United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1538

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Dale J. Thomforde,

Appellant,

v.

International Business Machines

Corporation,

Appellee.

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Appeal from the United States

District Court for the

District of Minnesota.

 [PUBLISHED]

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Submitted: January 11, 2005

 Filed: May 3, 2005

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Before SMITH, FAGG, and HANSEN, Circuit Judges. 

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HANSEN, Circuit Judge.

Dale Thomforde appeals the district court’s grant of summary judgment to

International Business Machines Corporation (IBM) on Thomforde’s discrimination

claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-

634 (2000). Because the release of claims signed by Thomforde as part of IBM’s

involuntary termination program did not satisfy the statutory waiver requirements of

the Older Workers Benefits Protection Act (OWBPA), 29 U.S.C. § 626(f) (2000), we

reverse.
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I.

Thomforde worked for IBM as an engineer from 1973 to 2001. In 2001, as part

of a reduction in force, IBM implemented the Server Group Resource Action

(SGRA), an involuntary termination program. In July 2001, Thomforde was notified

that he had been selected for termination, and IBM provided him with a document

titled General Release and Covenant Not to Sue (Agreement). The document began

by referring to “this General Release and Covenant Not to Sue (hereinafter

‘Release’)” and contained the following relevant language:

In exchange for the sums and benefits received pursuant to the terms of

the [SGRA], DALE J. THOMFORDE (hereinafter “you”) agrees to

release and hereby does release [IBM] . . . from all claims, demands,

actions or liabilities you may have against IBM of whatever kind

including, but not limited to, those that are related to your employment

with IBM, the termination of that employment, or other severance

payments or your eligibility for participation in the Retirement Bridge

Leave of Absence, or claims for attorneys’ fees.

. . . .

. . . You also agree that this Release covers, but is not limited to, claims

arising from the [ADEA], as amended, . . . and any other federal, state

or local law dealing with discrimination in employment including, but

not limited to, discrimination based on sex, sexual orientation, race,

national origin, religion, disability, veteran status, or age.

. . . .

You agree that you will never institute a claim of any kind against IBM

. . . including, but not limited to, claims related to your employment with

IBM or the termination of that employment or other severance payments

or your eligibility for participation in the Retirement Bridge Leave of

Absence. If you violate this covenant not to sue by suing IBM . . ., you

agree that you will pay all costs and expenses of defending against the
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suit incurred by IBM . . ., including reasonable attorneys’ fees, and all

further costs and fees, including attorneys’ fees, incurred in connection

with collection. This covenant not to sue does not apply to actions

based solely under the [ADEA], as amended. That means that if you

were to sue IBM . . . only under the [ADEA], as amended, you would

not be liable under the terms of this Release for their attorneys’ fees and

other costs and expenses of defending against the suit. This Release

does not preclude filing a charge with the U.S. Equal Employment

Opportunity Commission.

(Appellant’s Add. at 4-5.)

Prior to signing the Agreement, Thomforde asked his supervisor, Andrew

Schram, if the exception for ADEA claims contained in the covenant not to sue meant

that he could sue IBM if the case was limited to claims under the ADEA. Schram

told Thomforde that he would contact IBM’s legal department. Schram later sent

Thomforde an e-mail stating “Regarding your question on the General Release and

Covenant Not to Sue, the wording is as intended by IBM. The site attorney was not

comfortable providing an interpretation for you and suggested you consult with your

own attorney.” (Appellant’s App. at 100.) After meeting with his attorney to review

the Agreement, Thomforde concluded that he could sign the Agreement and still

pursue his claims of age discrimination as long as they were limited to ADEA claims.

IBM terminated Thomforde on August 24, 2001, and Thomforde signed the

Agreement on September 6, 2001. He simultaneously gave Schram a letter addressed

to IBM’s counsel complaining about his reduced retirement benefits and making a

second request for a one-year Retirement Bridge Leave of Absence, which had

previously been denied. In the letter, Thomforde stated that he found “no other

alternative but to pursue various legal channels under the anti-age discrimination

statutes.” (Id. at 7.) He also stated that he would “be filing a complaint with the

EEOC, following up with other possible legal action, as allowed under the General

Release and Covenant Agreement.” Id. 
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In November, Thomforde filed charges with the EEOC, which IBM sought to

have dismissed based on the waiver in the Agreement. The EEOC issued a Notice of

Right to Sue in October 2002, and Thomforde filed the instant suit. IBM moved for

summary judgment, arguing that Thomforde, by signing the Agreement and accepting

benefits, had released all of his claims against IBM; that Thomforde knowingly and

voluntarily signed the Agreement; that the waiver conformed to the specifications of

the OWBPA; and that the Agreement was not ambiguous. IBM claimed that the

covenant not to sue was an entirely different provision from the release provisions,

and each provision performed different functions. According to IBM, the covenant

not to sue did not “undo” his release of the ADEA claims, but merely exempted

Thomforde from liability for attorneys’ fees associated with defending a suit.

In response, Thomforde argued that he did not knowingly and voluntarily

waive his ADEA rights because (1) the Agreement expressly preserved Thomforde’s

right to file an action solely under the ADEA; (2) the waiver did not conform to the

OWBPA requirement that it be written in a manner calculated to be understood by an

individual signing the agreement; (3) under a “totality of the circumstances” approach

determining whether the waiver was knowing and voluntary, the evidence showed

that Thomforde did not understand that he was surrendering his rights under the

ADEA by signing the agreement; and (4) even under state contract principles, the

agreement was ambiguous on its face. The district court granted IBM’s motion for

summary judgment. It found that Thomforde clearly waived any potential claims

against IBM by signing the Agreement. The court also found that the waiver signed

by Thomforde fully conformed with the OWBPA requirements, and, rejecting a

“totality of the circumstances” approach, determined that the waiver was

unambiguous, and therefore enforceable. Thomforde appeals.
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II.

We review de novo the district court’s grant of summary judgment. Evers v.

Alliant Techsys., Inc., 241 F.3d 948, 953 (8th Cir. 2001). Summary judgment is

appropriate where the evidence, viewed in the light most favorable to Thomforde as

the non-moving party, shows no genuine issue of material fact and that IBM is

entitled to judgment as a matter of law. Id. We review the district court’s statutory

interpretation of the OWBPA de novo. Ellison v. Premier Salons Int’l, Inc., 164 F.3d

1111, 1113 (8th Cir. 1999). 

Enacted in 1990, the OWBPA amended the ADEA by providing that “[a]n

individual may not waive any right or claim under [the ADEA] unless the waiver is

knowing and voluntary. . . . [A] waiver may not be considered knowing and voluntary

unless at a minimum” the waiver satisfies a number of requirements, one of which is

that “the waiver is part of an agreement between an 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.” 29 U.S.C. § 626(f)(1)(A) (emphasis

added). The statutory requirements for waiver of ADEA claims are strict and

unqualified; if an employer fails to meet any of the statutory requirements, the waiver

is ineffective as a matter of law. See Oubre v. Entergy Operations, Inc., 522 U.S.

422, 427 (1998). Thus, if the Agreement at issue here was not “written in a manner

calculated to be understood by such individual, or by the average individual eligible

to participate,” then Thomforde did not release his rights under the ADEA. 

The waiver language in the Agreement clearly states that Thomforde, in

exchange for the amount determined under the SGRA, released IBM from all claims

of any kind, including claims under the ADEA. Three paragraphs later, the

Agreement then states that “[y]ou agree that you will never institute a claim of any

kind against IBM . . . including, but not limited to, claims related to your employment

with IBM.” (Appellant’s Add. at 5.) The paragraph continues by stating that “[t]his
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covenant not to sue does not apply to actions based solely under the [ADEA].” (Id.)

Thus, one plausible reading of the document reveals that the employee releases IBM

from all ADEA claims and agrees not to institute a claim of any kind against IBM,

except the employee may bring an action based solely under the ADEA. Without a

clear understanding of the legal differences between a release and a covenant not to

sue, these provisions would seem to be contradictory; how can an employee bring a

suit solely under the ADEA if the employee has waived all claims under the ADEA?

IBM argues that the release and the covenant not to sue were totally separate

and distinct provisions of the Agreement. A release of claims and a covenant not to

sue serve different purposes. See Black’s Law Dictionary 438 (rev. 4th ed. 1968)

(defining “covenant not to sue” as “[a] covenant by one who had a right of action at

the time of making it against another person, by which he agrees not to sue to enforce

such right of action”); id. at 1453 (defining “release” as “[t]he relinquishment,

concession, or giving up of a right, claim, or privilege, by the person in whom it

exists . . . to the person against whom it might have been demanded or enforced”).

Despite their distinct purposes, the differences between a release and a covenant not

to sue are fairly amorphous and may not be readily apparent to a lay reader. The

intended effect of the Agreement was to release the employee’s substantive claims

under the ADEA, while preserving the employee’s right to challenge the validity of

the release through a lawsuit, as provided by the regulations. See 29 C.F.R. §

1625.23(b) (precluding any waiver provisions that penalize a party for challenging

the validity of a waiver). Yet, the Agreement does not explain how the provisions

relate to each other or the limited nature of the exception to the covenant not to sue

in light of the release of claims. Once IBM chose to use the legal terms of art in the

Agreement, IBM had a duty to carefully explain the provisions. See 29 C.F.R. §

1625.22(b)(3) (“Waiver agreements must be drafted in plain language . . . [and]

usually will require the limitation or elimination of technical jargon . . . .”).
1

IBM directs us to an unpublished district court opinion construing a similar

IBM waiver agreement, which found that the waiver agreement satisfied the statutory

requirements. See Syverson v. Int’l Bus. Machs. Corp., No. 03-CV-04529 (N.D. Cal.

May 4, 2004), appeal docketed, No. 04-16449 (9th Cir. July 26, 2004). The Syverson

court relied on the district court decision in the instant case, and noted that “[t]o the

extent that the language of the waiver requires clarification, the waiver explicitly

advises affected employees to consult an attorney, [or] their manager . . . .”

(Appellee’s App. at 53.) Thomforde attempted to consult his manager, but was told

that the corporate attorney was “not comfortable” providing him with an

interpretation of the Agreement. It seems axiomatic that if an agreement needs

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Not only does the Agreement fail to explain the relationship between the

release and the covenant not to sue, it also uses the terms in such a way as to suggest

that they are interchangeable. The opening line of the Agreement refers to the

General Release and Covenant Not to Sue as “the Release,” indicating that the terms

are interchangeable. There are no headings indicating a change of topic between the

paragraphs. Immediately following the sentence that states that “[t]his covenant not

to sue does not apply to actions based solely under the [ADEA],” the Agreement uses

the term Release to explain the covenant not to sue: “[t]hat means that if you were to

sue IBM . . . only under the [ADEA], you would not be liable under the terms of this

Release for their attorneys’ fees.” (Appellant’s Add. at 5 (emphasis added).) The

paragraph addressing the covenant not to sue continues with a statement that “this

Release” does not prohibit an employee from filing a charge with the EEOC, again

intimating that the terms are interchangeable. 

We can easily see how a participant under this Agreement could construe the

statement that “[t]his covenant not to sue does not apply to actions based solely under

the [ADEA]” as an exception to the general release, not just an exception to the

covenant not to sue. Given the lack of clarity in the Agreement, and IBM’s

declination to tell Thomforde what it meant by the language, we hold that the

Agreement is not written in a manner calculated to be understood by the intended

participants as required by the OWBPA.1

 Cf. Cole v. Gaming Entm’t, L.L.C., 199 F.
clarification, it is not written in a manner calculated to be understood. To rely on the

agreement’s direction to seek legal advice, a separate statutory requirement for a valid

waiver, see § 626(f)(1)(E), for clarification of the waiver would nullify the distinct

requirement that the agreement be written in a manner calculated to be understood by

the participant (as opposed to his attorney). 

2

IBM agreed at oral argument that if we found the waiver deficient under the

statute, we need not decide the proper test to apply to determine whether the waiver

was also knowing and voluntary. Compare Ulvin v. Northwestern Nat’l Life Ins. Co.,

943 F.2d 862, 866 & n.4 (8th Cir. 1991) (applying contract principles to pre-OWBPA

waiver), cert. denied, 502 U.S. 1073 (1992), with Bennett v. Coors Brewing Co., 189

F.3d 1221, 1228-29 (10th Cir. 1999) (holding that even if statutory requirements are

met, courts must inquire into totality of the circumstances to determine if waiver was

knowing and voluntary). We leave that discussion for another day.

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Supp. 2d 208, 214 (D. Del. 2002) (holding language reciting that “[e]mployee

acknowledges that he/she has been advised to consult with an attorney prior to

executing this Agreement” was insufficient to meet statutory requirement that

employer must advise employee in writing to consult an attorney prior to signing the

waiver). As such, the Agreement is ineffective as a matter of law to waive

Thomforde’s rights under the ADEA.2

 See Oubre, 522 U.S. at 427-28. 

III.

 The district court’s summary judgment in favor of IBM is reversed, and the

case is remanded for further proceedings.

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