United States District Court, D. Columbia.
[Copyrighted Material Omitted]
STEVEN NEWMAN, Plaintiff: Joseph Kaplan, LEAD ATTORNEY, Adria
Sara Zeldin, PASSMAN & KAPLAN, P.C., Washington, DC.
DISTRICT OF COLUMBIA, Defendant: Shana Lyn Frost, LEAD
ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF
COLUMBIA, Public Interest Division, Washington, DC.
OPINION AND ORDER
D. MOSS, United States District Judge.
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
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
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
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. § §
Factual and Procedural Background
purposes of resolving the pending motions, the following
facts are undisputed, except as expressly
noted. 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
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
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
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.
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.
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.
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
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 ...