1 Chief Judge of the Southern District of Mississippi,

sitting by designation.

2 Pub. L. No. 101-433, § 201, 104 Stat. 983 (1990) (amending

the Age Discrimination in Employment Act at 29 U.S.C.A. § 626(f)

(West Supp. 1993)). UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-1743

ALLEN M. WAMSLEY, DONALD J. WHITTENBERG,

ANTHONY J. NAGY, BETTY R. SANDERSON and GLENDA

K. BENNETT,

Plaintiffs-Appellants,

VS.

CHAMPLIN REFINING AND CHEMICALS, INC., ET AL.,

Defendants,

CHAMPLIN REFINING AND CHEMICALS, INC., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

(December 30, 1993)

Before JONES an d DeMOSS, Circuit Judges, and BARBOUR, District

Judge 1

.

DeMOSS, Circuit Judge:

We are called upon in this case to determine whether the

waiver requirements of the Olde r Workers Benefit Protection Act 2

(the "OWBPA"), make our holding in Grillet v. Sears Roebuck & Co.

,3 On November 7, Wamsley received the notice and release and

was informed that he would be terminated on November 30; on

November 15, Nagy received the notice and release and was told

that his termination date was also on the 30th; on November 20,

Whittenberg, Bennett, and Sanderson received the notice and

release and were informed that their employment would be

terminated on December 31.

2 927 F.2d 217 (5th Cir. 1991), unsound. Because we conclude that

nothing in the text or the legislative history of the OWBPA

evidences a congressi onal intent to disturb the common law

principles to which our holding in Grillet is anchored, the

district court's judgment is affirmed.

BACKGROUND

Appellants are former employees of Champlin R efining &

Chemicals, Incorporated ("Champlin") or one of its predecessors-ininterest. In September of 1990, Champlin informed its Irving,

Texas office employees that at the end of the year Champlin would

become a wholly owned subsidiary of Citgo Petroleum Corporation.

Champ lin explained that as a result, the Irving office was to be

closed and several of its employees were going to lose their jobs.

Champlin also explained that it was initiating a "Termination Pay

Plan" (the "Plan") for the benefit of those employees whose

employment would be terminated. In October, Champlin circulated a

copy of the Plan to all of its employees, including Appellants.

In November and December, Champl in informed Appellants that

they were among the employees who were going to be "let go."

Champlin provided them with a "Notice Pertaining to Release of

Claims" document and a "Release of Claims" agreement. 3 The notice

included the following provision:4 Wamsley executed on November 20 and received $84,369.13;

Nagy executed on November 21 and received $90,763.01; Sanderson

executed on November 27 and received $25,634.99; Bennett executed

on December 19 and received $28,442.80; and Whittenberg executed

on December 21 and received $54,000.00. In addition to cash,

appellants received other benefits including outplacement

services through 1991 and medical, dental and life insurance

benefits for a period of six months.

3 Although you may execute the Release of Claims as soon as

you wish, you als o may take up to 45 days from your

receipt of the Release of Claims to consider it. Your

decision to execute the Release of Claims and acc ept

benefits under the Termination Pay Plan will be revocable

for seven days after execution, and no payment of

termination pay will be made unti l that period has

expired. Therefore, to be able to provide your

termination pay to you not later than five business days

after the term ination of your employment, the Company

must receiv e your executed Release of Claims at least

seven days before that payment date.

The release provided for Appellants' waiver of any action or

claim against Champlin and "its successors, assigns, [and]

affiliates," "relating to or arising out of [their] employment

with [Champlin] . . . or the termination of such employment,

including but not limited to, claims for . . . age discrimination

under

. . . the Age Discrimination in Employment Act of 1967." The

release made clear that the benefits to be paid under the Plan

constituted the consideration for the release.

Each of the appellants executed a release, and in return,

Champlin paid Appellants severance benefits. 4 It is undisputed

that Appellants would not have otherwise been entitled to receive

these benefits; such benefits were paid strictly as consideration

for their release of Champlin.5 Apparently Bennett had not thrown in with the other wouldbe-litigants at this time.

6 Bennett filed her claim with the EEOC on December 30, 1991.

4 In April of 1991, Wamsley, Whittenberg, Nag y, and Sanderson

sent Champlin a letter threatening suit under the ADEA. 5 Later

that year, in May, each of the aforementioned appellants filed

cha rges against Champlin for age discrimination with the Equal

Employment Opportunity Commission. 6 In January of 1992, their

releases notwithstanding, Appellants filed suit against Champlin,

Citgo and the Plan (collectively referred to as "Cham plin")

alleging that it had unlawfully discriminated against them on the

basis of age when it terminated their employment and denied them

certain benefits under the Plan.

They also alleged that their releases were "void or voidable"

due to duress and Champlin's failure to comply with one of the

conditions of the OWBPA. Appellants contended that Champlin had

failed to provide them 45 days to consider the release as required

under the OWBPA, and thus, the releases were not "knowing and

voluntary" within the meaning of the section 626(f)(1) of the ADEA.

Champlin answered the suit with a motion to dismiss. It

argued that the releases were valid under the OWBPA and relied on

the above-quoted portion of the notice document as pro of that

Champlin had provided its employees the 45-day consideration

period. It also tendered affidavits specifically denying that

Appellants were told to execute and return the release prior to the

expiration of the 45-day period. Champlin explained that it had5

simply told its employees that they could avoid an interruption in

payroll if they returned the executed releases before their

termination date.

Champlin also averred that Appellants had not returned or

offered to return the severance benefits they received as

consideration for the releases. Thus, Champlin argued that even if

the court was unable to determine as a matter of law that Champlin

had provided the 45-day consideration period, the court should hold

that Appellants had ratified the releases and dismiss their claims.

Appellants responded to Champlin's motion and proof by

tendering affidavits in which each swore to facts surrounding their

termi nation and execution of the release. Appellants claimed to

have been told by certain individuals in the Champlin organization

that they had to sign and return the release by their termination

date, less than 4 5 days after receiving the notice, in order to

receive benefits under the Plan.

On August 14, 1992, the district court granted Champlin

judgment and dismissed Appellants' suit. The court held that the

releases were knowing and voluntary within the meaning of the ADEA

and, thus, barred Appellants' suit. The court alternatively held

that even if the releases were not valid when executed, Appellants

had ratified the agreements by failing to return to Champlin the

benefits they had received as consideration after learning of the

releases' alleged invalidity.

Appellants a ppeal, raising two general contentions. They

argue first, that fact issues exist regarding the knowing and6

voluntary nature of their releases. They also contend that the

doctrine of ratification has no application in this suit. Although

we agree with Appellants' first contention, we reject their second.

The district court's judgment is, therefore, affirmed.

DISCUSSION

Knowing and Voluntary Waiver

Congress, through enactment of the OWBPA, has determined that

employers must afford their employees the right to consider for 45

days whether they should waive any rights or claims vis á vis the

ADEA in exchange for benefits under a group termination program. 29

U.S.C. § 626(f)(1)(F)(ii). Appellants contend, i nter alia

, that

Champlin denied them this right. Champlin responds by arguing that

it complied with the 45-day requirement and pointing to the "Notice

Pertaining to Release of Claims" document a s proof. Appellants

counter by swearing that the information containe d therein was

orally countermanded by certain persons at Champlin. Champlin, of

course, denies that Appellants were told anything of the sort.

Which version accurately describes Champlin's dealings with

Appellants is an issue that cannot be resolved by the court through

summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242,

249-55 (1986). We are unable to conclude, therefore, that

Appellants' releases were "knowing and volunt ary" under the A DEA

OWBPA. Although we recognize that Appellants have managed to

create a fact issue on this point, we consider the issue to be

immaterial in light of our conclusion that Appellants have ratified

their releases as a matter of law.7

Ratification of the Releases

Appellants do not dispute that they have neither returned nor

offered to return the benefits they received as consideration for

the releases. Rather, Appellants argue that the law does not

require them to make such a tender in order to pursue claims under

the ADEA. In taking this position, Appellants press two arguments.

They first contend that the OWBPA ha s effectively overruled our

decision in Grillet v. Sears, Roebuck & Company . In Grillet , the

court held that when an employee agrees to release her employer

from liability under the ADEA and receives benefits as

consideration for the agreement, the employee ratifies the

agreement if she retains the consideration after learning that the

releas e is voidable. 927 F.2d at 220. Appellants alternatively

argue that Grillet was erroneously decided and should be overruled.

We treat each argument in turn.

The OWBPA and Ratification

Appellants contend that "[t]h e language and purpose of the

OWBPA preclude ratification of a release otherwise in violation of

the OWBPA." The language upon which Appellants rely states that an

individual " may not " waive any ADEA claim unless the waiver is

knowing a nd voluntary within the meaning of section 626(f)(1) of

title 29. (emphasis Appellants') Appellants read this language to

mean that any waiver failing to meet one of the requirements under

section 626(f)(1) is not simply voidable, but void and, therefore,

unable to be ratified.7 Note that if the same grounds for avoidance exist when the

new promise is made, the party again enjoys the power to avoid

performance under the new promise. R EST

. C ONT ., § 85 cmt. b.

Where, however, such grounds no longer exist, ratification

mandates performance of the new promise.

8 The doctrine of contractual ratification is the enforcement of

a promise to perform all or part of an antecedent contract of the

promisor, previously voidable by him, but not avoided prior to the

making of the promise. R ESTATEMENT ( S ECOND ) OF C ONTRACTS § 85 (1981).

To have ratification, there must be an antecedent contract that was

previously voidable, but not avoided. A contract is voidable if

there exist grounds upon which a party can avoid, or disaffirm, his

duty of performance. Id

. § 7. Such grounds have traditionally

included fraud, duress, mistake and infancy. Id . § 7 cmt. b.

Ratification operates to allow a party having the power to

avoid his contractual duty to mak e, or be deemed to have made, a

new promise to perform hi s previously voidable duty and thus,

extinguish his power of avoidance. Id

. § 85 cmt. a. To say that a

contract is voidable, therefore, is to say that an antecedent

promise created a legal duty on the promisor's pa rt and that the

promisor has the power either to avoid performance, based on any

one of the several grounds of avoidance, or to ratify the promise

by making a new one. 7

Promises that are void cannot be ratified. The reason for

this is simple: Void promises are not legally binding and thus, are

not contracts. Id . § 7 cmt. a. Without an antecedent contract to

ratify, there can be no ratification. To say that a promise is

void is to say that it created no legal obligation and that the8 The legislative history indicates that the fundamental

purpose of the OWBPA waiver provisions is to ensure that an older

worker who is asked to sign an ADEA waiver does so in the absence

of fraud, duress, coercion, or mistake of material facts. S. R EP

. N O . 101-263, 101st Cong., 2nd Sess. (1990), reprinted in 1990

U.S.C.C.A.N. 1509, 1537. The circumstances against which these

provisions were designed to protect are the same circumstances

that have traditionally given rise to grounds upon which a party

can avoid contractual obligations. That the Committee enumerated

several of the traditional grounds of avoidance is significant.

Also significant is the absence of any language in the statute

and any statement in the legislative history indicating that a

waiver executed in contravention of the OWBPA requirements is

void of legal effect and cannot be ratified by an employee.

9 promisor is without the power to bind himself under a new promise

to perform the antecedent promise. Id . §§ 8 and 85 cmt. a.

We do not interpret the language of section 626(f)(1) to mean

that a waiver which fails to meet the requirements of subsections

(A) through (H) is void of legal effect. Rather, we interpret it

to mean that such waivers are not knowing and voluntary and thus

are subject to being avoided at the election of the employee. This

interpretation comports with the language of section 626(f)(1) and

is supported by the legislative history of the OWBPA. 8

We also find that the provisions of section 626(f)(1) support

our conclusion that defective wai ver agreements are voidable and

not void. Section 626(f)(1)(G) expressly provides that for seven

days after execution of a waiver agreement an employee may revoke

the agreement and that the agreement does not become enforceable

until the expiration of the seven day revocation period. If noncompliance with the o ther subparts of section 626(f)(1) rendered

the agreement void, there would be no need for subpart (G).9 The facts before us testify to this truth. The Plan which

Champlin circulated to Appellants in early October 1990 contained

a provision materially identical to the waiver agreement that

each of the appellants executed. Thus, two of the appellants had

almost two months and the others had almost three months to

consider the Plan and their waiver of rights under the ADEA.

Nevertheless, after executing the agreements and accepting the

termination benefits as the consideration for their promises not

to sue, each of the appellants filed suit, claiming that the

waiver agreements were not "knowing and voluntary." Although,

Champlin's documentary evidence shows it to have been in letter

perfect compliance with section 626(f)(1) and to have lived up to

its end of the waiver bargain, the nature of Appellants' attack

on the agreements assured Appellants of a fact issue with which

to avoid summary judgment on this issue. Thus, were we to

conclude that Appellants' waiver agreements were void from their

execution, Champlin would be facing continued litigation with

opponents who could use, and possibly already have used, to

finance their suit, the very funds Champlin paid as consideration

to avoid litigation.

10 Finally, an interpretation of section 626(f)(1) that renders

defective waiver agreements void would be inconsistent with one of

the expressed purposes of the ADEA: "to help employers and workers

find ways of meeting problems arising from the impa ct of age on

employment." 29 U.S.C. § 621(b). The simplest and easiest way to

further this purpose is to give effect to private agreements which

resolve age related employment problems without the ine vitable

delays and costs associated with litigation. Were employers forced

to assume the risk that non-compliance with all of st atutory

requirements of section 626(f)(1) renders a waiver agreement for

which they have paid valuable consideration void and thus, not

capable of being ratified, clear ly they would be disinclined to

propose such solutions. 9

Therefore, we hold that neither the language nor the purpose

of the OWBPA indicates a congressional desire to deprive an10 A promise is a manifestation of intention to act or

refrain from acting in a specified way, so made as to justify a

promisee in understanding that a commitment has been made. R EST

. C ONT . § 2. That a promise has been made can be determined from

conduct as well as words. R EST

. C ONT . § 19. Here the conduct

giving rise to Appellants' promise to perform under their waivers

was their retention of the consideration for their waivers. That

Appellants may have subjectively intended something different is

of no moment.

In the final analysis, the objective theory of

contracts, as distinguished from the subjective theory,

is based on analogy to estoppel. This is apparent

whenever a person is held bound by a contract because

of his manifestations when his manifestations are

contrary to his actual state of mind.

1 S AMUEL W ILLISTON

, W ILLISTON ON C ONTRACTS § 98, p. 362 (1957) (footnote

omitted).

11 Note that the court is not enforcing the promises

contained in any of the allegedly voidable waiver agreements as

such. What the court is enforcing is a new promise, evidenced by

subsequent conduct, to be bound by the terms of the original

waiver agreements. Therefore, that the original waiver

agreements may not have been in compliance with § 626 is of no

consequence. The court is now concerned with the enforcement of

a new promise which gives rise to a new legal obligation. As a

new promise that creates a new obligation, it is not subject to

11 employee of the ability to ratify a waiver that fails to meet the

requirements of the OWBPA. When Appellants chose to retain and not

tender back to Champlin the benefits paid them in consideration for

their promise not to sue Champlin, they manifested their intention

to be bound by the waivers and thus, made a new promise to abide by

their terms. 10 Grillet , 927 F.2d at 220; O 'Shea v. Commercial

Credit Corp.

, 930 F.2d 358, 362 (4th Cir. 1991); I n Re Boston

Shipyard Corp.

, 886 F.2d 451, 455 (1st Cir. 1989); Anselmo v.

Manufacturers Life Ins. Co.

, 771 F.2d 417, 420 (8th Cir. 1985).

The court will enforce their new conduct based promises as it

legally and equitably should. 11the waiver requirements of § 626, and thus, such requirements

pose no bar to its enforcement. Consequently, we find ourselves

in respectful disagreement with the Seventh Circuit's recent

decision in Oberg v. Allied Van Lines, Inc. , 1993 WL 483614 (7th

Cir. Nov. 23 1993), in which the court concludes, without any

analysis of the doctrine of ratification, that "[n]o matter how

many times parties may try to ratify [a waiver] contract, the

language of the OWBPA, '[a]n individual may not waive', [sic]

forbids any waiver." Id . * 3. We believe that the court's

conclusion in Oberg is at odds with the legislative history and

congressional intent behind the OWBPA, See Note 8, supra , and

overlooks the legal theories that define the doctrine of

ratification of voidable contracts.

12 Grillet and Hogue

Appellants alternatively argue that our decision in Grillet is

contrary to the Supreme Court's decision in Hogue v. Southern R.

Co. , 88 S.Ct 1150 (1968). We disagree.

In Hogue

, the Court held that a "tender back" of consideration

paid by a rail carrier to one of its injured employees in exchange

for the employee's release was not a prerequisite to the employee

bringing suit on the injury. Id

. at 1151-5. The Court reasoned as

follows:

[A] rule which r equired a refund as a

prerequisite to institution of suit would be

wholly incongruous with the general policy of

the [Federal Employers Liability Act] to give

railroad employees a right to recover just

compensation for injuries negligently

inflicted by their employe rs. Rather it is

more consistent with the objectives of the Act

to hold, as we do, that it suffices that,

except as the release may otherwise bar

recovery, the sum paid shall be deducted from

any award determined to be due to the injured

employee.

Id

. at 1152 (citations omitted). The Court's holding is founded on

the recognition that a "tender back" requirement would be "wholly12 The FELA's legislative history testifies to this truth:

[T]he employers' liability law . . . places such

stringent liability upon the railroads for injuries to

their employees as to compel the highest safeguarding

of the lives and limbs of the men in this dangerous

employment. The tremendous loss of life and limb on

the railroads of this country is appalling. The total

casualties to trainmen on the interstate railroads of

the United States for the year 1908 was 281,645.

It was the intention of Congress in the enactment of

this law . . . to shift the burden of the loss

resulting from these casualties from "those least able

to bear it" and place it upon those who can, as the

Supreme Court said in the Taylor case (210 U.S. 281),

"measurably control their causes."

The passage of the original act and the perfection

thereof by the amendments herein proposed stand forth

as a declaration of public policy to radically change,

as far as congressional power can extend, those rules

of the common law which the President, in a recent

speech at Chicago, September 16, 1909, characterized as

"unjust." President Taft in his address . . . referred

13 incongruous" with the right of recovery provided under the FELA and

inconsistent with the objectives of that Act. The right of

recovery under the FELA, however, is unique in that it advances a

congressional intention of facilitating recovery by injured

railroad workers against their employers.

The FELA was designed not simply to discourage negligent

conduct, for indeed, the common law at the FELA's passage provided

rail workers an action for negligence. Rather, the Act was

designed with a broader purpose in mind: "to provide liberal

recovery for injured workers," Kernan v. American Dredging Co.

, 355

U.S. 426, 432 (1957), and thus, " to put on the railroad industry

some of the cost for the legs, eyes, arms, and lives which it

consumed in its operations." 12 W ilkerson v. McCarthy

, 336 U.S. 53,"to the continuance of unjust rules of law exempting

employers from liability for accidents to laborers."

This public policy which we now declare is based upon

the failure of the common-law rules as to liability for

accident, to meet the modern industrial conditions and

is based not alone upon the failure of those rules in

the United States, but their failure in other countries

as well.

G RIFFITH

, T HE V INDICATION OF A N ATIONAL P OLICY U NDER THE F EDERAL E MPLOYERS '

L IABILITY A CT , 18 L AW & C ONTEMP

. P ROB . 160 (1953)(quoting from 45

Cong. Rec. 4041 (1910)).

14 68 (1949) (concurring opinion of Justice Douglas). It accomplished

these purposes by creating a statutory scheme that "stripped [an

employer] of his common law defenses," and granted recovery if the

"employer['s] negligence played any p art, even the slightest, in

producing the injury or death for which damages are sought." Rogers

v. Missouri Pacif ic R. Co. , 352 U.S. 500, 506-7 (1956). These

dramatic changes evinced a clear con gressional intent "favoring

unburdened and expeditious recoveries" by rail worker s. Smith v.

Pinell , 597 F.2d 994, 996 (5th Cir. 1979).

The FELA's statutory scheme removed several of the common-law

obstacles hindering the injured rail worker's " u nburdened and

expeditious recovery." The Supreme Court in H ogue removed yet

another common-law obstacle to the rail w orker's congressionally

encouraged recovery. By so acting, the Court advanced the FELA's

purposes of providing liberal recovery to injured rail workers and

thus, of shifting from them to their employers the heavy loss

associated with their severe injuries.

No such purposes underl ie the ADEA. Congress expressly

declared that the purposes of the ADEA were "to promote employment13 We believe that the Seventh Circuit in Oberg , by adopting

the reasoning of Forbus v. Sears, Roebuck & Co. , 958 F.2d 1036

(11 Cir. 1992), and Isaacs v. Caterpillar, Inc. , 765 F.Supp. 1359

(C.D.Ill. 1991), has improperly analogized the FELA to the ADEA

and, thus, arrived at the erroneous conclusion that Hogue

precludes a "tender back" requirement in suits brought under the

ADEA. For the reasons set forth in this opinion, we consider

these two "remedial" statutes to be fundamentally different in

congressional purpose and intent. Consequently, we consider such

an analogy inaccurate.

15 of older persons based on their ability rather than age; to

prohibit arbitrary age discrimination in employment; [and] to help

e mployers and workers find ways of meeting problems arising from

the impact of age on employment." 29 U.S.C. § 621(b). Unjustified

discrimination on the basis of age was the problem targeted by the

ADEA. To redress this problem, Congress provided employees a

wholly new right of action for age discrimination. Nowhere in

section 621(b) did Congress express , however, its desire to

actively facilitate an ADEA claimant's recovery. 13

What Congress did under the FELA was something it has not yet

done under th e ADEA, that is, to legislatively facilitate an

employee/claimant's recovery. Until Congress demonstrates its

desire to promote "liberal," "unburdened and expeditious

recoveries" to claimants under the ADEA, Grillet will remain sound

authority and unaffected by Hogue

.

We also n ote that there are fundamental differences between

settling a claim for personal injury or death under the FELA and

settling a potential claim for a possible ADEA violation in

connection with an employer's pre-announced program for reduction

in force. In the FELA situation the injury has in fact already16

occurred; otherwise there is no FELA claim to settle. However, in

an ADEA situation dealing wit h a prospective reduction in force,

such as involved here, the purpose of the settlement agreement is

to compromise in advance a potential age discrimination event and

to offset in advance any loss and injury which an employee might

experience if such an event were to occur.

Moreover, the FELA has effectively rendered liability of the

employer a given in the great majority of cases, leaving

quantif ication of damages as the principal focus of settlement

negotiations. No such inference of liability exists as to ADEA

claims; mere termination of employment i s not sufficient to

establish liability. An ADEA claimant faces the burdensome task of

proving that the termination of his employment was the result of

unlawful age discrimination. Therefore, the elements to be

considered in the settlement of an ADEA claim involve not only

damages, but also the more critical issue of threshold liability.

Therefore, wh en (1) an employer presents his employee with a

settlement agreement, the purpose of which is to resolve the issues

of potential liability and damages under the ADEA, (2) the employee

is given the opportunity to consider the agreement for a period of

almost two months, and (3) the employer funds the agreed settlement

consideration, thus performing its side of the bargain

- all of

which has occurred in this case, we believe justice and equity

require the employee who seeks to avoid the obligations to which he

agreed under the settlement agreement to return the consideration

which he received for his promise not to sue.wjl:\opin\92-01743.opn

CWF

17 CONCLUSION

In light of the foregoing, we AFFIRM the district court's

judgment.