Blackwell v. Cole Taylor Bank

• Decision Date: 07 August 1998
• Docket Number: No. 97-3939,97-3939
• Citation: 1998 WL 456253,152 F.3d 666
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 95, 73 Empl. Prac. Dec. P 45,475, 22 Employee Benefits Cas. 1638 Carolyn BLACKWELL, et al., Plaintiffs-Appellants, v. COLE TAYLOR BANK and Cole Taylor Financial Group, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 666

152 F.3d 666

78 Fair Empl.Prac.Cas. (BNA) 95, 73 Empl.

Prac. Dec. P 45,475,

22 Employee Benefits Cas. 1638

Carolyn BLACKWELL, et al., Plaintiffs-Appellants, v. COLE TAYLOR BANK and Cole Taylor Financial Group, Inc. Defendants-Appellees.

No. 97-3939.

United States Court of Appeals Seventh Circuit.

Argued April 22, 1998.

Decided Aug. 7, 1998.

Cynthia H. Hyndman (argued), Robinson, Curley & Clayton, Chicago, IL, Ronald Butler, Butler, Rubin, Saltarelli & Boyd, Chicago, IL, Cary S. Fleischer, Chuhak & Tecson, Chicago, IL, for Plaintiffs-Appellants.

Steven M. Levin, Levin & Perconti, Chicago, IL, Arthur L. Klein (argued), Michael A. Stiegel, Paul E. Starkman, Vito P. LoVerde Arnstein & Lehr, Chicago, IL, for Defendants-Appellees.

C. Gregory Stewart, Geoffrey L. Carter (argued), Equal Employment Opportunity Commission, Office of General Counsel, Washington, DC, for Amicus Curiae.

Before POSNER, Chief Judge, and CUMMINGS and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

The plaintiffs are five individuals who claim to have been constructively discharged by the defendant, their former employer the Cole Taylor Bank, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. The district court granted summary judgment for the bank on the ground that the plaintiffs had waived their right to bring an age discrimination suit. The plaintiffs have appealed, and the defendant both defends the district court's ground and argues in the alternative that the plaintiffs have no case on the merits.

When a worker within the class protected by the age discrimination law (age 40 and up) leaves his employment, it is common for the employer to try to obtain a waiver of the worker's right to bring a suit under that law. Such waivers are enforceable if they comply with the Older Workers Benefits Protection Act, an amendment to the ADEA that is codified at 29 U.S.C. § 626(f). The waiver law (as we'll call it) provides, so far as bears on this case, that "if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees," each employee must be "given a period of at least 45 days within which to consider the agreement" and also given detailed information concerning eligibility for the program and other factors bearing on an informed choice of whether to participate in it. §§ 626(f)(1)(F)(ii), (H). If the waiver is not requested in connection with an exit incentive or other employment termination program, only 21 days notice is required and no information about eligibility or other factors relevant to the employee's decision. § 626(f)(1)(F)(i). In either case the waiver must be supported by consideration to be enforceable. § 626(f)(1)(D).

The terms "exit incentive [program]" and "employment termination program" are not defined. The plaintiffs argue that the waivers they signed had been requested in connection with an exit incentive program, and we must decide whether there is enough evidence of this to have created a triable issue. They argue in the alternative that the waiver was requested in connection with an employment termination program, but we do not have to consider this argument. A straightforward interpretation of "employment termination program," supported by the legislative history, S.Rep. No. 263, 101st Cong., 2d Sess. 32 (1990), U.S. Code Cong. & Admin. News at 1509, 1537-38, and assumed in several cases, Oberg v. Allied Van Lines, Inc., 11 F.3d 679, 682 (7th Cir.1993); Raczak v. Ameritech Corp., 103 F.3d 1257, 1260-61 (6th Cir.1997); Griffin v. Kraft General Foods, Inc., 62 F.3d 368, 371 (11th Cir.1995) (per curiam), is that an outright termination is merely the extreme case of creating an exit incentive. Although the word "offer" would be misplaced as a description of a discharge--and anyway the purpose of OWBPA is to assure that the worker has the leisure and the facts necessary to enable him to make a sensible choice, which implies that he has a choice rather than simply is being terminated--an employer will often couple the termination of a group of employees with a severance offer conditioned on a waiver of rights, and in such a case there is both offer and choice, though not a choice of whether to stay or leave. Another interpretation of the phrase "employment termination program" infers from the modifier "other" ("exit incentive or other employment termination program") that the phrase is meant to indicate that the employer's characterization of the program is not conclusive. If the program creates an incentive to leave, it is within the statute, even if it is not described in those terms. Cf. Burch v. Fluor Corp., 867 F.Supp. 873, 877-78 (E.D.Mo.1994). The two interpretations are not mutually exclusive, and both seem correct.

The plaintiffs were five of the bank's seven branch managers; the other two were under 40 and so are not involved in the suit. In March of 1995 the bank decided to eliminate the position of branch manager. It informed all seven of this decision at a meeting on March 14 and offered them a choice between what we'll call "new position" and "quit now." They could accept a new position of sales manager, on new compensation terms--a reduced salary but eligibility for a bonus if they achieved specified sales goals--that would take effect in three months. Their progress toward achieving the sales goals would be monitored monthly during the three-month period. And if they accepted the new position on these terms but then changed their mind and quit within the three-month period (that is, by June 15), they would be entitled to a severance payment, provided that they executed a waiver of their rights under the ADEA and other employment-discrimination statutes. If instead (choosing the "quit now" option) they resigned from the company by the next morning (that is, the morning of March 15), they would receive a month's salary, and if they signed the waiver within 21 days they would receive in addition to the month's salary the same severance payment they would have received had they accepted the new position. In other words, there was a bonus consisting of one month's salary for quitting immediately. Two of the plaintiffs took the quit-now option while the others, plus the two branch managers who were under 40, accepted the new position but changed their minds and quit during the three-month period that ended on June 15. All five plaintiffs signed waivers, and the question is whether the waivers satisfy the requirements of the waiver law. If so, this age discrimination suit is barred.

With respect to the plaintiffs who quit on March 15, we have an additional issue under the waiver law to decide: whether they received the 21 days notice to which they were entitled even if the waivers they signed were not requested in connection with an exit incentive or employment termination program. They did. It is true that they had less than a day to decide whether to quit, but they had the statutory minimum of 21 days within which to decide whether to sign the waiver in exchange for an additional severance payment.

The other plaintiffs had 90 days in which to accept the waiver without forfeiting a benefit, but they were not given the actual waiver form until they tendered their resignations and they had only 21 days after that to sign the waiver, not the 45 days that the statute requires when a waiver is requested in connection with an exit incentive program. 29 U.S.C. § 626(f)(1)(F)(ii). Nor did they receive the information that the waiver law requires of employers who request waivers in connection with such a program. So it is critical whether the new-position option was an "exit incentive ... program offered to a group ... of employees." We take it that "program" goes with "group or class," Congress having thought that recipients of the kind of standardized, often complex, take-it-or-leave-it severance offers tendered in connection with a reduction in force or other reorganization should have more time in which and information with which to decide whether to waive their ADEA rights than in the case of individually negotiated separations. S.Rep. No. 263, supra, at 32. The statute does not specify the size of the group or class, although the smaller it is, the less likely is the offer to the members to be pursuant to a program. Here the offer was to an entire class of employees, the branch managers, not to individuals, and the fact that there were only seven of them does not detract from the "programmatic" nature of the offer. As a matter of fact, the defendant concocted a rather elaborate program for restructuring its relation to these seven employees.

It is a factual question whether the program created an "exit incentive," cf. Pullman-Standard v. Swint, 456 U.S. 273, 289 and n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), though like all factual questions if it can be answered only one way then summary judgment is permissible. At one extreme would be an employer who told his older employees merely that he would pay each of them $1,000 in exchange for a waiver of any claims they might have under the age discrimination law that had accrued up to the date of the offer. The offer would create no incentive for the employees to resign and so the requirements of 45 days notice and detailed information would not come into play. At the other extreme would be an employer who offered early-retirement benefits to his older employees and conditioned the offer on the employees' signing waivers. The offer would be an exit incentive program of which the request for waivers was an incident. Between these extremes lies a grey area illustrated by the present case, in which the question whether there was an exit incentive program presents a triable issue.

When your employer offers you money to quit within a few hours, you are likely to think that he would like you to leave; he is offering you money to leave...