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Peterson v. Seagate US LLC: CIVIL PROCEEDURE - certification for interlocutory appeal denied

James Peterson, et al.,
for and on behalf of themselves
and other persons similarly
Civil No. 07‐2502
Seagate US LLC, Seagate Technology,
et al.,
Beth E. Bertelson and Andrea R. Ostapowich, Bertelson Law Offices, P.A.,
and Dorene R. Sarnoski, Dorene R. Sarnoski Law Office Law Office for and on
behalf of Plaintiffs.
Marko J. Mrkonich, Kathryn Mrkonich Wilson and Susan K. Fitzke, Littler
Mendelson for and on behalf of Defendants.
This matter is before the Court upon Defendants’ motion for an order to
certify the November 20, 2007 Order for Interlocutory Appeal pursuant to 28
U.S.C. § 1292(b).
This is a putative class action involving claims of age discrimination
pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
621 et seq. The class also seeks declaratory relief relating to the enforceability of a
purported release and waiver that was signed by many of the plaintiffs upon the
termination of their employment with Seagate.
In the November 20, 2007 Order referenced above, this Court denied
Defendants’ motion to dismiss the claims of those named plaintiffs that signed a
release and waiver. This Court also denied Defendants’ request to file a motion
for reconsideration, as Defendants had failed to identify any manifest error of
law or fact in the November 20, 2007 Order.
Defendants now move for an order certifying the November 20, 2007 Order
for interlocutory appeal. Defendants assert they seek certification on two
grounds: 1) whether nineteen plaintiffs who failed to file an EEOC charge
properly exhausted their administrative remedies with respect to their age
discrimination claims; and 2) whether the SIRP Release that plaintiff Paul
Calcagno signed in connection with Defendants’ 2004 voluntary early retirement
program is valid and enforceable. Defendants assert there are substantial
grounds for a difference of opinion on these legal issues, that if the Eighth Circuit
decided differently would dramatically impact the nature and scope of this
A district court judge may certify an action for interlocutory appeal under
the following circumstances:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation, he
shall so state in writing in such order. The Court of Appeals which would
have jurisdiction of an appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from such order, if application is
made to it within ten days after the entry of the order: Provided, however,
That application for an appeal hereunder shall not stay proceedings in the
district court unless the district judge or the Court of Appeals or a judge
thereof shall so order.
28 U.S.C. § 1292(b). Certification under § 1292(b) should only be used in
exceptional cases “where a decision on appeal may avoid protracted and
expensive litigation.” White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994).
With respect to the first question ‐ whether the nineteen plaintiffs who
signed releases failed to exhaust their administrative remedies ‐ Defendants
concede that plaintiffs in a collective action may piggyback on charges filed by
other class members, as long as the claims asserted are within the scope of the
underlying administrative charge. In this case, however, Defendants assert that
the administrative charges upon which the above‐referenced plaintiffs seek to
piggyback do not mention a release agreement, and this Court’s Order failed to
address this fact.
Defendants assert that this is an issue of first impression in this circuit, and
that there are substantial grounds to conclude that the Eighth Circuit will find
that the claims of the nineteen plaintiffs who signed releases fall outside the
scope of the administrative charges filed by plaintiffs Peterson and Olson.
In support of its position, Defendants cite to a number of Eighth Circuit
opinions that address the question of exhaustion of administrative remedies.
These cases consistently hold, however, that all plaintiffs need not file a separate
administrative charge, as long as the charge filed “allege[s] class‐wide age
discrimination or claim to represent a class in order to serve as the basis for an
ADEA class action under section 216(b).” Kloos v. Carter‐Day Co.,, 799 F.2d 397,
400 (8th Cir. 1986). See also, Ulvin v. Northwestern Nat’l Life Ins., 943 F.2d 862,
865 (8th Cir. 1991) (adopting single file rule, and further noting that there must be
some limit to the claims an opt‐in party can assert in order to serve the purposes
of the EEOC administrative filing requirements of providing an informal
conciliation process and to put the employer on notice of the claims being
asserted); Cottrill v. MFA, Inc., 443 F.3d 629, 634 (8th Cir. 2006) (a plaintiff may
only seek relief for any discrimination that grows out of or is like or reasonably
related to the substance of the allegations in the administrative charge).
Given the consistent basis upon which the Eighth Circuit has addressed the
exhaustion question, it is clear that Defendants are simply challenging this
Court’s application of settled law on the particular facts of this case. This is not a
basis for interlocutory appeal, however. See White, 43 F.3d at 378 (substantial
grounds for a difference of opinion exists where the court identifies a sufficient
number of conflicting and contradictory opinions.)
With respect to the second question that Defendants seek to certify ‐ the
validity and enforceability of the SIRP Release signed by plaintiff Paul Calcagno ‐
Defendants have again failed to demonstrate that the Court’s denial of
Defendants’ motion to dismiss plaintiff Calcagno’s claims involved a controlling
issue of law, as to which there is substantial grounds for a difference of opinion.
The November 20, 2007 Order addressed Defendants’ motion to dismiss
under Rule 12 (b)(6) of the Federal Rules of Civil Procedure. Defendants’ motion
was denied because the Court found, after taking the allegations in the
Complaint as true, and construing those facts and reasonable inferences in favor
of plaintiffs, that “The Complaint contains sufficient allegations that the releases
at issue are not valid under OWPBA and that plaintiffs signed the releases under
duress.” Although the invalidity of the releases was raised in conjunction with
this motion, the Court’s holding was not based on the resolution of that issue.
Defendants further assert that this Court should have analyzed plaintiff
Calcagno’s SIRP Release separately. On a motion to dismiss pursuant to Rule 12
(b)(6), however, the Court is concerned only with the sufficiency of the
allegations, and the Court determined that like the other plaintiffs that signed
releases, plaintiff Calcagno sufficiently alleged he signed the SIRP release under
Defendants have also failed to demonstrate substantial grounds for a
difference of opinion warranting interlocutory relief on this issue. First,
Defendants incorrectly state that the Release signed by Calcagno did not include
a waiver of his right to file a charge with the EEOC. The Release specifically
states “I promise never to seek any damages, remedies, or relief for myself
personally (any right to which I hereby waive) by filing or prosecuting a charge
with any administrative agency . . .” (Doc. No. 6, Ex. 2, p. 2) (emphasis added).
As the EEOC is an administrative agency, clearly this provision can be
interpreted as prohibiting the filing of an EEOC charge.
Second, Defendants argue there is no clear authority for the proposition
that the inclusion of an EEOC charge‐filing ban in a release agreement renders
the entire release void. Defendants cite to the decision of Wastak v. Lehigh
Valley Health Network, 342 F.3d 281, 290 (3rd Cir. 2003) for the proposition that
inclusion of a prohibition on filing an EEOC charge in a settlement agreement
does not void the entire agreement. As Plaintiffs point out, however, the decision
itself confirms it is not applicable to the issue raised herein.
We reiterate that this is not a case in which the employer clearly prohibited
resort to administrative process, or in which the employee either
understood that he was not permitted to file an EEOC charge, or did not
do so based on the waiver. To the contrary, the plaintiff here seeks to void
a waiver agreement because it contained the word “charge” in the
prohibition section, notwithstanding the fact that he in fact pursued an
administrative charge and does not contend that he was actually misled or
disadvantaged by the language in any way. Wastak came before the
district court desirous of proceeding in court, something he clearly agreed
not to do. The only issue before us is whether, given the statutory
provisions at issue and the facts before us, we would permit him to avoid
the agreement he entered into.
We note, however, that a regulation that became effective after the incident
before us clearly precludes the inclusion of provisions that prohibit resort
to administrative process. See 29 C.F.R. § 1625.22(i)(2) (“No waiver
agreement may include any provision prohibiting any individual from ...
[f]iling a charge or complaint, including a challenge to the validity of the
waiver agreement, with [the] EEOC.”). The presence of such a prohibition
in a waiver agreement that is subject to this regulation could certainly
lead a court to find, under proper circumstances, that the waiver “ha[d]
the effect of misleading, misinforming, or failing to inform” the
plaintiff, 29 C.F.R. § 1625.22(b)(4), thus rendering the waiver not
“knowing and voluntary,” and, therefore, invalid. But, again, that is not
this case.
Wastak, 342 F.3d at 293, n. 6 (emphasis added).
In another case cited by Defendants, EEOC v. Sundance Rehabilitation
Corp., 466 F.3d 490 (6th Cir. 2006) the Sixth Circuit acknowledged with approval
the rule adopted by the Fifth Circuit that waivers of the right to file a charge with
the EEOC were void as against public policy. Id., at 499. In discussing the Fifth
Circuit case in which this rule arose, the Sundance court noted that the Fifth
Circuit had determined that a plaintiff could waive her own right to recover in a
lawsuit, and that a waiver to file a lawsuit was not invalid because it was
conjoined with a void waiver of the right to file an EEOC charge. Id. at 498‐99.
The Sixth Circuit did not, however, adopt this particular aspect of the case cited,
nor did it need to as the enforceability of the separation agreement was not at
issue. Id. at 500. Rather, the court was asked to determine whether the offer of
the separation agreement itself was retaliatory. Id.
Finally, Defendants criticize the Court’s reliance on EEOC v. Lockheed
Martin, 444 F. Supp.2d 414 (D. Md. 2006) for its finding that prohibitions against
filing an EEOC charge render a release invalid. Defendants assert that Lockheed
in fact supports its position that inclusion of such a prohibition does not
necessarily render the entire release invalid. At issue in Lockheed was whether
language in a release agreement was facially retaliatory, not whether a
prohibition to file an EEOC charge renders a separation agreement invalid. Id., at
418. In fact, the court explicitly stated that it “does not and need not decide
whether Lockheed’s release, to the extent it attempts to waive rights to monetary
relief, complies with the requirements of all relevant laws and is enforceable.” Id.
n. 8.
As Defendants have failed to demonstrate that the requirements of Section
1292(b) have been met with respect to the two questions it seeks to certify, the
motion must be denied.
IT IS HEREBY ORDERED that Defendants’ Motion to Certify for
Interlocutory Appeal the November 20, 2007 Order [Doc. No. 66] is DENIED.
Dated: February 14, 2008
s / Michael J. Davis
Michael J. Davis
United States District Court
Civil No. 07‐2502


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