1

The plaintiffs do not contest that the release

unambiguously provides for a waiver of employment discrimination

claims. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-4374.

Julio N. PUENTES, Carlos Sardina, Raul J. Paredes, Plaintiffs,

Sergio A. Balsinde, Lazaro O. Ginart, Plaintiffs-CounterDefendants-Appellants,

v.

UNITED PARCEL SERVICE INCORPORATED, Defendant-Counter-ClaimantAppellee.

June 20, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-250-CIV-UUB), Ursula Ungaro-Benages,

Judge.

Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit

Judge.

CARNES, Circuit Judge:

The plaintiffs, Lazaro Ginart and Sergio Balsinde, were

terminated from their employment with the defendant, United Parcel

Service, Inc. ("UPS"), after working for the company for fourteen

and fifteen years, respectively. At the time of their

terminations, both plaintiffs were offered substantial severance

packages and the ability to "resign for personal reasons," on the

condition that they execute unambiguous releases waiving all

employment discrimination claims arising out of their

terminations.1 Both plaintiffs executed the releases.

Thereafter, the plaintiffs filed this lawsuit against UPS

alleging that they were unlawfully terminated as a result of
 2

Certification was necessary because another plaintiff was

involved in the suit, but not addressed in the summary judgment,

and because the plaintiffs also presented claims for slander,

which had not been ruled upon by the district court and which are

not relevant to this appeal. 

employment discrimination "on the basis of national origin and/or

race," as part of UPS's ongoing pattern of terminating

management-level Hispanic employees and replacing them with

non-Hispanics. UPS moved for summary judgment, asserting that the

plaintiffs' claims were barred because each had knowingly and

voluntarily executed documents releasing UPS from liability for all

such claims. The district court granted summary judgment on that

basis and certified its judgment pursuant to Rule 54(b). 2 The

plaintiffs appeal from that summary judgment. Because there is a

question of material fact regarding whether the plaintiffs were

given adequate time to review the releases before executing them,

we reverse the judgment of the district court.

DISCUSSION

In reviewing the district court's grant of summary judgment,

this Court must independently apply the same legal standards that

control the district court. Thrasher v. State Farm Fire and Cas.

Co., 734 F.2d 637, 638 (11th Cir.1984). In doing this, we review

the record and the district court's legal conclusions de novo. We

must determine whether disputed issues of fact exist, but we cannot

resolve factual disputes. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249-50, 106 S.Ct. 1505, 1510-11, 91 L.Ed.2d 202 (1986).

All evidence submitted must be viewed in a light most favorable to

the plaintiffs, who oppose the motion. See Matsushita Electric

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 1356, 89 L.Ed.2d 538 (1986).

 When an employee knowingly and voluntarily releases an

employer from liability for Title VII and § 1981 claims with a full

understanding of the terms of the agreement, he is bound by that

agreement. E.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 52

& n. 15, 94 S.Ct. 1011, 1021 & n. 15, 39 L.Ed.2d 147 (1974);

Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 1352 (11th Cir.1983).

However, the waiver of such remedial rights must be closely

scrutinized. Freeman, 700 F.2d at 1352; see also Coventry v.

United States Steel Corp., 856 F.2d 514, 522-23 (3d Cir.1988) ("In

light of the strong policy concerns to eradicate discrimination in

employment, a review of the totality of the circumstances,

considerate of the particular individual who has executed the

release, is also necessary.").

 In determining whether a release was knowingly and

voluntarily executed, courts look to the totality of the

circumstances. Factors that guide a court include:

the plaintiff's education and business experience; the amount

of time the plaintiff considered the agreement before signing

it; the clarity of the agreement; the plaintiff's

opportunity to consult with an attorney; the employer's

encouragement or discouragement of consultation with an

attorney; and the consideration given in exchange for the

waiver when compared with the benefits to which the employee

was already entitled.

Beadle v. City of Tampa, 42 F.3d 633, 635 (11th Cir.), cert. denied

--- U.S. ----, 115 S.Ct. 2600, 132 L.Ed.2d 846 (1995); see also

Gormin v. Brown-Forman Corp., 963 F.2d 323, 327 (11th Cir.1992).

The plaintiffs do not seriously contest that they each had

sufficient business experience to evaluate the releases they were

asked to sign, nor do they contest the clarity of the release
language. Moreover, we agree with the district court that the

consideration given in exchange for the waiver exceeds the benefits

to which the plaintiffs were already entitled. That leaves as the

plaintiffs' principal assertions that they were not given adequate

time to consider the agreement, and that they were not given a fair

opportunity to consult an attorney.

 There is no bright-line test for determining what is a

sufficient amount of time for an employee to consider a release and

consult with an attorney before the employee is considered to have

signed the release knowingly and voluntarily. See Carroll v.

Primerica Fin. Servs. Ins. Mktg., 811 F.Supp. 1558, 1566

(N.D.Ga.1992) (holding that "there is a question as to whether Holt

was given three full days or less than one day to sign her

release," and that "[i]f she was given only one, then there is

indeed a genuine issue as to whether she was given sufficient

time"); E.E.O.C. v. American Express Publishing. Corp., 681

F.Supp. 216, 220 (S.D.N.Y.1988) (finding that "[t]hree days, while

not conclusive as to involuntariness, is sufficiently short to

create a question on the subject [for summary judgment purposes]");

Constant v. Continental Tel. Co., 745 F.Supp. 1374, 1382

(C.D.Ill.1990) (finding that time period between the Friday upon

which the employee received the release form and the Tuesday by

which he was required to sign it was adequate time, in light of

fact that during that "relatively short time," the employee was

able to obtain legal advice with which he was apparently

satisfied); Mullen v. New Jersey Steel Corp., 733 F.Supp. 1534,

1544-45 (D.N.J.1990) (finding that employee's signing of release
was knowing and voluntary when he had fourteen days to consider the

release); Pears v. Spang, 718 F.Supp. 441, 446 (W.D.Pa.1989)

(finding that the fact that the employee signed the release within

"several days" did not make her signing unknowing or involuntary,

in light of fact that the employer had not set a deadline by which

the employee was required to sign the release). However, the cases

seem to indicate, and we conclude, that absent some reason for

urgency, twenty-four hours is too short a period.

 In this case, plaintiffs have given sworn testimony that they

were only given twenty-four hours to decide whether to sign the

releases, and that they understood that the offer would not be

valid longer than that. UPS denies that it imposed a twenty-four

hour time limitation upon the plaintiffs, but that is an issue to

be decided by a jury. Plaintiff Ginart testified in his deposition

that Saunders, the UPS manager terminating him, said, "I will give

you 24 hours to make your decision and I will be waiting for your

call as to whether or not you are going to be signing the release

form or not." Saunders testified to the contrary, that he placed

no time limit on Ginart, that he did not schedule another meeting

or set any deadline when he and Ginart concluded their first

discussion of the severance package, and that Ginart took all

initiative to call him up the following morning to say that he had

decided to sign the release form.

Likewise, Plaintiff Balsinde testified that Stevens, the UPS

manager terminating him, told him to contact him the following

morning to let him know whether he would sign the release form.

Stevens testified that he did tell Balsinde that "if he wanted me
involved with anything with regards to his resignation, that I

would be leaving by the end of the next day and that he could call

me, but he was free to call us any time that he wanted to call us."

If in fact the plaintiffs were only given twenty-four hours to

decide whether to sign the releases, that was insufficient time.

It is undisputed that neither plaintiff consulted with an attorney

before signing the releases, and a twenty-four hour time limitation

would have substantially impeded their ability to do so. Indeed,

when pressed at oral argument, UPS's attorney could offer no

justification for such a short time period.

Viewing the evidence in the light most favorable to the

plaintiffs, as we must, see Matsushita Electric, 475 U.S. at 587,

106 S.Ct. at 1356, means that "what we state as "facts' in this

opinion for purposes of reviewing the rulings on the summary

judgment motions may not be the actual facts. They are however,

the facts for present purposes." Swint v. City of Wadley, 51 F.3d

988, 992 (11th Cir.1995). With those caveats, what we must

consider as the facts for present purposes are that the plaintiffs

were given only twenty-four hours to decide whether they would sign

the releases and accept the severance packages. Additionally, the

plaintiffs had no role in deciding the terms of the releases. None

of the terms of the release were negotiated. The plaintiffs were

simply handed a printed form. Ginart requested to take a copy of

the release form home overnight to think about it, and was told

that he could not take the form out of the UPS office, because it

was a UPS document and UPS property. There is no good reason why

UPS could not provide Ginart a copy of the release form that it was
asking him to voluntarily and knowingly sign. That, like a 24-hour

time constraint, could have been motivated by a desire to impede

the employee's ability to consult with an attorney.

These factors, particularly when inferences are drawn in the

plaintiffs' favor, as is required on a motion for summary

judgement, raise a genuine issue of material fact about whether the

plaintiffs voluntarily and knowingly executed the releases. In

other words, the evidence in this case is such that a factfinder

could find that the plaintiffs did not knowingly and voluntarily

execute the releases. Accordingly, that issue may not be resolved

by summary judgment. See Fed.R.Civ.P. 56.

CONCLUSION

The judgment of the district court is REVERSED, and the case

REMANDED for further proceedings consistent with this opinion.