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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
SUNDANCE REHABILITATION CORPORATION
Defendant.

) )

ICIJltJ'ev 18 67

) )

JUDGE WEllS

) )

MAG. JUDGE STREEPY

)

COMPLAINT

)

)

)

NATURE OF THE ACTION

This is an action under the Age Discrimination in Employment Act, Title I of the Americans with Disabilities Act of 1990, the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, and Title I of the Civil Rights Act of 1991to correct actions undertaken by Defendant to retaliate against individuals affected by the Defendant's Separation Agreement, General Release and Covenant Not to Sue, because of their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding.

JURISDICTION AND VENUE
1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331,
1337, 1343 and 1345. This action is authorized and instituted pursuant to:
a. Section 17 of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. Section 217, to enforce the requirements of the Equal Pay Act of 1963 (the "EPA"), codified as Section 15 of the FLSA, 29 U.S.C. §215;
b. Sections 704(a), 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e-3(a), 2000e-5(f)(1) and (3)("Title VII");
c. Sections 4(d) and 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sections 623(d) and 626(b) (the "ADEN) which incorporates by reference Sections 16(c) and 17 of the FLSA, as amended, 29 U.S.C. Sections 216(c) and 217; and
d. Section 107(a) and 503 of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. Sections 12117(a) and12203 which incorporates by reference Sections 706(f)(1) and (3) ofTitle VII.
2. The employment practices alleged to be unlawful were and are now being
committed within the jurisdiction of the United States District Court for the Northern District
of Ohio, Eastern Division.
PARTIES
3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"
or "EEOC"), is the agency of the United States of America charged with the administration,
interpretation and enforcement of the EPA, Title VII, ADEA, and the ADA and is expressly
authorized to bring this action by:
a. Section 17 of the FLSA, 29 U.S.C. Section 217, as amended by Section 1 of Reorganization Plan No.1 of 1978, 92 Stat. 3781, and Public Law 98-532 (1984), 98 Stat. 2705;
b. Sections 704(a), 706(f)(1) and (3) of Title VII, 42 U.S.C. Sections 2000e-3(a), 2000e-5(f)(1) and (3);
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c. Sections 4(d) and 7(b) of the ADEA, 29 U.S.C. §§ 623 (d) and 626 (b) as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and Public Law 98-532 (1984), 98 Stat. 2705; and
d. Sections 107(a) and 503 of the ADA, 42 U.S.C. §§ 12117(a) and 12203 which incorporates by reference Sections 706(f)(1) and (3) of Title VII. 4. At all relevant times, Defendant SunDance Rehabilitation Corporation
(SunDance), has continuously been a Connecticut corporation, doing business in at least 27 states, including the State of Ohio and the City of North Olmsted and has continuously had at least 20 employees.
5. At all relevant times, Defendant SunDance has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) ofTitle VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
6. At all relevant times, Defendant SunDance has continuously been an employer engaged in an industry affecting commerce under Section 101 (5) of the ADA, 42 U.S.C. § 12111 (7), which incorporates by reference Sections 701 (g) and (h) ofTitle VII, 42 U.S.C. §§ 2000e(g) and (h) and has been a covered entity under Section 101 (2) of the ADA, 42 U.S.C. §12111(2).
7. At all relevant times, Defendant SunDance has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 11 (b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630 (b), (g) and (h).
8. At all relevant times, Defendant SunDance has acted directly or indirectly as an employer in relation to employees and has continuously been an employer within the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).
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9. At all relevant times, Defendant SunDance has continuously employed employees engaged in commerce or in the production of goods for commerce within the meaning of Sections 3(b), (i) and U) of the FLSA, 29 U.S.C. §§ 203(b), (i) and U) or has continuously been an enterprise engaged in commerce or in the production of goods for commerce within the meaning of Sections 3(r) and (s) of the FLSA, 29 U.S.C. §§ 203(r) and (s), in that said enterprise has continuously been an enterprise whose annual gross volume of sales made or business done is not less than $500,000.
STATEMENT OF TITLE VII RETALIATION CLAIMS 10. More than thirty days prior to the institution of this lawsuit, Elizabeth S. Salsbury filed a charge with the Commission alleging violations of Title VII by Defendant SunDance. All conditions precedent to the institution of this lawsuit have been fulfilled. 11. Since at least March 5, 1999, Defendant SunDance has engaged in continuing unlawful employment practices at its North Olmsted, Ohio, facility in violation
of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). The continuing practices include retaliating against individuals affected by its Separation Agreement, General Release and Covenant Not to Sue ("Separation Agreement"), because of their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding.
12. The effect of the continuing practices complained of in paragraph 11, above, has been to deprive Elizabeth S. Salsbury and similarly situated individuals of equal employment opportunities and otherwise adversely affect their status because oftheir right to file charges with the EEOC or otherwise participate in an EEOC investigation or proceeding.
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13. The continuing unlawful employment practices complained of in paragraph 11, above, were and are intentional.
STATEMENT OF EPA CLAIMS 14. Since at least March 5, 1999 Defendant SunDance has continually violated Section 15(a)(2) of the FLSA, 29 U.S.C. §215(a)(2), by retaliating against individuals affected by the Separation Agreement because of their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding under the EPA. 15. As a result of the continuing acts complained of in paragraph 14, above, Defendant SunDance unlawfully has withheld and is continuing to withhold the payment of severance benefits to Elizabeth S. Salsbury and similarly situated individuals.
STATEMENT OF ADEA CLAIMS 16. Since at least March 5, 1999, the Defendant SunDance has continually engaged in unlawful employment practices at its North Olmstead, Ohio facility, in violation of Section 4(d) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623(d) by retaliating against individuals affected by the Separation Agreement because of their right file a charge with the EEOC or participate in an EEOC investigation or proceeding. 17. The effect of the continuing practice(s) complained of in paragraph 16, above, has been to deprive Elizabeth S. Salsbury and similarly situated individuals of equal employment opportunities and otherwise adversely affect their statutory right to because of their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding.
5

STATEMENT OF ADA CLAIMS 18. Since at least March 5, 1999, the Defendant SunDance has continually engaged in unlawful employment practices at its North Olmstead, Ohio facility, in violation
of Sections 107(a) and 503 of the ADA, 42 U.S.C. §§ 12117(a) and 12203 which incorporates by reference Sections 706(f)(1) and (3) of Title VII. The continuing practices include interfering with the right of individuals affected by the Separation Agreement to file a charge with the EEOC or participate in an EEOC investigation or proceeding.
19. The effect of the continuing practices complained of in paragraph 18, above, has been to deprive Elizabeth S. Salsbury and similarly situated individuals of equal employment opportunities and otherwise adversely affect their statutory right to engage in protected activity.
20. The unlawful employment practices complained of in paragraph 20, above, were and are intentional.
PRAYER FOR RELIEF Wherefore, the Commission requests that this Court: A. Grant a permanent injunction enjoining the Defendant SunDance, its officers, successors, assigns and all persons in active concert or participation with them, from engaging in the institution, maintenance and/or management of the April 1999 Separation Agreement, or any other similar plan, which retaliates because of an employee right to file a charge with the EEOC or participate in an EEOC investigation or proceeding.
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B. Grant a permanent injunction enjoining the Defendant SunDance, its officers, successors, assigns and all persons in active concert or participation with them, from retaliating because of an employee's right to file a charge with the EEOC or participate in an EEOC investigation or proceeding
C. Order Defendant SunDance to institute and carry out policies, practices and programs which provide equal employment opportunities for employees who wish to file charges with the EEOC or participate in an EEOC investigation or proceeding, and which eradicate the effects of its past and present unlawful employment practices.
D. Order Defendant SunDance to make whole Elizabeth S. Salsbury and other similarly situated employees, by providing affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to immediately (1) reforming the April 1999 Separation Agreement to expressly permit employees to file charges with the EEOC and participate in EEOC investigations or proceedings without losing their severance pay and without violating the Separation Agreement, (2) restraining SunDance's continued withholding of severance pay as amounts owing as back wages with prejudgment interest, in amounts to be determined at trial, and (3) instituting further measures to remove barriers to employees who wish to file a charge with the EEOC or participate in an EEOC investigation or proceeding.
These further measures include delivering a corrective notice with a reformed Separation Agreement to Elizabeth S. Salsbury and similarly situated former employees and tolling all limitations periods for charge, claim or (under the EPA) suit filing until the date of actual delivery of the corrective notice, which sets the applicable time limitation running anew.
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E. Grant such further relief as this Court deems necessary and proper in the public interest.
F. Award the Commission its costs of this action.
Respectfully submitted,
GWENDOLYN YOUNG REAMS ACTING DEPUTY GENERAL COUNSEL
()~~
C. Larry atson Regional Attorney
RC:r~
A. Stern
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Cleveland District Office 1660 West Second Street, Suite 850 Cleveland, Ohio 44113-1412 (216) 522-7458 (Stern) (216) 522-7430 (FAX) Email: Jeffrey.Stern@eeoc.gov
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 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

------------------------------------------------------- :

EQUAL EMPLOYMENT OPPORTUNITY : CASE NO.1:01 CV 1867

COMMISSION

:

:

Plaintiff : MEMORANDUM OF OPINION AND

: ORDER GRANTING PLAINTIFF’S

-vs-

: MOTION FOR SUMMARY JUDGMENT

: AND DENYING DEFENDANT’S MOTION

SUNDANCE REHABILITATION

: FOR SUMMARY JUDGMENT

CORPORATION

:

:

Defendant :

------------------------------------------------------- :

UNITED STATES DISTRICT JUDGE LESLEY WELLS

The Equal Employment Opportunity Commission (the “EEOC”) brings this action against defendant SunDance Rehabilitation Corporation (“SunDance”), claiming that SunDance’s policy of requiring its terminated employees to waive their rights to file a charge with the EEOC in exchange for severance payments constitutes retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII),1 the Equal Pay Act of 1963 (EPA),2 the Age Discrimination in Employment Act (ADEA),3 and the Americans with Disabilities Act of 1990 (ADA).4 The EEOC seeks injunctive relief.

1 42 U.S.C. § 2000e-3(a). 2 29 U.S.C. § 215(a)(2). 3 29 U.S.C. § 623(d). 4 42 U.S.C. §§ 12117(a) and 12203.

The parties filed cross-motions for summary judgment. This Court referred the
motions to United States Magistrate Judge Jack Streepy for a report and
recommendations (“R&R”). Magistrate Judge Streepy recommends that the EEOC’s
Motion for Summary Judgment be denied and SunDance’s Motion for Summary Judgment
be granted. The EEOC objects to the R&R. For the reasons that follow, the R&R will not
be adopted. The EEOC’s Motion for Summary Judgment will be granted and SunDance’s Motion for Summary Judgment will be denied.5
I. Factual Background
Elizabeth Salsbury, a speech pathologist and an employee of SunDance, was
terminated on 1 March 1999 as part of SunDance’s company-wide reduction in force.
(McNett Aff. ¶2, Salsbury Decl. ¶2.) SunDance’s termination letter informed Ms. Salsbury
that:
If you choose to stay through to your termination date and continue to fulfill the requirements of your job, as outlined in the company’s reduction in force and severance policies, you will receive 80 hours of severance pay, less applicable taxes and withholdings, after you sign a Separation Agreement and General Release, and after you return company property.
5 Under 42 U.S.C. § 2000e-5(f), the EEOC may bring a civil action against a respondent to a charge of discrimination if “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.” The EEOC has neither stated in its Complaint nor submitted any evidence along with its motion for summary judgment showing that it has been unable to secure a conciliation agreement from SunDance. In SunDance’s Exhibit A-3, the EEOC’s determination letter, the EEOC stated that it “attempts to eliminate the alleged unlawful practice by informal methods of conciliation,” and “invites the parties to join with it in reaching a just resolution of this matter.” (Doc. #24.) The record is devoid of information as to the result of any conciliation effort. However, because SunDance does not challenge the EEOC’s authority to bring the current action, the Court presumes the EEOC was unable to secure an acceptable conciliation agreement and the analysis will proceed on this assumption.
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(Docket #24, Ex. A-1, p. 1). The Separation Agreement and General Release (the
“Separation Agreement”) contained a provision to release SunDance from all claims
arising before the date of the release. It further provided:
Severance Pay: Upon execution of this Release by Elizabeth Salisbury and its delivery to Company, Company will, as full and complete consideration and severance: pay in one lump sum an amount equal to 80 hours of pay at the base rate.
General Release: Releasor . . . expressly agrees that she will not institute, commence, prosecute or otherwise pursue any proceeding, action, complaint, claim, charge or grievance against Company . . . in any administrative, judicial or other forum whatsoever with respect to any acts or events occurring prior to the date hereof in the course of Releasor’s dealings with Release.
Return of Severance Pay: In the event that the provisions of this Agreement are violated, Releasor agrees that the Company shall have the right to seek and obtain injunctive relief and damages in any court of competent jurisdiction from said violation, including the right to the return of the entire amount of the consideration paid by the Company under this Agreement, plus any other damages proven, including reasonable attorney’s fees and costs.
(Docket #24, Ex. A-1, p. 3-4).
After receiving the Agreement, Ms. Salsbury called SunDance’s Human Resources
Department at its “1-800" number and talked to a representative whose name Ms.
Salsbury does not remember. Ms. Salsbury asked him whether she could strike out the
part of the Separation Agreement that prohibited her from filing a charge with the EEOC.
The representative allegedly answered “no” and stated that any alterations of the
Separation Agreement would be null and void. (Salsbury Decl. ¶7.)
Ms. Salsbury did not sign the Separation Agreement. On 20 April 1999, she
brought a charge of discrimination with the EEOC against SunDance, alleging that on or
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about 15 December 1998 she was denied a promotion on the basis of her sex. She
further stated:
I was also asked to sign a separation agreement, general release and covenant not to sue agreement in order to get a lump sum payment of 80 hours. I did not sign this release because I believe it violates the [l]aws administered by the EEOC.
(Docket #24, Ex. A-2.)
The EEOC investigated Ms. Salsbury’s charge. Upon the EEOC’s request,
SunDance submitted its reduction in force policy and procedure and its severance policy
for reduction in force. (Smith Decl. ¶ 3-4.) On 30 September 1999, the EEOC issued a
determination finding that “there is not reasonable cause to believe that [Ms. Salsbury] was
discriminated against on the promotion or lay-off issues and no proof of sex
discrimination.” (Docket #24, Ex. A-3). It went on to state:
However, with regard to the Waiver/Release, investigation reveals that Respondent requested that Charging Party sign a “General Release.” This “General Release” fails Section 7(f)(1)(C) of the ADEA, 29 U.S.C. sec. 626(f)(1)(C), and thereby fails to meet the criteria for a knowing and voluntary waiver, as set forth in Section 7(f)(1)(A)-(G), 29 U.S.C. secs. 626(f)(1)(A)(G), in violation of the ADEA, as amended by the Older Workers’ Benefit Protection Act (OWBPA). Moreover, the waiver provision may produce a chilling effect, thereby undermining the Commission’s ability to enforce the ADEA, Title VII, the EPA and the ADA. These provisions may intimidate or have the effect of intimidating employees and create disincentives for them to cooperate with EEOC in safeguarding the public interest.
(Docket #24, Ex. A-3).
On 12 February 2000, Ms. Salsbury filed a second EEOC charge, alleging that
SunDance’s failure to recall her to two positions was retaliation for her filing her first charge
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of discrimination with the EEOC. The EEOC dismissed her claim and issued her a right to sue letter. (Docket #24, Ex. A-4 & A-5.)
On 7 March 2000, Ms. Salsbury signed the Separation Agreement, but SunDance had already gone bankrupt and she did not receive the 80 hours’ severance pay. (Salsbury Decl. ¶ 9-11.) On 20 July 2000, the EEOC ruled on Ms. Salsbury’s second charge, deciding it could not find a violation. (Docket #24, Ex. A-5.)
The EEOC brings the current action following the Commission’s determination of 30 September 1999, alleging that the Separation Agreement constitutes retaliatory discrimination in violation of Title VII, the EPA, the ADEA, and the ADA.
II. R&R and EEOC’s Objections Magistrate Judge Streepy recommends that summary judgment be entered for SunDance on the EEOC’s EPA, ADEA, and ADA violation claims and on the part of the EEOC’s Title VII claim that relates to discrimination on the basis of protected traits other than gender. He reasons that those claims should be dismissed because “[t]he EEOC has not submitted any evidence regarding (1) the number of employees who were laid off by SunDance, (2) the number who received a severance pay proposal that was conditioned on signing a Separation Agreement, and (3) whether any other employees qualified to file a charge under the ADEA, or the ADA, or the EPA, or Title VII on the basis of a protected class other than gender.” (Docket #39, p. 6-7). Magistrate Judge Streepy determined that, on the EEOC’s Title VII retaliation claim based on gender, SunDance’s severance payment policy is not, as the EEOC claims,
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facially retaliatory. Judge Streepy relies on cases holding that an employee’s knowing and voluntary waiver of possible employment-related discrimination claims will be enforced in federal courts in the absence of fraud, duress, lack of consideration or mutual mistake. Shaheen v. B.F. Goodrich Co., 873 F.2d 105 (6th Cir. 1989); Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995); and Runyan v. National Cash Register Corp., 787 F.2d 1039, 1044-1045 (6th Cir. 1986) (en banc). He rejected the contrary position articulated by the EEOC in its Enforcement Guidance on Non-Waivable Employee Rights Under EEOC Enforced Statutes (“Enforcement Guidance”) because he determined that the legal interpretations of the Enforcement Guidance should be respected for their persuasiveness but do not deserve deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984).
Magistrate Judge Streepy then considered the EEOC’s indirect evidence of discrimination. He found insufficient indirect evidence of retaliation to meet the McDonnell Douglas prima facie standard. According to the R&R, the EEOC failed to show that Ms. Salsbury engaged in a protected activity, that SunDance’s refusal to award Ms. Salsbury severance pay constituted an adverse employment action since Ms. Salsbury’s refusal to sign was not a protected activity, or that there was a causal connection between any protected activity and any alleged adverse employment action.
For the above reasons, Magistrate Judge Streepy recommends that summary judgment be granted in favor of SunDance and against the EEOC.
The EEOC timely filed objections to the R&R. Under Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636(b)(1)(C), the Court reviews de novo the portion of the Magistrate Judge’s
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R&R to which specific objection was made. Because the EEOC raised objections to the entire R&R, this Court will consider de novo the parties’ cross-motions for summary judgment.
III. Standard for Summary Judgment Summary judgment is appropriate if the evidence in the record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To survive summary judgment, the dispute must involve a genuine issue of material fact; that is, a fact that might affect the outcome of the suit under the governing substantive law. Anderson, 477 U.S. at 248. The moving party always bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). The “mere existence of a scintilla of evidence in support of the [nonmovant]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson, 477 U.S. at 248. Summary judgment is intended as a mechanism for isolating and disposing of “factually unsupported claims or defenses.” Celotex, 477 U.S. at 323-24. To that end, the inquiry on summary judgment mirrors the directed verdict standard, and summary judgment should be entered when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (quoting Matsushita Elec. Industrial Co., 475 U.S. 574, 587 (1986)). In considering a
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motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587.
IV. Analysis A. Actionable claims The EEOC claims that the language in the Separation Agreement requiring a releasor to give up her right to file a charge with the EEOC is per se retaliatory under Title VII, the EPA, the ADEA, and the ADA. Alternatively, the EEOC argues it has established a prima facie case of retaliation under each of these statutes with indirect evidence. Although the magistrate judge reasoned in his R&R that summary judgment should be entered for SunDance on the EEOC’s claims based on the ADEA, ADA, EPA, and Title VII (except the claim based on gender), on de novo review this Court disagrees. The explanation in the R&R for deciding the above claims in favor of SunDance is that the EEOC “has not established a genuine issue of material fact that the above statutes have been violated.” (Docket #39, p. 7). The presumption by the magistrate appears to be that the EEOC may only initiate an action on behalf of an individual who experienced discrimination under one of the laws it enforces. While this may represent the typical circumstances in which the EEOC initiates a lawsuit, in fact, the EEOC enjoys broader authority. Under 42 U.S.C. sec. 2000e-5, once a charge alleging unlawful employment practices is filed with the EEOC, the EEOC conducts an investigation of the allegations. “[T]he EEOC’s investigative authority is tied to charges filed with the Commission.” EEOC
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v. Shell Oil Co., 466 U.S. 54, 64 (1984). It is “entitled to access only to evidence ‘relevant to the charge under investigation.’” Id. quoting 42 U.S.C. sec. 2000e-8(a). However, “[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable.” General Telephone Company of the Northwest, Inc. v. EEOC, 446 U.S. 318, 331 (1980).
In other words, the original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed in the Act. EEOC v. General Electric Company, 532 F.2d 359, 366 (4th Cir. 1976). See also Park v. Howard University, 71 F.3d 904, 907 (D.C. Cir. 1995) (“A Title VII lawsuit following the EEOC charge is limited in scope to claims that are ‘like or reasonably related to the allegations of the charge and growing out of such allegations.’ At a minimum, the Title VII claims must arise from ‘the administrative investigation that can reasonably be expected to follow the charge of discrimination.’”) (citations omitted). The initial charge and the determination issued in response to it by the EEOC determine the scope of any subsequent lawsuit brought by the EEOC. General Electric Co., 532 F.2d at 366. In this case, the charge filed by Elizabeth Salisbury included her statement that she did not sign the Separation Agreement because she believed it violated the laws enforced by the EEOC. (Docket #24, Ex. A-2). In addition, the determination made by the EEOC included a finding that SunDance’s Separation Agreement was not a knowing and valid waiver of the right to file an EEOC charge and
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thus violated the ADEA, and undermined the “Commission’s ability to enforce the ADEA, Title VII, the EPA and the ADA.” (Docket #24, Ex. A-3.). Therefore, the EEOC properly brought this action pursuant to the ADEA, ADA, EPA, and Title VII because the charge and determination clearly stated that the waiver/release contained in SunDance’s Agreement was the focus of the EEOC’s concern. General Electric Co., 532 F.2d 359. “The EEOC is not merely a proxy for the victims of discrimination. . . . When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.” General Telephone Co., 446 U.S. at 326.
Although the Separation Agreement at issue in this case came to the EEOC’s attention via the charge filed by Elizabeth Salisbury, the EEOC challenges the Separation Agreement as facially retaliatory as to all those who entered into the agreement. (Docket #1, p. 1). Such a claim need not be based on conduct directed at a particular person when the basis of the complaint is a policy applicable to a large group, as is the case here. “It would be inappropriate to suggest that each member of the protected class file an individual - disparate - treatment claim pursuant to the McDonnell Douglas Corp. V. Green burden shifting method because the adverse employment action stemmed from a discriminatory policy, not an individual decision. EEOC v. Board of Governors of State Colleges and Universities, 957 F.2d 424, 431 (7th Cir. 1992) (discussed infra p. 12) (citation omitted). The EEOC seeks injunctive relief to prohibit SunDance from enforcing its Separation Agreement and to provide reformed agreements to Elizabeth Salisbury and other similarly situated employees. (Docket #1, p. 6-7). Clearly, this case exemplifies
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those circumstances in which the EEOC acts on behalf of a group of people for the public interest, albeit at the prompting of an individual.
Based on the above reasoning, Part II.A. of the R&R is not adopted.
B. Facially retaliatory policy The EEOC argues that SunDance’s Separation Agreement, on its face, is a per se violation of the anti-retaliation provisions of the ADEA, ADA, EPA, and Title VII. SunDance claims that “[w]hile the EEOC’s retaliation claims are framed under four distinct statutes, the legal analysis for each is identical.” (Docket #24, p. 4). The EEOC agrees the retaliation provisions of each statute are similar but suggests that the ADA provision is more broad. (Docket #25, p. 6). The relevant provisions of each statute are: It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment. . ., because such individual. . . has opposed any practice made unlawful by this section, or because such individual. . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. Section 4(d) of the Age Discrimination in Employment Act, 29 U.S.C. sec. 623(d). No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. Section 503 of the Americans with Disabilities Act, 42 U.S.C. sec. 12203(a). ...[I]t shall be unlawful for any person to violate any of the provisions of section 206 or section 207 of this title, or any of the provisions of any regulation or order of the Secretary issued under section 214 of this title. Section 15(a)(2) of the Fair Labor Standards Act, 29 U.S.C. sec. 215(a)(2).
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It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment. . ., to discriminate against any individual, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. Section 704(a) of Title VII, 42 U.S.C. sec. 2000e-3(a). Given the parties agreement that under the most narrow interpretation of these statutes the analysis of a retaliation claim is the same, the Court will treat them similarly in the following analysis. (Docket #24, p. 4; Docket #25, p. 6). The EEOC does not claim that SunDance’s Agreement is facially discriminatory, nor could it claim so, since the policy is facially neutral – it neither treats employees with protected traits (eg. race, sex, age, etc.) differently because of such traits, nor is there evidence in this case that it had a disparate impact upon employees with protected traits. See DiBiase v. AmithKline Beecham Corp., 48 F.3d 719 (3rd Cir. 1995) (for a discussion of facially discriminatory policy). Instead, the EEOC argues that the Separation Agreement is itself facially retaliatory, in violation of the retaliation provisions of the antidiscrimination statutes at issue here. An employment policy can, as the EEOC suggests, constitute impermissible retaliation on its face. The Seventh Circuit addressed the question of whether a retaliatory policy constitutes a per se violation of Section 4(d) of the ADEA and held that it does. Board of Governors, 957 F.2d 424. In Board of Governors, an employee signed a collective bargaining agreement that required an employee to forfeit administrative or judicial resolution of a grievance in order to participate in the internal grievance procedure.
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Id. at 426. The district court held that “the collective bargaining agreement constituted a prima facie case of forbidden retaliation under Section 4(d) of the ADEA.” Id. at 427. The Seventh Circuit determined that an employee had a contractual right to an in-house grievance procedure, and that the collective bargaining agreement authorized adverse employment action in that the grievance procedure could be terminated because the employee engaged in protected activity, i.e. filing an ADEA claim. Id. at 429-30. Therefore, the court affirmed the district court decision that the collective bargaining agreement was discriminatory on its face.6 Id. at 431.
SunDance asserts that its Separation Agreement is a valid contract between an employee and SunDance. Several cases in the Sixth Circuit and elsewhere have upheld knowing and voluntary waivers of an employee’s discrimination claims. For example, the Sixth Circuit considered a waiver signed by a terminated employee as part of a severance payment plan and held “[p]roperly executed waivers of possible employment-related discrimination claims knowingly and voluntarily made between an employee and his employer will be enforced absent the typical exceptions for fraud, duress, lack of consideration or mutual mistake.” Shaheen v. The B.F. Goodrich Co., 873 F.2d at 105, 107 (6th Cir. 1989). Similarly, a general release of employment claims was a valid, knowing and voluntary waiver in Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995). See also Runyan v. National Cash Register Corp., 787 F.2d 1039 at 1044-1045
6 In Board of Governors, the court explained that “[e]ven though the explicit language in Section 4(d) prohibits ‘discrimination,’ this Court has referred to Section 4(d) claims as ‘retaliation’ claims. . . . [W]e use the terms as a shorthand way to distinguish substantive age discrimination claims from claims of discrimination based on the exercise of legal rights granted by the ADEA.” 957 F.2d at 427. Although the Board of Governors court referred to the latter situation as “discrimination” and “retaliation” interchangeably, this Court refers to the issue before it only as retaliation.
13

(6th Cir. 1986) (“We have decided that under particular circumstances employers and employees may negotiate a valid release of ADEA claims.”).
The EEOC argues these cases address waivers of the right to file a lawsuit or bring a claim, but not the right to file charges with the EEOC, which is at issue here. Although the distinction appears slight, case law and legislative history suggest the EEOC rightly emphasizes its significance. In EEOC v. Cosmair, an employee signed a release waiving his right to file any claims dealing with discrimination in exchange for severance benefits. 821 F.2d 1085, 1087 (5th Cir. 1987). When the employee then filed a charge with the EEOC, the employer discontinued his severance benefits. Id. at 1087. The EEOC claimed such discontinuation of benefits constituted unlawful retaliation while the employer argued it merely suspended performance of its duties after the employee breached the agreement. Id. The court held that the employee did not breach his contract by filing a charge with the EEOC because the release did not obligate him not to file a charge. Id. at
1089. The court then extrapolated on the difference between waiving the right to take legal action versus the right to file a charge:
Through the release, Terry waived ‘all actions, causes of action, claims and demands whatsoever.’ Actions, causes of action, claims, and demands all entail the seeking of ‘one’s own’ from another. The purpose of a charge, however, is not to seek recovery from the employer but rather to inform the EEOC of possible discrimination. As the Supreme Court stated in EEOC v. Shell Oil Co., ‘[A] charge of employment discrimination is not the equivalent of a complaint initiating a lawsuit. The function of the [ADEA] charge, rather, is to place the EEOC on notice that someone ... believes that an employer has violated the [Act]. Indeed, charges can be filed by persons other than the employee who allegedly suffered from discrimination.
14

EEOC v. Cosmair, 821 F.2d at 1089 (citations omitted). In addition, the employer expressed at oral argument its intention that the release include a waiver of the right to file a charge. Id. The court responded that private interest in settlement of disputes is outweighed by the public interest in EEOC enforcement of the ADEA. Id. at 1090. Therefore, the court explicitly held “that an employer and an employee cannot agree to deny to the EEOC the information it needs to advance this public interest. A waiver of the right to file a charge is void as against public policy.” Id.
The Third Circuit also recognized as significant the difference between the right to bring a lawsuit and the right to file a charge with the EEOC in a case interperting 29 U.S.C. sec. 626(f)(4).7 The court enforced a release agreement precluding an employee from filing an age discrimination suit against his former employer while holding void the portion of the release prohibiting the employee from filing a charge with the EEOC. Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 289-93 (3rd Cir. 2003) (“[A]ny attempt by an employer to enforce a contractual provision prohibiting an employee from filing a charge or participating in an EEOC investigation would be ineffectual.”). In the court’s reasoning, it explicitly relied on Cosmair’s distinction between waiving a right to file a lawsuit versus an EEOC charge. Id. at 291.
The Third Circuit, as well as this Court, find Cosmair persuasive in light of the legislative history explicitly endorsing its holding. The Senate Report on the Older Workers
7 “No waiver agreement may affect the Commission’s rights and responsibilities to enforce this chapter. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.” 29 U.S.C. sec. 626(f)(4).
15

Benefit Protection Act which amended the ADEA, under the heading “Right to Participate
in EEOC Proceedings,” states:
The legislation provides that a waiver may not interfere with the EEOC’s rights and responsibilities to enforce the ADEA, nor may such a waiver be used to interfere with the employee’s protected right to file a charge or to participate in an EEOC investigation or proceeding. The Committee intends this provision as a clear statement of support for the principle that the elimination of age discrimination in the workplace is a matter of public as well as private interest. No waiver agreement may be permitted to interfere with the achievement of that goal. This position is consistent with the holding and reasoning of EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir. 1987). An employee may validly waive the right to recover in his own lawsuit as well as the right to recover in a suit brought by the Commission on his own behalf.
1990 U.S.C.C.A.N. 1509, 1541.
Finally, the EEOC also relies on its own Enforcement Guidance as evidence of the
facially retaliatory nature of SunDance’s Separation Agreement. This Court disagrees with
the R&R that such administrative interpretation is entitled to respect only to the extent that
the Enforcement Guidance is persuasive. (Docket #39, p.8). The Sixth Circuit has
indicated that courts must consider the EEOC’s interpretation of the statutes it is charged
with enforcing and when the court disagrees with a reasonable interpretation of the
Commission, the court must explain its basis for doing so. McKay v. Toyota Motor
Manufacturering, U.S.A., Inc., 110 F.3d 369, 375-76 (6th Cir. 1997).
‘[When] Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.’
16

Id. at 376 (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 843 (1984)). See also Harris v. H & W Contracting Co., 102 F.3d 516, 521 (11 Cir. 1996) (holding that Chevron standard must be applied to EEOC regulations and Interpretive Guidance issued for the ADA).
In the case before this Court, the EEOC asserts that SunDance’s Separation Agreement is facially retaliatory because “[a]greement signers may not file discrimination charges [except] on pain of suit for return of severance, damages, fees and cost.” (Docket #27, p. 4). SunDance’s primary response to this assertion is that the waiver in its Separation Agreement must be valid because the EEOC cannot establish a prima facie case of retaliation.8 (Docket #24, p. 5-7 and Docket #35, p. 3-5). SunDance did not respond directly to the distinction highlighted by the EEOC between waiving a right to bring a lawsuit and waiving a right to file a charge with the EEOC. Instead, SunDance attempted to distinguish Cosmair, the primary case supporting this point, by pointing to
other aspects of the decision. (Docket #28, p. 3-6). Even though case law addressing employees’ waivers of their right to bring a discrimination lawsuit against an employer appears to support SunDance’s position that the waiver included in its Separation
8 SunDance relies throughout its pleadings on the fact that Ms. Salisbury did not engage in protected activity prior to receiving the Separation Agreement and that SunDance did not take any adverse employment action because of any alleged protected activity. Docket #24, p. 5-7; Docket #28, p. 2-5; and Docket #35, p. 3-5. SunDance focuses exclusively on rebutting the McDonnell Douglas analysis and fails to offer a substantive response to the EEOC’s facial retaliation claim. The thrust of the facial retaliation claim is that even before either party takes any action (engaging in protected activity or adverse employment action), the policy by its terms authorizes the employer to take adverse employment action once an employee does engage in some protected activity. Such authorized retaliation was the issue addressed by the court in Board of Governors and is at the heart of the EEOC’s claim in this case. 957 F.2d 424.
17

Agreement is valid, (see supra p. 12-13), the EEOC’s argument and Cosmair demand attention.
SunDance attempted to distinguish Cosmair by pointing out that in that case, the “employer discontinued severance payments upon the actual filing of a charge – clear retaliatory causation.” (Docket #28, p. 4). SunDance argues the court in Cosmair considered more than the policy’s mere existence, which is all that this Court has before it. Finally, SunDance argues that Cosmair held the waiver of the right to file a charge with the EEOC was void as against public policy, which does not apply to this case based only on claims of retaliation and not on any public policy claim. (Docket #28, p. 5). Despite the factual differences between Cosmair and this case, the reasoning behind the distinction between filing a lawsuit versus filing a charge, and its holding that waiving a right to file a charge is void as against public policy, are instructive.
Furthermore, the thrust of the EEOC’s argument is that the SunDance Separation Agreement is facially retaliatory. The EEOC relies significantly on Board of Governors to support its assertion. 957 F.2d 424. SunDance fails to persuasively distinguish Board of Governors from the facts of this case.
The SunDance Separation Agreement provided that an employee who signed the release may not bring claims “in any administrative, judicial or other forum whatsoever.” (Docket #24, Ex. A -1). If the employee violated the Separation Agreement, SunDance had the right to “seek and obtain injunctive relief and damages in any court of competent jurisdiction from said violation, including the right to the return of [the severance payment].” (Docket #24, Ex. A-1).
18

This Separation Agreement is analogous to the collective bargaining agreement found to be facially retaliatory in Board of Governors, 957 F.2d 424. In Board of Governors, the collective bargaining agreement was a contract entered into by the employee and employer that entitled the employee to participate in a grievance process. By the terms of the agreement, the employee lost his contractual right to participate in the grievance process if the employee filed a charge of discrimination. Id. at 429-30. In this case, SunDance’s Separation Agreement is a contract entered into by employees entitling them to severance pay. By the terms of the Separation Agreement, the employee loses his contractual right to the severance pay if he files a charge of discrimination. In both cases, the policies at issue allow an employer to deny to an employee a contractual right because the employee engaged in protected activity, i.e. filing a charge of discrimination.
SunDance attempted to distinguish Board of Governors by the fact that the plaintiff in that case was denied an employment benefit, specifically the right to file a grievance, while in this case severance pay was not an employment benefit because it was conditional rather than automatic. 957 F.2d at 429-30. SunDance ignores the portion of the Board of Governors opinion specifically recognizing that even though the employer did not have to offer its employees a contractual right to participate in a grievance process, once it did so, it could not administer the benefit in a discriminatory way.9 Id. at 430. Similarly, although SunDance did not have to offer its terminated employees severance packages, once it decided to do so, it could not do so in a retaliatory manner. In addition, the holding in Board of Governors is not based on the adverse action actually taken by the
9 See discussion of “discrimination” versus “retaliation” supra, footnote 6.
19

employer, rather the court held the policy was, on its face, impermissibly retaliatory. Id. at 429-430.
The EEOC, by this action, “seeks to correct actions taken by SunDance to retaliate against individuals affected by its Separation Agreement because of their right to file an EEOC charge or participate in an EEOC investigation.” (Docket #33, p. 2). The ADEA waiver provision, 29 U.S.C. sec. 626(f)(4), clarifies Congress’ intent to allow individuals to waive their right to file a lawsuit but not their right to file a charge with the EEOC. The holdings in Cosmair, 821 F.2d at 1089, and Wastak, 342 F.3d at 290, make clear that an employer cannot validly require an employee to waive her right to file a charge with the EEOC under the ADEA. This distinction between waiving the right to recover in a lawsuit versus waiving a right to file a charge with the EEOC applies equally in the context of the other anti-discrimination statutes at issue in this case. The interpretation contained in the EEOC Enforcement Guidance parallels the reasoning in these two cases and is entitled to deference under Chevron, 467 U.S. at 843. Finally, Board of Governors makes clear that a policy conditioning an employment benefit on an employee’s agreement not to file an EEOC charge constitutes facial retaliation. Therefore, when an employer requires an employee as part of a separation agreement to give up her right to file a charge with the EEOC in exchange for severance benefits, the employer violates the anti-retaliation provisions of the laws enforced by the EEOC. This Court holds that the provision of the SunDance Separation Agreement conditioning severance payments on an employee agreeing not to file a charge with the EEOC is facially retaliatory in violation of the ADA, ADEA, EPA, and Title VII.
20

The EEOC requested in its prayer for relief a permanent injunction enjoining SunDance from maintaining its Separation Agreement or any agreement which retaliates based on an employee filing a charge with the EEOC. (Docket #1, p. 6). Given this demand, the Court must consider whether the entire Separation Agreement is unenforceable or merely the portion precluding employees from filing a charge. The validity of waivers of discrimination claims are evaluated according to ordinary contract law principles. Adams, 67 F.3d at 583 (citing Runyan, 787 F.2d at 1044-45). Therefore, the severability of a contract should also be determined according to contract law principles. Under Ohio law, "[t]he severability of a contract is a question of law and depends upon the intent of the parties. . . . Whether a contract. . . is entire or divisible depends generally upon the intention of the parties, and this must be ascertained by the ordinary rules of construction.” Morrison v. Circuit City Stores, Inc., 317 F.3d 646, at 674-75 (6th Cir. 2003) (citations omitted).
The Separation Agreement at issue in this case states, “[i]f any provision of the Release is deemed to be void or unenforceable, both parties agree that the remaining provisions shall be valid and enforceable.” (Docket #24, Ex. A-1). The terms of the Separation Agreement make clear the parties intention that the contract be divisible in this case. In addition, construing the Separation Agreement as divisible comports with the holding by the Third Circuit in Wastak. 342 F.3d at 292. In Wastak, the Third Circuit held that the employee validly waived his right to bring a claim pursuant to the ADEA even though the portion of the release prohibiting him from filing a charge with the EEOC was invalid. 342 F.3d at 292. Finally, by recognizing as valid the terms of the Separation
21

Agreement other than the waiver of the right to file a charge with the EEOC, this Court follows consistently the Sixth Circuit cases that held valid knowing and voluntary waivers of the right to file a discrimination claim. See Shaheen, 873 F.2d at 105, 107; Adams, 67 F.3d at 583; and Runyan, 787 F.2d at 1044-1045.
Therefore, this Court further holds that SunDance’s Separation Agreement remains valid and enforceable except for the provision precluding former employees from filing a charge with the EEOC.
C. McDonnell Douglas analysis The R&R and defendant SunDance dwell on the EEOC’s inability to satisfy the McDonnell Douglas burden shifting test by which a plaintiff can establish a prima facie case of discrimination when no direct evidence exists. (Docket 24, p. 4-7; Docket 39, p. 11-15). Given this Court’s holding that SunDance’s Separation Agreement constitutes facial retaliation to the extent that it conditions severance benefits on an employees promise not to file a charge with the EEOC, there is no need to further explore whether or not the EEOC satisfied the McDonnell Douglas test.
V. Conclusion Although the EEOC more typically initiates legal actions on behalf of an individual who experienced some targeted discrimination, the Commission is equally responsible for bringing actions for the public good, such as the one in this case, on behalf of a group of people subject to a retaliatory policy.
22

The Court holds that the SunDance Separation Agreement constitutes facial retaliation in violation of Title VII, 42 U.S.C. sec. 2000e-3(a); the EPA, 29 U.S.C. sec. 215(a)(2); the ADEA, 29 U.S.C. sec. 623(d); and the ADA, 42 U.S.C. sec. 12203 to the extent that it conditions employees’ severance benefits on their promise not to file a charge with the EEOC. Because only those portions of the Separation Agreement related to the waiver of the right to file a charge with the EEOC are void, the remainder of the Separation Agreement remains valid. Therefore, the Court declines to adopt the R&R, SunDance’s motion for summary judgment is denied, and the EEOC’s motion for summary judgment is granted.
Accordingly, this Court will order that: SunDance, its officers, successors, assigns and all persons in active concert or participation with them, be permanently enjoined from engaging in the institution, maintenance and/or management of the portion of the April 1999 SunDance Separation Agreement, or any other similar plan, requiring all employees and former employees to waive their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding; and SunDance, its officers, successors, assigns and all persons in active concert or participation with them, be permanently enjoined from retaliating because of an employee or former employee’s right to file a charge with the EEOC or participate in an EEOC investigation or proceeding; and SunDance, its officers, successors, assigns and all persons in active concert or participation with them, forthwith, shall institute and carry out policies, practices and
23

programs which provide equal employment opportunities for employees who wish to file charges with the EEOC or participate in an EEOC investigation or proceeding; and
SunDance, its officers, successors, assigns and all persons in active concert or participation with them, to make whole Elizabeth S. Salisbury and other similarly situated employees. Defendant, forthwith, shall reform the April 1999 SunDance Separation Agreement to expressly permit all employees and former employees to file charges with the EEOC and participate in EEOC investigations or proceedings without losing their severance pay and without violating the Separation Agreement and forthwith, shall pay to Elizabeth S. Salisbury and other similarly situated employees any and all withheld severance pay with prejudgment interest; and
SunDance, its officers, successors, assigns and all persons in active concert or participation with them, shall deliver a corrective notice with a reformed SunDance Separation Agreement to Elizabeth S. Salisbury and similarly situated employees. Moreover, all limitations periods for filing a charge or claim are tolled and will run anew from the date of actual delivery of the reformed notice; and
SunDance shall pay to the EEOC its costs of bringing this action.
IT IS SO ORDERED.
/s/ Lesley Wells UNITED STATES DISTRICT JUDGE
24

 
 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

------------------------------------------------------- :

EQUAL EMPLOYMENT OPPORTUNITY :

COMMISSION

:

: CASE NO.1:01 CV 1867

Plaintiff :

:

-vs-

: JUDGMENT ENTRY

:

SUNDANCE REHABILITATION

:

CORPORATION

:

:

Defendant :

------------------------------------------------------- :

UNITED STATES DISTRICT JUDGE LESLEY WELLS

The Court contemporaneously entered its memorandum of opinion and order granting plaintiff’s motion for summary judgment and denying defendants’ motion for summary judgment.
The Court ORDERS that Defendant SunDance Rehabilitation Corporation, its officers, successors, assigns and all persons in active concert or participation with them, hereby:
Are permanently enjoined from engaging in the institution, maintenance and/or management of the portion of the April 1999 SunDance Separation Agreement, or any other similar plan, requiring all employees and former employees to waive their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding; and

Are permanently enjoined from retaliating because of an employee or former employee’s right to file a charge with the EEOC or participate in an EEOC investigation or proceeding; and
Forthwith, shall institute and carry out policies, practices and programs which provide equal employment opportunities for employees who wish to file charges with the EEOC or participate in an EEOC investigation or proceeding; and
Forthwith, shall make whole Elizabeth S. Salisbury and other similarly situated employees; forthwith, shall reform the April 1999 SunDance Separation Agreement to expressly permit all employees and former employees to file charges with the EEOC and participate in EEOC investigations or proceedings without losing their severance pay and without violating the Separation Agreement; and forthwith, shall pay to Elizabeth S. Salisbury and other similarly situated employees any and all withheld severance pay with prejudgment interest; and
Forthwith, shall deliver a corrective notice with a reformed Separation Agreement to Elizabeth S. Salisbury and similarly situated employees. All limitations periods for filing a charge or claim are tolled and will run anew from the date of actual delivery of the reformed notice; and
2

Forthwith, shall pay to the EEOC its costs of bringing this action.

IT IS SO ORDERED.

/s/ Lesley Wells UNITED STATES DISTRICT JUDGE

3

 
 UNI1FJ> STAms COURT OP APPEALS FOR 11m SIxm CIRCUIT

No: 04-4178

Filed: Maxch 21, 2007

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff - Appellee

v. SUNDANCE REHABILITATION CORPORATION
Defendant - Appellant

/:o/cv/r-6' 7
LIA,/

MANDAm
puxsuant to the couxt's disposition that was filed 10/24/06
the mandate fox this case hexeby issues today. ~~~ecl

COSTS:

NONE

Filing Fee ........... $ Pxinting ............. $
Total ......... $

A Txue Copy. Attest:
Deputy Clexk

 
 E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490 (2006)

466 F.3d 490 United States Court of Appeals,
Sixth Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v.
SUNDANCE REHABILITATION CORPORATION, Defendant-Appellant.
No. 04-4178. | Argued: Dec. 1, 2005. | Decided and Filed: Oct. 24, 2006. | Rehearing and Rehearing En
Banc Denied Mar. 13, 2007.**
Judge Cohn would grant rehearing for the reasons stated in his dissent.
Synopsis Background: Equal Opportunity Employment Commission (EEOC) brought action against employer, alleging the separation agreement offered to discharged employees in exchange for severance pay not otherwise owed violated the anti-retaliation provisions of Title VII and other employment discrimination statutes. On objections to magistrate’s recommendation that summary judgment be granted in favor of employer, the District Court for the Northern District of Ohio at Cleveland, Lesley Wells, J., 328 F.Supp.2d 826, granted summary judgment to EEOC. Employer appealed.
[Holding:] The Court of Appeals, Boggs, Chief Judge, held that mere offer of separation agreement did not amount to retaliation.
Reversed.
Cohn, District Judge, sitting by designation, dissented and filed an opinion.
Attorneys and Law Firms
*491 ARGUED: Dean E. Westman, Kastner, Westman & Wilkins, Akron, Ohio, for Appellant. Daniel Travis Vail, Equal Employment Opportunity Commission, Washington, D.C., for Appellee. ON BRIEF: Dean E. Westman, Thomas Evan Green, Kastner, Westman & Wilkins, Akron, Ohio, for Appellant. Daniel Travis Vail,

Equal Employment Opportunity Commission, Washington, D.C., for Appellee. Ann E. Reesman, McGuiness, Norris & Williams, Washington, D.C., for Amici Curiae. Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; COHN, District Judge.*

*

The Honorable Avern Cohn, United States District

Judge for the Eastern District of Michigan, sitting by

designation.

Opinion

*492 BOGGS, C. J., delivered the opinion of the court in which, BATCHELDER, J., joined. COHN, D.J. (p. 503), delivered a separate dissenting opinion.

OPINION
BOGGS, Chief Judge.
Defendant SunDance Rehabilitation Corporation (“SunDance”) appeals the district court’s grant of summary judgment in favor of the Equal Employment Opportunity Commission (“EEOC”) on cross-motions for summary judgment. The EEOC sued SunDance under the antiretaliation provisions of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12117(a) and 12203; Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(d); Equal Pay Act (“EPA”), 29 U.S.C. § 215(a)(3); and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a), alleging that the separation agreement that SunDance offered to discharged employees in exchange for severance pay not otherwise owed to the employees violates those statutory antiretaliation provisions. The “Separation Agreement, General Release, and Covenant Not to Sue” (“Separation Agreement”) offers severance pay in exchange for, among other things, promises not to sue or file an administrative charge and not to make any statement or take any action that would reflect negatively on SunDance. The Separation Agreement contains a provision whereby SunDance has the right to return of the severance pay, any other damages, and attorneys’ fees and costs, in the event of a violation of the agreement’s terms by a releasor.
1

E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490 (2006)

The district court held that the separation agreement constitutes facial retaliation under the antiretaliation statutory provisions to the extent that it conditions severance pay on a promise not to file a charge with the EEOC. We reverse.
I
Elizabeth Salsbury, a speech language pathologist employed by SunDance, was notified by letter from SunDance dated February 26, 1999 that the company was compelled to reduce its workforce and that Salsbury’s job would be terminated effective March 1, 1999. The letter informed Salsbury that she would receive 80 hours’ worth of severance pay after signing a separation agreement and general release. Neither Salsbury nor any other similarly situated employee was otherwise entitled to any amount of severance pay.
On March 5, 1999, SunDance mailed Salsbury a “Separation Agreement, General Release, and Covenant Not to Sue” (“Separation Agreement”). That Separation Agreement, which lies at the heart of this case, states in relevant part:
1. Severance Pay: Upon the execution of this Release by Elizabeth Salsbury and its delivery to Company, Company will, as full and complete consideration and severance: pay in one lump sum an amount equal to 80 hours of pay at the base rate.... Releasor promises and agrees not to make any statements or take any actions that would reflect negatively upon the Company or its representatives. Failure of the Releasor to comply with this agreement will result in the immediate repayment by Releasor of the total severance amount to Company as outlined in this paragraph. The parties acknowledge and agree that this severance pay exceeds any and all pay to which Releasor may have been entitled from the Company pursuant to law....
*493 3. General Release: In consideration of the payment made to Releasor by Company, Releasor ... does hereby voluntarily and knowingly release and discharge Company ... from any and all claims, actions, causes of actions, liabilities, demands, rights, damages, costs, attorney fees, expenses and controversies of any kind and description whether known or unknown, fixed or contingent, arising before the execution of this Release through the date of this Release. This Release and covenant not to sue also expressly, and without any limitation of the foregoing General Release, includes

but is not limited to any claims which Releasor may have or may assert under federal or state law prohibiting employment discrimination and claims growing out of any legal restrictions on the rights of Company to terminate its employees, whether statutory or arising under common law, including without limitation: Title VII of the Civil Rights Act of 1964 ... [and] the Americans with Disabilities Act.... Releasor on behalf of herself and other releasors expressly agrees that she will not institute, commence, prosecute or otherwise pursue any proceeding, action, complaint, claim, charge, or grievance against Company or any other released parties in any administrative, judicial or other forum whatsoever with respect to any acts or events occurring prior to the date hereof in the course of Releasor’s dealings with Releasee.
6. Miscellaneous: The terms of this General Release are contractual and not mere recitals. Releasor acknowledges that before deciding to sign this Release, Releasor had time to review and consider whether to enter into this Release and Releasor had full opportunity to consult with an attorney....
7. Return of Severance Pay: Releasor understands and agrees that any violation of the terms of this Agreement may cause irreparable harm and damage to the Company and will seriously interfere with the purpose of this Agreement, which is to accomplish a private, unpublished severance agreement and general release of any and all claims Releasor has or may have against the Company. In the event that the provisions of this Agreement are violated, Releasor agrees that the Company shall have the right to seek and obtain injunctive relief and damages in any court of competent jurisdiction from said violation, including the right to return of the entire amount of the consideration paid by the Company under this Agreement, plus any damages proven, including reasonable attorneys’ fees and costs. Releasor further expressly agrees that if any portion of this Agreement and the release incorporated herein is ruled to be unenforceable as the result of a challenge brought by the Releasor to the Agreement’s or release’s validity, then Releasor shall return to the Company the entire amount of consideration paid hereunder.
8. Confidentiality: Releasor agrees to hold strictly in confidence the terms, amount, and fact of this Release. Releasor will not disclose any such information, orally or in writing, to anyone else, including without limitation, any past, present or future employee of Company.
(Emphasis added.) The Separation Agreement also contains, inter alia, a statement that if any provision is
2

E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490 (2006)

deemed void or unenforceable, the remaining provisions shall be valid and enforceable, and a declaration that the Separation Agreement is governed by the laws of Ohio.
In an affidavit, Salsbury said that she thought she had been denied a promotion and was laid off by SunDance due to her sex, and wanted to file a charge of sex discrimination with the EEOC. Yet she *494 believed she could not sign the Separation Agreement because it purported to prohibit the filing of a charge with an agency and would have allowed SunDance to sue her for return of the severance payment and for attorneys’ fees and costs if she signed the Agreement and subsequently filed a charge with the EEOC. Salsbury called SunDance’s Human Resources department at its toll-free number and asked the representative if she could strike the provision that prohibited her from filing a charge with the EEOC and from suing SunDance, and then sign the Separation Agreement. The representative told her that she could not and that any alterations would be null and void. Salsbury replied that “it seemed like the Agreement required me to give up all my civil rights”; the representative told her that “most terminated employees simply signed the form Separation Agreement to get their severance payment.” Salsbury decided not to sign the Separation Agreement.
On April 20, 1999, Salsbury filed a charge with the EEOC. In that charge she alleged that she had been denied promotion and was laid off on the basis of her sex in violation of Title VII. She also stated that she had been “asked to sign a separation agreement, general release and covenant not to sue agreement in order to get a lump sum payment of 80 hours. I did not sign this release because I believe it violates the Laws administered by the EEOC.”
The EEOC issued a determination dated September 30, 1999, finding no reasonable cause to believe that Salsbury was discriminated against on the basis of sex with respect to the failure to promote or lay-off issues, and informing Salsbury of her right to sue on the sex discrimination allegations. The determination added, however, that the Separation Agreement failed to meet the criteria “as set forth ... in 29 U.S.C. § 626(f)(1)(A)-(G)” of the ADEA, as amended by the Older Workers’ Benefit Protection Act (“OWBPA”), for a knowing and voluntary waiver of a right or claim under the ADEA; it stated that the Separation Agreement violated 29 U.S.C. § 626(f)(1)(C), which requires that an individual “not waive rights or claims that may arise after the date the waiver is executed.” “Moreover,” the determination continued, the waiver provision in the Separation Agreement “may produce a chilling effect, thereby undermining the Commission’s ability to enforce the ADEA, Title VII, the EPA and the ADA.” The Separation Agreement’s waiver

provisions “may intimidate or have the effect of intimidating employees and create disincentives for them to cooperate with the EEOC in safeguarding the public interest.”

On February 12, 2000, Salsbury filed a second charge with the EEOC, alleging that SunDance retaliated against her in violation of Title VII by failing to rehire her for subsequent speech language positions, as she claimed it had said it would, because she had filed the earlier charge. To this second charge, the EEOC responded on July 20, 2000, that it had been unable to establish a violation of Title VII and notifying her of her right to sue.

In her affidavit, Salsbury stated that about a year after filing her first charge (which she filed on April 20, 1999), an EEOC investigator told her that “the Separation Agreement’s prohibition against charge filing was unlawful.” Salsbury then decided to sign the Separation Agreement in order to obtain the severance payment. However, by the time she signed the Separation Agreement in March 2000, SunDance had gone bankrupt. She states that she has not received the severance pay. In to, slightly over one hundred Ohio employees of SunDance were laid off in the reduction in force; all of those received *495 the offer of severance pay in exchange for signing the Separation Agreement; ten, including Salsbury, did not sign the Separation Agreement at that time and did not receive the severance pay.

On August 1, 2001, the EEOC filed suit against SunDance in the U.S. District Court for the Northern District of Ohio, alleging violations of the antiretaliation provisions of ADEA, ADA, EPA, and Title VII. The complaint stated that the EEOC had brought suit “to correct actions undertaken by Defendant to retaliate against individuals affected by the Defendant’s Separation Agreement, General Release and Covenant Not to Sue, because of their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding.”1

1

In its complaint the EEOC did not raise any issue

involving the OWBPA.

The relief sought by the EEOC included a permanent injunction against SunDance to prevent it from instituting or maintaining the Separation Agreement or any similar plan that “retaliates because of an employee’s right to file a charge with the EEOC or participate in an EEOC investigation or proceeding”; an order requiring SunDance to reform the Separation Agreement expressly to permit employees to file charges with the EEOC and participate in EEOC investigations or proceedings without
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E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490 (2006)

losing severance pay and without violating the agreement; and a corrective notice with a reformed Separation Agreement sent to Salsbury and similarly situated former employees.
On cross-motions for summary judgment, a magistrate judge recommended granting summary judgment in favor of SunDance. The district court declined to adopt the magistrate judge’s report and recommendation, and instead granted summary judgment to the EEOC. EEOC v. SunDance Rehabilitation Corporation, 328 F.Supp.2d 826, 828 (N.D.Ohio 2004).
The district court concluded that the Separation Agreement’s conditioning severance pay on a ban on filing charges with the EEOC constituted facial retaliation in violation of ADA, ADEA, EPA, and Title VII. Id. at 838. Applying Ohio law to the question of severability, the district court held that with the exception of the charge-filing ban, the Separation Agreement remained valid and enforceable. Id. at 839.
In light of its holding that the Separation Agreement “constitutes facial retaliation to the extent that it conditions severance benefits on an employees [sic] promise not to file a charge with the EEOC,” the district court found no need to determine whether the EEOC could show a prima facie case of retaliation in the absence of direct evidence under the McDonnell Douglas burden-shifting framework-which SunDance argued the EEOC could not do. The district court ordered that SunDance (and its officers, successors, etc.):
[Are] permanently enjoined from engaging in the institution, maintenance and/or management of the portion of the April 1999 SunDance Separation Agreement, or any other similar plan, requiring all employees and former employees to waive their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding; and
[Are] permanently enjoined from retaliating because of an employee or former employee’s right to file a charge with the EEOC or participate in an EEOC investigation or proceeding; and
[F]orthwith, shall institute and carry out policies, practices and programs which provide equal employment opportunities for employees who wish to file charges *496 with the EEOC or participate in an EEOC investigation or proceeding; and
[S]hall make whole ... Salsbury and other similarly situated employees; [and] shall reform the April 1999 SunDance Separation Agreement to expressly permit

all employees and former employees to file charges with the EEOC and participate in EEOC investigations or proceedings without losing their severance pay and without violating the Separation Agreement and forthwith, shall pay to ... Salsbury and other similarly situated employees any and all withheld severance pay with prejudgment interest; and
[S]hall deliver a corrective notice with a reformed SunDance Separation Agreement to ... Salsbury and similarly situated employees. Moreover, all limitations periods for filing a charge or claim are tolled and will run anew from the date of actual delivery of the reformed notice; and
[S]hall pay to the EEOC its costs of bringing this action.
On appeal, SunDance argues that the antiretalitation provisions of ADA, ADEA, EPA, and Title VII do not provide for or recognize “facially retaliatory” conduct by employers; that the EEOC had not proved a prima facie case of retaliation under any of the applicable statutes; and that the district court abused its discretion in its award of injunctive relief.
II
This court reviews de novo a district court’s grant of summary judgment, applying the same legal standard as the court below. United States v. Dairy Farmers of America, Inc., 426 F.3d 850, 856 (6th Cir.2005). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
III
A
The EEOC argues that the Separation Agreement constitutes a per se violation of the antiretaliation provisions of Title VII, EPA, ADA, and ADEA. The relevant statutory provisions are as follows:
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E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490 (2006)

Title VII, 42 U.S.C. § 2000e-3(a):
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
EPA, 29 U.S.C. § 215(a)(3):
(a) ... it shall be unlawful for any person-
....
(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding....
ADA, 42 U.S.C. § 12203(a) & (b):
(a)
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such *497 individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
(b)
It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.
ADEA, 29 U.S.C. § 623(d):
It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment ... because such individual ... has opposed

any practice made unlawful by this section, or because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.
B
The EEOC asserts that SunDance’s offer of the Separation Agreement in exchange for severance payments to Salsbury and other terminated employees amounts to a violation of the antiretaliation provisions on the ground that the Separation Agreement is a “preemptive strike against future protected activity.” The Separation Agreement conditions severance pay on promises from the terminated employee not to file charges with the EEOC and, according to the EEOC’s interpretation, not to participate in EEOC proceedings, and then allows SunDance to sue for the return of the payments if the former employee engages in such protected activity. The EEOC argues that the Separation Agreement itself constitutes a per se violation of the antiretaliation provisions.
In support of that argument, the EEOC relies heavily on EEOC v. Bd. of Governors of State Colls. and Univs., 957 F.2d 424 (7th Cir.1992), which it points to as the only circuit court opinion to address squarely the legality of what it calls a “preemptive retaliatory policy.” In that case, a collective bargaining agreement (“CBA”) gave employees a contractual right to an in-house grievance procedure. Id. at 429. However, a provision of the CBA allowed the employer to terminate an internal grievance proceeding if an employee sought resolution of the matter in any other forum, or to refuse to entertain the grievance if the employee pursued the matter in another forum before initiating an internal grievance. An employee filed a grievance with the union. While that grievance was being processed, the employee filed a charge with the EEOC, alleging age discrimination. The employer, implementing the policy embodied in the collective bargaining agreement, terminated the grievance proceeding as a result of the employee’s filing a charge with the EEOC. Id. at 426. The EEOC brought suit against the employer, alleging violation of the antiretaliation provision of the ADEA, 29 U.S.C. § 623(d). Ibid.
In its Board of Governors opinion, the Seventh Circuit noted that the CBA provision at issue authorized the employer to “take an adverse action (termination of the in-house grievance proceeding) for the sole reason that the employee has engaged in protected activity (filing an ADEA claim).” 957 F.2d at 430. It held that the provision
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E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490 (2006)

“violates Section 4(d) [29 U.S.C. § 623(d) ] with respect to ADEA claimants ... because it is discriminatory on its face.” Id. at 431. In so doing, the Seventh Circuit rejected the employer’s argument that it was free to terminate the grievance process *498 since it had no obligation to provide such a process in the first place. In dismissing that argument the Seventh Circuit looked to the Supreme Court case Hishon v. King & Spalding, 467 U.S. 69, 75, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), a Title VII sex discrimination case. In Hishon, the Court stated that
A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all. Those benefits that comprise the “incidents of employment,” ... or that form “an aspect of the relationship between the employer and employees,” ... may not be afforded in a manner contrary to Title VII.
Id. at 75-76, 104 S.Ct. 2229.
We do not find the Seventh Circuit’s Board of Governors opinion to be compelling precedent with respect to this case. In Board of Governors, the employer actually took an adverse action against the employee because the employee had pursued the statutorily protected activity of filing a charge with the EEOC. That action clearly constituted retaliation in violation of 29 U.S.C. § 623(d). While the Seventh Circuit addressed what it determined to be the facially retaliatory CBA provision that purported to authorize that action, that policy was before the Seventh Circuit because the employer had implemented it and had engaged in a retaliatory act. Here, SunDance has offered a contract, and, on the record before us, has engaged in no further action.
Courts have held that prohibitions on filing charges with the EEOC are void and unenforceable as against public policy. The seminal case is EEOC v. Cosmair, Inc., L’Oreal Hair Care Div., 821 F.2d 1085 (5th Cir.1987). In Cosmair, the employer terminated Terry, an employee, after which it offered severance benefits in exchange for a release of claims. Terry signed the release, and subsequently filed a charge with the EEOC alleging age discrimination. Cosmair discontinued severance benefits to Terry as a result of his having filed the charge. Id. at 1087. The Fifth Circuit found that the employer had retaliated against Terry under ADEA by discontinuing payments to him, and that the release he had signed did not prohibit the filing of charges with the EEOC. Id. at 1089.
In response to Cosmair’s argument that the release did in fact bar Terry from filing a charge with the EEOC, the

Fifth Circuit held, in the alternative, that “a waiver of the right to file a charge is void as against public policy.” The Fifth Circuit stated that “[t]he purpose of a charge ... is not to seek recovery from the employer but rather to inform the EEOC of possible discrimination.” Id. at 1090. The court continued:

Allowing the filing of charges to be obstructed by enforcing a waiver of the right to file a charge could impede EEOC enforcement of the civil rights laws. The EEOC depends on the filing of charges to notify it of possible discrimination. EEOC v. Shell Oil Co., 466 U.S. [54, 69, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984) ].... A charge not only informs the EEOC of discrimination against the employee who files the charge or on whose behalf it is filed, but also may identify other unlawful company actions.

Ibid. The Fifth Circuit added that while an employee could not waive her right to file a charge with the EEOC, she could waive the right to recover in her own lawsuit, and that the waiver of a right to file a cause of action was not invalid because it *499 was conjoined with a void waiver of the right to file a charge.2 Id. at 1091.

2

The validity of waivers of ADEA rights is governed by

the OWBPA, 29 U.S.C. § 626, enacted after the Fifth

Circuit’s decision in Cosmair. See generally Oubre v.

Entergy Operations, Inc., 522 U.S. 422, 426-27, 118

S.Ct. 838, 139 L.Ed.2d 849 (1998); Wastak v. Lehigh

Valley Health Network, 342 F.3d 281, 288-95 (3d

Cir.2003).

This Circuit has noted approvingly the Fifth Circuit’s rule that a waiver of the right to file a charge with the EEOC is void as against public policy. EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir.1999) ( “courts have observed that an individual may not contract away her right to file a charge with the EEOC, as such contracts are void as against public policy.”) (citing Cosmair, 821 F.2d 1085, 1090). The First Circuit declined to decide whether a charge-filing ban was void as against public policy in EEOC v. Astra, 94 F.3d 738, 746 (1st Cir.1996), a Title VII case, but in a subsequent ADEA/OWBPA case, American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 118 n. 7 (1 st Cir.1998), that circuit cited Cosmair for the proposition that an employee could not waive the right to file a charge with the EEOC.
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E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490 (2006)

There can be little doubt that the filing of charges and participation by employees in EEOC proceedings are instrumental to the EEOC’s fulfilling its investigatory and enforcement missions. Under Title VII and ADA, the EEOC can only investigate discrimination upon a charge being filed. See 42 U.S.C. § 2000e-5(b); 42 U.S.C. § 12117(a); EEOC v. Shell Oil Co., 466 U.S. 54, 64, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984). The EEOC is not so restricted under ADEA and EPA. See 29 U.S.C. § 626(a); 29 U.S.C. § 211.
A charge filed with the EEOC is not a complaint seeking relief. Rather it informs the EEOC of possible employment discrimination. See Shell Oil, 466 U.S. at 68, 104 S.Ct. 1621 (a Title VII case). Under Title VII, for example, the filing of a charge allows the EEOC to investigate the alleged discrimination, and thereafter to bring a civil action against non-government employers; only if the EEOC does not bring its own suit, and the aggrieved party receives a right-to-sue letter, may the aggrieved party bring a private suit. See 42 U.S.C. § 2000e-5; EEOC v. Waffle House, Inc., 534 U.S. 279, 291-92, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002); Frank’s Nursery & Crafts, 177 F.3d at 455-59.
This court has upheld employees’ waivers of claims under ADEA, EPA, and Title VII where the waiver was executed voluntarily and intelligently. See, e.g., Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir.1995); Shaheen v. B.F.Goodrich Co., 873 F.2d 105, 107 (6th Cir.1989) (under pre-OWBPA law). The EEOC acknowledged in oral argument, as it does in its Enforcement Guidance on Non-Waivable Employee Rights under EEOC Enforced Statutes, EEOC Notice 915.002, at III.C. (Apr. 10, 1997), that employees can validly waive claims under the employment discrimination laws. Whether a waiver of the right to file a charge with the EEOC is enforceable, however, is a different question. Given the importance of charge-filing to the EEOC’s investigatory and enforcement responsibilities, particularly under Title VII and ADA, as well as the rule set out in the Fifth Circuit’s Cosmair, it may be that the charge-filing ban in the Separation Agreement at issue here is unenforceable. If so, SunDance would be unable to recover if it attempted to sue under the Separation Agreement after paying severance to a former employee who had signed the Agreement and then filed a charge with the EEOC.
*500 But we need not rule on the enforceability of the Separation Agreement or any of its specific provisions, because that question is not before this court. The EEOC argues that offering the Separation Agreement itself

amounts to retaliation under ADA, ADEA, EPA, and Title VII. To support its argument that the Separation Agreement constitutes a per se violation of the antiretaliation provisions of those statutes, the EEOC points primarily to the Seventh Circuit’s opinion in Board of Governors, which we have already explained to be factually distinguishable and inapplicable to this case. The EEOC also points to its Enforcement Guidance on Non-Waivable Employee Rights, EEOC Notice 915.002. In addition to stating that promises not to file a charge or participate in EEOC proceedings are unenforceable as against public policy, that Enforcement Guidance adds that “[a]greements extracting such promises from employees may also amount to separate and discrete violations of the anti-retaliation provisions of the civil rights statutes.” Id. at II. The EEOC elaborates by explaining that such agreements chill employees’ willingness and ability to provide information to the EEOC. The Enforcement Guidance cites, inter alia, Board of Governors and Cosmair. Id. at III.B.
[1] As the EEOC acknowledges, its Enforcement Guidance is entitled to respect only to the extent of its persuasive power. The Enforcement Guidance does not receive Chevron-type deference pursuant to Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See White v. Burlington Northern & Santa Fe Ry. Co., 364 F.3d 789, 812 (6th Cir.2004) (en banc) (EEOC guidelines in a Compliance Manual “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), which in turn quotes Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). See also Nat. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 n. 6, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (“[W]e have held that the EEOC’s interpretive guidelines do not receive Chevron deference.”) (citations omitted); Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (stating that interpretations contained in enforcement guidances lack the force of law and do not warrant Chevron-style deference; they “are ‘entitled to respect’ under our decision in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent that those interpretations have the ‘power to persuade,’ ibid.” ).
The Supreme Court, in Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), a case in which the Court held that the protections of Title VII’s antiretaliation provision extended to former employees, noted that one of the primary purposes of antiretaliation
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E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490 (2006)

provisions is “[m]aintaining unfettered access to statutory remedial mechanisms.” Id. at 346, 117 S.Ct. 843. Similarly, this court, in EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir.1993), stated that a majority of courts have been willing to construe Title VII and the antiretaliatory provisions of the EPA and ADEA broadly, “in order not to frustrate the purpose of these Acts, which is to prevent fear of economic retaliation from inducing employees ‘quietly to accept [unlawful] conditions.’ ” Id. at 544.
[2] Keeping those statutory purposes in mind, we are not persuaded by the EEOC’s argument that SunDance’s mere offer of the Separation Agreement to all employees terminated in the reduction in *501 force, without more, amounts to facial retaliation under the four statutes at issue here. The language of the Separation Agreement probably does not prevent mere participation in EEOC proceedings, and is unenforceable if it does. And, as we have noted, the charge-filing ban may be unenforceable; but its inclusion in the Separation Agreement does not make SunDance’s offering that Agreement in and of itself retaliatory.
In sum, the employees of SunDance have not been deprived of anything by the offering of the Separation Agreement. Those who choose to accept it are better off, by receiving a benefit that was not “part and parcel of the employment relationship,” as was the case in Hishon where the failure to provide that benefit led to the successful discrimination charge. Those employees who reject the agreement obviously do not give up any rights. And, as we have noted above, employees may, if they wish, accept the agreement and argue later that parts of it may be unenforceable under existing or expanded precedent. Under these circumstances, simply offering the Agreement is not facially discriminatory. Accordingly we reject the EEOC’s argument that SunDance’s Separation Agreement amounts to a facial violation of the antiretaliation provisions of the equal employment opportunity statutes.
C
The EEOC is also unable to establish a prima facie case of retaliation under the McDonnell Douglas burden-shifting framework, which it acknowledges is the “more traditional” retaliation analysis. That analysis requires that the plaintiff, in the absence of direct evidence of retaliation, establish a prima facie case of retaliation by showing that: 1) the employee engaged in protected activity; 2) the employer knew of the protected activity; 3) the employer thereafter took an adverse

employment action; 4) there is a causal connection between the protected activity and the adverse action. See Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 562-65 (6th Cir.2004) (Title VII); Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 381 (6th Cir.2002) (ADEA); Sullivan v. River Valley School Dist., 197 F.3d 804, 814-15 (6th Cir.1999) (ADA).
[3] With respect to the first part, Salsbury engaged in no protected activity prior to receiving the Separation Agreement from SunDance. The EEOC argues that Salsbury’s protected conduct was opposition, as she asked SunDance’s human resources representative if she could strike the charge-filing ban and waiver of claims because she thought they required her to give up her civil rights. The EEOC then asserts that, with knowledge and because of her opposition, SunDance took the adverse action of refusing to pay Salsbury severance benefits.
Even if Salsbury’s statements to the human resources representative did amount to protected activity (a dubious proposition, as the “opposition” would only have been the personal declining of an offered contract), and SunDance knew of that protected activity, Salsbury suffered no adverse employment action when SunDance did not pay her the severance benefits, to which she was not otherwise entitled, when she refused to sign the Separation Agreement. This court has defined an adverse employment action as a “materially adverse change in the terms and conditions of [plaintiff’s] employment.” Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir.2004) (quoting Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir.1999)). “Examples of adverse employment actions include firing, failure to promote, reassignment with significantly lower responsibilities, a material *502 loss of benefits, suspensions, and other indices unique to a particular situation.” Smith v. City of Salem, 378 F.3d at 575-76 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).
Several courts have found that declining to pay severance or settlement amounts (not otherwise due) when an employee refused to sign a waiver or release does not amount to an adverse employment action in the retaliation context. Davis v. Precoat Metals, 328 F.Supp.2d 847, 849, 852-53 (N.D.Ill.2004); Barriera v. Bankers Trust, No. 98 Civ. 3641, 2003 WL 22387099, at *8 (S.D.N.Y. Oct.20, 2003) (unpublished); Hansen v. Vanderbilt Univ., 961 F.Supp. 1149, 1153 (M.D.Tenn.1997); Jackson v. Lyons Falls Pulp & Paper, Inc., 865 F.Supp. 87, 94-95 (N.D.N.Y.1994). See also Miller v. Eby Realty Group, 241 F.Supp.2d 1247, 1255-57 (D.Kan.2003) (employer’s withdrawal of offer of severance payments beyond those to which employee already due, after employee informed
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E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490 (2006)

employee he had hired an attorney to investigate age discrimination, was not an adverse action). Cf. Flannery v. Recording Industry Ass’n of America, 354 F.3d 632, 641-43 (7th Cir.2004) (holding that former employer’s denial of consulting work to former employee after former employee filed charge with EEOC, where that work had been promised him in severance package agreed to by parties, sufficient to state retaliation claim under ADA and ADEA); Bernstein v. The St. Paul Cos., Inc., 134 F.Supp.2d 730, 733-34, 741 (D.Md.2001) (holding that a jury could find retaliation where the employee had been unconditionally promised a certain amount of severance pay but was then told that he could only receive the pay if he withdrew his charge filed with the EEOC and released the employer from other claims, which he refused to do). SunDance’s refusal to pay Salsbury severance pay that she was otherwise not due or promised when she did not sign the Separation Agreement left her in the same position that she had been in before the offer of the free-standing Separation Agreement. This was not a benefit given or owed to all employees, that was then withdrawn because of some protected conduct. As such, Salsbury was not adversely affected, and on these facts the denial of severance pay was not an adverse action for the purposes of the retaliation analysis.
The cases the EEOC cites in support of its argument that the denial of severance benefits in this case amounted to an adverse action are inapposite. In White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 802 (6th Cir.2004) (en banc), aff’d, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), this court stated that taking away an employee’s paycheck for over a month, if motivated by discriminatory intent, constituted an adverse employment action for purposes of the Title VII retaliation analysis. Similarly, in Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223-24 (2d Cir.2001), the Second Circuit held that suspension for a week without pay, even where the employee was later reimbursed, was an adverse action, because the employee had lost the use of the wages for the period before reimbursement. In those instances the employer’s action adversely affected the employee; that was not the case here.
[4] Finally, the EEOC has presented no evidence that SunDance declined to pay severance pay to Salsbury because of her opposition as expressed to the human resources representative, rather than simply because she failed to sign the agreement; SunDance offered the Separation Agreement to other employees terminated in the reduction-in-force, and evidently did not pay severance to any of those who refused *503 to sign the

Agreement, including Salsbury. Accordingly, the EEOC has not shown causation. See Cronin v. ITT Corp., 737 F.Supp. 224 (S.D.N.Y.1990), aff’d, 916 F.2d 709 (2d Cir.1990).
Because the EEOC has not shown a prima facie case of retaliation, we need not proceed with the rest of the burden-shifting analysis.
IV
Our decision in this case is a narrow one. SunDance’s mere offer of the Separation Agreement does not amount to retaliation under ADA, ADEA, EPA, or Title VII, either as a facial violation of those statutes’ antiretaliation provisions or under the conventional burden-shifting analysis. SunDance has not tried to enforce the Separation Agreement, and the question of the enforceability of the Agreement or any of its provisions is not before us.
The decision of the district court is reversed. We therefore need not consider SunDance’s argument regarding the scope of the injunction issued by the district court.
COHN, District Judge, dissenting.
I dissent. The distinction the majority opinion makes between facial retaliation and what is surely intimidation cuts too fine a line. The majority in effect says that an employee who believes he or she has an EEOC enforceable claim or at a minimum is willing to testify in an EEOC enforcement action should sign the agreement, take the money and then go forward with the EEOC. If SunDance sues for a return of the severance pay, then the defense of retaliation should be raised and may carry the day.
Any act by an employer which interferes with or chills a protected right is, I believe, contrary to public policy and in violation of the anti-retaliation provisions of the several statutes involved. The reasons for this conclusion are adequately supported by the district court’s decision and the EEOC Notice No. 915.002 issued April 10, 1997, “Enforcement Guidance on Non-Waiveable Employee Rights Under Equal Employment Opportunity Enforcement Statutes,” and no further elaboration is necessary.

9

 
 Office of General Counsel FY 2005 Annual Report

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EEOC v. SunDance Rehab. Corp., No. 04-4178 (6th Cir.) (Final Brief as Appellee filed June 30, 2005)
Background: EEOC filed this case alleging that defendant violated the antiretaliation provisions of the EPA, Title VII, the ADEA, and the ADA by requiring employees fired in a reduction in force to waive their rights to file an EEOC charge and to participate in EEOC proceedings as a condition of receiving severance pay. The district court granted EEOC's motion for summary judgment on liability and defendant appealed.
Argued: (1) The district court correctly ruled that defendant violated the antiretaliation provisions of the EPA, Title VII, the ADEA, and the ADA by conditioning an employment benefit on relinquishing protected statutory rights. The purpose of the antiretaliation rules is to preserve unfettered access to statutory remedial mechanisms. Defendant's policy uses economic inducements and the threat of retribution to deter employees from filing EEOC charges or participating in EEOC investigations. (2) That defendant never had to offer severance pay in the first place is irrelevant, since the Supreme Court has held that once an employer chooses to bestow an employment benefit, it must do so in a nondiscriminatory manner. (3) The law does not necessarily require an employee to first have engaged in protected activity for an employer to violate the antiretaliation rules. The Supreme Court and the Sixth Circuit have recognized that employer policies can themselves be "facially discriminatory." Also, the Seventh Circuit has ruled that an employer's practice of conditioning grievance proceedings on an employee's willingness to forego filing an EEOC charge is per se retaliatory. This Seventh Circuit case is on all fours with the factual scenario presented here. (4) The "interference" provision in the ADA and ADEA texts on waivers explicitly proscribes employer conduct tending to threaten or interfere with an employee's prospective exercise of protected EEO rights. (5) The problematic portions of defendant's severance agreement violate public policy.

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 Northern District of Ohio

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Cat03, McHargh, Standard, Termed
U.S. District Court Northern District of Ohio (Cleveland) CIVIL DOCKET FOR CASE #: 1:01-cv-01867-LW

Equal Employment Opportunity Commission v. Sundance Rehabilitation Corporation Assigned to: Judge Lesley Wells Case in other court: 6th Circuit, 04-04178 Cause: 29:633 Job Discrimination (Age)

Date Filed: 08/01/2001 Date Terminated: 07/26/2004 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C. Larry Watson U.S. Equal Employment Opportunity Commission - Cleveland 3001 AJC Federal Bldg. 1240 East Ninth Street Cleveland, OH 44199 216-522-7455 Fax: 216-522-7430 Email: larry.watson@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey A. Stern U.S. Equal Employment Opportunity Commission - Cleveland 3001 AJC Federal Bldg. 1240 East Ninth Street Cleveland, OH 44199 216-522-7458 Fax: 216-522-7430 Email: Jeffrey.Stern@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence Mays U.S. Equal Employment Opportunity Commission - Cleveland 3001 AJC Federal Bldg. 1240 East Ninth Street Cleveland, OH 44199 216-522-4796 Fax: 216-522-7430 Email: lawrence.mays@eeoc.gov

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V. Defendant Sundance Rehabilitation Corporation

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dean E. Westman Kastner, Westman & Wilkins 3480 West Market Street Ste. 300 Akron, OH 44333 330-867-9998 Fax: 330-867-3786 Email: dwestman@kwwlaborlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/01/2001
08/01/2001 08/01/2001 08/01/2001 08/29/2001 08/30/2001
10/01/2001 10/01/2001 12/18/2001
02/21/2002

# Docket Text
1 Complaint (0 summons and Magistrate Consent Forms issued) against Sundance Rehabilitation Corporation. Filed by Equal Employment Opportunity Commission. Filing fee waived. (Attachments: # 1 Civil Cover Sheet)(B, BA) (Entered: 08/02/2001)
2 Random Assignment of Magistrate Judge Streepy (B, BA) (Entered: 08/02/2001)
3 Case Information Statement (Standard Track) filed by Equal Employment Opportunity Commission. (B, BA) (Entered: 08/02/2001)
4 Notice of Placement of case in the CM/ECF Docketing System (B, BA) (Entered: 08/02/2001)
5 Praecipe for other; 1st attempt of summons unsuccessful (issued 8/29/01) filed by Equal Employment Opportunity Commission. (C, K A) (Entered: 08/29/2001)
6 Waiver of Summons Returned upon Sundance Rehabilitation Corporation on 8/1/01 filed by Equal Employment Opportunity Commission. (C, K A) (Entered: 08/31/2001)
7 Answer to Complaint (Related Doc # 1 ) filed by Sundance Rehabilitation Corporation. (C, K A) (Entered: 10/02/2001)
8 Corporate Disclosure Statement filed by Sundance Rehabilitation Corporation. (C, K A) (Entered: 10/02/2001)
9 Case Management Conference Scheduling Order. Case management conference to be held on 3/14/2002 at 09:30 AM at Chambers 338. (Judge Lesley Wells)(C, L) (Entered: 12/18/2001)
10 Motion for order Excusing Defendant from Case Management Conference filed by all defendants. (Westman, Dean) (Entered: 02/21/2002)

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Northern District of Ohio
02/22/2002 02/28/2002 03/07/2002 03/07/2002 03/14/2002
03/14/2002 03/15/2002
03/15/2002 05/28/2002 07/17/2002
07/19/2002
07/31/2002 08/05/2002

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Marginal Order (Non Document) Granting Motion to excuse. (Judge Lesley Wells)(Related Doc # 10 )(C, L) (Entered: 02/22/2002)
11 Report of Parties Planning Meeting filed by Equal Employment Opportunity Commission. (Stern, Jeffrey) (Entered: 02/28/2002)
12 Notice of Service of initial disclosures filed by Sundance Rehabilitation Corporation. (Westman, Dean) Modified text 3/8/2002 (C, K A). (Entered: 03/07/2002)
13 Notice of Service of EEOC's Initial Disclosure filed by Equal Employment Opportunity Commission. (Stern, Jeffrey) (Entered: 03/07/2002)
14 Case Management Conference Plan/Order. Track Designated: Standard. Discovery due by 9/16/2002, Parties to be Joined and Pleading Amendments due by 6/13/2002, Dispositive Motions due by 11/15/2002, with status hearing to be held on 7/16/2002 at 03:00 PM at Chambers 338 with Final Pre-Trial Conference to be held on 6/2/2003, Jury Trial set for 7/7/2003 at 9:00 AM. (Judge Lesley Wells)(C, L) (Entered: 03/14/2002)
15 Order Designating Case for Electronic Filing. (Judge Lesley Wells)(C, L) (Entered: 03/14/2002)
16 Civil Bench Trial Order. Final Pre-Trial Conference set for 6/2/2003 at 04:00 PM at Chambers 338, Bench Trial set for 7/7/2003 at 9:00 AM. (Judge Lesley Wells)(C, L) Additional attachment(s) added on 3/15/2002 (C, L). (Entered: 03/15/2002)
17 Order Establishing Trial Docket. (Judge Lesley Wells)(C, L) (Entered: 03/15/2002)
18 Notice of Service of discovery on 5/28/02 filed by Sundance Rehabilitation Corporation. (Westman, Dean) Modified text 5/29/2002 (C, K A). (Entered: 05/28/2002)
19 Minutes of proceedings before Judge Wells held on 7/16/02. Parties are engaging in paper discovery; defendant anticipates filing a motion for summary judgment on lega issues within 30 days; plaintiff's counsel anticipates needing a medical leave. A telephonic status hearing to be held on 7/18/2002 at 03:00 PM to discuss any scheduling changes, and the Court will initiate the call. (Janet Alter) (H, D) (Entered: 07/18/2002)
20 Minutes of proceedings of telephone status conference before Judge Wells held on 7/18/02. Parties are to file a joint motion to stay proceedings for approximately 120 days to accommodate plaintiff's counsel medical leave. (Janet Alter) (H, D) (Entered: 07/19/2002)
21 Unopposed Motion to stay filed by Equal Employment Opportunity Commission. (Attachments: # 1 Declaration in Support)(Related document(s) 20 ) (Stern, Jeffrey) (Entered: 07/31/2002)
22 Marginal Entry Order signed on 8/5/2002 Granting Motion by plaintiff to stay proceedings (Related Doc # 21 ). Stay granted until 11/20/02; discovery cutoff is 2/14/03; dispositive motion deadline is 3/14/03, no further extensions will be

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08/08/2002 11/22/2002 12/20/2002
12/20/2002 12/27/2002 12/27/2002 01/09/2003 01/10/2003 01/10/2003
01/13/2003 01/17/2003 01/31/2003 03/14/2003 04/14/2003

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granted. (C, K A) (Entered: 08/06/2002)
23 Notice of Service of discovery filed by all defendants. (Westman, Dean) Modified text 8/9/2002 (C, K A). (Entered: 08/08/2002)
24 Motion for summary judgment filed by Sundance Rehabilitation Corporation. (Attachments: # 1 # 2)(Westman, Dean) (Entered: 11/22/2002)
25 Opposition (Related Motion(s) 24 ) to Defendant's Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Declaration of Elizabeth Salsbury# 2 Declaration of Susan L. Smith)(Stern, Jeffrey) (Entered: 12/20/2002)
26 Appendix to Memorandum in Opposition to Defendant's Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Related document(s) 25 ) (Stern, Jeffrey) (Entered: 12/20/2002)
27 Motion for extension of time until 1/09/03 to file reply brief in support of motion for summary judgment filed by Sundance Rehabilitation Corporation. (Westman, Dean) Modified text on 12/30/2002 (C, B). (Entered: 12/27/2002)
Marginal Order (Non Document) Granting Motion for extension of time until 9 January 2003. (Judge Lesley Wells) (Related Doc # 27 ) (C, L) (Entered: 12/27/2002)
28 Reply brief in support of motion for summary judgment (Related Motion(s) 24 ) filed by Sundance Rehabilitation Corporation. (Westman, Dean) Modified text 1/10/2003 (C, K A). (Entered: 01/09/2003)
29 Notice of Service filed by Sundance Rehabilitation Corporation. (Westman, Dean) (Entered: 01/10/2003)
30 Motion for leave to file Surreply Memorandum Instanter in Opposition to Defendant's Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Related motion 24 ) (Stern, Jeffrey) Modified text 1/13/2003 (C, K A). (Entered: 01/10/2003)
31 Notice of Service of discovery on 1/13/03 filed by Sundance Rehabilitation Corporation. (Westman, Dean) Modified text 1/14/2003 (C, K A). (Entered: 01/13/2003)
32 Notice of Service filed by Sundance Rehabilitation Corporation. (Westman, Dean) (Entered: 01/17/2003)
Marginal Order (Non Document) Granting Motion for leave to file instanter. (Judge Lesley Wells) (Related Doc # 30 )(C, L) (Entered: 01/31/2003)
33 Cross Motion for summary judgment filed by Equal Employment Opportunity Commission. (Related document(s) 25 ) (Stern, Jeffrey) (Entered: 03/14/2003)
34 Opposition (Related Motion(s) 33 ) to Plaintiff's Cross Motion for Summary Judgment filed by Sundance Rehabilitation Corporation. (Westman, Dean) Modified on 4/14/2003: Incomplete filing - Document to be Refiled (M, J A). Modified text 4/15/2003 (C, K A). (Entered: 04/14/2003)

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Northern District of Ohio
04/14/2003 04/29/2003 05/05/2003 05/07/2003 07/31/2003 07/31/2003 08/18/2003 08/28/2003 07/26/2004
07/26/2004
09/23/2004 09/23/2004
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35 Opposition (Related Motion(s) 33 ) to Plaintiff's Cross Motion for Summary Judgment filed by Sundance Rehabilitation Corporation. (Westman, Dean) Modified text 4/15/2003 (C, K A). (Entered: 04/14/2003)
36 Order continuing final pretrial and trial dates. Once the Court has considered and ruled on the motions for summary judgment, new deadlines and dates will be established. Judge Lesley Wells. (Related document(s) 24 , 16 , 25 , 33 , 35 ) (H, D) (Entered: 04/30/2003)
37 Reply (Related Motion(s) 33 ) Memorandum in Support of Cross Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Stern, Jeffrey) (Entered: 05/05/2003)
38 Order referring case to Magistrate Judge Jack B. Streepy for a report and recommendation. (Judge Lesley Wells)(C, L) (Entered: 05/07/2003)
39 Report and Recommendation that the motion of SunDance for summary judgment (doc. 24) be granted, and the motion of the EEOC for summary judgment (doc. 33) be denied. Signed by Judge Jack B. Streepy on 7/31/2003. (S, DJ) (Entered: 07/31/2003)
40 Order terminating case referral and returning case to Judge Wells.. Signed by Judge Jack B. Streepy on 7/31/2003. (S, DJ) (Entered: 07/31/2003)
41 Objection to Report and Recommendation filed by Equal Employment Opportunity Commission. (Attachments: # 1 Declaration of Beverly Anderson) (Related document(s) 39 ) (Stern, Jeffrey) Modified text 8/29/2003 (C, K A). (Entered: 08/18/2003)
42 Opposition to Plaintiff's Objections to Magistrate Judge's Report and Recommendation filed by all defendants. (Related document 39 ) (Westman, Dean) Modified text 8/29/2003 (C, K A). (Entered: 08/28/2003)
43 Memorandum of Opinion and Order denying defendant's motion for summary judgment (Related Doc # 24 ), granting plaintiff's motion for summary judgment (Related Doc # 33 ). SunDance shall pay to the EEOC its costs of bringing this action. Signed by Judge Lesley Wells on 7/26/04 (E, P). Modified text on 9/24/2004 (H, S P). (Entered: 07/26/2004)
44 Judgment Entry Order that the court contemporaneously entered it memorandum of opinion and order (Related Doc # 44 ) granting plaintiff's motion for summary judgment and denying defendants' motion for summary judgment and Forthwith, shall pay to the EEOC its costs of bringing this action. Signed by Judge Lesley Wells on 7/26/04. (E, P) Modified text to add link on 7/26/2004 (E, P). (Entered: 07/26/2004)
45 Motion to stay of Proceedings to Enforce Judgment and for Suspension of Injunctive Relief filed by Sundance Rehabilitation Corporation. (Westman, Dean) (Entered: 09/23/2004)
46 NOTICE OF APPEAL to the 6th Circuit Court of Appeals from the 43 Memorandum of Opinion and Order and 44 Judgment Entry of 7/26/04, filed by Sundance Rehabilitation Corporation (Westman, Dean). Filing Fee Paid 10/1/04, see document 47 . Modified text on 9/24/2004 (H, S P). Modified for fee on
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Northern District of Ohio
10/01/2004 10/01/2004 10/12/2004 10/14/2004 11/02/2004 10/26/2006
03/23/2007 06/14/2007

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10/1/2004 (H, S P). (Entered: 09/23/2004)
47 USCA Appeal Fees of $255.00 received, receipt number #664515 re 46 Notice of Appeal (H, S P) (Entered: 10/01/2004)
48 Acknowledgment from the USCA for Sixth Circuit of receipt of 46 Notice of Appeal (USCA# 04-4178). Date filed in USCA 9/29/04. (H, S P) (Entered: 10/01/2004)
49 Opposition to Motion to stay of Proceedings to Enforce Judgment and for Suspension of Injunctive Relief filed by Equal Employment Opportunity Commission. Related document(s) 45 . (Attachments: # 1)(Stern, Jeffrey) (Entered: 10/12/2004)
50 Transcript Request by Sundance Rehabilitation Corporation re 46 Notice of Appeal. Transcript is unnecessary, there were no hearings. (H, S P) (Entered: 10/14/2004)
Order (Non Document) Denying Motion to stay for lack of good cause shown under Federal Rule Civil Procedure 62 or otherwise, defendant's motion for stay is denied. (Related Doc # 45 )(Judge Lesley Wells)(C, L) (Entered: 11/02/2004)
51 Information Copy of opinion from USCA for the Sixth Circuit: Reversing the judgment of the District Court re 46 Notice of Appeal (USCA# 04-4178). This is not a mandate order. Circuit Judges: Boggs and Batchelder, District Judge: Cohn. Date issued by USCA 10/24/06 (Attachments: # 1 Judgment) (H, S P) (Entered: 10/27/2006)
52 True copy of mandate from the USCA for the Sixth Circuit: Reversing the judgment of the District Court as to 46 Notice of Appeal (USCA# 04-4178). Date issued as mandate 3/21/07, Costs: None (Related document 51 ) (H, SP) (Entered: 03/26/2007)
53 Appeal Remark from US Supreme Court: An extension of time is granted up to and including 7/11/07 to file a petition for a writ certiorari (No. 04-4178) (H, SP) (Entered: 06/15/2007)

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