COMMONWEALTH OF MASS. v. BULL HN INFO. SYSTEMS

MEMORANDUM AND ORDER RE: PARTIES' MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION

This action involves allegations of unlawful employment discrimination byBull HN Information Systems, Inc. ("Bull"). The Commonwealth ofMassachusetts ("Commonwealth") and the United States Equal EmploymentOpportunity Commission ("EEOC") allege that General Release and SeveranceAgreements ("Releases") used by defendant Bull from July 1994 through thepresent in connection with a series of reductions in workforce ("RIFs")violate the Older Workers Benefits Protection Act("OWBPA")1 and the Age Discrimination in Employment Act ("ADEA").2The EEOC also alleges violations of the Fair Labor Standards Act("FLSA").3

The individual plaintiff in this case, Robert F. Madigan ("Madigan"),is a former Bull employee who signed a Release in 1994. Madigan claimsthe Release he signed violates the OWBPA and the ADEA. He also claimsemployment discrimination in violation of the Americans with DisabilitiesAct ("ADA"),4 the Civil Rights Act of 1991,5 and M.G.L. Ch.151B, as well as violation of the Employee Retirement Income Security Actof 1974 ("ERISA").6

Bull moves for summary judgment of all claims brought by the threeplaintiffs. Both the Commonwealth and the EEOC move for summary judgmentagainst Bull. Madigan does not seek summary judgment.

A. The Commonwealth and the EEOC's Claims

For the reasons discussed below, Bull's Motion for Summary Judgmentagainst the Commonwealth and the EEOC [docket entry # 54] is herebyGRANTED in part and DENIED in part. The Motion is GRANTED with respectto the EEOC's FLSA claim. The Motion is DENIED with respect to theplaintiffs' OWBPA and ADEA claims. The Commonwealth and the EEOC's Motionsfor Summary Judgment against Bull [docket entries # 62 and # 66] areGRANTED in part and DENIED in part. The Commonwealth and the EEOC areentitled to judgment as a matter of law on their allegations regardingthe unlawfulness of Releases used by Bull from July 1994-December 1997.Their motion is DENIED with respect to the Releases used in 1998, 1999,and 2000.

As noted below, this Memorandum and Order resolves all questions of lawrelated to the validity of the 1994-1997 Releases. The plaintiffs' legalclaims regarding the lawfulness of the 1998-2000 Releases remain active.In addition, most questions of remedy remain unresolved.

B. Madigan's Claims

For the reasons discussed below, Bull's Motion for Summary Judgmentagainst Madigan [docket entry # 58] is GRANTED in part and DENIED inpart. Bull is entitled to judgment as a matter of law on Madigan'sage-related and ERISA claims. This resolves Count III, Count VI, and theage-related portions of Count VII in Madigan's Complaint. Count V wasdismissed in an earlier ruling. Additionally, the findings detailed herewith respect to the Commonwealth and the EEOC's claims resolve Madigan'sCounts I and II.

Thus, of Madigan's various claims, only Count IV and thenon-age-related portions of Count VII remain unresolved.

II. BACKGROUND7

Bull is an advanced technology company based in Billerica,Massachusetts. As ofDecember 1988, Bull employed approximately 4,500 people inMassachusetts. Since then, Bull has reduced its workforce in the state bymore than 3,000 employees.

A. Age-Discrimination Allegations, 1990-1994

Beginning in 1990, many former Bull employees, laid off pursuant to thecompany's workforce reduction program, filed age-discriminationcomplaints with the EEOC and the Massachusetts Commission AgainstDiscrimination ("MCAD"). In 1993, the Massachusetts Attorney Generalinitiated an investigation into Bull's employment practices, and in Julyof that year, the Commonwealth informed Bull that it intended to file anage discrimination complaint against the company. On July 25, 1994, theAttorney General intervened in a complaint filed against Bull with theMCAD. The complaint alleged that Bull was engaged in a pattern andpractice of age discrimination, and that older employees had beendisproportionately affected by Bull's layoffs between 1990 and 1994.

B. Bull's Severance Pay Plan and Releases, 1994-1998

Prior to the Attorney General's investigation, Bull's severance-payplan offered laid-off employees one week of base pay per year ofservice.8 Bull revised this severance plan effective July 5,1994, approximately one year after the Attorney General notified Bullthat it had begun to investigate Bull's employment practices.9Under the new plan, Bull continued to offer one week of base pay per yearof service, but the company added a new condition: It required terminatedemployees to sign a waiver of rights, explicitly including ADEA rights,before receiving any severance pay.

The Releases added in 1994 provided, "[i]n full consideration andexchange for . . . severance payments," an employee "agree[s] to give upand release forever" her ability to sue Bull for any claims "arising outof [her] employment with Bull." Under this severance plan, therefore, anyemployee who executes a Release but later brings or maintains any claimcovered by the agreement is required to return all severance pay, and toindemnify Bull for all attorneys fees, costs, and expenses associatedwith defending the claim.

In July 1994, Bull laid off more than fifty employees pursuant to an"employment termination program," as that term is used in the OWBPA.10Affected individualswere required to sign the new Releases.

In May 1996, the Massachusetts Attorney General filed a complaint withthe EEOC. The complaint alleged that Bull's 1994 Releases violate theOWBPA, a statute which details various conditions that must be met inorder for an employee's waiver of her age-discrimination claims to beadjudged valid.11 The EEOC found reasonable grounds to believe thisallegation and attempted to conciliate the matter in accordance with therequirements of the OWBPA.12 Ultimately, however, conciliation wasunsuccessful. The EEOC therefore forwarded the case to its regionalattorney for possible litigation. In addition, at the Attorney General'srequest, the EEOC sent the Commonwealth a "notice of right to sue." Thenotice indicated that the EEOC was continuing to handle the claim, butthe Commonwealth could also file an ADEA suit if it so desired.

In the meantime, from 1994 to the present, Bull conducted variousvoluntary and involuntary RIFs. All affected employees were required tosign Releases, though Bull revised the text and format of the Releases onseveral occasions. Specifically, in 1995 and the first six months of1996, the company used Releases essentially identical to those used in1994. In early July 1996, the company amended the Releases slightly. Theupdated 1996 Release allowed involuntarily terminated employees a longerreview period (forty-five days, in place of the twenty-one-day reviewperiod formerly provided to those employees), and it expanded the range ofstatistical information provided to all laid-off employees.

Bull again amended its Releases in 1998, slightly increasing thecompensation package offered to affected employees, and reformatting andexpanding the information package provided to those employees. Since1998, Bull has made only minor changes in its Releases.

C. The Instant Litigation

The Commonwealth filed this action on June 12, 1997, challenging all ofthe Releases used by Bull since 1994. The Commonwealth's complaintalleges five counts under the ADEA and OWBPA,13 and requestsdeclaratory, equitable, and injunctive relief.14

Also on June 12, 1997, the EEOC filed a separate lawsuit against Bull,on largely the same grounds, seeking largely the same relief.15 TheCommonwealth and the EEOC's actions were consolidated on January 13,1999.

D. The Madigan Litigation

The third plaintiff in this case, Madigan. is a former Bull employeewho signed Bull's controversial 1994 Release prior to his termination inOctober 1994. Madigan filed suit against Bull on October 31, 1997. Healleges seven causes of action arising from his employment relationshipwith and termination by Bull.16 Madigan's claims were consolidatedwith those of the Commonwealth and the EEOC on January 21, 1999.

III. DISCUSSION

This Memorandum resolves four summary judgment motions: Bull's Motionfor Summary Judgment against the Commonwealth and the EEOC, theCommonwealth's Motion for Summary Judgment against Bull, the EEOC'sMotion for Summary Judgment against Bull, and finally, Bull's Motion forSummary Judgment against Madigan. Given the wide assortment of issues Imust address, a short outline is necessary. I first describe the summaryjudgment standard, and the history and relevant content of the OWBPA. Ithen evaluate Bull's threshold argument concerning the timeliness of someof the Commonwealth and the EEOC's claims. Next, I consider thelawfulness of Bull's various Releases, in temporal order. I then addressthe Commonwealth and the EEOC's various claims for relief. Finally, Iturn to Bull's Motion for Summary Judgment against Madigan.

A. Summary Judgment Standard

Summary judgment is only proper "if the pleadings, depositions, answersto interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as amatter of law." Fed.R.Civ.P. 56(c). In this context, "`material' meansthat a contested fact has the potential to change the outcome of the suitunder the governing law if the dispute over it is resolved favorably tothe nonmovant." Grant's Dairy-Maine, LLC v. Commissioner of Maine Dep'tof Agric., Food & Rural Res., 232 F.3d 8, 13 (1st Cir. 2000).Similarly, "genuine" means that the evidence about the fact is sufficientto permit a reasonable jury to "resolve the point in favor of thenonmoving party." Id.

In ruling on a summary judgment motion, I must view "the facts in thelight most favorable to the non-moving party." Rodriguez-Cuervos v.Wal-Mart Stores, Inc., 181 F.3d 15, 19 (1st Cir. 1999). Overall,therefore, Rule 56(c) "mandates the entry of summary judgment, afteradequate time for discovery and upon motion, against a party who fails tomake a showing sufficient to establish the existence of an elementessential to that party's case, and on which that party will bear theburden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322,106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Where the non-moving party bears the burden of proof on an issue attrial, the moving party need not produce evidence undermining thenon-moving party's case. Instead, the moving party may simply point outto the court the "absence of evidence to support the nonmoving party'scase." Id. at 325, 106 S.Ct. 2548. The question, therefore, is notwhether there is absolutely no evidence supporting the nonmovant, but"`whether there is any upon which a jury could properly proceed to find averdict in that party's favor.'" Caputo v. Boston Edison Co., 924 F.2d 11,13 (1st Cir. 1991) (citing De Arteaga v. Pall Ultrafine FiltrationCorp., 862 F.2d 940, 941 (1st Cir. 1988)).

B. Background and Relevant Provisions of the OWBPA

Courts have long agreed that an employee's waiver of her ADEA-rights isonly judicially enforceable if the waiver was executed "knowing[ly] andvoluntar[ily]."17 Prior to 1990. however, courts disagreed as to theappropriate standard for determining whether a waiver of rights was"knowing and voluntary."18

The 1990 passage of the OWBPA19 resolved these disagreements. TheOWBPA was enacted to "ensure[] that older workers are not coerced ormanipulated into waiving their rights to seek legal relief under theADEA." S.Rep. No. 101-263, at 5 (1990), reprinted in 1990 U.S.C.C.A.N.1509, 1510. It mandates that "a waiver" [of ADEA rights or claims] maynot be considered knowing and voluntary unless at a minimum variousspecific conditions are met. 29 U.S.C. § 626(f)(1).

Of most relevance to this case, the OWBPA's specific requirementsinclude: (1) an employee may only "waive[ADEA] rights . . . in exchangefor consideration in addition to anything of value to which [she] alreadyis entitled," id. § 626(f)(1)(D); (2) an employer must allowemployees subject to an "employment termination program" at leastforty-five days to consider whether to execute a waiver, id. §626(f)(1)(F)(ii); and (3) the employer must provide the employees subjectto such a program with certain specific information about the program, id.§ 626(f)(1)(H). Further, the OWBPA indicates that a waiver may not"be used to justify interfering with the protected right of an employeeto file a charge or participate in an investigation or proceedingconducted by the [EEOC]." Id. § 626(f)(4). While the statuteprovides that violations of any of these statutory requirements renders anemployee's waiver of her ADEA rights or claims unenforceable, however, itdoes not mention other relief (such as equitable modification of astatute of limitations).

C. Bull's Motion for Summary Judgment Against the Commonwealth and theEEOC

1. Summary

Bull makes several arguments in support of summary judgment. First,thecompany reasserts two claims this Court has already addressed: (1) theCommonwealth and the EEOC lack standing to pursue the claims alleged intheir Complaints; and (2) no independent cause of action exists under theOWBPA. As Bull acknowledges in its Motion for Summary Judgment againstthe Commonwealth and the EEOC, this Court ruled against the company onboth of these arguments in an earlier decision in this case. Bull I,16 F. Supp.2d at 96-104, 105-110. I decline to revisit these issueshere.20

With respect to Releases signed more than 300 days prior to thisCourt's consideration of the parties' summary judgment claims, Bullargues that it is entitled to summary judgment regardless of thelawfulness of the Releases, because the ADEA's 300-day statute oflimitations21 has lapsed for any claims that have not yet beenbrought by individual former employees. Alternatively, Bull maintainsthat it is at least entitled to summary judgment with respect to Releasessigned more than 300 days ago in those cases in which individuals wereprovided with age data about the employee termination program at the timethe Releases were signed.22 Finally, with respect to Releases signedafter January 29, 1998, Bull contends it is entitled to summary judgmenton all counts because those Releases fully comply with the terms of theOWBPA.

This Section addresses Bull's statute of limitations arguments.23 Iaddress Bull's contention regarding the 1998, 1999, and 2000 Releasesbelow, in the context of evaluating the lawfulness of all challengedReleases.

2. Releases Signed more than 300 Days Before This Court's Considerationof the Parties' Summary Judgment Claims

The ADEA bars any "individual" from filing suit more than 300 days"after the alleged unlawful practice occurred." 29 U.S.C. § 626(d)(2), 633(b). Based on this provision, Bull maintains this Courtshould grant summary judgment in Bull's favor on all claims relating toReleases signed more than 300 days prior to this Court's consideration ofthe issues in the case.

This argument apparently stems from Bull's belief either (1) that theADEA's statute of limitations directly bars the Commonwealth and theEEOC's claims, or (2) that the statute of limitations indirectlybars relief to the Commonwealth and the EEOC unless individual, formerBull employees could benefit directly from that relief. I am notpersuaded by either line of reasoning.

First, with respect to direct application of the ADEA's deadlines tothe Commonwealth and the EEOC, the language of the statute of limitationsexplicitly limits the reach of the provision to "civil action[s] . . .commenced by an individual." 29 U.S.C. § 626(d) (emphasis added). Itis improbable, to say the least, that Congress intended to subsume statesand federal regulatory agencies within the term "individual." Further,applying the Act's 300-day statute of limitations directly to the EEOCwould contravene the ADEA's specific requirement that the EEOC "attemptto eliminate the discriminatory practice or practices alleged, and toeffect voluntary compliance with the requirements of this chapter throughinformal methods of conciliation, conference, and persuasion" Id.(emphasis added).24 I therefore do not interpret the ADEA's statuteof limitations to apply directly to states or federal agencies.

This reading, in turn, influences my finding with respect to indirectapplication of the ADEA's statute of limitations to the Commonwealth andthe EEOC: Having refused to apply the statute of limitations directly toeither party, I am not inclined to permit Bull to achieve the sameillogical result indirectly, by invoking hypothetical, potentially-barredlawsuits by former Bull employees. As discussed in Bull I theCommonwealth (and, by extension, the EEOC) brought this action tovindicate interests "above and apart from the interests of theindividuals who . . . signed" the allegedly "unlawful Releases." Bull I,16 F. Supp.2d at 98; cf. Occidental Life Ins., 432 U.S. at 368, 97 S.Ct.2447 (noting, with respect to Title VII enforcement actions, "the EEOCdoes not function simply as a vehicle for conducting litigation on behalfof private parties"). For example, the Commonwealth has an interest in"protect[ing] its residents' participation in the federal agediscrimination scheme." Bull I, 16 F. Supp.2d at 98. Similarly, the EEOChas a cognizable interest in monitoring employers' compliance with thatscheme. Therefore, even assuming (as Bull claims) that the ADEA's statuteof limitations bars suits by former Bull employees who signed Releasesmore than 300 days prior to this Court's evaluation of the case, itsimply does not follow that this bar also acts, indirectly, to preventthe Commonwealth and the EEOC from vindicating their distinct interests.Accordingly, Bull's Motion for Summary Judgment against the EEOC andthe Commonwealth is DENIED as to all waivers signed beforeJanuary 29, 1998.25

D. The Lawfulness of Bull's Releases

I turn now to the central issue in this case: The validity of theReleases used byBull from 1994 to the present.26 To evaluate this issue, I mustconsider the various counts in the plaintiffs' Complaints, as applied toeach set of Releases.

1. Releases used from July 1994 to June 1996

The Commonwealth and the EEOC present several strong arguments insupport of their contention that the severance packages and litigationwaivers used by Bull from July 1994 to June 1996 ("the 1994 Releases")violate the OWBPA and the ADEA.27 Consideration of one of thesearguments — the paucity of statistical information provided tolaid-off employees — is sufficient to support the plaintiffs' claimthat all of Bull's 1994 Releases are unlawful, and hence invalid.Evaluation of two of the plaintiffs' other arguments confirms thisconclusion. I need not reach the plaintiffs' remaining claims.

a. Failure to comply with statutory information requirements

As noted earlier, the OWBPA explicitly provides that waivers of ADEArights or claims signed by employees subject to an employment terminationprogram "may not be considered knowing and voluntary" — and,consequently, enforceable — unless the employees receive sufficientinformation about the program. 29 U.S.C. § 626(f)(1)(H).Specifically, the employer must inform the affected employee about the"class, unit, or group of individuals covered by [the] program, anyeligibility factors for such program, and any time limits applicable tosuch program," id. § 626(f)(1)(H)(i), as well as "the job titles andages of all individuals eligible or selected for the program, and theages of all individuals in the same job classification or organizationalunit who are not eligible or selected for the program," id. §626(f)(1)(H)(ii). Further, the employer must provide the information "inwriting in a manner calculated to be understood by the average individualeligible to participate." Id. § 626(f)(1)(H) (emphasis added).

The purpose of these provisions is clear. They are intended to "permitolder workers, " who might otherwise "have no information at allregarding the scope of the [employment termination] program or itseligibility criteria[,] . . . to determine whether the program gives riseto a valid claim under the ADEA." S.Rep. No. 101-263, at 32 (1990),reprinted in part in 1990 U.S.C.C.A.N. 1509, 1537-38.

The information Bull provided to employees subject to RIFs between July1994 and June 1996 violates both the letter and the spirit of thesestatutory requirements. To begin with, employees subject to involuntaryRIFs received absolutely no information about the other individualsaffected by the termination programs; they were left entirely in the darkas to whether the programs "[gave] rise to a valid claim under the ADEA."Id.

Employees subject to voluntary RIFs received some statisticalinformation about the programs, but the information was inadequate toalert affected employees to potential age-discrimination claims. Thestandard outlined in the OWBPA — "calculated to be understood bythe averageindividual eligible to participate" in the RIFs, 29 U.S.C. § 626(f)(1)(H) — was not followed. Instead, voluntarily terminatedemployees received only abstruse spreadsheets detailing the "work units"involved in the RIF,28 the job titles and ages (in ten-year agebands) of eligible and ineligible employees, and the total numbers ofeligible and ineligible employees in each work unit. It is conceivablethat an affected employee could somehow discover a valid ADEA claimhidden in these columns of numbers, but not without the help of astatistician. Further, the spreadsheets do not provide any informationabout "eligibility factors."29 Id. § 626(f)(1)(H)(i). Thus, thedata provided to employees subject to RIFs during this two-year periodwere entirety inadequate to comply with either the intent or the plainmeaning of the OWBPA's information requirements.

b. Other shortcomings of the 1994 Releases

In addition to the informational deficiencies of the 1994 Releases,several other defects provide independent grounds for holding theseReleases invalid. For example, employees subject to involuntary RIFs didnot receive the statutorily required forty-five-day considerationperiod. As noted above,30 as of 1994, Bull did not understand theOWBPA's provisions regarding "employment termination program[s]" to applyto involuntary layoffs. The company therefore interpreted the OWBPA torequire only a twenty-one-day consideration period for involuntarilylaid-off employees.31

The statute makes no such distinction. And, to the extent it isambiguous on this issue at all, the legislative history of the OWBPAmakes clear that the term "employment termination program" was intendedto cover both voluntary and involuntary group layoffs. S.Rep. No.101-263, at 32 (1990), reprinted in 1990 U.S.C.C.A.N. 1509, 1537-38.Thus, the 1994 Releases used by Bull in connection with involuntary RIFscannot be considered "knowing and voluntary" because employees were givenonly twenty-one days to consider whether to waive their ADEA rights andclaims.32

Further, the 1994 Releases expressly interfere with employees' rightsto file charges with the EEOC and to participate in EEOC proceedings orinvestigations. Bull's 1994 Releases purport to proscribea laid-off employee from "SU[ING] BULL FOR ANY CURRENT OR PRIOR CLAIMSARISING OUT OF HIS/HER EMPLOYMENT WITH OR TERMINATION FROM BULL,"33or "bringing or maintaining any complaints or claims," including ADEAclaims. 1994 General Release and Severance Agreement at ¶¶ 3, 4(emphasis in original). This broadly-worded prohibition, which extendsbeyond judicial actions to encompass all "claims," flies in the face ofthe OWBPA's clear proscription of any interference with an employee'sright to instigate or participate in "an investigation or proceedingconducted by the Commission." 29 U.S.C. § 626(f)(4); ef AmericanAirlines, 133 F.3d at 118 n. 7.34 Under the circumstances,therefore, the 1994 Releases cannot be considered "knowing andvoluntary."

c. Conclusion

Thus, I find no genuine issue of material fact regarding the lawfulnessof the 1994 Releases. The Releases are invalid, because laid-offemployees did not execute the ADEA-waivers knowingly and voluntarily,within the meaning of the OWBPA. Accordingly, the Commonwealth and theEEOC's Motions for Summary Judgment are hereby GRANTED with respect tothe invalidity of these waivers.

This holding does not, however, extend to the Commonwealth and theEEOC's requests for equitable relief. All questions of relief areaddressed below.

2. Releases used from July 1996 to January 1998

On or about July 1, 1996, Bull amended its Releases and corrected someof the OWBPA violations. In particular, the company improved thestatistical package provided to individuals subject to voluntary RIFs,provided the same package to individuals subject to involuntary RIFs, andallowed all affected employees forty-five days to consider theReleases.35 Bull used these new Releases ("the 1996 Releases")until late January 1998.

Bull's 1996 updates to its Releases correct most of the deficiencies ofthe 1994 version, but the 1996 Releases still interfere with employees'ability to "bring[] or maintain[] any complaints or claims," explicitlyincluding "claims or rights under . . . the [ADEA]." 1996 General Releaseand Severance Agreement at ¶ 3. As discussed above, this provisionclearly violates the OWBPA's strict protection of an employee's right toinstigate or participate in an EEOC proceeding. 29 U.S.C. § 626(f)(4). Thus, I find that like the 1994 Releases, Bull's 1996 Releasescannot be considered "knowing and voluntary."36 Summary judgment ishereby GRANTED in favor of the Commonwealth and the EEOC with respect tothe invalidity of the 1996 waivers.

3. Releases used from January 1998 to the present

On or about January 29, 1998, Bull again amended its Releases. Amongotherchanges, the company increased by $100 the compensation provided toeligible individuals who executed a release,37 removed theindemnification and confidentiality provisions, and the covenant not tosue, and added a clause preserving an employee's right to "fil[e],cooperat[e] with, or participat[e] in an age discrimination proceedingbefore a state or federal Fair Employment Practices Agency" (though notto "recover any monetary benefits in such proceeding"). 1998 GeneralRelease and Severance Agreement at ¶¶ 2, 3. These amended Releases("the 1998 Releases") remained in effect, with no substantive changes,through at least September 2000.

The 1998 amendments largely cure the legal deficiencies of Bull's 1994and 1996 Releases. Nevertheless, at least two questions remain: First, dothe revised "information packets" satisfy the OWBPA's stringentrequirements; and second, does the new benefits package constitutesufficient consideration for an employee's agreement to waive all ADEArights? For the reasons discussed below, I cannot answer either questionas a matter of law.38

a. The revised 1998 information packet

Compared to the confusing spreadsheets provided to employees laid offbetween 1994 and 1997, Bull's 1998 information packets are a model ofclarity. The 1998 information sheets, entitled "Description of Work Unitand Corresponding Demographic Data," provide four categories of data: (1)The name of the employee subject to the RIF; (2) the names of theaffected "Organization" and "Work Unit" within Bull; (3) the titles andages of all employees in the work unit who are affected by the RIF; and(4) the titles and ages of all employees in the work unit who are notaffected by the RIF. Further, the information is provided in a formatthat seems quite likely to be "understood by the average individualeligible to participate." 29 U.S.C. § 626(f)(1)(H). Therefore, Icannot find as a matter of law that these 1998 information packetsviolate the OWBPA's information requirements.

On the other hand, the record before me does not support summaryjudgment in favor of Bull regarding the sufficiency of the 1998information packets. Significant factual questions remain unanswered. Forexample, viewed in the light most favorable to the plaintiffs, the recorddoes not clearly establish whether Bull's successive RIFs in 1998, 1999,and 2000 formed part of a single "employment termination program" (inwhich case the company should have provided affected employees withcumulative information about the RIFs) or whether each RIF was instead anindependent "employment termination program" (in which case no cumulativeinformation was necessary).

Further, I have some doubt about Bull's explanation of the factors usedto determine "eligibility" for the 1998-2000 RIFs: Bull maintains thatthe company satisfied the OWBPA's "eligibility factors" requirement byproviding all employees with information about their "eligibility" for thecompany's Severance Pay Plan. As discussed above, this argument involvesan untenable reading of the OWBPA.39 On the other hand, theplaintiffs have not provided me with any evidence clearly indicating thatBull actually employed program-wide eligibility factors in selectingwhich employees to terminate in 1998, 1999, and 2000.

Thus, genuine factual issues remain unresolved regarding the legalsufficiency of the information packets that Bull included with the 1998Releases. I therefore decline to grant summary judgment on thisquestion.

b. The 1998 benefits package

Similarly, the record now before me does not support judgment as amatter of law regarding the sufficiency of the benefits package Bullprovided as consideration for an employee's execution of a 1998 Release.

As plaintiff's note, employees who executed Bull's 1994 and 1996Releases received only one week of pay per full year of service to thecompany — the same benefits package received by employees laid-offbefore 1994, who were not required to execute waivers.40 In 1998,Bull added $100 to this compensation package. I cannot determine as amatter of law whether the resulting package-$100 plus one week of pay peryear of service — constitutes "consideration in addition toanything of value to which the individual already is entitled,"29 U.S.C. § 626(f)(1)(D).

Among other difficulties, on the record now before me, I cannotdetermine whether Bull's conduct in connection with its severance-payplans created an implied contract with employees, under which a terminatedemployee was entitled to receive a week of pay per year of service upontermination, independent of the Release plan. Depending on the answer tothis question, a second, relevant factual question concerns the adequacyof $100 as compensation for an employee's relinquishment of potentiallyvaluable ADEA claims.41

These questions cannot be answered as a matter of law. I thereforedecline to grant summary judgment to either party on the legalsufficiency of the 1998 benefits packages.

c. Conclusion

Numerous factual issues remain unresolved regarding the sufficiency ofBull's 1998 information packets and benefits packages. Thus, I reservefor trial all questions regarding the validity of the 1998 Releases.

E. The Commonwealth and EEOC's Claims for Relief

Having concluded that Bull's 1994 and 1996 Releases violate variousOWBPA provisions, I must now evaluate the plaintiffs' claims for relief.The Commonwealth and the EEOC request a broad range of remedies, from asimple declaration that the Releases in question are invalid, to a morefar-reaching declaration that Bull cannot raise the ADEA's statute oflimitations as a defense to any future age-discrimination suit brought byindividual employees who executed Releases between 1994 and 1997.42As discussed below, most of the requested forms of equitable relief hingeon factual findings regarding the ADEA's statute of' limitations, andthey are therefore inappropriate at this stage in the proceedings.Accordingly, I will address these requests for relief at trial.

1. Declaratory Relief

For the reasons discussed above, I find that there are no genuineissues of material fact regarding the invalidity of Bull's 1994 and 1996Releases (used from July 1994 until January 1998, in connection withseveral RIFs). Accordingly, I hereby DECLARE the ADEA-related portion ofthose Releases invalid as a matter of law.43

2. Provision of Information

One further form of partial relief is appropriate at this time. Asdiscussed above, the information Bull provided to the employees whoexecuted the 1994 Releases was entirely inadequate to inform them ofpotential age-discrimination claims. These employees, therefore, cannotbegin to evaluate their current legal position until they are providedwith more information about the RIFs conducted by Bull between July 1994and July 1996. At the very minimum, then, Bull is ORDERED to provide allemployees subject to voluntary or involuntary RIFs during this two-yearperiod with a copy of this decision.

Ultimately, I also intend to order Bull to provide these employees withall of the information mandated by the OWBPA, in a form "calculated to beunderstood by the average individual" who participated in those RIFs.29 U.S.C. § 626(f)(1)(H). I cannot, however, now determine whetherthis information should be cumulative since that question depends onfactual considerations:If Bull's RIFs between July 1994 and July 1996 constituted a single"employment termination program," as the plaintiff's imply, then Bullmust provide employees who exercised Releases in that two-year periodwith information about the entire program. If, on the other hand, eachRIF occurred independently of the others, as Bull avers, then Bull needonly provide individual employees with information about the particularRIF of which they were a part. I will consider this issue further attrial.

3. Statute of Limitations Issues

It is clear that under the OWBPA, the Releases I here declare invalidcannot be used to bar a subsequent ADEA claim filed by an individualemployee. The plaintiffs, however, want more. They want to ensure thatBull cannot raise the ADEA's 300-day statute of limitations44 as adefense to any future age-discrimination claims filed by employees whoexecuted invalid Releases.45

Plaintiffs' request requires consideration of two distinct questions:(1) Whether the ADEA's limitations period began to run when the employeesexecuted the 1994 and 1996 Releases, and (2) if so, whether the employeesare entitled to equitable tolling of that limitations period. I cannotanswer these questions here. To do so, I would have to evaluate bothBull's conduct in arguably misleading its employees as to their rights (afactor relevant to equitable tolling of the limitations period), andindividual Bull employees' independent knowledge of their rights,independent of the company's conduct (a factor relevant both totriggering and to tolling the limitations period). As discussed below,the record is too sparse to resolve the former issue on summaryjudgment, and consideration of the latter is beyond the scope of thiscase, as Madigan is the only individual plaintiff whose claims are beforeme.

a. Triggering the ADEA's Statute of Limitations — Background CaseLaw

The First Circuit has held that, as in other employment discriminationactions, the limitations period in ADEA cases begins to run when anemployee "`knows that he has been hurt and also knows that his employerhas inflicted the injury.'" American Airlines, 133 F.3d at 123 (citingMorris v. Government Development Bank of Puerto Rico, 27 F.3d 746, 750(1st Cir. 1994) [hereinafter "Morris"]). The case law is more ambiguous,however, as to the character and extent of knowledge necessary to meetthis standard.

In Morris, the plaintiff sued his employer, the Government DevelopmentBank of Puerto Rico, alleging discrimination on the basis of race andpolitical beliefs in connection with the Bank's decision to suspend himfrom his job as a financial analyst. The district court dismissed theclaims as time-barred, because more than a year had passed since Morriswas suspended.46 In upholding the ruling, the First Circuitspecifically rejected Morris' assertion that his claim "did not accrueuntil he knew of both the suspension and [his employer's] discriminatoryanimus." Morris, 27 F.3d at 749 (emphasis in original). The court went onto observe that a "plaintiff need not know all the facts that support hisclaim in order for countdown to commence." Id. at 750; accord AmericanAirlines, 133 F.3d at 123 (citing Morris with approval). Significantly,the Morris court then tempered this statement by suggesting that adifferent outcome might have been appropriate had Morris lacked"sufficient information" at the time of his suspension "to enable him tobring a discrimination claim against the bank." Morris, 27 F.3d at 750.

The First Circuit walked a similarly fine line in discussing the ADEAclaims at issue in America v. Airlines. That case involved severalemployees of American Airlines ("American") who executed waivers of theirADEA claims prior to participating in a voluntary early retirementprogram ("VERP"). When those same employees began to file administrativeage-discrimination claims with the Puerto Rico Anti-Discrimination Unitand the EEOC, American filed a complaint in federal district courtseeking a declaratory judgment that the waivers were valid. The employeesthen counterclaimed, alleging violations of the ADEA, the OWBPA, andstate law. The court agreed with the employees that the waivers violatedthe OWBPA.47 In holding the respondents' ADEA counterclaimstime-barred, however, the court indicated that the employees' claimsaccrued at the time they accepted the VERP, even though American did notreplace them with younger workers until a later date. American Airlines,133 F.3d at 123. The court apparently reasoned that since replacement byyounger workers is not necessary to a prima facie ADEA claim, suchreplacement cannot be necessary to trigger the ADEA's statute oflimitations — even if a terminated employee does not suspectdiscrimination until the replacement occurs. Id.

Again, however, as in Morris, the American Airlines court then softenedthe effect of its ruling by reiterating that a cause of action does notaccrue at the time of an adverse employment action unless the employeehas "sufficient information" to recognize that the adverse action wasdiscriminatory. Id. The American employees could not benefit from thisqualification, though, because they "knew that the [VERP] was offeredonly to employees over forty-five years of age" when they agreed toparticipate in the program. Id.

The rule that emerges from these cases is slippery at best. To triggerthe ADEA's statute of limitations, an employee clearly must have enoughinformation to "know[] or ha[ve] reason to know of thediscriminatory act that underpins his cause of action." Morris, 27 F.3dat 749. On the other hand, the employee need not "know all the facts thatsupport his claim." Id.; accord American Airlines, 133 F.3d at 123.

In addition, the very existence of the OWBPA suggests a furtherconsideration that must be weighed in determining whether and when theADEA's statute of limitations was triggered: The complicated and elusivenature of many age-discrimination claims. In enacting the OWBPA'sinformation requirements, Congress specifically recognized that anemployee fired as part of an employment termination program may not havesufficient information to determine her rights under the ADEA. S.Rep.No. 101-263, at 32 (1990), reprinted in part in 1990 U.S.C.C.A.N. 1509,1537-38. Clearly, therefore, one cannot reach any conclusion regardingthe ADEA's statute of limitations in a case involving an employeetermination program without considering the employer's compliance withthe OWBPA's unique information requirements.

Any conclusion on the statute-of-limitations issue necessarily involvesa detailed ad hoc analysis of two questions: (1) What an employee knew ordid not know when she executed a Release, and (2) what Bull did or didnot do to mislead her,48 to which I now turn.

b. What Each Employee Knew: The Import of American Airlines

Bull suggests the American Airlines decision stands for the propositionthat very little information is necessary to alert an employee to apotential age claim — and, in turn, to trigger the ADEA'slimitations period. The company notes the American Airlines courtconcluded that an "employee has actual knowledge of his rights if he`learns or is told of his ADEA rights, even if he becomes only generallyaware of the fact there is a statute outlining age discrimination'"American Airlines, 133 F.3d at 124 (citing Kale v. Combined InsuranceCo. of Am., 861 F.2d 746, 752 (1st Cir. 1988)) (emphasis added). Bullfurther observes that in American Airlines, the First Circuit deemed itsufficient that the airline's waivers contained a paragraph explicitlyreleasing American from liability under the ADEA.

In reliance on this reasoning, Bull points out that its Releases, too,contained a paragraph in which employees released Bull from all liabilityunder the ADEA, and a later paragraph in which employees acknowledgedthat they had read the "Agreement carefully and underst[ood] all of itsprovisions." 1994 General Release and Severance Agreement at ¶ 7.Under the American Airlines test, Bull argues, these clauses make itdifficult for employees to claim they had no knowledge of their ADEArights at the time they signed the Releases.

I disagree. To begin with, I find the American Airlines rulinguntenable. The First Circuit essentially concluded that even though theairline's waivers were totally invalid under the OWBPA, the waiversnevertheless conveyed sufficient information to trigger the ADEA'sstatute of limitations. This holding thus purports to impose twostandards on ADEA claims in cases involving waivers: The strict,statutory OWBPA standard, applicable to the waivers themselves, and thecommon law statute-of-limitations standard, applicableto the underlying ADEA claim. Under this peculiar reasoning, a waiverthat entirely fails to satisfy the first statutory standard maynevertheless validly prevent an employee from vindicating her rightsunder the second standard, simply by dissuading the employee from filingsuit for at least 300 days.

The Supreme Court's subsequent decision in Oubre, supra, plainly callsinto question the American Airlines holding. In Oubre, the holding wasthat the contract law doctrine of ratification could not save a releasethat violates the OWBPA. Oubre, 522 U.S. at 427, 118 S.Ct. 838. That is,an employee who receives benefits in exchange for executing an unlawfulrelease need not tender back those benefits prior to filing anage-discrimination claim against her employer, as she would undercontract law principles. But the decision's rationale was broader: TheCourt reasoned that the elaborate requirements of the OWBPA's statutoryscheme necessarily trump common law contract principles. To holdotherwise, the Court noted, would "frustrate the [OWBPA's] practicaloperation as well as its formal command," because

In many instances a discharged employee likely will have spent the moneys received and will lack the means to tender their return. These realities might tempt employers to risk noncompliance with the OWBPA's waiver provisions, knowing it will be difficult to repay the moneys and relying on ratification. We ought not to open the door to an evasion of the statute by this device.

Id. (emphasis added).

Although the First Circuit reached a similar decision regarding theratification doctrine in American Airlines, the court somehow failed torecognize that in declaring the airline's waivers invalid under thestrict requirements of the OWBPA, but nevertheless holding the employees'counterclaims time-barred, it made precisely the error decried in Oubre:It "tempt[ed] employers to risk noncompliance with the OWBPA." Id. As thecourt acknowledged, the statutory violation at issue in American Airlines— failure to "advis[e the] employees to consult an attorney priorto electing to retire" — rendered the employees "more likely toface a critical decision without the knowledgeable guidance necessary toassess whether [they are] possibly . . . victim[s] of agediscrimination." American Airlines, 133 F.3d at 120.

To recognize this flaw but simultaneously find that the Americanemployees' age discrimination claims accrued at the time they signed theVERP — when they admittedly lacked the guidance necessary to assesstheir legal position — is to "frustrate the [OWBPA's] practicaloperation as well as its formal command." Oubre, 522 U.S. at 427, 118S.Ct. 838. Such an outcome clearly permits (indeed, encourages) employersto design unlawful waivers that do not recommend consulting an attorney,or that otherwise mislead employees about their potentialage-discrimination claims, in the hopes that after they leave theirposition, they will be sufficiently confused to sit on their rights untilthe ADEA's limitations period has expired.

Even assuming American Airlines is good law, however, it still does notdictate the outcome in the present case. Whatever the airline's waiverssaid, the fact is that employees who participated in American's VERP knewat the time "that the program was offered only to employees overforty-five years of age." American Airlines, 133 F.3d at 123. As aresult, those employees "had sufficient information to bring theirdiscrimination claims." Id.

The same is not true here. In this case, there is no evidence thatterminated Bull employees were aware of any specific age-relatedqualifications for the company's RIFs. Further, at least with respect toBull's 1994 Releases, the information provided to affected employees wasentirely inadequate to apprize them of any such qualifications.49Thus, even if the American Airlines standard governs this case, it is notclear on this record that individual Bull employees who executed invalidreleases had enough information at the time of their termination totrigger the ADEA's statute of limitations.

c. What Bull Did to Mislead: The Doctrine of Equitable Tolling

Although I cannot now determine whether the ADEA's statute oflimitations was triggered at the time Bull employees executed the invalidReleases, I nevertheless turn briefly to the question of equitabletolling, which is available to save an untimely ADEA claim in cases inwhich the plaintiff "demonstrates `excusable ignorance' of his statutoryrights." American Airlines, 133 F.3d at 124 & n. 13.

The doctrine of equitable tolling is intended to ensure that adefendant is not "permitted to escape liability by engaging in misconductthat prevents the plaintiff from filing his or her claim on time." Kale,861 F.2d at 752 (internal citations omitted). See generally, Ruffino v.State Street Bank and Trust Company, 908 F. Supp. 1019, 1039 (D.Mass.1995) As such, the doctrine looks, in part, to an employer's actions. Ifplaintiffs here — or an individual plaintiff in a future action— can produce evidence indicating that Bull knowingly ordeliberately withheld critical information about its RIFs from affectedemployees, equitable tolling might well be appropriate, even though theinvalid Releases concededly apprized employees of the existence of theADEA. That is, Bull cannot be allowed to escape liability simply becauseit mentioned the ADEA in its Releases, if the company actively withheldfrom affected employees the information necessary for them to recognizetheir potential claims under the act. Cf. American Airlines, 133 F.3d at124 (noting that American's recruitment of new, younger employees toreplace the respondents should have put them on notice of the company'spossible violation of the ADEA, and concluding that "[i]n light of thesefacts, the employees' claim that their `excusable' ignorance caused themto wait far longer than 300 days to pursue their claims is untenable").

d. Conclusion

In conclusion, I cannot determine as a matter of law whether the ADEA'sstatute of limitations bars future claims by former Bull employees whoexecuted the 1994 or 1996 Releases. Plainly, the issue of whether Bull'sconduct triggers the application of equitable tolling requires morefactual development. At the same time, the issue of what individualemployees knew or did not know surely cannot be resolved on this recordat all, with respect to former employees who are not parties to thisaction.

F. Bull's Motion for Summary Judgment Against Madigan

I turn now to the questions raised in Bull's Motion for SummaryJudgment against Madigan. Bull has moved for summary judgment on allclaims asserted by Madigan. I consider each claim in turn (noting thatthis Court previously dismissed Count V of Madigan's Complaint,which raised allegations under Title VII [docket entry # 10, civ. caseno. 97-12450]).

1. Counts I and II: Violation of OWBPA

Madigan first argues that the Release he executed in connection withhis layoff in 1994 violates various provisions of the OWBPA. Because Ihave already determined that Bull's 1994 Releases violate the OWBPA, Ineed not consider those Releases further here, nor need I determinewhether the OWBPA provides Madigan, as an individual, with a cause ofaction.50 Bull's Motion for Summary Judgment of these two Counts istherefore DENIED.

2. Count III & age-based portions of Count VII: Violation of theADEA, 29 U.S.C. § 623(a), and M.G.L. c. 151B § 4

Madigan also raises various substantive age-discrimination claims underthe ADEA itself, and under Massachusetts law. Bull argues that it isentitled to summary judgment of these claims for two reasons. First, withrespect to Madigan's claim that Bull's violations of the OWBPA themselvesconstitute unlawful employment practices within the meaning of29 U.S.C. § 623(a), Bull again argues that the OWBPA does not itselfcreate a cause of action. Second, with respect to all of Madigan'ssubstantive age-discrimination claims, Bull alleges that Madigan failedto raise these claims in the administrative charges he filed with theMCAD, and therefore that Madigan has failed to exhaust his administrativeremedies.

a. Whether OWBPA violations themselves comprise cause of action underADEA

Bull's first argument supporting summary judgment of Madigan'ssubstantive age-discrimination claims essentially restates the company'sclaim that the OWBPA does not itself create a cause of action under theADEA. Although I have already considered this argument in the context ofall three plaintiffs' requests for declaratory judgment regarding thevalidity of the various Bull waivers, the context in which Bull nowraises the argument, an action for damages is sufficiently different towarrant renewed consideration of the issue.

In its Motion to Dismiss the Commonwealth's Complaint, (and again inits Motions for Summary Judgment against all three of the plaintiffs inthis case) Bull argued that the OWBPA does not itself create anindependent cause of action, and further that the ADEA's broadenforcement scheme does not extend to enforcement of the OWBPA's waiverconditions. Bull suggested that "the only way to test the validity of awaiver is when it is offered as a defense to an actual ADEA claim." BullI, 16 F. Supp.2d at 106. I responded that this "crabbed reading of the[ADEA's] enforcement provision" would severely undermine the purposes ofthe OWBPA, as employees would be unable to challenge directly thevalidity of a waiver or release, and would be dissuaded from filingsubstantive ADEA claims by any penalties contained in the samequestionable waiver or release. Id. Adoption of this reading wouldtherefore create an incentive for employers to violate the OWBPA, as longas the offending waiver or release included a sufficiently draconianpenalty for bringing a substantive suit — clearly an illogicalresult. Cf. Oubre, 522 U.S. at 427, 118 S.Ct. 838 (noting, in a discussionof ratification of an invalid waiver of ADEA claims, that "[i]n manyinstances a discharged employee likely will have spent the moniesreceived and will lack the means to tender their return. These realitiesmight tempt employers to risk noncompliance with the OWBPA's waiverprovisions, . . . relying on ratification. We ought not to open the doorto an evasion of the statute by this device.").

In the specific context of Madigan's substantive claims forage-discrimination damages, however, Bull's argument is more cogent. Bullargues that the only remedy to which Madigan is entitled is the relief towhich he would have been entitled had the employer decided not to use awaiver at all. That is, although violation of the OWBPA invalidates awaiver, (and an employee may well be entitled to a declaratory judgmentvoiding it) the same violation does not itself entitle Madigan to damagesin the absence of substantive age discrimination.

I find this argument persuasive. The ADEA's cause of action provisionenables "any person aggrieve" to bring a claim "for such legal orequitable relief as will effectuate the purposes" of the statute.29 U.S.C. § 626(c). The statute's purposes include "promot[ion of]employment of older persons based on their ability rather than age;" andelimination of "arbitrary age discrimination in employment."29 U.S.C. § 621(b). A cause of action to enforce the OWBPA'sprovisions (for example, through a judgment declaring a waiver invalid)directly "effectuate[s]" these purposes by ensuring that older employeesonly waive their ADEA claims voluntarily and knowingly. An action fordamages based on OWBPA violations, however, is more complex. There is nomeasure of damages deriving from an invalid waiver that is separate anddistinct from an employee's interest in escaping age discrimination.Madigan's claim for damages deriving from Bull's OWBPA violationsthemselves, without more, cannot stand. Paiascik — Lambeth v.Textron Automotive Co., Inc., 2000 WL 1875873 (D.N.H. 2000) (unpublisheddecision) (reaching a similar conclusion, and specifically distinguishingBull I). Accordingly, Bull is entitled to judgment as a matter of law onthis portion of Count III (Madigan's Complaint ¶ 55).

b. Exhaustion of administrative remedies

Bull's second argument supporting summary judgment of Madigan'ssubstantive age-discrimination claims relates to Madigan's failure toallege age discrimination in his administrative filings with the MCAD.Bull notes that filing of an administrative charge with the EEOC and theMCAD is "a prerequisite to the commencement of a civil action under theADEA." Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir. 1990).Although Madigan did file a Charge of Discrimination ("Charge") with theMCAD (and simultaneously with the EEOC) on March 23, 1995, he made nomention of discrimination on the basis of age, indicating only that he"believe[d] that [he] was discriminated against by Bull . . . on thebasis of disability and retaliation."51 Madigan's Charge ofDiscrimination, Particulars. Further, Bull indicates that althoughMadigan's counsel52 mentioned apotential age-discrimination claim at the MCAD's investigativeconference, held on June 7, 1995, and represented that she would file anamended complaint adding that claim, she never did so. As a result, theMCAD's investigation of Madigan's complaint extended only to hisallegations of disability discrimination.53

Madigan attempts to save his age-discrimination claims by observingthat the "`exact wording of the charge of discrimination need not presagewith literary exactitude the judicial pleadings which may follow,'"Powers, 915 F.2d at 39 (citing Tipler v. El. duPont deNemours & Co.,443 F.2d 125, 131 (6th Cir. 1971) (internal citations omitted)), and thatthe "critical question is whether the claims set forth in the civilcomplaint come within the `scope of the . . . investigation which canreasonably be expected to grow out of the charge of discrimination'" id.(citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970)). Madigan argues that because his age-related claims were discussedat the MCAD's investigative conference, those claims necessarily fallwithin the scope of the investigation that could reasonably have beenexpected to grow out of Madigan's Charge.

Under the particular facts of this case, I disagree. It may well betrue that in many circumstances, a party's mention of alternate theoriesof discrimination during an MCAD investigative conference is sufficientto bring those theories within the likely scope of an MCADinvestigation. In this case, however, Madigan's counsel specificallyindicated that she would file an amended complaint to add Madigan'sage-related claims, and then she failed to do so. This change of courselikely indicated to MCAD — and to Bull — that Madigan haddecided not to pursue his age-related claims. I therefore find thatMadigan's age-related claims fall outside the scope of any MCADinvestigation likely to "grow out of' Madigan's various representationsto and interactions with the agency.54 Accordingly, Bull is entitledto summary judgment of these claims due to Madigan's failure to exhaustadministrative remedies.55

3. Count IV: Violation of the ADA, 42 U.S.C. § 12112

With respect to Madigan's claim of disability discrimination, Bullargues it is entitled to summary judgment because Madigan's Release,executed in 1994, validly waives his disability-related claims eventhough the same Release is invalid as to Madigan's age-relatedclaims.56 In supportof this position, Bull maintains that the specific protections of theOWBPA extend only to claims of age discrimination under the ADEA.Further, Bull notes that both the Supreme Court and the First Circuithave implicitly recognized that a release or waiver may be invalid as toADEA claims but valid as to non-ADEA claims. Oubre, 522 U.S. at 428, 118S.Ct. 838 (indicating that questions of "restitution, recoupment, orsetoff against the employee . . . may be complex where a release iseffective as to some claims but not as to ADEA claims"); AmericanAirlines, 133 F.3d at 121 (indicating that a ruling regarding thevalidity of ADEA releases under the OWBPA does not "automatically disposeof the remainder" of an employee's claims (citing Long v. Sears Roebuck& Co., 105 F.3d 1529, 1545 (3d Cir. 1997))).

Although I agree with Bull that it is at least possible that a waivercould violate some technical provision of the OWBPA and neverthelessvalidly waive all non-ADEA claims, I do not agree that the record nowbefore me eliminates all genuine issues of material fact regarding thevalidity of Madigan's waiver of his ADA claims. To be enforceable, "ADAwaivers and releases must be knowing and voluntary, as evidenced by thetotality of the circumstances." Rivera-Flores v. Bristol-Myers SquibbCaribbean, 112 F.3d 9, 10 (1st Cir. 1997). Various factors are relevantto this inquiry, including the amount of time a plaintiff was given tostudy the waiver agreement, and the presence or absence of independentadvice (such as that of counsel). In this case, there is some question asto the precise amount of time Madigan was given to consider the waiver,and there is considerable question as to whether Bull made coercive phonecalls to Madigan — circumventing his counsel — that scaredhim into executing the Release. In light of these unresolved issues, Icannot find, as a matter of law, that Madigan voluntarily and knowinglywaived his right to file all non-ADEA claims. Accordingly, Bull's requestfor summary judgment of Count IV is hereby DENIED.57

4. Count VI: Violation of ERISA

Next, I turn to Madigan's charge that Bull's treatment of him violatesERISA. As Bull notes, in order to establish an ERISA violation, "aplaintiff must present sufficient evidence from which the employer'sspecific intent to interfere with the plaintiff's [retirement] benefitscan be inferred." Barbour v. Dynamics Research Corp., 63 F.3d 32, 38 (1stCir. 1995). In this case, Madigan's sole factual support for his ERISAclaim is that he was laid off about eighteen months before he would havebecome entitled to enhanced retirement benefits, and that Bull knew hewas intent on remaining employed with the company until those benefitsvested. Madigan offers no other facts to support his contention that Bullintended to interfere with his ERISA rights. As Madigan was apparentlylaid off as part of a large-scale RIF, however, it is unreasonable topresume, in the absence of any additional evidence, that the timing of histermination was deliberately chosen to interfere with the vesting of hisretirement benefits.58

Further, even if Madigan could substantiate a prima facie claim ofintentional interference with ERISA rights, Bull would then be entitledto "articulate . . . a non-discriminatory reason for its" decision toterminate him; the burden would then shift back to Madigan to prove "(1)that [Bull's] articulated reason for its employment actions was apretext; and (2) that the true reason was to interfere with [Madigan's]receipt of benefits." Barbour, 63 F.3d at 39 (emphasis added). Inanticipation of this line of argument, Bull indicates that Madigan'stermination resulted from Bull's decision to conduct an RIF at theLawrence facility, where Madigan originally worked, and further, thatthis RIF was "economically motivated and resulted from a change inbusiness priorities and cost cutting measures." Bull's Memorandum inSupport of its Motion for Summary Judgment against Madigan at 17. Madiganresponds to this proposed, legitimate non-discriminatory reason for histermination with vague references to Bull's evident concern about thecosts of its pension obligations and the unsupported assertion that "adesire to reduce pension liability was a determining factor in[Madigan's] discharge." In the absence of any suggestion that Bull madeits decision to terminate him based on its concern about the costs of hispension obligations, however, "mere awareness of the high cost of pensionobligations . . . [is] insufficient . . . to establish . . .discriminatory intent," Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323,331 (1st Cir. 1996), and it falls far short of the sort of factualsupport that would be necessary to prove pretext.

Thus, on the record before me, I find no genuine issue of fact thatBull acted with the specific intent necessary to support an ERISA claim.Accordingly, Bull's Motion for Summary Judgment is GRANTED as to Count VIof Madigan's Complaint.

5. Count VII: Violation of M.G.L. 151B, § 4

Finally, I turn to Madigan's remaining state law claims, recalling thatI have already granted summary judgment against Madigan on hisage-related claims, due to his failure to exhaust his administrativeremedies. Bull argues that it is also entitled to summary judgment on theremainder of the claims in Count VII, because Madigan failed to file atimely complaint with the MCAD. In support of this assertion, Bull arguesthat Madigan's Charge was filed on March 23, 1995, six-months andtwo-days after Madigan stated in writing that he wished to take alayoff, and therefore two-days after the statute of limitations ofM.G.L. c. 151B had passed. I need not consider the merits of thisargument, as Bull failed to raise its timeliness concerns either in itsanswers to Madigan's Complaint,59 or in its Partial Motion toDismiss. The company hastherefore waived its right to rely on this affirmative defense. Zipes v.Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d234 (1982) (holding, in the Title VII context, "that filing a timelycharge of discrimination with the EEOC is not a jurisdictionalprerequisite to suit in federal court, but a requirement that, like astatute of limitations, is subject to waiver, estoppel, and equitabletolling"); Christo v. Edward G. Boyle Ins. Agency, 402 Mass. 815,525 N.E.2d 643, 645 (1988) (citing Zipes with approval and reaching thesame conclusion with respect to the six-month statute of limitations inM.G.L. 151B). Accordingly, summary judgment is hereby DENIED as to thenon-age-related portions of Count VII.

IV. CONCLUSION

In conclusion, all four Motions for Summary Judgment filed in this caseare GRANTED in part and DENIED in part. Bull is entitled to summaryjudgment of the EEOC's FLSA claims, and of Madigan's age-discriminationand ERISA claims. The Commonwealth and the EEOC are entitled to judgmentas a matter of law regarding the invalidity of the 1994 and 1996Releases. Further, Bull is ORDERED to provide all employees who executedthe invalid Releases with a copy of this decision.

The outstanding triable issues in this case are therefore:

1. Whether the 1994-1996 RIFs composed a single "employment termination program" for purposes of the OWBPA (and, in turn, what information Bull must now provide to employees affected by those RIFs);

2. The adequacy of the information packets provided to employees who executed the 1996 Releases (and, in turn, what information Bull must now provide to employees who executed those Releases);

3. The validity of the 1998 Releases;

4. All statute of limitations issues relating to potential future age-discrimination actions brought by individual employees who executed invalid Releases;

5. The validity of Madigan's waiver of his ADA claims and rights;

6. The merits of Madigan's ADA claims; and,

7. The merits of Madigan's non-age-related claims under M.G.L. c. 151B.

A status conference is scheduled in this case for Tuesday, July 24,2002, at 2:30 p.m. in Courtroom 2, on the 3rd Floor.

SO ORDERED.

1. 29 U.S.C. § 626.

2. Id. § 621 et seq.

3. Id §§ 211, 215(a)(5).

4. 42 U.S.C. § 12101 et seq.

5. Pub.L. No. 102-166, 105 Stat. 1071 (1991) (codified as amended inscattered sections of 29 and 42 U.S.C.). Madigan includes in his claimviolations of that portion of the Civil Rights Act of 1991 that amendsTitle VII of the Civil Rights Act of 1964.

6. 29 U.S.C. § 1001 et seq.

7. For additional background, see this Court's earlier decision inthis case, Commonwealth of Mass. v. Ball HN Info. Sys., Inc.,16 F. Supp.2d 90 (D.Mass. 1998) [hereinafter "Bull"[].

8. This offer was subject to various eligibility requirements,including a minimum length of service.

9. Bull indicates that it first began to review its severance-pay planin mid-1993, at least two months he fore the Attorney General notifiedBull of the investigation, which suggests that Bull began to considerrevising the company's severance plan prior to the commencement of theAttorney General's investigation. This sequence of events, however,neither proves nor disproves a causal relationship between theinvestigation and the actual revision of the severance plan, which becameeffective after the investigation started.

10. 29 U.S.C. § 626(f)(1)(F)(ii), (H).

In its response to the Commonwealth's Complaint, Bull indicates that asof 1994, the company did not believe its July 1994 involuntary RIFconstituted an "employment termination program under the OWBPA, becausethe RIF included no voluntary or opt-out aspect. While the statutory textof the OWBPA does not define "`exit termination program or otheremployment termination program,' the legislative history states that anexit termination plan can be either voluntary or involuntary." Blackwellv. Cole Taylor Bank, 1997 WL 688880, *4 (N.D.Ill. 1997) (citing S.Rep.No. 101-263, at 32 (1990), reprinted in 1990 U.S.C.C.A.N. 1509,1537-38); accord American Airlines, Inc. v. Cardoza-Rodriguez,133 F.3d 111, 118 n. 5 (1st Cir. 1998) (discussing the same legislativehistory).

11. For example, the OWBPA provides that a waiver "may not beconsidered knowing and voluntary unless . . . the waiver specificallyrefers to rights or claims arising under [the ADEA]," and "the individual[signing the waiver] is advised in writing to consult with an attorneyprior to executing the agreement." 29 U.S.C. § 626(f)(1)(B),(E).

12. Id. § 626(b).

13. The five counts in the Commonwealth's complaint are:

1. Violation of OWBPA Section 626(f)(4): Chilling effect on filing of complaint or claim;

2. Violation of OWBPA Section 626(f)(1)(F)(ii) and (f)(1)(H): Failure to comply with reporting requirement, and failure to provide required 45-day period to consider waivers;

3. Violation of OWBPA Section 626(f)(1)(D)(ii): Failure to provide additional consideration;

4. Violation of ADEA Section 623(a): Unlawful employment practices; and

5. Violation of ADEA Section 623(d): Retaliation.

14. Specifically, the Commonwealth requests that the Court (1) declareBull's Releases invalid and unenforceable; (2) order Bull to inform thoseage-protected employees who signed Releases that the Releases wereinvalid, and therefore that the employees may now bring age-relatedclaims in the MCAD or EEOC (or alternatively, that the employees mayre-negotiate waivers with Bull); (3) order Bull to re-offer (modified)severance packages to age-protected employees who originally refused tosign the waiver; (4) declare that Bull may not raise timeliness orstatute-of-limitations defenses to future age-discrimination chargesfiled with the EEOC or MCAD; and (5) order Bull to cease enforcingexisting Releases.

15. The EEOC's Complaint does not itemize causes of action but allegesviolation of ADEA Section 623(a)(1), (a)(2), and (d), OWBPA Section626(f)(1), and FLSA.

16. Madigan alleges:

1. Violation of OWBPA Section 626(f)(1)(F)(ii), (H)(i) and (H)(ii);

2. Violation of OWBPA Section 626(f)(1)(D);

3. Violation of ADEA Section 623(a);

4. Violation of ADA Section 12112;

5. Violation of Title VII, 42 U.S.C. § 2000e (this cause of action was dismissed by order of this Court dated April 12, 1999);

6. Violation of ERISA; and

7. Violation of M.G.L. Chapter 151B Section 4.

17. American Airlines, 133 F.3d at 117 (discussing the history of theOWBPA).

18. Id.

19. The Older Workers Benefits Protection Act, Pub.L. No. 101-433,29 U.S.C. § 626(f)(1990).

20. Bull has raised the question of whether an independent cause ofaction exists for violations of the OWBPA in connection with the EEOC'sand the Commonwealths actions for declaratory relief. Bull alsochallenges the claim of the individual employee, Madigan, for damages forviolations of the OWBPA. That raises a different issue, which I addressinfra.

21. 29 U.S.C. § 626(d)(2), 633(h).

22. This alternative argument reflects Bull's understanding that theADEAs statute of limitations begins to run only when affected employees"ha[ve] sufficient information to bring their discrimination claims."American Airlines, 133 F.3d at 123. Bull apparently recognizes that thereis some question whether employees subject to involuntary RIEs betweenJuly 1994 and June 1996, none of whom received any data about the RIEs,had sufficient information to trigger the statute of limitations.

23. I briefly dispense here with the EEOC's allegation that Bull'sRIEs violate ELSA. Other than the EEOC's Complaint, none of the filingsin this case seemingly mentions ELSA. Thus, the record before this Courtdoes not support an ELSA cause of action. I therefore find that the EEOChas "fail[ed] to make a showing sufficient to establish the existence of. . . [its ELSA claim,] on which [it] will bear the burden of proof attrial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Accordingly, Bull'sMotion for Summary Judgment is hereby GRANTED with respect to the ELSAclaim.

24. Accord Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355,368, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) (noting, in the context ofTitle VII, that in contrast to "the typical litigant against whom astatute of limitations might appropriately run, the EEOC is required bylaw to refrain from commencing a civil action until it has discharged itsadministrative duties [including conciliation]"); cf. H.R.Rep. No. 102-40(I), at 96 (1991) reprinted in 1991 U.S.C.C.A.N. 549, 634 (noting thatdue to "the similarities between the statutes, the courts have routinelylooked to Title VII precedents in interpreting corresponding provisionsof the ADEA").

25. As noted earlier, I address Bull's claims regarding the lawfulnessof the 1998, 1999, and 2000 waivers below, in the context of evaluatingthe Commonwealth and the EEOC's Motions for Summary Judgment.

26. All four of the motions for summary judgment submitted in thiscase raise this issue in some form, with respect to some set ofReleases.

27. As noted above, Bull's Motion for Summary Judgment with respect tothe 1994 and 1996 Releases does not rely on the validity of thoseReleases, but instead on the ADEAs statute of limitations, which suggeststhat Bull itself recognizes that the validity of the 1994 and 1996Releases is at least contestable as a matter of fact.

28. For example, the sample 1994 information sheet that Bull providedthis Court is titled, obscurely, "Summary of Eligible Employees by AgeGrouping (CSO, CAS, Workflow/Imaging Organizations)."

29. Bull argues that the information provided in its Severance PayPlan regarding employees' eligibility to receive severance pay (such asthe provision denying such pay to "[e]mployees classified as other than`regular' employees," 1994 Severance Pay Plan at ¶ 1) satisfies theOWBPA's requirement that laid-off individuals be informed of "eligibilityfactors" for employment termination programs. 29 U.S.C. § 626(f)(H)(i).

Bull's reading of the term "eligibility factors" would debase theOWBPA. The intent of the statute's information requirement is to alertaffected employees to potential age-discrimination claims. Clearly,therefore, the term "eligibility factors" must refer to the factors usedto determine who is subject to a termination program, not the factorsused to determine who is eligible for severance pay aftertermination.

30. Supra note 10.

31. The 21-day requirement comes from an adjacent provision of theOWBPA, 29 U.S.C. § 626(f)(1)(F)(i).

32. The Commonwealth and the EEOC do not suggest that the Releasesused in connection with voluntary RIFs violate this provision of theOWBPA, as employees subject to voluntary RIFs were given 45 days toconsider the waiver agreement prior to signing.

33. In its deposition of Bull attorney Kurt R. Thelen, the EEOC askedMr. Thelen whether the term "claims" in "the last paragraph of the [1994]General Release of Claims, paragraph 3," included claims filed with MCADor the EEOC. Mr. Thelen answered affirmatively. Thelen Dep. at 162.

34. And in Bull's case, an EEOC investigation was not an abstraction.By 1993 the EEOC was investigating the company.

35. As noted earlier, the 1994 Releases already provided individualssubject to voluntary RIFs with a forty-five day review period.

36. This finding is sufficient to hold Bull's 1996 Releases invalid asa matter of law, so I need not now evaluate the "information packetsprovided in connection with the 1996 Releases."

37. As indicated earlier, prior to this change, employees who executeda Release received one week of pay per full year of service.

38. The Commonwealth also suggests that the 1998 Releases unlawfullyinterfere with an employee's right to participate in an EEOC proceeding,by requiring an employee to acknowledge that she "may not recover anymonetary benefits in such proceeding." 1998 General Release and SeveranceAgreement at ¶ 3.

I am reluctant to discuss this issue at any length on summaryjudgment, as it turns on the overall validity of the 1998 Releases, whichcannot be determined as a matter of law. That is, if the Releases areotherwise valid, then the statement that execution of a Release shieldsBull from having to pay monetary damages is simply true. On the otherhand, if the Releases are otherwise invalid, then the same statement ismisleading and may, in fact, unlawfully inhibit an employee from filing aclaim with the EEOC.

39. Supra note 29.

40. The Commonwealth and the EEOC also challenged the legalsufficiency of the benefits package provided to employees who signedReleases between 1994 and 1997. Because I found the 1994 and 1996Releases invalid for other reasons, I did not reach the question of thebenefits package.

41. Bull argues that this Court should not consider the adequacy ofthe $100 payment that the company made in exchange for an employee'sexecution of a 1998 Release. In support of this position, Bull invokesthe familiar rule of contract law that courts need not be "concerned withthe adequacy of the consideration, as long as it is `valuable.'" V.& F.W. Filoon Co. v. Whittaker Corp., 12 Mass. App.Ct. 932,425 N.E.2d 399, 400 (1981). Given the structure of the OWBPA, however,there is a strong argument that "[t]raditional contract principles comeinto play only after an initial inquiry as to compliance with thestatutory provisions." EEOC v. Johnson & Higgins, 5 F. Supp.2d 181,186 (S.D.N.Y. 1998); cf. Oubre v. Entergy Operations, Inc., 522 U.S. 422,427, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998) (allowing the common lawdoctrine of ratification to apply in cases involving waivers that violatethe OWBPA "would frustrate the statute's practical operation as well asits formal command").

The purpose of the OWBPA is to ensure that an employee's waiver of herage-discrimination claims is truly knowing and voluntary. In light ofthis purpose, I am unwilling to put a $100 price tag on the OWBPA'srequirement of "consideration in addition to anything of value to whichthe [employee] is already entitled." Instead, I will consider at trial,as a question of fact, the adequacy of a $100 payment as compensation forthe specific rights Bull asked its employees to waive "knowingly andvoluntarily."

42. of course, the Commonwealth and the EEOC also request the sameforms of relief with respect to the 1998 Releases. Consideration of theserequests is not appropriate at this time, however, as the validity of the1998 Releases remains unresolved.

43. Because the Releases include a "Validity" provision, under which"the validity of the remaining parts, terms or provisions" of theReleases is not affected by this declaration, 1994 General Release andSeverance Agreement at ¶ 8, I need not address the concern raised byJustice Breyer in Oubre, regarding the difference between a "void"contract, and a contract that is merely voidable by the employee. Oubre,522 U.S. at 430-33, 118 S.Ct. 838 (Breyer, J., concurring).

44. In a state like Massachusetts, which has a state agency toinvestigate age-discrimination claims, an aggrieved party must file anADEA claim with the EEOC within 300 days "after the alleged unlawfulpractice occurred." 29 U.S.C. § 626(d). If the EEOC subsequentlydismisses the charge or otherwise terminates the proceedings, theaggrieved party then has ninety days in which to file a civil action.Id. § 626(e).

45. For example, the Commonwealth asks the Court to declare that eachformer Bull employee be entitled to be placed "in the same position as(s)he would have been in had Bull HN complied with the OWBPA," and toorder Bull to re-offer new valid Releases to all affected employees.Declaring the 1994 and 1996 ADEA Releases invalid essentiallyaccomplishes this result: Bull's violation of the OWBPA endows formeremployees with precisely the same rights they had when they executed theinvalid Releases — the rights to contract and to fileage-discrimination claims. The only unanswered question is what effectthe passage of time (from the signing of a release to the filing of thisaction, and again from the filing of this action to this decision) has onthose rights.

46. Morris brought his claims under 42 U.S.C. § 1983. The one-yearstatute of limitations derives for Puerto Rico's limitations period forpersonal injury actions. Morris, 27 F.3d at 748.

Although Morris' claims did not involve age discrimination, the FirstCircuit has since cited Morris as a "categorical[]" statement of thestandard for determining when the limitations period begins to run in theemployment discrimination context. American Airlines, 133 F.3d at123.

47. American's waivers failed to advise employees to consult anattorney before deciding to accept the VERP. American Airlines, 133 F.3dat 120.

48. In this case, for example, relevant factual questions include theextent of simultaneous press coverage of the Massachusetts AttorneyGeneral's investigation of Bull's RIFs. If such coverage was extensive,it may have been sufficient to inform terminated employees of theirpotential claims, and hence to trigger the ADEAs statute oflimitations.

49. As noted earlier, I cannot determine the adequacy of the 1996 or1998 information packets as a matter of law. The parties should beprepared to pursue these issues at trial.

50. As noted above, I addressed this argument in Bull, in the contextof Bull's Motion to Dismiss the Commonwealth's Complaint.

51. In fact, Madigan's Charge nowhere mentions his age.

52. Although Madigan submitted his original MCAD complaint pro se, hewas represented by counsel at the time of the MCAD investigativeconference.

53. I recognize, however, that "`it is not the scope of the actualinvestigation pursued that determines what judicial] complaint may befiled.'" Powers, 915 F.2d at 39 n. 4 (citing Schnellbaecher v. BaskinClothing Co., 887 F.2d 124, 128 (7th Cir. 1989)).

54. Although neither party raises this point, I note that the standardfor exhaustion may in fact be stricter for Madigan's state law claim, assome recent Massachusetts state court decisions indicate . . . "that aplaintiff cannot bring a [state] discrimination claim in court unless theMCAD complaint explicitly stated and described the type of discriminationalleged." Silva v. Hit or Miss, 73 F. Supp.2d 39, 41 (D.Mass. 1999)(emphasis added).

55. This holding does not prevent Madigan from re-raising his ageclaims with the MCAD, particularly in light of this Opinion's holdingsregarding the validity of Madigan's Release of his ADEA rights. (For thereasons discussed earlier in the context of the Commonwealth and theEEOC's claims, I do not now address the statute-of-limitations concernsraised by such a re-filing.)

56. Bull does not admit that Madigan's Release violates the OWBPA.Rather, the company argues that even if the Release is invalid under theOWBPA, it remains valid with respect to any non-ADEA claims. Thedistinction is unimportant, however, in light of my findings elsewhere inthis Opinion.

57. Bull also suggests that Madigan ratified his waiver of his ADAclaims by failing to tender back the severance benefits he received inconsideration therefor. As discussed above, however, there is somequestion as to whether Bull formed an implied contract with itsemployees, under which they were entitled to receive the severancebenefits whether or not they executed a Release. Supra p. 150. In lightof this factual uncertainty, I decline to hold, as a matter of law, thatMadigan ratified his potentially invalid waiver of ADA claims byretaining his severance benefits.

58. Madigan requests an opportunity to amend his Complaint to addadditional support for his ERISA claim. Given that more than three yearshave passed since this action was originally filed, I simply cannot grantleave to file an amended complaint unless Madigan shows some valid reasonfor his delaying in requesting permission to amend. Grant v. News GroupBoston, Inc., 55 F.3d 1, ¶ (1st Cir. 1995) ("`Where considerabletime has elapsed between the filing of the complaint and the motion toamend, the movant has the burden of showing some valid reason for hisneglect and delay.'" (quoting Stepanischen v. Merchants Despatch Transp.Corp., 722 F.2d 922, 933 (1st Cir. 1983) (internal citationsomitted))).

59. The only reference to procedural requirements in Bull's Answer isits Fourth Defense, "[t]he plaintiff has failed to comply withprocedural, administrative, and jurisdictional requirements for bringinghis claims, including the failure to exhaust administrative remedies."This broad assertion, in response to Madigan's seven-count Complaint, isinsufficient to notify Madigan of his alleged violation of the six-monthstatute of limitations in M.G.L. c. 151B, particularly given that Bullalso failed to raise its timeliness concerns in its Partial Motion toDismiss.