Hines v. ABB Vetco Gray, Inc. ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40805
Summary Calendar
_____________________
CHARLES HINES,
Plaintiff-Counter
Defendant-Appellant,
versus
ABB VETCO GRAY, INC.,
Defendant-Counter
Claimant-Appellee,
_______________________________________________________
Appeal from the United States District Court for
the Southern District of Texas
(G-95-CV-215)
_______________________________________________________
April 29, 1996
Before REAVLEY, SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Hines sued ABB Vetco Gray, Inc. (Vetco) for age
discrimination a year and a half after his termination.1 Because
Hines had signed a waiver agreement which explicitly waived any
claims for age discrimination and because Hines had failed to
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
1
See 29 U.S.C. §§ 621 et. seq. (Age Discrimination in
Employment Act of 1967); Tex. Lab. Code. Ann. § 21.001 et. seq.
(Texas Commission on Human Rights Act).
“tender back” the consideration paid by Vetco for the waiver in a
timely manner, the district court granted a summary judgment for
Vetco. Hines appeals.
Waiver agreements failing to meet the requirements of the
Older Workers Benefits Protection Act of 1990 are voidable at the
election of the terminated individual.2 We have held that
failure to “tender back” the consideration paid in exchange for
the waiver of specified claims in a timely manner precludes a
suit on those claims by the terminated employee.3 Hines requests
that we overrule such precedent and follow contrary decisions
from other circuits.4 However, prior panel opinions are binding
precedent on subsequent panels absent action by the court en
banc, the Supreme Court, or the legislature.5
Next, Hines asserts that he unconditionally tendered the
money to Vetco. His “unconditional tender” occurred in his
Original Answer to Vetco’s Counterclaim where he stipulated that
any recovery on his suit should be offset by the severance
2
Blakeney v. Lomas Information Systems, Inc., 65 F.3d 482
(5th Cir. 1995), cert. denied, 116 S. Ct. 1042 (1995); Wittorf v.
Shell Oil Co., 37 F.3d 1151, 1154 (5th Cir. 1994); Wamsley v.
Champlin Refining & Chemicals, Inc. 11 F.3d 534, 539 (5th Cir.
1993), cert. denied, 115 S. Ct. 1403 (1995); see 29 U.S.C. §
626(f)(1) (Older Workers Benefits Protection Act).
3
Blakeney, 65 F.3d at 485; Wittorf, 37 F.3d at 1154;
Wamsley, 11 F.3d at 539.
4
See Oberg v. Allied Van Lines, Inc., 11 F.3d 679 (7th Cir.
1993), cert. denied, 114 S. Ct. 2104 (1994); Forbus v. Sears,
Roebuck & Co., 958 F.2d 1036 (11th Cir.), cert. denied, 113 S. Ct.
412 (1992).
5
Lefarge Corp. V. Hartford Cas. Ins. Co., 61 F.3d 389, 403
(5th Cir. 1995).
2
agreement, or in the event that he did not recover any money, the
district court should enter a judgment against him in the amount
of the severance agreement. Hines argument is unpersuasive.
Such a reading would render our “tender back” rule meaningless,
permitting employees to retain the benefits of their bargain
while at the same time not upholding their end of the bargain -
waiving their right to sue.
Finally, Hines disputes the district court’s finding that he
“did not even attempt to rescind [the waiver agreement] until
nearly two years after he signed the contract, at which point
[Hines’s] opportunity to avoid the waiver agreement had long
since lapsed.”6 Hines argues that a mere four months passed
between the date he learned the waiver agreement was voidable
when Vetco raised the defense and the date the district court
granted Vetco’s summary judgment.
To properly rescind the contract, Hines had to “restore the
status quo ante,” and the recision “had to occur shortly after
the discovery of the alleged deficiency.”7 On September 5, 1995,
Hines filed a Motion for Continuance on Vetco’s Motion for
Summary Judgment requesting an additional two weeks to “finalize
the transaction whereby he [was] raising the funds.” The
district court denied Hines’s motion on the basis that, even if
it granted the motion, Hines’s attempt at recision was too late.8
6
Dist. Ct. Op. p. 5.
7
Blakeney, 65 F.3d at 485.
8
Dist. Ct. Op. p. 6, n.1.
3
Hines’s efforts to rescind the contract did not occur “shortly
after the discovery of the alleged deficiency.”9 Hines’s Motion
for Continuance came almost two years after he was terminated,
six months after he filed suit, and four months after Vetco
notified him of their intention to rely upon the waiver agreement
as a defense. The district court did not err in granting Vetco’s
summary judgment.10
AFFIRMED.
9
Blakeney, 65 F.3d at 485.
10
Blakeney, 65 F.3d at 482 n.3 (a tender which came “twenty-
two months after termination, eight months after filing suit, and
seven months after [the company’s] motion for summary judgment
alerted them to the waiver defense” was too late).
4