England v. CenturyLink Sales Solutions et al

Filing 44

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion to Dismiss, [Doc. No. 35 ], is GRANTED. Signed by District Judge Henry Edward Autrey on 7/28/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JUDY M. ENGLAND,
Plaintiff,
v.
CENTURYTEL OF MISSOURI, LLC,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:16CV475 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss for
Failure to State a Claim, [Doc. No. 35]. Plaintiff opposes the Motion. For the
reasons set forth below, the Motion is granted in part and denied in part.
Facts and Background
Plaintiff’s Amended Complaint alleges that this is an action brought
pursuant to the Missouri Human Rights Act, Chapter 213, RSMo for age and sex
discrimination, as well as retaliation. The following facts are alleged:
Plaintiff is a citizen of Missouri.
CenturyLink Sales Solutions is a Delaware Corporation with its principal
place of business at 100 CenturyLink Dr., Monroe, Louisiana, 71203. Embarq
Management Company is a Delaware Corporation with its principal place of
business at 100 CenturyLink Dr., Monroe, Louisiana, 71203. “CenturyLink” is a

fictitious name listed with the Missouri Secretary of State. The owner is listed as
CenturyTel of Missouri, LLC. The address listed is 100 CenturyLink Dr., Monroe,
Louisiana, 71203. Embarq Management Company is registered with the Missouri
Secretary of State. The address listed is 100 CenturyLink Dr., Monroe, Louisiana,
71203.
On January 21, 2016, Jerry Allen, CenturyLink, provided a response to
Plaintiff’s service letter request. Allen’s response to Plaintiff’s service letter
request was written on CenturyLink letterhead. Allen explained in his letter that
Plaintiff was “…employed by Embarq Management Company as manager
Revenue Assurance”. Allen further explained that Plaintiff “…when Embarq was
spun off, you continued your employment with Embarq through it being acquired
by CenturyTel and until your termination on December 27, 2014.”
CenturyTel of Missouri is registered as a foreign corporation, with its
principal place of business located at 100 CenturyLink Dr., Monroe, Louisiana,
71203, as is the parent of each of the aforementioned entities and foreign
corporations. Embarq Management Company and/or CenturyTel of Missouri,
either one or all of them, employed Plaintiff Judy England during all times relevant
to this Complaint. Each Defendant is registered to do business in Missouri.
Defendants, any or all of them, operated a place of business at 575 Maryville
Centre Drive, St. Louis, MO 63141, during all times relevant.
2

At all times relevant to this lawsuit, Defendants were employers within the
meaning of 213.010(7) RSMo. of the MHRA because they employed more than 6
persons.
On July 30, 2015, Plaintiff timely submitted a charge of discrimination
against Defendants with the Missouri Commission on Human Rights (MCHR),
Charge No 5602015-01152, where she alleged Defendants unlawfully
discriminated against her based-on age and sex, and retaliation.
On November 20, 2015, the MCHR issued its Notice of Right to Sue, and
Plaintiff instituted this action within 90 days of her receipt of the Notice of Right to
Sue.
On April 6, 2016, the case was removed from the Circuit Court of St. Louis
County to Federal court.
Plaintiff was employed by Defendants from July 1997 until her employment
was terminated on December 26, 2014. Plaintiff was a finance/revenue assurance
manager. While Plaintiff was still employed, she was treated worse than younger
employees. For example, other, younger employees were allowed to work
remotely, but Plaintiff was not. Plaintiff was also denied her yearly 1.5% merit
increase in salary in 2014, although younger workers received their salary increase.

3

While employed by Defendants, Plaintiff endured sexual harassment from
her supervisor, John Raphold, who would comment on her appearance, calling her
"hot" at work.
Plaintiff complained to her supervisors about the unfair, discriminatory
treatment she was experiencing at work. Defendants took no action to correct the
unfair discriminatory treatment.
After Plaintiffs employment was terminated, Defendants retaliated against
her for her complaints by reducing her pay and giving false negative references to
Plaintiffs prospective employers, making it difficult for Plaintiff to obtain new
employment.
Count I of Plaintiff’s Amended Complaint is styled “Violation of the
OWBPA and alleges:
Plaintiff was notified in April 2014 that her entire department would be laid
off. At the time of Plaintiff's termination, Plaintiff was a 55-year old woman. In
her department, the majority of persons were over the age of 40.In her department,
the overwhelming majority of persons were females. The lay-off had a
disproportionate impact of laying off predominantly older, female workers.
On January 6, 2015, England was presented with a severance agreement that
contained a Confidential Separation and Release Agreement. England’s severance
agreement included a Confidential Separation and Release Agreement. There was a
4

specific reference to “Exhibit B” in the separation agreement. “Exhibit B” was
intentionally omitted from the separation agreement.
Plaintiff believes none of the employee’s 40 years of age and over, that was
laid-off, received an “Exhibit B packet.” Plaintiff believes “Exhibit B” contained a
list of Employees called the “Decisional Group.”
The release signed by England as invalid under the OWBPA for several
reasons. The release documentation contained material misrepresentations, failed
to describe the affected decisional unit with particularity, failed to disclose the
eligibility factors, and ignored regulatory formatting requirements with respect to
disclosing the ages and job titles of the affected employees.
Defendants made material misrepresentations to the affected employees.
Defendants’ conduct made it unreasonably difficult for England to determine
whether she might have an age discrimination claim at the time she executed the
Release.
Defendants were required to provide information about the ages of both
terminated and retained employees to those who are considering releasing their age
claims. England is correct in stating that Exhibit B was meant to be the provision
in fulfillment of this requirement.
England was not given a fair opportunity to release her age claim because
the language referring to an attached Exhibit B was cut out of her Release
5

Agreement. England was not given an opportunity to execute a waiver knowingly
and voluntarily because the waiver/release is invalid under the OWBPA.
Count II of Plaintiff’s Amended Complaint is styled “Violation of the
Missouri Human Rights Act-Sex Discrimination,” and alleges the following:
Plaintiff is a woman, and is therefore a member of a protected class.
Because of her sex, female, Plaintiff was discriminated against and suffered
adverse employment action by Defendants, including but not limited to, being part
of a department lay off that included mostly women, and being treated differently
than men in the workplace, and being subjected to sexual harassment. Plaintiff’s
sex was a contributing factor in Defendant's decision to terminate her employment,
for all of the above reasons. Because of the discrimination, Plaintiff has suffered
damages. Defendant's conduct was outrageous because of an evil motive and
reckless indifference to the rights of Plaintiff, in that Defendant intentionally
terminated her employment and discriminated against Plaintiff without just cause
or excuse in violation of the Missouri Human Rights Act.
Count III of the Amended Complaint is styled “Violation of the Missouri
Human Rights Act-Retaliation,” and alleges:
Plaintiff opposed age and sex discrimination when she complained to her
supervisors that she was being treated worse than her younger coworkers, and her
male coworkers. Plaintiff had a reasonable belief that she was being discriminated
6

against by Defendants' employees. Defendants took adverse employment action
against her when they terminated her, and thereafter withheld pay from her and
gave false negative references to prospective employers. Plaintiff’s complaints of
discrimination were a contributing factor to the adverse action taken against her.
Defendants treated Plaintiff differently than other employees who did not complain
about discrimination; Defendants withheld money from Plaintiff following her
layoff and gave false, negative references to prospective employers. Plaintiff was
damaged as a result of this retaliation. Defendants' conduct was outrageous
because of an evil motive and reckless indifference to the rights of Plaintiff, in that
Defendants intentionally terminated her employment without just cause or excuse
because Plaintiff was exercising her rights under the Missouri Human Rights Act,
and such termination was in violation of the Missouri Human Rights Act.
Motion to Dismiss Standard
Under Fed.R.Civ.P. 12(b)(6), a party may move to dismiss a claim for
“failure to state a claim upon which relief can be granted.” The notice pleading
standard of Fed.R.Civ.P. 8(a)(2) requires a plaintiff to give “a short and plain
statement showing that the pleader is entitled to relief.” To meet this standard and
to survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation
7

omitted). This requirement of facial plausibility means the factual content of the
plaintiff's allegations must “allow[ ] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Cole v. Homier Distrib. Co.,
599 F.3d 856, 861 (8th Cir.2010) (quoting Iqbal, 556 U.S. at 678). Courts must
assess the plausibility of a given claim with reference to the plaintiff's allegations
as a whole, not in terms of the plausibility of each individual allegation. Zoltek
Corp. v. Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir.2010) (internal
citation omitted). This inquiry is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 679. The Court must grant all reasonable inferences in favor of the
nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872–73 (8th Cir.2010).
Discussion
OWBPA CLAIMS
Defendants move to dismiss Count I because the OWBPA does not provide
a separate, stand-alone cause of action.
In 1990, Congress enacted the Older Workers Benefit Protection Act
(OWBPA) to “clarify the protections afforded older workers under the ADEA.”
Parsons v. Pioneer Seed Hi-Bred Int'l, Inc., 447 F.3d 1102, 1104 (8th Cir. 2006).
The OWBPA is codified at Title 29, United States Code, Section 626 et seq.
(2016). Section 626(f) sets out statutory requirements that waivers of ADEA
8

claims must meet, at a minimum, to be valid and, thus, enforceable. See 29 U.S.C.
§ 626(f) (listing the mandatory statutory requirements). These requirements
mandate that employers give their terminated employees, at a minimum, a certain
time period to consider the ADEA claim waivers, the advice to consult with an
attorney, and certain informational disclosures. Id. If an employer does not comply
with these statutory requirements, then the waiver is not considered knowing and
voluntary, which means that it does not bar the employee's ADEA claims. See
generally Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998) (holding that a
nonconforming waiver does not bar an employee's ADEA suit). The Eighth Circuit
Court of Appeals in Parsons stated that “[t]he requirements [of OWBPA] are strict
and unqualified; if the waiver does not satisfy the statute, it is ineffective as a
matter of law.” Parsons, 447 F.3d at 1104 (citing Oubre, 522 U.S. at 427
(“Congress delineated these duties with precision and without qualification: An
employee ‘may not waive’ an ADEA claim unless the employer complies with the
statute.”)).(Emphasis added).
A preliminary matter is whether Congress wrote the statutory requirements
in such a manner that a court may understand their demands and strictly enforce
them. As with any matter of statutory interpretation, the court turns first to the
plain language of the statute. Owner-Operator Indep. Drivers Ass'n, Inc. v.
Supervalu, Inc., 651 F.3d 857, 862 (8th Cir. 2011) (citing to United States v. I.L.,
9

614 F.3d 817, 820 (8th Cir. 2010) (internal citation omitted) (“The Supreme Court
has ‘stated time and again that courts must presume that a legislature says in a
statute what it means and means in a statute what it says there.’ ”)). Only “[w]hen
the words of a statute are unambiguous, then, this first canon is also the last:
‘judicial inquiry is complete.’ ” I.L., 614 F.3d at 820 (internal citations omitted).
Thus, only if the plain language is ambiguous will the court inquire into other
persuasive aids such as agency regulations and the statute's legislative history.
Title 29, United States Code, Section 626(f)(1), provides in pertinent part:
Except as provided in paragraph (2), 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 [the
ADEA];
(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) .... (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;
10

(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-(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). Much of the statute is written in clear, plain-language. The
court understands that Section 626(f)(1)(A)-(H) lists minimal requirements that
Congress designated to ensure that older workers make “knowing and voluntary”
waivers of their ADEA claims.
The statute provides that “the party asserting the validity of a waiver shall
have the burden of proving in a court of competent jurisdiction that a waiver was
knowing and voluntary.” 29 U.S.C. § 626(f)(3). See Kruchowski v. Weyerhaeuser
Co., 446 F.3d 1090, 1093 (10th Cir. 2006) (“As a preliminary matter ... [f]or
claims concerning § 626(f)(1)(A)-(H), the OWBPA clearly places the burden on
the party asserting a valid waiver of rights to an age discrimination claim to show
that execution of the waiver was knowing and voluntary.”).(Emphasis added).

11

Plaintiff alleges the waiver failed to comply with the OWBPA because it did
not include Exhibit B, which provides the information from which Plaintiff could
make a voluntary and knowing waiver, and was not “written in a manner
calculated to be understood by” an employee. 29 U.S.C. § 626(f)(1)(A); Id. at 16.
Whether or not the waiver was voluntary and knowing is of no consequence
in the matter before the Court. Plaintiff has not alleged a claim under the Age
Discrimination in Employment Act. (“ADEA”). The Supreme Court has made it
clear that the “OWBPA governs the effect under federal law of waivers or releases
on ADEA claims ...” Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427 (1998)
(emphasis added); see also, id. at 426–27 (“The statutory command is clear: An
employee ‘may not waive’ an ADEA claim unless the waiver or release satisfies
the OWBPA's requirements.”); id. at 428 (“The statute governs the effect of the
release on ADEA claims....”); Lockheed Corp. v. Spink, 517 U.S. 882, 894 n.
6(1996) (“The Older Workers Benefit Protection Act ... establishes requirements
for the enforceability of employee waivers of ADEA claims made in exchange for
early retirement benefits.”).
This language strongly indicates that the OWBPA simply determines
whether an employee has, as a matter of law, waived the right to bring a
separate and distinct ADEA claim. The OWBPA does not, by itself,
determine in the first instance whether age discrimination has occurred.
Indeed, Plaintiff has not cited a single case in which a court has held
otherwise. Moreover, the legislative history of the OWBPA clearly
distinguishes between bringing an age discrimination suit and a claim that
the OWBPA has been violated. The Senate Report accompanying the
12

enactment of the OWBPA stated that waiver provisions of the OWBPA
protect the rights and benefits of older workers by “ensur[ing] that older
workers are not coerced or manipulated into waiving their rights to seek
legal relief under the ADEA.” S.Rep. No. 101–263, at 5 (1990), reprinted in
1990 U.S.C.C.A.N. 1509, 1510.
Whitehead v. Oklahoma Gas & Elec. Co., 187 F.3d 1184, 1191–92 (10th Cir.
1999). “[T]he OWBPA simply determines whether an employee has, as a matter
of law, waived the right to bring a separate and distinct ADEA claim. The
OWBPA does not, by itself, determine in the first instance whether age
discrimination has occurred.” Id. at 1192.
Although the Eighth Circuit has not addressed the issue, every other court to
consider it has held there is no independent cause of action under the OWBPA for
money damages. See Newton v. Basys Processing, Inc., No. 16-2662-JAR-JPO,
2017 WL 978119, at *4 (D. Kan. Mar. 14, 2017); E.E.O.C. v. UBS Brinson, Inc.,
Nos. 02Civ.3748RMBTK, 02Civ.3745RMBTK, 2003 WL 133235, at *3
(S.D.N.Y. Jan.15, 2003) (Berman, J.) (“Virtually every court that has decided the
issue of whether a violation of the OWBPA, by itself, establishes age
discrimination has concluded that it does not.”) and Whitehead, 187 F.3d 1184
(10th Cir.1999) (holding same). The Whitehead decision is illustrative. The
plaintiffs in Whitehead accepted an early retirement offer from their employer in
exchange for signing a release of any ADEA claims. Whitehead, 187 F.3d at 1186–
87. In subsequent litigation, the plaintiffs asserted that the release violated the
13

OWBPA because their employer did not give them the required 45 days to decide
whether to sign it. Id. at 1191. To remedy this violation, plaintiffs requested that
the court negate the waiver and award them damages, although plaintiffs had no
separate ADEA claim. Id. at 1191–92.
The court ruled against plaintiffs, holding that “waiver provisions [are not]
swords that provide plaintiffs with an independent cause of action for affirmative
relief, other than declaratory or injunctive relief to negate the validity of the
waiver, as it applies to an ADEA claim.” Id. at 1191. As support for its decision,
the Tenth Circuit cited Oubre, in which the Supreme Court made clear that
“‘OWBPA governs the effect under federal law of waivers or releases on ADEA
claims.’ ” Id. As the Circuit Court explained, Oubre strongly indicates that the
OWBPA simply determines whether an employee has, as a matter of law, waived
the right to bring a separate and distinct ADEA claim. The OWBPA does not, by
itself, determine in the first instance whether age discrimination has occurred.
Whitehead, 187 F.3d at 1192.
The Court is persuaded by the Tenth Circuit's reasoning in Whitehead. The
Supreme Court's language in Oubre strongly suggests that an OWBPA violation
does not in and of itself support an action for money damages against an employer.
Plaintiff’s OWBPA claim is dismissed.
Missouri Human Rights Act Claims
14

Plaintiff attempts to salvage her MHRA claims of sex discrimination and
retaliation through the OWBPA. Plaintiff argues that “a release cannot bar a
former employee’s ADEA claims if it does not conform to the strict requirements
of the OWBA, irrespective of the validity of the contract as to other claims.” As
Defendants correctly argue, and as discussed supra, the OWBPA applies only to
releases vis a vis claims under the ADEA. Nothing contained in the OWBPA
applies to, or invalidates a release as it relates to claims brought for alleged
violations of the MHRA.
Plaintiff admits that she executed the release and that she received
substantial compensation in exchange for the release. The release, therefore,
precludes Plaintiff from bringing her claims for sex discrimination and retaliation.
Her attempt to resurrect released MHRA claims through her allegations that
Defendants failed to comply with the OWBPA fails.
Defendants seek sanctions against Plaintiff because they argue her claims
were baseless and unsupportable. The Court’s review of the pleadings before it
convinces the Court that Plaintiff had a sincere belief that she could raise her
claims. Sanctions are not warranted.
Conclusion
Based upon the foregoing analysis, the Motion to Dismiss is well taken.
Plaintiff’s Amended Complaint fails to set forth any claims for relief.
15

Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, [Doc.
No. 35], is GRANTED.
Dated this 28th day of July, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

16