(1993)). The court "should grant such a motion only if, after viewing plaintiff's allegations in this favorable light, it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quotations omitted).
2. Filing Requirements under the ADEA
Plaintiffs who bring claims under the ADEA must file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 180 days after the alleged unlawful practice occurred. See 29 U.S.C. § 626(d). In deferral states like New York, that time period is extended to 300 days. Moreover, plaintiffs may not bring a cause of action on that charge until 60 days after the filing of the charge with the EEOC. After 60 days have passed, plaintiffs may bring action in court, and may do so at any time, until 90 days after the termination of the EEOC proceedings.
3. Analysis of Plaintiff's Claim
a. ADEA Filing Requirements
The question of whether plaintiff timely filed a charge within the statutory time period of 300 days is essentially undisputed. The alleged unlawful act occurred on March 3, 1993, when defendant notified plaintiff of the non-renewal of his contract.
Plaintiff filed his claim with the EEOC in September 1993, well within the 300-day time period.
In April 1994, plaintiff requested that his EEOC claim be withdrawn, and the EEOC granted his request, thereby terminating the EEOC proceedings. Because plaintiff did not file this action until August 1995, well past the 90 day period prescribed by the statute, plaintiff's claim is time-barred.
b. The Older Workers' Benefits Protection Act
Plaintiff argues that because he withdrew his EEOC charge pursuant to a waiver in the Agreement that was unknowing and involuntary as defined by the Older Workers' Benefits Protection Act ("OWBPA"), the termination of the EEOC charge was ineffective, and as such, the 90-day period has not yet begun to run. This argument could prevail only if the failure to comply with the OWBPA requirements rendered the April 1994 Agreement -- and therefore the termination of the EEOC charge -- void. This Court concludes, however, that the Agreement was merely voidable, not void, and therefore the termination of the EEOC charge was effective. Accordingly, the instant action is time-barred.
The OWBPA provides that "an individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary." 29 U.S.C. § 626(f). The statute further provides eight items which must be included in order for a waiver to be "knowing and voluntary," including that the waiver be written in a manner calculated to be understood, that it specifically refer to rights or claims arising under the ADEA, and that the individual is advised in writing to consult with an attorney prior to executing the agreement. See 29 U.S.C. § 626(f)(1)(A), (B), and (E).
There is a clear split in the circuits as to whether a waiver which fails to meet the statutory requirements of OWBPA prevents a former employee from bringing action under the ADEA, and this Circuit has not yet addressed this issue. The Fourth and the Fifth Circuits have held that failure to meet the OWBPA requirements renders a contract merely voidable and not void; thus, a plaintiff who performs under the contract and receives the benefits under that contract has ratified the waiver and is therefore barred from bringing action. See Blistein v. St. John's College, 74 F.3d 1459 (4th Cir. 1996); Blakeney v. Lomas Information Systems, Inc., 65 F.3d 482 (5th Cir. 1995), cert. denied, 116 S. Ct. 1042, 134 L. Ed. 2d 189 (1996); Wittorf v. Shell Oil Co., 37 F.3d 1151 (5th Cir. 1994); Wamsley v. Champlin Refining and Chemical, Inc., 11 F.3d 534 (5th Cir. 1993), cert. denied, 115 S. Ct. 1403, 131 L. Ed. 2d 290 (1995). By contrast, the Seventh Circuit holds that failure to comply with the requirements in the OWBPA renders the contract legally void; a plaintiff in those circuits who enters such a waiver may bring a claim under the ADEA. See Oberg v. Allied Van Lines, Inc., 11 F.3d 679, 683 (7th Cir. 1993), cert. denied, 114 S. Ct. 2104, 128 L. Ed. 2d 665 (1994).
In Wamsley v. Champlin Refining and Chemical, Inc., 11 F.3d 534 (5th Cir. 1993), the Fifth Circuit considered the issue of whether any waiver failing to meet one of the requirements of the OWBPA is voidable -- and capable of being ratified -- or legally void. The Court stated that "the doctrine of contractual ratification is the enforcement of a promise to perform all or part of an antecedent contract of the promisor, previously voidable by him, but not avoided prior to the making of the promise." Id. at 538 (citing Restatement (Second) of Contracts § 85 (1981)). In considering common law concepts of contract, the court further stated that "[a] contract is voidable if there exist grounds upon which a party can avoid, or disaffirm his duty of performance. Such grounds have traditionally included fraud, duress, mistake and infancy." Id. (citing Restatement (Second) of Contracts § 7, § 7 cmt.b)).
The Wamsley court then examined the legislative history of the OWBPA and concluded 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 facts. The circumstances against which these provisions were designed to protect are the same circumstances that have traditionally given rise to grounds upon which a party can avoid contractual obligations." Id. at 539 n.8 (citing S. Rep. No. 101-263, 101st Cong., 2nd Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 1509, 1537)) (emphasis added). In addition, the Wamsley court considered significant the absence of any language in the statute or in the legislative history which indicates that a waiver which fails to comply with OWBPA is void of legal effect and cannot be ratified by an employee. See id.
The rule established in Wamsley was subsequently followed by the Fifth Circuit in Blakeney v. Lomas Information Systems, Inc., 65 F.3d 482 (5th Cir. 1995) cert. denied, 116 S. Ct. 1042, 134 L. Ed. 2d 189 (1996) and Wittorf v. Shell Oil Co., 37 F.3d 1151 (5th Cir. 1994), and by the Fourth Circuit in Blistein v. St. John's College, 74 F.3d 1459 (4th Cir. 1996). In Blistein, the Court of Appeals for the Fourth Circuit concluded that "an employee who unknowingly and involuntarily enters into a retirement agreement . . . has a voidable, not a void, contract, much like a party who enters into a contract under duress has a voidable rather than a void, contract. Upon learning that the agreement is voidable, the employee, like the party who acted under duress, can either avoid performance of the contract or accept its benefits and thereby ratify the contract." Blistein, 74 F.3d at 1466.
By contrast, the Court of Appeals for the Seventh Circuit considered the issue of whether a waiver that fails to meet the requirements of OWBPA can nevertheless act as a bar to bringing suit. The court stated that "the statute's operative words carry the plain meaning within their context. . . . No matter how many times parties may try to ratify such a contract, the language of the OWBPA, "an individual may not waive," forbids any waiver." Oberg v. Allied Van Lines, Inc., 11 F.3d 679, 683 (7th Cir. 1993) (citing Forbus v. Sears, Roebuck & Co., 958 F.2d 1036 (11th Cir.), cert. denied, 506 U.S. 955, 113 S. Ct. 412, 121 L. Ed. 2d 336 (1992). Thus, the court concluded that plaintiffs could not ratify the agreements at issue by retaining the consideration that they received. Id.
After considering the legislative history of the OWBPA and the common law principles of contract and ratification, this Court follows the rationale and rule of Wamsley. An agreement that fails to meet the requirements of the OWBPA is merely voidable and not void, and thus can be ratified by accepting the benefits conferred by the agreement. The opposite rule -- that a contract is legally void when it fails to meet one of the OWBPA requirements -- would allow plaintiffs "to have it 'both ways,' to retain the benefits that they receive pursuant to their retirement agreements, yet to challenge, through suits against their unsuspecting employers, the very agreements under which those benefits were extended." Blistein, 74 F.3d at 1466.
In the instant case, the parties do not dispute that the April 1994 Agreement does not meet the requirements of the OWBPA. Moreover, plaintiff alleges that he entered the April 1994 Agreement under "intimidation" by defendant. The complaint is silent, however, as to when plaintiff discovered that the contract failed to meet the requirements of the OWBPA, although it is undisputed that plaintiff accepted the consideration of employment for one year through July 1995 in return for withdrawing his claim with the EEOC.
Not only has plaintiff accepted the benefits of the contract, but there is no way for plaintiff or defendant to tender back the consideration exchanged. Plaintiff can not now claim, after full completion of the contract, that he entered it involuntarily. Rather, plaintiff's full performance and acceptance of the consideration constitutes a ratification of the contract.
Plaintiff's claim is time-barred because more than 90 days have passed since the date of termination. This termination is effective despite the fact that the charge was withdrawn pursuant to a contract that failed to comply with the requirements of OWBPA, because plaintiff completed and therefore ratified the contract. Defendant's motion to dismiss plaintiff's claim for failure to state a claim is hereby granted.
BARBARA S. JONES
United States District Judge
Dated: New York, New York
September 16, 1996