Opinion
CASE NO. 2:06-CV-481.
September 10, 2006
ORDER
The complaint in this action, Complaint, Doc. No. 2, presents a claim under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. On June 25, 2007, defendant filed a motion to enforce a written settlement agreement ("The Agreement"). Motion For Order To Enforce The Settlement Agreement, Doc. No. 16. That motion was referred to the undersigned for an evidentiary hearing and report and recommendation. Order, Doc. No. 17. An evidentiary hearing was held on August 29, 2007. Defendant was represented by counsel. Plaintiff proceeded pro se.
At the evidentiary hearing, plaintiff's former counsel testified that, following defendant's deposition and prior to the deposition of plaintiff's treating physician, he approached defense counsel with terms of a proposed settlement. The terms were not negotiable and would remain open for only one week. Within one week, defendant accepted the terms proposed on plaintiff's behalf and it was agreed that defense counsel would prepare the settlement documents. Defense counsel submitted the settlement agreement to plaintiff's counsel. Defendant's Exhibit A ("The Agreement"). Paragraph 6 of The Agreement contains a release of plaintiff's claims against defendant:
[Plaintiff] agrees to completely and irrevocably discharge and release the Company from any and all claims, demands, causes of action and/or liability whatsoever involving any matter arising out of or in any way related, directly or indirectly, to her employment with the Company, her compensation and/or the termination thereof, or with respect to any other transaction, event or occurrence pre-dating the date of this Agreement, whether now known or unknown, including, but not limited to, any claim of breach of contract, wrongful discharge, intentional infliction of emotional distress, retaliation and/or employment discrimination, whether in tort or in contract, and any employment intentional tort or violations of specific safety requirements (V.S.S.R.) or any other claim under present or future federal, state or local statute or law, including, but not limited to, the Ohio Fair Employment Practice Act; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Civil Rights Act of 1991, P.L. 102-166; the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq.; the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq.; the Equal Pay Act, 29 U.S.C. § 206(d); the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq.; the Occupational Safety and Health Act of 1970, 29 U.S.C. § 553, et seq.; the Employee Retirement Income Security Act of 1970, 29 U.S.C. § 1001, et seq.; the Consolidated Omnibus Budget Reconciliation Act of 1986, 29 U.S.C. § 1161, et seq.; Ohio workers' compensation laws; and any statutory amendments.The Agreement, ¶ 6.
In addition, Paragraph 8 of The Agreement contains the following language:
[Plaintiff] Bieber is hereby notified and acknowledges as follows: (a) she has the opportunity to review and consider the terms of this Agreement for a period of twenty-one (21) days, although she may accept the terms of this Agreement at any time prior to the expiration of the twenty-one (21) day period; (b) she understands that she has the right to obtain her own legal counsel regarding her rights, obligations and liabilities hereunder before she signs this Agreement, and is hereby advised by the Company to obtain counsel and hereby acknowledges that her counsel has reviewed this Agreement; (c) Bieber is not waiving any rights she has against the Company that may arise from future occurrences; (d) this Agreement is entered into knowingly and voluntarily by Bieber, and that the benefits and monetary compensation that she will receive under this Agreement are made without any preexisting obligation by the Company and are additional and in excess to any benefit or amount to which Bieber may be entitled; and (e) the terms of this Agreement become legally binding, effective and irrevocable seven (7) days after the date of this Agreement is signed by Bieber, unless within such seven (7) days, Bieber notifies the Company of such revocation.Id., ¶ 8.
Plaintiff never signed The Agreement. Thereafter, plaintiff's counsel sought and was granted leave to withdraw. Motion, Doc. No. 14; Order, Doc. No. 15. Her former counsel testified at the evidentiary hearing that The Agreement accurately reflected the oral terms proposed to defense counsel.
At the evidentiary hearing, plaintiff stated that she construed the language in Paragraph 8, which provides for twenty-one days within which to consider The Agreement, to mean that she was not bound by the terms proposed by her former counsel. Having further considered the matter, she no longer wished to settle the case on those terms.
The language contained in Paragraph 8 of The Agreement appears to address the release of a claim under the Age Discrimination in Employment Act ("ADEA"). See 29 U.S.C. § 626(f)(1). Although the Complaint asserts only a claim under the FMLA, Paragraph 6 of The Agreement includes an extensive list of claims purportedly released by plaintiff as part of the settlement, including claims under both the FMLA and the ADEA. It is not clear to this Court what effect, if any, Paragraph 8 might have on any release of plaintiff's claim under the FMLA.
§ 626(f)(1) provides in relevant part:
(f) Waiver
(1) An individual may not waive any right or claim under this chapter 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;
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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;. . . .
The Court further notes that the United States Court of Appeals for the Fourth Circuit has recently held that 29 C.F.R. § 825.220(d) "bars the prospective and retrospective waiver or release of rights under the FMLA" without prior approval by a court or the Secretary of Labor. Taylor v. Progress Energy, Inc., 493 F.3d 454, 463 (4th Cir. 2007).
Under the circumstances, this Court concludes that additional briefing of these issues is warranted. Defendant is DIRECTED to supplement its motion, addressing these issues, within twenty-one days of the date of this order. Plaintiff may have ten (10) days thereafter to respond, if she wishes to do so.