USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 96-1885

GIDEL RIVERA-FLORES,

Plaintiff, Appellant,
v.

BRISTOL-MYERS SQUIBB CARIBBEAN, ET AL.,

Defendants, Appellees.
____________________

ERRATA SHEET
ERRATA SHEET

The

opinion of this Court

issued on April

25, 1997 is correc

as follows:
On

the cover

sheet, insert

prior to

date of

decision

"Jay
___

Garcia-Gregory and Fiddler, Gonzalez & Rodriguez on brief for appel

______________
_____________________________
Prudential Insurance Company."

United States Court of Appeals

For the First Circuit

____________________

No. 96-1885

GIDEL RIVERA-FLORES,

Plaintiff, Appellant,
v.

BRISTOL-MYERS SQUIBB CARIBBEAN, ET AL.,

Defendants, Appellees.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose A. Fuste, U.S. District Judge]

___________________

____________________
Before

Selya, Circuit Judge,

_____________
Aldrich, Senior Circuit Judge,
____________________

and Lynch, Circuit Judge.

_____________

____________________
Octavio A. Diaz-Negron, Idalia M. Diaz
_______________________ ______________

and Peter J. Porrata

_________________

appellant.

Carl Schuster,
______________
Maldonado-Nieves and
________________

with

whom

Maria
Santiago de Vidal,
___________________________

Schuster Usera Aguilo & Santiago were

_________________________________

Ma
__

on br

for appellees.
Jay A. Garcia-Gregory and
_____________________

Fiddler, Gonzalez & Rodriguez on br

______________________________

for appellee Prudential Insurance Company.

____________________

April 25, 1997

____________________

LYNCH,
LYNCH,

Circuit Judge. Gidel

Circuit Judge.
______________

first as a machine cleaner

Squibb Manufacturing

Some two years

place

of his

Prudential

and later as a line

Inc. ("SMI") in

after his employment

severance program,

Rivera-Flores worked

Rivera, who

lower

left leg,

Insurance

Co.,

operator for

Humacao, Puerto

was terminated under

wore a prosthetic

sued

under

Rico.

SMI and

the

its

device in

insurer,

Americans

with

Disabilities Act

("ADA"),

42 U.S.C.

12101

et seq.,
__ ____

Employee Retirement Income Security Act ("ERISA"),

the

29 U.S.C.

1001 et seq., and other federal and Puerto Rico employment

__ ____

statutes.

The

employer countered with a waiver

which Rivera had executed

for

which he

when his employment terminated and

received certain

that the release

and release

was invalid.

benefits.

On

Rivera responded

cross-motions for summary

judgment, the district court entered summary judgment for the

defendants.

first

Rivera appeals.

impression

enforceability

under

in

This case raises

this

the ADA

circuit

of

waivers

an issue of

concerning

and releases

the

of

claims by employees.

We hold that the

general principles for evaluating

such

waivers

and releases,

claims arising under other

ADA as

well:

ADA

enunciated

by

this court

for

employment statutes, apply to the

waivers and releases must

be knowing and

voluntary, as evidenced by the totality of the circumstances.

-33

Whatever

arising

out of

evidence

the

merits

of

his employment,1

any

claims

he presented

Rivera

had

no competent

that created a genuine issue of material fact as to

whether his waiver and release were voluntarily and knowingly

given,

and

release.

whether

he had

the

capacity

to

give such

We affirm.

I.

Rivera was

education.

He

born

in 1953

began working

that he worked as

and

has a

for SMI in

a police officer for ten

high

school

June 1984;

before

years.

Rivera's

left leg had been amputated below the knee after a motorcycle

accident

His

work

he suffered in 1982

assignments

at

when he was

SMI,

despite

a police officer.

his

requests

for

accommodation (which were partially met), caused his stump to

become irritated

symptoms

and bleed.

In pain,

of, and eventually received

diagnosing him

he began

exhibiting

a letter from a doctor

with, post-traumatic stress

disorder and

an

anxiety disorder.

Rivera

1992.

left

In the spring

work

due to

disability

in December

of 1993, he received a letter

him to participate in a voluntary separation plan.

letter accepting this invitation.

inviting

He sent a

He also applied for

long-

____________________

1.

There is no indication in the record that plaintiff first

presented

his

claim

to

the

Equal Employment

Opportunity

Commission ("EEOC"), which is a prerequisite to bringing suit

under the ADA.

Defendants never raised this issue and it was

not argued before us.

We decline to address the matter.

-44

term disability benefits

available through the employer

submitted

in

statement

physician.

The

insurer

disability

benefits;

September of 1993 and

insurer.

support

from

denied the

Rivera

sought

and

his

attending

request for

long-term

reconsideration

in

submitted further documentation to the

Rivera pursued his claims

for disability benefits

throughout 1993 and thereafter.2

In

certain

the fall of

of

its

operations,

employees a

letter of

who wished

to receive

claims

received,

in

sent

shutdown of

Rivera

and

Under the terms of

the

company

turn, certain

otherwise entitled to receive.

benefits

or

had to

the Separation

"Agreement"), dated

employee agreed that he would

against

other

all employees

voluntary separation benefits

General Release Form (the

October 18, 1993, the

legal

SMI

with the

dismissal stating that

sign a waiver agreement.

Agreement and

1993, faced

make no

its

insurer.3

He

beyond

those he

was

The Agreement stated that the

____________________

2.

In

response to

his claim

Social Security Administration

for disability

benefits, the

found in September

1994 that

Rivera was disabled

and suffered

from pain,

post-traumatic

stress disorder and dysthymic disorder.

3.

The Agreement provided in relevant part that the employee

agreed that "he shall file no action against the Company, nor
against

any entity

. . . before any
or

court,

or

person associated

with the

agency or administrative

federal

or local,

which

Company

instrument, board

might

be

directly or

indirectly related to his employment with the Company or with

the

termination of

the

same."

The Agreement

encompassed

causes of action including but not limited to the "'Americans

with

Disabilities

Act,'

or

the

local

legislation

that

protects persons with physical and/or mental impairments."

-55

signatory

acknowledged

that he

was

signing

the Agreement

voluntarily, that he fully

understood the Agreement, that he

had been advised to consult

with a legal representative, and

that he had seven days to revoke his consent.

1993, Rivera

consent.

he did

executed the Agreement.

He now

He never

claims that he signed the

not read at the

On December 1,

revoked his

Agreement, which

time, under duress and

while he was

suffering under a psychiatric disability.

II.

Rivera challenges

three

grounds:

the validity of

that enforcement

of

the release

the release

on

would be

contrary to the policies animating the ADA, that the evidence

raised a dispute as

was

knowing and

to whether the execution of

voluntary,

and that

he

permitted to take additional discovery.

the release

should have

been

The first two issues

are intertwined.

Courts

commonly upheld

benefits.

out a type

in

the

releases given

Such

resolution of

have,

releases

employment

in

exchange for

provide

means

potential and actual legal

of industrial

justice.

law

Thus,

of

context,

additional

voluntary

disputes, and mete

releases of

claims have been honored under the laws prohibiting race

gender

F.2d

discrimination.

Warnebold v.
_________

222, 223-24 (8th Cir. 1992);

Denver Co., 415 U.S. 36, 52

__________

(1974).

past

and

Union Pac. R.R., 963

________________

cf. Alexander v. Gardner___ _________

________

Such releases have also

-66

been

honored

discrimination in

under

the

ADEA,

which

employment, e.g., Pierce v.

____ ______

prohibits

age

Atchison T. &
_____________

S.F. Ry. Co., -- F.3d -- (7th Cir. Mar. 27, 1997), as well as
____________

under ERISA, e.g., Smart v. Gillette Co. Long-Term Disability

____ _____
_________________________________

Plan, 70
____

F.3d 173, 181

(1st Cir. 1995);

Chase Manhattan Bank, N.A.,

____________________________

986 F.2d

Rodriguez-Abreu v.
_______________

580,

587 (1st

Cir.

1993).

Where

Congress

has

wanted

to

insure particular

protections for the employees in the procedures for obtaining

releases,

Benefits

it has done so,

for example in

Protection Act amendments

626(f).

No such special

the Older Workers

to the ADEA.

procedures are set

29 U.S.C.

forth in the

ADA.

The

protection

disabled workers is

those workers to

in exchange

Congress

wished

to

consistent, we believe, with

afford

to

permitting

resolve their claims by executing a release

for benefits

they would not

otherwise receive.

The ADA clearly

encourages private resolution

of employment

disputes, such as by requiring that employers attempt to make

reasonable

accommodations and

disputes informally.

that the

See, e.g., Hodges,

_________

Americans with Disabilities Act,

________________________________

(1996).

to settle

Mediation and the

_________________

Ga. L.

Rev. 431,

437

The ADA also expressly provides that its enforcement

procedures

U.S.C.

30

EEOC try

shall

12117(a),

be the

same as

and releases

-77

those

for Title

have long been

VII, 42

accepted in

that

context.

In

addition,

employment arise under Title

that

although

claims

I of the ADA, it

concerning

is noteworthy

the EEOC Regulations under Title III of the ADA (public

accommodations) expressly provide for settlement of disputes.

28 C.F.R.

36.506.

Certainly there

such releases.

the

Indeed, as the

ADA prohibiting

district court pointed

out,

report of the conference committee on the ADA evinces an

intent to

the

is nothing in the

permit individuals to settle or waive claims under

ADA by express, voluntary agreement.

H.R. Rep. No. 101-

596

(1990),

Prohibiting

reprinted
in
______________

such waivers

1990

under

arguably would display the

enacting the

ADA.

the ADA

267,

on policy

598.

grounds

same stereotyping and patronizing

attitudes toward the disabled

in

U.S.C.C.A.N.

which Congress hoped to remedy

We conclude

that such

releases are

permissible under the ADA, and turn to whether the release at

issue here was valid.

Waiver

which

and

release

are affirmative

the employer bears the burden.

defenses

on

Fed. R. Civ. P. 8(c);

see Long v. Sears Roebuck & Co., 105 F.3d 1529, 1543 (3d Cir.
___ ____
___________________

1997).

At

releases has

and

a minimum,

judicial review of

been designed to ensure that

voluntary."

Smart,
_____

70 F.3d

at

181.

such waivers

and

they are "knowing

That

analysis

necessitates some

focus on the

congressional intention

rights being waived

to protect such rights.

and the

This court

-88

has

endorsed

"totality

of

determining the validity of the

circumstances"

waiver.

Id.
___

approach

We

to

have found

helpful, but not

exclusive, a set of

six factors identified

by the Second Circuit in Finz v. Schlesinger, 957 F.2d 78, 82

____
___________

(2d Cir. 1992).4

And yet, a challenge

to a release by a

person who

asserted to the employer that he was disabled at the time

execution of

heightened

the release

judicial

disabilities may

may, on particular

scrutiny.5

While

inherently raise a

of

facts, warrant

certain

claimed

question about

whether

the employee has the capacity to give a knowing and voluntary

waiver, that is not the case

here.

It is not enough for

an

employee simply to assert that he was disabled at the time he

executed

definition

the

release

in

the

and

ADA

the

employer

of

"disability"

knew

it.

The

covers

three

categories, including

disabled.

the

42 U.S.C.

Maine, Inc.,
___________

105 F.3d

mere perception

12102(2);

12, 15

that someone

Soileau
_______

is

v. Guilford of
____________

(1st Cir. 1997).

Nor

is it

____________________

4.

The

six

factors

are:

(1)

plaintiff's

education

and

business sophistication; (2) the respective roles of employer

and employee in determining the provisions of the waiver; (3)
the clarity of the
study the

agreement; (4) the time plaintiff

agreement; (5)

whether plaintiff

advice, such as

that of counsel;

for the waiver.

Smart, 70 F.3d at 181 n.3.

_____

5.

Unlike waiver of pension

welfare benefits such

general matter,

and (6) the

had to

had independent
consideration

benefits under ERISA, waiver of

as those at

issue here are not,

subject to heightened

Abreu, 986 F.2d at 587.

_____

-99

scrutiny.

as a

Rodriguez__________

enough

to

assert

psychiatric.

that the

Not all

nature

of

the disability

disabilities and not

was

all psychiatric

disabilities inherently involve a question about capacity

__________

to

act

v.

knowingly

and

voluntarily.

Cf.
___

United States
______________

Schneider, -- F.3d -- (1st Cir. Apr. 15, 1997).

_________

Thus, the operative question

is whether there is a

genuine issue

execute

as

the

judgment

to

release

whether Rivera

knowingly

is appropriate

had

the

capacity

and voluntarily.

where "the

Summary

pleadings, depositions,

answers to interrogatories, and admissions on file,

with

the affidavits, if any,

issue as

to any material

entitled to

56(c).

Here,

condition

and

the

its

affidavit: "I was

work;

anxious

treatment."

show that there

fact and that the

judgment as a matter

only

sworn

effects

is

and

confused

Rivera failed to

and

moving party is

Fed.

evidence

as

statement

very depressed because

was

together

is no genuine

of law."

the

R. Civ. P.

to

in his

I could no

under

Rivera's

was left with

psychiatric

submit an affidavit

no competent medical

own

longer

from his

treating psychiatrist or from any other medical expert.6

court

to

The

evidence going to

____________________

6.

Rivera did submit a case summary prepared by his treating

psychiatrist.
reply

However, as

memorandum

in support

defendants pointed out

of

their

motion for

in their
summary

judgment, this document constituted inadmissible hearsay.

was not

supported by

an accompanying affidavit.

It

Plaintiff

failed to remedy this evidentiary infirmity even after it was

brought to his attention in this manner.

-1010

his capacity to

execute the

release.

Cf.
___

Garside v.
_______

Osco
____

Drug, Inc., 895 F.2d 46, 49-50 (1st Cir. 1990).

__________

Rivera

did

administrative law

action seeking

submit

judge who

the

decision

presided

over his

of

the

collateral

disability benefits under the Social Security

Act. The administrative law

judge found that Rivera suffered

from

post-traumatic stress

dysthymia as

Even giving

well as

these findings some evidentiary

disorder.

weight they are

insufficient, without more, to create a genuine issue of fact

as to Rivera's mental capacity.

labels without content

consent

is

inadequate

Mere evidence of diagnostic

tying them to capacity to

to

create

an

issue

give valid

as

to

the

consequences of the disorders

on an individual's capacity to

give valid consent.

Rivera

never

states

was

such that

he

condition

in

his affidavit

could not

knowing consent.

The social security

nothing

points.

on these

affidavit

from

diagnosed

dysthymia

during this

evidence

doctor.

and

period he

claim and did

lacked the

any

And,

give

as we

Furthermore,

despite

stress

was actively pursuing

to

voluntary and

said, there

not tell his employer and its

sufficient

lack of

was no

his

disorder,

his disability

insurer that he

On this record,

establish

his

judge's decision says

post-traumatic

capacity to do so.

that

there is no

capacity.

In

reaching this conclusion, we say nothing about the outcome in

-1111

case involving similar facts in which the plaintiff put on

competent medical evidence.

We

had

42 days

whomever

consider the

to

examine

he chose

Rivera attempts

and ask

to raise a

remaining circumstances.

the

Agreement,7 discuss

questions before

dispute about

Rivera

it

he signed

when he

with

it.

actually

received the Agreement.

However, the employer filed with its

summary judgment papers a receipt for the release executed by

Rivera.

his

Rivera has not

fairly met this evidence.

At

most,

affidavit says that he did not recall if he received the

release then.

of fact.

That is insufficient to create a genuine issue

See Ayer v. United States, 902 F.2d 1038, 1045 (1st

___ ____
_____________

Cir. 1990);

cf. Perez de la Cruz v. Crowley Towing & Transp.

___ ________________
________________________

Co., 807 F.2d 1084, 1086-87 (1st Cir. 1986).

___

The

totality

district

court

of the circumstances

here, commenting

lack of business sophistication.

was

given the Agreement and

sensitively

analyzed

the

on Rivera's

The court noted that Rivera

release along with

a letter of

termination,

which

negotiation.

However, as the district court pointed out, the

language

of the

suggested

release

there

is clear

was

and

little

room

unmistakable:

waiver clause expressly mentions the ADA and states that

for

the

all

____________________

7.

The

provided

Agreement
for

was

at least

internally inconsistent
a

45-day period

for

in

that it

examining the

document but apparently expired 44 days after the date it was

issued.

We need not reach this issue, however, as plaintiff

never claimed that the Agreement was invalid for this reason.

-1212

claims

for

disability are

released.

The district

court

concluded that Rivera's sense that he was treated unjustly in

this situation does

not mean that his

signing the Agreement

was not voluntary or knowing.

Rivera argues

to rule first on

the

employer

argument

the merits of his liability

before reaching

has the matter

had valid claims under

have

that the district court was required

the

issue of

exactly backwards.

claims against

waiver.

Even if Rivera

the ADA and other statutes,

waived those claims.

This

he could

It was both logical and efficient

to take up first the matter of waiver.

As

for

Rivera's

argument

that

discovery, it is too little and too late.

Our

district court's discovery-related decisions

discretion,

and "[w]e

upon a clear showing

will intervene

Here,

Rivera

never argued

F.2d 179,

to the

needed additional discovery before

summary

was

denied

review of the

is for abuse of

in such

of manifest injustice."

Atl. & Pac. Tea Co., 871

______________________

he

matters only

Mack
____

186 (1st

v. Great
_____

Cir. 1989).

district court

that he

filing his opposition

to

judgment; nor did he file an affidavit under Fed. R.

Civ. P. 56(f).

judgment.

discretion.

Indeed, he filed a cross-motion

for summary

Under these circumstances, there was

no abuse of

-1313

For these reasons, to

Rivera's

the extent (if at

remaining non-ADA claims

have been

waiver and release are valid as to them.

Affirmed.
________

all) that

preserved, the

-1414