Ruehl v. Viacom, Inc.

• Decision Date: 07 September 2007
• Docket Number: No. 06-1463.,06-1463.
• Citation: 500 F.3d 375
• Parties: James H. RUEHL v. VIACOM, INC., successor by merger to CBS Corporation, f/k/a Westinghouse Electric Corporation, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

500 F.3d 375

James H. RUEHL v. VIACOM, INC., successor by merger to CBS Corporation, f/k/a Westinghouse Electric Corporation, Appellant.

No. 06-1463.

United States Court of Appeals, Third Circuit.

Argued December 12, 2006.

Filed September 7, 2007.

As Amended September 17, 2007.

Glen D. Nager (Argued), Lawrence D. Rosenberg, Julia C. Ambrose, Thomas J. Davis, Jones Day, Washington, D.C., Amy E. Dias, Jones Day, Pittsburgh, PA, for Defendant-Appellant.

Gary F. Lynch (Argued), Carlson Lynch Ltd., New Castle, PA, Colleen Ramage Johnston, Rothman Gordon, P.C., Pittsburgh, PA, for Plaintiff-Appellee.

Robin S. Conrad, Shane Brennan, National Chamber Litigation Center, Inc., Washington, D.C., for Amicus Curiae, Chamber of Commerce of the United States of America.

Before: FUENTES and VAN ANTWERPEN, Circuit Judges, and PADOVA,^* District Judge.

OPINION

FUENTES, Circuit Judge.

This is an interlocutory appeal from the District Court's denial of Viacom's summary judgment motion. Viacom seeks to have James Ruehl's complaint under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., dismissed for failure to timely exhaust administrative remedies before the Equal Employment Opportunity Commission ("EEOC"). The District Court denied summary judgment after concluding that Ruehl's failure to exhaust was saved by equitable tolling or, in the alternative, excused by application of the "single filing rule." For the reasons that follow, we disagree with both rulings. We will reverse the judgment of the District Court and remand for entry of judgment in favor of Viacom.

I. Background

Ruehl had worked for Viacom for twenty-four years, when, in March 1997, he was transferred from his position as director of accounting in the Energy Systems Business Unit to the tax department.¹ In "late 1997 or early 1998," Ruehl attended a meeting at which his supervisors informed him that the tax department was being eliminated.² (App. at 291.) According to Ruehl, "[t]hey just informed me . . . that I was part of the transition team and that my job would be eliminated on August 31, 1998." (Id.) Approximately seven months later, on July 2, 1998, Ruehl received "[o]fficial notification" that his employment would be terminated, and that his last day would be August 31, 1998. (App. at 301.)

On his last day, Ruehl signed a "Separation Agreement, General Release And Promise Not to Sue" (the "Release"), which included a waiver of the right to sue for age discrimination under the ADEA. Ruehl testified that during the summer of 1998, before he signed the Release, he began to suspect that his age may have played a role in Viacom's decision to terminate him. Other terminated employees shared his suspicion and, on December 21, 1998, two former Viacom employees, Norman Mueller and Harry Bellas, filed EEOC charges, alleging that they were terminated as part of a "pattern and scheme of systematic discrimination against older workers." (App. at 151-54.)

In August 1999, Mueller and Bellas filed a collective action under the ADEA, in the Western District of Pennsylvania (the "Mueller-Bellas action"). The ADEA incorporates the collective action provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b).³ See 29 U.S.C. § 626(b) (incorporating § 216(b)). Unlike class actions governed by Rule 23 of the Federal Rules of Civil Procedure, in which potential class members may "opt out," collective actions under the FLSA require potential class members to notify the court of their desire to "opt in" to the action. See 29 U.S.C. § 216(b) ("No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.").⁴

On March 14, 2001, the district court conditionally certified two sub-classes of plaintiffs in the Mueller-Bellas action.⁵ (See App. at 191-92.) Ruehl opted in to both subclasses on March 28, 2001. Viacom moved for decertification of the subclasses on May 13, 2002 arguing, among other things, that neither group of plaintiffs was "similarly situated" (as required for a collective action under the FLSA or ADEA) "because they have disparate factual and employment settings, there are substantial conflicts among members of each subclass, and there are numerous individualized defenses to their claims." (App. at 193.) On December 9, 2002, the district court granted Viacom's motion, decertified both subclasses, and dismissed the action in its entirety. On March 20, 2003, the opt-in plaintiffs, including Ruehl, were notified of the decertification.

Nearly six months later, on October 14, 2003, Ruehl filed his first, independent charge of age discrimination with the EEOC. About four months later, on January 20, 2004, he commenced this action under the ADEA in the Western District of Pennsylvania. On August 12, 2004, after limited discovery on whether Ruehl's waiver of ADEA claims was valid, Viacom filed a motion for summary judgment, arguing that Ruehl's EEOC charge and his district court complaint were both untimely. On November 18, 2004, the Court denied the motion, holding that despite the facial untimeliness of Ruehl's EEOC charge under the ADEA, his claim could be saved by either the "single filing rule," which would allow him to rely on the filing date of Mueller's timely EEOC charge, or by equitable tolling based on alleged defects in the Release Ruehl signed on his last day at Viacom.

On March 9, 2005, the District Court certified its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), finding "substantial grounds for a difference of opinion exist as to both controlling issues of law," resolution of which "would materially advance the termination of this litigation" and "three related cases involving 67 plaintiffs." (App. at 22-23.) On January 31, 2006, we granted Viacom's petition for interlocutory review. This appeal followed.⁶

II. Validity of Release of ADEA Claims

As a threshold matter, we will consider the validity of Ruehl's waiver of ADEA claims, which forms the basis of his equitable tolling argument. We agree with the District Court that the Release Ruehl signed violates the Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C. § 626. The OWBPA imposes specific requirements for releases covering ADEA claims. In particular, § 626(f)(1)(F) of OWBPA provides that a waiver of claims is not knowing and voluntary unless, at a minimum, "(i) the individual is given a period of at least 21 days within which to consider the agreement; or (ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement." Id. In the latter situation, the employer must

inform[ ] the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to:

(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and

(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

Id. at § 626(f)(1)(H).⁷

In signing the Release, Ruehl affirmed that he was informed, in writing, by Viacom, about

(i) any class, unit or group of individuals covered by the Involuntary Separation Program, any eligibility factors for the Involuntary Separation Program, and any time limits applicable; and (ii) the job titles and ages of all individuals eligible or selected for the Involuntary Separation Program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

(App. at 147-48.) This language, drafted by Viacom, tracks the language of the OWBPA. It is undisputed, however, that Viacom failed to actually provide Ruehl with the required information.

Nonetheless, Viacom argues that the Release complies with the OWBPA because Viacom would have made the information available to Ruehl had he requested it. Ruehl responds that he did not request the information, but signed the waiver saying he did, because he was afraid that any request or modification of the Release would delay his receipt of pension benefits. He argues that the Release is invalid under the plain language of § 626(f)(1)(H) because that provision places the burden on the employer to ensure that waivers are knowing and voluntary. Ruehl is correct.

The OWBPA places the burden on employers seeking releases to "inform[ ] the individual in writing" of the demographic information listed in § 626(f)(1)(H). Viacom never provided Ruehl the information, and the Release does not mention Ruehl's right to receive it, nor does it mention that the information was available upon request or how one might obtain the information. Ruehl's waiver was therefore not knowing and voluntary under the OWBPA. Having the employee say he was informed in writing—when he was not—does not satisfy the OWBPA's requirements.

Our strict construction of the OWBPA's disclosure requirement follows the direction of the Supreme Court in Oubre v. Entergy Operations, Inc., 522 U.S. 422, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998):

The policy of the OWBPA is . . . to protect the rights and benefits of older workers. The OWBPA implements Congress' policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification . . . . Courts cannot with ease presume ratification of that which Congress forbids.

. . .

The statute creates a...