Petition for Writ of Certiorari — Oubre v. Entergy Operations, Inc.

Court, U.S.

FILED

NO. 961291 FEB 419%

In the

Supreme Court of the United States

.

OCTOBER TERM, 1997

DOLORES M. OUBRE

PETITIONER

VERSUS

ENTERGY OPERATIONS, INC.

RESPONDENT

CIVIL APPEAL TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Barbara G. Haynie, # 19340*

DONELON, HAYNIE & DONELON

Suite 1010

3445 N. Causeway Boulevard

Metairie, Louisiana 70002

(504) 838-0077 a

Attorney for Petitioner RECEIV ED

Dolores M. Oubre

*Counsel of Record | FEB 6 el

F THEO

orFIce 0 RT, US

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 "

A\

i

QUESTIONS PRESENTED

Whether the petitioner, pursuant to Older Workers

Benefit Protection Act amending the Age Discrimina-

tion in Employment Act in 1990, knowingly and

voluntarily waived her rights to pursue a cause of ac-

tion against her employer by executing release upon

separation of employment.

Whether the petitioner received “consideration” to

which she was not already entitled pursuant to the

terms of her separation of employment thus, barring

a challenge to executed waiver of rights.

Whether the petitioner ratified an otherwise invalid

release by retaining compensation paid and/or fail-

ing to tender back said sums received pursuant to the

terms of her separation of employment, thus making

the release binding.

ii

LIST OF PARTIES

A) Dolores M. Oubre, petitioner is a person of the full

age of majority and resident of the State of Louisiana.

B) Entergy Operations, Inc., a corporation with its prin-

cipal place of business in the Parish of Orleans and duly

authorized to do and doing business in Louisiana.

Petitioner, Dolores M. Oubre, seeks to recover damages

from respondent, Entergy Operations, Inc., as a result of

unlawful separation from employment based upon her age

in January, 1995. Petitioner submits that she did not know-

ingly and voluntarily execute release of claims at the time

of her separation of employment, that she did not receive con-

sideration for said waiver of rights and that the release of

claim she executed at the time of her separation did not com-

ply with the requirements of the Older Workers Benefit Pro-

tection Act and thus, is void.

iii

TABLE OF CONTENTS

Geneetieenn Persea R cccececccccssccssccssczsssscsszesezsessessesersceesescnsseves i

BAe GF Fame B eR eccesccscceczeseeseesscsccesesssecccsssccscesenesessceenssssccessesces ii

BD GE GNI cxcesernectevszecncecsccarsenccsesesresecesensesessnssenseesned iii

BED GE Be GD ccccccscccccvcsssscccsccscesssessescessesccsensscvesnesssens Vv

rth Beebe cccensseccesnceccscccscscescesssecesscescssnscnescvecssensnsnsens viii

TI cecenesecsncsenneenaseszenccscessncesecessenssecesresssnesssnssensssnesnee ix

I cenrapernmsssenenssensesrsnsnessneczccarnescocssnensecensenensnsseemanqonseet x

Statement of the Case...............csessssssssssssssssssessesessesseees 1

Reasons for Granting the WTit..................ccccccccseeeeeeeenneees 5

Be ~ i rececerecsesrsesessesssescascserespsnerscamemnncenensis 5

Il. Standard for Review on Summary Judgment......6

Ill. Legislative Intent in Enacting § 626 (fX1)........... 7

IV. Validity of Release Pursuant to Minimum

Statutory Requirements...................:sesessereerees 8

V. Validity of Release - Duress..................s 13

VI. Consideration Requirement of the Act............... 15

iv

TABLE OF CONTENTS (continued)

VIL. Failure to tender back severance funds does

not ratify an otherwise invalid OWBPA

SERB cccscecsinscensvsternesstsiiecaninnintaiinsosdiibiiginlaitidad 18

TEE ee RE | 24

aT a censscesssssnsnssscsserensnicsnatatascicibiiibsasinssliiaiisisisclsiad 26

APPENDIX:

App. A- Judgment of Trial Court (May, 1996).......A-1

App. B- Reasons of the Trial Court (May, 1996)....A-2

i episrtnnidisnssulinneenetepenmuibeammiiansemesndenein AS

App. D Age Discrimination Employment Act

ff ee As

App. E- Louisiana Civil Code Article 1966......... A-12

App. F -Louisiana Revised Statute 51:2231,

© 0B rescecnsesrersscssssennsqeseemennqnenstmnemmnsssncenes A-13

App. G- Louisiana Revised Statute 23:971.......... A-16

TABLE OF AUTHORITIES

Cases Page

Blakeney v. Lomas Information Systems, Inc., 65

FP. 3d 482 (5th Cir. 1995), cert denied, 1165 S.

Se a inerrtetentiterdterrrintintitntiiennprtsgenmee: 17,18

Boeing Co. v. Shipman, 411 F. 2d 345 (5th Cir.

EE Ee a ae a ee 6

Burch v. Fluor Corp., 86 F.Supp 873

3 ee 12

Carr v. Armstrong Air Conditioning, Inc., 817 F. Supp.

ES a ee 13

Ciwillo v. Arco Chemical Company, 862 F . 2d 448 (3rd

OE 8

Constant v. Continental Telegraph Co., 745 F. Supp.

ee a ninrnemtcenimmeteninmenmmmmmenes 21

Coventry v. United States Steel Corp., 856 F.2d 514

Forbus v. Sears, Roebuck and Company, et al, 958

F.2d 1036 (11th Cir. 1992), cert denied, 1135 S.

a ee eR itrtncinttrtetrteninciecnetsinensetecsees .21,22,23

vi

TABLE OF AUTHORITIES (continued)

Cases Page

Grillet v. Sears, Roebuck and Company, 927 F.2d 217

eh OO 21

Hogue v. Southern Rig Company, 390 U.S. 516

Gia hncceccessecenstunsnincscesiiiniiatiiiabitatiinisliutiiaitaipiiiaiipastsitanind 21,22

Isaacs v. Caterpillar, Inc., 765 F. Supp. 1359 (R.D.I1.

en eo ee 21

Lancaster v. Buerkle Buick Honda Company, 808 F.2d

539 (8th Cir.), cert denied, 482 U.S. 928 (1987)............. 8

Oberg v. Allied Van Lines, Inc., 11 F.3d 679 (7th Cir.

1993) cert denied 1145 Ct. 2104 (1994).................... 13,20

O’Hara v. Global Natural Resources, Inc., 898 F.2d

ORS GR) GE Fi rereticticnnnbimmemmanne 16

Rhodes v. Guiberson, 75 F.3d 959 (5th Cir. 1996)............. 6

Schott-Norton Ford, Inc. v. Ford Motor Company, 524

F. Supp. 1099 (D. Minn. 1981), affirmed without

opinion, 685 F.2d 438 (8th Cir. 1982)...............ccceceees 16

Soliman v. Digital Equipment Corp., 869 F Supp 65

vii

TABLE OF AUTHORITIES (continued)

Cases Page

Wamsley v. Champion Refining and Chemicals, Inc.,

11 F.3d 534 (6th Cir. 1994), rehearing denied 37

F.3d 634 (5th Cir. 1994), cert denied, 115 S.Ct.

“Aa 18,20,22

Wiffort v. Shell Oil Co., 37 F.3d 1151 (th Cir.

NCPR OT Seen ee is

29 U.S.C. § 621, et seq. (ADEA)....cccsscscsseesseeeeereeeee 2,21,22

29 U.S.C. § 626 (f) (AM) (OWBPA).......ccsssssssosee 7,8,20,21

45 U.S.C. § 51, et seq. (PELA)........ccssssssssessssssseseeeeereeeeeen 21

SS et ATE TE 16

a 2

LRS-ART. 51:2281, et 8€¢.....ccccssssssssssssssssssssssssesssseeseeeseeeen 2

OTHER

136 Cong. Rec. S13, 597 (daily ed Sept. 24, 1990)............ 7

Senate Committee Labor & Human Resources, the

Older Workers Benefit Protection Act, S. Rep. No. 236,

101 St. Cong., 2d Sess 32 (1990)............cccccccccesceceeeseeeeeee 8

Joint Hearing before the Select Committee on Aging

and the Subcommittee on Employment Opportunities

of the Committee on Education and Labor, House of

Representatives, One Hundred First Congress, April

18, 1989....... jeicdalanaind cibiapiatiiemmeenteeneneinentidievannsneccnsess 13

viii

OPINIONS BELOW

The opinion of the Fifth Circuit Court of Appeals rendered

November 6, 1996 is unreported. The opinion of the trial court

rendered May 28, 1996 is unreported.

ix

JURISDICTION

The Judgment of the Fifth Circuit Court of Appeals was

entered on November 6, 1996. This Petition for Writ of Cer-

tiorari is sought within 90 days of the Judgment and this

timely pursuant to 28 U.S.C. § 1257 and 2101(c) and Rule

10(1Xc) of the Rules of Court for the U.S. Supreme Court.

x

STATUTES

AGE DISCRIMINATION IN EMPLOYMENT ACT

SECTION 201. WAIVER OF RIGHTS OR CLAIMS

Section 7 of the Age Discrimination in Employment Act

of 1967 (29 U.S.C. 626) is amended by adding at the end the

following new subsection:

“(fX1) An individual may not waive any right of claim under

this Act 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 in-

dividual and the employer that is written in a man-

ner calculated to be understood by such individual,

or by the average individual elegible to participate;

“(B) the waiver specifically refers to rights or claims aris-

ing under this Act;

“(C) the individual does not waive rights or cliams that

may arise after the date the waiver is executed;

“(D) the individual waives rights or claims only in ex-

change 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;

xi

“F) @ 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 ex-

it incentive or other employment termination pro-

gram 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;

“(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 agree-

ment shall not become effective or enforceable until

the revocation period had expired;

“(ED if a waiver is requested in connection with an exit in-

centive or other employment termination program of-

fered to a group or class or employees, the employer

(at the commencement of the period specified in sub-

paragraph (F) informs 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 pro-

gram, and any time limits applicable to such pro-

gram; and

(ii) the job titles and ages of all individuals eligible

or selected for the program, and the ages of all in-

dividuals in the same job classification or

organizational unit who are not eligible or selected

for the program.

xii xiii

‘(G) A waiver in settlement of a charge filed with the Louisiana Civil Code Article 1966 - NO OBLIGATIONS

Equal Employment Opportunity Commission, or an WITHOUT CAUSE

action filed in court by the individual’s representative,

alleging age discrimination of a kind prohibited under An obligation cannot exist without a lawful cause.

section 4 or 15 may not be considered knowing and Acts 1984, No. 331, § 1, eff. Jan. 1, 1985.

voluntary unless at a minimum--

“(A) subparagraphs (A) through (E) of paragraph (1)

have been met; and

“(B) the individual is given a reasonable period of

time within which to consider the settlement

agreement.

“(3) In any dispute that may arise over whether any of

the requirements, conditions, and circumstances set

forth in subparagraph (A), (B), (C), (D), (E), (), (G) or

(H) of paragraph (1), or subparagraph (A) or (B) of

paragraph (2), have been met, the party asserting the

validity of a waiver shall have the burden of proving

in a court of competent jurisdiction that a waiver was

knowing and voluntary pursuant to paragraph (1) or

(2).

“(4) No waiver agreement may effect the Ccmmission’s

rights and responsibilities to enforce this Act. No

waiver may be used to justify interfering with the pro-

tected right of an employee to file a charge or par-

ticipate in an investigation or proceeding conducted

by the Commission.”

1

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

DOLORES M. OUBRE

PETITIONER

VERSUS

ENTERGY OPERATIONS, INC.

RESPONDENT

CIVIL APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petitioner, Dolores M. Oubre, respectfully prays that

a Writ of Certiorari be granted to review the decision of the

United States District Court for the Eastern District of Loui-

siana granting Motion for Summary Judgment in favor of

the respondent and the affirmation of same by the United

States Court of Appeals for the Fifth Circuit entered in the

above-entitled proceeding on November 6, 1996.

STATEMENT OF THE CASE

Petitioner contends that material facts of the case are

in dispute and the following is a summarization of the facts

as presented to the lower court and the Fifth Circuit Court

of Appeals in consideration of Motion for Summary

Judgment.

On September 26, 1995, petitioner, Dolores Oubre, a

former employee of Entergy Operations, Inc. (EOD and an

individual over the age of 40 at the time of her separation

of employment, filed suit in United States District Court,

Eastern District for the State of Louisiana. The complaint

was brought pursuant to Title 29 U.S.C. § 621, et seq, the

Age Discrimination in Employment Act of 1967 (ADEA”),

as amended in 1978, 1990, and 1991, and Louisiana Revis-

ed Statute Article 23:972 and 51:2231 et seq. The claimant

has alleged that she was constructively discharged from her

job because of her age.

Dolores Oubre, a single female was employed as an

assistant scheduler in the Planning and Scheduling Depart-

ment at Waterford Steam Electric Generating Station

(“Waterford III”) in 1994. Oubre had been employed at Water-

ford as an EOI employee for approximately seven years.

In the fall of 1994, EOI implemented a new employee

evaluation process called the Management Planning and

Review Ranking Process (The “Ranking Process”). The Rank-

ing Process was allegedly developed to evaluate management

and professional (salaried) employees at EOI by ranking them

by two criteria, “performance” and “potential”, as compared

to their peers and transferring those rankings to a matrix

that placed employees in one of 9 groups.

It was mandated that 10% of the targeted population

ranked in category 9 or the lowest ranked group. People

receiving two consecutive annual ratings in group 9 (fall 1994

and fall 1995) were to be terminted from EOI. Termination,

however, could occur anytime for employee ranked 9 within

the 12-month period proceeding the next annual evaluation.

Severance was not to be paid to individuals terminated from

group 9. Those ranked in group 9 were to be given individual

action plans with the understanding that even if the in-

dividual met all goals there was no guarantee that the in-

dividual would move out of group 9 and thus, would be sub-

ject to termination without benefits.

Pursuant to the ranking process, Oubre was ranked

against all other salaried, non-managerial employees in the

Planning and Scheduling Department. She ultimately fell

into the group 9 category, although she had been awarded

the highest evaluation level compared to her peers for the

preceding two years. In 1993, Oubre was the only assistant

scheduler deemed a valuable contributor while the two re-

maining assistant schedulers received lower ratings. In 1992,

Oubre received a promotion from computer operator I to com-

puter operator II, an indication that she was promotable,

which was a criteria for evaluation under the “potential”’

prong of the two pronged 1994 rating process. Further, the

plaintiff had completed all of her goals established by her

immediate supervisor for 1994, a criteria to be used when

evaluating an employee’s annual performance, the second

prong of the 1994 rating process. Thus, Oubre had no forewar-

ning that she would fall within the 9 ranking and be faced

with termination.

On January 17, 1995, Oubre was notified of her 9 rank-

ing and the consequences thereof, i.e., that if she were rank-

ed a 9 in next year’s evaluation she would be terminated,

that an action plan would be developed for her (though one

was not available for her review) and if she did not continue

to meet the goals and objectives of the action plan, she would

be terminated at anytime and even if she met all the goals,

4

it would be very difficult to move out of the 9 ranking. Once

informed of the precarious and vulnerable status in which

she found herself as an employee ranked 9, Oubre was then

presented with a severance package that included a general

release.

The petitioner as given only two weeks to contemplate

and to comprehend ‘he abrupt change in her employment

statuts based upon an evaluation that was inconsistent with

her previous performance evaluation history; determine the

availability of her employment opportunities which would

afford her enough income to meet her monthly financial oblig-

tions; to assess her employability based upon having been

determined one of the lowest rated employees; and to evaluate

the risk in selecting the action plan, which had not yet been

drafted and which would subject her to potential termintion

within one to two months without any benefits - or accept

the severance package. On January 31, 1995, after a second

meeting with her immediate supervisor, Jim Rooney, to

clarify that it would be virtually impossible for her to move

out of a 9 ranking, Oubre accepted the severance package,

signed the release and was paid by EOI in accordance with

the payment outlined in the severance package.

Given the circumstances surrounding the offer of the

severance package, i.e., unexpected placement into the lowest

ranked group of employees at Waterford in contrast to her

previous outstanding work performance and promote-ability

potential, the insufficient time within which to review the

two options presented and the threat of termination if she

opted to remain at EOI, the petitioner felt compelled to ac-

cept the severance and in return executed the waiver of

rights.

Following limited discovery Entergy Operations, Inc.,

filed a Motion for Summary Judgment on May 2, 1996.

Respondent argued that the claimant knowingly and volun-

tarily waived her rights to bring civil suit because she sign-

ed a release at the time of her separation of employment and

ratified the invalid release by failing to return the benefits

she received pursuant to the terms of her separation of

employment.

The lower court entered Judgment in favor of the defen-

dant’s Motion for Summary Judgment on May 23, 1996. The

Court ruled that it was not at liberty to disregard the

jurisprudence of the Fifth Circuit Court of Appeals which

portends that an invalid release pursuant to the OWBPA is

merely voidable and not void and that the claimant who re-

tains funds received upon separation of employment and does

not tender back said sums acts to ratify the voidable release

making it binding.

Notice of Appeal from final judgrnent rendered on May

23, 1996 was timely filed by the claimant on June 19, 1996.

Judgment was rendered by the Fifth Circuit of Appeals on

November 6, 1996 affirming, without reason, the lower court

ruling which granted respoadent’s Motion for Summary judg-

ment. Petitioner now seeks review of the lower courts’ deci-

sions in this Court by writ of certiorari.

REASONS FOR GRANTING WRIT OF CERTIORARI

MAY IT PLEASE THE COURT:

L Introduction

Petitioner submits the following in support of her writ

of certiorari to review the decision of the Fifth Circuit Court

of Appeals rendered on November 6, 1996 affirming the

District Court, Eastern District of the State of Louisiana,

granting respondent’s Motion for Summary Judgment. In

granting summary judgment the lower court departed from

the accepted standard of review regarding issues of material

fact and said departure was sanctioned by the Fifth Circuit

Court of Appeals. Further, because the Fifth Circuit Court

of Appeals’ decision is in conflict with the decisions of Seventh

and Eleventh Circuit Court of Appeals on the same relevant

matter-whether an invalid release under the Older Workers’

Benefit Protection Act is void as opposed to voidable and

whether a tender back of consideration is a prerequisite to

bring suit in an action alleging violation of the Age

Discrimination in Employment Act, the petition for writ of

certiorari should be granted.

Il. Standard for Review on Summary Judgment

In reviewing summary judgment, the court must view

the evidence presented in light most favorable to the party

opposing the motion. Rhodes v. Guiberson, 75 F. 3d 959 (5th

Cir. 1996). The test utilized by the Fifth Circuit for review

of summary judgment is sufficiency of the evidence under the

Boeing Co. v. Shipman, 411 F.2d 345 (5th Cir. 1969) (en banc)

standard. Under Boeing, there must be a conflict in substan-

tive evidence to create a jury question. Jd. at 375. In the pre-

sent case, a jury question is present because the petitioner

presented evidence, when taken as a whole, created a fect

issue as to whether she knowingly and voluntarily executed

the waiver and release offer by EOI upon separation from

employment.

Ill. Legislative Intent in Enacting § 626 (f (1)

Congress has long recognized that when an employer

asks an older worker to give up rights under the Age

Discrimination Employment Act, protection must be in place

to insure that the older worker does so freely, with his full

knowledge of his rights under federal law. Until 1987, this

protection was in the form of federal government or court

supervision of waiver of rights. In 1987, the Equal Employ-

ment Opportunity Commission issued regulations permitting

older workers to waive their rights without supervision. Con-

gress, recognizing that these regulations could lead to poten-

tial employer abuse of waivers, suspended the regulations

for two years and amended the ADEA by adding specific re-

quirements which govern waiver of rights or claims. This

growing concern about what standards should govern

releases and how best to insure the protection of the older

worker served as the nucleus of the Older Workers’ Benefit

Protection Act (OQWBPA) enacted in 1990.

The OWBPA amended § 626 of the Age Discrimination

in Employment Act (ADEA) by adding subsection (f) which

requires that an individual may not waive “any right or claim

under [the ADEA) unless the waiver is knowing and volun-

tary”. 29 U.S.C. § 626 (f (AH). Pursuant to the new law,

the establishment of the validity of the waiver under the

statutory threshold requirements was the first inquiry regar-

ding a challenged release. 136 Cong. Rec. S13, 597 (daily ed

Sept. 24, 1990)

In addressing the standard of inquiry to be used in

subsequently determining whether a waiver was made know-

ingly and voluntarily, the Senate managers of the bill pass-

ed by the Senate and House, and later signed into law as the

OWBPA, purported to leave intact pre-OWBPA case law in-

sofar as those decisions concerning the substantive deter-

mination of whether, in a given situation, a waiver has been

executed knowingly and voluntarily. The Senate Commit-

tee specifically expressed support for the totality of the cir-

cumstances analysis utilized in Civillo v. Arco Chemical Com-

pany, 862 F.2d 448 (3rd Cir. 1988), and it disapproved, as did

the House Committeee, the approach used in Lancaster v.

Buerkle Buick Honda Company, 808 F.2d 539 (8th Cir.), cert

denied 482 U.S. 928 (1987) which entailed the application

of ordinary contract doctrine. Senate Committee Labor &

Human Resources, the Older Workers Benefit Protection Act,

S.Rep. No. 236, 101 St. Cong., 2d Sess 32 (1990) Relevant fac-

tors to be considered under the totality of the circumstances

approach includes the preciseness of the release language;

the amount of time the claimant had for deliberation;

whether the claimant was aware of her rights and was en-

couraged to seek advise of counsel; opportunity for negotia-

tion; and whether the claimant received consideration for

which she was not already entitled. Civillo, 862 F.2d at 451.

These same factors were incorporated into § 7(f) of the

OWBPA.

IV. Validity of Release Pursuant to Minimum Statu-

tory Requirements.

In order for a waiver by an individual to be “knowing

and voluntary”, § 626(f) (1) requires, at a minimum, that the

following criteria are met:

1)

2)

3)

4)

5)

6)

7)

8)

the waiver must be part of an agreement that

“is written in a manner calculated to be

understood by [the] individual or by the

average individual eligible to participate”;

it must specificaly refer to rights or claims aris-

ing under the ADEA;

the individual does not waive “rights or claims

that may arise after the date the vaiver is

executed”;

the individual does not waive rights or claims

in exchange for consideration “to which the in-

dividual is already entitled’’;

the individual “is advised in writing to con-

sult with an attorney before executing the

agreement”;

the individual is given 21 days to consider the

agreement or — if the waiver is requested in con-

nection with an exit incentive or an “employ-

ment termination program” offered to a group

of employees — 45 days to consider the

agreement;

the agreement must give the individual a

period of seven days to revoke the agreement,

and provide that the waiver is not effective or

enforceable until after expiration of the revoca-

tion period; and

where a waiver is requested in conjunction with

an exit incentive or employment termination

program, the employer must inform the in-

10

dividual at the start of the 45-day considera-

tion period of the class of individuals covered

by the program along with any eligibility fac-

tors for the program and any time limits involv-

ed, as well as the job titled and ages of in-

dividuals covered or selected by the program

and the same information for individuals “in

the same job classification or organizational

unit” who are not eligible or selected for the pro-

gram. Id. (emphasis added)

The proposition that if a release is not entered into know-

ingly and voluntarily it will not be enforceable against the

employee who signed it is at the heart of § 7(f) of the OWBPA.

The OWBPA sets forth minimum requirements to be met for

a waiver to be considered knowing and voluntary. The Act

creates a floor not a ceiling. Soliman v. Digital Equipment

Corporation, 869 F.Supp. 65, 69 Fn13 (D.Mass. 1994)

In the present case, a review of the release drafted by

Entergy Operations, Inc. (EOD and executed by the claimant

woefully lacks a majority of the “minimum” requirements

outlined by the act. The release reads as follows:

“T,_____, knowingly, voluntarily; and for

valuable consideration agree to waive, settle, re-

lease, and discharge any and all claims, demands,

damages, actions or causes of action occurring

on or before the date of the execution of this

Release, whether known of hereafter discovered,

that I may have against Entergy Operations,

Inc., its parent corporation,... (“the Company“),

which in any way relate to my employment by

or my separation from the company.

I acknowledge that I was provided with a

copy of this release, that I was advised to discuss

11

this release with my lawyer, and that I was given

no less than 14 days within which to consider

signing this Release. I have thoroughly review-

ed this Release and understand that, to the ex-

tent I have any claim covered by the Release, I

am waiving potentially valuable rights by sign-

ing below. My execution of this release is free and

voluntary and was not produced through duress,

coercion or undue influence.

I UNDERSTAND, ACKNOWLEDGE,

AND AGREE THAT BY SIGNING THIS

RELEASE, I AM OBTAINING ADDITIONAL

MONIES AND BENEFITS FROM THE COM-

PANY IN THE FORM OF A VOLUNTARY

SEVERANCE PACKAGE TO WHICH I

WOULD NOT BE OTHERWISE ENTITLED. I

UNDERSTAND, ACKNOWLEDGE, AND

AGREE TO ALL THE TERMS OF THIS

AGREEMENT.”

The release does not specifically refer to claims airing under

the ADEA; the release does not provide for the requisite 21

day (or questionably 45 days) * consider the agreement; the

release does not provide for a seven day revocation period

following execution; and the release does not provide specific

information with regard to individuals in the same job

classification not eligible for the program.

It is clear that characterization of the “program” which

the claimant was offered is in question with regard to in-

dividual or group termination. Individual separation

agreements are the result of adverse actions taken against

an individual employee. The employee understands that ac-

tion is being taken against him, and he may engage in

negotiations to resolve any differences with his employer.

12

Group termination and reduction programs are drastically

different from individual separation. See, Burch v. Fluor

Corp., 867 F. Supp 873 (E.D. Mo 1994).

While the respondents content that the severance

package was a voluntary offering and the 1994 ranking pro-

cess was not promoted as a reduction in force plan, its effect-

that a mandated 10% of targeted employees were to be ranked

9, that they were to be eventually terminated if they chose

to remain employed at EOI, and, at least in the petitioner’s

case, the position she vacated was not filled-was to reduce

the number of workers employed at Waterford. Further, a

standardized formula or package of benefits was presented

to each rank 9 employee and the terms presented were not

negotiable, a trademark of group termination programs.

Although most group programs are not based on in-

dividual characteristics, the manner in which the employees

were ranked 9 and the objective of the ranking and subse-

quent termination program - a 10% reduction in work force

- calls into question whether the Petitioner was subject to

an individual termination or group termination. See, Oberg

v. Allied Van Lines, Inc., 11 F.3d 679 (7th Cir. 1993) (Wherein

the court ruled that termination of sixty plus employees ter-

minated at one time satisfied OWBPA’s definition of a group

termination.) Regardless, the release prepared by EOI did

not provided the minimal requisite amount of time for the

employee to contemplate the offer.

The thrust of the legislative review of the OWBPA

before its passage regarding the necessity of safeguards in

addressing waivers in which an older worker knowingly and

willingly abandons his rights rested upon the premiss that

employers should not pressure individuals into signing a

13

waiver of legal rights, either by lack of time to adequately

consider the terms and conditions of the offer, or through an

insufficient explanation of the offer or the circumstances

leading to the offer. See Joint Hearing before the Select Com-

mittee on Aging and the Subcommittee on Employment Op-

portunities of the Committee on Education and Labor, House

of Representatives, One Hundred First Congress, April 18,

1989. The provisions enumerated in the act, when included

in a waiver, provide the employee with the necessary time

and knowledge to make an informed decision regarding the

offer extended by the employer. The lack of the minimun re-

quirements raises the presumption that the employee did not

have sufficient time or information to knowingly waive his

rights. Oberg v. Allied Van Lines, Inc., 11 F.3d 679 (7th Cir.

1993); E.E.D.C. v. Sara Lee Corp. 923 F.Supp 994 (W.D. Mich

1995); Solimen v. Digital Equipment Corp., 869 F.Supp 65

(D. Mass; 1994); Carr v. Armstrong Air Conditioning, Inc.,

817 F.Supp. 54 (N.D. Ohio 1993).

Pursuant to the provisions of the Act, the release

drafted by EOI does not meet statutory requirements of a

valid release on numerous counts and thus is void. Without

inclusion of the minimum rquirements a material issue of

fact is raised as to whether Oubre did not “knowingly and

voluntarily” waive her rights to pursue a claim against EOI.

V. Validity of Release - Duress

The OWBPA, in providing statutory guidelines in favor

of employees, clearly stands for the edict that employers

should not be permitted to exploit their superior bargaining

positions and the vulnerable conditions of their older workers

by forcing them to sign away their rights. The extent of

pressure placed upon the claimant should be considered when

determining whether a claimant has voluntarily and will-

14

ingly signed a release. Coventry v. United States Steel Corp.,

856 F.2d 514 (8rd Cir. 1988). In Coventry, the Court ruled

that the employer placed unfair economic pressure on the

claimant to sign a release when faced with the option of hav-

ing all of his income and benefits ceased immediately. Jd.

at 524. gretteenrita, eemsape 9 aaa aca ror

ing the necessity of the OWBPA:

“An older worker, faced with the likely prospect

of termination, and knowing the difficulties of

finding another job at an older age is in a

desperate situation. He often has not alternative

but to take whatever benefits the employer is

willing to offer him, even if it means giving up

fundamental employment rights. Furthermore

it is highly unlikely that, at this point the older

worker even knows what fundamental rights he

is entitled to.

I believe that this is totally unacceptable.

Employers should not be permitted to exploit

their superior bargaining position, and the

vulnerable condition of older employees, by for-

cing them to sign away their rights. Ry allow-

ing this to continue, we are simply encouraging

employers to engage in discriminatory employ-

ment practices.” Joint Hearing before the Select

Committee on Aging and the Subcommittee on

Employment Opportunities of the Committee on

Education and Labor, House of Representatives

One Hundred First Congress, April 18, 1989.

Given the circumstances of the case at bar: the in-

credulous placement of the claimant into the lowest ranked

group of employees at Waterford in contrast to her outstan-

ding work performance and promotability; the insufficient

time within which to contemplate the two options presented

15

in contrast to the enormous amount of time expended by the

company in devising a plan to reduce its work force by 10%

and prepare severance packages; and the threat of immediate

termination if the claimant opted to remain at Entergy

Operations, Inc., the claimant did not believe she had a choice

with regard to accepting the severance.

An older worker, such as the petitioner, faced with the

likely prospect of termination and knowing the difficulties

of finding another job at an older age, is in a desperate situa-

tion. She had no alternative but to take whatever benefits

the employer is willing to offer her, even if it means giving

up fundamental employment rights. The provisions of

OWBPA was enacted to create a “level playing field” bet-

ween employer and employee. When allowed to ignore these

requirements, the employer is placed in a favored position

to exercise its superior bargaining power to the disadvan-

tage of the employee. The evidence is overwhelming that

Entergy Operations, Inc. used its superior bargaining posi-

tion to place unfair economic pressure on the claimant to sign

the release. Thus, here is a material issue of fact as to whether

the claimant willingly and voluntarily signed the invalid

release.

VI. Consideration Requirement of the Act

Codified in the OWBPA at § 7 (f) (1) (D) is the common

law doctrine that a waiver may not be considered knowing

or voluntary unless the individual waives rights or claims

in exchange for consideration in addition to anything of value

to which the individual is entitled. Further, it is fundamen-

tal in Louisiana Law that for a contract to be valid there must

16

be cause or consideration. LSA-C.C. Art. 1966. The key fac-

tor is determining the validity of a release is not the amount

of consideration the person given the release receives but

rather whether the person received something to which he

was not previously entitled. Schott-Norton Ford, Inc. v. Ford

Motor Company, 524 F.Supp. 1099 (D. Minn. 1981), affirm-

ed without opinion, 685 F.2d 438 (8th Cir. 1982).

By signing a release and waiver of claims, Oubre receiv-

ed one month administrative leave and one week of salary

for each year of accredited service. The money was not paid

in one sum but over a period of time as if the claimant were

on payroll. Employees who had been previously involuntarily

terminated received the same consideration but were not re-

quired to execute a release and/or waiver of rights. In late

1995, a voluntary severance package was offered to select

employees including some previously ranked nine which pro-

vided for two months administrative leave and two weeks

of salary for each year of accredited service in exchange for

a release of claims.

Thus, Oubre did not receive any additional considera-

tion in exchange for a release, whether considered voluntary

or involuntary, waiving all rights to pursue claims against

EOI. The employees involuntarily laid off in 1994 received

like compensation but were not required to sign a release.

The employees who were approached with voluntary

severance for a release were offered twice the amount of con-

sideration offered the claimant as an inducement to volun-

tarily end their employment relationship with EOI. While

it is a question of fact whether the claimant was voluntary

or involuntarily separated from her employment at EOI, she

did not receive like compensation as compared to other

employees. But see, O’Hara v. Global Natural Resources, Inc.,

898 F.2d 1015 (5th Cir. 1990). The Fifth Circuit Court of

17

Appeals, in rejecting O’Hara’s claim that the release was un-

supported by consideration, ruled that the claimant gave up

a disputed right to benefits she would have received had she

been discharged without cause for an undisputed right to a

smaller package of benefits.

In the present case, the claimant did not receive any

consideration for execution of release in addition to which

she was already entitled pursuant to EOI’s prior and subse-

quent handling of all other employees who were offered

severance packages upon separation from the company. The

District Court did not make a determination on this issue,

nor did the Fifth Circuit Court of Appeals. There remains

a material question of fact as to whether the claimant receiv-

ed consideration for execution of the release and whether the

lack thereof would render the release void. This matter is

not ripe for final disposition and the lower court deviated from

the accepted standard of review in granting summary

judgment.

Vil. Failure to tender back severance funds does not

ratify an otherwise invalid OWBPA release.

In support of summary judgment, EOI relied upon a re-

cent line of cases arising from the Fifth Circuit Court of Ap-

peals which examined the criteria set forth in the Older

Workers Benefit Protection Act (“OWBPA”), 1990 amend-

ment to the ADEA; the necessity for strict compliance with

the OWBPA; and an individual’s ratification of a release

which is not in strict compliance with the OWBPA. Pursuant

to this jurisprudence, in signing the release; in accepting the

consideration; and in failing to tender back the considera-

tion, the petitioner has ratified the defective release and thus

is held to its terms in waiving all rights to pursue any claims

against Entergy Operations, Inc. Blakeney v.

18

Lomas Information Systems, Inc., 65 F.3d 482 (5th Cir. 1995);

Wiffort v. Shell Oil Company, 37 F.3d 1151 (5th Cir. 1994);

and Wamsley v. Champion Refining and Chemicals, Inc., 11

F.3d 342 (5th Cir. 1994). The petitioner contends that the

defendant’s reliance upon the Fifth Circuit’s rational in ap-

plying strict contract doctrine is in error.

Pursuant to Wamsley and its prodigy, the defective

waiver in the case subjudice is merely voidable and not void.

Id. at 539. Failure on behalf of the petitioner to tender back

the consideration for the promise not to sue, manifests an

intention to be bound by the terms of the waiver. Jd. at 540.

In Wamsley, the Fifth Circuit explored in detail the doctrine

of contractual ratification and the congressional intent in

enacting OWBPA to arrive at the conclusion that a waiver

which is not in compliance with the requirements delineated

in OWBPA is voidable and not void. Jd. at 538-39.

The petitioner contends, however, that the Fifth Cir-

cuit Court of Appeals’ rational is erroneous. A careful review

of Wittford reveals that the claimant was offered an “enhanc-

ed” severance package in exchange for execution of a waiver

of rights. If the waiver was not executed the claimant would

have received severance pay at a lesser value. Thus, the con-

sideration provision of the OWBPA was met and pursuant

to the Fifth Circuit’s interpretation retention of the considera-

tion led to a ratification of the invalid release. In Blakeney

the employer complied with the provisions if the OWBPA.

Instead of erroneously relying on ratification doctrine, the

Fifth Circuit should have reached the same correct ruling

by upholding the presumption that the claimant knowingly

executed the waiver because of the company’s compliance

with the law.

19

In the present case the petitioner was not given ade-

quate time to consider the offer, adequate information regar-

ding the basis of the offer, nor consideration for execution

of the release. As previously argued, Oubre was not offered

any additional compensation to which she was not already

entitled. Thus, she could not tender back consideration which

she never received to void the waiver. There has been no

determination by the lower court or the Fifth Circuit that

the money received by Oubre was indeed valid consideration

in exchange for her waiver of rights. Thus, based upon the

lack of considertion contract doctrine urged by the Fifth Cir-

cuit does not apply and the waiver is void. Further, as

previously argued, the release drafted by EOI did not meet

the minimum requirements of the act, therefore a presump-

tion is created in the present case that the petitioner did not

knowingly waiver her rights.

It is clear from the mere fact that the ADEA, establish-

ed in 1967 to protect employees at least 40 years of age from

discriminatory employment practices based on age, was

amended by the OWBPA in 1990, that Congress intended

to afford older workers with additional rights when releases

are utilized by employers. Pursuant to the Congressional

history previously presented, it is clear that the legislative

intent regarding interpretation of the OWBPA and the im-

plementation thereof was to be reviewed upon the totality

of the circumstances on a case by case basis and not on strict

contractual doctrine.

In articulating that the legislative history of the Act

animates that the fundamental purpose of the OWBPA

waiver provisions is to ensure that an older worker who is

asked to sign an ADEA waiver does so in the absence of fraud,

duress, coercion or mistake of material fact (contractual

issues), the Fifth Circuit Court ignores the totality of the

20

circumstantial review standard. When Congress enacted the

ADEA, it had in mind not only to provide benefits to victims

of discrimination, but also to create incentives to companies

to obey the law. To allow unrestricted and unlimited use of

invalid waivers and to apply existing contract law to deter-

mine their enforceability will circumvent the intent of the

law. Further, the Fifth Circuit’s own dicta argues that such

grounds to contest contractual performance, as delineated

above, were already available to employees faced with an

ADEA waiver prior to the enactment of the OWBPA.

Wamsley at 537 n. 8.

To thus rule that non-compliance with the statute

renders a waiver voidable and not void is in direct contradic-

tion to the spirit and the language of the statute. Waivers

which comply with OWBPA contain express provisions to in-

sure employees have all the information and the time to con-

sider that information. The OWBPA states that an individual

“may not” waive any right or claim under ADEA unless the

waiver is “knowing and voluntary”. In Oberg v. Allied Van

Lines, Inc., the Court concluded that “{NJo matter how many

times parties may try to ratify [a waiver] contract, the

language of the OWBPA, ‘fain individual may not waive’ for-

bids any waiver”. 11 F. 3d at 682 (7th Cir. 1993).

Further, to arbitrarily circumvent those requirements

articulated in the OWBPA and place an employee under

duress to make decisions with regard to waiver of rights con-

tradicts the spirit of the law, which is “to help employees

and workers find ways of meeting problems arising from the

impact of age in employment”. The facts as presented in the

case clearly show how an employer can circumvent the spirit

of the law. The actions of EOI are in direct contradiction not

only to the letter of the OWBPA but the intent of the law

21

to enable older workers and employees to find amicable

means of resolving problems arising from an aging work

force. 29 U.S.C. § 621 (b).

This rational was articulated by the Court in Forbus

v. Sears, Roebuck and Company, et al, 958 F.2d 1036 (11th

Cir. 1992) in which the Fifth Circuit’s ruling in Grillet v.

Sears, Roebuck and Company, 927 S.2d 217 (5th Cir. 1991)

regarding ratification was rejected. 927 F.2d at 221. (Grillet

addressed a pre-OWBPA decision in which the Fifth Circuit

abandoned the totality circumstances approach with regard

to determining “knowingly and voluntarily” and resorted to —

strict law of contract) The Forbus Court relied upon the

Supreme Court’s ruling in Hogue v. Southern Rig Company,

390 U.S. 516 (1968), which involved a suit under the Federal

Employee’s Liability Act, 45 U.S.C. § 51 et seq. (“FELA”),

to rule that a tender back of consideration was not a prere-

quisite to bringing suit in an ADEA action. See also, Cons-

tant v. Continental Telegraph Co., 745 F.Supp. 1374 (Co.I11

1990); Isaacs v. Caterpillar, Inc., 765 F.Supp. 1359 (R.D.I11.

1991) (relying on Hogue to reject tender requirements in an

ADEA case.) In Forbus, the Court found no basis for rejec-

ting the Supreme Court’s reasoning in Hogue, as the Fifth

Court has, and for not applying it to ADEA claims as well

as FELA claims. 958 F.2d 1036 at 1040.

As concisely stated by the Court, “(Both are remedial

statues designed to protect employees”. Jd. at 1041. As ar-

ticulated in Isaacs, public policy considerations support the

determination that retirees, as in the Forbus case, or older

workers, as in the case at bar, should not be required to tender

back their retirement benefits [severance benefits] as a prere-

quisite to the maintenance of their lawsuit. 765 F.Supp. at

1366-68. In addressing this public policy issue, the Forbus

court stated:

“The Court in Hogue found that a tender require-

ment would deter meritorious challenges to

releases in FELA lawsuits. The same deterrence

factor applies to ADEA claims. Forcing older

employees to tender back their severance benefits

in order to attempt to regain their jobs would

have a crippling effect on the ability of such

employees to challenge releases obtained by

misrepresentation or duress. Such a rule would,

in our opinion, encourage egregious behavior on

the part of employers in forcing certain employees

into early retirement for the economic benefit of

the company. The ADEA was specifically design-

ed to prevent such conduct, and we reject a tender

requirement as a prerequisite to instituting a

challenge to a release in an ADEA case. As the

Supreme Court decided in Hogue, unless the

release otherwise bars recovery, the benefits paid

“shall be deducted from any award determined

to be due to the injured employee.” 390 U.S. at

518, 88 S.Ct. at 1152. (emphasis added)

The interpretation currently held by the Fifth Circuit places

an employee in a severely disadvantaged bargaining posi-

tion in contrast to the employer-the specific concern raised

time and again in the legislative history of the Act.

In Wamsley, the Fifth Circuit Court failed to take into

considertion these public policy issues. In the case at bar, the

funds Oubre, a single woman relying solely upon her own

income, received (on a monthly basis, as opposed to a lump

sum) were used to pay living expenses. The petitioner is cur-

rently making one-half the salary she earned at EOI and it

would be an extreme hardship to require the petitioner to

tender back the funds received from EOI at this point in time.

~ The facts of the case are an example of the “egregious

behavior” cautioned by the Forbus Court if employers are

allowed to so easily circumvent the law.

Given the totality of the circumstances, the review stan-

dard urged by the Seventh and the Eleventh Circuits it is

clear that the failure of the petitioner to tender back

severance funds should not ratify and make binding an other-

wise invalid release, as urged by the Fifth Circuit, devised

to ignore the requirements of the OWBPA.

CONCLUSION

Viewing all evidence in light most favorable to the peti-

tioner, the applicable standard to be used in review of sum-

mary judgment, question of material fact exists with regard

to whether the petitioner “knowingly and willingly” waiv-

ed her rights to pursue a claim under the ADEA by executing

a release upon separation of employment. The release

prepared by EO] is invalid on its face because it does not meet

the minimum statutory requirements of the OWBPA and a

presumption of unknowing and unwillingness is created. Fur-

ther, given the circumstances of the offer, the employer placed

undue economical pressure upon the petitioner to accept the

offer. Thus, a question is raised as to the petitioner’s will-

ingness to execute the release.

An additional material issue exists pertaining to

whether Oubre received consideration for execution of the

24

release. The petitioner was given less material consideration

than other employees who were required to sign a release

and was given similar consideration to employees who were

not required to sign a release. Within this issue remains a

material question of fact as to the validity of the ranking pro-

gram as an evaluation process or as subterfuge for a 10%

reduction in work force.

In light of the foregoing, it is clear that the lower court

departed from the accepted standard of review in granting

summary judgment. Issues of material fact remain in dispute

and this matter was not and is not ripe for final disposition

by the court.

Further, and more significantly for purposes of this writ

application, there exists a clear and distinct conflict between

the Seventh and Eleventh Circuits on the one hand and Fifth

Circuit on the other regarding interpretation of the affect

of executed waivers which do not comply with the OWBPA

and an older worker’s rights in pursuing a claim under the

ADEA. The petitioner, therefore, urges this Honorable Court

to grant writ of certiorari to correct the error of the lower

court and to resolve the conflict of law which exists in the

circuit courts.

Respectfully submitted,

BARBARA G. HAYNIE #19340

DONELON, HAYNIE & DONELON

3445 N. Causeway Blvd.

Suite 1010

METAIRIE, LOUISIANA 70002

(504) 838-0077

Attorney for Petitioner

Dolores M. Oubre

25

CERTIFICATE OF SERVICE

This is to certify that a copy of this pleading has been

forwarded to all counsel named below by placing same in the

United States Mail, properly addressed and postage pre-paid

on this 4th day of February, 1997.

Kenneth Carter

Renee W. Masinter

ENTERGY SERVICES, INC.

639 Loyola Avenue

Suite 2600

New Orleans, Louisiana 70113

Rosemarie Falcone

HEALY & ASSOCIATES, P1.C

530 Natchez Street, Suite 300

New Orleans, Louisiana 70130

Anne L. Lewis

MONORE & LEHMANN

201 St. Charles Avenue, Suite 3300

New Orleans, Louisiana 70170-3300

James M. McGrew

MCCALLA, THOMPSON, PYBURN

HYMOWITZ & SHAPIRO

650 Poydras Street, Suite 2800

New Orleans, Louisiana 70130

Barbara G. Haynie

A-l

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DOLORES M. OUBRE CIVIL ACTION

VERSUS NUMBER: 95-3168

ENTERGY OPERATIONS, SECTION: “C“ 4

INC., ET AL

JUDGMENT

Considering the Court having granted the motion by

James P. Rooney and David Shipman to dismiss plaintiff's

complaint and the motion by Entergy Operations, Inc. for

summary judgment; accordingly,

IT IS ORDERED, ADJUDGED AND DECREED that

there be judgment in favor of defendants Entergy Operations,

Inc., Jim Rooney and Dave Shipman and against plaintiff

Dolores M. Oubre, dismissing said plaintiff's complaint with

prejudice, each party to bear its own costs.

New Orleans, Louisiana, this 28 day of May, 1996.

JUDGE GINGER BERRIGAN

UNITED STATES DISTRICT JUDGE

A-2 A-3

APPENDIX B On January 31, 1995, the plaintiff advised Rooney of

UNITED STATES DISTRICT COURT her decision to accept the voluntary severance package and

EASTERN DISTRICT OF LOUISIANA a the release. The release reads in relevant part as

DOLORES M. OUBRE CIVIL ACTION

VERSUS NUMBER: 95-3168

ENTERGY OPERATIONS, SECTION: “C” 4

INC., ET AL

ORDER AND REASONS

This matter comes before the Court on motion for sum-

mary judgment filed by the defendant, Entergy Operations,

Inc., (“Entergy”). Having considered the record, the

memoranda of counsel and the law, the Court has determin-

ed that the summary judgment should be granted for the

following reasons.

The undisputed facts reveal that the plaintiff, Dolores

M. Oubre (“Ou®re”), worked for the defendant, Entergy

Operations, Inc. (“Entergy”), as a salaried employee at the

Waterford Steam Electric Generating Station. In 1993, she

received a poor work performance ranking from Entergy. All

employees who received such rankings were offered the op-

tion of accepting a voluntary severance package and sign-

ing a release of claims or improving their performance by

meeting the criteria of individually developed action plans.

She was informed of her ranking and her options at a meeting

with James Rooney (“Rooney”) and David Shipman on

January 17, 1995. She was given a letter containing the terms

of the severance package and release and two weeks within

which to make her decision.

I, Dolores M. Oubre, knowingly, voluntari-

ly, and for valuable consideration agree to waive,

settle, release and discharge any and all claims,

demands, damages, actions, or causes of action

occurring on or before the date of the execution

of this Release, whether known or hereafter

discovered, that I may have against En

Operations, Inc., its parent jai gin

sidiaries, affiliates, officers, directors, employees,

agents, and legal representatives and their

respective successors, heirs, and assigns (“the

Company”), which in any way relate to my

employment by or my separation from the

Company.

I acknowledge that I was provided with a

copy of this Release, that I was advised to discuss

this Release with my lawyer, and that I was

given no less than 14 days within which to con-

sider signing this Release. I have thoroughly

reviewed this Release and understand that, to

the extent I have any claims covered by this

Release, I am waiving potentially valuable rights

by signing below. My execution of this Release

is free and voluntary and was not procured

through duress, coercion, or undue influence.

I UNDERSTAND, ACKNOWLEDGE,

AND AGREE THAT BY SIGNING THIS

A4

RELEASE, I AM OBTAINING ADDITIONAL

MONIES AND BENEFITS FROM THE COM-

PANY IN THE FORM OF A VOLUNTARY

SEVERANCE PACKAGE TO WHICH I

WOULD NOT BE OTHERWISE ENTITLED. I

UNDERSTAND, ACKNOWLEDGE, AND

AGREE TO ALL THE TERMS OF THIS

AGREEMENT.

The plaintiff has admitted in deposition that she understood

the terms of the severance package, consulted with two at-

torneys about the offset of the release, received all monies

under the severance package and has returned no money to

Entergy.

Based on these undisputed facts, Entergy argues that

the plaintiff has waived her right to bring this action because

she signed the release and later ratified it by failing to return

the benefits she received as a result of the severance. Wamsley

v. Champlin Refining & Chemicals, Inc., 11 F.3d 534 (5th

Cir. 1993), cert. denied, 115 S.Ct. 1403 (1995). The plaintiff

argues that the release did not comply with the requirements

of the Age Discrimination in Employment Act (“ADEA”)m

29 U.S.C. §621 et seg, and its 1990 amendment, the Older

Workers Benefit Protection Act (“OWBPA”), 29 U.S.C. §626

(f) (A) - (ED) and that the rationale adopted by the Fifth Cir-

cuit in Wamsley is erroneous.

The OWBPA provides that an individual cannot waive

any right or claim under the ADEA unless the waiver is

“knowing and voluntary” and provides that unless the waiver

meets certain minimum criteria it may not be considered

“knowing and voluntary”. It is undisputed that the release

A5

signed by the plaintiff did not meet some of these criteria,

including the requirements that specific reference to ADEA

rights be made, that a waiting period of at least 45 days

within which to consider the agreement be given and that

a seven day period following execution to revoke the agree-

ment be provided. 29 U.S.C. §626(f) (1) (B), (F), (G).

The Fifth Circuit has specifically held however that the

failure to meet the requirements of subsections (A) through

(ED) of the OWPA does not render the agreement void of legal

effect even though not “knowing and voluntary”. Wamsley,

11 F.3d at 539. Rather, such waivers are only subject to be-

ing avoided at the employee’s option. According to Wamsley,

where the employee chooses to retain and not tender back

the benefits paid consideration for the agreement, she

manifests an intention to be bound by the waiver and makes

a new promise to abide by its terms. Wamsley, 11 F.3d at

540. See also: Blakeney v. Lomas Information Systems, Inc.,

65 F.3d 482 (5th Cir. 1995), cert. denied, 116 S.Ct. 1042 (1996).

The undisputed facts here fit squarely into the rule set

forth in Wamsley and affirmed in Blakeney. This Court is not

at liberty to disregard the law announced by the Fifth Circuit.

Accordingly,

IT IS ORDERED that the motion for summary judg-

ment filed by the defendant, Entergy Operation, Inc., is

hereby GRANTED.

New Orleans, Louisiana, this 23 day of May, 1996.

JUDGE GINGER BERRIGAN

UNITED STATES DISTRICT JUDGE

VERSUS

ENTERGY OPERATIONS, INC.,

Defendant-Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

(95-CV-3168-C)

BEFORE GARWOOD, JOLLY, and DENNIS, Circuit

Judges.

PER CURIAM:!

Dolores M. Oubre appeals from the district court’s grant of

summary judgment in favor of her employer, Entergy Opera-

tions, Inc., in her age Cciscrimination action.

1 Pursuant to Local Rule 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited cir-

cumstances set forth in Loca! Rule 47.4.4.

A-7

We have reviewed the record and the parties’ briefs and

find no reversible error. Accordingly, the judgment is AF-

FIRMED for the reasons enunciated by the district court.

AS

APPENDIX D

AGE DISCRIMINATION EMPLOYMENT ACT

SECTION 201. WAIVER OF RIGHTS OR CLAIMS

Section 7 of the Age Discrimination in Employment Act

of 1967 (20 U.S.C. 626) is amended by adding at the end the

following new subsection:

“(f) (1) An individual may not waive any right of claim under

this Act 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 in-

dividual and the employer that is written in a

manner calculated to be understood by such in-

dividual, or by the average individual eligible to

participate;

‘*(B) the waiver specifically refers to rights or claims

arising under this Act;

‘“(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 ex-

change for consideration in addition to anything

of value to which the individual already is

entitled;

A-9

‘‘(E) the individual is advised in writing to consult

with an attorney prior to executing the

agreement;

“(F) @ 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 ter-

mination 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;

‘‘(G) the agreement provides that for a period of at

least 7 days following the execution of such agree-

ment, the individual may revoke the agreement,

and the agreement shall not become effective or

enforceable until the revocation period had

expired;

‘‘(H) ifa waiver is requested in connection with an exit

incentive or other employment termination pro-

gram offered to a group or class or employees,

the employer (at the commencement of the period

specified in subparagraph (F) informs the in-

dividual in writing in a manner calculated to be

understood by the average individual eligible to

participate, as to

(i) any class, unit, or group or individuals

covered by such program, any eligibility fac-

tors for such program, and any time limits

applicable to such program; and

A-10 : ue A-l1l

(ii) the job titles and ages of all individuals eligi- SECTION 202 - EFFECTIVE DATE

ble or selected for the program and the ages

of all individuals in the same job classifica- (a) IN GENERAL - The amendment made by sec-

tion or organizational unit who are not eligi- tion 201 shall not apply with respect to waivers

ble or selected for the program. that occur before the date of enactment of this

Act.

‘*(2) A waiver in settlement of a charge filed with the Equal

~.aployment Opportunity Commission, as an action fil- (b) RULE ON WAIVERS - Effective on the date of

ed in court by the individual or the individual's enactment of this Act, the rule on waivers issued

representative, alleging age discrimination of a kind by the Equal Employment Opportunity Commis-

prohibited under section 4 or 15 may not be considered sion and contained in section 1627. 16(c) of title

knowing and voluntary unless at a minimum — 29, Code of Federal Regulations, shall have no

‘*( A) subparagraphs (A) through (E) of paragraph (1) en

have been met; and “**

‘*(B)the individual is given a reasonable period of

time within which to consider the settlement TITLE Ill - SEVERABILITY

agreement.

SECTION 301 - SEVERABILITY

‘*(3) in any dispute that may arise over whether any of the

requirements, conditions, and circumstances set forth If any provision of this act, or an amendment made b

in subparagraph (A), (B), (C). (D). (E), F), (G) or (ED of this act, or the application of such provision to any oni

paragraph (1), or subparagraph (A) or (B) of paragraph or circumstances is held to be invalid, the remainder of this

(2), have been met, the party asserting the validity of Act and the amendments made by this Act, and the applica-

a waiver shall have the burden of proving in a court tion of such provision to other persons and circumstances

of competent jurisdiction that a waiver was knowing shall not be affected thereby.

and voluntary pursuant to paragraph (1) or (2).

‘*(4) No waiver agreement may effect the Commission’s

rights and responsibilities to enforce this Act. No

waiver may be used to justify interfering with the pro- -

tected right of an employee to file a charge or par-

ticipate in an investigation or proceeding conducted by

the Commission.”

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APPENDIX E

Louisiana Civil Code Article 1966 - NO OBLIGA-

TIONS WITHOUT CAUSE

An obligation cannot exist without a lawful cause.

Acts 1984, No. 331, § 1, eff. Jan. 1, 1985.

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APPENDIX F

Louisiana Revised Statute 51:2231 - LOUISIANA

HUMAN RIGHTS COMMISSION

§ 2231 Statement of purpose; limitation on prohibi-

A.

tions against discrimination because of age.

It is the purpose and intent of the legislature by this

enactment to provide for execution within Louisiana of

the policies embodied in the Federal Civil Rights Act

of 1964, 1968, and 1972 and the Age Discrimination in

Employment Act of 1967, as amended; and to assure that

Louisiana has appropriate legislation prohibiting

discrimination in employment and public accommoda-

tions sufficient to justify the deferral of cases by the

Federal Equal Employment Opportunity Commission,

the secretary of labor, and the Department of Justice

under those statutes; top safeguard all individuals

within the state from discrimination because of race,

creed, color, religion, sex, age, disability, as defined in

R.S. 51: 2232(11), or national origin in connection with

employment, and in connection with public accommoda-

tions; to protect their interest in personal dignity and

freedom from humiliation, to make available to the state

their full productive capacities in employment; to secure

the state against domestic strife and unrest which would

menace its democratic institutions; to preserve the public

safety, health, and general welfare; and to further the

interest, rights, and privileges within the state.

The prohibitions in this Chapter against dis-

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crimination because of age in connection with

employment and in connection with public ac-

comodations shall be limited to individuals who are

at least forty years of age but less than seventy

years of age.

Employment, discriminatory practices

prohibited

It shall be a discriminatory practice for an

employer:

(1) To fail, to refuse to hire, or to discharge any

person or otherwise to discriminate against an

individual with respect to compensation,

terms, conditions, or privileges of employment

because of the individual’s race, creed, color,

religion, sex, age, disability, as defined in R.S.

51: 2232(11), or national origin.

(2) To limit, segregate, or classify an employee or

applicant for employment in any way which

would deprive or tend to deprive an individual

or employment opportunities or otherwise

adversely affect the status of an employee,

because of race, creed, color, religion, sex, age,

disability, as defined in R.S. 51:2232(11), or na-

tional origin.

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§ 2256 Conspiracy to violate this Chapter unlawful

It shall be an unlawful practice for a person or for two or more

persons to conspire:

(1) To retaliate or discriminate in any manner

. against a person because he has opposed a

practice declared unlawful by this Chapter, or

because he has made a charge, filed a com-

plaint, testified, assisted, or participated in any

manner in any investigation, proceeding, or

hearing under this Chapter.

(2) To aid, abet, incite, compel, or coerce a person

to engage in any of the acts or practices

declared unlawful by this Chapter.

(3) To obstruct or prevent a person from comply-

ing with the provisions of this Chapter or any

order issued thereunder.

(4) To resist, prevent, impede, or interfere with

the commission, or any of its members or

representatives, in the lawful performance of

duty under this Chapter.

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APPENDIX G

Louisiana Revised Statute 23:971 - MISCELLANEOUS

PROVISIONS

§ 972 Prohibitions of age discrimination; employer

practices; exceptions

A. It is unlawful for an employer to:

(1) Fail or refuse to hire, or to discharge, any in-

dividual or otherwise discriminate against any

individual with respect to his compensation,

terms, conditions, or privileges of employment

because of such individual’s age.

(2) Limit, segregate, or classify his employees in

any way which would deprive or tend to

deprive any individual of employment oppor-

tunities or otherwise adversely affect his

status as an employee because of such in-

dividual’s age; or

(3) Reduce the wage rate of any employee in order

to comply with this Part.

B. It is unlawful for an employment agency to fail or

refuse to refer for employment, or otherwise to -

discriminate against, any individual because of

such individual’s age, or to classify or refer for

employment any individual on the basis of such in-

dividual’s age.

C.

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It is unlawful for a labor organization to:

(1) Exclude or expel from it membership, or other-

wise discriminate against, any individual

because of his age.

(2) Limit, segregate or classify its membership,

or to classify or fail or refuse to refer for

employment any individual, in any way, which

would deprive or tend to deprive any in-

dividual of employment opportunities, or limit

such employment opportunities or otherwise

adversely affect his status as an employee or

as an applicant for employment, solely because

of such individual’s age; or

(3) Cause or attempt to cause an employer to

discriminate against an individual in violation

of this Section.

It is unlawful for an employer to discriminate

against any of his employees or applicants for

employment, for an employment agency to

discriminate against any individual, or for a labor

organization to discriminate against any member

thereof or applicant for membership, because such

individual, member or applicant for membership

has opposed any practice made unlawful by this

Section, or becuase the individual member or ap-

plicant for membership has made a charge,

testified, assisted, or participated in any manner

in an investigation, proceeding, or litigation under

this Part.

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It is unlawful for an employer, labor organization,

or employment agency to print or publish, or cause

to be printed or published, any notice or advertise-

ment relating to employment by such employer or

membership in or any classification or referral for

employment by such a labor organization, or

relating to any classification or referral for employ-

ment by such employment agency indicating any

preference limitation, specification, or discrimina-

tion based on age.

It is not unlawful for an employer, employment

agency, or labor organization to :

(1) Take any action otherwise prohibited under

Subsections A, B,C, or E, where age is a bona

fide occupational qualification reasonably

necessary to the normal operation of the par-

ticular business, or where the differentiation

is based on reasonable factors other than age.

(2) Observe the terms of a bona fide seniority

system or any bona fide employee benefit plan

such as retirement, pension, or insurance plan,

which is not a subterfuge to evade the purposes

of this Part except that no such employee

benefit plan shall excuse the failure to hire any

individual; or

(3) Discharge or otherwise discipline an in-

dividual for good cause.

The prohibitions of this Part shal] be limited to in-

dividuals who are at least forty years of age but less

than seventy years of age.