Chen v. Applied Materials, Inc. , 87 F. App'x 995 ( 2004 )


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  •                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS        February 20, 2004
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 03-50723
    Summary Calendar
    MICHAEL CHEN,
    Plaintiff-Counter Defendant-
    Appellant,
    versus
    APPLIED MATERIALS, INC.,
    Defendant-Counter Claimant-
    Appellee.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. A-02-CV-602
    --------------------
    Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Applied Materials, Inc. (Applied) hired Michael Chen as a
    Software Engineer on August 28, 2000.    Very shortly thereafter,
    Applied discovered problems with his performance, ultimately
    leading to his departure on April 29, 2001.    Chen participated in
    Applied’s Voluntary Separation Plan (VSP), pursuant to which he
    signed a general release of claims.    In exchange for $33,000
    *
    Pursuant to 5TH CIR. R. 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    that this opinion should not be published and is not precedent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 5TH CIR.
    R. 47.5.4.
    No. 03-50723
    -2-
    severance pay, Chen gave up his right to any and all claims,
    known and unknown, under Title VII of the Civil Rights Act of
    1964.    In the face of his explicit and unequivocal release of
    claims, Chen nonetheless filed a complaint with the Equal
    Employment Opportunity Commission and eventually this lawsuit
    alleging discrimination based on race and national origin.1
    Chen appeals the district court’s denial of his motion for
    summary judgment, its grant of summary judgment to Applied, and
    its award of attorney’s fees and costs to Applied.    He also makes
    a myriad of unsubstantiated and meritless claims with respect to
    the judge of the district court.
    Even if Applied’s answer was untimely filed, the district
    court did not abuse its discretion in denying Chen’s motion for
    summary judgment based on default.2   Cf. In re Dierscheke, 
    975 F.2d 181
    , 183 (5th Cir. 1992).
    Chen argues that Applied was not entitled to summary
    judgment because (1) he signed the release under duress, (2) he
    did not receive consideration for the release, (3) the release is
    void, and (4) his claims are not covered by the release.    First,
    Chen’s allegation that he felt he had to sign the release in
    order to have a chance at continued employment is insufficient to
    establish duress.    The release stated in plain language that he
    1
    Chen also asserts that he was discriminated against based
    on age, but he did not include this claim in his complaint.
    2
    Applied disputes whether its answer was untimely filed,
    but this question is irrelevant to resolution of the case.
    No. 03-50723
    -3-
    was releasing all claims as a condition of his severance payment,
    that he had 45 days to review the release, and that he was
    advised to consult an attorney before signing it.    See Williams
    v. Phillips Petroleum Co., 
    23 F.3d 930
    , 935 (5th Cir. 1994).
    Second, Chen’s claim that the money he received was wages, rather
    than consideration for the release, is not supported by the
    record.    The Earnings Statement accompanying the check listed the
    money as “VSP Pay,” and Chen has submitted no affidavit or other
    competent summary judgment evidence that it was intended as
    normal wages.   Third, Chen signed and returned the release within
    the 45-day limitation, so it is not void.    The time spent by
    Applied in its inter-office mail delivery is not relevant to
    Chen’s date of delivery.   Fourth, Chen’s claim of discrimination
    in Applied’s refusal to rehire him is based on false promises he
    contends were made to him to induce him to sign the release.
    This claim is based on a promise allegedly made before the
    release and is therefore prohibited by it.    The district court
    properly granted summary judgment to Applied based on the
    release.
    Applied was entitled to attorney’s fees and costs based on
    the release.    Applied’s entitlement to the fees and costs comes
    from the contractual provision in the release requiring Chen to
    pay all attorney’s fees and costs of any suit he brings against
    Applied in violation of the release.   Thus Chen’s arguments based
    on the standards to be used in awarding attorney’s fees in civil
    No. 03-50723
    -4-
    rights lawsuits are inapposite.   The district court did not abuse
    its discretion in determining the proper amount of the fees.    See
    Davis v. City of Abbeville, 
    633 F.2d 1161
    , 1163 (5th Cir. 1981).
    Chen claims for the first time on appeal that the district
    court should have recused himself.   Requests for recusal not
    raised until appeal are waived.    See Andrade v. Chojnacki, 
    338 F.3d 448
    , 454 (5th Cir. 2003).    Chen’s allegations of bias have
    no support, and he has not shown plain error.
    AFFIRMED.
    

Document Info

Docket Number: 03-50723

Citation Numbers: 87 F. App'x 995

Judges: Jones, Benavides, Clement

Filed Date: 2/20/2004

Precedential Status: Non-Precedential

Modified Date: 10/19/2024