Foster et al v. Mountain Coal Company, LLC et al

Filing 77

ORDER granting 68 Motion for Reconsideration or, In the Alternative, Certification for Interlocutory Appeal and 45 MOTION for Summary Judgment (Robert Fisk), and denying as moot 72 Motion to Stay All Pre-Trial Deadlines as to Plaintiff Robert Fisk, by Judge Lewis T. Babcock on 7/30/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE

Civil Action No. 12-cv-03341-LTB-MJW

EUGENE FOSTER, and
ROBERT FISK,
Plaintiffs,
v.
MOUNTAIN COAL COMPANY, L.L.C.,
ARCH WESTERN RESOURCES, L.L.C., and
ARCH COAL, INC.,
Defendants.
_____________________________________________________________________________
ORDER
______________________________________________________________________________
This matter comes before me on Defendants’ Motion for Reconsideration or, in the
Alternative Certification for Interlocutory Appeal (Doc. # 68). Oral argument will not materially
aid in the resolution of this motion. For the reasons stated below, I grant Defendants’ Motion.
Because I grant Defendants’ Motion and thereby grant Defendants’ previous Motion for
Summary Judgment (Robert Fisk) (Doc. # 45), I deny Defendants’ Motion to Stay All Pre-Trial
Deadlines as to Plaintiff Robert Fisk (Doc. # 72) as moot.
I. FACTS
The facts and background of this case are set forth in detail in Foster v. Mountain Coal
Co., LLC, No. 12-cv-03341-LTB-MJW, 2014 WL 2024877 (D. Colo. May 16, 2014), the order

from which Defendants seeks relief. As such, I provide a limited factual background as relevant
here.
Plaintiff Fisk has a high school education, has not taken any college courses, attended
trade school for heating and air conditioning repair and maintenance (“HVAC”), but did not
receive a degree or diploma. [Doc. # 52, 4]. His work background is in construction and
mining, and he has worked in mining for the past 20 years. [Id. at 5]. He worked as an
underground miner for Defendant Mountain Coal Company of Colorado, L.L.C. at the West Elk
Mine from May 2001 through June 2009. [See Doc. # 45, 2].
In June 2009, he and “approximately sixty other employees were laid off as part of a
reduction-in-force (“RIF”) at the mine.” [Id.] Plaintiff Fisk purportedly learned of his layoff
during a June 17, 2009 meeting, at which he and the other terminated employees were presented
with a Severance Agreement and Release of All Claims (the “Agreement”). [Id.] The
Agreement released Defendants from “any and all claims arising from [Plaintiff] Fisk’s
employment in exchange for an $8,800 severance payment and other consideration.” [Id.]
Plaintiff Fisk signed the Agreement on July 5, 2009. [Id.] The relevant sections of the
Agreement provide:
2.
Employee’s employment will end effective June 17, 2009. Within
the time required by law, Employer will pay Employee an amount equal to
Employee’s accrued wages plus all earned and unused vacation, less applicable
taxes, withholdings and standard deductions. Within 45 days after Employee
signs this Agreement, Employer also will pay Employee severance pay in the
amount of $8,800, less applicable taxes, withholdings and standard deductions as
well as any prior pay advances.
...

2

4.
Employee hereby releases Employer from all claims, demands or
other rights to sue, whether they are known or unknown, foreseen or unforeseen,
arising at any time before the date of this Agreement, including but not limited to
those that arise from or relate to any aspect of Employee’s employment with
Employer, Employee’s termination from employment or any employment custom,
practice, policy, conduct or decision of Employer relating to any term or
condition of Employee’s employment, including but not limited to:
(1) any claims or rights that could be asserted under:
(a)

the Age Discrimination in Employment Act as amended,
29 U.S.C. § 621 et seq. In accordance with such law,
employee is provided in Exhibit A: 1) a written list of
the job titles and ages of all individuals eligible or
selected for the same reduction in force; 2) an
identification of the job classification or organizational
unit targeted for that reduction in force; 3) the ages of
all individuals in the same job classification or
organizational unit who are not eligible or selected for
the reduction in force; and 4) the factors used to
determine who is subject to the reduction in force.;

(b)

any applicable state law prohibiting or otherwise relating
to employment discrimination, including but not limited to
the Colorado civil rights laws and any statutory or
common law giving rise to a cause of action for retaliation
for filing a worker’s compensation claim or otherwise
engaging in protected conduct;

(c)

the common law of the state of Colorado;
...

(i)

the Americans with Disabilities Act, 42 U.S.C. § 12101

...
5.
Employee covenants and warrants that Employee will not sue or
cause any complaint or lawsuit of any sort to be brought or join in or allow any
complaint or lawsuit by any third party against Employer based in whole or in
part on claims released in this Agreement. Employee further agrees that, if any
person or entity should bring such a complaint or law suit on Employee’s behalf,
Employee hereby waives and gives up any right to recover under such claim and
will exercise every good faith effort to have that claim dismissed. Despite the
foregoing or anything to the contrary in this Agreement, Employee is not
releasing Employee’s right to file a Charge with or participate in an investigation
3

by the Equal Employment Opportunity Commission, the Department of Labor or
other state or federal agency, subject to the legal requirements for doing so.
However, Employee waives and gives up any right to damages that may be
awarded on the basis of such Charge and also waives and gives up any subsequent
right to sue based on such Charge.
6.
Because this agreement contains a release of claims under the
Age Discrimination in Employment Act, Employee shall have 45 days from
the day Employee receives it to consider it. Employee may accept the offer
contained in this agreement at any time within that 45-day period by signing
it and delivering it to Employer. If Employee does not accept this offer by
signing this Agreement before the end of 45-day period, it shall be
automatically revoked (meaning Employee will not have the right to a
severance payment or to health coverage at active employee rates). If
Employee does accept the offer, Employee shall have seven (7) days after
delivery of the signed agreement to Employer to revoke (i.e. cancel)
Employee’s acceptance. The severance payment referenced above shall
commence only after the seven (7) day revocation period expires, within the
time limits previously indicated.
...
10.
Employee will keep, and cause his/her attorneys and agents to
keep, the terms of this Severance Agreement and Release strictly confidential and
will not directly or indirectly disclose the terms to anyone (either verbally or in
writing) except (a) that Employee may discuss this Agreement with his/her
attorney or accountant on a confidential basis to the extent necessary to prepare
Employee’s tax returns or interpret the Agreement; (b) to the extent that
Employee is compelled by a court or governmental authority to reveal the
Agreement, provided, however, that Employee will immediately advise Employer
of this fact; or (c) in a suit to enforce or for breach of this Agreement, provided
that the Agreement is kept under seal by the Court pursuant to a protective order.
...
16.
Employee acknowledges that Employee has been given a
reasonable period of time within which to consider the terms of this Severance
Agreement and Release.
17.
Employee acknowledges that Employee has carefully read this
Agreement, understands all its terms, and has signed it voluntarily with full
knowledge of its significance after opportunity for consideration and consultation
with Employee’s attorney, family and/or advisors before signing this Agreement.
Employee represents that no payments or other things of value have been
promised to Employee for signing and delivering this Agreement other than the
payments, agreements and benefits described herein, which payments, benefits
4

and agreements constitute adequate payment for the claims herein released and
Employee’s other agreements outlined in this Agreement and that no attorney or
counsel is entitled to any fees from Employer as a result of this Agreement.
Doc. # 45, ex. 2 (emphasis in original). In addition to severance payments, the Agreement states
that Plaintiff Fisk would continue to receive health insurance for three months at employee rates.
[Id.] Additional facts, related in the light most favorable to Plaintiff Fisk, the party against
whom summary judgment is sought, will be provided as they relate to specific arguments and
issues raised in the Parties’ papers.
After limited discovery into the enforceability of Plaintiff Fisk’s Severance Agreement’s
waiver provision, Defendants filed a motion for summary judgment. In denying Defendants’
motion I held that Defendants failed to comply with the strict mandates of the OWBPA.
Defendants filed the present Motion for Reconsideration, or in the Alternative,
Certification for Interlocutory Appeal (Doc. # 68), on May 30, 2014. Defendants subsequently
filed a Motion to Stay All Pre-Trial Deadlines as to Plaintiff Robert Fisk (Doc. # 72) on June 26,
2014. Because I grant Defendants’ motion for reconsideration and thereby dismiss all of
Plaintiff Fisk’s claims, I dismiss Defendants motion to stay as moot.
II. LEGAL STANDARD
A district court has discretion to revise interlocutory orders prior to entry of final
judgment. See Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011) (“[D]istrict
courts generally remain free to reconsider their earlier interlocutory orders.”); Price v. Philpot,
420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (“[E]very order short of a final decree is subject to
reopening at the discretion of the district judge.”); Wagoner v. Wagoner, 938 F.2d 1120, 1122
5

n.1 (10th Cir. 1991) (noting that a motion for reconsideration filed prior to final judgment “was
nothing more than an interlocutory motion invoking the district court’s general discretionary
authority to review and revise interlocutory rulings prior to entry of final judgment.”). That
discretion extends to rulings on summary judgment motions that resolve less than the entire case.
See Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223-24 n.2 (10th Cir. 2008).
The district court’s discretion to revise its interlocutory orders is not limited by the
standards for reviewing a post-judgment motion filed pursuant to Rules 59(e) or 60(b) of the
Federal Rules of Civil Procedure. See Raytheon Constructors Inc. v. ASARCO, Inc., 368 F.3d
1214, 1217 (10th Cir. 2003) (stating that “[t]he district court was incorrect to treat [the
plaintiff’s] motion for reconsideration [of an interlocutory order] under Rule 60(b), which only
applies to final orders or judgments”). Instead, because judgment has yet to be entered, I may
apply a less stringent standard than that applicable to a Rule 59(e) motion. See Nat’l Bus.
Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F. Supp. 2d 1250, 1256 (D. Colo. 2000).
However, “[n]otwithstanding the district court’s broad discretion to alter its interlocutory orders,
the motion to reconsider ‘is not at the disposal of parties who want to rehash old arguments.’”
Id. (quoting Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill.1995)). “Rather, as a practical matter,
to succeed in a motion to reconsider, a party must set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision.” Id. Even under this lower standard, “[a]
motion to reconsider should be denied unless it clearly demonstrates manifest error of law or fact
or presents newly discovered evidence.” Id

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III. ANALYSIS
Defendants argue that I should reconsider my previous order denying Defendants’ motion
for summary judgment because: (1) I erred in finding that the Agreement failed to comply with
the statutory requirements of the Older Workers Benefits Protection Act (“OWBPA”); and (2) I
failed apply the Torrez factors in relation to Plaintiff’s Americans with Disabilities Act (“ADA”)
claims. [See Doc. # 70]. After thorough review and further research I agree that mistakes were
made in the previous order and use this opportunity to correct those mistakes and dispose of all
other matters pending before me.
A.

Whether the Release Complied with the Older Worker Benefits Protection Act
In my previous order I denied summary judgment and held that the Agreement failed to

comply with the statutory requirements of the OWBPA because it failed to comply with 29
U.S.C. § 626(f)(1)(E)’s requirement that the Agreement advise Plaintiff Fisk to consult with an
attorney before executing the Agreement. Defendants contend that the language in the
Agreement adequately advised Plaintiff Fisk to consult counsel, and that this requirement was
satisfied where Plaintiff Fisk was actually “advised by an attorney in relation to his release.”
[See Doc. # 68, 2]. On reconsideration I agree.
The OWBPA, “is designed to protect the rights and benefits of older workers.” Oubre v.
Entergy Ops., Inc., 522 U.S. 422, 427 (1998). “When a worker within the class protected by the
age discrimination law (age 40 and up) leaves his employment, it is common for the employer to
try to obtain a waiver of the worker’s right to bring a suit under that law.” Blackwell v. Cole
Taylor Bank, 152 F.3d 666, 669 (7th Cir. 1998). In order for such a waiver to be valid, the
OWBPA requires the employer to provide the employee with certain information so that he or

7

she can assess, with the assistance of counsel, the viability of such a discrimination claim.
Raczak v. Ameritech Corp., 103 F.3d 1257, 1259 (6th Cir. 1997). Specifically, the OWBPA
provides that an individual may not waive a claim under the Age Discrimination in Employment
Act of 1967 (“ADEA”) “unless the waiver is knowing and voluntary.” 29 U.S.C. § 626(f)(1).
To be considered “knowing and voluntary,” the waiver must comport with the following
minimal requirements:
(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; 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;

(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;
(H) 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
employer (at the commencement of the period specified in subparagraph (F))
informs the individual in writing in a manner calculated to be understood by the
average individual eligible to participate, as to–

8

(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.
29 U.S.C. § 626(f)(1). The OWBPA also provides that “[n]o waiver may be used to justify
interfering with the protected right of an employee to file a charge or participate in an
investigation or proceeding conducted by the [Equal Employment Opportunity] Commission.”
29 U.S.C. § 626(f)(4). Finally, the party asserting the validity of the waiver has the burden of
proving that the waiver is knowing and voluntary as defined by the OWBPA in a court of
competent jurisdiction. 29 U.S.C. § 626(f)(3).
I previously held, and here Plaintiff Fisk again argues, that the OWBPA is to be strictly
construed and employers who request waivers of ADEA claims from their employees must
strictly comply with its requirements. [Doc. # 70]. In support of his argument for strict
construction, Plaintiff Fisk points to my previous order citing Oubre v. Energy Ops., Inc., 522
U.S. 422, 427 (1998):
The statutory command is clear: An employee “may not waive” an ADEA claim
unless the waiver or release satisfies the OWBPA's requirements. The policy of
the OWBPA is likewise clear from its title: It is designed 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: An employee “may not waive” an ADEA claim unless
the employer complies with the statute. Courts cannot with ease presume
ratification of that which Congress forbids.

9

522 U.S. at 426-27. In view of this language, Plaintiff Fisk contends that strict compliance with
the OWBPA is required. [See Doc. # 70, 3-5].
However, on reconsideration I hold that my previous order, and Plaintiff Fisk’s argument
for strict compliance as to all OWBPA factors, reads too much into Oubre. In Oubre the issue
before the Court was whether an employee was required to tender back to the employer the
severance pay she received in return for a wholly nonconforming release as a precondition to
filing an ADEA claim. 522 U.S. at 424. Although general contract principles would support
such a rule, the Court held that the language and purpose of the OWBPA override the common
law. Id. at 425-27. The Court therefore concluded that the employee need not return the
severance pay she received as a condition precedent to bringing suit. Id. at 428 (“The statute
governs the effect of the release on ADEA claims, and the employer cannot invoke the
employee’s failure to tender back as a way of excusing its own failure to comply.”). Unlike this
case, however, it was undisputed in Oubre that the defendant employer did not comply with the
OWBPA. The agreement in that case did not provide the employee the required time to consider
her options, it did not allow her seven days after signing in which to change her mind, and it
failed to specifically reference ADEA claims as among those she was waiving. Thus, Oubre did
not address the standard to be used by a court to determine whether an employer’s attempted
compliance meets the requirements of the OWBPA.
Here, Plaintiff Fisk contends that the Agreement fails to comply with the OWBPA.
Specifically, he contends that Defendants failed to meet two of the OWBPA’s requirements: (1)
§ 626(f)(1)(E)’s requirement that Defendant advise Plaintiff Fisk in writing of his right to consult
counsel prior to executing the Agreement; and (2) § 626(f)(1)(H)’s disclosure requirements,
10

which I concluded in my previous order that Defendants met, and is undisputed here. Therefore,
at issue is whether the Agreement met § 626(f)(1)(E)’s requirement that Defendants advise
Plaintiff Fisk, in writing, of his right to consult counsel prior to executing the Agreement.
Plaintiff Fisk advocates for strict compliance and contends that the Agreement’s
advisement is not sufficient because it is in past tense and uses passive language. Ultimately,
Plaintiff Fisk’s argument amounts to a distinction without a difference. The Agreement is in
writing and plainly indicates that Plaintiff Fisk was advised “to consult” with an attorney before
signing the agreement. Cf. Am. Airlines, Inc v. Cardoza-Rodriguez, 133 F.3d 111, 118 (1st Cir.
1998) (“because American failed to directly advise their employees to consult a lawyer before
making the election, we rule, as a matter of law, that American failed to meet its burden under
the OWBPA.”). Specifically, the language in the Agreement advised Plaintiff Fisk to consult
counsel in two separate sections. In paragraph 10, the Agreement provides that “Employee may
discuss this Agreement with his/her attorney or accountant on a confidential basis to the extent
necessary to prepare Employee’s tax returns or interpret the Agreement.” [Doc. # 45, ex. 2].
The same paragraph also provides that “Employee will keep, and cause his/her attorneys and
agents to keep, the terms of this Severance Agreement and Release strictly confidential.” [Id.]
Paragraph 17 provides that “Employee acknowledges that Employee has carefully read this
Agreement, understands all its terms, and has signed it voluntarily with full knowledge of its
significance after opportunity for consideration and consultation with Employee’s attorney,
family and/or advisors before signing this Agreement.” [Id.] Courts have found similar
language to be in compliance with the OWBPA. See Jones v. Asset Acceptance, LLC, 2008 WL
4080269, *3-4 (M.D. Fla. Aug. 28, 2008) (OWBPA complied with where employee “advised to
11

and . . . had the opportunity to consult with an attorney prior to executing”); see also Moroni v.
Penwest Pharmacueticals Co., 2009 WL 3335504, *8-9 (D. N.J. Oct 13, 2009) (language “you
were advised to consult with an attorney about Agreement before signing it” complies with
OWBPA). Moreover, Defendants gave Plaintiff Fisk the entire required time–45 days–to read
and act on the attorney advice provisions contained in the Agreement.
I also note that the few courts that have addressed the issue of compliance have noted that
the OWBPA is imprecise, and thus cannot possibly require strict application. See, e.g., Raczak,
103 F.3d at 1259. In Raczak, for example, the Sixth Circuit applied this reasoning to §
626(f)(1)(H) and reasoned that “the nomenclature of § 626(f)(1)(H) of Title 29 is ambiguous” so
that “a rigid and mechanical interpretation of that provision is inappropriate.” The court further
explained that since clause (H)(ii) of § 626(f)(1) is imprecise, “[h]olding an employer strictly
accountable for what might be a technical violation of these imprecise terms, with no indication
that this would facilitate the provision’s purpose and might even hamper it, is untenable and
would elevate form over substance.” Id. at 1260; see also Burlison v. McDonald’s Corp., 455
F.3d 1242, 1246 (11th Cir. 2006) (“The only fair conclusion, then, is that the OWBPA is
ambiguous.”); Manning v. N.Y. Univ., 2001 WL 963982, at *5 (S.D.N.Y. Aug. 22, 2001) (“strict
interpretation does not require placing form entirely over function and we must evaluate the
circumstances surrounding each waiver in light of Congress’ objectives embodied in the
OWBPA.”).
I extend this reasoning here to hold that the Agreement did comply with § 626(f)(1)(E)’s
mandate that Defendant advise Plaintiff Fisk in writing of his right to consult counsel prior to
executing the Agreement. First, I note that the Agreement explicitly advised Plaintiff Fisk to
12

consult counsel in two separate sections of the Agreement. [See Doc. # 45, ex. 2]. Second, I
note that Plaintiff Fisk concedes that he did in fact consult an attorney in relation to his
employment with Defendants. [See Doc. # 52]. To hold that the Agreement failed to comply
with § 626(f)(1)(E) in light of these advisements and the fact that Plaintiff Fisk consulted with
counsel would require “placing form entirely over function.” Manning, 2001 WL 963982, at *5.
Additionally, the facts here are distinguishable from those in Am. Airlines, Inc. v.
Cardoza-Rodriguez, 133 F.3d 111 (1st Cir. 1998), which held that the agreement at issue failed
to comply with § 626(f)(1)(E)’s requirement where it only provided that the employee “had
reasonable and sufficient time and opportunity to consult with an independent legal
representative of my own choosing before signing this Complete Release of All Claims,” on a
release that was not signed until the last day of work. Id. at 114. The Agreement and facts at
issue here are distinguishable for several reasons: (1) Plaintiff Fisk was provided the Agreement
beforehand and given the opportunity to take it home, review it, and sign it; (2) Plaintiff Fisk
was given adequate time under the OWBPA to consider and rescind the Agreement before and
after it was signed; (3) the Agreement advised Plaintiff Fisk of his right to counsel in two
different sections of the Agreement; and (4) Plaintiff Fisk was advised by an attorney in relation
to his employment with Defendants. This was sufficient to meet the mandates of the OWBPA.
Therefore, I conclude that Defendants complied with the OWBPA’s requirements, and as
such there is no genuine issue of material fact regarding the attorney advisement language.
Because I conclude that the Agreement complied with the requirements of the OWBPA, I must
next analyze whether it was “knowing and voluntary” under the totality of the circumstances test
enumerated in Torrez v. Public Serv. Co. of N.M., Inc., 908 F.2d 687, 689 (10th Cir. 1990).
13

B.

Whether the Release was Knowing and Voluntary under the Totality of the
Circumstances
Since I find that the Agreement met the requirements of the OWBPA, I next analyze

Plaintiff Fisk’s ADEA claim to determine whether Plaintiff Fisk’s waiver in the Agreement was
“knowing and voluntary” under the totality of the circumstances. As Defendants properly note
in their motion for reconsideration, this is also the proper analysis for determining whether
Plaintiff Fisk waived his ADA claims. As such, I analyze whether Plaintiff Fisk’s waiver of both
his ADA and ADEA claims were “knowing and voluntary” under the totality of the
circumstances.
In Torrez, the Tenth Circuit adopted the totality of the circumstances test for determining
whether a waiver is valid. 908 F.2d at 690 The totality of the circumstances test requires
consideration of the following circumstances and conditions under which the release was signed:
(1) the clarity and specificity of the release language; (2) the plaintiff’s education
and business experience; (3) the amount of time plaintiff had for deliberation
about the release before signing it; (4) whether [p]laintiff knew or should have
known his rights upon execution of the release; (5) whether plaintiff was
encouraged to seek, or in fact received benefit of counsel; (6) whether there was
an opportunity for negotiation of the terms of the Agreement; and (7) whether the
consideration given in exchange for the waiver and accepted by the employee
exceeds the benefits to which the employee was already entitled by contract or
law.
Id. at 689-90 (quoting Cirillo v. Arco Chem. Co., 862 F.2d 448, 451 (3d Cir. 1988)); see also
Bennett v. Coors Brewing Co., 189 F.3d 1221, 1228–29 (10th Cir. 1999). An eighth factor, not
specifically articulated in Torrez but clearly considered by the Tenth Circuit, is whether the
employer exerted undue economic pressure on the plaintiff. See Torrez, 908 F.2d at 690 & n. 3.
The question of whether such a waiver is knowing and voluntary is a question of fact. Id. at 690.

14

Plaintiff Fisk, contends that the release was not knowing and voluntary because there are
issues of fact as to five of the seven Torrez factors, as well as that his waiver was signed under
economic duress. [See Doc. # 52]. Plaintiff Fisk does not contest that factors (3) and (7) support
Defendants’ position that Plaintiff Fisk’s waiver was knowing and voluntary– Plaintiff Fisk was
given 45 days to consider the Agreement and Plaintiff Fisk received adequate consideration for
signing the agreement. The remaining factors are discussed in turn below.
1.

Clarity and Specificity of the Release Language

Plaintiff first contends that the Agreement’s release language “was unclear with respect
to its consequences.” [Id. at 22]. Plaintiff contends that the Agreement was unclear “as to
whether [Plaintiff] Fisk would be eligible for continuation of health insurance under
[Congressional Omnibus Budget Reconciliation Act (“COBRA”)] without signing the release.”
[Id.] However, Defendants disagree and contend interpretation of this language is not relevant
when determining whether the language of the release was clear and unambiguous. [See Doc. #
54, 2]. I agree.
First, as Torrez makes clear, the proper determination is based upon “the clarity and
specificity of the release language.” Torrez, 908 F.2d at 689. Thus, examining the insurance
provisions of the Agreement is not necessary or proper to determine whether the release of
claims was clear and unambiguous. Second, to the extent that Plaintiff Fisk contends the release
of claims was not clear and unambiguous, I conclude the release was clear and unambiguous.
The language in the Agreement mentions the ADA, ADEA, and Colorado’s statutory equivalent,
15

and thus is more specific than the language at issue in Torrez, 908 F.2d at 690.
Based on the clear import of this clause, I find that no reasonable juror could conclude
that the rights waived by the Agreement were unclear or ambiguous. Thus, this factor weighs in
favor of Defendants and summary judgment. Torrez, 908 F.2d at 690 (“[w]hile evaluation of the
language of the contract is necessary to determine the validity of the waiver of discrimination
claims, our inquiry cannot end there”).
2.

Plaintiff’s Education and Business Experience

Plaintiff Fisk argues that the waiver was not knowing and voluntary because he had
“little education and no applicable business experience,” including having “only a high school
education with no college courses.” [Doc. # 52, 23]. Defendants contend that although Plaintiff
Fisk only has a high school education, he has a “notable degree of sophistication regarding
discrimination and retaliation claims in the employment context.” [Doc. # 45, 7 (citations
omitted)]. Specifically, Defendants contend that Plaintiff Fisk “testified in court probably half a
dozen times, [] he filed a detailed response to Defendants position statement before the EEOC, . .
. [and w]hile employed by Defendants, he filed multiple complaints with the Mine Safety and
Health Administration (“MSHA”) alleging Defendants had retaliated against him for reporting
alleged workplace safety issues, . . . he had written to the Secretary of Labor in relation to
[workplace] complaints[, and] . . . he had challenged the discipline imposed by [Defendants] on
the basis of alleged protected activity.” [Doc. # 45, 6-7].
It is undisputed that Plaintiff Fisk only has a high school education. However, Plaintiff
Fisk was a miner for “over 20 years,” eight of which he worked for Defendants. [Doc. # 52, 23].
16

Usually, when courts discuss whether an individual has “business experience,” they refer to the
length of time a person has spent in a particular industry and whether, based on his or her
employment duties, that person understood the scope of the bargain. See, e.g., Rutledge v. Int’l
Bus. Mach. Corp., 972 F.2d 357, 1992 WL 189105, at *2 (10th Cir. 1992) (“[p]laintiff had
twenty-five years of employment experience with Defendant and some post-high school
education”); Nilsson v. City of Mesa, 503 F.3d 947, 952 (9th Cir. 2007) (“[b]ased on her collegelevel education and prior work experience with the Tempe PD, Nilsson possessed sufficient
education and experience to understand the waiver”); Bittner v. Blackhawk Brewery & Casino,
LLC, No. 03–cv–02274–MSK–PAC, 2005 WL 1924499, at *3 (D.Colo. Aug. 9, 2005) (“because
the Plaintiff held a management position, the Court assumes she had received training or was at
least aware of the existence of anti-discrimination laws”). Plaintiff Fisk’s 20 years as a miner is
sufficient.
Plaintiff Fisk also attended Emily Griffith Trade School for HVAC training from 19861988. [See Doc. # 45, ex. 5]. Moreover, the fact that Plaintiff Fisk had made reports regarding
work place safety to the MSHA, disputed workplace discipline imposed by Defendants, filed
responses to the EEOC and written to the secretary of labor is sufficient to show that Plaintiff
Fisk had sufficient experience to be able to understand the agreement and was aware of his
employment rights. He purported to have testified in court several times, communicated with the
EEOC on several occasions, filed multiple complaints of alleged retaliation against Defendants
with the MSHA, and challenged disciplinary action by Defendants on several occasions. Based
on Plaintiff Fisk’s education and experience, I find that no question of fact exists as to about his
ability to understand the scope of his rights under the waiver, and the legal implications of
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waiving such rights. See Torrez, 908 F.2d at 690. Thus, this factor weighs in favor of
Defendants and summary judgment.
3.

Whether Plaintiff Fisk Knew or Should Have Known His Rights Upon
Execution of the Release

With regard to whether Plaintiff Fisk knew or should have known of his rights upon
execution of the release, he obviously knew that he had a right not to be discriminated against
based on age and disability, based upon the fact that that he had filed age and disability
discrimination claims with the EEOC on July 10, 2009, five days after signing the Agreement.
[See Doc. # 54, ex. 3]; see also Rutledge, 1992 WL 1891095, at * 2 (“Plaintiff knew of his right
not to be discriminated against on the basis of sex, age, or race, as evidenced by his filing of
discrimination charges within days of receiving his severance pay.”). Thus, this factor weighs in
favor of Defendants and summary judgment.
4.

Whether Plaintiff was Encouraged to Seek Counsel

Because I conclude above that Plaintiff Fisk was adequately encouraged by Defendants
to seek counsel, I find that this factor weights in favor of Defendants and summary judgment.
5.

Whether There was an Opportunity for Negotiation of the Terms of the
Agreement

Plaintiff Fisk contends that he thought the agreement was not negotiable. Defendants
contend that Plaintiff Fisk never tried to negotiate the terms of the agreement because he knew
he was “giving up potentially valuable legal rights in exchange for consideration,” and that his
consultation with a worker’s compensation attorney demonstrates that he had “actual or
constructive knowledge of his right” to negotiate. [Doc. # 45, 9-10].

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Plaintiff Fisk, as discussed above, was well versed in employment disputes and had
sufficient experience to be able to understand the Agreement. Anderson v. Lifeco Servs. Corp.,
881 F.Supp. 1500, 1504 (D. Colo.1995) (“the Torrez factors tend to require a subjective analysis
of the employee’s understanding of the consequences of the release and whether the terms of the
release were subject to negotiation”). Plaintiff Fisk waited to sign the agreement and after
signing it filed age and disability discrimination claims with the EEOC. Thus, this factor weighs
in favor of Defendants and summary judgment.
6.

Whether the Employer Exerted Undue Economic Pressure on Plaintiff

Finally, although not one of the seven factors listed in Torrez, Plaintiff Fisk maintains
that another circumstance to consider is that he had no choice in signing the Agreement because
he was under economic pressure. [Doc. # 52] Without signing the Agreement, Plaintiff Fisk
alleges that he feared losing health insurance benefits. [Id.]
I find no merit to this argument. “[E]conomic pressure alone is insufficient to establish a
claim of duress that would void an otherwise valid release.” Cirillo, 862 F.2d at 452 n.2.
Plaintiff has failed to establish a wrongful act precluding him from exercising free will. See id.
Thus, all factors of the Torrez totality of the circumstances test favor a determination that
Plaintiff Fisk knowingly and voluntarily executed the Agreement. Based on this evidence,
Defendants adequately demonstrate that, as a matter of law, Plaintiff Fisk knowingly and
voluntarily waived his rights under the ADA and ADEA. Because there are no remaining
genuine questions of fact with regard to whether Plaintiff Fisk’s waiver was knowing and
voluntary, I find that Defendants are entitled to summary judgment on these claims.
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C.

Whether Plaintiff Ratified his Release Under Colorado Law
Plaintiff Fisk’s remaining claim at issue is whether Plaintiff Fisk ratified his release

under Colorado law. However, since the I grant summary judgment on Plaintiff Fisk’s ADEA
and ADA claims, I decline to exercise jurisdiction over Plaintiff Fisk’s supplemental state law
claims. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d
218 (1966) (holding that if the federal claims supporting supplemental jurisdiction are dismissed
prior to trial, the state claims should be dismissed as well); 28 U.S.C. § 1367(c).
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Defendants’ Motion for
Reconsideration or, In the Alternative, Certification for Interlocutory Appeal (Doc. # 68) is
GRANTED and I thereby GRANT Defendants’ previous Motion for Summary Judgment
(Robert Fisk) (Doc. # 45). Because I dismiss all claims against Defendants by Plaintiff Fisk I
DENY Defendants’ Motion to Stay All Pre-Trial Deadlines as to Plaintiff Robert Fisk (Doc. #
72) as moot. Judgement for Defendants, and against Plaintiff Fisk, shall enter with costs
awarded to Defendants.

Dated: July

30 , 2014 in Denver, Colorado.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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