WELLS v. XPEDX, 319 Fed.Appx. 798 (11th Cir. 2009)

No. 07-16014.United States Court of Appeals, Eleventh Circuit.
March 16, 2009.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 05-02193-CV-T-EAJ.

Before BARKETT and FAY Circuit Judges, and TRAGER,[*]
District Judge.

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PER CURIAM:

Joseph Wells appeals an adverse summary judgment in favor of his former employer Xpedx, a division of International Paper Corporation, on his claim for wrongful termination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.01 et seq., the Federal Whistleblower Act, 42 U.S.C. § 2000e-3, [1] and the Florida Whistleblower Act, Fla. Stat. § 448.102(3). The summary judgement was based on the district court’s finding that Wells had executed a valid agreement to release all claims against Xpedx in exchange for a severance package and, alternatively, that Wells had failed as a matter of law to establish a prima facie case of age discrimination and could not establish that Xpedex’s proffered nondiscriminatory reasons for his dismissal were pretextual.[2] The district court also denied Wells leave to amend his complaint and his summary judgment response to cite to the correct statute corresponding to his whistleblower claim[3] and declined to exercise supplemental jurisdiction over his Florida Whistleblower Act claim. Wells appeals each of these rulings.[4]

In exchange for a generous severance package, Wells signed a Termination Agreement that included a provision entitled “Release of Claims” and another entitled “Covenant Not to Sue.” The “Release of Claims” section provided that Wells

waives and releases the Company from any and all claims and demands Employee may have based on Employee’s employment with the Company or the termination of that employment. This waiver and release includes, but is not limited to, a permanent and irrevocable waiver and release of any and all rights or claims under the Age Discrimination in Employment Act, . . . and any other federal, state or local laws, ordinances, or regulations prohibiting employment discrimination or regulating the employment relationship or the terms and conditions of employment. This release also includes an irrevocable waiver and release of any claims for breach of express or implied contract, including any

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contract of employment entered into prior to the date of this Agreement, and any other claims under any federal, state, or local statutory or common law relating in any way to the employment relationship. . . .

Pursuant to the “Covenant Not to Sue,” Wells expressly agreed not to “file a law-suit with respect to any matter released in [the Release of Claims section] of this Agreement[.]”

When a termination agreement contains a waiver of the employee’s age discrimination claim, the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. § 626(f), requires that the employer establish that the waiver is “knowing and voluntary.” Id. § 626(f)(3); Burlison v. McDonald’s Corp., 455 F.3d 1242, 1245 (11th Cir. 2006). There is no dispute that Xpedex has met five of the eight statutory factors required to establish the validity of the waiver set forth in § 626(f)(1)(A)-(H)[5] and, although Wells argues otherwise, we find that the remaining three factors have also been satisfied.

First, because Wells testified unequivocally that he was the only one terminated, it is undisputed that Wells’s termination was not part of a group “termination program” or a reduction in force, and therefore Wells was not statutorily entitled to information regarding the other employees eligible for the program. See 29 C.F.R. § 1625.22(f)(1)(iii)(B) (“Typically, an involuntary termination program is a standardized formula or package of benefits that is available to two or more employees. . . .”) (emphasis added); 29 U.S.C. § 626(f)(1)(H). Although Wells argues that his Termination Agreement included a standardized package of benefits and that there is no requirement that the “two or more” employees be terminated at the same time, Wells has offered no evidence that any other employees were terminated at any time as part of his program.

Second, Wells argues that the Termination Agreement was not “written in a manner calculated to be understood by [the employee signing the release].” 29 U.S.C. § 626(f)(1)(A). We disagree. Xpedx has established that Wells was an educated business professional experienced in negotiating large, multi-million dollar contracts with large retailers. In addition, our own review of the “Release of Claims” and “Covenant Not to Sue” provisions

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reveals that they were written in plain English and would be readily understandable by someone in Wells’s position. Wells has offered no specific facts that raise a genuine issue for trial, see Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and we therefore find that Xpedx has demonstrated that the Termination Agreement was written in a manner calculated to be understood by Wells.

Third, Wells argues that because he never actually received advice from an attorney about the release, the factor requiring that he be “advised in writing to consult with an attorney prior to executing the agreement,”29 U.S.C. § 626(f)(1)(E), has not been met. We find no merit to Wells’s argument on this issue, because the record is undisputed that Wells was advised in writing to consult with an attorney. That he never spoke to an attorney about the release is immaterial.

We note also that the parties do not dispute the absence of any non-statutory factors relevant to whether Wells knowingly and voluntarily waived his rights. See Griffin v. Kraft Gen. Foods, Inc., 62 F.3d 3 (38, 373-74 (11th Cir. 1995) Gormin v. Brown-Forman Corp., 963 F.2d 323, 327 (11th Cir. 1992). For example, Wells has not alleged fraud, duress, or coercion. See Griffin, 62 F.3d at 373.

Finally, we agree with Xpedx that the evidence indicating that Wells knowingly and voluntarily waived his ADEA claims also supports a finding that he knowingly and voluntarily waived his FCRA and Federal Whistleblower claims.[6] See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n. 15, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Blaekwell v. Cole Taylor Bank, 152 F.3d 666, 673 (7th Cir. 1998). We therefore decline to address the remainder of Wells’s arguments. The judgment of the district court is

AFFIRMED.