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-NEGR

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

_____________________

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,
STAHL,

Circuit
Circuit

Judge.
Judge.

Defendants-appellants

_______________

Radames Cardoza-Rodriguez

the

district court's issuance

favor

of plaintiff-appellee

enforcing

releases of

appellants

and

Discrimination

vacate

declaration

Nonetheless,

judgment

on

of a declaratory

American Airlines

age discrimination forms

appeal from

judgment in

("American")

executed by

dismissing their counterclaims under the Age

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

621 et seq. and

__ ___

and

et al., ("employees")
__ ___

and

that

Puerto Rico Law 100.

remand

the

in

releases

part

at

the

We reverse

in part

district

court's

issue are

enforceable.

we affirm the district court's grant of summary

the

employees'

counterclaim,

employees' ADEA claims time-barred.

finding

the

I.
I.
__

Background
Background
__________

Because the

judgment

on

recite the

party,

district court issued

plaintiff's

motion

for

the declaratory

summary judgment,

we

facts in a light most favorable to the non moving

the employees. DeNovellis

__________

v. Shalala, 124
_______

F.3d 298,

305 (1st Cir. 1997).

On

reduction

September

part

a workforce

ticket, and cargo agents in the Commonwealth of

Puerto Rico,

Retirement

Program

to

offered

of

reservation,

opportunity

American

1994, as

certain

the

program,

21,

participate

("VERP").

The

in

VERP

Voluntary

provided

Early

for the

-22

addition

of five

purposes of

years to

calculating

each

employee's actual

retirements

benefits,

age for

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

be at the

maximum pay scale in their

employee had to

job classification and

at least forty-five years of age.

American informed

details by

providing

the employees

of the

various VERP-related

program's

documents.

The

introduction to the "Terms and Conditions" booklet describing

the

program warned

carefully, and

11,

1994,

election

seven

In

to

read

forty-five days

rescission

order

to

to sign a "Voluntary

Form" attesting that

voluntary, final and

given

day

participate.

employee was required

Election

employees

the

materials

provided a participation deadline of November

with

to

the

the decision

irrevocable," that he

to make

the

period after

an

participate,

an

Early Retirement

was "completely

or she had

election, and

been

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,

discrimination claims."

-33

specifically,

"age

The VERP

attest

to

election form

having read

the

electing to retire early.

employee agreed

American

not to

in any

required each

entire

employee to

release form

prior

By the terms of the release,

bring any

legal proceeding

court, administrative agency,

to

the

against

or tribunal,

that the employee would forfeit the extra retirement benefits

if

the employee breached

provided the

and

"I

opportunity

representative

term, and also

party successfully enforcing the

attorney's

stating:

a material release

fees.

have

to

The

had reasonable

consult

of

release

my

own

with

contained

release costs

a provision

and

sufficient

an

independent

choosing

before

time and

signing

legal

this

Complete

Release

documentation

with their

neither

of

All

advised the

families and

the

release

Claims."

employee to

to "consult

nor

Although

any

of

the

discuss the

a financial

the

VERP

VERP

program

advisor,"

documentation

explicitly advised the employees to consult an attorney prior

to executing

mention

the release

of independent

or electing to

legal advice

was

retire.

The only

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

retirement

period.

program on various

in the early

dates throughout the election

The earliest election occurred on

October 11, 1994,

-44

the latest on December 13, 1994.

the

employees'

termination

dates

restructuring process; therefore,

employees

American

continued to

work.

The VERP also provided that

would

depend

on

after their election,

Over

the

next ten

began to terminate them individually.

the

the

months,

The earliest

termination occurred on

did

not

occur

termination,

until

December 30, 1994, while

September

American paid

the

29,

1995.

the latest

After

VERP's enhanced

each

retirement

benefits.

For several months (the

precise period is unclear

from

record),

appellants

the

each

of

the

accepted

and

retained these benefits.

On

October

27,

1995,

over

appellants elected to participate in

file administrative

Puerto Rico

year

the

the VERP, they began to

age discrimination claims with

Anti-Discrimination Unit

after

("ADU") and

both the

the Equal

Employment Opportunity Commission ("EEOC") variously claiming

that

their

election

to

participate

in

the

VERP

involuntary and that American had discriminated against

on the basis of age.

was

them

In general, the complaints alleged that

certain

management employees

believe that

led

older

American planned to move the

reservation

and cargo

subcontract

to an

jeopardy.

had

departments

outside company,

However, once

American asked

them to

to

train new,

-55

to

operations in the

another location

placing

the employees

employees

their jobs

elected to

or

in

retire,

younger replacements

to

fill their

jobs.

materialized.

The claimed threatened

job losses

never

-66

II.
II.
___

Prior Proceedings
Prior Proceedings
_________________

On

the

April 18, 1996,

appellants'

ADU

filings

American Airlines responded to

by

initiating

the

instant

declaratory judgment action.

pleadings,

American asked

See 28 U.S.C.
___

the district

2201.

court

order declaring the rights and obligations of

In its

to issue

an

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.
our

Although
duty

neither party has

to inquire

jurisdiction.

sua

addressed the issue,

sponte into

our

subject matter

In re Recticel Foam Corp., 859

___________________________

1002 (1st

Cir. 1988).

judgment

action under

American

brought this

ERISA, which

provides

F.2d 1000,
declaratory
for a

action:

by a .

. . fiduciary

(A) to enjoin

any

act or practice which violates the

terms

of

other

the

plan,

appropriate
redress

such

or (B)

equitable

to

obtain

relief

violations

or

(i)

to

(ii)

to

enforce any provisions . . . of the terms

of the plan.

it is

civil

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

directly authorizes a declaratory

1132(a)(3)

judgment in this context.

Compare Winstead v. J.C. Penny Co., Inc., 933 F.2d 576, 578_______ ________
____________________
79

(7th Cir.

obtain
terms

a declaration
of a plan),

F.2d 1520,
allow an
pay

1991)

1132(a)(3)

allows

regarding its

a fiduciary

obligations

with Gulf Life Ins. Co. v.

____ ___________________

1523 (11th

Cir. 1987)

insurer to obtain

under the
Arnold, 809
______

1132(a)(3) does

a clarification of its

severance programs). In

Franchise Tax Bd.

_________________

to

not

duty to

v. Laborers
________

Vacation Trust, 463 U.S. 1 (1983) the Supreme Court stated:

______________

Federal
original
judgment

courts

have

jurisdiction
suits

in

-77

regularly
over
which,

taken

declaratory
if

the

American

approve

moved under Fed.

the deposit

R. Civ. P.

of future

67 to have

payments

of the

the court

employees'

retirement benefits into a court-designated bank account (the

"court registry").

May 1996,

The court granted that motion, and, since

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

__ ___

Evidently,

once

colloquially as Puerto Rico "Law 100."

the

district

court

allowed

employees' retirement

registry, a

number of the original employee counterclaimants

their claims.

Of

the

into the

to

deposit the

abandoned

benefits

American

court

twenty-one employees

who

____________________

declaratory judgment defendant

coercive
that

action to

suit

brought a

enforce its

would necessarily

rights,

present

federal question.

Id. at 19; see also

___
___ ____
in

declaratory

infringement);

id. at 19 n.19 (discussing jurisdiction

___
judgment

cf.
___

Tax

Bd.,

involving

Colonial Penn Group, Inc.

__________________________

Deposit Group, 834 F.2d

______________
Franchise

actions

463

229, 234 (1st

U.S.

at

patent

v. Colonial
________

Cir. 1987) (quoting

19,

and

dismissing

____________________
declaratory judgment action where threatened coercive action
was based on state law).
whether characterized as

Here, the underlying controversy,

the employees' right to

American's retirement plan,

see 29 U.S.C.
___

or as a claim under the ADEA and

wholly

federal question.

1132(a)(1)(B),

OWBPA, clearly

As a result,

sue under

presents a

American's request

for a declaratory judgment "arises under" 28 U.S.C.

1331.

-88

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

law; and

(2) the

agreement under both federal

defendants could

relating to their early retirement.

summary judgment

inter
_____

alia,
____

been untimely.

on

the

that the

employees'

and local

not maintain any

American

also moved for

counterclaim

employees administrative

January 27, 1997, issued a declaratory judgment that:

agreements

entered

ratified the release

into

by

them

in

connection with their acceptance of early

retirement benefits from American;

(2)

the

release

agreements

arguing,

filings had

The court granted American's motion,

(1) Defendants have

claims

preclude

and on

defendants
against

from

raising

American

employment or
claims for

any

relating

claims

to

retirement, including

age discrimination

their
the

under the

[ADEA, OWBPA, and Puerto Rico Law],

(3)

Defendants

claims

of

EEOC

and

failed

to

file

age discrimination
Puerto

Rico's

with

their
the
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-

We

"review a

judgment de novo."
_______

119 (1st Cir.

district

Marrero-Garcia
______________

1994).

Summary

"the pleadings, depositions,

admissions

show

on files, together

that there is no genuine

court's

grant of

summary

v. Irizarry, 33 F.3d 117,

.
________

judgment is appropriate

when

answers to interrogatories, and

with the affidavits,

if any,

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

summary judgment, we must scrutinize the

most

an award of

record in the light

amiable to the party opposing the motion, indulging all

reasonable

inferences in that party's favor.

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

_____

Griggs-Ryan v.
___________

Notwithstanding the

liberality of this standard, the nonmovant cannot simply rest

on unsworn allegations.

Rico, 27
____

F.3d 746,

Morris
______

748 (1st

v. Gov't Dev. Bank of Puerto

_________________________

Cir.

1994).

"[T]o defeat

properly supported motion for summary judgment, the nonmoving

party

must

establish

'enough competent evidence

trial-worthy

issue by

to enable a finding

presenting

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

1116

panel is

not

(1st

Cir. 1993)).

Finally,

"[a]n

district

court's reasoning but can affirm a summary judgment

on

appellate

1113,

any independently sufficient ground."

restricted

Mesnick v. General
.
_______
_______

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

_________

-1010

to the

-1111

IV.
IV.
___

Discussion
Discussion
__________

Here, we

First,

was

the

are

district

employees' release

100

faced with

court's

operated as a

claims correct?

two distinct

Second,

questions.

declaration

bar to their ADEA

if the

release does

that

the

and Law

not bar

their claims, are the employees' claims nonetheless barred as

matter of

law?

We answer

the

first

question in

the

negative, disagreeing with the district court's determination

that

the employees' release

We agree, however,

bars their

that the statute of

ADEA counterclaims.

limitations bars the

employees' counterclaim.

1. Is the Release Enforceable?

_______________________________

American

the

release the

presents two

employees signed

alternative arguments

is

enforceable: (1)

that

the

release complied with

if the

release is

return the

the OWBPA, 29 U.S.C.

invalid under the

OWBPA, by

enhanced retirement benefits

the VERP, the

refusing to

they received under

employees ratified the release.

We find that the employees'

626(f) or, (2)

We disagree.

release of their ADEA claims did

not comply with the OWBPA and that the ratification

-1212

doctrine

does not apply

to invalid ADEA waivers.2

2

arguments in turn.

We consider their

____________________

2.

We emphasize that

ADEA
decide

claims that
or express

our holding is limited to

are invalid
any

under the OWBPA.

opinion

on

whether

the

releases of
We

do not

employees

validly released their non-ADEA claims. See infra part IV.2.

___ _____

-1313

a. Compliance with the OWBPA

____________________________

Although

issue,

American

declaration

the

district court

contends

because the

valid under the OWBPA.

For

an

that we

can

releases

did

not

reach this

affirm

the court's

the employees

signed are

We disagree.

employee's

waiver of

ADEA

rights

enforceable, it must be "knowing and voluntary."

to be

See, e.g.,
___ ____

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

1996).

Prior to

the enactment of

over how to determine whether

and

voluntary.

Some

the OWBPA,

courts split

a waiver of rights was knowing

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

_____

(8th

Cir.

v. McGraw Edison Co., 804

_________________

1986),

circumstances"

while others

test,

see
___

F.2d 1026, 1033

formulated

Bormann
_______

"totality of

v. AT&T Communications,
_____________________

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

(1989); Coventry v.
________

Cir. 1988).

OWBPA,

29

mandating

minimum

waiver:

To

U.S.C.

that a

U.S. Steel Corp., 856 F.2d

_______________

resolve

this split,

626(f),

waiver

of

which

ADEA

information to constitute

514, 518 (3d

Congress enacted

amended

claims

the

contain

ADEA

the

by

certain

a "knowing and voluntary"

-1414

(1)

The

release must

be

written in

manner calculated to be understood by the

employee

signing

average

the

individual

release,
eligible

or

the
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)
45

the employee must be

days

to

consider

given at least

signing

if

the

incentive is offered to a group;

(7)
to

the release must

rescind the

allow the employee

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

must provide information

employer

relating to the

job titles and ages of those eligible for

the

program,

and

information relating to

the

corresponding

employees in the

same job titles who were not eligible for

the program.

See 29 U.S.C.
___

The

626(f)(1)(A)-(H) (emphasis added).

OWBPA also explicitly places the burden on the

party asserting the validity of a waiver to

the waiver was "knowing and voluntary."

Raczak v.
______

Ameritech Corp., 103

________________

-1515

demonstrate that

See Id.
___ ___

F.3d 1257,

626(f)(3);

1261 (6th

Cir.

1997).

To

prevail

on

therefore, American needed

genuine

issue

of

complied with each

Griffin v.
_______

material

motion

for

summary

judgment,

to demonstrate that there

fact

as

to

of the section 626(f)

whether

was no

the VERP

requirements.

Kraft General Foods, Inc., 62

__________________________

F.3d 368,

See
___

371-72

(11th Cir. 1995).

Surprisingly,

agreement

did

not

the

VERP documents

specifically

advise

the

comprising

employees

consult with an attorney prior to executing the release.

29

U.S.C.

626(f)(1)(E).3

Although

each

the

to

See
___

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

termination date as a

sign the release on

condition of receiving benefits.

release

states only: "I

time and

opportunity to

have had reasonable

consult with

their

The

and sufficient

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
contention,

cites to

nowhere except

documentation to
in

the release

support

this

does the

cited

material mention private legal counsel.

-1616

representative

of

my

own

choosing

Complete Release of All Claims."

although

it advised employees

before

signing

this

The VERP Agreement itself,

to consult financial

and tax

advisors,

to

representatives,

seek

advice

and to

attend

from

local

personnel

retirement seminars,4

nothing

about seeking

independent

making

the election to

retire and

legal

advice

agreeing to

said

prior

to

execute the

release as the statute dictates.

Given

the

demonstrate

their

information,

the

burden

agreements

reference

insufficient to satisfy

in enacting

that

an

assess,

626

employee

OWBPA

places on

contain

contained

626(f)(1)(E).

in

employers

the

the

to

required

release

is

"Congress's intent

was to compel employers to provide data so

considering

waiving

ADEA

rights

could

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

advised in

and

writing

voluntary

to consult

executing the agreement."

or

"recommend."

unless

with

"the

individual

an attorney

prior

is

to

To advise is to "caution," "warn,"

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

attorney regarding the effects of certain payment options.

-1717

an

scheme

with

at issue, especially

discrimination in

in light of

the suspect

Congress's concern

context

of group

exit

American argues that the waiver form complied

with

programs.5

the OWBPA because there is no dispute that the employees were

fully

were

aware that only

over the age

persons in their

of 45 and

classifications who

at the highest

pay rates were

____________________

5.

The legislative history of the OWBPA states:

In

the

context

recognizes

of

individually

ADEA

waivers,

fundamental
tailored

the

Committee

distinction

separation

between

agreements

and

employer programs targeted at groups of employees.

. . .
During

the

past

faced with

the

resorted

need to

to

effectuate

decade,

and

that

is available

trademark

of

induce

voluntary

In

than one

voluntarily

benefits

employee.
programs

to

The
is

designed

sever

their

both cases, the terms of the programs

parties.

In

programs

have

to negotiation between the

addition, employees
little or

being

characteristics.

taken

affected by

no

basis

based

on

Indeed,

the

advises them

that the termination

of

individual

their

The

programs is

or package of benefits

are not subject

is

to

reductions.

reduction

generally

action

have

designed

termination

to more

employees

employment.

programs

or package of employee

standardized formula
to

employers

workforce size

wholesale

of involuntary

standardized formula

particular,

reduce

standardized

quick

trademark

in

status.

to suspect

those
that

their

individual

employer

generally

is not

a function

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
_____________

U.S.C.C.A.N. 1509, 1537-38 (emphasis added).

-1818

1990

eligible, that they were releasing age claims in exchange for

enhanced benefits, and

that they were provided

advice the statute required.

We disagree.

with all the

The fact that the

employees may have known they were waiving rights in exchange

for enhanced

retirement benefits

626(f)(1)(E).

We read section

says: employers must

does

to consult

a release of ADEA claims. The

failure to advise the employees to

heart of

section

626(f)(1)(E) to mean what it

advise employees in writing

an attorney prior to executing

to the

not satisfy

consult with counsel goes

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

may be

light of the OWBPA's imprecise terms, some violations

so technical as

invalidate an

otherwise valid

Raczak,
______

103 F.2d at

advise

the employees

minimis.

to be de

minimis, and thus

release of

ADEA claims.

1260. American's failure

to

obtain

may not

counsel is

See
___

adequately to
in

no way

de

-1919

American failed to meet its burden under the OWBPA.7

U.S.C.

See
___

29

626(f)(1).

b. Ratification of the Employees' ADEA Waiver

_____________________________________________

As we have said, the

whether the

district court did not decide

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

registry pending the outcome of

ratification

of

the

funds

into

the

court's

this litigation, constituted

original

release

agreement.

We

disagree.

In the

doctrine

to

past,

enforce

we

have

applied

an otherwise

the

invalid

ratification

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.
in
from

As the employees point out, the waiver is also deficient

another manner.
maintaining

whatsoever

The waiver broadly

"any

legal

against American

et

prohibits employees

proceedings
al.

before

of
any

any

nature

court

or

__
administrative
agency or court
prejudice"
behalf.

if

Section

agency" and

__

requires

them

to "direct

to withdraw from or dismiss

the

agency

assumes

that

the matter with

jurisdiction

626(f)(4), however, states: "No

on

their

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."

Astra U.S.A., Inc., 94 F.3d
__________________
agreement

that

materially

Cf. E.E.O.C.
___ ________

v.

738, 744 (1st Cir. 1996) ("[A]ny

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

employee cannot

(5th

Cir.

waive the

1987)(holding pre-OWBPA

that

right to file

with the

EEOC).

-2020

a charge

an

claiming duress must

act promptly to repudiate

or release or he will be

do so.'"

deemed to have waived his right

633-34

doctrine

on

(2d

1995).

Cir.

v. PK Management Corp., 691 F.2d

___________________

1982)).

requires a party seeking

duress to first

Deren
_____

to

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

___________________________

Cir. 1989) (quoting Di Rose

_______

628,

the contract

The

related

to avoid a contract based

return any consideration

v. Digital Equipment Corp.,

________________________

tender-back

61 F.3d

received.

1, 1

See
___

(1st Cir.

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

ratification

the

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

claims.8

enactment,

have held that

back is

majority,

appropriate when

ADEA waiver.

598,

601-03

See
___

(6th

Roebuck & Co.,

______________

OWBPA); Oberg
_____

both

invalid

before

waiver

and

after

neither ratification

employees have

of

ADEA

OWBPA's

nor tender-

signed an

invalid

Howlett v. Holiday Inns, Inc.,

_______
___________________

120 F.3d

Cir. 1997)

v. Sears
_____

105 F.3d

(post-OWBPA);

1529, 1533

(3d Cir.

v. Allied Van Lines, Inc.,

_______________________

Long
____

1997) (post-

11 F.3d

679 (7th

____________________

8.

This issue has been argued before the Supreme Court and a

decision

is

currently

Operations, Inc., 1996

________________

pending.

See
___

Oubre
_____

WL 28508 (E.D. La.),

v.

Energy
______

aff'd, 102 F.3d

_____

551 (5th Cir. 1996), cert. granted, 117 S. Ct. 1466 (1997)).
_____ _______

-2121

Cir.

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

____________

Forbus
______

1992)

v. Sears, Roebuck & Co., 958

______________________

(holding,

tender-back

F.3d

pre-OWBPA,

doctrine); cf.
___

that

F.2d 1036

the

Raczak
______

ADEA

(11th Cir.

displaced

the

v. Ameritech Corp., 103

________________

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

rationale the

district court's refusal to apply ratification

doctrine to an invalid ADEA waiver).

court in this

Soliman v.
_______

1994).

circuit has sided with the

Digital Equip. Corp.,

___________________

The

In addition, a district

Fourth and

Fifth

majority view. See

___

869 F. Supp. 65

Circuits and

some

(D. Mass.

district

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

with

the

plaintiff

OWBPA

who

is

voidable,

retains

rather

retirement

than

benefits

void;

thus, a

ratifies

the

invalid waiver.

See Blistein
___ ________

1459, 1466 (4th Cir. 1996);

F.3d 482,

484 (5th Cir.

v. St. John's College, 74 F.3d

__________________

Blakeney v. Lomas Info. Sys., 65

________
________________

1995); see
___

College
of Podiatric Medicine,
_________________________________

(S.D.N.Y. 1996); Bilton

______

(E.D. Mo. 1996).

The

also Hodge v.
____ _____

940

F.

v. Monsanto Co.,
____________

arguments

Supp.

New York
________

579,

947 F. Supp.

for

and

582

1344

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

argue

in favor

that, because Congress

of ratification

used "the terms

primarily

'knowing' and

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

-2222

duress,

and

mistake,

defining only those

1466.

is

apparent

that

circumstances in which a

be voidable, not when it

at

it

would be void."

Congress

was

contract would

Blistein, 74
________

F.3d

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

(1) the plain

majority view rests

language of OWBPA and

indicate that Congress

1537; and (2) the OWBPA

back doctrine under

(1968).

its legislative history

did not intend ratification

to releases that are invalid

at

on two primary arguments:

under OWBPA, see Long, 105 F.3d

___ ____

displaced the common-law tender-

Hogue v. Southern Ry. Co.,

_____
________________

We reject the view adopted by the

Circuits and adopt

to apply

the majority position.

390 U.S. 516

Fourth and Fifth

At

common law, a

waiver of rights was

like duress

however,

simply a contract, subject

or mistake.

it specifically

When Congress

rejected

to defenses

enacted the

using ordinary

principles to govern the validity of ADEA waivers.

F.3d at

Rep. No.

1539 (reviewing

legislative history);

101-293, see supra

___ _____

note 4, at 32

OWBPA,

contract

Long, 105
____

see also
___ ____

S.

(disapproving of

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

_________
_______________________

809 F.2d 539

(8th Cir. 1987)).

-2323

Instead,

Congress enacted a

"floor" of specific procedures an employer must follow before

an employee's waiver is effective.

supra
_____

note

4, at

32

(noting that

See S. Rep. No. 101-293,

___

the

OWBPA "establishes

specified minimum requirements that must be satisfied

court may

proceed

to

determine

factually

whether

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

626(f)(1) states a clear rule: an individual

an ADEA claim unless

before

the

Section

"may not waive"

the waiver is "knowing and

voluntary."

And a waiver is not knowing and voluntary unless the employer

complies with the eight OWBPA requirements.

Incorporating the

statutory

scheme would

OWBPA Congress

deciding whether

claim be provided

to evaluate

1542.

ratification doctrine

emasculate the

sought to

insure that

to sign an

contract once

"Through

employees faced

with sufficient information to

the merits of

of

Act.

benefits by

the fraud has

into this

ADEA waiver and forego

that claim."

The ratification doctrine

retention

See id.
___ ___

the

with

an ADEA

allow them

Long, 105
____

F.3d at

rests on a fiction that the

injured party

been discovered.

An employee, however, "could no

the

forges

Id.
___

a new

at 1539.

more assent to the waiver of

his ADEA claim after having signed the defective release than
_____

he could at the time of signing

____________

601 (emphasis in original).

benefits

to validate a

it."

Howlett, 120
_______

F.3d at

To allow the simple retention of

noncomplying waiver would

mean that

-2424

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

electing to

retire, the

critical

decision

to consult

an attorney

employee is more

without

the

prior to

likely to

knowledgeable

face a

guidance

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

age

discrimination.

incorporated

waivers

into

If

this

the

scheme,

an employer

doctrine

could

is

obtain

without advising the employee to consult an attorney

and then put

the employee to the difficult

up essential benefits in order

The very

could

ratification

problem that Congress

thus

resurface,

albeit

choice of giving

to protect his or her rights.

enacted the OWBPA

through

the

to remedy

back

door.

Therefore, incorporating the

ratification doctrine into

OWBPA could act to undermine the incentives

follow

OWBPA's

procedures

and

deter

the

for employers to

the

prosecution

meritorious claims.

Cf. Hogue
___ _____

516 (1968) (holding

that the Federal Employer

of

v. Southern Ry. Co., 390 U.S.

________________

Liability Act

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

____________________

9.

American relies on Deren v. Digital Equip. Corp., 61 F.3d

_____
____________________

(1st

Cir.

1995)

in

contending

appropriate unless Congress

contrary.
held
by

Such

reliance is misplaced.

his retention of

ERISA

In

waiver is governed

is

to the

Deren, the court

_____

ERISA claims was ratified

benefits for three

ADEA waivers

ratification

indicates a clear intent

that an employee's waiver of

Unlike the

that

here, however,
by federal

and one-half years.

the validity of

an

common-law principles,

see Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d

___ _____
_______________________________________

-2525

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.

to

ADEA claims

Courts applying the ratification doctrine

have

required

to restore

benefits

they

Blakeney,
________

65

stated

the status

received

F.3d

that

at

the

quo

employees

must

by tendering-back

for

waiving

their

claims.

485.

This

position

is

severance benefits

have paid but for the

at 72.

however,

In

release.

the context of

tendering

back

an employer would

See, e.g., Wamsley, 11

____ ____ _______

a voluntary

the

benefits

the

See
___

arguably

plausible in the context of a unilateral termination when

employee receives

be

an

not

F.3d

retirement program,

received

does

not

contend that

the

restore the status quo.

For instance,

employees

should, as a

American does not

precondition to suing,

refuse their

retirement benefits

not,

in

other

status quo.

doctrine to

and seek

reinstatement.

words, contemplate

the

Rather, American wants to

retain the

American

restoration

does

of the

use the ratification

economic benefit

of the

employees'

____________________

173,

178 (1st

statutory

Cir. 1995),

procedures.

rather

than a

detailed set

of

Therefore, Deren does not require the

_____

incorporation of the ratification doctrine into the OWBPA.

-2626

decisions

in

to retire early -- a decision obtained by American

violation of the OWBPA.

result could

As

the Forbus court noted, this

______

"encourage egregious

behavior on

the part

employers in forcing certain employees into early

for the economic benefit of the company."

of

retirement

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

reverse the

to comply

district

precludes defendants

with

the OWBPA.10

court's declaration

from raising age

that the

Thus,

we

release

discrimination claims

under the ADEA.

____________________

10.

Our holding

is limited

OWBPA's requirements.

only to

Whether the

waivers that

violate

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.

-2727

2. Ratification of the Employees' Law 100 Waivers

_________________________________________________

Our rejection of

ADEA

the ratification doctrine in

context has implications

for whether, as

the

the district

court s judgment declares, the release bars non-ADEA

claims.

Though cursory mention

judgment motions,

of state law was made

both parties

the question of whether the

to

on

under federal and

Puerto Rico

The district court opinion is unclear as to whether the

release,

despite

the

claims,

nonetheless

claims,

as

employment.

merely

centered their arguments

release, as a whole, was subject

the ratification doctrine

law.

in the summary

well

as

employees'

would

any

invalid

bar their

other

waiver

Puerto

claims

Rico

relating

of

ADEA

Law 100

to their

In reaching a conclusion that it does, the court

stated: "The

result

is the

same under

Puerto Rico

law."

In

Long,
____

problem, explained:

the

Third

Circuit,

facing

the

same

[T]he district court rested

summary judgment as to
finding that the

its grant of

all claims on its

release as a

whole was

voidable and had been ratified . . . .

Our holding,
releases

confined as

invalid under

it is to

ADEA

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.

adequate opportunity to

To ensure

that

the parties

litigate this issue, the

had an

Long court
____

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

-2828

non-ADEA

at 1545.

here.

claims and remanded for further consideration.

We

think the same

While we

prudent approach

express no opinion on

the district court's

remand that issue for

consistent with

our opinion.11

Inc. v.
____

1987)

is warranted

the issue, we vacate

declaration that the release

ADEA claims and

Liberty Mut. Ins. Co.,

____________________

Id.
___

bars non-

further consideration

Cf. Eagle-Picher Industries,

___ ________________________

829 F.2d 227,

246 (1st Cir.

(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

bearing account pursuant to Fed.

into an

R. Civ. P. 67.

interest-

During

the

____________________

11.

As already

ADEA

and Law

statute

of

noted, we affirm

100

claims

limitations.

limitations does not,

the court's dismissal

because they
See
___

infra.
_____

are

barred by
The

for affirming the district court's declaratory judgment.

district

court s declaratory judgment

the

statute

however, provide an independent

had three

of

of

basis
The

parts: (1)

that the release was ratified, (2) that the release precludes
all employment
___
(3) that the
barred.

related claims (including ADEA

employees

On appeal, we

age discrimination claims

must determine if the

declaratory judgment, a final ruling

any

claims), and
are time-

trial court's

that is res judicata in

future litigation concerning this release, is correct in

all respects.

See
___

10A Charles A.

Practice and Procedure,

________________________
judgment is
res

binding on the

judicata in

declared. . . .").
only to the
judgment.

Wright, et

2771

(1983)("A

as

to the

The statute of limitations

third part of the district

despite the fact

declaratory

parties before the court

subsequent proceedings

Therefore, we

al., Federal
_______

must reach the

that the employees

by the limitations period.

-2929

is

and is
matters
relevant

court s declaratory
ratification issue

counterclaim

is barred

pendency

of this action, these funds have been accumulating.

The question

record

issue

reflects that

on summary

appeal.

to their

there exists

proper disposition.

American choose

judgment and

Therefore, we do

however, that

the

remains as

these funds

not

are due

to

determine

on

We note,

to the employees

on

this

raises it

this issue.

a basis for their retention.

district court

to address

neither party

not reach

The

unless

We leave this for

remand

in

manner

consistent with this opinion.

VI.
VI.
___

Statutes of Limitations
Statutes of Limitations
_______________________

The

judgment

on

district

the

ground

court

that

granted

the

American

applicable

summary

limitations

periods

barred

affirm as

all

to the

of the

employees'

federal claims,

four of the employees' Law 100

counterclaims.

although we clarify

We

that

claims were not barred by the

statute of limitations.

1. The ADEA Claims

__________________

In

employment

"deferral states"

discrimination

(states

laws)

such

which have

as

Puerto

enacted

Rico,

employees must file charges of unlawful age discrimination in

employment with the

EEOC within 300 days

unlawful

practice occurred."

contends

that the employees filed

and the

EEOC outside the

29 U.S.C.

"after the alleged

626(d).

American

their claims with the ADU

300-day time limit imposed

by the

-3030

ADEA.

We agree.

To

determine

the

timeliness

employee's complaint, we must specifically

of

the

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:

termination

when

reservations

retire with enhanced benefits

American

operations

eliminated

in

the

San Juan.

In

or face

cargo

Vega v.
____

and

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

constructive

plaintiff must
nothing more
subterfuge
desire to
ranks

show that

the offer

than a charade,
disguising

purge the

because

of

plaintiff who has

offer

discharge,

was

that is, a

the

employer's

plaintiff from
his age.

the
. [A]

accepted an employer's

to retire can be said to have been

constructively discharged when

presented was, at

the offer

rock bottom, a

choice

between early retirement with benefits or

discharge without benefits . . . .

Id. at 480
___

(citations and internal quotations

the VERP was

a charade, then American

the employees by providing them

in

an

early

employees.

retirement

As

the

discriminated against

offered

only

discriminatory

to

older

act,

this

constructive discharge triggered the limitations period.

-3131

If

no choice but to participate

program

alleged

omitted).

See
___

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

case).

It follows

that,

at

statutes

began to run when each

All the employees accepted the

to

filing

their

rule in

the latest,

the

Title VII

applicable

employee accepted the VERP.

VERP more than 300 days prior

administrative

claims.12

Therefore,

the

contrary

are

employees claims are time-barred.

The

flawed.

The

employees'

arguments

to

the

employees first argue that the

____________________

statute did not

12.

The

defendants/employees have

"Summary of
election

Relevant Dates"

and filing

periods.

that set

dates for

American has

provided a
forth the

calculating the

not disputed

table titled
applicable
limitations

the accuracy

of these

dates.

VERP
VERP

ADU
ADU

Days
Days

Employee
Employee

Accepted
Accepted

Filing
Filing

Post VERP
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

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

Mattos

Zequiera-Julia

12/13/94

10/27/95

317

Lopez-Garcia

11/10/94

11/15/95

370

-3232

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

discrimination,

was

not

when

expired one year later.

was

the denial

257-58.

Here,

his

actual

due

to alleged

employment

race

contract

Because the allegedly unlawful

of tenure,

merely the "inevitable

and thus did

denied tenure

the termination date

consequence" of prior

itself was

discrimination

not trigger the statute of limitations.

the employees' job termination

act

Id. at
___

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

prima

facie

age

discrimination claim does not necessarily require replacement

by a younger worker.

F.3d 712, 719

when

an

See Sanchez
___ _______

n.7 (1st Cir. 1994) (citing

employer

implements

[employee] may demonstrate

treat age neutrally or that

the

v. Puerto Rico Oil Co., 37

___________________

same position."

Instead,

reduction-in-force,

either that the employer

"the

did not

younger persons were retained in

Hildalgo
________

Agencies, Inc., 120 F.3d

_______________

quotations omitted).

cases).

v.

Overseas Condado Ins.

_______________________

328, 333 (1st

Cir. 1997)(internal

We have stated categorically:

-3333

"[W]hen
been

an employee

hurt

and

also

knows

that he

has

that

his

knows

employer has inflicted the injury, it

fair

to

begin

the

countdown

is

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,

pressured

by

into

the

time

accepting

sufficient information to

the

employees

early

were

retirement,

allegedly

they

bring their discrimination

had

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

equitable estoppel

claims.13

contend

and equitable

that

the

doctrines

tolling should

of

save their

We reject the application of these doctrines here.

____________________

13.

The

ADEA

filing

period

is

akin

to

statute

limitations and thus, subject to equitable modification.

Mercado-Garcia v. Ponce Federal Bank,
______________
__________________

of
See
___

979 F.2d 890, 895 (1st

Cir. 1992).

-3434

Equitable estoppel

is invoked when an

employee is

aware

due

of his ADEA rights, but does

to his reasonable

not make a timely filing

reliance on his

employer's deceptive

conduct.

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

____
____________________________

752 (1st

Cir. 1988).

such conduct

same

here.

The employees

Rather, they

events that gave

have failed

to allege

have simply parroted

rise to their

the

underlying claim: that

American misled them as to the reason for the VERP.

There is

no

to delay

evidence

that

American caused

the

employees

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

into

believing

commence

litigation."

F.2d 57, 60 (2d

warranted.

that it

was

not

necessary for

[them]

to

Dillman v. Combustion Eng., Inc., 784

_______
_____________________

Cir. 1986).

Thus, equitable estoppel is not

Equitable tolling is appropriate when the plaintiff

demonstrates "excusable

Kale, 861
____

F.2d at

however, if an

of his or

752.

Equitable

her ADEA

his ADEA rights,

fact there is

rights.

Id.
___

not apply,

constructively aware

at 753.

his rights if

statutory rights.

tolling does

employee is actually or

actual knowledge of

the

ignorance" of his

An employee

he "learns or is

even if he becomes only

a statute outlawing

has

told of

generally aware of

age discrimination."

Id.
___

In

election

this

case,

each

employee

signed

the

VERP

form, which contained a paragraph attesting that he

-3535

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.

actual

knowledge of

their ADEA

Therefore, the employees had

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

department

earlier

claim

far

agents"

would remain

claims.

In

and

in Puerto

light of

that their "excusable"

longer

than

untenable.14

announced

300

days

that

Rico despite

these facts,

the

American's

the employees'

ignorance caused them

to

pursue

cargo

their

to wait

claims

is

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.
____________
employees

v.

have,

Evans,
_____
however,

431

U.S. 553,

failed

558

properly

(1977).
to

allege

The
any

factual basis for finding an act of discrimination within the

limitations

period.

This claim

of law.

-3636

therefore fails as a matter

Law 100 forbids

of

P.R.

723.

several

adverse employment actions based on

protected characteristics,

Laws Ann. tit.

29,

Under substantive

for civil

5298

including age.

(1985); Sanchez,
_______

Puerto Rico law

liability based on

the aggrieved person

tit. 31,

146

had knowledge thereof."

al., 121 P.R. Dec. 347,

___

See
___

37 F.2d at

generally, actions

fault commence "from

(1991); Rodriguez v.
_________

any one

the time

P.R. Laws Ann.

Nazario De Ferrer et
_____________________

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.

that the one

the

1981), the Supreme Court of

Puerto Rico held

year statute of limitations in

Article 1868 of

Puerto Rico Civil Code applied to

Law 100 claims.

ADEA claims, a cause of action under Law

employee becomes

termination

aware of

notice.15

his injury

Like

100 accrues when an

through receipt of

See Rodriguez, P.R. Offic. Trans. No.

___ _________

____________________

15.

The

(1997)
under

employees

cite

for the proposition

Law

employee

100 begins
was

to

employed.

asserting that the

sexual harassment
formal

Sanchez v.
_______

A.E.E.,
______

that the statute

run from

the

American

contests

opinion, and

atmosphere,

thus, has

was

day that

and persistent

issued

without
value.

opinion of the

a
We

U.S. Ct. of App. 1st Cir.

Rule 30.7, 28 U.S.C.A. (West 1997):

Whenever an

an

this reading,

no precedential

direct the employees' attention to

J.T.S. 45

of limitations

last

case dealt with a hostile

work

97

Supreme Court

of Puerto

Rico

is

cited in

does not appear

official,
thereof

a brief

in the bound

certified

or

and oral

argument which

volumes in English, an
stipulated

with three conformed copies

translation

shall be filed.

-3737

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

constructive

law).

Therefore,

discharge,

retire triggers

the

the Law 100

date

in

the

the

context

employee

limitation period.

of

elects to

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'

not time-barred; they fail on the merits

Law 100

claims are

as a matter of law.

To survive summary judgment, an employee must submit at least

some evidence

find an

upon which

employer

guilty

a jury

of

could properly

age discrimination.

proceed to

See
___

De
__

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

_______
_______________________________

(1st

Cir. 1988)

(affirming

complaint

for lack

remaining

four

competent

evidence demonstrating

age

of

summary

individually to

they suffered

rely wholly

evidence).

employees,

discrimination.

judgment

the

These

With

record

is

Law

100

respect

to

the

devoid

of

any
___

that they were

four

employees

submit even sworn affidavits

age discrimination.

on the

on

Rather,

general allegations

victims of

have

failed

attesting that

they appear

contained in

to

their

____________________

The

employees have

decline their

not

complied with

invitation to find

that the

Puerto Rico has overruled Rodriguez.

_________

-3838

this rule.

Thus, we

Supreme Court of

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

ground).

VIII.
VIII.
_____

sufficient

In conclusion,

the OWBPA

ratify a waiver

We therefore

court's judgment

benefits

that failed to

reverse that portion

declaring that the

ratified

vacate and remand

the issue

that the

release violated

and that the employees' retention of benefits does

not act to

OWBPA.

we hold

the release

of the

the

district

employees' retention of

their ADEA

to the district court

of whether the

affirm the district

of

comply with

claims.

We

to further consider

release bars non-ADEA claims.

We

court's entry of summary judgment on the

employees' counterclaims.

Affirmed in part; reversed in part; vacated and

___________________________________________________

remanded in part.
_________________

No costs.

-3939