JAMES H. RUEHL v. VIACOM, INC., successor by merger to CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION

This is an interlocutory appeal from the District Court's
denial of Viacom's summary judgment motion. Viacom seeks to
have James Ruehl's complaint under the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.,
dismissed for failure to timely exhaust administrative remedies
before the Equal Employment Opportunity Commission ("EEOC").
The District Court denied summary judgment after concluding that
Ruehl's failure to exhaust was saved by equitable tolling or, in the
alternative, excused by application of the "single filing rule." For
the reasons that follow, we disagree with both rulings. We will
reverse the judgment of the District Court and remand for entry of
judgment in favor of Viacom.

I. Background

Ruehl had worked for Viacom for twenty-four years, when,
in March 1997, he was transferred from his position as director of
accounting in the Energy Systems Business Unit to the tax
department.1 (App. at 293, 427.) In "late 1997 or early 1998,"
Ruehl attended a meeting at which his supervisors informed him
that the tax department was being eliminated.2 (App. at 291.)
According to Ruehl, "[t]hey just informed me . . . that I was part of
the transition team and that my job would be eliminated on August 31, 1998." (Id.) Approximately seven months later, on July 2,
1998, Ruehl received "[o]fficial notification" that his employment
would be terminated, and that his last day would be August 31,
1998. (App. at 301.)

On his last day, Ruehl signed a "Separation Agreement,
General Release And Promise Not to Sue" (the "Release"), which
included a waiver of the right to sue for age discrimination under
the ADEA. (App. at 146-47.) Ruehl testified that during the
summer of 1998, before he signed the Release, he began to suspect
that his age may have played a role in Viacom's decision to
terminate him. (App. at 295.) Other terminated employees shared
his suspicion and, on December 21, 1998, two former Viacom
employees, Norman Mueller and Harry Bellas, filed EEOC
charges, alleging that they were terminated as part of a "pattern and
scheme of systematic discrimination against older workers." (App.
at 151-54.)

In August 1999, Mueller and Bellas filed a collective action
under the ADEA, in the Western District of Pennsylvania (the
"Mueller-Bellas action"). The ADEA incorporates the collective
action provisions of the Fair Labor Standards Act ("FLSA"), 29
U.S.C. § 216(b).3 See 29 U.S.C. § 626(b) (incorporating § 216(b)).
Unlike class actions governed by Rule 23 of the Federal Rules of
Civil Procedure, in which potential class members may "opt out,"
collective actions under the FLSA require potential class members
to notify the court of their desire to "opt in" to the action. See 29
U.S.C. § 216(b) ("No employee shall be a party plaintiff to any
such action unless he gives his consent in writing to become such
a party and such consent is filed in the court in which such action is brought.").4

On March 14, 2001, the district court conditionally certified
two sub-classes of plaintiffs in the Mueller-Bellas action.5 (See App. at 191-92.) Ruehl opted in to both subclasses on March 28,
2001. (See App. at 173.) Viacom moved for decertification of the
subclasses on May 13, 2002 arguing, among other things, that
neither group of plaintiffs was "similarly situated" (as required for
a collective action under the FLSA or ADEA) "because they have
disparate factual and employment settings, there are substantial
conflicts among members of each subclass, and there are numerous
individualized defenses to their claims." (App. at 193.) On
December 9, 2002, the district court granted Viacom's motion,
decertified both subclasses, and dismissed the action in its entirety.
(See App. at 258.) On March 20, 2003, the opt-in plaintiffs,
including Ruehl, were notified of the decertification. (See App. at
273; Ruehl Br. at 5.)

Nearly six months later, on October 14, 2003, Ruehl filed
his first, independent charge of age discrimination with the EEOC.
(App. at 275; Ruehl Br. at 5.) About four months later, on January
20, 2004, he commenced this action under the ADEA in the
Western District of Pennsylvania. (App. at 280-83; Ruehl Br. at 5.)
On August 12, 2004, after limited discovery on whether Ruehl's
waiver of ADEA claims was valid, Viacom filed a motion for
summary judgment, arguing that Ruehl's EEOC charge and his
district court complaint were both untimely. On November 18,
2004, the Court denied the motion, holding that despite the facial
untimeliness of Ruehl's EEOC charge under the ADEA, his claim
could be saved by either the "single filing rule," which would allow
him to rely on the filing date of Mueller's timely EEOC charge, or
by equitable tolling based on alleged defects in the Release Ruehl
signed on his last day at Viacom.

On March 9, 2005, the District Court certified its order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b), finding
"substantial grounds for a difference of opinion exist as to both
controlling issues of law," resolution of which "would materially
advance the termination of this litigation" and "three related cases involving 67 plaintiffs." (App. at 22-23.) On January 31, 2006, we
granted Viacom's petition for interlocutory review. (App. at 65.)
This appeal followed.6

II. Validity of Release of ADEA Claims

As a threshold matter, we will consider the validity of
Ruehl's waiver of ADEA claims, which forms the basis of his
equitable tolling argument. We agree with the District Court that
the Release Ruehl signed violates the Older Workers Benefit
Protection Act ("OWBPA"), 29 U.S.C. § 626. The OWBPA
imposes specific requirements for releases covering ADEA claims.
In particular, § 626(f)(1)(F) of OWBPA provides that a waiver of
claims is not knowing and voluntary unless, at a minimum, "(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." Id. In the latter situation, the employer must

inform[] 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. at § 626(f)(1)(H).7

In signing the Release, Ruehl affirmed that he was
informed, in writing, by Viacom, about

(i) any class, unit or group of individuals covered by
the Involuntary Separation Program, any eligibility
factors for the Involuntary Separation Program, and
any time limits applicable; and (ii) the job titles and
ages of all individuals eligible or selected for the
Involuntary Separation Program, and the ages of all
individuals in the same job classification or
organizational unit who are not eligible or selected
for the program.

(App. at 147-48.) This language, drafted by Viacom, tracks the
language of the OWBPA. It is undisputed, however, that Viacom
failed to actually provide Ruehl with the required information.

Nonetheless, Viacom argues that the Release complies with
the OWBPA because Viacom would have made the information
available to Ruehl had he requested it. Ruehl responds that he did
not request the information, but signed the waiver saying he did,
because he was afraid that any request or modification of the Release would delay his receipt of pension benefits. He argues that
the Release is invalid under the plain language of § 626(f)(1)(H)
because that provision places the burden on the employer to ensure
that waivers are knowing and voluntary. Ruehl is correct.

The OWBPA places the burden on employers seeking
releases to "inform[] the individual in writing" of the demographic
information listed in § 626(f)(1)(H). Viacom never provided Ruehl
the information, and the Release does not mention Ruehl's right to
receive it, nor does it mention that the information was available
upon request or how one might obtain the information. Ruehl's
waiver was therefore not knowing and voluntary under the
OWBPA. Having the employee say he was informed in
writing - when he was not - does not satisfy the OWBPA's
requirements.

Our strict construction of the OWBPA's disclosure
requirement follows the direction of the Supreme Court in Oubre
v. Energy Operations, Inc., 522 U.S. 422 (1998):

The policy of the OWBPA is . . . to protect the rights
and benefits of older workers. The OWBPA
implements Congress' policy via a strict, unqualified
statutory stricture on waivers, and we are bound to
take Congress at its word. Congress imposed
specific duties on employers who seek releases of
certain claims created by statute. Congress
delineated these duties with precision and without
qualification . . . . Courts cannot with ease presume
ratification of that which Congress forbids.

. . .

The statute creates a series of prerequisites for
knowing and voluntary waivers and imposes
affirmative duties of disclosure and waiting periods.
The OWBPA governs the effect under federal law of
waivers or releases on ADEA claims and
incorporates no exceptions or qualifications.

Id. at 427 (emphasis added).

Consistent with Oubre, several Courts of Appeals have
required strict compliance with the OWBPA's disclosure
requirements. See Kruchowski v. Weyerhaeuser Co., 446 F.3d
1090, 1095 (10th Cir. 2006) (holding waiver invalid because
employer defined "decisional unit" too broadly and "terminated
employees [must] be informed of the ‘decisional unit' at the time
they consider whether to waive any ADEA claims."); Adams v.
Ameritech Servs., Inc., 231 F.3d 414, 431 (7th Cir. 2000) (holding
that "salary grade" instead of "job titles" is too general to furnish
the kind of information the statute contemplates; and stating that
"[a]s a form of worker protection legislation, the OWBPA demands
information that allows people to ascertain whether they are being
treated fairly vis-a-vis their peers."); Tung v. Texaco Inc., 150 F.3d
206, 209 (2d Cir. 1998) (holding release invalid where
demographic information was given to employee on the day he
signed the release, not 45 days before, in accordance the OWBPA).

Viacom argues that if we invalidate Ruehl's waiver,
employers will be forced to attach voluminous amounts of
unwanted material to every release. This, Viacom contends, would
unduly burden both the employer and the employee.8 But we are not suggesting that Viacom was required to include boxes of paper
with each and every waiver. We hold only that Ruehl's waiver was
invalid because Viacom neither attached the required information
to the Release nor adequately informed him of the relevant
information, or how to get it, in any writing at all.

III. Timeliness of EEOC Charge

Ruehl did not file an EEOC charge until October 14, 2003.
That was 2135 days from the first adverse employment
action - over five years late. Generally, a judicial complaint under
the ADEA will be dismissed for failure to exhaust administrative
remedies if a supporting EEOC charge was not filed within 180 or
300 days (depending on state law) of notification to the employee
of the adverse employment action.9 "Like Title VII, ADEA has deferral provisions and the time for filing a charge depends on
whether deferral applies. In deferral states, such as Pennsylvania,
the charge must be filed within 300 days of the allegedly illegal
act."10 Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56, 63
(3d Cir. 1985). Thus, Ruehl had 300 days from December 10,
1997, the day he was notified his job would be eliminated, to file
an EEOC charge. See Watson v. Eastman Kodak Co., 235 F.3d
851, 852-53 (3d Cir. 2000) ("[A]n adverse employment action
occurs, and the statute of limitations therefore begins to run, at the time the employee receives notice of that action and termination is
a delayed but inevitable result.").

Absent an applicable saving doctrine, Ruehl's EEOC charge
was untimely, and his case must be dismissed.11 The District Court
held, however, that Ruehl's claim was saved by the doctrine of
equitable tolling or, in the alternative, the single filing rule. For the
reasons that follow, we conclude that neither doctrine applies.

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