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“under the ADEA. Plaintiff’s termination claim arose before the agreement was executed.
Plaintiff received over $9,000 in severance pay for signing the waiver, and acknowledged that
this payment was in excess of any payments or benefits to which he was already entitled.
Plaintiff was advised to consult with an attorney before executing the release, and did so.
Finally, the release provided for a 21-day consideration period and a 7-day revocation period.
The question that we are now faced with is whether this waiver was requested in
connection with some sort of exit incentive or other program offered to a group of employees.
Section 626(f)(1}(H) states that:
if a waiver is requested in connection with an exit incentive or other employment
termination program offered to a group or class of employees, the employer...informs
the individual in writing in a manner calculated to be understood by the average
individual eligible to participate, as to (i) any class, unit, or group of individuals covered
by such program, any eligibility factors for such program, and any time limits applicable
to such program; and (ii) the job titles and ages of all individuals eligible or selected for
the program, and all the ages of all individuals in the same job classification or
organizational unit who are not eligible or selected for the program.
The plaintiff argues that the waiver he signed was requested in connection with an employee
termination program, and that because the waiver did not comply with the requirements of
section 626(f)(1)(H), the waiver is not enforceable. We must decide whether there is enough
evidence of this to create a triable issue. In any dispute over whether the requirements of
section 626(f)(1}(A)-(H) have been met, "the party asserting the validity of a waiver shali have
the burden of proving in a court of competent jurisdiction that a waiver was knowing and
voluntary...." 29 U.S.C, § 626(F){3).
In the context of ADEA waivers, there is a fundamental distinction between individually
tailored separation agreements and employer programs targeted at groups of employees.
Individual separation agreements are the result of actual or expected adverse action against an

individual employee. Campbell v. Amana Co., L.P., 125 F.Supp.2d 1129, 1133 (N.D.lowa

2001). Courts have noted that adverse actions, in the form of job loss, are inevitable for some


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bringing a claim against DSC under the ADEA. We therefore grant DSC’s motion for summary

Lily S,

Marvin E. Aspen, District Court Judge

judgment. It is so ordered.

Dated: x of


7 Qy
verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505 (1986). However, if the evidence is merely colorable, or is not sufficiently probative, the
court may grant summary judgment. /d., at 249-50.

The threshold question presented in this suit is whether the plaintiff is barred from
bringing a claim against his former employer, DSC, because of the release that he signed. DSC
contends that the release entered into by plaintiff is a valid, binding and enforceable release
agreement and that for that reason he waived any ADEA claim he has against DSC.

An employee can waive an ADEA claim where the waiver is knowing and voluntary.
See Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998). Such waivers are knowing and
voluntary if they comply with the Older Workers Benefit Protection Act (“OWBPA”), 29 U.S.C.
§ 626(f). The law provides that a waiver is enforceable when:

(A) the waiver is part of an agreement between the individual and the employer that is

written in a manner calculated to be understood by such individual, or by the average

individual eligible to participate;

(B) the waiver specifically refers to rights or claims arising under this chapter;

(C) the individual does not waive rights or claims that may arise after the date the
waiver is executed;

(D) the individual waives rights or claims only in exchange for consideration in addition
to anything of value to which the individual already is entitled;

({E) the individual is advised in writing to consult an attorney prior to executing the
agreement; and

(F) {i) the individual is given a period of at least 21 days within which to consider the
agreement; or (ii) if a waiver is requested in connection with an exit incentive or other
employment termination program offered to a group or class of employees, the
individual is given a period of at least 45 within which to consider the agreement;

(G) the agreement provides that for a period of at least 7 days following the execution
of such agreement, the individual may revoke the agreement...;

The waiver here tracked, almost exactly, these requirements. The release agreement was a

simple, three-page document, written in clear language, and specifically referred to claims


VY 4

‘ people in reduction in force situations, and that the corporation is taking the action for general
efficiency reasons. Adams v. Ameritech Services, Inc., 231 F.3d 414, 421 (7" Cir.2000).
The employee understands that the action is being taken against him, and he may engage in
arms-length negotiation to resolve any differences with the employer. Carnpbell, 125
F.Supp.2d at 1133.

Group termination and reduction programs stand in stark contrast to the individual
separation. The Seventh Circuit has said that “program” goes with “group or class,”
“Congress having thought that recipients of the kind of standardized, often complex,
take-it-or-leave-it severance offers tendered in connection with a reduction in force or other
reorganization should have more time in which and information with which to decide whether
to waive their ADEA rights than in the case of individually negotiated separations.” Blackwell
v. Cole Taylor Bank, 152 F.3d 666, 670 (7" Cir.1998). The trademark of involuntary
termination programs is a standardized formula or package of employee benefits that is
available to more than one employee. Campbell, 125 F.Supp.2d at 1133.

Here, we have the termination of one, or at the most, two employees. Plaintiff claims
that Silvio Restrepo, another supervisor, was also offered a severance package following the
loss of the NALS account. He argues that this constituted a “downsizing” program.

The statute does not specify the size of the group or class, although the fewer the
people terminated, the less likely it is that the offer to the members is pursuant to a program.
Blackwell, 152 F.3d at 670. Though no court has found a definition for “group termination
program,” many courts have determined their existence. See, e.g., Blackwell, 152 F.3d at 671
(offer to leave was to an entire class of employees, the branch managers, not to individuals
and the fact that there were only seven of them did not detract from the “programmatic”
nature of the offer); Oberg v. Allied Van Lines, Inc., 11 F.3d 679, 682 (7" Cir.1993) (finding
that “sixty plus employees terminated at one time satisfies OWBPA's definition of a group

5


Minute Order Form (06/97)

Se

United S._es District Court, Northern Dist j of Ilinois

Namie of Assigned Judge Marvin Aspen Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 00 C 8023 DATE 8/9/2001
CASE Frank Grizzaffi,Jr. vs. DSC Logistics
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(eo) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due. :
(4) o Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) Qo Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) OGeneral Rule21 CFRCP41(a\(1) CI FRCP4i(a)(2).
ao) (Other docket entry] Enter Memorandum Opinion and Order: Because no group termination
program existed, DSC was not required to abide by the additional requirements of section 626(h)(1)(H).
DSC did comply with the requirements of sections 626(h)(1)(A)-(G), thereby making plaintiffs waiver
knowing and voluntary. Because his waiver was knowing and voluntary, making his release agreement
valid, he is barred from bringing a claim against DSC under the ADEA. We therefore grant DSC’s motion
for summary judgment (12-1). The status hearing set for 8/31/01 is stricken.
(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
v Notices mailed by judge’s staff. ue 1 Oe.
Notified counsel by telephone, ES ate docketed
Docketing to mail notices. ce) a
J | Mail A0 450 form. : dockeing deputy nis
Copy to judge/magistrate judge. _
7972001
courtroom Gl AUG 13 Abt 9: | 5 date mailed notice
GL deputy’s ou
initials
Date/time received in
central Clerk’s Office ‘mailing deputy initials



Nea WS

* termination"); Suhy v. AlliedSignal, 44 F.Supp.2d 432, 435 (D.Conn.1999) (finding

subsections '(F){ii) and '(H) applicable to termination of forty employees in connection with
reduction in force); Butcher v. Gerber Prods. Co., 8 F.Supp.2d 307, 315 (S.D.N.Y.1998)
(finding no dispute that mass discharge {over 300 employees) on one day "constitutes an
‘employee termination program’ under the OWBPA"); Burch v. Fluor Corp., 867 F.Supp. 873
(E.D.Mo.1994) (finding term applicable to termination of four employees constituting
twenty-five percent reduction in force).

Plaintiff was not terminated as part of a large scale reduction in force as occurred in
many of the cases cited above. Rather, he was terminated because of a specific business
occurrence - the loss of the NALS and Pillsbury accounts. The reduction in force - if it was one
- was at the most a reduction of two employees. Even though we have found no cases finding
a termination program existed when just two employees were fired, that does not mean that
such a scenario is not possible. However, plaintiff has failed to present any facts to indicate
that such a situation existed in the present case. DSC indicates that Restrepo’s position was
eliminated on December 1, 1999, immediately after the loss of the NALS account, and that
plaintiff’s job was not eliminated until March 10, 2000, after the loss of the Pillsbury account.
Plaintiff does not dispute this fact. Individuals terminated at different times for different
reasons can hardly be considered part of a group. More importantly, a group requires at least
two people, and it is therefore impossible, by definition, for us to find that a group termination
program existed when plaintiff was the only employee terminated at the time.

CONCLUSION

Because no group termination program existed, DSC was not required to abide by the
additional requirements of section 626(f)(1)(H}. DSC did comply with the requirements of
sections 626(f)(1)(A)-(G), thereby making plaintiff's waiver knowing and voluntary. Because
his waiver was knowing and voluntary, making his release agreement valid, he is barred from

6


Ww

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FRANK GRIZZAFFI, JR.,
Plaintiff,
ve No. 00 c 8023

DSC LOGISTICS,

Defendant.

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, Chief Judge:

Plaintiff Frank Grizzaffi, brought a complaint against defendant DSC Logistics (“DSC”)
pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §621 et. seq. (“ADEA”). He
alleges one count of age discrimination and one count of retaliation, based on his termination and
the failure of DSC to rehire him months later. DSC moves pursuant to Federal Rule of Civil
Procedure 56 for summary judgment. As explained below, we grant the motion.

BACKGROUND

The following facts are undisputed. Plaintiff was an employee of DSC from September 25,
1984 untii March 10, 2000, when he was terminated. Plaintiff was 56 years old when he was
discharged. DSC is a third-party logistics provider and it’s customers include long-term “public
accounts.” It’s Melrose Park facility, where plaintiff was employed, consisted of five separate
warehouse buildings, known as Buildings 1 through 5. At the time of his discharge, plaintiff was
employed as a warehouse supervisor, working on two accounts, North American Logistics
(“NALS”) and Pillsbury. The NALS account occupied most of Buildings 1 and 2 (sometimes

referred collectively to as Building 1) and utilized its own inventory contro! system called FSG

Z&


SY WY
"(finished goods system). In the fall of 1999, DSC lost the NALS account and subsequently,
Building 1 became almost empty. DSC kept three of the warehouse supervisors - plaintiff, Gerald
Williams and Bruno Sowinski - to work on the remaining small public accounts.

In early 2000, DSC learned that it would be losing another large account - Pillsbury. DSC
then decided it would not renew its lease on Building 1. DSC consolidated the public accounts of
Building 1 and management determined that these accounts could be served on two, rather than
three, shifts. DSC then made the decision to keep Bruno Sowinski and Gerald Williams as the two
shift supervisors, and to terminate plaintiff. On or about February 23, 2000, DSC human
resources representatives met with plaintiff to advise him that his position was being eliminated
and that he would be terminated effective March 10, 2000. They explained the need to move
from three shifts to two due to the loss of business. Plaintiff was offered an individually tailored
separation package, along with a release agreement and was advised to consult an attorney.
Plaintiff signed the release, which provided that he would receive severance in the amount of
$9,693.97, vacation pay for unused vacation, and any wages accrued prior to his termination
date. It also provided that he was waiving any cause of action under the ADEA and that he had
not been discriminated against on the basis of age.

DISCUSSION

Summary judgment is proper only when the record shows that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, we must evaluate the
admissible evidence in the light most favorable to the nonmoving party. Popovits v. Circuit City
Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). The party opposing the motion for summary
judgment must affirmatively demonstrate that there is a genuine issue of material fact that requires
trial. Fed. R. Civ. P. 56(e); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (1994). A
genuine issue for trial exists when “the evidence is such that a reasonable jury could return a

2