Hodge v. New York College of Podiatric Medicine, 96-9349

• Decision Date: 07 October 1998
• Docket Number: No. 96-9349,96-9349
• Citation: 157 F.3d 164
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 80, 74 Empl. Prac. Dec. P 45,565, 129 Ed. Law Rep. 929, 22 Employee Benefits Cas. 1897 Dr. William HODGE, Plaintiff-Appellant, v. The NEW YORK COLLEGE OF PODIATRIC MEDICINE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 164

157 F.3d 164

78 Fair Empl.Prac.Cas. (BNA) 80, 74 Empl.

Prac. Dec. P 45,565,

129 Ed. Law Rep. 929,

22 Employee Benefits Cas. 1897

Dr. William HODGE, Plaintiff-Appellant, v. The NEW YORK COLLEGE OF PODIATRIC MEDICINE, Defendant-Appellee.

No. 96-9349.

United States Court of Appeals, Second Circuit.

Argued May 15, 1997.

Decided Oct. 7, 1998.

Clifford L. Davis, White Plains, NY, for Plaintiff-Appellant.

James S. Frank, Phillips Nizer Benjamin Kirm & Ballon, LLP, New York City (David E. Prager, of counsel), for Defendant-Appellee.

Susan L.P. Starr, Equal Employment Opportunity Commission, Washington, DC, for amicus curiae Equal Employment Opportunity Commission.

Before: WINTER, Chief Judge and CABRANES, Circuit Judge. ^*

WINTER, Chief Judge.

Dr. William Hodge appeals from Judge Jones's dismissal of his age discrimination suit on the ground that Hodge's suit was time-barred. See Hodge v. New York College of Podiatric Medicine, 940 F.Supp. 579 (S.D.N.Y.1996). Hodge alleged that the New York College of Podiatric Medicine, his former employer, violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, by terminating him. Prior to his termination, Hodge had filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). Hodge thereafter entered into a settlement agreement ("Agreement") with the College whereby the College agreed to employ Hodge for a final year ending on June 30, 1995. Hodge in turn agreed to release the College from liability under the ADEA and to withdraw his EEOC charge. Shortly after completing his final year of employment, Hodge filed the instant suit.

Although the district court held that the Agreement did not comply with the Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C. § 626(f), it held that the Agreement had been ratified by Hodge's acceptance of continued employment at the College. It thus concluded that the termination of the EEOC charge was effective and that the suit was time-barred because it was filed more than 90 days after that termination.

In light of Oubre v. Entergy Operations, Inc., 522 U.S. 422, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998), appellant's performance and acceptance of benefits did not ratify the otherwise invalid Agreement. See also Tung v. Texaco Inc., 150 F.3d 206 (2d Cir.1998) (per curiam). The remaining question is whether Hodge's suit is time-barred. We hold that it is not.

BACKGROUND

Hodge's complaint alleged that he was employed by the College as a professor from 1973 through June 1995. During that time, he received a number of promotions and was, at the time of his termination, Chairman of the Microbiology Department as well as Director for Institutional Research. Hodge consistently received positive job evaluations both before and after the present dispute began.

In February 1993, Dr. Robert Bressler, Assistant Dean of the Division of Basic Sciences, told Hodge that he wanted to cut Hodge's salary and duties in half. Bressler stated that Hodge's salary was excessive because of his many years of employment and that the College could hire two new faculty members on Hodge's salary. Bressler further stated that Hodge's current two-year contract, which was to expire on June 30, 1994, would not be renewed past June 30, 1995. However, the College's Faculty Manual provided that professors with contracts In a letter dated February 10, 1993, the College refused to extend Hodge's two-year contract to June 30, 1996, as required under the Faculty Manual, instead offering him employment until June 30, 1995 and reducing his salary and duties by one-half. ¹ Hodge rejected this offer. On March 3, 1993, the College sent Hodge a letter stating that he would be terminated on June 30, 1994. Hodge thereafter appealed to the Faculty Hearing Committee, pursuant to the Faculty Manual, alleging that the College was discriminating against him on the basis of age and had also violated its own procedures and contractual obligations in not offering him a renewal of his two-year contract. On September 1, 1993, Hodge filed a charge of age discrimination with the EEOC. On October 1, 1993, the Faculty Hearing Committee found that the College had acted improperly in not offering to renew Hodge's contract.

longer than one year would be entitled to renewal absent cause not to renew.

In October 1993, Hodge met with Bressler and Dean Michael Trepal; they told Hodge that if he did not sign a one-year non-renewable contract, the situation would get "nasty" and the College would "find" cause to terminate him. On April 1, 1994, Hodge signed the Agreement, in which he agreed to withdraw his EEOC charge and waive all his rights, including those afforded by the ADEA, arising out of his employment. It was also agreed that Hodge would receive a one-year extension through June 30, 1995, without any right of renewal. His employment at the College ceased on June 30, 1995. On August 25, 1995, Hodge filed the instant action.

DISCUSSION

Before bringing an ADEA suit, plaintiffs must file a charge with the EEOC. See 29 U.S.C. § 626(d). The time periods for filing such a charge depend in part upon state law. If the state in which the discrimination occurred does not have its own agency charged with remedying age discrimination, ADEA plaintiffs must file a charge with the EEOC within 180 days of the alleged discrimination. See id. § 626(d)(1). In "deferral" states--ones that have their own age discrimination remedial agency--an ADEA plaintiff must file an EEOC charge within the earlier of 300 days after the alleged unlawful practice or, if a complaint was filed with the state agency, 30 days after receiving notice of termination of proceedings under the state law. See id. § (d)(2). New York is a "deferral state." See Tolliver v. Xerox Corp., 918 F.2d 1052, 1056 (2d Cir.1990). ADEA plaintiffs may file suit in court at any time from 60 days after filing the EEOC charge until 90 days after the plaintiff receives notice from the EEOC that the EEOC proceedings are terminated. See 29 U.S.C. § 626(d),(e).

In 1990, Congress amended the ADEA by adding 29 U.S.C. § 626(f), the Older Workers Benefit Protection Act ("OWBPA"), which regulates employee waivers and releases under the ADEA. The amendment states that an "individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary." Id. § 626(f)(1). The Act lists eight factors that must be satisfied, or be otherwise inapplicable, for the waiver to be considered "knowing and voluntary." It requires, inter alia, that the release agreement "specifically refer[ ] to rights or claims arising under" the ADEA, that the employee "waive[ ] rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled," that the employee be "advised in writing to consult with an attorney prior to executing the agreement," that the employee be given at least 21 days--and up to 45 days in certain circumstances--to consider the agreement, and that the agreement provide for a period of at least seven days in which the employee may revoke the agreement. Id. § 626(f)(1)(B), (D)-(G). The OWBPA specifically states that waivers in settlements of ADEA-EEOC charges or lawsuits "may not be considered knowing and voluntary unless at a minimum" five of the eight factors listed in Section 626(f)(1) are met and the employee "is given a reasonable period of time within which to consider the settlement agreement." 29 U.S.C. § 626(f)(2).

Hodge's filing of his EEOC charge on September 1, 1993 was timely. The charge designated, inter alia, the February 1993 conversation with Bressler and the March 1993 letter from the College stating it would not renew his contract as unlawful acts of discrimination. Both events occurred within 300 days of his EEOC filing.

It is also clear that the Agreement failed to comply with the OWBPA. The Agreement contains no reference to rights arising under the ADEA, no recommendation that Hodge consult an attorney, and no provision for a temporary revocation period, three of the eight statutory requirements that must be satisfied under the OWBPA. As the district court noted, "the parties do not dispute that the April 1994 Agreement does not meet the requirements of the OWBPA." The College did argue in the district court, however, and the court agreed, that the parties' subsequent performance under the Agreement--in particular the College's continued employment of Hodge for an additional year and Hodge's acceptance of all benefits from that employment--ratified the otherwise invalid release Agreement. It went on to hold that because the lawsuit was brought more than 90 days after termination of the EEOC charge, Section 626(e)'s 90-day filing requirement was not met. It therefore dismissed the complaint.

After the district court's decision and the argument of the appeal before us, the Supreme Court rendered its decision in Oubre. Oubre held that a release that failed to comply with the OWBPA did not bar a subsequent ADEA suit even though the release agreement had been fully performed and the plaintiff had not tendered back benefits received under the agreement. See Oubre, 522 U.S. at ---- - ----, 118 S.Ct. at 841-42; see also Tung, 150 F.3d at 208-09. Oubre precludes a dismissal on the ground that Hodge's acceptance of benefits under the Agreement ratified it and thereby released the College from liability.

We also believe that the Agreement's invalidity prevents dismissal on the ground that the withdrawal of the EEOC charge bars Hodge from suing on the same claim. Cf. Dalessandro v. Monk, 864 F.2d 6, 8 (2d Cir.1988) ("Once a plaintiff settles a claim and withdraws it from the EEOC, he may not then sue on the same claim in federal court."). If the withdrawal of the EEOC charge pursuant to an invalid agreement is not a bar to suit on an ADEA claim, it follows that the withdrawal cannot trigger the...