Opinion
CIVIL ACTION NO. 02-11785-PBS
May 7, 2004
MEMORANDUM AND ORDER
I. INTRODUCTION
Gerard O'Neill, a well-known investigative journalist at theBoston Globe, alleges that his early retirement program violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. §§ 621-634 (West 1999 Supp. 2003), the Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C. § 626 (West 1999 Supp. 2003), and common law. He also claims that his former employer made fraudulent misrepresentations about the eligibility process that invalidate the general release he signed when he accepted the early retirement program.
The amended complaint asserts claims of misrepresentation (Count 1), fraud (Count 2), violations of OWBPA (Count 3), violations of ADEA (Count 4), and breach of fiduciary obligation under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001-1461 (Count 5).
Defendants The New York Times Company and The Globe Newspaper Company have moved for summary judgment, arguing, among other things, that the Plaintiff signed a valid waiver of his claims when he accepted the offer and that the ADEA claim is time-barred.
Plaintiff concedes his complaint cannot survive summary judgment on Counts III, claiming a breach of a fiduciary obligation under ERISA, and V, asserting a separate cause of action under OWBPA.
After hearing and review of the briefs, the Defendants' motion for summary judgment is ALLOWED .
II. FACTUAL BACKGROUND
The following facts are not in dispute, except where otherwise noted.
O'Neill worked as a journalist and editor for the Boston Globe for approximately 35 years. For 28 of the 35 years, he was a reporter on, and managing editor of, the Globe's "Spotlight Team," a division involved in investigative research on and reporting of organized crime and public and private corruption. He won numerous awards as a journalist, including the Pulitzer Prize, and authored ground-breaking stories on topics ranging from Irish gangs to corruption in the Boston Police Department and the FBI. He also has written several books about his investigations. O'Neill was 58 years old in September of 2000, the time period of the events in question.
In January 2000, Matthew Storin, editor of the Globe, told O'Neill that in January of 2001 he would replace O'Neill as head of the Spotlight Team with Walter Robinson, a 54-year-old man who had headed the Spotlight Team in 1999 while O'Neill took a leave of absence to write one of his books. Storin told Plaintiff that he was being replaced because Storin felt that the Team needed a change and fresh ideas. It is disputed whether a new position would have been available to Plaintiff.
In February 2000, O'Neill approached Alfred Larkin, Jr., theGlobe's Vice President of Human Resources, about the possibility of a buy-out. O'Neill hoped that if he elected to retire, the four or five years he was short of maximum retirement benefits might be forgiven. Larkin responded that nothing was being contemplated at the time.
In June of 2000, a committee at the Globe looked into the possibility of instituting a buy-out program as a cost-saving measure. Managers of groups of employees were asked to generate lists of their employees who met the following criteria: (i) had at least 20 years of service; (ii) were at least 52 years old; (iii) were not in particular salary bands; (iv) were non-union; and (v) would not have to be replaced if they accepted the buy-out offer. Larkin generated a list of forty-four employees who met the first four criteria, and then asked senior managers to identify employees who met the fifth criterion. Larkin sent Storin a list of nineteen eligible persons and asked him to identify which would not need to be replaced. Storin responded that he was almost certain that only O'Neill would not have to be replaced, although he was not positive about one other employee. Larkin later reported to colleagues that of the nineteen initially eligible employees in the newsroom, only one, O'Neill, would not need to be replaced. Overall, twenty-seven employees were removed from the list, and the plan (the "2000 Plan") was eventually offered to seventeen employees.
After learning of his impending change in position, O'Neill asked Louisa Williams, the administrative managing editor, about alternative jobs, the possibility of obtaining leave to work at Oxford, and later about the possibility of a buy-out, but was told in July that there was "no action on the buyout front." In late August, Williams told O'Neill that there might be movement on the buy-out front.
In September of 2000, the Globe offered the 2000 Plan to the seventeen employees, including O'Neill. In addition to forgiveness of the retirement shortfall, the 2000 Plan provided for a resignation bonus, life insurance, health insurance, and other benefits. The 2000 Plan advised employees to consult with an attorney. While O'Neill chose not to, he did consult with a financial advisor.
O'Neill submitted a recent affidavit claiming that Larkin told O'Neill that the 2000 Plan was just for O'Neill, a statement to which Defendants object as O'Neill never mentioned the statement at deposition despite extensive questioning about his conversations with Larkin concerning the retirement program. See Colantuono v. Alfred Colgani Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994) (where "an interested witness had given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory but does not given an explanation of why the testimony is changed").
The documents disseminated as part of the 2000 Plan also listed in a table the job titles, ages, and years of service of employees eligible to participate in the 2000 Plan, and the ages and years of service of the employees with the same job titles who were ineligible to participate. Above this table is the following statement:
Eligible Participants
To be eligible to participate in the Program, an employee as of September 7, 2000, must be at least 52 years old and have at least 20 years of service and hold a position whose responsibilities the Company's management has concluded can be transferred to other employees upon the employee's retirement yet not be in Salary Bands 1 or 2 or a member of a union.
O'Neill has noted differences between the table given to him with the package and earlier drafts of the table, differences apparently attributable to the fact that twenty-seven employees were removed from the original list of forty-four eligible employees on the basis of the fifth factor, that they would have to be replaced. The final table given to O'Neill does not list employees eligible under the first four factors but excluded under the fifth.
O'Neill negotiated the terms of his acceptance of the 2000 Plan, and the Globe agreed to keep him on staff as he took a fellowship at Oxford. O'Neill signed the 2000 Plan on September 28, 2000, and eventually retired effective January 10, 2001. The form O'Neill signed included the following:
I hereby agree voluntarily to participate in the Year 2000 Globe Voluntary Retirement Program ("Program"). . . . In exchange for the receipt by me of the enhanced benefits available to me under the Program I hereby fully and unconditionally release the Company and the affiliated companies and their directors, officers and employees from all claims which I have or may have against them arising out of my employment with the Company and my early retirement, including any claims I may have under the Age Discrimination in Employment Act. I understand that this release is not a waiver of any future claims I may have against the Company or a release of any claim I have with respect to retirement benefits, health benefits, or other benefits granted to me as a participant in the Program.
Five of the seventeen employees offered the 2000 Plan accepted. The remaining twelve continued their employment at the Globe.
After being turned down from several positions at the Globe in February 2000, O'Neill felt "funneled into a room with no doors save the one that said retirement." (Aff. at 3.) O'Neill states that he saw the 2000 Plan as "take-it-or-leave-it reduced retirement," and that had he known that the eligibility criterion was "those who would not need to be replaced" rather than the criterion stated in the 2000 Plan, employees who "hold a position whose responsibilities the Company's management has concluded can be transferred to other employees upon the employee's retirement," he would have "contested coerced inclusion in the program." (Aff. at 5.)
In April of 2001, the Globe, faced with a downturn in revenues beginning in January of 2001, offered a more generous buyout package to employees (the "2001 Package"). Believing that theGlobe had known of this package in September 2000, O'Neill sent a letter to Larkin asking to be included in the 2001 Package. Larkin responded that the offer did not include retroactivity, and that the 2001 Package came out of New York (the Globe having been purchased by the New York Times Company), which accounted for the difference.
By August of 2001, O'Neill had retained counsel to pursue his claim for benefits under the 2001 Package. O'Neill's counsel sent a letter to theGlobe requesting the enhanced benefits and noting the possibility of litigation. On May 3, 2002, not having received a response to prior letters inquiring about the case, O'Neill's new counsel sent the New York Times Company a draft complaint. This complaint stated claims under ERISA and under Massachusetts misrepresentation law, and noted that "[i]n contrast to the Globe severance package which targeted older, long term employees, the Times severance package was offered to all employees with at least ten years service." (O'Neill Dep. Ex. 10.) The complaint also stated under "Causes of Action," "The Times' differential treatment of similarly situated but older employees in pressing for severance under the Globe severance package is discriminatory, unlawful, and an express breach of fiduciary obligation under 29 U.S.C. § 1132(a)(3), 1140." (Id.)
O'Neill filed a complaint in Massachusetts state court on August 9, 2002, claiming misrepresentation and fraud. After the case was removed to federal court, he filed an amended complaint (the subject of this Order) on March 12, 2003, and filed a charge of age discrimination with the Massachusetts Commission Against Discrimination ("MCAD") on May 5, 2003.
III. STANDARD OF REVIEW
"Summary judgment is appropriate when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995) (quoting Fed.R.Civ.P. 56(c)). "To succeed [in a motion for summary judgment], the moving party must show that there is an absence of evidence to support the nonmoving party's position."Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
"Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who `may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.'" Barbour, 63 F.3d at 37 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). "There must be `sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.'"Rogers, 902 F.2d at 143 (quoting Anderson, 477 U.S. at 249-50) (citations and footnote in Anderson omitted). The Court must "view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor."Barbour, 63 F.3d at 36.
IV. DISCUSSION
A. General Release under ADEA and OWBPA
Plaintiff challenges the validity of the release he signed, claiming that it does not comply with the provisions of OWBPA for it was not "knowing and voluntary."
"For an employee's waiver of ADEA rights to be enforceable, it must be `knowing and voluntary.'" Am. Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 117 (1st Cir. 1998). To specify what is required for a "knowing and voluntary" waiver, "Congress enacted the OWBPA, 29 U.S.C. § 626(f), which amended the ADEA by mandating that a waiver of ADEA claims contain certain minimum information to constitute a `knowing and voluntary' waiver." Id.
The OWBPA provides:
a waiver may not be considered knowing and voluntary unless at a minimum —
(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
. . .
(H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to —
(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and
(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.29 U.S.C. § 626(f).
Because the burden is on the party asserting the validity of the waiver under OWBPA, to prevail on a motion for summary judgment Defendants must demonstrate that there is no genuine issue of material fact as to whether the disclosures complied with each of the section 626(f) requirements.Am. Airlines, 133 F.3d at 117. Additionally, "[n]o waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission." 29 U.S.C. § 626(f)(4). See also Am. Airlines, 133 F.3d at 118 n. 7 (noting that waiver of rights to pursue EEOC action was deficient); Massachusetts v. Bull Info. Sys., Inc., 143 F. Supp.2d 134, 147-48 (D. Mass. 2001) (holding that waiver of "all claims" under the ADEA violated section 626(f)(4)). But see Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 290 (3d Cir. 2003) ("[T]he statute is clear that any attempt by an employer to enforce a contractual provision prohibiting an employee from filing a charge or participating in an EEOC investigation would be ineffectual, but there is no indication that the mere presence of that contractual language would void an otherwise knowing and voluntary waiver.").
"The touchstone should be the `understandable to the average worker' standard. If the employer provides information that purports to comply with the statute, then the inquiry should move to the question of understandability." Raczak v. Ameritech Corp., 103 F.3d 1257, 1260 (6th Cir. 1997). "Holding an employer strictly accountable for what might be a technical violation of these imprecise terms, with no indication that this would facilitate the provision's purpose and might even hamper it, is untenable and would elevate form over substance."Id. at 1260.
Plaintiff makes three challenges to the validity of the waiver: (1) the waiver failed to disclose that forty-four employees were initially on the list to be offered the package; (2) the fifth criterion used was different from the fifth criterion stated; and (3) the Plaintiff did not make a "voluntary" waiver, because the package was a "take-it-or-leave-it" package.
Plaintiff's first argument is that the Defendants were required by OWBPA to reveal the names of the twenty-seven persons who were removed from the 2000 Plan once the fifth factor was applied. Plaintiff fails to point to any provision of OWBPA or caselaw for this proposition, but argues that the OWBPA only lists "minimum" requirements.
However, even had Plaintiff known that twenty-seven persons were removed from the 2000 Plan, these were persons who met the first four criteria, including the requirement that they be at least 52 years old. Knowledge that certain other persons of a similar age were removed from the program would not give Plaintiff any additional notice of a potential age discrimination claim.
Additionally, the table provided was clear and easily understandable, unlike the abstruse spreadsheets provided with the plan documents inBull, which was cited by Plaintiffs. Bull, 143 F. Supp.2d at 147. The chart therefore met the requirements of section 626(f)(1)(H), that the employer inform the individual of "the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program." 29 U.S.C. § 626(f)(1)(H).
Plaintiff's second claim is that the Defendants misrepresented the terms of the 2000 Plan when they stated in the plan documents that the fifth criterion was whether employees' "duties could be transferred to others," as opposed to the criterion discussed in internal correspondence, that employees would not have to be replaced.
However, this is a quibble. Both statements are merely different ways of stating the same thing. Those whose duties could be transferred to other employees are those who would not need to be replaced, and vice versa.
Pointing out that of the twenty-seven employees who were removed from the list, a number were accepted into the 2001 retirement program, Plaintiff next argues that this evidence suggests that these employee's responsibilities in fact could have been transferred to other persons, making the eligibility criteria in the 2000 Plan a sham devised to single him out.
However, the 2001 Package eligibility requirements were different from those in the 2000 Plan. The 2001 Package eligibility requirements state that because the Globe did not plan on replacing employees who accepted, the Globe reserved the right to reject a particular employee's acceptance of the 2001 Package if that employee were needed. Additionally, it is undisputed that the reason for the 2001 Package was a severe drop in advertising revenues in January 2001. In light of these changed circumstances, the exclusion of employees in 2000 but acceptance of the same employees in 2001 does not demonstrate that the eligibility criteria in the 2000 plan were fraudulent.
Plaintiff's third argument is that the description of the 2000 Plan as "voluntary" was false because he felt that he had no choice but to accept it. Defendants rebut this assertion by noting that the twelve employees who were offered the 2000 Plan but did not accept it kept their jobs, and Plaintiff has made no showing that the twelve suffered any consequences leading to an inference that the 2000 Plan was involuntary. Also, the evidence shows that Plaintiff sought out an early retirement package, discrediting Plaintiff's theory that his acceptance was not voluntary. He also negotiated the terms of his package, and was able to obtain a paid leave to study at Oxford. Plaintiff had the opportunity to get legal and financial assistance prior to signing the release. There is insufficient evidence that the signature on the waiver was involuntary. Accordingly, the action is dismissed.
B. Time Bar
Plaintiff's ADEA claim, that the Globe severance package targeted older, long-term employees, is time-barred under 29 U.S.C. § 626(d) because he failed to file a claim with the Equal Employment Opportunity Commission within 300 days after he believed he had been injured.Am. Airlines, 133 F.3d at 123 (holding that employees had sufficient information to bring age discrimination claim when they knew the program was offered only to employees over forty-five years of age and viewed the program as a "`take it or leave it' choice between early retirement and losing their jobs"). Plaintiff has testified that he felt coerced into early retirement in 2000; that the 2000 Program was offered only to employees over 52 years of age; that he saw the program at the time as a "take it or leave it coerced retirement"; and that in April 2001, he believed that he was the victim of age discrimination. The May 3, 2002 draft complaint sent by Plaintiff's counsel evidences an awareness that Plaintiff could bring a claim for age discrimination. There is no genuine issue, therefore, that Plaintiff had knowledge sufficient to start the running of the statute of limitations prior to 300 days before he filed his claim on May 5, 2003.
I will only consider the claim of age discrimination asserted in the amended complaint.
C. General Release of Common Law Claims
Plaintiff does no more than mention the waiver of his common law claims, stating merely that the standard under the common law is the same as the standard under the ADEA: a person must have sufficient information to know whether he or she has a valid claim for discrimination in order for a waiver to be valid. Therefore, Plaintiff asserts, his arguments apply equally well to the common law context.
In analogous contexts, courts have applied the "knowing and voluntary" standard for the validity of waivers. See Melanson v. Browning-Ferris Indus., Inc., 281 F.3d 272, 276 (1st Cir. 2002) (applying six-factor "knowing and voluntary" test to waiver of sexual discrimination claims under Title VII); Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112 F.3d 9, 12 (1st Cir. 1997) (applying a totality of the circumstances approach to determining the validity of waivers to case brought under the American with Disabilities Act); Rowe v. Town of North Reading, No. 984216, 2001 WL 170655, at *7 (Mass.Super. Jan. 5, 2001) (applying "knowing and voluntary" standard in Rivera-Flores, 112 F.3d at 12, to handicap and age discrimination claims under Massachusetts law).
The six factors are: (1) plaintiff's education and business sophistication; (2) the respective roles of employer and employee in determining the provisions of the waiver; (3) the clarity of the agreement; (4) the time plaintiff had to study the agreement; (5) whether plaintiff had independent advice, such as that of counsel; and (6) the consideration for the waiver.
This standard is easier to meet than the standard under OWBPA, which requires a waiver to be "knowing and voluntary" in addition to being in compliance with the other statutory requirements. Am. Airlines, 133 F.3d at 117. Therefore, Plaintiff's same arguments fare no better, and Defendant has demonstrated that there is no issue of fact as to the effectiveness of his waiver of common law claims.
ORDER
The Defendants' motion for summary judgment is ALLOWED .