

an act, a forbearance, or a return promise) bargained for and received by a promisor from

a promisee.” Black’s Law Dictionary (8th ed. 2004); see also Restatement (Second) of

Contracts §71 (1981).


       In his brief before this court, Sako argues that the provision in the first part of the

agreement making his signature unnecessary to its validity establishes that the benefits

bestowed on him by the agreement – the $6,500 payment and the change in his file from

terminated to resigned – were conferred without his waiver and, therefore, that there was

no additional consideration supporting the waiver in the second part of the agreement that

bore his signature. In other words, he contends there needed to be some additional

consideration in exchange for his waiver to make that part of the agreement valid.




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       As noted above, the magistrate judge did not rule on this interpretation of the

settlement agreement because the argument was not raised in the district court. We

suspect that if it had been raised, the magistrate judge would have found it as

unpersuasive as we do on appeal. At oral argument in this court, counsel for Sako

conceded that his client had received the consideration listed in the agreement: $6,500 and

a notation in his file that he had left employment at ODAS voluntarily. Counsel also

conceded that his client was present when the document was executed and signed it at the

same time the union and department representatives did so. Finally, he conceded that a

claim for unemployment compensation could not be approved if his client was terminated

for cause and that the department could have resisted a claim for such payments on that

basis. He nevertheless insisted that there was no consideration for the plaintiff’s waiver

of his right to file an action under Title VII.


       As we have observed in another case involving an employee’s release of liability on

the part of an employer who had allegedly violated a federal employment discrimination

statute:


       This is a case of contract construction. The scope of a release, like any
       contract, depends on ascertaining the intent of the parties at the time of
       signing the release. The dispositive inquiry is “what did the parties intend?”
       Intent is determined by reviewing the language of the entire instrument and
       all surrounding facts and circumstances under which the parties acted in light
       of the applicable law as to employment discrimination at the time.




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Adams v. Philip Morris, Inc., 67 F.3d 580, 585 (6th Cir. 1995) (emphasis added). In this

case, the intent of the parties could not be clearer from a review of the settlement

agreement in its entirety, despite the obvious awkwardness in wording and arrangement

of the provisions in the union’s grievance settlement form. As we read the agreement,

there simply is no ambiguity. In exchange for waiving his right to bring suit under Title VII,

Sako accepted a lump sum settlement and the elimination of any negative implication

concerning the end of his tenure at ODAS, and the union withdrew its grievance on Sako’s

behalf. There can be no question that the plaintiff received compensation for the release

of any liability on the part of his employer.


       Nor do we find any basis for holding that the release was not knowingly and

voluntarily executed. As with the issue of consideration, we “appl[y] ordinary contract

principles in determining whether such a waiver is [voluntary], remaining alert to ensure

that employers do not defeat the policies of . . . Title VII by taking advantage of their

superior bargaining position or by overreaching.” Id. at 583. Factors to be considered

include:


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


Id. In this case, the plaintiff focuses his argument on the first two of these factors, claiming

that his background as a French-speaking African immigrant with only a high school

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education, the limited amount of time that he was given to sign the agreement (amounting

to only a matter of minutes) and the fact that he was not represented by counsel all militate

in favor of a finding that his endorsement of the agreement was not knowing and voluntary.

The district court found, however, that Sako had immigrated to the United States more than

10 years prior to the execution of the agreement, that he had then enrolled in English

classes at Howard University and that, because the document was brief and “could easily

be read and understood,” there was no basis on which to find that his waiver was

unknowing. The court also pointed out that although Sako was not represented by

counsel, he had been assisted throughout by union officials, who had filed a formal

grievance on his behalf and who were present at the time that the agreement was signed.

The court also noted that despite Sako’s claim that he was given only a few minutes to

decide whether or not to sign the waiver, there was no indication that he had requested

more time to consider the situation or that he was pressured into signing the agreement.

In sum, the district court concluded, “Mr. Sako was aware of the waiver’s legal

consequences and ramifications,” from which the court further concluded that “the release

was knowingly and voluntarily executed by Mr. Sako.” Nothing that the plaintiff has

produced on appeal refutes the district court’s conclusions in this regard.


       For the reasons set out above, we AFFIRM the judgment of the district court.




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