* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 20, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-50723

Summary Calendar

 

MICHAEL CHEN,

Plaintiff-Counter DefendantAppellant,

versus

APPLIED MATERIALS, INC.,

Defendant-Counter ClaimantAppellee.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. A-02-CV-602

--------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Applied Materials, Inc. (Applied) hired Michael Chen as a

Software Engineer on August 28, 2000. Very shortly thereafter,

Applied discovered problems with his performance, ultimately

leading to his departure on April 29, 2001. Chen participated in

Applied’s Voluntary Separation Plan (VSP), pursuant to which he

signed a general release of claims. In exchange for $33,000
No. 03-50723

-2-

1 Chen also asserts that he was discriminated against based

on age, but he did not include this claim in his complaint.

2 Applied disputes whether its answer was untimely filed,

but this question is irrelevant to resolution of the case.

severance pay, Chen gave up his right to any and all claims,

known and unknown, under Title VII of the Civil Rights Act of

1964. In the face of his explicit and unequivocal release of

claims, Chen nonetheless filed a complaint with the Equal

Employment Opportunity Commission and eventually this lawsuit

alleging discrimination based on race and national origin.1

Chen appeals the district court’s denial of his motion for

summary judgment, its grant of summary judgment to Applied, and

its award of attorney’s fees and costs to Applied. He also makes

a myriad of unsubstantiated and meritless claims with respect to

the judge of the district court. 

Even if Applied’s answer was untimely filed, the district

court did not abuse its discretion in denying Chen’s motion for

summary judgment based on default.2 Cf. In re Dierscheke, 975

F.2d 181, 183 (5th Cir. 1992).

Chen argues that Applied was not entitled to summary

judgment because (1) he signed the release under duress, (2) he

did not receive consideration for the release, (3) the release is

void, and (4) his claims are not covered by the release. First,

Chen’s allegation that he felt he had to sign the release in

order to have a chance at continued employment is insufficient to

establish duress. The release stated in plain language that he
No. 03-50723

-3-

was releasing all claims as a condition of his severance payment,

that he had 45 days to review the release, and that he was

advised to consult an attorney before signing it. See Williams

v. Phillips Petroleum Co., 23 F.3d 930, 935 (5th Cir. 1994). 

Second, Chen’s claim that the money he received was wages, rather

than consideration for the release, is not supported by the

record. The Earnings Statement accompanying the check listed the

money as “VSP Pay,” and Chen has submitted no affidavit or other

competent summary judgment evidence that it was intended as

normal wages. Third, Chen signed and returned the release within

the 45-day limitation, so it is not void. The time spent by

Applied in its inter-office mail delivery is not relevant to

Chen’s date of delivery. Fourth, Chen’s claim of discrimination

in Applied’s refusal to rehire him is based on false promises he

contends were made to him to induce him to sign the release. 

This claim is based on a promise allegedly made before the

release and is therefore prohibited by it. The district court

properly granted summary judgment to Applied based on the

release. 

Applied was entitled to attorney’s fees and costs based on

the release. Applied’s entitlement to the fees and costs comes

from the contractual provision in the release requiring Chen to

pay all attorney’s fees and costs of any suit he brings against

Applied in violation of the release. Thus Chen’s arguments based

on the standards to be used in awarding attorney’s fees in civil
No. 03-50723

-4-

rights lawsuits are inapposite. The district court did not abuse

its discretion in determining the proper amount of the fees. See

Davis v. City of Abbeville, 633 F.2d 1161, 1163 (5th Cir. 1981).

Chen claims for the first time on appeal that the district

court should have recused himself. Requests for recusal not

raised until appeal are waived. See Andrade v. Chojnacki, 338

F.3d 448, 454 (5th Cir. 2003). Chen’s allegations of bias have

no support, and he has not shown plain error.

AFFIRMED.