1 The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

________________ No. 05-3496

________________ Roger D. Parsons, Appellant,

v. Pioneer Seed Hi-Bred International, Inc., Appellee. *
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* Appeal from the United States District Court for the Southern District of Iowa.
[PUBLISHED]

________________ Submitted: April 20, 2006 Filed: May 19, 2006

________________ Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.

________________ HANSEN, Circuit Judge.

Roger D. Parsons appeals from the district court's 1 dismissal of his age discrimination claim against Pioneer SeedHi-Bred International, Inc. (Pioneer). Because Parsons validly waived his right to bring an age discrimination claim in his severance agreement with Pioneer, we affirm the district court's judgment.-2- Parsons began working for Pioneer in 1972, and beginning in 2000 he held the position of Project Manager of the Warehouse Management System (WMS). In September 2002, Dean Oestre ich (Vice President of Gl obal Supply Management) and Bill Tomlinson (Director of North America Corn Production) determined that the initial phase of the WMS project was comp lete, that a WMS Coordinator was needed instead of a WMS Project Manager, a nd that the Coordinator position would not require the level of skills possessed by Parsons. Pioneer eliminated the WMS Project Manager position and gave the part-tim e WMS Coordinator duties to a younger current employee, Larry Lubinus (age 41), w ho continued to perform some of his own prior duties as well.

Oestreich told Parsons (age 55 at the time) on September 25, 2002, that his position was being eliminatedand gave him two severance options. Parsons sought the advice of counsel and chose one of th e severance agreements, which provided as relevant:

10. Further, you agree to keep the terms of this settlement and release confidential. Y ou hereby acknowledge that failure to abide by the terms of this Agreement could resu lt in the loss of the consideration provided for in Sections 11(a) and 11(b) herein. If you bring any legal action challenging this Agreement, you agree to immediately repay the consideration set forth in Sections 11(a) and 11(b) herein, unless such legal action directly pertains to the Age Discrimination in Employment Act. 11. In consideration of receipt of a lump sum payment of (a) Nine Thousand Eight Hundred Ninety-Si x Dollars ($9,896.00); (b) the prorated portion of Part II of the Annual Reward Program Bonus in the amount of Eleven Thousand Five Hundred Seventy-Eight Dollars ($11,578.00) . . .; and (c) receipt of the payments and benefits as outlined in this Agreement and identified in the attached Severance . . . Summary, you hereby forever release and discharge Pioneer . . . from . . . any and all other causes of action, claims or demands or expenses of any kind (including attorney fees and costs actually incurred), at law or equity, to-3- settle potential claims you may have pursuant to . . . the Age Discrimination in Employment Act or any other Equal Employment Opportunity claims; . . . the Iowa Ci vil Rights Act, Iowa Code Chapter 216; . . . whether now known or unknown, foreseen or unforeseen, arising out of, or due to the employment relationship with Pioneer. . . .

. . . . 17. In any action to enforce this Agreement, except a claim pertaining to the Age Discrimination in Employment Act, the prevailing party's attorney fees shall be paid by the party against whom this Agreement is being enforced.
(J.A. at 144-45.)

After signing the agreement, Parsons brought suit for age discrimination under the Age Discrimination in Employmen t Act (ADEA), 29 U.S.C. §§ 621-34 (2000), and the Iowa Civil Rights Act (ICRA), Iowa Code Ch. 216 (2005). In ruling on Pioneer's motion for summary judgment, th e district court determined that the severance agreement validly wa ived Parsons' right to bring an age discrimination suit and that even if it did not, he failed to make a prima facie case of age discrimination. The district court entered summary judgment in favor of Pioneer, and Parsons appeals.

We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to Parsons as the nonmoving party. Summary judgment is appropriate if, so viewed, the ev idence reveals no material issues of fact, and Pioneer is entitled to judgment as a matter of law. SeeThomforde v. IBM , 406 F.3d 500, 503 (8th Cir. 2005).

Congress enacted the Older Workers Be nefits Protection Act (OWBPA) in 1990 to clarify the protections afforded ol der workers under the ADEA. Pub. L. 101-433, 104 Stat. 978 (1990). Congress addressed empl oyers' attempts to pressure departing workers into waiving their right to bring an ADEA claim in exch ange for a severance-4- or settlement agreement. See Long v. Sears Roebuck & Co. , 105 F.3d 1529, 1534 (3d Cir. 1997) (explaining the legislative history leading up to the enactment of the OWPBA), cert. denied , 522 U.S. 1107 (1998). While such waivers are valid, Congress requires that the waivers be know ing and voluntary, and it enacted specific statutory requirements that must be met be fore the waiver can bind the worker. See 29 U.S.C. § 626(f) ("An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. . . . [A] waiver may not be considered knowing and voluntary unless at a minimum" it satisfies a list of requirements.) The requireme nts are strict and unqualifie d; if the waiver does not satisfy the statute, it is ineffective as a matter of law. See Oubre v. Entergy Operations, Inc. , 522 U.S. 422, 427 (1998) ("Congress delineated these duties with precision and without qualification: An employee 'may not waive' an ADEA claim unless the employer complies with the statute.").

Parsons argues that his waiver did not satisfy the statute because it did not meet the first enumerated requireme nt, that "the waiver [be] part of an agreement between the individual and the employer that is wr itten in a manner calculated to be understood by such individual." § 626(f)(1)(A). Parsons relies almost exclusively on our recent Thomforde v. IBM case, where we held that the severance agreement between the plaintiff and IBM did not meet this first statutory requirement. See406 F.3d at 504- 05. In Thomforde , the agreement specifically releas ed IBM from all claims, including claims under the ADEA. The agreement also contained a covenant not to sue IBM, but specifically exempted ADEA claims from the covenant not to sue. The agreement loosely used "release" and "covenant not to sue" interchangeably . The agreement was not "written in a manner calculated to be understood" because a contradiction arose from the interchangeable use of the terms "r elease" and "covenant not to sue" coupled with the specific statement that the covenant not to sue did not apply to ADEA claims. See id. at 503-04. Our holding in Thomfordeturned on the fact-intensive inquiry concerning the specific language used in th e agreement and the agreement's imprecise use of legal terms of art.-5- The waiver in this case does not suffer th e same flaw. As Parsons concedes, the severance agreement does not contain a covenant not to sue. The severance agreement specifically released Pioneer from any cau se of action under the ADEA in paragraph 11 of the agreement. Parsons claims that language in paragraphs 10 and 17 is contradictory to that release, similar to the contradiction in Thomforde , rendering the waiver ineffective. The la nguage here is not similarly confusing or contradictory. Paragraph 11 is the general re lease and states the consideration given for the release. Paragraph 10 is a confidentiality clause a nd provides that an employee's failure to abide by any of the terms of the agreement could result in loss of the consideration to be received pursuant to paragraph 11(a) or (b ). It specifically states that if the employee "bring[s] any legal ac tion challenging this Agreement ," the employee will repay the consideration provided in subsec tions 11(a) or (b) "unless such action pertains to the [ADEA]." (J.A. at 144 (empha sis added).) By its terms, the forfeiture provision applies only if the employee challe nges the Agreement itself, and it provides an exception for challenges pertaining to the ADEA, as required by the ADEA regulations. See 29 C.F.R. § 1625.23(b) (precluding any waiver provisions that penalize a party for challenging the validity of a waiver). Paragraph 10 does not purport to exempt ADEA lawsuits from the general release in paragraph 11.

Nor does paragraph 17 contradict th e explicit release of ADEA rights. Paragraph 17 applies only "[i]n any action to enfor ce this agreement," and then provides that the party against whom th e agreement is enforced shall pay the prevailing party's attorney's fees. The para graph "except[s] a claim pertaining to the [ADEA]" from its attorney's fee provision. By its terms, the attorney's fee provision applies only to actions to enforce the ag reement. The paragraph merely excepts enforcement claims that pert ain to the ADEA from the atto rney's fee provision. This again is consistent with the regulations that prohibit a waiver from penalizing an employee for challenging the validity of the agreement. It does not purport to negate the general release contained in paragraph 11. Legal doc uments by their nature are often very detailed and complex due to the need to cover a host of variables often-6- unseen at the time of their drafting, as well as the need in this case to comply with specific regulatory requirements. Pioneer's attempts to comply with the OWPBA and its accompanying regulations may make the agreement nuanced, but the language employed is written in a manner that is understandable by the average participant.

While we agree with the di strict court that the waiver meets the statutory requirements, we caution against the distri ct court's reliance on Parsons' actions or lack thereof, namely that he did not question Pioneer officials about the meaning of the agreement or otherwise put Pioneer on notice that he did not understand that he was waiving his rights under the ADEA. The statutory requirements are minimum standards for creating a voluntary and knowing waiver. Without them, a waiver is not valid as a matter of law, re gardless of whether the employee actually understood the waiver or not. The party asserting the validity of the waiver bears the burden of establishing that the agreement itself was written in a manner calculated to be understood. See 29 U.S.C. § 626(f)(3). The employ ee's subjective state of mind is irrelevant to this initial inquiry. See Kruchowski v. Weyerhaeuser Co. , 423 F.3d 1139, 1142 (10th Cir. 2005) (recognizing the difference between the statutory requirements and the ultimate issue of whether the waiver was knowing and voluntary). Thus, the writing itself must satisfy § 626(f)(1)(A).

Issues of whether an employee expre ssed his misunderstanding or otherwise questioned a waiver go to an employee's subjective state of mind, which may be relevant to the ultimate issue of whethe r his waiver was in fact voluntary and knowing. See § 626(f)(1) ("An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary."). Thomforde's actions of questioning his employer about the waiverand explicitly putting IBM on notice that he planned to pursue an ADEA claim befo re he signed the agreement supported our conclusion that the waiver in that case was not sufficiently clear to meet the statutory requirement contained in § 626(f)(1)(A). See Thomforde , 406 F.3d at 504 & n.1. His actions were by no means necessary to our hol ding, however. We make clear that the-7- waiver itself must be "written in a manner calculated to be understood by such individual" to satisfy the minimum statutory requirements. § 626(f)(1)(A).

Parsons does not otherwise challenge on appeal whether his waiver was knowing and voluntary. Having found that th e waiver met the statutory requirements, we agree with the district court that Parsons' age discrimination claims are precluded by the waiver, and Pioneer is entitled to j udgment as a matter of law on that basis alone.

The district court's judgment is affirmed.

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