The Honorable Rodney W. Sippel, United States District Judge for the Eastern 1 District of Missouri, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1384

___________ Lorin B. Ellison, * * Appellant, * * v. * * Premier Salons International, Inc., a * Appeal from the United States Delaware Corporation * District Court for the * District of Minnesota. Appellees. *

---------------------- * American Association of Retired * Persons, * * Amicus on Behalf of Appellant. *

___________ Submitted: November 18, 1998 Filed: January 6, 1999

___________ Before BOWMAN, Chief Judge, LOKEN, Circuit Judge, an d SIPPEL, District Judge. 1

___________ BOWMAN, Chief Judge.The Honorable Michael J. Davis, United States District Judge for the District 2 of Minnesota. -2- L o rin Ellison appeals the judgment of the District Court in Ellison's action for 2 breach of cont

ract. The issue presented is whether the twenty-one-day review period provided by the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. § 626(f) (1 994), for waivers of claims under the Age Discrimination in Employment Ac t (ADEA), 29 U.S.C. §§ 621-634 (1994), establishes an irrevocable power of acceptance for twenty-one days. The District Court held that it does not. We affirm.

I.

The fact s of the case are thoroughly presented in the opinion of the Distric t Court, so w e recite only those facts relevant to this appeal. See Ellison v. Premie r Salon s Int'l, Inc. , 981 F. Supp. 1219, 1220 (D. Minn. 1997). Ellison was hired b y Premie r Salons International, Inc. as its chief financial officer in January 1994 whe n he was 62 years old. On May 26, 1995, Ellison was notified that his employmen t would be terminated. Premier's Vice President of Human Relations, Robert Sanders, began working with Ellison to draw up a severance package. Sanders gave Ellison a
memo outlining tentative separation terms on June 1, 1995, and thereafter Elliso n suggested certain changes. On June 20, 1995, Sanders provided Ellison a document entitled "Separation Agreement and Release of Claims," which Sanders had signed and had notari zed the previous day. The Agreement stated that in exchange for variou s payments, Ellison w ould release all claims against Premier including claims under the ADEA.

When Elliso n and Sanders met to discuss the Agreement on June 22, 1995 , Ellison gav e Sanders a copy of the Agreement on which he had made numerou s handwritt en changes. Ellison asserts that these changes merely were suggestions

. Sanders, to the contrary, states that Ellison demanded the handwritten changes be made-3-

or there would be no agreement. Sanders states that on July 6, 1995, he telephone d Ellis on to inform him that the offered Agreement was revoked because Premier ha d learned that Ellison had made defamatory statements about the company or it s president. Sanders asserts that during this telephone call he informed Ellison that a new, less va luable agreement would be sent to him. Ellison denies being told th e offered Agreement was revoked. Prior to receiving the new agreement, Ellison signed the original Agreement and returned it to Premier.

Ellison sued Premier for age discrimination under the ADEA and for breach of contract based on Premier's alleged failure to honor the Agreement. The District Court gra nted summary judgment to Premier on the age discrimination claim. As to th e breach of contract claim, the District Court rejected Ellison's argument that th e OWBPA creates an irrevocable power of acceptance for twenty-o ne days, but it denied
su mmary judgment to Premier because there were disputes of material fact regarding the a lleged rejection and revocation of the offered Agreement. See Ellison , 98 1 F. Supp. a t 1221. A jury heard the breach of contract claim and found Ellison ha d rejected the offered Agreement. Ellison subsequently moved for judgment as a matter
o f law (the District Court treated the motion as one for reconsideration) based on the alleged irrevocable power of acceptance created by the OWB PA or for a new trial, and the Di strict Court denied both motions. Ellison appeals the judgment entered fo r Prem ier on the breach of contract claim. He does not appeal the grant of summar y judgment for Premier on the ADEA claim.

II.

We re view the District Court's interpretation of the OWBPA de novo. Se e United States v. Williams , 136 F.3d 547, 550 (8th Cir. 1998). The OWBPA provides that an individual may not waive any ri ght or claim under the ADEA unless the waiver is knowing and voluntary, and it defines the minimum requirements for determinin g what is a knowing and voluntary waiver. See 29 U.S.C. § 626(f)(1):Under c ommon law contract principles, the offeror, by extending an offer , 3 creates a power of acceptance in the offeree that continues until terminated throug h acceptance by the offeree, rejection by the offeree (either expressly or by making a counteroffer), or revocation by the offeror. See generally Farnsworth on Contracts, §§ 3:16-3:20 (2d ed. 1998). -4- Excep t as provided in paragraph (2), a waiver may not be considere d knowing and voluntary unless at a minimum-- (A) the wai ver is part of an agreement between the individual and th e employer that is written in a manner calculated to be understood b y such individual . . . ; (B) the waiver specifically refers to rights or claims arising under [the ADEA]; (C) the individual does not waive rights or claims that may aris e after the date the waiver is executed; (D ) the individual waives rights or claims only in exchange fo r conside ration in addition to anything of value to which the individua l already is entitled; (E) the i ndividual is advised in writing to consult with an attorney prior to executing the agreement; (F)(i) the individual is given a period of at least 21 days withi n which to consider the agreement; . . . (G) the agreement provides that for a period of at least 7 day s following the execution of such agreement, the individual may revoke the agr eement, and the agreement shall not become effective or enforceable until the revocation period has expired . . . .

Ellison a rgues that the OWBPA provides an irrevocable power of acceptanc e for twenty-one days and, therefore, that offers governed by the OWBPA, unlike offers governed by common law contract principles, cannot be rejected or revoked during the twenty-one-day period. H e contends that the Agreement should be enforced because 3 he accepted Premier's offer before the twenty-one days expired. Premier asserts that the offer was revocable because the twenty-one-day requirement is relevant only to the-5-

issue o f whether the employee's waiver of rights under the ADEA was knowing an d voluntary.

Ellison's argument presents a question of first impression. In interpreting a statut e, we begin with the language of the statute. "[C]ourts must presume that a legislatur e says in a statute what it means and means in a statute what it says there

. When the wor ds of a statute are unambiguous, then, this first canon is also the last : judicial inquiry is compl ete." Connecticut Nat'l Bank v. Germain , 503 U.S. 249, 253- 54 ( 1992) (internal quotation and citations omitted). The language at issue provide s th ata waiver may not be considered knowing and voluntary unless, among othe r things, "the individual is given a period of at leas t 21 days within which to consider the agreement." 29 U.S.C. § 626(f) (1)(F)(i) (1994). This language does not state that the employer's offer is irrevocable for twenty-one days, or that the offer creates a twentyone-day option contract, or even t hat the offer must be held open for twenty-one days. The language does not forbid such offers from being rejected or revoked for twentyone da ys, nor does it state that common law contract principles are preempted

. Cont rary to Ellison's contention, the language of the OWBPA does not create a n irrevocable power of acceptance . The OWBPA simply provides that the employee be given twenty-one day s within which to consider an offered agreement if the waiver of potential ADEA claims is to be considered knowing and voluntary, and thus valid.

To suppor t his assertion that the OWBPA creates an irrevocable power o f accept ance, Ellison argues that if the employer can revoke an offered agreement then an employee could not certify that he or she was permitted twen ty-one days to consider the agree ment until after the twenty-one-day period had passed. Ellison also argue s th atif such offers are revocable, then an employee will not know how long the offe r will r emain open and may feel pressured to accept early for fear the employer wil l
revo ke the offer before the twenty-one days expire. We reject these arguments an d othe r similar arguments that Ellison makes. First, the structure of the OWBP A mandates certain actions by the employer, such as giving twenty-one days for-6-

co nsideration of an offer, but places no requirements on the employee. Second, th e la nguage of the statute does not require employees to wait the full twenty-one day s before accepting or reject

ing the offer; it is sufficient if they were not forced to accept prior to the end of the twenty-one-day period. See , e.g. , Anderson v. Lifeco Servs

. Corp. , 881 F. Supp. 1500, 1504 (D. Colo. 1995); Moss v. Bank IV , No. 93-1396, 1995 WL 70 8686, at *3 (D. Kan. Nov. 3, 1995); 29 C.F.R. § 1625.22(e)(6) (1998). Th e statute similarly does not forbid an employer fromrevoking an offer before the twentyone days e xpire. If Ellison's assertion were correct, an employer could not revoke an off ered separation agreement even if the day after the offer was made the employe e sold the employer's trade secrets to the c ompany's biggest competitor, or the employee decided to shoot th e company's president, or, as here, the employee made defamatory statemen ts about the company or its president. The statute does not state tha t employees must be given the opportunity to waive their ADEA rights and it does not require em ployers to offer separation agreements. The language of the OWBP A simpl y seeks to ensure that, if the employee does waive his or her ADEA rights, th e waiver is knowing and voluntary. If the offer is revoked prior to its acceptance, then the em ployee has not waived any rights under the ADEA and the OWBPA is no t violated.

Fin ding no Congressional intent to preempt the principles of rejection an d
revoca tion within the statute's language, we turn to Ellison's argument that th e Supre meCourt held the OWBPA preempted all common law contract principles b y stating, "The OWBPA sets up its own regime for assessing the effect of ADE A waivers, separate and apart from contract law

. " Oubre v. Entergy Oper ations, Inc. , 118 S. Ct. 838, 841 (1998). Ellison places too mu ch emphasis on the last phrase and reads it out of context. Only the assessment of the effect of ADEA waivers is separate and apart fro m contract law. Rejection or revocation, by definition, must occur prior t o accepta nce of the proposed waiver agreement and thus prior to any actual waiver o f ADEA claims. Because the OWBPA is concerned only with the validity of agree d upon wai ver agreements, it does not preempt contract formation principles such a s rejection and revocation.-7-

In Oubre , the Supreme Court held that an employee cannot ratify a waiver that does not comply with the OWBPA. See Oubre , 118 S. Ct. at 842. It so held based on a clear statutory command that a waiver cannot effectively release ADEA claims unless it satisfies the OWBPA's requirements. As the Court stated, "The OWBPA implements Congres s' policy via a strict, unqualified statutory stricture on waivers, and we ar e bound to take Congress at its word." Id. at 841. Because the release did not comply with the OWBPA, the release could not bar Oubre's ADEA suit and the employer could not excuse its failure to comply by invoking the employee's failure to tender back the consideratio n paid in exchange for the waiver. In Oubre , the Court addressed onl y whether a waiver, once agreed upon by both parties, is eff ective to bar claims under the ADEA when the waiver does not comply with the OWBPA. The Court did not discuss contract formation issues such as rejection and revocation, and it never stated that all common law contract principles were preempted by the OWBPA.

The facts of Oubre

stand in stark contrast to the present case. Ellison admits that the se paration agreement he was offered complied with the OWBPA's requirements

. See Appellant's Br. a

t 7. Moreover, there has been no waiver of Ellison's rights under the ADEA. In fact, Ellison has litigated hi s ADEA claim (and lost). If this Court were to enforce the of

fered agreement, then Ellison would effectively have gotten two bites at the apple, because he would have litigated his ADEA claim and he would receive the
severa nce package that was offered in exchange for the waiver of that ADEA claim

.
As a final argument, Ellison broadly asserts that application of rejection an d
re vocation would be inequitable and contrary to the protective nature of the OWBPA and the policy of encouraging settlement. See Appe llant's Br. at 16. But as we already have ex plained, the OWBPA protects employees from unknowingly or involuntaril y relea sing their potential ADEA claims. The OWBPA neither encourages no r discourages settlements and it does not entitle employees to the bes t possible separation agreement in exchange for the waiver of their ADEA rights. The OWBPA does no t require an employer to make a settlement offer. If the employer does not offer a-8-

settleme nt, or if the employee rejects or the employer revokes an offered agreemen t prior to its acceptance, then the OWBPA is n ot violated, because the employee has not waived anyclaims under the ADEA. It is not for the courts to amend the OWBPA to include requirements that Congress has not placed in the statute.

III.

Because Ellison has not waived his rights under the ADEA, and in fact ha s litiga ted his ADEA claim, he has not been denied the benefit of the OWBPA. W e agree with the District Court that the OWBPA does not create an irrevocable twentyone- day power of acceptance for offered separation agreements that include waiver s of ADEA claims. The judgment of the District Court is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.