      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00120-CV



                          Buc-ee’s, Ltd., a/k/a Buc-ee’s, Inc., Appellant

                                                  v.

                                     John J. Hribek, Appellee


        FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT
          NO. 13,050, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING



                              CONCURRING OPINION


               I concur in the result reached by the majority, but write separately to emphasize

how close the issue of knowing and voluntary waiver is in this case, even in the context of

summary judgment. Other courts have noted that issues involving the “totality of the circumstances”

test are “unusual to resolve on summary judgment” due to their fact-intensive nature. See Elf

Atochem N. Am. v. United States, 914 F. Supp. 1166, 1170 (E.D. Pa. 1996).1 The totality of the

circumstances is difficult to assess even in a case such as this, where numerous factors strongly favor

one of the parties.




       1
           Federal law, and not state law, governs all questions relating to purported releases of
federal statutory causes of action. Rogers v. General Elec. Co., 781 F.2d 452, 454-55 (5th Cir.
1986).
                   The majority analyzes whether Hribek waived his rights knowingly and voluntarily

by applying the six-factor test relied upon by numerous federal courts.2 An employee need not meet

all six of the requirements in order to show that the release was not knowing and voluntary. See

Riddell v. Medical Inter-Insurance Exch., 18 F. Supp. 2d 468, 474 (D.N.J. 1998) (finding that

employee did not waive rights knowingly and voluntarily even though “some of the relevant factors

weigh in [employer’s] favor”). In this case, Hribek makes strong arguments in his favor on five of

the six factors.


Education and Business Experience

                   The first factor,3 that of the employee’s level of education and business experience,

does not appear to favor Hribek. Courts have found this factor to be a “minimal threshold,” usually

satisfied by a high-school diploma. See Ponzoni v. Kraft Gen. Foods, 774 F. Supp. 299, 310 (D.N.J.

1991). Hribek’s credentials, including a high school diploma and years of convenience-store

management experience, meet this threshold. However, courts analyzing this factor do not

        2
          Other courts have also considered a seventh factor, which analyzes whether the employee
“knew or should have known his rights upon execution of the release.” Cirillo v. Arco Chemical
Co., 862 F.2d 448, 452 (3d Cir. 1988). This factor would also weigh in favor of Hribek. Courts
have found that employees know their rights when the release “clearly informed employees of their
rights and the manner in which they could enforce these rights.” Id. at 453. No such information
was provided to Hribek. While the release makes mention of “employment EEOC, ADA or TWC
claim[s],” this passing mention of potential grounds for relief hardly amounts to a clear explanation
of Hribek’s rights. Further, there is no evidence that Hribek’s background or experience should
have alerted him to the specific legal remedies available to him. Hribek’s attempt to revoke the
agreement, sent the day after the waiver was signed, also indicated that he had been unaware of some
of his rights (such as those under the Family and Medical Leave Act) when he signed the release.
        3
          For the sake of consistency, we follow the numbering of the factors set out in Smith
v. Amedisys, Inc., 298 F.3d 434, 441 (5th Cir. 2002), as quoted by the majority. We note that other
courts have numbered the factors differently.

                                                     2
necessarily reach the conclusion that, because the employee meets the minimum requirements,

the factor favors the employer. See Riddell v. Medical Inter-Insurance Exch., 18 F. Supp. 2d 468,

472 (D.N.J. 1998) (noting that where employee was “skilled at analyzing complex insurance

contracts” but did not have education beyond high school diploma, age/experience factor “does not

weigh greatly in favor of one party or the other”). In this case, Hribek’s education and business

experience, while meeting the minimal threshold, is not so extensive that this factor weighs in Buc-

ee’s favor. See id.


Amount of Time to Examine the Release

               The second factor involves the amount of time that Hribek had possession of or

access to the release agreement before signing it. Hribek had the release in his possession for less

than a day. This time period is far short of the one month that other courts have found to be an

adequate time for review. See Cirillo v. Arco Chemical Co., 862 F.2d 448, 453 (3d Cir. 1988)

(indicating that “one month is a reasonable time for deliberation” regarding decision to sign release).

The short period of time that Hribek had to evaluate the release even falls short of the ten days that

another court found insufficient to properly consider a release. Cook v. Buxton, Inc., 793 F. Supp.

622, 625 (W.D. Pa. 1992) (concluding that “ten days is not a reasonable length of time in which to

permit a terminated employee to deliberate” regarding release); see also Cole v. Gaming Entm’t,

LLC, 199 F. Supp. 2d 208, 213 (D. Del. 2002) (indicating that one day to review release “seems

insufficient under either Title VII or the ADEA”). Further, other courts have found it favorable to

the employee when neither the language of the release nor the company representatives indicate to

the employee that he has time to deliberate. See Riddell, 18 F. Supp. 2d at 473. While Buc-ee’s

                                                   3
contends that Hribek did not ask for more time to consider the release, it does not argue that he was

ever made aware that he had any additional time to deliberate.


Role in Deciding the Terms of the Release

                The third factor involves the role of the plaintiff in deciding the terms of the

agreement. The opportunity to negotiate “suggests that the atmosphere surrounding the signing of

the release was not oppressive and thus indicates a voluntary waiver.” Id. at 473-74. This element

favors the employer when “[t]here is no evidence that plaintiffs were denied an opportunity to

negotiate, nor that they were given a ‘take it or leave it’ offer.” Williams v. Phillips Petroleum Co.,

23 F.3d 930, 937 (5th Cir. 1994). While Hribek had some input into the terms of the agreement,

Charles Peter Alexander, the Buc-ee’s employee who presented the agreement to Hribek, stated

during his deposition that he told Hribek, “Well, really, I’d like for you to do it today . . . if you’re

going to resign.” This statement suggests a “take it or leave it” atmosphere rather than an open and

permissive negotiating environment.


Clarity of the Release

                The fourth factor involves the clarity of the release agreement. Courts have generally

held that a release is valid if “written in plain English” and the language is not “shrouded in

legalese.” See Riddell, 18 F. Supp. 2d at 472. Further, the release should include “reference to

specific claims that are being waived.” See id. In this case, the release states that Hribek will not

file “an unemployment EEOC, ADA or TWC claim or any other claim with any state or federal

agency whatsoever in connection with Buc-ee’s or its employees.” The release does not state,



                                                   4
however, that Hribek agrees not to file a lawsuit regarding any of the matters relating to the release.

In addition, the release does not mention possible relief pursuant to the Family and Medical Leave

Act (FMLA), under which Hribek later filed a claim. The fact that Hribek attempted to revoke the

agreement the next day, claiming that he had been unaware of some of the rights he had waived,

creates further doubt regarding the clarity of the agreement.


Opportunity to Seek Counsel

               The fifth factor examines whether the employee consulted with or was encouraged

to consult with an attorney. Courts have held that the “[m]ore important consideration is whether

consultation with a lawyer was encouraged . . . rather than whether the plaintiff in fact received the

benefit of counsel.” Cirillo, 862 F.2d at 453. It is undisputed that Hribek did not consult with an

attorney. Further, while Buc-ee’s stated that Hribek never requested the assistance of an attorney,

Buc-ee’s presents no evidence that Hribek was ever encouraged to consult with an attorney.


Consideration for Signing Release

               The sixth factor involves the consideration given to the employee, and whether it

exceeds the benefits he was already entitled to under contract or law.4 The release indicates that the


       4
           The consideration issue also affects the burden-shifting analysis that precedes the
evaluation of the totality of the circumstances. When examining whether a release was valid, courts
place the initial burden on the employer to “establish[] that its former employee ‘signed a release
that addresses the claims at issue, received adequate consideration, and breached the release.’”
Smith, 298 F.3d at 441 (quoting Williams v. Phillips Petroleum Co., 23 F.3d 930, 935 (5th Cir.
1994)) (emphasis added). Only after the employer has met this burden does the burden shift to the
employee to show that, under the totality of the circumstances, the release was not knowing and
voluntary. In this case, however, it appears that Hribek did not seek summary judgment with regard
to Buc-ee’s initial burden to show adequate consideration.

                                                   5
relevant consideration was “3 weeks salary @ $585 per week, plus vacation hours and bonus for

Sept. & part Oct. (through Oct. 26).” As the majority correctly states, based on this language “there

is no evidence that Hribek received more compensation than was already due him at the time of the

negotiation—assuming that he was entitled to remain employed through October 26, 2004.” In its

brief, Buc-ee’s argues that the consideration for the release was not the pay, vacation hours, and

bonuses for the interim between October 5 and October 26, but rather the acts of allowing Hribek

to set his resignation date three weeks in the future and paying Hribek salary and bonuses for the

period of October 5 through October 26, 2004 without requiring him to work. Such consideration,

however, was not memorialized in the agreement, and Buc-ee’s could presumably have required

Hribek to work or terminated him prior to October 26 if it so chose.5 Accordingly, the consideration

factor, like the four factors before it, weighs heavily in favor of Hribek.6




        5
          Buc-ee’s counsel admitted as much at oral argument, stating that Hribek was technically
expected to work during this period, and that Buc-ee’s could have terminated him when he did not
return to work.
       6
         This analysis of lack of consideration potentially impacts the validity of the contract itself.
Under Texas law, lack of consideration constitutes an affirmative defense to an action on a written
agreement, and in particular can be used to respond to the assertion that a claim is barred by a valid
release. See 1464-Eight, Ltd. v. Joppich, 154 S.W.3d 101, 103 (Tex. 2004). However, the defense
must be properly pleaded under the rules of civil procedure. See Tex. R. Civ. P. 94 (affirmative
defenses); see also Tex. R. Civ. P. 93(9) (explaining that pleadings alleging lack of consideration
must be verified); Lakeway Co. v. Leon Howard, Inc., 585 S.W.2d 660, 662 (Tex. 1979) (“Lack of
consideration is an affirmative defense and must be pleaded.”).

                                                   6
                To paraphrase a popular recording artist, five out of six isn’t bad.7 The purpose

of this exercise, however, is not to argue that the judgment in favor of Hribek should be upheld,8

but rather to illustrate the difficulties of resolving the “totality of the circumstances” in a

summary judgment proceeding.9 Under this analysis, it does not matter how many factors one has

on one’s side. The factors are merely guideposts along the way to the ultimate factual determination

of whether the waiver was knowing and voluntary. Such matters are exceedingly difficult to

determine on summary judgment, where the “analysis of the totality of the circumstances [must]

demonstrate[] the futility of a trial,” O’Hare v. Global Natural Res., Inc., 898 F.2d 1015, 1017




       7
           See Meat Loaf, Two out of Three Ain’t Bad, on Bat out of Hell (Cleveland Int’l 1977).
       8
           Buc-ee’s argues that even if the waiver was invalid, Hribek’s failure to “tender back” the
consideration amounts to ratification of the agreement. Leaving aside the issue of what exactly
constitutes consideration in this case, we note that the Supreme Court has found the tender back
doctrine of ratification inapplicable to ADEA claims. Oubre v. Entergy Operations, 522 U.S. 422,
428 (1998). Federal circuit courts are split, however, on whether the tender back doctrine applies
to other federal remedial statutes. The Fifth Circuit has held that failure to tender back consideration
ratifies an otherwise invalid release of federal claims. See, e.g., Faris v. Williams WPC-I, Inc.,
332 F.3d 316, 323 (5th Cir. 2003). However, state courts located in the Fifth Circuit “are not bound
by Fifth Circuit precedent when making a determination of federal law,” Magouirk v. Phillips,
144 F.3d 348, 361 (5th Cir. 1998). Other circuits have held that “the tender back doctrine should
be inapplicable to ‘a variety of federal remedial statutes,’” such as Title VII. Cole v. Gaming Entm’t,
LLC, 199 F. Supp. 2d 208, 216 (D. Del. 2002) (quoting Long v. Sears, Roebuck & Co., 105 F.3d
1529, 1541 (3d Cir. 1997)).
       9
         The task is particularly difficult when the opposing party contests many of the six factors,
as Buc-ee’s does in this case. See Elf Atochem N. Am. v. United States, 914 F. Supp. 1166, 1170
(E.D. Pa. 1996).

                                                   7
(5th Cir. 1990), and where any doubts must be resolved in favor of the nonmoving party.10 Hribek

falls only slightly short of this demanding standard.




                                              __________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Filed: December 31, 2009




       10
           The traditional perception of the role of summary judgment in Texas presents yet another
hurdle for Hribek to overcome. Though this case implicates numerous aspects of federal substantive
law, the trial of the case is governed by state procedural law. See Dutton v. Southern Pacific
Transp., 576 S.W.2d 782, 784 (Tex. 1978) (noting that, when employment cases governed by federal
law “are filed in our state courts they are tried in accordance with our own applicable Rules of
Civil Procedure”). Summary judgment motions have historically been viewed less favorably in
Texas courts than in federal courts, where “summary judgment procedure is properly regarded not
as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole,
which are designed ‘to secure the just, speedy and inexpensive determination of every action.’”
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). In Texas, by
contrast, the “purpose of summary judgments” is limited to “eliminat[ing] patently unmeritorious
claims and untenable defenses.” Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
228 (Tex. 2004). While the amendment of Texas Rule of Civil Procedure 166a in 1997 “obviated”
many, if not all, of the practical differences between summary judgment procedure in federal and
Texas courts, see Huckabee v. Time Warner Entertainment Co., 19 S.W.3d 413, 433 (Tex. 2000),
longstanding Texas practice has generally limited the availability of summary judgment in the
state system.

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