Pitt v. Times Picayune, L.L.C. et al

Filing 59

ORDER and REASONS - Presently before the Court are motions to dismiss (Rec. Docs. 6 and 22-28) filed by Defendants relative to each of the eight consolidated plaintiffs' claims. Having carefully considered the parties' submissions, the amen ded and re-stated complaints filed by Plaintiffs, and applicable law, IT IS ORDERED that the motions are GRANTED IN PART and DENIED IN PART to the extent as stated within document. Signed by Judge Kurt D. Engelhardt on 9/30/2014. (Reference: 14-68, 14-69, 14-70, 14-71, 14-72, 14-73, 14-75 and 14-76)(cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRICIA PITT

CIVIL ACTION

VERSUS

NO.

THE TIMES-PICAYUNE, LLC
AND ADVANCE PUBLICATION, INC.

SECTION "N" (1)

14-68 c/w
14-69, 14-70, 14-71
14-72, 14-73, 14-75,
and 14-76

ORDER AND REASONS
Presently before the Court are motions to dismiss (Rec. Docs. 6 and 22-28) filed by
Defendants relative to each of the eight consolidated plaintiffs’ claims. Having carefully considered
the parties’ submissions, the amended and re-stated complaints filed by Plaintiffs, and applicable
law, IT IS ORDERED that the motions are GRANTED IN PART and DENIED IN PART to the
extent stated herein.
BACKGROUND
Defendants’ supplemental memorandum (Rec. Doc. 57) provides the following
summary of Plaintiffs’ claims as set forth in their amended and re-stated complaints:1

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Subsequent to the filing of Defendants’ motions to dismiss, Plaintiffs filed amended
and re-stated complaints (Rec. Docs. 48-55). Therein, Plaintiffs withdrew their duress challenges
to the validity of the releases signed by them and modified the allegations offered relative to their
employment discrimination claims. Given that the amended and re-stated complaints were filed
while Defendants’ motions were pending, and Defendants have since submitted a supplemental
memorandum in support of their motions, the Court’s ruling on the pending motions rests upon the
allegations of the amended and re-stated complaints rather than Plaintiffs’ original petitions.

Plaintiffs’ amended complaints allege that they were employed by
The Times-Picayune until they were informed in June or July 2012
that they were being terminated, and their jobs eliminated, “due to an
economically driven program to downsize.” Plaintiffs further allege
that they were offered a severance package in exchange for a
complete release of all claims against The Times-Picayune; that they
accepted the severance package and executed releases; and that their
termination[s] became effective between August 10, 2012 and
September 30, 2012.
Plaintiffs allege that The Times-Picayune’s termination of their
employment breached a company policy called the “Job Security
Pledge,” which “guaranteed that Plaintiff would not be laid off or
have any job action taken against them due to economic
circumstances or technological change.” Additionally, Plaintiffs
allege that The Times-Picayune’s termination of their employment
constituted discrimination under Louisiana law and the ADEA
because The Times-Picayune “a) terminated Plaintiff[s’]
employment; b) refused to allow Plaintiff[s] to apply for advertised
positions for the same job held by [them]; c) refused to allow
Plaintiff[s] to apply for comparable and available jobs for which
[they] was qualified; d) breached the Job Security Pledge; and e)
replaced [them] with a younger worker.” Plaintiffs further allege that
while they signed releases specifically covering all claims arising out
of their employment and termination, those releases do not extend to
the claims asserted in their amended complaints because their actual
termination date occurred after the releases were signed. In the
alternative, Plaintiffs allege that the releases are invalid with respect
to their ADEA claims because they were procured through fraud and
thus were not “knowing and voluntary” under the OWBPA.
Specifically, Plaintiffs allege:
Alternatively, if Defendants were acting prior to the
signing of the release with the objective of
terminating and replacing Plaintiff[s] because of
[their] age, then its representations to them that – that
Defendants’ were engaging in a program of economic
downsizing layoffs that eliminated Plaintiffs’ jobs –
were false and Plaintiff[s were] misled in signing the
releases. Defendants’ failure to disclose that
Plaintiff[s] would be terminated because of [their]
age, and not for their proffered reason, was a material
misrepresentation which violates the requirement of
29 U. S. C. § 626(f) that a waiver of an ADEA claim
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must be knowing and voluntary.2
The Court focuses first on Plaintiffs' claims of breach of contract (based upon the
“Job Security Pledge”) and state law claims of employment discrimination arising from Defendants'
termination of Plaintiffs' employment. The Court finds these claims to be precluded by the "General
Release" and "Agreement and General Release" signed by Plaintiffs, notwithstanding that the scope
of those documents is limited to rights and claims existing as of the dates the documents were
executed. Those documents undeniably contemplated that each Plaintiffs' last day of work would
be subsequent to the June or July 2012 execution dates. Indeed, the second paragraph of each
"Agreement and General Release" expressly identifies the future date on which the employee's
employment was expected to cease.
To the extent that Plaintiffs argue Defendants' alleged misrepresentation of the actual
reason for their terminations vitiates each Plaintiff's consent to the "General Release" and
"Agreement and General Release" signed by him or her, thus rendering the documents voidable,
Plaintiffs' failure to return the consideration received therefor precludes any relief under Louisiana
state law relative to Plaintiffs' breach of contract and discrimination claims. See Aultman v. Entergy
Corp., 98-2244 (La. App. 1 Cir. 11/5/99), 747 So. 2d 1151, 1155 (“Louisiana courts recognize that
a party seeking to invalidate a contract based on fraud or some other theory must return whatever
of value he received before seeking to have the contract set aside.”).

2

See Rec. Doc. 57, pp. 5-7.
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Plaintiffs' federal discrimination claims asserted under the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., based on their terminations from
employment, however, require a different conclusion at this juncture of the proceeding. Although
the Court agrees (with Defendants) that Plaintiffs' ADEA claims based on their terminations are
encompassed by the scope of the "General Release" and "Agreement and General Release" signed
in June and July 2012,3 it is not apparent, on the present showing made, that the waiver is, as a
matter of law, effective as to those claims.
Specifically, under the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C.
§ 626(f), "[a]n individual may not waive any right or claim under the ADEA unless the waiver is
knowing and voluntary." Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426 (1998) (citing 29
U.S.C. § 626(f)). Furthermore, in Oubre, the Supreme Court rejected the contention that a plaintiff
may not seek to void a contractual waiver under the OWBPA's "knowing and voluntary"
requirement unless he or she first tenders back any benefits received under the contract. See Oubre,
522 U.S. at 425-29. Finally, although Defendants contend that a difference between an employer's
proffered reason for terminating or laying off an employee, and the employer's true reasons, cannot
preclude an ADEA waiver from being knowing and voluntary, the Court is not presently convinced
that Defendants' contention is correct.

3

Plaintiffs' opposition memorandum arguably appears to contend that, in addition to
their terminations, some or all Plaintiffs may have been denied employment in alternative positions.
As presently pled, however, it is not apparent to the Court that Plaintiffs' claims include separate
and discrete acts of discrimination that are not encompassed by their termination claims and/or do
not fall within the scope of the releases signed by them. If any Plaintiffs believe that they can amend
their complaints to rectify this shortcoming, leave to do so must be sought within twenty (20) days
from entry of this Order and Reasons.
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To support their contention, Defendants cite the Court to Sheridan v. McGraw-Hill
Companies, Inc., 129 F. Supp. 2d 633 (S.D. N.Y. 2001), and Lauderdale v. Johnston Industries, Inc.,
139 F. Supp. 2d 1315,1321 (M.D. Ala. 2001) (aff'd in part and rev'd in part). In Sheridan, however,
the district court rejected the plaintiff's contention that misrepresentations regarding the reason for
his termination invalidated his ADEA waiver following a review of summary judgment evidentiary
submissions, not on the face of the plaintiff's complaint. See Sheridan, 129 F. Supp. 2d at 638-39
(plaintiff's apparently sincere belief that termination was product of discrimination was insufficient
to support inference of fraudulent inducement in absence of supporting evidence). Affirming, the
Second Circuit reasoned: "The downfall of Sheridan's argument is that he provided the District Court
with no evidence supporting his view." Sheridan v. McGraw-Hill Companies, Inc., 24 Fed. Appx.
64, 2001 WL 1486224, *65-66 (2nd Cir.)(unpub.).
Furthermore, a close examination of the record in Lauderdale reveals that the
Eleventh Circuit, albeit in an unpublished ruling rendered without written reasons, apparently
reversed the district court's finding of a valid waiver. Specifically, the Eleventh Circuit's opinion
simply states: "Affirmed in part. Reversed in Part." See Lauderdale v. Johnston Industries, Inc.,
31 Fed. Appx. 940 (11th Cir. Feb. 7, 2002) (Table, No. 01-12835). A subsequent summary judgment
ruling from the district court, however, explains that the Eleventh Circuit previously reversed the
lower court's waiver ruling, finding the waiver "invalid" and remanding for further proceedings. See
Lauderdale v. Johnston Industries, Inc., Civil Action No. 00-T-1308, (M.D. Ala. 8/25/02) (Rec.
Doc. 47).
Given the foregoing, and considering that this determination is being made at the
pleading stage, the Court declines to dismiss Plaintiffs' ADEA termination claims as a matter of law

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at this juncture. Although Defendants are correct that the Supreme Court, in Gross v. FBL
Financial, Inc., 557 U.S. 167 (2009), mandated a "but for" causation test for ADEA claims,
Plaintiffs' amended and re-stated complaints meet that standard.
As stated herein, Defendants' motions are granted relative to Plaintiffs' breach of
contract and employment discrimination claims asserted under Louisiana state law. They are denied
relative to Plaintiffs' ADEA claims.
New Orleans, Louisiana, this 30th day of September 2014.

_____________________________________
KURT D. ENGELHARDT
United States District Judge

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