Richard Runyan v. National Cash Register Corp.

ENGEL, Circuit Judge,

joined by NATHANIEL R. JONES, Circuit Judge, dissenting.

I respectfully dissent. I adhere to my views expressed in the original panel opinion. 37 F.E.P. Cases (BNA) 1086 (6th Cir. 1985), vacated, 38 F.E.P. Cases (BNA) 5 (6th Cir.1985). My comments augment the rationale of Judge DeMascio in that opinion. I concurred in that opinion primarily because I believed its result most closely reflected the intent of Congress, which preferred the remedial procedures of the Fair Labor Standards Act, as applied in Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 , 65 S.Ct. 895 , 89 L.Ed. 1296 (1945), and Schulte, Inc. v. Gangi, 328 U.S. 108 , 66 S.Ct. 925 , 90 L.Ed. 1114 (1964), over those of Title VII. See Lorillard v. Pons, 434 U.S. 575 , 98 S.Ct. 866 , 55 L.Ed.2d 40 (1978). The majority may propose a better contrived rule, but in my opinion, it lacks fidelity to the intent of Congress.

The majority opinion concedes that O’Neil and Gangi prohibit unsupervised releases of ADEA claims when the dispute concerns the coverage of the Act or some other legal issue. It holds, however, that because the dispute here involves a factual issue, NCR’s intent in discharging Runyan, the present case falls within the area expressly left undecided by O’Neil and Gangi . It then concludes that unsupervised releases of ADEA claims are valid where the parties contest factual matters and the release does not violate ordinary principles of contract law.

I am not persuaded. It seems to me that the majority ignores the logic of the principal decisions of the Supreme Court in favor of a reasoning that it imputes to a mere exemption lodged in a footnote. I submit that while there may be differences, evident to Congress as well as the courts, between the classes protected by the ADEA and FLSA, I can discern no less solicitude toward the aging worker, either in the language of the ADEA or in its legislative history. The ADEA itself reflects this when, in its statement of findings and purpose, the Act states, “older workers find themselves disadvantaged in *1046 their efforts to retain employment----” 29 U.S.C. § 621 . Surely Congress was aware when it enacted the ADEA that causes of action and hence appropriate remedies would differ under the ADEA and the FLSA, yet it adopted and has since retained the remedial mechanism of the FLSA. Furthermore, I fail to see that the distinctions relied upon by the majority compel this judicial amendment. The relative availability of legal counsel for ADEA claimants may do little to equalize the disparity of bargaining power between employees and employers when the dispute centers on a factual question of employer intent. And while factual disputes in ADEA claims may offer less opportunity for certain resolution, the increased uncertainty of their claims does not place ADEA claimants in a better position with respect to their employers than FLSA claimants, or otherwise compel a diminution of their statutory protections.

One might doubt the wisdom of Congress in enacting or structuring the ADEA, or believe that, however well-intentioned, the ADEA in its overall impact has been counterproductive to the continued employment of the elderly; that judgment, however, is not ours to make. When Congress, with its broad investigatory machinery, concludes that the ADEA’s remedial mechanism must be changed, it will act. Meanwhile, I believe we must accord the elderly the full strength and protections of the remedies afforded them.

Admittedly, on its facts this is not an attractive ease. One is left with the distinct impression that Runyan, himself a lawyer, artfully deceived his employer by drafting a release which made no mention of the ADEA claim. Perhaps so, but as much might also be said of NCR when it executed the release. Perhaps both took the chance: Runyan that NCR would not notice the failure to refer to the ADEA claim, and NCR that Runyan might initially overlook the possibility and later consider himself barred from asserting his rights under the ADEA. It is idle, however, to believe that even here the parties enjoyed parity of bargaining power. Even lawyers can experience hard choices when, approaching advanced age, they are faced with discharge after years of service to a corporate employer. But even more important, that vast majority of persons intended to be benefitted by the Act will not be attorneys, nor possessed of an attorney’s sophistication in legal matters. Obviously, Congress intended the Act to apply to a broad class of persons, limited only by the limits of age. It did not include language separating lawyers from all others in the class.

Even if I were convinced by the majority that the original panel’s assessment of Congressional intent was incorrect and that unsupervised settlements were allowable, I believe I should still have great difficulty in upholding a settlement and waiver that failed altogether to make any mention of rights under the ADEA. It seems to me that only a bright line requirement that any waiver, to be effective as to ADEA rights at all, must expressly mention them in order to give substantial measure of protection to the class. Such a rule would at least keep the vast majority of cases out of the courts. Any employee seeking relief, notwithstanding a specific waiver, would of course rightfully bear the burden of establishing traditional equitable grounds for avoidance or rescission before overcoming the effect of such a waiver. While this would probably require reversal of the district court judgment in this appeal, it would still in my view be justified and hold truer to Congressional intent than the position taken by the majority.