2 plaintiff was never advised in writing to consult

Info icon This preview shows pages 95–97. Sign up to view the full content.

View Full Document Right Arrow Icon
; (2) plaintiff was never advised in writing to consult with an attorney prior to signing the agreement, although plaintiff admits to consulting with an attorney regarding the severance agreement, in violation of § 626(f)(1)(E) ; (3) plaintiff was given only five days to consider the agreement instead of the required twenty-one days in violation of § 626(f)(1)(F)(i) ; and (4) plaintiff was not given seven days to revoke the agreement in violation of § 626(f)(1)(G) . Defendants next argue that if the waiver does not comply with OWBPA, Armstrong is still entitled to reimbursement of the consideration it paid for the waiver, under the tender-ratification theory. Defendants' argument is based upon Grillet v. Sears, Roebuck & Co., 927 F.2d 217 (5th Cir.1991) , and O'Shea v. Commercial Credit Corp., 930 F.2d 358 (4th Cir.1991) . . . . The Sixth Circuit has yet to rule on the issue of whether a tender requirement exists before one can proceed with a lawsuit under ADEA, i.e., whether the plaintiff has ratified the release by retaining the benefits received. The Fourth and Fifth Circuits have looked at the issue and have concluded that a tender requirement does exist. See Grillet, 927 F.2d 217; O'Shea, 930 F.2d 358 . However, in Forbus v. Sears, Roebuck & Co., 958 F.2d 1036 (11th Cir.1992) , the Eleventh Circuit decided that a tender requirement
Image of page 95

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Spring 2017 LER 590-E: GOVERNMENT REGULATION II 96 | P a g e does not exist. Using the rationale of Hogue by analogy, the Forbus court concluded, “ADEA plaintiffs are not required to tender the consideration received for releases as a condition prerequisite to challenging those releases in court, and that the [plaintiffs’] retention of their severance benefits during the pendency of this lawsuit does not constitute ratification of those releases.” Id. at 1041. See also, Isaacs v. Caterpillar, Inc., 765 F.Supp. 1359 (C.D.Ill.1991) . This Court finds that a tender requirement is not consistent with ADEA since it would deter meritorious challenges to releases in ADEA claims. Therefore, plaintiff is not required to tender benefits back to defendants before he can proceed with a lawsuit under ADEA, and his retention of severance benefits during the pendency of this suit does not constitute ratification of the release. Nevertheless, any benefits paid by defendants shall be set off from any damage award received by plaintiff. See Hogue, 390 U.S. at 518, 88 S.Ct. at 1152; Forbus, 958 F.2d at 1041; Oberg v. Allied Van Lines, Inc., 1992 WL 211506, 1992 U.S.Dist. LEXIS 11208 (N.D.Ill.1992) . The Court now turns its attention to defendants’ motion to dismiss plaintiff’s state law claims pursuant to Fed.R.Civ.P. 12(b)(6) or 56 . Again, the Court will construe the motion to dismiss as one for summary judgment pursuant to Rule 56 since defendants have attached an affidavit and other documents. Defendants contend that plaintiff's state law claims must be dismissed because he signed a valid waiver. A valid release is an absolute bar to a later action on any claim encompassed within the release, unless the release was obtained by fraud.
Image of page 96
Image of page 97
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

0/0 PREVIEWS LEFT
Sign up to access 24/7 study resources for your classes

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern