# United States Court of Appeals

For the First Circuit

No. 01-1914

COURTNEY MELANSON,

Plaintiff, Appellant,

v.

BROWNING-FERRIS INDUSTRIES, INC. and ALLIED WASTE, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge ]

Before

Selya, Circuit Judge

,

Campbell, Senior Circuit Judge

,

and Lynch, Circuit Judge

.

Shannon Liss-Riordan with whom Harol d L. Lichten and Pyle, Rome,

Lichten & Ehrenberg, P.C. were on brief for appellant.

Andrew C. Pickett with whom Laurie J. Hurtt and Jackson Lewis

Schnitzler & Krupman were on brief for appellees.

February 19,20021 BFI and Allied Waste merged in late 1999. Although some of

the events described occurred prior to the merger, we refer to

both entities throughout as the Company.

-3- CAMPBELL, Senior Circuit Judge

. In October 2000, Courtney

Melanson filed an action in the distr ict court under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq.

, against her

former employer, Browning Ferris Industries, Inc . and Allied Waste,

Inc. (the "Company"). 1

Melanson alleged that she had been subject to sexual

harassment while employed by the Company and that she had been laid off

in retaliation for her complaints of harassment. The Company defended

on the ground that, in consideration of her receipt of severance pay,

Melanson had executed a release waiving her right to sue and hence this

action was barre d. Asserting that no genuine issues of material fact

existed as to the validity of the release, the Company moved for

summary judgment. Melanson responded that it could not be determined

on the summary judgment record that the release effectively waived her

statutory right to bri ng this suit. The district court disagreed and

granted the Company’s motion.

While there is no case in this circuit deal ing explicitly

with an employee’s release of Title VII rights in similar

circumstances, our precedent leaves little room for doubt that such a

release, like a release of other federal statutorily-created rights,

must be knowing and voluntary, as evidenced by the totality of the2 Of course, an employee may not waive a claim pursuant to

the Age Discrimination and Empl oyment Act, 29 U.S.C. § 621 e t

seq.

, if the release does not also satisfy the stringent demands

set fo rth by Congress in the Older Workers Benefit Protection

Act. 29 U.S.C. § 262(f)(1); O ubre v. Entergy Operations, Inc.

, 522 U.S. 422, 426 (1998).

-4- circumstances, and that, if it is, the terms of the release will

ordinarily be given their legal effect. R ivera-Flores v. BristolMeyers Squibb Caribbean , 112 F.3d 9, 11 (1st Cir. 1997). 2 Our conclusion

that the application of a release to a Title VII claim is governed by

the same principles as apply to other federal statutory claims is

supported by the Supreme Court’s statement in Alexa nder v. GardnerDenver Co.

, 41 5 U.S. 36, 51 (1974), that "presumably an employee may

waive his cause of action under Title VII as part of a voluntary

settlement." It is also supported by the case law from our sister

circuits, s ee, e.g.

, Bormann v. A T&T , 875 F.2d 399, 402 (2d Cir. 1989);

Stroman v. W. Coast Grocery Co.

, 884 F.2d 458, 461 (9th Cir. 1989);

Rogers v. Gen. Elec. Co.

, 781 F.2d 452, 454 (5th Cir. 1986). In the

present case, both the ter ms and the circumstances of the release in

question indicate that Melanson’s release of her Title VII rights was

knowing and voluntar y. Melanson points to no competent evidence from

which a trier of fact could reasonably conclude otherwise. We affirm.

I.

Melanson was a junior in high school when, in April 1997, she

began working part-time for the Company as a customer service-5-

representative. Upon graduating from high school in May 1998, she

became a full-time, at-will employee. Melanson alleges that,

th roughout her tenure at the Company, she was subject to repeated and

unwanted sexual advances by her immediate supervisor. While Melanson

did not re port the harassment, Melanson’s then-boyfriend and Company

employee, Andre Nagy, brought it to the attention of management in May

1999. Immediately following the disclosure, Melanson requested a

stress-related leave of absence from work. During her leave, Melanson

contacted an attorney about the possibility of an employment

discrimination suit against the Company. She spoke briefly with the

attorney on the p hone, but never attended an appointment they

scheduled. Upon her return to the Company in September 1999, Melanson

was assi gned to a different office location than her alleged harasser.

Meanwhile, Browning Ferris was negotia ting a merger with

Allied Waste, Inc. The merger, according to the Company, resulted in

the need to downsize its workforce. On October 1, 1999, Jack Manning,

the general manager of the Company, notified Melanson that she was

being laid off . Manning informed Melanson that the severance package,

which included two weeks of pay for every year of continuous employment

with the Company, would be sent to her for her review. Melanson

received the original severance package, including a benefits

calculation form and a release, on October 9, 1999. She immediately-6-

contacted Manning via e-mail to complain that the benefits calculation

was erroneous.

As you and I discussed on Friday October 1st, you

agreed t o lay me off with a severance package of

two weeks for every YEAR O F SERVICE with BFI. I

received a package in the mail as you said I

would, and it said my date of hire was 4-1-98.

This is wrong. My start date with BFI was 4-1-

97. Granted, I was not hired at full time, but

nowhere do es it say that I had to work there full

time. It reads exactly "BENEFIT FORMULA: Two

weeks of weekly BASE SALARY or BASE WAGES per

continuous Year of Service.

. . ." Instead of

receivin g 2 weeks at 400, I should be receiving

4 weeks at 400.

Manning responded that a new severance package, reflecting

a start date of April 1, 1997, would be sent to her. After a

frustrating delay of almost two months, during which Melanson

threatened to fil e a "formal complaint," she received a new severance

package with the same error. Although it was not company policy to

provide severance pa y for years of part-time work, Manning instructed

Melanson to correct the start date and to alter the calculation amount

from $800 to $1,600 with a note to the processor to contact Manning

about the changes. Melanson complied, signing and dating the benefit

calculation form on Decemb er 7, 1999. The previous day, Melanson had

read and signed the two page release included in the severance package.

The release stated among other things, that the employee "knowingly

and voluntarily releases and discharges forever [the Company] from any

and all

. . . claims, demands, actions and causes of action

. . .3 In pertinent part the release provided:

A. Employee

. . . knowingly and voluntarily releases

and discharges forever [the Company] from any and

all debts, claims, demands, actions and causes of

action

. . . arising out of or related in any way

to the Employee’s employment . . . .

B.

. . . Employee knowingly and voluntarily

releases any claims arising under the C ivil

Rights Acts of 1866, 1871, 1964 and 1991 . . . ;

state employment statutes including but not

limited to wage payments statutes, employment

discrimination statutes . . . .

C. Emp loyee understands and agrees that by signing

this Release, Employee i s giving up any and all

claims arising out of or relating in any w a y to

Employee’s employment or termination thereof . .

.

D. The Release is given in exchange for any benefits

Employee will receive . . . [which] Employee

agrees are sufficient consideration for the

Release.

E. Employee acknowledges and agrees that he/she has

been given 45 days to cons ider this Release,

understands its terms, a nd is signing it

knowingly and voluntarily.

-7- arising out of or related in any way to the employee’s

employment. . . .," including explicitly those arising under the Civil

Rights Act of 1964, of which Title VII is a part, and any state

employment statutes including "employment discrimination statutes." 3

Melan son returned these documents, including the executed release, to

the Company and received in return a $1,6 00 severance check which she

said she needed to relieve her financial burdens and apparently

thereafter utilized in some fashion.

Approximately six months following her discharge, Melanson

again contacted an attorney regarding her claims of sexual harassment4 The six factors are: (1) plaintiff’s education and

business expe rience; (2) the respective roles of the employer

and employee in the determining the provisions of the waiver;

(3) the clarity of the agreement; (4) the time plaintiff had to

study the agreement; (5) whether plaintiff had indepen dent

advice, such as that of counsel; and (6) the consideration for

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

-8- and her subsequent termination from the Company. To clear the way for

a lawsuit, Melanson attempted to return h er severance pay, an offer

that was r ejected by the Company. This suit followed. Recognizing

that the effec t and validity of the release were potentially

dispositive, the parties agreed to bifurcate the litigation to resolve

the enforceability of the release before spending their resources on

protracted discovery on th e merits of Melanson’s sexual harassment

allegations.

II.

Waiver and releas es are affirmative defenses on which the

employer bears the burden. Fed. R. Civ. P. 8(c). It is incumbent upon

the employer to establish that the release was knowing and voluntary.

Smart v. Gillette Co. Long-Term Disability Plan , 70 F.3d 173, 181 (1st

Cir. 1995). In determining the validity of a release, this court has

adopted a "totality of the circumstances" approach. I d. To aid in

this inquiry, we have looked to a non-exclusive set of six factors. 4

It bears repeating that "[g]enerally, no single fact or circumstances

is entitled to talismanic significance on the question of waiver." Id.

It is not necessary that each be satisfied before a release can be-9-

en forced. The essential question is whether, in the totality of the

circumstan ces, the individual's waiver of her right can be

characterized as "knowing and voluntary."

We review the district court’s grant of summary judgment d e

novo

. L ennon v. Rubin

, 166 F.3d 6, 8 (1st Cir. 1999). Summary

judgment is appropriate only where "the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine 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). Once a defendant moves for

summary judgment and places in issue the question of whether the

plaintiff's case is supported by sufficient evidence, the plaintiff

must establish the existence of a factual controversy that is both

genuine and material. G arside v. O sco Drug, Inc. , 895 F.2d 46, 48 (1st

Cir. 1990). To carry this burden, the plaintiff must "affirmatively

point to specific facts that demonstrate the existence of an authentic

dispute." McCarthy v. N .W. Airlines, Inc. , 56 F.3d 313, 315 (1st Cir.

1995).

Melanson claims that the record reflects a significant

factual dispute regarding whether she knowingly and intentionally

released her claims against t he Company. Melanson says she was under

financial stress and was a young, depressed, single mother with a

limited education, and without i ndependent advice when she signed and-10-

returned the release. Further, she contends that she lacked the

business acumen to negotiate the terms of the release; that the release

lacked clarity; and finally that the consideration for the release was

inadequate. In essence, Melanson attempts to implicate all six factors

in her argument.

In her affidavit befor e the district court, Melanson

outlined, in some de tail, a history of depression and treatment for

bulimia. Melanson did not, however, present competent medical evidence

indicating that these conditions would cause her to lack the capacity

to make a knowing and voluntary waiver of her rights. Rivera-Flores

,

112 F.3d at 12; s ee also Morais v. Cent. Beverage Corp. Union

Employee’s Supplemental Ret. Plan , 167 F.3d 709, 714 (1st Cir. 1999).

We made clear in Rivera-Flores that an incapacity to knowingly and

voluntarily execute a release will not be inferred simply from the

showing, s tanding alone, that the party suffered from some psychiatric

disorder. R ivera-Flores

, 112 F.3d at 12. Nor may incapacity or

duress, without more, be inferred from merely the emotional and

financial stress associated with loss of a job. To hold otherwise

wo uld be to make it virtually impossible for employers and employees to

enter into binding settlements of employment disputes occasioned by job

losses, lay-offs and the like. The record lacks competent evidence

that Melanson was without the capacity to make a knowing and voluntary

waiver of her Title VII rights at the time she executed the release.5 Melanson’s assertion in her affidavit that when she saw the

release she "did not have time to think about it" does not

unde rcut her deposition testimony that she read the release

prior to signing it. On appeal, Melanson takes issue with the

district court’s decision to disregard portions of her affidavit

"which clearly contradicted her earlier deposition testimony."

Melanson v. Browning Ferris Indus., Inc.

, No. 00-12102, 2001 WL

1094910 at *2 (D. Mass. Oct. 25, 2001). A party may not create

an issue of fact by submitting an affidavit in opposition to a

summary judgment motion that clearly contradicts the affiant's

previous deposition testimony. M orales v. A.C. Orssleff’s EFTF

, 246 F.3d 32, 35 (1st Cir. 2001); Colantuoni v. Alfred Calcagni

& Sons, Inc. , 44 F.3d 1, 5 (1st Cir. 1994). The district court

failed to expound on what it deemed "clear contradictions" thus

it is difficult to ascertain what contradictory factors were

involved in its evaluation but even considered in its entirety,

the affidavit contains no information that creates a genuine

issue of material fact as to the knowing and voluntary nature of

Melanson’s release.

-11-

Nor do the other factors argued by Melanson demonstrate a

genuine factual issue concerning whether the release was knowing or

voluntary. Melanson was not deficient in education. To the contrary,

she graduated from high school with honors and was enrolled in college

courses. The language in the release, which Melanson admitted to

reading prior to signing, is well within a lay person’s comprehension. 5

It expressly discharges the Company from all claims and causes of

action arising out of or relating to Melanson’s employment and

termination; it specifically releases any claims under the Civil Rights

Act of 1964, to which Title VII belongs, and under state empl oyment

discri mination statutes. Morais , 167 F.3d at 714 (upholding a clearly

worded release signed by plaintiff with an eighth grade education); see-12-

note 3, supra . Melanson’s ability to read and understand that she was

releasing all potential claims is n ot disputed. Her actual complaint

se ems not to be that she did not know she was releasing future claims

of the type she now pursues, but t hat she "should be able to break the

release" b ecause "the $1,600 I had received in severance pay was not

nearly adequate to compensate me for the distress I had suffered."

Me lanson, moreover, was not rushed into signing the release.

She had approximately two months to review the release and seek

inde pendent advice if she so wished. During this time, Melanson could

have contacted the same attorney she had spoken to just months earlier

to discuss her sexual harassment suit. The Company did not set a

deadline for the return of the severance package and it neither

encouraged nor discouraged Melanson from obtaining outside counsel.

Finally, the consideration for the release, while not large when

compared to the potential damages in a s uccessful sexual harassment

case, nonetheless provided Melanson, an at-will employee, with benefits

that the Company was not obligated otherwise to provide. S mart

, 70

F.3d at 182.

As we can discern no genuine issue of material fact regarding

whether Melanson made a knowing and voluntary release of her rights, we

agr ee with the district court that the release is valid and enforceable

in accordance with its terms.

Affirmed

. Costs to appellees

.-13-