Blistein v. St. John's College

• Decision Date: 26 January 1996
• Docket Number: No. 94-2223,94-2223
• Citation: 74 F.3d 1459
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 1310, 67 Empl. Prac. Dec. P 43,902, 64 USLW 2502, 106 Ed. Law Rep. 993, 19 Employee Benefits Cas. 2613 Burton BLISTEIN, Plaintiff-Appellant, v. ST. JOHN'S COLLEGE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1459

74 F.3d 1459

69 Fair Empl.Prac.Cas. (BNA) 1310,

67 Empl. Prac. Dec. P 43,902, 64 USLW 2502,

106 Ed. Law Rep. 993,

19 Employee Benefits Cas. 2613

Burton BLISTEIN, Plaintiff-Appellant, v. ST. JOHN'S COLLEGE, Defendant-Appellee.

No. 94-2223.

United States Court of Appeals Fourth Circuit.

Argued Nov. 1, 1995.

Decided Jan. 26, 1996.

ARGUED: Christopher G. Mackaronis, Bell, Boyd & Lloyd, Washington, D.C., for Appellant. Julie Ellen Squire, Gallagher, Evelius & Jones, Baltimore, Maryland, for Appellee. ON BRIEF: Laurie A. McCann, American Association Of Retired Persons, Washington, D.C., for Appellant. Peter E. Keith, Gallagher, Evelius & Jones, Baltimore, Maryland, for Appellee.

Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judges WILKINSON and WILLIAMS joined.

OPINION

LUTTIG, Circuit Judge:

In what has become an unfortunate, although foreseeable, pattern, appellant Burton Blistein sued his employer St. John's College under the Age Discrimination in Employment Act after he sought, negotiated, and accepted pursuant to a written agreement a generous package of retirement benefits from the College upon learning that the College was required to eliminate his position because of substantial budget shortfalls. Notwithstanding that Blistein continues to accept the College's largess, he attacks the very retirement agreement to which he assented and by which the College has extended its generosity. The district court properly granted summary judgment in favor of the College.

I.

For twenty years, plaintiff-appellant Burton Blistein was the "artist in residence" at defendant-appellee St. John's College in Annapolis, Maryland. The College offers a unique Great Books program, in which all students take the same core courses and receive the same degree. The College does not offer a degree in the visual arts, nor are any art courses required for the degree. Art courses are electives offered through the College's Graduate Institute.

In 1991, the College experienced a severe budget deficit of over $300,000. The College's Board of Visitors and Governors immediately began to address the deficit, instituting, inter alia, a new policy restricting eligibility for post-retirement health benefits, which was to become effective July 1, 1992. And when the College's new president, Christopher Nelson, arrived soon thereafter, he embarked upon a cost-cutting campaign to eliminate the deficit in the short term and to fix the long-term problem caused by too great a draw on the College's endowment.

President Nelson's cost-cutting efforts included a department-by-department review of budgets, a hiring freeze, an across-the-board budget cut of four percent, and modifications to sick leave and vacation pay policies. During the department review, the College's dean, Eva Brann, recommended that the "artist in residence" position be eliminated as non-essential to the College's core academic program. Nelson agreed, and determined in early June 1992 to eliminate Blistein's position effective December 31, 1992.

Blistein was notified of the decision immediately, so that he would have the opportunity to retire before July 1, 1992, when he would become ineligible for post-retirement health benefits under the College's new benefits policy adopted the previous year. Blistein did decide to retire, negotiating a package of benefits in addition to the health benefits, including tuition assistance for his children, four months severance pay (about $15,000), medical benefits for his dependent children, and art studio space. Blistein's list of requested benefits was typed and signed by Fred Billups, the College's treasurer, and Blistein then delivered a hand-written letter of resignation on June 30, 1992. The College has not had an "artist in residence" since that time. ¹

After Blistein was denied unemployment benefits because of his severance pay, and notwithstanding that he had voluntarily resigned in return for the negotiated package of benefits from the College, Blistein decided to file a complaint of age discrimination with the Maryland Commission on Human Rights. The complaint, which was filed toward the end of 1992, was forwarded to the Equal Employment Opportunity Commission ("EEOC") in February 1993. As would be expected, when the College was notified of the complaint, its attorneys wrote to Blistein's attorney formally apprising him that the College had an agreement with Blistein under which he retired and was given a package of benefits. The April 14, 1993, letter closed by stating, "if Mr. Blistein wishes to repudiate that agreement, the College will reassess its obligations to him." J.A. at 152.

Blistein's attorney responded by telephone on May 18, and confirmed in a letter dated May 20, that because of the Supreme Court's decision in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), Blistein had decided against pursuing his ADEA claim and had agreed to withdraw his EEOC charge. The letter recited that the College had in turn agreed that upon withdrawal of Blistein's charge, it would "continue to treat [Blistein's] separation from employment as a voluntary resignation and that he [would] be entitled to continue to receive the benefits which he negotiated in June, 1992, prior to his submitting his letter of resignation." J.A. at 103.

Blistein wrote to the EEOC on May 28, 1993, stating: "I must regretfully withdraw my charge of age discrimination...." J.A. at 104. In the same letter, however, Blistein said that he was concerned the College was going to withdraw his benefits, and he asked the EEOC to "hold actual implementation of withdrawal until you hear from me that [the negotiation concerning the status of my benefits] has been satisfactorily completed." Id. Blistein also attempted to have the EEOC pursue the charge so that he could technically "honor" his agreement with the College not to pursue the claim, yet still force the College to defend against his claim:

I understand that the EEOC can, if it wishes, pursue this charge independently. I certainly do not object, as long as it is clear that I have officially withdrawn my charge.

Id. The EEOC notified Blistein on June 21, 1993, that it had granted his request to withdraw the charge.

After withdrawal of the EEOC charge, the College sent Blistein a "Release" of legal claims to "formalize Mr. Blistein's part of the bargain." J.A. at 155-57. Blistein never signed the release, and instead filed this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. Secs. 621-634 (West 1985 & Supp.1995), on September 17, 1993. The College in turn filed a breach of contract counterclaim, after which Blistein added retaliation and abuse of process claims to his complaint. The district court rejected the College's argument that Blistein's ADEA claim should be dismissed because Blistein had failed to exhaust his administrative remedies by withdrawing the complaint from the EEOC. It also rejected the argument that Blistein had waived his ADEA claim by entering into the retirement agreement. The district court granted summary judgment for the College, however, on the grounds that Blistein failed to make out a prima facie case of age discrimination and that he failed to show that the College's proffered non-discriminatory rationale for its decision was merely a pretext for discrimination. Although for reasons different from those of the district court, we affirm that judgment.

II.

As a threshold matter, the College alleged below that Blistein waived his right to bring suit under the ADEA, either in June 1992, when he resigned and negotiated benefits from the College, or as a result of the May 1993 agreement between Blistein's attorney and the College. Both the College and Blistein moved for summary judgment on this issue. The district court held that neither of the two agreements was sufficient to constitute a valid waiver under the 1990 amendments to the ADEA. In reviewing that holding, we begin, as always, with the statute. ²

A.

Effective October 16, 1990, the ADEA was amended by the Older Workers Benefit Protection Act ("OWBPA"), which provides, in relevant part:

(1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), 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;

(B) the waiver specifically refers to rights or claims arising under this chapter;

(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;

(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;

(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;

(F)(i) the individual is given a period of at least 21 days within which to consider the agreement; ...

(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired....

29 U.S.C.A. Sec. 626(f) (West Supp.1995).

Neither the June 1992 document listing the benefits Blistein was to receive nor the May 1993 letter from Blistein's counsel to the College includes the provisions from the OWBPA; the June agreement does not mention rights or claims under the ADEA, as required by subparagraph (B), and neither agreement contains the consideration and revocation time periods required by subparagraphs (F)(i) and (G), respectively. Contrary to the district...