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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 924

## Text

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

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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

a

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er.

APPENDIX

=

| oor Ge
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0218%3A2. Public record. Not legal advice.