
USCA1 Opinion

	




                            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 &  Ramos-Camara, was on brief  for            _____________             _____________________        appellants.            Terence G.  Connor, with whom  Laura F. Patallo,  Morgan, Lewis  &            __________________             ________________   ________________        Bockius  LLP, Carlos  A.  Rodriguez-Vidal,  and  Goldman  Antonetti  &        ____________  ___________________________        _____________________        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 & 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&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  & 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 &  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. & 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. & 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 &  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
