Opposition Brief — Bormann v. AT&T Communications, Inc.

No. 89-335 (>) ILED

IN THE jje SEP 25 wes

Supreme Court of the United States” cee

OCTOBER TERM, 1989 Ne ote

Si ike |

ROBERT E. BORMANN, DOMENICK R. FERRANTINO, TIMOTHY

J. FERRITER, HARRY M. GARDNER, RONALD A. JACOBSEN,

JAMES W. MEYERS, HELMUT SAARTS, CORNELIUS J. SMITH,

KARL ORTLER, ALBERT J. TAGGI, NEVILLE SMITH and

THOMAS J. MCGUIRE, i

Petitioners,

—

AT&T COMMUNICATIONS, INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

OPPOSITION TO PETITION FOR CERTIORARI

JOEL L. FINGER*

CARTER K. COMBE

ROBERTS & FINGER

767 Third Avenue

New York, New York 10017

(212) 308-1900

Attorneys for Respondent

AT&T Communications, Inc.

Of Counsel:

JOE RAMIREZ

THOMAS E. WALSH

STEVEN L. STRELITZ

September 22, 1989

*Counsel of Record

i

QUESTIONS RESTATED

1. Whether the District Court’s decision to grant judgment

to the Respondent and dismiss the Complaint, after a plenary

trial pursuant to Federal Rule of Civil Procedure 42(b), consti-

tuted, in effect, a grant of summary judgment and an abuse of

discretion?

2. Whether the District Court erred in finding that Petition-

ers knowingly and voluntarily waived their rights under the Age

Discrimination in Employment Act by signing a Release which

the Court found: (1) was written in clear and unambiguous lan-

guage, (2) specifically referred to age discrimination claims, (3)

apprised Petitioners of their right to counsel, and (4) provided

consideration in excess of that to which Petitioners otherwise

would have been entitled?

ii

STATEMENT REQUIRED BY RULE 28.1

- >

AT&T Communications, Inc., is a wholly-owned subsidiary

of American Telephone and Telegraph Company (‘‘AT&T’’).

AT&T has no parent company. In addition to its wholly-owned

subsidiaries, AT&T has ownership interests, either directiy or

through wholly-owned subsidiaries, in the Cuban American

Telephone and Telegraph Company, Inc.; Ing. C. Olivetti and

C., S.P.A.; Cincinnati Bell Inc.; Edelson Technology Partners,

L.P.; AT&T/Ricoh, Ltd.; AT&T Taiwan Telecommunications

Co.; Gold Star Fiber Optics Co., Ltd.; Western Electric Saudi

Arabia, Ltd.; Gold Star Semiconductor, Ltd.; Communica-

tions Software Development, Inc.; AT&T and Philips Telecom-

munications, B.V.; ShareTech, Inc.; Covidea; Counterpoint

Computers, Inc.; Omnicad Technology Corporation; Inter-

metrics, Inc.; AT&T Microelectronia de Espana, S.A.; Mitek,

Inc.; Resound Corporation; Global Transactions Services

Company; and Sun Microsystems, Inc.

SS

ii :

TABLE OF CONTENTS

QUESTIONS RESTATED.............00ceeceeeeees

STATEMENT REQUIRED BY RULE 28.1 ..........

pp ne Se

TABLE OF AUTHORITIES..............0.000e0e:

CITATIONS TO OPINIONS BELOW ...............

REASONS FOR DENYING THE WRIT.............

PI A Ba babe civ svccesinccsccedesccccecioss

I. THE ISSUE OF WHETHER THE DISTRICT

COURT’S DECISION TO GRANT JUDGMENT TO

AT&T AND DISMISS THE COMPLAINT AFTER

A PLENARY TRIAL PURSUANT TO FED. R.

CIV. P. 42(b) WAS, IN EFFECT, AN ERRONEOUS

GRANT OF SUMMARY JUDGMENT, DOES NOT

MERIT REVIEW BY THIS COURT, AND,

IN ALL EVENTS, WAS CORRECTLY DECIDED

ae ee eniek : chev cdalsndansees

PAGE

iv

, PAGE

II. THE DISTRICT COURT CORRECTLY CON-

CLUDED THAT PLAINTIFFS KNOWINGLY

AND VOLUNTARILY WAIVED THEIR RIGHTS

UNDER THE ADEA BY SIGNING A RELEASE

WHICH (1) WAS WRITTEN IN CLEAR AND

UNAMBIGUOUS LANGUAGE, (2) SPECIFI-

CALLY REFERRED TO AGE DISCRIMINATION

CLAIMS, (3) APPRISED PETITIONERS OF

THEIR RIGHT TO COUNSEL AND (4) PRO-

VIDED CONSIDERATION IN EXCESS OF THAT

TO WHICH PLAINTIFFS OTHERWISE WOULD

HAVE BEEN EINTTEEBD oi... ccccccccccccccvess 8

A. The Courts Below Correctly Followed the Uni-

form Rule among the Lower Federal] Courts that

Unsupervised Waivers of ADEA Rights Are

Lawful If They Are Knowing and Voluntary .. 8

B. The District Court’s Conclusion that Plaintiffs

Knowingly and Voluntarily Signed the Releases

Is Not Clearly Erroneous, and Does Not Merit

Ee EE MIE, 6 cccdacncseaccatenesés 11

ee are OL an okeeaanare - 13

APPENDIX

Separation Agreement and Release .............. la

i eBi

TABLE OF AUTHORITIES

I. Cases a PAGE

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . 9

Anderson v. City of Bessemer, 470 U.S. 564 (1985).... 12-13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). 8

Bormann v. AT&T Communications, Inc. , 875 F.2d 399

> oe 2. eae a gata ace ne ee ld passim

Burns v. Equitable Life Assur. Soc’y of the United

States, 696 F.2d 21 (2d Cir. 1982), cert. denied, 464

Sh eh kaye KAS due ekhhoee Cte gSSc0ke+s 10

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)......... 8

Cirillo v. Arco Chem. Co., 862 F.2d 448 (3d Cir. 1988) 9

Collins v. Metro-Goldwyn Pictures Corp., 106 F.2d 83

EE ten Fire Acenn candace cde non eunnee sets ox 7

Coventry v. United States Steel Corp., 856 F.2d 514 (3d

ae cect ncet unis chads dh neatedessss 9

Dice v. Akron, Canton & Youngstown R.R. Co., 342

FE Nab ok Shah AcheSeeccadvevidieneceecs 9

DiMartino v. City of Hartford, 636 F. Supp. 1241 (D.

CD Fa oe BS a Lane senses eckn youre de. 9

Dorosiewicz v. Kayser-Roth Hosiery, Inc., No. 86-3163

(4th Cir. June 24, 1987) (unpublished).............. 9

Duke v. Uniroyal, Inc., No. 87-741-CIV-5-H (E.D.N.C.

June 20, 1989) (LEXIS, Genfed library, Dist file)... . 9

EEOC v. American Express Publishing Corp., 681 F.

DU, Bae Ge Bh. NEUE Che eicecedccecccnceeces 9

vi

PAGE

EEOC v. Cosmair, Inc., 821 F.2d 1085 (Sth Cir. 1987). 9

Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942) 9

Lancaster v. Buerkle Buick Honda Co., 809 F.2d 539

(8th Cir.), cert. denied, 482 U.S. 928 (1987). ........ 9

Link v. Wabash R.R. Co., 370 U.S. 626 (1962) ....... 7

Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

ee NS. cv anccdenowedeekit sabbene Oe< 8

-Moore v. McGraw Edison Co., 804 F.2d 1026 (8th Cir.

PE hawk Cad decane Cheeks cob is thei ne wees o 9

O’Brien v. Beatrice Cos., No. 85 C 5462 (N.D. Ill. June

17, 1988) (LEXIS, Genfed library, Dist file) ........ 9

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)..... 10

Pierce v. Underwood, ____. U.S. ____., 108 S. Ct. 2541

SA Ds E66 6h.ags 6 0k65- 00s boon py USS Ree ORNS 10

Roadway Express, Inc. v. NLRB, 647 F.2d 415 (4th Cir.

ih. doh ke Gh «4 aid 6 dee eA eed )

Runyan v. National Cash Register Corp., 787 F.2d 1039

(6th Cir.) (en banc), cert. denied, 479 U.S. 850 (1986) 9

Shaheen v. B.F. Goodrich Co., 873 F.2d 105 (6th Cir.

Fy IN 6 a'b'0-005 04.06 4440 veeecdeneeesene 9

Town of Newton v. Rumery, 480 U.S. 386 (1987) ..... 9

Van Bronkhorst v. Safeco Corp., 529 F.2d 943 (9th Cir.

A Un 664.4. CCR VUE EBASE SUCRE MEEKER DL EATER TAT ELS 7

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.

Ds voc cwes ds akabitws CODGMEC LON bOtbweetes 12

ae PO Neri a le

Vii

PAGE

Ii. Statutes, Court Rules and Related Materials .

Age Discrimination in Employment Act, 29 U.S.C. § 621

EP 6 A's Chas k Sei ein 44 ccc ccenkccace passim

Age Discrimination in Employment Waiver Protection

Act, H.R. 1452, 101st Cong., Ist Sess., 135 Cong. Rec.

E816 (daily ed. March 15, 1989)................... 10

Age Discrimination in Employment Waiver Protection

Act, S. 54, 101st Cong., Ist Sess., 135 Cong. Rec. $357

SN Ss Fs ty BODED Kw bc wweccccececcncccscs Te

Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000¢e er

TE hbo h bb 660 cence dendcavacteneeuecs 9, 10

Fair Labor Standards Act, 2? U.S.C. § 216 (‘‘FLSA’’). 9

Ps Ie EE GIT tpn sescanccncccccscasccctees 9

cas cssrcsncnssccvannses 5

Ps is a I PI noc cccccccccecccs bene wees ee &

. | & frre 12

Ill. Secondary Sources

C.A. Wright & A.R. Miller, Federal Practice and Proce-

re ee I, CD née cess cecccvescetseccs 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-335

>

ROBERT E. BORMANN, DOMENICK R. FERRANTINO, TIMOTHY

J. FERRITER, HARRY M. GARDNER, RONALD A. JACOBSEN,

JAMES W. MEYERS, HELMUT SAARTS, CORNELIUS J. SMITH,

KARL ORTLER, ALBERT J. TAGGI, NEVILLE SMITH and

THOMAS J. MCGUIRE, nd

Petitioners,

—

AT&T COMMUNICATIONS, INC.,

Responden’.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

>

OPPOSITION TO PETITION FOR CERTIORARI

Defendant-Respondent AT&T Communications, Inc.

(‘‘AT&T’’) respectfully prays that the Petition for a Writ of

Certiorari to the United States Court of Appeals for the Second

Circuit (the ‘‘Petition’’) be denied.

CITATIONS TO OPINIONS BELOW 2

Plaintiffs-Petitioners (‘‘Plai.tiffs’’) seek review of Bormann

v. AT&T Communications, Inc., 875 F.2d 399 (2d Cir. 1989)

(Feinberg, J.), reproduced as Appendix A to the Petition (‘‘Pet.

App. A’’), at A-i to A-22, which affirmed two unreported deci-

sions of the United States District Court for the Southern Dis-

setliiaiaeieaea aaa

2

trict of New York (Brieant, C.J.): (1) a Memorandum and

Order denying AT&T’s motion for summary judgment and (2)

post-trial findings of fact and conclusions of law dismissing

Plaintiffs’ Complaint.’

COUNTERSTATEMENT OF THE CASE

Plaintiffs are former AT&T managers who were laid off in

early 1986 during a reduction-in-force. They commenced the

present action on June 12, 1987, alleging that AT&T had dis-

missed them because of their age in violation of the Age Dis-

crimination in Employment Act, 29 U.S.C. § 621 ef seq.

(‘‘ADEA’’). See Complaint, passim, DSA 4-36.

In its answer, AT&T denied the material allegations of the

Complaint and interposed various defenses, including the fact

that each Plaintiff had executed a Separation Agreement and

Release (the ‘‘Release’’) which expressly waived any claim

against AT&T for age discrimination. (A copy of the Release is

reproduced in the Appendix hereto (‘‘App.’’), at la-4a.)’ See

Answer, Fifth Affirmative Defense, DSA 60.

1 The District Court’s post-trial findings of fact and conclusions of

law are reproduced in Defendant’s Supplemental Appendix below

(‘‘DSA’’), at 1300-17, and in Appendix B to the Petition (‘‘Pet. App.

B’’), at A-24 to A-52. The District Court’s Memorandum and Order

denying summary judgment is reproduced at DSA 1058-66 and in

Appendix C to the Petition (‘‘Pet. App. C’’), at A-53 to A-68.

2 The Release was part of the Company’s ‘‘Termination Payment

Plan for Surplus Management Employees and Summary Plan Descrip-

tion’’ (the ‘‘Plan’’) which had been adopted to provide separation ben-

efits to managers affected by a reduction-in-force. DSA 1320-33. The

Plan offered those employees who were designated as ‘‘surplus’’ a

choice of two severance payment options. See DSA 1321. One option

was unconditional, and allowed a surplus manager to choose a lump-

sum termination payment equal to 3% of the manager’s annual base

pay multiplied by the manager’s number of years of service, up to a

maximum of twenty years. Jd. Under this option, surplus managers

with twenty or more years of service, like the Plaintiffs (Petition at 6),

would each receive 60% of one year’s salary (3% x 20 years = 60%).

The second option enabled the surplus manager to elect, at his or her

On the basis of this defense, AT&T moved for summary

judgment on December 31, 1987. In a Memorandum and Order

dated March 28, 1988, the District Court concluded that ‘‘an

unsupervised waiver of rights can be a bar to a private action

under the ADEA, so long as it is knowingly and voluntarily

given.’ DSA 1060, Pet. App. C at A-57. The Court, however,

denied AT&T’s motion for summary judgment, concluding

that a factual dispute existed with respect to whether authorized

AT&T managers had misrepresented the enforceability of the

Release by stating or implying that ‘‘the releases were of doubt-

ful legal enforceability.”” DSA 1064-65, Pet. App. C at A-64 to

A-66. The District Court ordered a separate trial on this issue

pursuant to Federal Rule of Civil Procedure 42(b).? DSA 1066,

Pet. App. C at A-68. ‘

sole discretion, to increase the multiplier from 3% to 5% of annual

base pay. DSA 1321. Under this option, a surplus manager with twenty

or more years of service would receive 100% of one year’s salary (5% x

20 years = 100%). This option, however, was conditioned on the man-

ager’s signing the Release, which is a five-page document written in

clear and unambiguous language, specifically referring to age discrimi-

nation. See Release 3, App. at la. —

The Release contains a general release and covenant-not-to-sue

which ‘‘includes, but is not limited to, claims arising under federal,

state, or local laws prohibiting age. . . discrimination. . . .”’ Jd. 45,

App. at 2a. Following an integration clause, the Release concludes

with the following legend in capital letters, appearing directly above

the signature lines:

BY SIGNING THIS SEPARATION AGREEMENT AND

RELEASE, I STATE THAT: I HAVE READ IT; I UNDER-

STAND IT AND KNOW THAT I AM GIVING UP IMPORTANT

RIGHTS; I AGREE WITH EVERYTHING IN IT; 1AM AWARE

OF MY RIGHT TO CONSULT AN ATTORNEY BEFORE SIGN-

ING IT; AND I HAVE SIGNED IT KNOWINGLY AND VOL-

UNTARILY.

Id., p. 5, App. at 4a. Each of the Plaintiffs selected the 5% option and

executed the Release. See DSA 1334-1405.

3. The Court also held that: (a) Plaintiffs had sufficient time to con-

sider the Release; (b) the Release was clear and unambiguous; and (c)

the Plaintiffs had not been compelled to sign the Release by ‘‘eco-

nomic duress.’’” DSA 1061-63, Pet. App. C at A-59 to A-63.

4

The case was tried to the court sitting without a jury on

November 21 and 22, 1988. See DSA 1067-1317. Following the

trial, the District Court dismissed the Complaint based on its

findings that AT&T’s personnel managers had not made any

misrepresentations regarding the enforceability of the Release

and that the Releases were signed knowingly, voluntarily and

for valuable consideration. DSA 1300-17, Pet. App. B at A-24

to A-52. ~

Plaintiffs appealed the District Court’s judgment to the

United States Court of Appeals for the Second Circuit, which

affirmed the judgment in all respects. Bormann, 875 F.2d 399,

Pet. App. A at A-1. Citing similar cases from the Third, Sixth

and Eighth Circuits, the Court of Appeals held that an ‘‘unsu-

pervised waiver’’ of rights under the ADEA—i.e., a release sup-

ported by consideration and executed without the prior

approval of the agency charged with the Act’s enforcement, the

Equal_Employment Opportunity Commission (‘‘EEOC’’)—is

enforceable if knowing and voluntary. Jd. at 401-02, Pet. App.

A at A-8 to A-14. The Court also found ‘‘no error in the district

court’s credibility determinations, findings of fact and conclu-

sions of law and in its decision, therefore, to grant judgment to

AT&T and to dismiss the complaint.’’ Jd. at 403-04, Pet. App.

A at A-18.

Plaintiffs then filed their Petition for a writ of certiorari.

REASONS FOR DENYING THE WRIT

Plaintiffs have not presented this Court with any issue that

would merit review. Plaintiffs’ claim in Point I of the Petition,

that the District Court should not have granted AT&T’s motion

for summary judgment, is wrong as a matter of fact, and, in all

events, would not justify review by this Court. Despite Plain-

tiff’s insistence, the District Court did not grant summary judg-

ment to AT&T, but denied it. Judgment—not summary

judgment—was entered against Plaintiffs only after a plenary

trial on the issue which had prompted the District Court to deny

AT&T’s motion: whether AT&T personnel misrepresented the

ee et AOE sole Pe

mt Bok

noscnstancncnfumaaaas

5

enforceability of the Release. Ordering a separate trial on that

issue was entirely appropriate under Federal Rule of Civil Pro-

cedure 42, and does not raise an issue worthy of this Court’s

attention.

Point II of Plaintiffs’ Petition is equally unconvincing. Every

circuit which has considered the issue has concluded that unsu-

pervised waivers of ADEA claims are lawful when knowing and

voluntary. In the case sub judice, the record establishes beyond

peradventure that each Plaintiff signed the Release knowingly

and voluntarily, in exchange for valuable consideration, and

that no AT&T manager misrepresented the enforceability of the

Release. The District Court reached this conclusion, the Second

Circuit affirmed it, and no basis exists for this Court’s review.

Furthermore, the Second Circuit was entirely correct in con-

cluding that the recent introduction of legislation regarding

unsupervised waivers of ADEA claims has no bearing on the

enforceability of the Release in the present case and does not

represent an authoritative interpretation of what the ADEA

meant when it was enacted in 1967.

The Second Circuit’s holding is a correct application of well-

settled principles and does not conflict with the decision of any

other court of appeals. There is, therefore, no reason to grant

the Petition.

6

ARGUMENT

I.

THE ISSUE OF WHETHER THE DISTRICT COURT’S

DECISION TO GRANT JUDGMENT TO AT&T AND DIS-

MISS THE COMPLAINT AFTER A PLENARY TRIAL

PURSUANT TO FED. R. CIV. P. 42(b), WAS, IN EFFECT,

AN ERRONEOUS GRANT OF SUMMARY JUDGMENT,

DOES NOT MERIT REVIEW BY THIS COURT, AND, IN

ALL EVENTS,WAS CORRECTLY DECIDED BELOW

Plaintiffs’ first argument for granting the writ is that the Dis-

trict Court erroneously ‘‘granted’’ AT&T’s motion for sum-

mary judgment. Petition at i and 13-16. The argument is

entirely without merit. There is no assertion of a conflict among

the circuits, the issue does not present a recurring theme which

should be reviewed by this Court and the question has no

importance beyond the parties involved in the present litigation.

The record clearly establishes that the District Court denied

AT&T’s motion for summary judgment and ordered a trial with

respect to the issue of alleged misrepiesentations by AT&T

managers. Plaintiffs concede as much when they state that

‘*[r]jather than deciding that issue on the pleadings, the Court

set the matter down for trial.’’ Petition at 15. Moreover, the

District Court’s ruling on AT&T’s motion for summary judg-

ment makes clear that the motion was denied:

In support of its motion, the defendant submitted the affi-

davits of Mr. Gerdes and Mr. Hopeck which state that in

response to questions regarding the enforceability of the

releases AT&T management advised the employees to con-

sult with their own attorneys, tax advisors or financial

consultants. Mr. Gerdes further states that he never

advised Mr. McGuire that the separation agreement and

release was unenforceable. These accounts contradict

those offered by the plaintiffs, and present a genuine issue

of material fact and an issue of credibility which may not

Sat

Pee ee

SA Ny inl SA ta

7

properly be resolved by affidavit. The Court, therefore,

denies the defendant’s motion for summary judgment.

- * *

Because only one fact issue, whether [AT&T] managers

misrepresented the enforceability of the [Release], pre-

vents an award of summary judgment for the defendants

[sic], the Court, in the interests of economy, orders a sepa-

rate trial on this issue pursuant to Rule 42(b).

DSA 1064-65 and 1066, Pet. App. C at A-65 to A-66 and A-68

(emphasis added). The District Court’s decision to order a sepa-

rate trial was entirely proper, and undermines totally Plaintiffs’

assertion that summary judgment was granted.

It is well-established that Federal Rule of Civil Procedure

42(b) grants trial courts broad discretion to order separate trials

‘of any separate issue. . . or issues’’ in order to further ‘‘con-

venience or to avoid prejudice, or when separate trials will be

conducive to expedition and economy. . . .’* See generally 9

C.A. Wright and A.R. Miller, Federal Practice and Procedure

§ 2388, at 279-84 (1971 and Supp. 1989} and cases therein.

Determining the effect of the Release in a separate trial before

dealing with Plaintiffs’ substantive claims, as the District Court

did here, is well within the parameters of Rule 42(b). See id. and

Collins v. Metro-Goldwyn Pictures Corp., 106 F.2d 83, 87 (2d

Cir. 1939) (Clark, J., concurring). Accordingly, Plaintiffs’

argument does not provide a basis for granting the Petition for

certiorari.°

4 The authority of the Court to order a separate trial is further supple-

mented by the Court’s broad inherent power to regulate litigation

before it. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 630-631

(1962); Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 951 (9th Cir.

1976).

5 Even if summary judgment had been granted, certiorari would still

not be appropriate. The Court of Appeals below held that the District

Court ‘‘applied the appropriate standard on a motior for summary

judgment. . . .”’ Bormann, 875 F.2d at 404, Pet. App. A at A-20.

This Court spoke definitively on that standard just three years ago and

8

Il.

THE DISTRICT COURT CORRECTLY CONCLUDED

THAT PLAINTIFFS KNOWINGLY AND VOLUNTARILY

WAIVED THEIR RIGHTS UNDER THE ADEA BY SIGN-

ING A RELEASE WHICH (1) WAS WRITTEN IN CLEAR

AND UNAMBIGUOUS LANGUAGE, (2) SPECIFICALLY

REFERRED TO AGE DISCRIMINATION CLAIMS, (3)

APPRISED PETITIONERS OF THEIR RIGHT TO COUN-

SEL AND (4) PROVIDED CONSIDERATION IN EXCESS

OF THAT TO WHICH PLAINTIFFS OTHERWISE

WOULD HAVE BEEN ENTITLED

Plaintiffs contend that the District Court erred in holding

that they knowingly and voluntarily waived their rights under

the ADEA by signing the Release. In support of their position,

Plaintiffs present two arguments: First, that any waiver of

rights under the ADEA is per se invalid (Petition at 27-28), and,

second, that even if such waivers are not per se invalid, the facts

in the present case do not support the District Court’s factual

finding that the Releases were signed knowingly and voluntarily

(id. at 18, 20-21, 24 and 26). Plaintiffs’ arguments are entirely

without merit, and do not constitute a reason for review by this

Court.

A. The Courts Below Correctly Followed the Uniform Rule

among the Lower Federal Courts that Unsupervised Waiv-

ers of ADEA Rights Are Lawful If They Are Knowing and

Voluntary

The question of whether an unsupervised waiver of rights is

permissible under the ADEA has been considered by numerous

courts of appeals, each of which has responded in the affirma-

nothing about the present case requires the Court to revisit the issue.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 317 (1986); Celotex

Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Elec. Industrial Co.

v. Zenith Radio Corp., 475 U.S. 574 (1986).

9

tive.© The seminal case is Runyan v. National Cash Register

Corp., 787 F.2d 1039 (6th Cir.) (en banc), cert. denied, 479

U.S. 850 (1986) (‘‘Runyan’’). Runyan and its progeny have

carefully analyzed the interplay among the ADEA, the Fair

Labor Standards Act, 29 U.S.C. §§ 216 and 217 (1982)

(‘‘FLSA’’), and Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seg. (‘‘Title VII’’), concluding that an unsu-

pervised private release, knowiugly and voluntarily signed, is

valid under the ADEA. Runyan, 787 F.2d at 1041-43; accord

cases cited supra note 6; see also Alexander v. Gardner-Denver

Co., 415 U.S. 36 (1974) (validity of Title VII releases).’ These

courts have uniformly rejected the suggestion that the FLSA

controls the settlement of ADEA claims, focusing instead on a

comparison between the ADEA and Title VII.

Under Title VII, a claim of discrimination may be released

provided the release is made knowingly and voluntarily. Alex-

ander v. Gardner-Denver, 415 U.S. at 52 & n.15. Since Con-

gress intended that claims under both Title VII and the ADEA

6 Shaheen v. B.F. Goodrich Co., 873 F.2d 105, 107 (6th Cir. 1989)

(per curiam); Cirillo v. Arco Chem. Co., 862 F.2d 448, 451 n.1 (3d

Cir. 1988); Coventry v. United States Steel Corp., 856 F.2d 514, 521-

22 n.8 (3d Cir. 1988); EEOC v. Cosmair, Inc., 821 F.2d 1085, 1091

(Sth Cir. 1987); Dorosiewicz v. Kayser-Roth Hosiery, Inc., No. 86-

3163 (4th Cir. June 24, 1987) (unpublished); Lancaster v. Bueri

Buick Honda Co., 809 F.2d 539, 540 (8th Cir.), cert. denied, 482 U.S.

928 (1987); Moore v. McGraw Edison Co., 804 F.2d 1026, 1030 (8th

Cir. 1986). See also Duke v. Uniroyal, Inc., No. 87-741-CIV-5-H

(E.D.N.C. June 20, 1989) (LEXIS, Genfed library, Dist file); O’Brien

v. Beatrice Cos., No. 85 C 5462 (N.D. Ill. June 17, 1988) (LEXIS,

Genfed library, Dist file); EEOC v. American Express Publishing

Corp., 681 F. Supp. 216, 219 (S.D.N.Y. 1988); DiMartino v. City of

Hartford, 636 F. Supp. 1241, 1245-48 (D. Conn. 1986).

7 Rights under other federal statutes governing the employer-employee

relationship also can be waived. F.g., Dice v. Akron, Canton &

Youngstown R.R. Co., 342 U.S. 359, 361-62 (1952) (FELA); Garrett v.

Moore-McCormack Co., 317 U.S. 239, 248 (1942) (Jones Act); Sha-

heen v. B.F. Goodrich Co., 87: F.2d at 107 (Equal Pay Act and 42

U.S.C. § 1981); Roadway Express, Inc. v. NLRB, 647 F.2d 415 (4th

Cir. 1981) (NLRA). See also Town of Newton v. Rumery, 480 U.S.

386 (1987) (release of rights under 42 U.S.C. § 1983).

10

be resolved without delay, Burns v._Equitable Life Assurance

Society of the United States, 696 F.2d 21, 24n.2 (2d Cir. 1982),

cert. denied, 464 U.S. $33 (1983), and invested the statutes with

a common scheme for achieving the goal of cooperation and

voluntary compliance, Oscar Mayer & Co. v. Evans, 441 U.S.

750, 756 (1979), analogizing the ADEA to Title VII in the con-

text of the present case is entirely appropriate.

Perhaps recognizing this fact,* and being unable to articulate

any reason for departure from the long line of well-reasoned

decisions that have sustained knowing and voluntary waivers of

ADEA rights, Plaintiffs suggest that the recent introduction of

congressional bills’ seeking to restrict the use of waivers of

ADEA claims demonstrates that the ADEA does not permit an

unsupervised waiver of rights. Petition at 27-28. Plaintiffs’ sug-

gestion is nonsensical. The introduction of this legislation does

not constitute an authoritative interpretation of what the

ADEA meant when it was enacted in 1967. See Pierce v. Under-

wood, U.S. . , 108 S. Ct. 2541, 2550-51 (1988).

Indeed, if any inference can be drawn from the current Con-

gressional activity in this area, it is that Congress acknowledges

that Releases are permitted under the ADEA and proposes leg-

islation to alter that fact. 3

In all events, the Second Circuit’s decision does not conflict

with the decision of any other court of appeals, and Plaintiffs

have failed to articulate any reason justifying this Court’s

review.

8 Plaintiffs concede as much when they state that ‘‘the waiver that

they executed does not bar them from pursuing their claim because it

does not fulfill the requirements for a ‘knowing’ and ‘voluntary’

waiver of their rights.’’ Petition at 17.

9 See Age Discrimination in Employment Waiver Protection Act, S.

54, 101st Cong., Ist Sess., 135 Cong. Rec. S357 (daily ed. Jan. 25,

1989) and H.R. 1452, 101st Cong., Ist Sess., 135 Cong. Rec. E816

(daily ed. March 15, 1989) (statement of Rep. Hawkins introducing

House version of Age Discrimination in Employment Waiver Protec-

tion Act).

11

B. The District Court’s Conclusion that Plaintiffs Knowingly

and Voluntarily Signed the Releases Is Not Clearly Errone-

ous, and Does Not Merit Review by This Court

Plaintiffs argue that the District Court erroneously con-

cluded that the Releases were knowingly and voluntarily signed.

The claim, however, represents the quintessential fact-bound

issue, having no importance beyond this case and providing no

basis for review by this Court.

In its March 28, 1988 opinion on AT&T’s motion for sum-

mary judgment, the District Court concluded that the following

facts were undisputed: (1) that Plaintiffs were ‘‘experienced

executives familiar with reading and analyzing contracts’’ (Pet.

App. C at A-59); (2) that the ‘‘release itself was written in clear

and unambiguous language’”’ and specifically referred to state

and federal laws prohibiting age discrimination (id. at A-59 to

A-60); (3) that Plaintiffs had ‘‘sufficient time to consider the

release’’ (id. at A-60); (4) that Plaintiffs were not the victims of

‘feconomic duress’’ (id. at A-61); and (5) that Plaintiffs

received additional consideration in exchange for the Releases

(see id. at A-54 to A-55 and A-63). The court, however, denied

AT&T’s motion on the ground that a ‘“‘genuine issue of material

fact and an issue of credibility’’ existed with respect to whether

AT&T personnel misrepresented the enforceability of the

Releases. Jd. at A-66 and A-68.

After a two-day trial during which the court took testimony

from each of the Plaintiffs’° and several company witnesses, the

court issued its findings of fact and conclusions of law, care-

fully explicating the reasons for its decision that the Releases

were signed knowingly and voluntarily. The court specifically

rejected Plaintiffs’ misrepresentation theory on the basis of

credibility determinations made during the trial. Pet. App. B at

A-24 to A-52.

On appeal, the Second Circuit reviewed the facts and cir-

cumstances which the District Court scrutinized in reaching its

10 Because Neville Smith was unable to appear at the trial, it was stipu-

lated by the parties that his deposition testimony would be used in lieu

of his actual appearance. DSA 1200-04.

12

decision that the Releases were properly and lawfully executed,

approving-the District Court’s approach and affirming its

determination. Indeed, the Court of Appeals stated specifi-

cally:

that the district court sufficiently examined the ‘‘totality

of the circumstances’’ surrounding the Plan with care and

concern for the rights of older workers. We also agree that

the only genuine factual issue was whether the company

misrepresented the effect of the releases.

On the trial of this issue, we find no error in the district

court’s credibility determinations, findings of fact and

conclusions of law. .. .

Bormann, 875 F.2d at 403, Pet. App. A at A-18.

Because a determination of whether the Releases were know-

ingly and voluntarily signed is a finding of fact, the standard

governing appellate review of the District Court’s finding is that

set forth in Federal Rule of Civil Procedure 52(a): ‘‘Findings of

fact. . . shall not be set aside unless clearly erroneous, and due

regard shall be given to the opportunity of the trial court to

judge the credibility of the witnesses.’’ This standard does not

allow a reviewing court to reverse the finding of the trial court

merely because it would have reached a different conclusion.

Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985).

Indeed, this Court has declared that ‘‘[i]n applying the clearly

erroneous standard to the findings cf a district court sitting

without a jury, appellate courts must constantly have in mind

that their function is not to decide factua! issues de novo.’’

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100,

123 (1969). This admonition applies even when the district

court’s findings are premised on physical or documentary evi-

dence or inferences from facts, rather than merely credibility

determinations. Anderson v. City of Bessemer, 470 U.S. at 574.

Moreover, when findings are based on assessments of credibil-

ity, even greater deference to the trial court’s determinations is

required. Jd. at 575. As this Court has stated: “‘[W]hen a trial

judge’s finding is based on his decision to credit the testimony

of one or two or more witnesses, each of whom has told a -

13

coherent and facially plausible story that is not contradicted by

extrinsic evidence, that finding, if not internally inconsistent,

can virtually never be clear error.’’ Jd.

Application of the foregoing principles to the facts of the

present case shows that the Circuit Court applied the proper

standard of review, and undermines totally Plaintiffs’ bare

assertion that the District Court erred in finding that the

Releases were signed knowingly and voluntarily. Accordingly,

there is no reason for this Court to review the decisions below.

CONCLUSION

For the reasons stated, the Petition for a writ of certiorari

should be denied.

Dated: September 22, 1989

Respectfully submitted,

JOEL L. FINGER*

CARTER K. COMBE

ROBERTS & FINGER

767 Third Avenue

New York, New York 10017

(212) 308-1900

Attorneys for Respondent

AT&T Communications, Inc.

Of Counsel:

JOE RAMIREZ

THOMAS E. WALSH

STEVEN L. STRELITZ

*Counsel of Record

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APPENDIX

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eS .

%

SEPARATION AGREEMENT AND RELEASE

In consideration of the fact that I,

(the Employee), have voluntarily, and of my own free will,

elected to accept the termination payment in the amount of

$s and that AT&T Communications, Inc. (the Com-

pany) has agreed to pay me a termination payment in the

amount of $_____, I acknowledge and agree to the follow-

ing:

1. I understand that as of my employment with

AT&T Communications, Inc. will cease.

2. Ihave been advised by the Company that I am being sepa-

rated from the payroll of AT&T Communications, Inc. pursu-

ant to the terms of the Company’s surplus forte reduction plan

and that I am entitled to a termination payment in an amount

equal to 3% of my current base pay multiplied by the number

of years of net credited service, up to a maximum of 20 years. I

have also been told by the Company, and understand, that I

may elect, at my option, to increase my termination payment

from 3% to 5% of my current base pay multiplied by the num-

ber of years of net credited service up to a maximum of 20

years, but that my election to receive this higher termination

payment is expressly conditioned upon my signing this Separa-

tion Agreement and Release.

3. On a Separation Payment Option Form dated and

attached hereto, I have elected to receive a 5% termination pay-

ment in return for signing this Separation Agreement and

Release. I understand that this termination payment (5% rather

than 3%) is being paid as consideration for my signing this Sep-

aration Agreement and Release.

4. I realize that there are various State and Federal laws that

prohibit employment discrimination on the basis of age, sex,

race, color, national origin, religion, handicap or veteran status

and that these laws are enforced through the Equal Employ-

ment Opportunity Commission, Department of Labor and

State Human Rights Agencies. I intend to give up any rights I

may have under these or any other laws with respect to my

-

2a

employment at AT&T Communications and acknowledge that

AT&T Communications, Inc. has not (a) discriminated against

me, (b) breached any express or implied contract with me or (c)

otherwise acted unlawfully toward me. ,

5. Subject to paragraph 6 herein, on behalf of myself, my

heirs, executors, administrators, successors and assigns, I

release and discharge AT&T Communications, Inc., its succes-

sors, assigns, subsidiaries, affiliates, directors, officers, repre-

sentatives, agents and employees (‘‘Releasees’’) and the

American Telephone and Telegraph Company, its successors,

assigns, subsidiaries, affiliates, directors, officers, representa-

tives, agents and employees (‘‘Releasees’’) from any and all

claims, including claims for attorney’s fees and costs, charges,

actions and causes of action with respect to, or arising out of,

my employment or termination of employment with AT&T

Communications, Inc. This includes, but is not limited to,

claims arising under federal, state, or local laws prohibiting

age, sex, race or any other forms of discrimination or claims

growing out of any legal restrictions on the Company’s right to

terminate its employees. I agree to immediately withdraw, with

prejudice, any charges, claims or actions that I instituted prior

to my signing this Separation Agreement and Release and not to

institute any future claims, charges or actions against AT&T

Communications, Inc. or any Releasee for any reason.

6. I understand that this Separation Agreement and Release

in no way affects any rights I may have for benefits under the

AT&T Management Pension Plan or any other applicable

AT&T benefit plan.

7. In accordance with my existing and continuing obligations

to the Company, I have returned or will immediately return to

the Company all Company information, including files, rec-

ords, computer access codes and instruction manuals which I

have in my possession. I further agree not to keep any copies of

Company information. I affirm my obligation to keep all Com-_

pany information confidential and not to disclose it to any third

party in the future. I understand that the term ‘‘Company

information’? means: (a) confidential information, including

3a

information received from third parties under confidential con-

ditions, and (b) other technical, marketing, business or finan-

cial information, the use or disclosure of which might

reasonably be construed to be contrary to the interest of te

Company or its subsidiaries or affiliates.

8. I agree to keep this Separation Agreement and mere

confidential and not to reveal its contents to anyone except my

lawyer, my immediate family or my financial consultant.

9. This Separation Agreement and Release contains the

entire agreement between the Company and me.

In the event that any one or more of the provisions contained

herein shall for any reason be held to be unenforceable in any

respect under the law of any state or of the United States of

America, such unenforceability shall not affect any other provi-

sion of this Release, but, with respect only to that jurisdiction

holding the provision to be unenforceable, this Release shall

then be construed as if such unenforceable provision or provi-

sions had never been contained herein.

4a

BY SIGNING THIS SEPARATION AGREEMENT AND

RELEASE, I STATE THAT: I HAVE READ IT; I UNDER-

STAND IT AND KNOW THAT I AM GIVING UP IMPOR-

TANT-RIGHTS; I AGREE WITH EVERYTHING IN IT; I

AM AWARE OF MY RIGHT TO CONSULT AN ATTOR-

NEY BEFORE SIGNING IT; AND I HAVE SIGNED IT

KNOWINGLY AND VOLUNTARILY.

Date:

Employee Signature

Date:

Employee Name Printed

Date: AT&T Communications, Inc.

By

pe