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Newman v. District of Columbia Courts

United States District Court, D. Columbia.

August 26, 2015

STEVEN NEWMAN, Plaintiff,
v.
DISTRICT OF COLUMBIA COURTS AND THE DISTRICT OF COLUMBIA, Defendants

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[Copyrighted Material Omitted]

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          For STEVEN NEWMAN, Plaintiff: Joseph Kaplan, LEAD ATTORNEY, Adria Sara Zeldin, PASSMAN & KAPLAN, P.C., Washington, DC.

         For DISTRICT OF COLUMBIA, Defendant: Shana Lyn Frost, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.

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         MEMORANDUM OPINION AND ORDER

         RANDOLPH D. MOSS, United States District Judge.

         Plaintiff Steven Newman, a former employee of the District of Columbia Courts (" D.C. Courts" ), claims that Defendants D.C. Courts and the District of Columbia unlawfully discriminated against him in violation of the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § § 621 et seq., and the Older Workers Benefit Protection Act of 1990 (" OWBPA" ), id. See Dkt. 1. Plaintiff alleges that Defendants subjected him to an unjustified performance improvement plan and that they compelled him, on pain of termination, to sign a settlement agreement that provided for his temporary reassignment and eventual termination. Plaintiff seeks, inter alia, declaratory and injunctive relief, compensatory and punitive damages, and reinstatement to his former position. See Dkt. 1 ¶ 23.

         The matter is now before the Court on Defendants' motion to dismiss or for summary judgment (Dkt. 10) and Plaintiff's cross-motion for partial summary judgment (Dkt. 16). For the reasons set forth below, the Court GRANTS in part Defendants' motion to dismiss, dismisses the complaint as to Defendant D.C. Courts, and dismisses Plaintiff's claim based on the performance improvement plan as untimely. In all other respects, Defendants' motion to dismiss or for summary judgment is DENIED. The Court DENIES Plaintiff's cross-motion for partial summary judgment, and dismisses Plaintiff's claim for declaratory relief for lack of jurisdiction.

         I. BACKGROUND

         A. Statutory Background

         The ADEA prohibits employers from taking adverse actions against an employee (who is at least 40 years old) on the basis of the employee's age. See 29 U.S.C. § § 621 et seq. In 1990, Congress enacted the OWBPA, which, among other things, amended certain provisions of the ADEA

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to establish more stringent requirements for agreements waiving employee rights. See Pub. L. No. 101-433, 104 Stat. 978; see also Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426-27, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998). The OWBPA provides that " [a]n individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary." 29 U.S.C. § 626(f)(1). It further provides that " a waiver may not be considered knowing and voluntary unless" certain criteria are satisfied. The waiver, for example, must be written in a manner that can be understood by the average individual and does not waive future claims; the employee must be advised to consult with an attorney; the employee must be given at least 21 days to consider the agreement; and the employee must be given at least 7 days to revoke the agreement after its execution. See id. § § 626(f)(1)(A)-(G).

         B. Factual and Procedural Background

         For purposes of resolving the pending motions, the following facts are undisputed, except as expressly noted.[1] Plaintiff is in his mid-60s and worked for the D.C. Courts for 25 years, until his employment ended in 2013. See Dkt. 1 ¶ 10; Dkt. 10 at 17 ¶ 1. Over the years, his employment evaluations were consistently average or above average. See Dkt. 1 ¶ 10. Indeed, as late as 2011, Plaintiff received an " Exceeds Expectations," which was the second highest rating, on his employment evaluation. See Dkt. 1 ¶ 10; Dkt. 10 at 17 ¶ 3. He alleges, however, that in late June 2011 his supervisor, Dana Friend, told him, " You're not doing anything. For the same money you're being paid, I could get two lower level positions with younger people." See Dkt. 1 ¶ 11. Mr. Friend denies making this assertion. See Dkt. 19-3 ¶ 11 (Declaration of Dana Friend).

         There is no dispute, however, that shortly after Mr. Friend allegedly made this statement he put Plaintiff on a performance improvement plan. See Dkt. 1 ¶ 11; Dkt. 10 at 18 ¶ 5; Dkt. 19-3 at 1. Under the plan, Plaintiff was given a specific assignment--to write a manual containing job descriptions for the employees at the D.C. Courts. See Dkt. 1 ¶ 11. Unfortunately, Mr. Friend concluded that Plaintiff failed to complete this assignment in a timely manner and that his work was " totally unacceptable." See Dkt. 1 ¶ 11; see also Dkt. 15-6; Dkt. 19-3. Plaintiff contends that Mr. Friend never set a deadline to complete the project and that he never explained why Plaintiff's work was unacceptable. See Dkt. 1 ¶ 11. In Plaintiff's view, the performance improvement plan " was a pretext in an effort by Defendant [D.C. Courts] to falsely create something negative about" him. Dkt. 1 ¶ 11.

         Although the parties disagree about how they got to this point, by mid-October 2011, the D.C. Courts' Director of Human Resources and the D.C. Courts' attorney met with Plaintiff and presented him with a document entitled " Settle Agreement and Release" (" Agreement" ). See Dkt. 1 ¶ 12; Dkt. 10-1. Under the Agreement, the D.C. Courts agreed " to approve [Plaintiff's] temporary assignment to the United

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States Marshal[s] Service pursuant to the Intergovernmental Personnel Act of 1970 for a period beginning on October 22, 2011 and not to exceed two years ending on October 25, 2013." Dkt. 10-1 ¶ 1. The D.C. Courts agreed to continue to pay for Plaintiff's salary and benefits during this time at the same rate he was paid while at the D.C. Courts. See id. In return, Plaintiff agreed that " upon his return at any time from his assignment to the United States Marshal[s] Service" he would " separate from the Court within thirty days." Dkt. 10-1 ¶ 2. He also agreed to a general release of claims against the D.C. Courts relating to " the employer-employee relationship" and " the circumstances of [his] resignation," and to a waiver and release of " any private rights that he may have under the [ADEA]." See Dkt. 10-1 ¶ ¶ 3, 4. The Agreement noted that " Employee is specifically advised that he has five (5) work days to consider the terms of this Agreement before signing it and is encouraged to avail himself of this period of time." Dkt. 10-1 ¶ 4. He was also " advised that he may revoke th[e] Agreement within two days following the date of his signing th[e] Agreement." Id. On October 20, 2011, Plaintiff signed the Agreement. See Dkt. 15 at 5 ¶ 11; Dkt. 19 at 2-3 ¶ 11.

         On October 22, 2011, Plaintiff began work at the Marshals Service in Crystal City, Virginia. See Dkt. 1 ¶ 12; Dkt. 15 at 6 ¶ 15; Dkt. 19 at 3 ¶ 15. On or about August 10, 2012, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (" EEOC" or " Commission" ) relating to his employment at the D.C. Courts. See Dkt. 1 ¶ 15; Dkt. 15 at 6 ¶ 21; Dkt. 19 at 4 ¶ 21; Dkt. 15-2 at 2-3. In his EEOC complaint, Plaintiff raised his allegations about Mr. Friend's alleged discriminatory statement and the D.C. Courts' purportedly pretextual performance improvement plan. See Dkt. 15-2 at 2-3. He also alleged that he had been " forced to sign" the Agreement and that he subsequently learned that the Agreement was " illegal and void from the outset" because it violated the OWBPA by, for example, failing to provide him with the required period of " at least 21 days to consider" the Agreement prior to signing and a 7-day window to withdraw from the Agreement after its execution. See Dkt. 15-2 at 3. More generally, he alleged that the Agreement " was part of an overall scheme to terminate [his] employment from the D.C. Courts." See id.

         The EEOC concluded that the Agreement failed to comply with the protections afforded older workers under the OWBPA. See Dkt. 10-3 at 1. In particular, Plaintiff was not provided " the right to consider the [A]greement for a period of twenty-one (21) days, and the right to revoke the [A]greement for a period of seven (7) days" after its execution. Id. In addition, the EEOC concluded that the Agreement included a waiver of future claims " which is overly broad." Id. Turning to Plaintiff's substantive claims of discrimination, the EEOC concluded that Plaintiff's challenge to his performance evaluation and performance improvement plan was not timely presented to the Commission. Id. at 2. And, with respect to Plaintiff's " allegations that [the D.C. Courts] violated the ADEA when [it] reassigned [Plaintiff] and gave him a settlement agreement to sign," the Commission concluded that, although it was not " certify[ing] that [the D.C. Courts] is in compliance with the ADEA," " there is insufficient evidence to establish a violation as to these allegations." Id. at 2.

         In April 2013, Plaintiff's assignment with the Marshals Service ended and he returned to the D.C. Courts. See Dkt. 15 at 6 ¶ 16; Dkt. 19 at 7 ¶ 7. Upon his return, the D.C. Courts sent Plaintiff a letter reminding him that he had " agreed to separate

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from the Courts within thirty days of [his] return from the" Marshals Service. See Dkt. 10-2. He was further informed that, if he did not comply with this agreement, the D.C. Courts would seek " termination of [his] employment for cause." Id. Subsequently, Mr. Friend sent a memorandum to Plaintiff containing Mr. Friend's " recommendation for termination." See Dkt. 15-6 at 1. The memorandum explained that the recommendation was based on the prior performance improvement plan, and, in particular, on Plaintiff's failure to complete the June 2011 assignment in a timely and satisfactory manner. Id. Mr. Friend further explained that, as a result, Plaintiff had been advised in September 2011 that his " rating was . . . deemed to have been unsatisfactory for the rating period that was scheduled to end September 30, 2011" and that Mr. Friend " was compiling a recommendation that [Plaintiff] be terminated from [his] employment with the District of Columbia Courts." Id. at 1-2. According to Mr. Friend, this " recommendation for termination was held in abeyance pending [Plaintiff's] following the agreed upon terms of the [Agreement]." Id. Finally, the memorandum explained that " since [Plaintiff has] elected not to ...


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