United States Court of Appeals,

Fifth Circuit.

No. 94-30264

Summary Calendar.

Rolf WITTORF and Waltraut Johanna Schneider Wittorf, Plaintiffs-Appellants,

v.

SHELL OIL COMPANY and Shell Offshore, Inc., Defendants-Appellees.

Nov. 16, 1994.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Plaintiffs-Appellants appeal the district court's granting of Defendants-Appellees' motion for

summary judgment . They challenge the court's finding that Plaintiff-Appellant Rolf Wittorf

("Wittorf") knowingly and voluntarily waived all claims against Defendants-Appellees and ratified the

release he signed by retaining the enhanced severance benefits he was paid. Mrs. Wittorf challenges

the court's finding that she does not have a valid claim of damages to her community property interest

in her husband's severance plan due to the fact that her husband's claim is not valid. We affirm.

FACTS AND PROCEDURAL HISTORY

Wittorf was employed by Shell Offshore, Inc. ("Shell"), a wholly owned subsidiary of Shell

Oil Company, as a supervisor in the Offshore Construction Shelf Division. In September 1992, Shell

announced that it was reducing the size of its workforce, and that it was offering certain employees

the opportuni ty to voluntarily terminate their employment under the terms of a special severance plan.

By signing a release and waiver of claims, tho se employees who volunteered to terminate would

receive enhanced severance benefits, including three wee ks o f salary for each year of accredited

service, with a minimum of fifteen and a maximum of seventy-eight weeks of salary. The normal

severance benefits provided for only one week of salary for each year of service with no minimum

and a maximum of ten weeks pay.1 The Release and Settlement Agreement provided in pertinent part:

I have had an opportunity to fully consider all aspects of my employment

relationship with the Company. I have also had an opportunity to seek counsel

from anyone I choose and I have been advised in writing to consult with an

attorney, should I desire, prior to signing this Agreement. After full consideration

I represent that I have not asserted and agree that I w ill not assert against the

Company ... any claim or action, of any kind, nature, or character w hatever, w ith

respect to any matter pertaining to or arising from my employment or termination

of employment w ith the Company....

....

... I understand that I may revoke the Agreement for seven (7) days after the date

I sign it, and the Agreement w ill not become enforceable until this seven (7) day

period has expired. Any revocation must be made in w riting.

(Emphasis added). On October 27, 1992, Wittorf was offered t he o ppo rtunity to voluntarily terminate his

employment under the plan. He was provided with a package of severance material at that time. The

materials he received included a Su mmary Plan Description, a Decision Form, a Release and

Settlement Agreement, 1 and a list of all persons and classifications eligible and ineligible for the plan.

On December 14, 1992, Wittorf signed the Decision Form. The option he selected stated in

part:

I hereby volunteer to terminate my employment under the terms of the Plan and receive an Enhanced Special Severance Allowance.

....

I under st and that should I volunteer to terminate my employment ... I must abide by the

conditions of the Plan to qualify for a Separati o n Allowance. These conditions include ...

signing the Release and Settlement Agreement.

On January 28, 1993, he signed the Release and Settlement Agreement and delivered it to Shell, along

with a letter stating his concerns regarding possible employment discrimination and ERISA violations.

His letter further stated that he was considering revoking the Agreement within the seven day period

provided for in the Release and Settlement Agreement. However, he did not revoke within the seven

days.

Ha ving signed the Release and Settlement Agreement, Shell paid Wittorf $47,986.15 in

enhanced severance benefits; $36,000 mo re t han he would have received in normal severance2 927 F.2d 217 (5th Cir.1991).

3 11 F.3d 534 (5th Cir.1993). benefits. It is undisputed that Wittorf would not have otherwise been entitled to receive the enhanced

benefits; such benefits were paid strictly in as consideration for his release of Shell. He never

returned the money to Shell, nor did he make an offer to return the money.

On January 12, 1994, Wittorf and his wife filed suit in state court claiming violations of the

ADEA, the ADA and ERISA, along with similar state law claims. The suit was removed to federal

district court on the basis of federal question and supplemental jurisdiction. Shell subsequently filed

a motion for summary judgment on the basis of the Release and Settlement Agreement and Wittorf's

ratification of it. On April 4, 1994, the district court granted the motion, dismissing all claims.

STANDARD OF REVIEW

Review of a motion for summary judgment is plenary. L odge Hall Music, Inc. v. Waco

Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir.1987). Although review is d e novo, we apply the same

standards governing the district court's determination. Jackson v. Federal Deposit Ins. Corp., 981

F.2d 730, 732 (5th Cir.1992). Summary judgment must be granted if the court determines that "there

is no genuine issue as to any materi al fact and that the moving party is entitled to a judgment as a

matter of law." F ED .R.C IV .P. 56(c).

RELEASE AND SETTLEMENT

Wittorf contends that the district court erred in basing its decision upon this Court's decisions

in Grillet v. Sears, Roebuck & Co. 2 and Wamsley v. Champlin Refining & Chemicals, Inc. 3

.

Specifically, he argues that because he continued to negotiate with Shell after the seven day period

allowed for revoking his promise to release all claims against Shell, the rule of ratification and waiver

espoused in Grillet

and Wamsley should not be extended to this case.

Our review of the record reveals no error in the district court's findings. The Older Workers

Benefit Protecti on Act ("OWBPA") contains very strenuous requirements that m ust be met f

or a

waiver and release to be found knowing and voluntary. See 29 U.S.C. § 626(f)(1)(A)-(H). Neither

party disputes that the OWBPA requirements were met. Wittorf was given more than the requiredforty-five days to consider the Release and Settlement Agreement. The Agreement provided him with

consideration he was not otherwise entitled to receive. It provided a seven day revocation period as

required, of which Wittorf was made aware. Finally, Shell provided Wittorf with a list, by age and

classification, of all individuals eligible and ineligible for participation in the special severance plan.

Even assuming that the Rele ase and Set tlement Agreement was defective because Shell

continued to negotiate with Wittorf beyond the seven day revocation period, the Agreement became

voidable and not void. W

amsley, 11 F.3d at 539. For that reason, we find that W amsley is applicable

in this case. A voidable waiver and release can still be enforced if it is ratified by the employee.

When Wittorf chose to retain and not tender back the enhanced severance benefits paid to

him by Shell in consideration for his promise not to file claims against Shell, he manifested his

intention to be bound by the Release and Settlement, thus making a new promise to abide by Shell's

terms. I d. (citations omitted). It is that promise we can enforce. Therefore, we find that the district

court did not err in find that not only did Wittorf knowingly and volunt arily sign the Release and

Settlement Agreement, but also that he made an enforceable promise to abide by the Agreement when

he accepted the enhanced severance benefits from Shell and did not return them.

NON-EMPLOYEE SPOUSE'S COMMUNITY PROPERTY RIGHTS

Mrs. Wittor f co nt ends that her vested property rights in her husband's severance benefits

cannot be extinguished simply because her husband signed the Release and Settlement Agreement.

She asserts that she did not sign the Agreement, did not ratify the Agreement, nor did she receive any

consideration. As her husband's severance benefits are community property, she cannot waive her

rights without pa rt icipat ing in the Agreement. Therefore, because she did not sign or ratify the

Release and Settlement Agreement, she cannot be held to have vicariously ratified it.

The Louisiana Supreme Court recognizes that because retirement benefits belong to t h e

community, a wife has a right to share in those benefits. See E skine v. Eskine, 518 So.2d 505, 507

(La.1988). Until the community is terminated, however, "either spouse may dispose of community

property unless otherwise provided by law." K eller v. Schilling, 593 So.2d 926, 927 (La.App. 4 Cir.,

1992).Courts in Louisiana have chosen not to recognize a non-employee spouse's right to dictate

how severance benefits are invested or paid. C utting v. Cutting, 625 So.2d 1112, 1121 (La.App. 3

Cir., 1993), writ denied, 631 So.2d 453 (La.1994). "Only if and when the employee spouse decides

to retire will the retirement benefits become payable." Id.

Because Mr. Wittorf was Shell's employee, and not Mrs. W it torf, only he had the right to

decide whether to accept Shell's offer to pay him enhanced severance benefits under the special

severance plan in exchange for his early retirement. Accordingly, only he could sign the Release and

Settlement Agreement. Therefore, we conclude that the district court did not err in finding that Mrs.

Wittorf did not have a valid claim against Shell because she could not partici pate in the special

severance plan offered to her husband by Shell.

CONCLUSION

I n accordance with the reasons articulated above, the judgment of the district cour t is

AFFIRMED.