Forbus v. Sears Roebuck & Co., Nos. 91-7358

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore COX and DUBINA, Circuit Judges and GODBOLD; DUBINA; COX; Scalia's
Citation958 F.2d 1036
Decision Date20 April 1992
Docket NumberNos. 91-7358,91-7479
Parties58 Fair Empl.Prac.Cas. (BNA) 1019, 58 Empl. Prac. Dec. P 41,450, 60 USLW 2673 Vernal FORBUS, Earl J. Beacham, Rudolph Caddell, Frank R. Davis, Vernie Rhodes, Jr., Plaintiffs-Appellees, v. SEARS ROEBUCK & COMPANY, Defendant-Appellant. Vernal FORBUS, Earl J. Beacham, Rudolph Caddell, Frank R. Davis, Vernie Rhodes, Jr., Plaintiffs-Appellants, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.

Page 1036

958 F.2d 1036
58 Fair Empl.Prac.Cas. (BNA) 1019,
58 Empl. Prac. Dec. P 41,450, 60 USLW 2673
Vernal FORBUS, Earl J. Beacham, Rudolph Caddell, Frank R.
Davis, Vernie Rhodes, Jr., Plaintiffs-Appellees,
v.
SEARS ROEBUCK & COMPANY, Defendant-Appellant.
Vernal FORBUS, Earl J. Beacham, Rudolph Caddell, Frank R.
Davis, Vernie Rhodes, Jr., Plaintiffs-Appellants,
v.
SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
Nos. 91-7358, 91-7479.
United States Court of Appeals,
Eleventh Circuit.
April 20, 1992.

Page 1037

Cabaniss, Johnston, Gardner, Dumas & O'Neal, William A. Robinson & R. Taylor Abbott, Jr., Birmingham, Ala., S. Richard Pincus, Fox & Grove, Joshua D. Holleb, Steven L. Gillman, Chicago, Ill., for defendant-appellant.

William C. Knight, Jr., Burr & Forman, J. Patrick Logan, Birmingham, Ala., for plaintiffs-appellees.

Page 1038

Appeals from the United States District Court for the Northern District of Alabama.

Before COX and DUBINA, Circuit Judges and GODBOLD, Senior Circuit Judge.

DUBINA, Circuit Judge:

In Case No. 91-7358, Sears, Roebuck & Company ("Sears") appeals the district court's order denying Sears' motion for reconsideration of the denial of summary judgment on the issue of whether Vernal Forbus, Earl J. Beacham, Rudolph Caddell, Frank R. Davis, and Vernie Rhodes, Jr. (collectively referred to as "the Retirees"), have waived suit against Sears pursuant to releases they executed upon retirement. In Case No. 91-7479, the Retirees appeal the district court's order granting summary judgment in favor of Sears on all of the Retirees' state law claims. For the reasons which follow, we affirm the district court's order in Case No. 91-7358, and affirm in part and reverse in part the district court's order granting summary judgment in Case No. 91-7479.

I. FACTUAL BACKGROUND

The Retirees were employed by Sears at a Retail Distribution Center ("RDC") in Birmingham, Alabama. In the fall of 1989, the Retirees were informed that Sears planned to convert the RDC into a Home Delivery Center ("HDC"), which would substantially reduce the number of jobs available. A severance incentive package ("the package") was offered to encourage voluntary severance. Acceptance of the package required execution of a release and waiver which precluded the retiring employee from bringing any action against Sears as a result of termination from employment with Sears. Each Retiree accepted the package, retired early, and received the promised severance benefits, which were more substantial than the benefits would have been had the Retiree not elected the package.

Thereafter, Sears changed its restructuring plans advising the remaining employees that instead of an HDC the RDC would be converted to a Cross-Dock Center, which required a work force somewhere in-between that needed for an RDC or HDC. All Retirees except Beacham asked for their jobs back, but were informed that no jobs were available. The Retirees then filed charges of age discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that they accepted their packages and executed the releases under duress, and that misrepresentations were made to them by Sears. None of the Retirees has tendered his severance payments back to Sears. Instead, each has offered to offset any award received in his lawsuit by the amount of severance benefits accepted.

The Retirees' complaint alleges a claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., as amended ("ADEA"), and several state law claims, including breach of contract and fraud. Sears filed a motion for summary judgment based upon the Retirees' failure to unconditionally tender back the severance payments, arguing that even if questions of fact existed concerning the validity of the releases because of fraud and duress, the Retirees ratified the releases by retaining the benefits. The district court denied Sears' motion on the grounds that genuine issues of material fact existed and that the Retirees' offer to offset any award was sufficient tender. Sears filed a motion asking the district court to certify its order for interlocutory appeal; it was denied. Shortly thereafter, the Fifth Circuit issued its opinion in Grillet v. Sears, Roebuck & Co., 927 F.2d 217 (5th Cir.1991), which resolved in Sears' favor issues identical to those presented in this case. Sears filed a motion asking the district court to reconsider its order denying summary judgment in light of Grillet; it was denied. Sears then perfected its appeal to this court.

Sears also filed a motion for partial summary judgment as to each of the Retirees' state law claims. 1 The district court granted

Page 1039

that motion in its entirety. The district court found that because the Retirees were at will employees, their breach of contract claims failed and they sustained no recoverable damages even if Sears were guilty of fraud. The district court also found that there was no evidence that Sears manifested a present intent to deceive the Retirees at the time the package was presented to them, and that Alabama does not recognize a cause of action for breach of the implied covenant of good faith and fair dealing in an at will employment contract. The district court certified its order granting summary judgment pursuant to Fed.R.Civ.P. 54(b), from which the Retirees perfected their appeal. The two appeals were then consolidated by this court.

II. SEARS' APPEAL

A. Jurisdiction

Before discussing the merits of Sears' appeal, we must first determine whether the case is properly before us. Interlocutory orders are not appealable as a general rule. See 28 U.S.C. § 1291. Sears argues, however, that we have jurisdiction to hear its appeal pursuant to the collateral order doctrine, a judicially created exception to 28 U.S.C. § 1291. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The collateral order doctrine is applicable only if the order being reviewed satisfies the following three conditions: "It must 'conclusively determine the disputed question,' 'resolve an important issue completely separate from the merits of the action,' and 'be effectively unreviewable on appeal from a final judgment.' " Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)).

The Fifth Circuit recently applied the collateral order doctrine to review an interlocutory order denying summary judgment which effectively denied enforcement of a release agreement. See Grillet, 927 F.2d at 219-20. The Second Circuit also applied the doctrine in a similar context when it determined that it had jurisdiction to review an order denying a defendant's motion to enforce a settlement agreement. See Janneh v. GAF Corp., 887 F.2d 432, 434-35 (2d Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990). The Supreme Court has held that the deprivation of a right not to go to trial is effectively unreviewable after final judgment and is immediately appealable. See Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 499-500, 109 S.Ct. 1976, 1978-79, 104 L.Ed.2d 548 (1989). In civil cases, although the Court has not addressed the precise question presented here, it has determined that an immediate appeal may be taken from orders denying motions to dismiss based upon absolute immunity, Nixon v. Fitzgerald, 457 U.S. 731, 742-43, 102 S.Ct. 2690, 2697-98, 73 L.Ed.2d 349 (1982), or qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2814-15, 86 L.Ed.2d 411 (1985), as well as orders denying motions to compel arbitration, Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 11, 103 S.Ct. 927, 934, 74 L.Ed.2d 765 (1983).

We agree with the Fifth and Second Circuits that the collateral order doctrine should be applied to review an interlocutory order which denies enforcement of an agreement to forego litigation. We must now determine whether the order from which Sears appeals meets the requirements for review.

To meet the first requirement, the order must have been entered as "the final word on the subject addressed." Moses H. Cone Hosp., 460 U.S. at 12-13 n. 14, 103 S.Ct. at 935 n. 14. The district court's denial of Sears' motion to reconsider was intended to be the final word on whether Sears could avoid litigation on the basis of the releases, so the first requirement is satisfied.

To meet the second requirement, the facts and issues involving ratification of the releases must be separate and distinct

Page 1040

from the facts and issues involving the Retirees' underlying ADEA claims. Since the issue of ratification is not related to the ADEA claims, the second requirement is satisfied.

The third requirement is also satisfied. The essence of Sears' claim regarding ratification is that it contracted for the right to avoid being sued by the Retirees.

After considering the foregoing, we are persuaded that the collateral order doctrine vests this court with jurisdiction to review the merits of Sears' appeal.

B. Ratification

We now consider whether the Retirees have ratified the releases by retaining the benefits received thereunder. We review this issue de novo. Akins v. Snow, 922 F.2d 1558, 1560 (11th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2915, 115 L.Ed.2d 1079 (1991). The district court's conclusions of law on summary judgment are subject to the same standard of appellate review as any question of law raised on appeal. Morrison v. Washington County, Alabama, 700 F.2d 678, 682 (11th Cir.), cert. denied, 464 U.S. 864,...

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  • Willmore-Cochran v. Wal-Mart Assocs., Inc., CIVIL ACTION NO. 4:11-cv-2140-JEO
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 22, 2013
    ...383-85 (M.D. Ala. 1993); Forbus v. Sears, Roebuck & Co., No. 90-G-1299-S, 1991 WL 336648, *1-3 (N.D. Ala. 1991), aff'd in relevant part, 958 F.2d 1036, 1041 & n. 3 (11th Cir. 1992); cf. Shelby v. Zayre Corp., 474 So. 2d 1069, 1071 (Ala. 1985) (holding that because the plaintiff understood, ......
  • Willmore-Cochran v. Wal-Mart Assocs., Inc., Civil Action No. 4:11–cv–2140–JEO.
    • United States
    • U.S. District Court — Northern District of Alabama
    • January 22, 2013
    ...381, 383–85 (M.D.Ala.1993); Forbus v. Sears, Roebuck & Co., No. 90–G–1299–S, 1991 WL 336648, *1–3 (N.D.Ala.1991), aff'd in relevant part,958 F.2d 1036, 1041 & n. 3 (11th Cir.1992); cf. Shelby v. Zayre Corp., 474 So.2d 1069, 1071 (Ala.1985) (holding that because the plaintiff understood, rea......
  • American Airlines, Inc. v. Cardoza-Rodriguez, CARDOZA-RODRIGUE
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 3, 1997
    ...679 (7th Cir.1993) (post-OWBPA), cert. denied, 511 U.S. 1108, 114 S.Ct. 2104, 128 L.Ed.2d 665 (1994); Forbus v. Sears, Roebuck & Co., 958 F.2d 1036 (11th Cir.1992) (holding, pre-OWBPA, that the ADEA displaced the tender-back doctrine); cf. Raczak v. Ameritech Corp., 103 F.3d 1257, 1260 (6th......
  • Long v. Sears Roebuck & Co., No. 96-1264
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 11, 1997
    ...purposes underlying that statute. The concerns expressed by our sister court in the pre-OWBPA case of Forbus v. Sears Roebuck & Company, 958 F.2d 1036, 1041 (11th Cir.1992), apply with equal force The Court in Hogue found that a tender requirement would deter meritorious challenges to relea......
  • Request a trial to view additional results
37 cases
  • Willmore-Cochran v. Wal-Mart Assocs., Inc., CIVIL ACTION NO. 4:11-cv-2140-JEO
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 22, 2013
    ...383-85 (M.D. Ala. 1993); Forbus v. Sears, Roebuck & Co., No. 90-G-1299-S, 1991 WL 336648, *1-3 (N.D. Ala. 1991), aff'd in relevant part, 958 F.2d 1036, 1041 & n. 3 (11th Cir. 1992); cf. Shelby v. Zayre Corp., 474 So. 2d 1069, 1071 (Ala. 1985) (holding that because the plaintiff understood, ......
  • Willmore-Cochran v. Wal-Mart Assocs., Inc., Civil Action No. 4:11–cv–2140–JEO.
    • United States
    • U.S. District Court — Northern District of Alabama
    • January 22, 2013
    ...381, 383–85 (M.D.Ala.1993); Forbus v. Sears, Roebuck & Co., No. 90–G–1299–S, 1991 WL 336648, *1–3 (N.D.Ala.1991), aff'd in relevant part,958 F.2d 1036, 1041 & n. 3 (11th Cir.1992); cf. Shelby v. Zayre Corp., 474 So.2d 1069, 1071 (Ala.1985) (holding that because the plaintiff understood, rea......
  • American Airlines, Inc. v. Cardoza-Rodriguez, CARDOZA-RODRIGUE
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 3, 1997
    ...679 (7th Cir.1993) (post-OWBPA), cert. denied, 511 U.S. 1108, 114 S.Ct. 2104, 128 L.Ed.2d 665 (1994); Forbus v. Sears, Roebuck & Co., 958 F.2d 1036 (11th Cir.1992) (holding, pre-OWBPA, that the ADEA displaced the tender-back doctrine); cf. Raczak v. Ameritech Corp., 103 F.3d 1257, 1260 (6th......
  • Long v. Sears Roebuck & Co., No. 96-1264
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 11, 1997
    ...purposes underlying that statute. The concerns expressed by our sister court in the pre-OWBPA case of Forbus v. Sears Roebuck & Company, 958 F.2d 1036, 1041 (11th Cir.1992), apply with equal force The Court in Hogue found that a tender requirement would deter meritorious challenges to relea......
  • Request a trial to view additional results

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