Grillet v. Sears, Roebuck & Co., No. 90-3580

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK; DUHE
Citation927 F.2d 217
Parties55 Fair Empl.Prac.Cas. 709, 56 Empl. Prac. Dec. P 40,658, 59 USLW 2648, 19 Fed.R.Serv.3d 500 Laura K. GRILLET, Plaintiff-Counter-Defendant-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Counter-Claimant-Appellant.
Docket NumberNo. 90-3580
Decision Date26 March 1991

Page 217

927 F.2d 217
55 Fair Empl.Prac.Cas. 709,
56 Empl. Prac. Dec. P 40,658, 59 USLW 2648,
19 Fed.R.Serv.3d 500
Laura K. GRILLET, Plaintiff-Counter-Defendant-Appellee,
v.
SEARS, ROEBUCK & COMPANY, Defendant-Counter-Claimant-Appellant.
No. 90-3580.
United States Court of Appeals,
Fifth Circuit.
March 26, 1991.

S. Mark Klyza, Cornelius R. Heusel, Kullman, Inman, Bee, Downing & Banta, New Orleans, La., for defendant-counter-claimant-appellant.

Page 218

Gerald D. Wasserman, Bach & Wasserman, Metairie, La., for plaintiff-counter-defendant-appellee.

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

Before CLARK, Chief Judge, and RONEY 1 and DUHE, Circuit Judges.

DUHE, Circuit Judge.

At age sixty, Laura Grillet had spent twenty-six years as a personnel representative for Sears, Roebuck and Company. In 1988 Sears restructured various departments, thereby eliminating many positions. On March 4, 1988, Grillet's supervisor told Grillet that Sears intended to eliminate her position in three days. He also told her that all positions comparable to hers were being eliminated.

Grillet's supervisor explained that Grillet could either accept ten weeks' severance pay--about $9,000--or obtain fifty weeks' severance pay--about $45,000--by signing a release waiving any claims she might have against Sears. Thus, Sears offered Grillet $36,000 as consideration for waiving all claims against the company.

At the March 4 meeting, the supervisor presented Grillet with two different release forms. One release form indicated that the employee declined the opportunity to consult with an attorney; the other form indicated that the employee had obtained legal advice. Grillet said that she was familiar with both forms. In her position as personnel representative, Grillet had presented the same forms to other employees whose positions were being eliminated. Grillet signed the release form that declined an opportunity to obtain legal advice.

A week after Grillet executed the release, she learned that Sears had offered new job assignments to three younger employees in her department. Nevertheless, during the next several months she continued to accept payments of the fifty weeks' severance pay that she was entitled to under the release.

On November 20, 1989, well over a year after her termination, Grillet sued Sears under the Louisiana age discrimination law and the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 (1988) (ADEA). She alleged that the release was ineffective because she had signed it under duress and in reliance on misrepresentation. Denying the existence of duress and misrepresentation, Sears counterclaimed for breach of contract, alleging that Grillet's suit constituted a breach of the release agreement.

Sears moved for summary judgment, claiming that the state-law claim was barred by the one-year statute of limitations and that the ADEA claim was barred by the release. Sears also alleged that even if a factual issue existed on the validity of the release, Grillet's retention of the $36,000 in consideration constituted a ratification of the release agreement. In opposing the summary judgment motion, Grillet attached a letter dated June 18, 1990 offering to tender back the money she received in consideration for the release if Sears reinstated her and gave her back pay.

The district court granted summary judgment for Sears on Grillet's state-law claim because this claim was untimely. It denied the remainder of the motion, however, explaining that the evidence could support a finding that Grillet did not knowingly and willfully consent to the release agreement. It also found that Grillet had not ratified the release because she had tendered the full amount of consideration plus interest.

Sears filed a motion for reconsideration, reurging its argument that the release was valid under the theory of ratification. Sears insisted that Grillet's tender-back offer was ineffective because it was conditioned on her reinstatement and receipt of back pay. The court again rejected this argument, noting that the evidence did not compel a finding that Grillet had ratified the release.

Sears appealed, arguing that this Court has jurisdiction under the collateral order doctrine. The district court stayed further

Page 219

proceedings pending a resolution of this appeal.

Jurisdiction Under the Collateral Order Doctrine

The preliminary issue we must consider is whether an interlocutory order denying enforcement of a release agreement through the mechanism of summary judgment presents a need for immediate review urgent enough to overcome the general requirement that only final judgments are appealable. See 28 U.S.C. Sec. 1291 (1988); Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 497-98, 109 S.Ct. 1976, 1978, 104 L.Ed.2d 548 (1989). Appellant argues that we should apply the collateral order doctrine, a judicially created exception to 28 U.S.C. Sec. 1291, to take jurisdiction over this controversy. See Midland Asphalt Corp. v. United States, 489 U.S. 794, 798-99, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

The collateral order doctrine gives us jurisdiction only if the order being reviewed (1) conclusively determines the disputed question; (2) resolves an important issue separate from the merits of the action; and (3) would be effectively unreviewable on appeal from a final judgment. Chasser, 490 U.S. at 498, 109 S.Ct. at 1978; Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978); Newball v. Offshore Logistics Int'l, 803 F.2d 821 (5th Cir.1986).

The Second Circuit has recently applied this doctrine in a similar context. See Janneh v. GAF Corp., 887 F.2d 432 (2d Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990). In Janneh, the plaintiff filed an employment discrimination case but later agreed in writing to a...

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37 practice notes
  • Campbell v. Sonat Offshore Drilling, Inc., Nos. 91-4934
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 30, 1992
    ...purchase orders issued after performance are binding where they are accepted without objection. See Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 220 (5th Cir.1991) ("A party cannot be permitted to retain the benefits received under a contract and at the same time escape the obligation imp......
  • Ponzoni v. Kraft General Foods, Inc., Civ. A. No. 90-3890.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 19, 1991
    ...the release of ADEA claims. See O'Shea v. Commercial Credit Corp., 930 F.2d 358, 362-63 (4th Cir.1991); Grillet v. Sears, Roebuck & Co., 927 F.2d 217 (5th Cir.1991); Constant v. Continental Telephone Co., 745 F.Supp. 1374 (C.D.Ill.1990); Dalessandro v. Monk, 864 F.2d 6, 8 (2d Cir.1988); E.E......
  • Fleming v. U.S. Postal Service AMF O'Hare, No. 92-2735
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 16, 1994
    ...347 F.2d 398, 400 (7th Cir.1965); Morta v. Korea Ins. Corp., 840 F.2d 1452, 1455 n. 4 (9th Cir.1988); Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 220-21 (5th Cir.1991); Wamsley v. Champlin Refining & Chemicals, Inc., 11 F.3d 534 (5th Cir.1993); Prudential Ins. Co. v. Smith, 231 Ind. 403,......
  • Hyman v. Ford Motor Co., No. 2:99-2532-11.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • February 22, 2001
    ...courts have rejected claims for recission where parties waited too long to assert their rights. See e.g. Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 221 (5th Cir.1991)(2½ year delay in repudiating release unreasonable); Baker v. Penn Mutual Life Ins. Co., 788 F.2d 650, 662 (10th Cir. 198......
  • Request a trial to view additional results
37 cases
  • Campbell v. Sonat Offshore Drilling, Inc., Nos. 91-4934
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 30, 1992
    ...purchase orders issued after performance are binding where they are accepted without objection. See Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 220 (5th Cir.1991) ("A party cannot be permitted to retain the benefits received under a contract and at the same time escape the obligation imp......
  • Ponzoni v. Kraft General Foods, Inc., Civ. A. No. 90-3890.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 19, 1991
    ...the release of ADEA claims. See O'Shea v. Commercial Credit Corp., 930 F.2d 358, 362-63 (4th Cir.1991); Grillet v. Sears, Roebuck & Co., 927 F.2d 217 (5th Cir.1991); Constant v. Continental Telephone Co., 745 F.Supp. 1374 (C.D.Ill.1990); Dalessandro v. Monk, 864 F.2d 6, 8 (2d Cir.1988); E.E......
  • Fleming v. U.S. Postal Service AMF O'Hare, No. 92-2735
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 16, 1994
    ...347 F.2d 398, 400 (7th Cir.1965); Morta v. Korea Ins. Corp., 840 F.2d 1452, 1455 n. 4 (9th Cir.1988); Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 220-21 (5th Cir.1991); Wamsley v. Champlin Refining & Chemicals, Inc., 11 F.3d 534 (5th Cir.1993); Prudential Ins. Co. v. Smith, 231 Ind. 403,......
  • Hyman v. Ford Motor Co., No. 2:99-2532-11.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • February 22, 2001
    ...courts have rejected claims for recission where parties waited too long to assert their rights. See e.g. Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 221 (5th Cir.1991)(2½ year delay in repudiating release unreasonable); Baker v. Penn Mutual Life Ins. Co., 788 F.2d 650, 662 (10th Cir. 198......
  • Request a trial to view additional results

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