UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Carol A. Budro,

Plaintiff

v. Civil No. 07-cv-351-SM

Opinion No. 2008 DNH 081

BAE Systems Information

and Electronic Systems

Integration, Inc.,

Defendant

O R D E R

Plaintiff, Carol Budro, alleges that defendant, BAE Systems,

violated the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621 et seq., by denying her employment opportunities

within the company because of her age, and by terminating her

after she complained. Defendant moves for summary judgment on

grounds that plaintiff waived any claims she might have had when

she signed a release and accepted a supplemental severance

package. Plaintiff objects. For the following reasons,

defendant’s motion for summary judgment is granted.

Standard of Review

Summary judgment “should be rendered if the pleadings, the

discovery and disclosure materials on file, and any affidavits

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show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” 

FED. R. CIV. P. 56(c). In reviewing summary judgment, the record

and all reasonable inferences therefrom must be scrutinized in

the light most favorable to the non-moving party. Am. Airlines

v. Cardoza-Rodriguez, 133 F.3d 111, 116 (1st Cir. 1998). The

non-moving party, however, cannot rest on unsworn allegations. 

Id. The non-movant must establish a trialworthy issue of fact by

presenting competent evidence that would enable a jury to find in

its favor. Id.

Background

Plaintiff was employed by defendant from 1972 until she was

laid off on August 4, 2006. She claims that her termination was

actually in retaliation for requesting an alternative dispute

resolution (“ADR”) review of a claim of age discrimination. 

Defendant asserts that plaintiff was laid off, along with 150

other employees, as part of a group workforce reduction plan.

Prior to her termination, plaintiff worked with a team

setting up a test lab. Her primary role involved acquiring

materials and equipment. According to plaintiff, once the test

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lab was complete, her managers told her that there were no

employment opportunities available in the company that required

her skill set. Plaintiff claims that two supervisors

respectively commented “when are you going to retire?” and “at

this point you should retire.” In response, plaintiff contacted

BAE Systems’s Human Resources Department and requested

alternative dispute resolution with regard to a claim of age

discrimination. Plaintiff’s request for an ADR proceeding was

still pending when she was laid off two months later.

On July 31, 2006, the Monday before plaintiff’s termination,

Barbara McGuire, a BAE Systems’s Human Resource Manager,

presented plaintiff with a letter of termination, a document

titled “BAE Systems Special Severance Pay Plan for the 2005

Reorganization” (hereinafter “the Plan”), and a document titled

“General Release of Claims” (hereinafter “the Release”). The

Release offered plaintiff two options:

I can elect to a) receive the basic Severance Benefit

provided under the Plan and retain my right to pursue

whatever claims, if any, I may have against the

Company; OR b) receive the basic Severance Benefit plus

the Supplemental Severance Benefit described in the

Plan, which is greater in value than any severance

benefit to which I am otherwise entitled, and sign this

Release. 

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(Def.’s Mot. Summ. J. (document no. 12), Ex. B, at 1.) The terms

of the Release required plaintiff to waive all claims she might

have against her employer, and it specifically referred to claims

arising under the ADEA. The Release did, however, allow

plaintiff to challenge its validity. Plaintiff had 45 days to

review the Release. She signed it on August 4, 2006, and

returned it to a BAE Systems Human Resources Manager the

following day. Based upon her election and waiver, plaintiff

received $1,937.60 in basic severance pay and $27,126.40 in

supplemental severance pay.

On November 21, 2006, plaintiff filed an age-discrimination

claim with the New Hampshire Commission for Human Rights

(“NHCHR”) and the federal Equal Employment Opportunity Commission

(“EEOC”). The NHCHR denied plaintiff’s claim, specifically

relying upon the signed Release as the reason for its denial. 

The EEOC, in turn, upheld the NHCHR’s denial. Upon receiving the

denial notices, plaintiff promptly filed this suit.

Discussion

Defendant argues that the General Release of Claims form

signed by plaintiff bars this suit for age discrimination under

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the ADEA. The ADEA, as amended by the Older Workers Benefit

Protection Act (“OWBPA”), allows an employee to waive all claims

of age discrimination if a release is “knowing and voluntary.” 

29 U.S.C. § 626(f)(1). Under the statute:

An individual may not waive any right or claim . . .

unless the waiver is knowing and voluntary. [A] waiver

may not be considered knowing and voluntary unless at a

minimum-

(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 with an attorney prior to executing the

agreement;

(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 days within

which to consider the agreement;

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(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, and the

agreement shall not become effective or enforceable

until the revocation period has expired;

(H) 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

(at the commencement of the period specified in

subparagraph (F)) 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 the ages of all individuals in the same job

classification or organizational unit who are not

eligible or selected for the program.

Id. § 626(f)(1). 

The employer maintains the burden to prove that a release

meets each requirement. Id. § 626(f)(3). If one requirement is

missing, the release is void as to all ADEA claims. Oubre v.

Entergy Operations, Inc., 522 U.S. 422, 426-27 (1998). 

Accordingly, to be entitled to summary judgment, defendant must

“demonstrate that there [is] no issue of material fact as to

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whether the [release] complied with each of the section 626(f)

requirements.” Am. Airlines, 133 F.3d at 117.

Plaintiff argues that the Release does not bar her claim for

retaliation. While she does not offer any specifics she does

draw the court’s attention to Faris v. Williams WPC-I, Inc., 332

F.3d 316 (5th Cir. 2003), in support of her argument.

In Faris, the plaintiff claimed that the defendant

retaliated against her for enforcing her rights under the Family

and Medical Leave Act (“FMLA”). The plaintiff argued that the

release she signed upon termination was unenforceable because it

violated federal regulations precluding employees from waiving

substantive rights under the FMLA. The court, agreeing with the

defendants, held that while the plaintiff could not effectively

waive her substantive rights under FMLA, she could waive any

claims she might have for retaliation based upon her exercise of

those rights. Faris, 332 F.3d at 321. Because plaintiff

knowingly executed a release waiving her retaliation claim, her

suit was barred. Id. at 322. To support its reasoning, the

court compared releases under the FMLA to releases under the

ADEA. Because a release of claims brought under the ADEA is

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valid and not in violation of public policy, a release of FMLA

claims was also thought valid. Id. at 321. The decision in

Faris is not helpful to plaintiff.

Plaintiff signed a Release in which she waived all claims

she may have had against defendant, except for claims challenging

the validity of the Release itself. The only question remaining

is whether defendant has carried its burden to show that the

Release satisfied all of the section 626(f) requirements.

Subsection (A). To meet the requirements of subsection (A),

the agreement must be between the individual and the employer and

be “written in a manner calculated to be understood.” 29 U.S.C.

§ 626(f)(1)(A). A release is “written in a manner calculated to

be understood” if it is “drafted in plain language geared to the

level of understanding of the . . . individuals eligible to

participate.” 29 C.F.R. § 1625.22(b)(3). The release should

avoid technical jargon and long, complex sentences. Id. §

1625.22(b)(4).

The Release meets the subsection (A) requirements. It is a

written agreement, between plaintiff and defendant, and defines

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the rights plaintiff waived and the rights plaintiff retained in

clear, straightforward language. It also avoids “technical

jargon” and correctly informed plaintiff of her options. The

“Claims Released” section, for example, states:

Subject only to the exceptions noted in the previous

paragraph [the “Claims not Released” section], I agree

to waive and fully release any and all claims of any

nature whatsoever (known and unknown), promises, causes

of action or similar rights of any type (“Claims”) that

I may now have or have had with respect to any of the

Released Parties listed below. These Claims released

include, but are not limited to, claims either in law

or equity that in any way relate to my employment with

the Company or the termination of that employment

. . . .

(Def.’s Mot. Summ. J., Ex. B, at 1.) The section goes on to list

potential claims arising under anti-discrimination laws including

the ADEA, federal employment laws, such as the Americans with

Disabilities Act, and other federal, state, and local laws. 

Other sections of the Release are similarly worded and convey in

clear terms both the rights plaintiff waived and those she

retained.

While plaintiff does not make a focused argument about

whether the Release meets the “manner calculated” requirement,

she draws the court’s attention to Thomforde v. IBM, 406 F.3d 500

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(8th Cir. 2005), and Syverson v. IBM, 472 F.3d 1072 (9th Cir.

2007). Thomforde and Syverson, however, fail to support her

case. The issue in both Thomforde and Syverson was whether a

release met the “manner calculated” standard. The releases in

those cases included both a “release of claims” section and a

“covenant not to sue” section. In Thomforde, IBM argued that the

two sections were distinct and served difference purposes,

because one section was intended to release the employer from all

ADEA claims while the other section was intended to preserve the

employee’s right to challenge the release’s validity. Id. at

503-04. According to the court, however, “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 that the employee may bring an action based

solely under the ADEA.” Id. at 503. Because employees were not

expected to have a “clear understanding of the legal difference

between a release and a covenant not to sue,” the court held that

the release failed the “manner calculated” standard. Id. at 503-

04. Syverson, decided two years later, heavily relied on

Thomforde and reached the same conclusion.

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The Release in this case differs significantly from the

releases in Thomforde and Syverson because this Release does not

have separate “release” and “covenant” sections. Additionally,

this Release does not confuse an employee’s substantive right

under the ADEA to challenge the validity of the Release with

other causes of action under the ADEA that the employee may

waive. Thus, this Release satisfies the subsection (A)

requirements.

Subsection (B). To satisfy subsection (B), a release must

specifically refer to claims available under the ADEA. In the

“Claims Released” section of the Release, plaintiff waived claims

under “the Age Discrimination in Employment Act, as amended,

including, but not limited to the Older Worker Benefit Protection

Act.” (Def.’s Mot. Summ. J., Ex. B, at 1.) Thus, the Release

satisfies this requirement.

Plaintiff argues, however, that defendant incorrectly

treated her pending ADR proceeding as a “claim” she released

rather than a “benefit” she retained under the terms of the

agreement. Plaintiff is incorrect. In a section titled “Claims

not Released,” the Release provides:

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By this agreement, I am not releasing claims for

benefits I may have under the Company’s other benefit

plans (such as the pension or medical plan), any rights

to benefits under applicable workers’ compensation

statutes or government-provided unemployment benefits,

any claims arising under federal or state securities

laws that I may have as a shareholder of the Company,

or any rights to enforce this Release, or any claims

relating to the validity of this Release under the Age

Discrimination in Employment Act, as amended.

(Id.) The claims plaintiff did not waive are claims for benefits

under defendant’s benefit plans. The Plan documents plaintiff

received with her termination letter notified her that the

benefits she received by signing the Release were in addition to

other “benefits” such as paid time off, COBRA, and 401(k)

contributions. The right to an ADR proceeding with respect to

her retaliation claim was not included in the list of “benefits”

that plaintiff retained. Additionally, because an ADR proceeding

is a method of resolving a claim, as opposed to a benefit,

plaintiff waived the right to an ADR proceeding with respect to

her pending claim when she released defendant from all of her

ADEA claims. Thus, plaintiff did not retain a right to continue

her pursuit of an ADR proceeding after she signed the Release,

since nothing remained to be resolved.

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Subsection (C). To satisfy subsection (C), an employee may

only release an employer from past and present claims. The

“Claims Released” section of the Release only released defendant

from claims “that [plaintiff] may now have or have had.” (Id.) 

Because the Release only released past and present claims and not

future claims, the Release meets the subsection (C) requirement.

Subsection (D). To satisfy subsection (D), an employee must

receive consideration in exchange for releasing the employer from

past and present ADEA claims. The consideration must be in

addition to that which an employee is already entitled to

receive. The Release offered plaintiff two mutually exclusive

choices: (1) decline to sign the Release, receive the basic

severance package, and retain the right to pursue any claims

against defendant, or (2) sign the Release, receive the basic

severance package, and a substantial supplemental severance

package, and release defendant from all past and present claims. 

Plaintiff signed the Release and received $27,126.40 in

supplemental severance pay that she was not otherwise entitled to

receive. Thus, the subsection (D) requirement is satisfied.

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Subsection (E). To satisfy subsection (E), an employee must

be advised, in writing, to consult with an attorney prior to

signing a release. The Release advised plaintiff not once, but

twice, to consult with an attorney prior to signing. The first

sentence “advised [plaintiff] to take this Release of Claims

home, read it, carefully consider and consult with an attorney

prior to signing it.” (Id.) Later in the Release, plaintiff

acknowledged, by signing, that she had been “advised to consult

with an attorney prior to singing this Release.” (Id. at 3.) 

Therefore, the subsection (E) requirement is met.

Subsection (F). To satisfy subsection (F), which applies

because defendant requested the Release in this case in

connection with a group termination plan, an employee must have

been given 45 days to review and consider the Release before

signing. In the first paragraph, the Release notified plaintiff

that it was to be signed and returned to Human Resources by the

45th calendar day from the termination date. Additionally, the

Release later notified plaintiff that she could “take up to 45

days from [her] employment termination date to decide whether to

sign this Release.” (Id.) Therefore, the Release satisfies the

subsection (F) requirement.

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Subsection (G). To satisfy subsection (G), an employee must

have been offered a period of seven days from the date of

execution to revoke a release. The Release twice notified

plaintiff of her right to revoke. By signing the Release,

plaintiff acknowledged that: (1) she understood that she could

“revoke this Release within seven (7) calendar days from the date

of signing,” and (2) she would receive supplemental severance pay

provided that she did not “revoke this Release within the sevenday revocation period.” (Id.) Thus, the subsection (G)

requirement is satisfied.

Subsection (H). To satisfy subsection (H), which applies

because defendant requested the Release in connection with a

group termination plan, defendant had to inform those laid off

about: (1) the group of individuals covered by the plan along

with applicable eligibility factors and time limits; and (2) the

job titles and ages of all individuals selected for the plan

along with the ages of all individuals with the same job title

who were not selected for the plan. Defendant satisfied both of

those requirements. On July 31, 2006, five days before

plaintiff’s termination date, plaintiff received a copy of the

Plan, a letter informing plaintiff of her termination, and the

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General Release of Claims form. The Plan included the

information required by this subsection. It explained the

eligibility factors and time limits for the Plan and listed the

ages of each person selected for the plan along with the ages of

others in the same job title not selected for the plan. Because

plaintiff received the Plan with the General Release of Claims

form, defendant satisfied this requirement.

Conclusion

Plaintiff was offered a release form for execution that met

all of the requirements of 29 U.S.C. § 626(f). Plaintiff’s

execution of that release was knowing and voluntary. Plaintiff

released defendant from all claims she might have had under the

ADEA. Therefore, defendant’s summary judgment motion (document

no. 12) is granted. Because this order disposes of plaintiff’s

case, defendant’s motion to strike (document No. 9) is moot. The

Clerk of Court shall enter judgment in accordance with this order

and close this case.

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

April 16, 2008

cc: Carol A. Budro, pro se

Linda S. Johnson, Esq.

Charla B. Stevens, Esq.

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