Ribble et al v. Kimberly-Clark Corporation et al

Filing 183

ORDER granting in part and denying in part 70 Motion for Partial Summary Judgment; granting in part and denying in part 77 Motion for Summary Judgment, signed by Judge William C Griesbach on 02/21/2012. See Decision and Order for full detail. (cc: all counsel) (Griesbach, William)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
BRENDON F. RIBBLE, et al.,
Plaintiffs,
v.

Case No. 09-C-643

KIMBERLY-CLARK CORPORATION, et al.,
Defendants.

DECISION AND ORDER

This is a collective action for relief under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621 et seq. Plaintiffs are 57 former Kimberly-Clark Corporation (K-C)
employees who were fired or forced to resign over a three-year period as part of a series of
reductions in force (RIFs) carried out pursuant to K-C’s Global Business Plan. All but one of the
plaintiffs signed severance agreements under which they agreed to release K-C from liability for any
claims they had against the company in return for severance payments and other benefits. The
plaintiffs who signed the agreements allege that the releases contained therein are invalid because
neither the written agreements themselves, nor the documents provided contemporaneously with
them, comply with The Older Workers’ Benefit Protection Act (OWBPA), 29 U.S.C. § 626(f)(1).
Recognizing that the validity of the releases was a threshold issue in the case that could
prove dispositive as to almost all of the plaintiffs, the parties proposed and the Court adopted a case
management plan that limited discovery to that issue in Phase I. Phase I discovery is complete, and
the case is now before the Court on cross motions for summary judgment addressing the validity
of the releases. A hearing was held on October 5, 2011 to address several questions the Court raised

concerning the underlying record. In response to that hearing and this Court’s October 25, 2011
Order to Supplement the Record (ECF No. 168), plaintiffs and defendants submitted responses to
supplement further the existing record. In particular, the Court wanted additional information on
“(1) what positions within the organizational unit listed in the “Reduction In Force” paragraph were
not included in Exhibit B; and (2) the number, if any, of persons holding the same job titles or
classifications as those selected for termination that were not included in the Exhibit B along with
their ages.” (ECF No. 168 at 1–2.)
After reviewing the briefs and supplements to the record, for the reasons set forth below, the
Court concludes that the disclosures required under the OWBPA were deficient as to three of the
eight RIFs at issue, and the waivers signed by the plaintiffs who were terminated as part of those
RIFs are therefore invalid. Plaintiffs’ motion for partial summary judgment is therefore granted in
part. As to the remaining RIFs, however, the undisputed material facts reveal that K-C has
complied with the OWBPA and the waivers signed by the plaintiffs affected by those RIFs are
therefore valid. K-C’s motion for summary judgment is therefore also granted in part.

I. Background
K-C is a global health and hygiene company with over 50,000 employees. Prior to being
laid off or electing to leave K-C in exchange for severance packages, plaintiffs were employed in
various positions by K-C’s two wholly owned subsidiaries, Kimberly-Clark Global Sales LLC and
Kimberly-Clark Worldwide, Inc. In 2003 K-C instituted a new Global Business Plan (GBP) setting
forth K-C’s goals for product and brand positioning, financial performance, cost cutting, and
restructuring. The GBP was K-C’s overall strategic business plan. While never formally reduced
2

to writing, the new GBP was the subject of a detailed 186-slide PowerPoint presentation made to
K-C’s board of directors on June 1, 2005. (ECF No. 34, Ex. A.) One of the many stated goals of
the Global Business Plan was to cut about 10% of the company’s workforce. The cuts were
accomplished through retirements, normal attrition and RIFs.
K-C developed and adopted an employee benefit plan called the Global Business Plan
Severance Pay Plan (GBP SPP) in order to provide severance packages to employees terminated as
a result of GBP initiatives. The severance packages were offered to employees who lost their jobs
as a result of GBP initiatives in return for a waiver and release of claims against K-C, including
ADEA claims. The severance packages included lump sum payments and company-paid COBRA
coverage, outplacement services and employee assistance programs. Additionally, employees of
retirement age could choose between receiving the lump sum severance payment and the other GBP
SPP benefits or an unreduced pension plus a $10,000 lump sum payment.
K-C has identified 77 separate RIFs it implemented between 2005 and 2008. Eight of the
RIFs identified by K-C resulted in the terminations of one or more of the named plaintiffs. Using
K-C’s nomenclature, they include: Essential Sciences 2006; Adult Feminine Care Product and
Technology Development (AFC P&TD) 2006; Consumer Sales 2006; Corporate Innovations 2006;
North America Consumer Products (NACP) 2006; Family Care Network of the Future 2008;
Corporate Innovations CIO 2008; and North American Customer Development (NACD) 2008. All
but one of the plaintiffs were terminated pursuant to one of these RIFs.1

1

Plaintiff Tony Wickham’s termination was not part of any of the RIFs at issue here. K-C’s
motion does not address his claim.
3

Fifty-six of the fifty-seven plaintiffs signed Separation Agreements in which they gave K-C
a full and final release of claims, including ADEA claims, in return for payments ranging from
$10,000 (plus unreduced pension benefits) to almost $139,000.2 In all, K-C paid more than $3
million to plaintiffs in lump sum payments pursuant to the signed Separation Agreements. Each
Separation Agreement contained an acknowledgment that the signing employee had been advised
by K-C to consult with an attorney in regard to the matter, that he or she had been given 45 days to
decide whether to the sign the Agreement, and that he or she would have seven days after signing
in which to revoke the Agreement. The Separation Agreements signed by the fifty-five plaintiffs
also contained (1) a description of the class or unit of employees who were subject to the RIF and
(2) an attachment listing the job titles and ages of those employees within the group who were
selected for termination and those who were not selected. None of the plaintiffs who signed
Separation Agreements elected to revoke their Agreement; nor have any returned the payments they
received in return for their release of claims against K-C.
Plaintiffs challenge the validity of the waivers they signed on several grounds, the first three
of which are common to all of the Separation Agreements. First, plaintiffs contend the waivers are
invalid because the Separation Agreements failed to comply with the general requirements of the
OWBPA in that they improperly prohibit employees from filing charges with the EEOC. Next,
plaintiffs contend the waivers are invalid because the Separation Agreements improperly prohibit
judicial review of OWBPA compliance issues. Third, plaintiffs argue the waivers are invalid
because K-C failed to advised them in writing of their right to seek legal counsel.
2

Plaintiff Richard Schmidt did not sign an agreement because he did not wish to waive his
potential ADEA claim against K-C. K-C therefore does not seek summary judgment at this point
as to his claim either.
4

Plaintiffs’ primary challenge, however, is directed at K-C’s attempt to comply with the
OWBPA disclosure requirements in connection with the various RIFs pursuant to which their
employment was terminated. Plaintiffs contend that due to its flawed reading of the OWBPA and
the EEOC’s interpretive regulations, K-C failed to disclose in an understandable manner the
information required in order to permit the affected employees the opportunity to assess the validity
of the claims they were being asked to waive. As a result, plaintiffs contend that the waivers are
invalid and each of their claims must be allowed to proceed.
The Court will address each of plaintiffs’ challenges, beginning with those common to each
of the Separation Agreements. Before doing so, however, it will be helpful to turn to the specific
requirements of the OWBPA.

II. The Older Worker Benefits Protection Act
The Older Worker Benefits Protection Act (OWBPA), 29 U.S.C. § 629(f), “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 she can assess, with the assistance of counsel, the viability of
such a discrimination claim. Raczak v. Ameritech Corporation, 103 F.3d 1257, 1259 (6th Cir.
1997). Specifically, the OWBPA provides that an individual may not waive a claim under the

5

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-(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.

6

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).
Plaintiffs argue 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. (Pl.
Reply, ECF No. 149 at 1–3.) In support of their argument for its strict construction, plaintiffs point
to the Supreme Court’s discussion of the Act in Oubre:
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.
522 U.S. at 426–27. In view of this language, plaintiffs contend, K-C’s characterization of various
challenges to the Separation Agreements as “technical violations of . . . imprecise terms,” the
elevation of “form over substance,” and “a dogmatic exercise in definition” miss the mark. (Id. at
2.) In plaintiffs’ view, K-C’s application of a “totality of the circumstances” standard is in direct
conflict with Oubre’s “strict and unqualified” requirement. (Id.)

7

But plaintiffs read 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
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 Act. 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. Compliance was not at issue.
The few courts that have addressed this issue have noted the disclosure required under
§ 626(f)(1)(H) is so imprecise, it cannot possibly require strict application. In Raczak v. Ameritech
Corp., 103 F.3d 1257, 1259 (6th Cir. 1997), for example, the Sixth Circuit noted 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 reasoned 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
8

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.”).
Employees too have an interest in being able to effectively waive their right to assert ADEA
and other claims against former employers. Potential claims against the employer may be the only
leverage an employee facing a RIF has in seeking favorable severance terms. Employers willing
to offer generous severance packages in return for such a waiver may have little incentive to offer
the same benefits to employees if the rules governing waivers are so uncertain that the validity of
any waiver the employees sign is questionable at best. The fact that, as the Court held in Oubre,
employees who sign waivers can sue their employers without first returning the benefits they
received as a condition of waiving their claims reduces even further employers’ incentive to offer
such packages absent some assurance that the waiver will ultimately (and likely) be enforceable.
Employees are poorly served by a construction of the OWBPA that creates so high a standard that
employers despair of meeting it. Here, the vast majority of the K-C employees who received
severance packages have not sued. To the extent this suggests that most of the former employees
did not have viable claims against K-C, they clearly benefitted from K-C’s program. These
considerations suggest that an unduly high standard for determining OWBPA compliance should
be avoided.
The Court therefore concludes that while an employer must comply with the requirements
of the OWBPA in order to obtain a valid waiver, the imprecise language of the statute requires that
compliance be measured in relation to the purpose underlying the act. See Adams v. Ameritech
Servs., Inc., 231 F.3d 414, 431 (7th Cir. 2000) (noting that “a literal approach to the statute could
lead to hypertechnical requirements that have little to do with the purpose of the law.”). It is with
these principles in mind that I address the parties’ cross motions for summary judgment.
9

III. Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with any affidavits, show that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). The moving party has the initial burden of demonstrating that
it is entitled to summary judgment. Id. at 323. Once this burden is met, the nonmoving party must
designate specific facts to support or defend its case. Id. at 322-24.
In analyzing whether a question of fact exists, the court construes the evidence in the light
most favorable to the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). The mere existence of some factual dispute does not defeat a summary judgment
motion, however; there must be a genuine issue of material fact for the case to survive. Id. at
247-48.
"Material" means that the factual dispute must be outcome-determinative under governing
law. Contreras v. City of Chicago, 119 F.3d 1286, 1291 (7th Cir. 1997). Failure to support any
essential element of a claim renders all other facts immaterial. Celotex, 477 U.S. at 323. A
"genuine" issue of material fact requires specific and sufficient evidence that, if believed by a jury,
would actually support a verdict in the nonmovant's favor. Fed. R. Civ. P. 56(e); Anderson, 477
U.S. at 249. Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
It is important to note that K-C, as 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. 29 U.S.C.
§ 626(f)(3). The party who has the burden of proof at trial has a significantly different burden on
10

summary judgment than the party who does not. The party who has the burden of proof at trial must
show that the evidence supporting his claim is so compelling that no reasonable jury could return
a verdict for his opponent. Select Creations, Inc. v. Paliafito America, Inc., 911 F. Supp. 1130,
1149 (E.D. Wis. 1995) (citing Anderson, 477 U.S. at 248). The party without the burden of proof
at trial, on the other hand, need only inform the court of “the basis of its motion and identif[y] those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together
with affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of material
fact.” Celotex, 477 U.S. at 323. The burden then shifts to the other party to designate specific facts
to support or defend each element of the cause of action, showing that there is a genuine issue for
trial. Id. at 322-24. In other words, to obtain summary judgment on the validity of the waivers here,
K-C must demonstrate that its evidence leaves no room for an adverse finding on each requirement
of the OWBPA; whereas to avoid summary judgment in favor of the plaintiffs, K-C must
demonstrate that there is sufficient evidence in its favor to create a jury issue. Winskunas v.
Birnbaum, 23 F.3d 1264, 1267–68 (7th Cir. 1994); Select Creations, Inc., 911 F. Supp. at 1150.

VI. Plaintiffs’ Common Challenges To The Validity Of Their Waivers
A. Prohibition Of EEOC Charges
Federal regulations prohibit separation agreements from waiving the employee’s right to file
a charge with the EEOC. See 29 C.F.R. § 1625.22(i)(2)(I) (stating that “[n]o waiver agreement may
include any provision prohibiting any individual from . . . [f]iling a charge or complaint . . . with
the EEOC.”). Plaintiffs argue the separation agreements they signed contain such a prohibited
waiver. Put another way, plaintiffs aver K-C’s waivers are invalid because language contained
therein equates to an improper attempt to ban the filing of EEOC charges.
11

Plaintiffs’ argument fails for two reasons. First, the waivers do not prohibit employees from
filing EEOC charges. If the waivers did contain such a ban, the ban would be invalid since the
OWBPA expressly prohibits any waiver from affecting the EEOC’s rights and responsibilities to
enforce anti-discrimination laws andfrom interfering with the protected right of an employee to file
a charge or participate in an investigation conducted by the EEOC. Plaintiffs’ argument also fails
because, unlike the other information § 626(f)(1) requires the employer to convey to the employee,
there is no requirement that the ban against waivers of EEOC charges be set forth in the waiver
agreement.
The separation agreements at issue include several paragraphs of broad waiver language
detailing all the claims an employee gives up by signing the agreement. Immediately following
these broad paragraphs is exclusionary language: “the above release . . . excludes any other claim
which cannot be released by private agreement.” K-C argues this sentence notifies employees they
are not prohibited from filing a charge with the EEOC simply by signing the agreement. Plaintiffs
argue K-C’s language is vague and overly generalized, especially when considered in conjunction
with other specific language from the separation agreements. (Pl.’s Mem. in Sup., ECF No. 71 at
13)(quoting language from 2006 and 2008 separation agreements.) Plaintiffs argue this uniquely
broad language could lead an employee to believe that by signing the separation agreement he or
she is giving up a multitude of rights, including the right to file a charge with the EEOC.
Certainly K-C’s language could have been more explicit regarding the right to pursue a
charge with the EEOC. Indeed, K-C has since modified its waiver form. But simply because the
language could have been clearer does not mean that the language impermissibly prohibited a
signing employee from later filing a charge with the EEOC. Indeed, many of the plaintiffs in this
12

action both signed the waivers with the disputed language and still filed EEOC charges; over
seventy-five percent of plaintiffs signed waivers and later filed EEOC charges. (Def.’s Stmt. Prop.
Mat’l Facts “DSF” ¶ 367, ECF No. 79.) This fact demonstrates that even many plaintiffs
themselves did not believe the waiver prohibited them from filing a charge with the EEOC. It also
undermines any argument plaintiffs may have that K-C’s waiver language was not written in such
a manner calculated to be understood by the average individual eligible to participate. Many of the
plaintiffs — who were primarily educated professional workers — understood at some point that
they had not given up their right to file an EEOC charge simply because they signed the waivers.
(DSF ¶¶ 62–65.)
In fact, the EEOC’s own sample waiver is remarkably similar to the waiver language used
by K-C. The EEOC sample includes the language: “Except as to all claims that cannot be released
under applicable law...” (Ex. A to K-C Br., ECF No. 130.) This is similar to K-C’s 2008 and 2009
waivers, which contained the language: “the above release . . . excludes any other claim which
cannot be released by private agreement.” Neither the EEOC sample waiver nor the K-C waiver
affirmatively state that an employee retains the right to file an EEOC charge despite signing a
waiver. In other words, the regulations simply do not require that an employer list each specific
non-waivable right in a separation agreement. There are several such non-waivable claims: claims
for unemployment, claims for workers compensation, claims for COBRA benfits, and FLSA and
ERISA claims. (Id.) Nothing in the regulations or controlling law requires a separation agreement
to list, by name, each of the non-waivable claims.
In Thomforde v. IBM, 406 F.3d 500 (8th Cir. 2005), the Eighth Circuit held a General
Release And Covenant Not To Sue invalid under the OWBPA because, by attempting to make clear
13

that the employee retained his right to file with the EEOC and sue for age discrimination, the release
failed to make clear that to the employee that he was waiving any age discrimination claim he might
have had: “Without a clear understanding of the legal differences between a release and a covenant
not to sue, these provisions would seem to be contradictory; how can an employee bring a suit solely
under the ADEA if the employee has waived all claims under the ADEA?” Id. at 503. Since the
employee could have reasonably understood he was not waiving his potential ADEA claim, the
Court held the release invalid. Here, by contrast, the employees harbored no confusion over the fact
that they were being asked to waive any potential ADEA claims they might have had. If anything,
the fact that they might have thought the waiver was even broader would have caused them to
exercise greater care in reaching a decision. See also Ridinger v. Dow Jones & Company, Inc., 651
F.3d 309, 316 (2nd Cir. 2011) (“Ridinger has pointed to nothing in the Separation Agreement that
could have led him to believe he retained the right to bring an action alleging age discrimination in
violation of the ADEA, rather than simply an action challenging the validity of the Separation
Agreement.”).
In sum, I conclude as a matter of law that K-C’s separation agreements do not contain a
charge filing ban. While the agreements could have more explicitly stated that a signing employee
retains the right to file a charge with the EEOC, such specificity is not required. There is no genuine
issue of material fact regarding plaintiffs’ allegation that K-C’s separation agreement includes a
charge filing ban because a plain reading of the K-C waiver language cannot support plaintiffs’
view. But even assuming the K-C separation agreements did contain a charge filing ban, such a ban
would be severable and thus would not invalidate the entire agreement. The agreements explicitly
state that “[t]he provisions of this Agreement are severable, and if any part of the is Agreement is
14

found by a court of law to be unenforceable, the remainder of the Agreement will continue to be
valid and effective.” (DSF ¶ 371.)
Courts have concluded a charge filing ban can be severed. See Cosmair, 821 F.2d at
1090–91 (“the fact that a waiver of the right to file a charge is void does not invalidate a waiver of
a cause of action with which it is conjoined.”); see also Theissen v. General Elec. Capital Corp.,
232 F. Supp.2d 1230, 1242–43 (D. Kan. 2002) (“[T]he court is unwilling to conclude that an
otherwise knowing and voluntary waiver would be invalid simply because the language of the
waiver could be interpreted to interfere with the employee’s right to communicate with the EEOC
when communications with the EEOC are simply not an issue in the litigation”). Such an analysis
is supported by the plain text and structure of the OWBPA. Nothing in the language of the OWBPA
suggests that a waiver is rendered invalid if it fails to explain clearly an employer cannot prohibit
employees from filing charges or cooperating with the EEOC. And the structure of OWBPA
indicates that the presence of a charge filing ban does not, per se, invalidate a separation agreement:
[T]he statutory framework of the OWBPA reflects that section 626(f)(4) is not one
of the minimum requirements for a knowing and voluntary waiver; those minimum
requirements are enumerated in section 626(f)(1). Similarly, the language of section
626(f)(4) — in stark contrast to the language of section 626(f)(1) — in no way
suggests that a waiver that restricts the right of an individual to communicate with
the EEOC is automatically rendered invalid or that it may not be considered
knowing and voluntary.
Theissen, 232 F. Supp. 2d at 1242. In light of the structure of section 626(f), this Court is
unpersuaded that the presence of a charge filing ban — in and of itself — renders an entire
separation agreement invalid. This is especially true where, as here, the language contained in
K-C’s separation agreement has in no way been used to justify interfering with the protected right
of an employee to file a charge with the EEOC. Accordingly, plaintiffs are not entitled to relief on
the ground that the waiver prohibited them from filing charges with the EEOC.
15

B. Right to Seek Judicial Review of OWBPA Compliance Issues
Plaintiffs next argue the waivers are invalid because they prohibit them from seeking judicial
review for OWBPA compliance. According to plaintiffs, this alleged prohibition renders the
waivers unenforceable. Again, plaintiffs’ argument fails both because the agreements contain no
such prohibition and because, even if they did, it would not render the waiver invalid.
K-C has never claimed the separation agreements bar the plaintiffs from testing the validity
of the releases in court. As K-C points out, the agreements contain a release of claims, which is an
affirmative defense to a claim asserted in a lawsuit, but not a covenant not to sue. The distinction
may not be clear to a non-lawyer, but employers are not required to provide a law school education
as a condition of obtaining a valid waiver. Instead, the employer is required to advise the employee
in writing to consult with an attorney. Section 626(f)(1)(E). Nothing in the language of the
OWBPA or the regulations thereunder requires employers to explain in releases that employees have
the right to seek a judicial determination whether the waiver they have agreed to is valid. This is
not a part of the information that employees need in order to assess the viability of the claims they
are being asked to waive. And to the extent the plaintiffs may have thought they would actually be
giving up such a right, it would have made the waiver less, rather than more, attractive. In other
words, the disclosure did not minimize the limitations and thereby induce an employee to sign the
agreement without realizing the extent of rights he was relinquishing.

See 29 C.F.R.

§ 1625.22(b)(4) (“The waiver agreement must not have the effect of misleading, misinforming, or
failing to inform participants and affected individuals. Any advantages or disadvantages described
shall be presented without either exaggerating the benefits or minimizing the limitations.”).

16

Finally, the fact that K-C has asserted counterclaims against the plaintiffs for breach of
contract does not change the result. The counterclaims are apparently contingent claims that K-C
would pursue in the event that the releases given by the plaintiffs are found invalid and they prevail
on their claims against K-C. Alternative and inconsistent claims are permitted under federal
pleading rules. Fed. R. Civ. P. 8(d). If in fact plaintiffs pursue and recover on claims they agreed
to release, then it is arguable they are in breach of the separation agreements and K-C may be
entitled to recover the value of the severance benefits it gave plaintiffs in damages, at least as a
set-off. See 29 C.F.R. § 1625.23(c)(1). On the other hand, if the releases are effective, then K-C
will have received what it bargained for and its counterclaims presumably would be dismissed. The
fact that K-C has filed counterclaims, however, is immaterial to the validity of the plaintiffs’
waivers. For now, the issue is beyond the scope of Phase One, pursuant to this Court’s previous
order, Docket 10.
C. Advice to Seek Legal Counsel
Plaintiffs also contend the separation agreements are invalid because they do not adequately
advise employees to seek the advice of counsel. Under the OWBPA a waiver will not be considered
“knowing and voluntary” unless “the individual is advised in writing to consult with an attorney
prior to executing the agreement[.]” 29 U.S.C. § 626(f)(1)(E). K-C’s separation agreements include
the following language: “[Employee] acknowledges that he [or she] has been advised by K-C to
consult with an attorney in regard to this matter.” (DSF ¶ 33.) Plaintiffs argue that this language
fails because it states that the employee has been advised (past tense) but does not instruct the
employee to consult (present tense) with a lawyer.

17

Ultimately, plaintiffs’ argument amounts to a distinction without a difference. The
separation agreements at issue here are in writing and plainly indicate that plaintiffs were advised
“to consult” with an attorney before signing the agreement. Cf. American 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.”). Courts have found language similar to
K-C’s 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 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).
K-C’s agreements also comport with EEOC guidance that a “waiver must advise the employee in
writing to consult an attorney before accepting the agreement.” (Ex. A to K-C Br, ECF No.130 at
Sec. IV(A)(6).) Both the EEOC’s own sample agreement and K-C’s agreement use past tense:
K-C’s agreement states that the employee “has been advised” and the EEOC’s sample states that
“you were advised” to consult with an attorney. (Id.) Moreover, K-C gave plaintiffs the entire
required time — 45 days — to read and act on the attorney advice provisions contained in the
separation agreements. There is no genuine issue of material fact regarding the attorney advisement
language where, as here, all fifty-six plaintiffs admit that K-C advised them in writing to consult
with an attorney prior to signing their releases, and several did so consult. (Def.’s Stmt. Add’l Facts
“DSAF” ¶ 1, ECF No. 131; DSF ¶ 46.) Accordingly, plaintiffs’ allegation that K-C failed to advise
them in writing of their right to consult an attorney fails.
18

V. Decisional Units
Having addressed and set aside the common challenges plaintiffs asserted to the validity of
their releases, I turn now to the primary issue in dispute: whether the informational disclosures
relating to the various RIFs was sufficient under the OWBPA.
The OWBPA requires a more detailed informational disclosure when a waiver is sought “in
connection with an exit incentive or other employment termination program offered to a group or
class of employees.” Section 626(f)(1)(H). In those cases, as noted above, the employer must:
inform[ ] 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)(H). Precisely what these subsections require is the focus of plaintiffs’
principal challenge to the validity of their waivers.
The purpose of this provision is “to ensure that older employees are provided with
information necessary to evaluate any potential ADEA claims they may have before deciding to
release them.” Burlison, 455 F.3d at 1247. In evaluating whether the employer’s § 626(f)(1)(H)
disclosure was sufficient, then, the relevant question is whether the employees were “provided with
the age and job-title information that would be relevant if the employees were to bring an age
discrimination claim arising out of their termination.” Adams v. Moore Business Forms, Inc., 224
F.3d 324, 329 (4th Cir. 2000). To achieve this goal, the OWBPA first requires the employer to
inform the employees as to “any class, unit, or group of individuals covered by such program.”
Section 626(f)(1)(H)(i).
19

The regulations implementing the OWBPA address the required disclosure for group
employment termination programs. These regulations refer to the “class, unit or group” in which
the terminations are made as the “decisional unit”:
When identifying the scope of the “class, unit, or group,” and “job classification or
organizational unit,” an employer should consider its organizational structure and
decision-making process. A “decisional unit” is that portion of the employer's
organizational structure from which the employer chose the persons who would be
offered consideration for the signing of a waiver and those who would not be offered
consideration for the signing of a waiver. The term “decisional unit” has been
developed to reflect the process by which an employer chose certain employees for
a program and ruled out others from that program.
29 C.F.R. § 1625.22(f)(3)(i)(B)
The terms “class, unit, or group” depict abstract concepts that are used to organize
individual members of a workforce. The makeup of the decisional unit may vary widely depending
upon the purpose of the classifier. The regulations recognize as much, noting that “[w]hen
identifying the population of the decisional unit, the employer acts on a case-by-case basis, and thus
the determination of the appropriate class, unit, or group, and job classification or organizational
unit for purposes of section 7(f)(1)(H) of the ADEA also must be made on a case-by-case basis.”
29 C.F.R. § 1625.22(f)(3)(ii)(A).

The term “decisional unit” captures the flexibility and

indeterminate character of the concept.
In a large and complex corporate structure, such as the one in existence at K-C, it would
seemingly always be possible to include or exclude a few additional employees when formulating
a decisional unit. Should the marketing department include employees in advertising or those in
sales? Should the research and development group include product testing employees? Should the
janitorial group include the landscape employees? The regulations do not answer questions like

20

these, perhaps because such groupings, departments, and teams can and do vary from company to
company. See Raczak v. Ameritech Corp., 103 F.3d 1257, 1262 (6th Cir. 1997) (stating that the
terms “job title,” “job classification,” and “organizational unit” should be interpreted on a
case-by-case basis). Given the malleability of these nebulous terms, then, the question becomes
“who decides” what constitutes a relevant job title, classification, or organizational unit. The plain
language of the regulations indicates the decision belongs to the employer. See 29 C.F.R.
§ 1625.22(f)(3)(ii)(D) (“If an employer seeks to terminate employees by exclusively considering a
particular portion or subgroup of its operations at a specific facility, then that subgroup or portion
of the work force at the facility will be considered the decisional unit.”) (emphasis added). At its
core, a “decisional unit” should “reflect the process by which an employer chose certain employees
for a [reduction in force] program and ruled out others from that program.”

29 C.F.R.

§ 1625.22(f)(3)(i)(B). Assuming that the employer’s identification of class, unit or group of
employees from which the employees selected for separation were chosen reasonably describes an
existing organizational unit within the company, the employer’s designation should stand.
The decisional unit need not include an entire department or division within the
organization. The regulations provide “if an employer seeks to terminate employees by exclusively
considering a particular portion or subgroup of its operations at a specific facility, then that
subgroup or portion of the workforce at that facility will be considered the decisional unit.”
29 C.F.R. § 1625.22(f)(3)(ii)(D). Thus, if the employer decides to reduce the number of employees
in a department working in a particular area, the entire department would not be the decisional unit.
But the employer must make clear in its disclosure what portion of the department was considered.
It is not enough to say “certain positions” within a grouping were considered without informing the
21

affected employee in a manner he is likely to understand what positions within the department were
considered. Otherwise, the employer would be free to disguise statistical evidence suggesting
discriminatory intent by selectively excluding positions within a given organizational unit currently
held by younger employees.
Moreover, when the decisional unit is less than the entire department or organizational unit,
the criteria used to narrow the unit, the so-called “eligibility factors,” must be reasonably objective.
Otherwise, the entire department will be considered the decisional unit. Here, too, the regulations
provide an illustrative example:
If the terminees are selected from a subset of a decisional unit, the employer must
still disclose information for the entire population of the decisional unit. For
example, if the employer decides that a 10% RIF in the Accounting Department will
come from the accountants whose performance is in the bottom one-third of the
Division, the employer still must disclose information for all employees in the
Accounting Department, even those who are the highest rated.
29 C.F.R. § 1625.22(f)(4)(v). While perhaps not as explicit as it could be, this regulation still
clarifies an important principle in outlining the limits on an employer’s ability to define a decisional
unit. The regulations define, in their example, the acceptable decisional unit as the “Accounting
Department.” An employer may not, by the logic of this example, define a decisional unit as “the
bottom one-third of the Accounting Department.” In other words, the employer has discretion to
choose its own relevant objective criteria in creating the decisional unit. The regulations do not take
issue with whether the employer defines the relevant decisional unit as the “Accounting
Department” or the broader “Finance Department” or even the narrower “Tax Accounting
Department.” Geography, education level, job title, seniority, current job focus — all of these types
of objective criteria are permissible bases for an employer’s determination of a decisional unit.

22

Squishy, manipulable, subjective criteria, on the other hand — even criteria couched in
purportedly quantified terms, such as “performance” rankings — are impermissible means of
creating a decisional unit, according to the regulation. Given the concerns regarding an employer’s
incentive to manipulate statistics and the relevant decisional pool, the regulations understandably
prohibit an employer from arguing, tautologically, that its “decisional unit” is simply “the
employees it decided were eligible.”
The necessity of a prohibition on subjective criteria as the basis for a decisional unit is most
evident in light of the OWBPA’s other requirements and its purpose. Most significantly, terminated
employees must be adequately advised of the group of employees considered for termination, in
order to determine whether discrimination existed. Thus, in order for a terminated employee to
assess, meaningfully, whether or not discrimination played a role in his or her release, the employer
must describe the relevant decisional unit in objective terms, consistent with the OWBPA and the
regulations. See Kruchowski v. Weyerhaeuser Co., 446 F.3d 1090, 1094-95 (10th Cir. 2006)
(holding that when the decisional unit identified in severance agreement differs from the actual
decisional unit used, waiver is invalid).
In addition to informing employees selected for termination of the decisional unit that is the
subject of the RIF, the employer must also inform the affected employee of “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)(H)(ii). The employer must include the job titles and ages of all of the employees within
the decisional unit and indicate those who were retained and those whose employment was
terminated.
23

Finally, the regulations also set out “special rules” for “[a]n involuntary termination program
in a decisional unit” which “take[s] place in increments over a period of time.” 29 C.F.R.
§ 1625.22(f)(4)(vi). “Specifically, information supplied with regard to the involuntary termination
program should be cumulative, so that later terminees are provided ages and job titles or categories,
as appropriate, for all persons in the decisional unit at the beginning of the program and for all
persons terminated to date.” Id. Cumulative disclosures are not required, however, simply because
an employer uses multiple RIFs over a period of time. The language of the regulation indicates that
the employer must provide a cumulative disclosure only when the successive terminations occur
within the same decisional unit as part of the same termination program.
Plaintiffs’ overarching argument is that K-C’s “Global Business Plan was an involuntary
termination program” that really “took place” in three decisional units now identified by plaintiffs.
(Pl. Opp. Br., Dkt. 125 at 17.) Plaintiffs contend that what K-C has identified as the eight RIFs
pursuant to which the employment of 52 of their number were terminated were in fact components
or increments of three larger RIFs that were implemented over time in three overall decisional units.
Plaintiffs contend that the Essential Sciences 2006 RIF, for example, was in fact an increment of
a larger RIF the decisional unit of which was the entire R&D/CIO Organization. The other RIFs
that K-C implemented in this decisional unit, according to plaintiffs, included the 2005 Analytical
and Measurement Technology (AMT) and Product and Technology Development (P&TD) RIF, the
2006 Corporate Inovation Organization RIF, and the 2008 Enterprise Growth Incubator (EGI) RIF.
The 2006 AFC P&TD RIF, plaintiffs contend, was part of a larger RIF affecting the Personal Care
Product and Technology Development decisional unit that also included the NACP RIF which took
place in September of 2006, as well as an earlier NACP RIF that took place a month earlier in
24

August of 2006. And the 2006 Consumer Sales RIF, plaintiffs argue, was part of a larger RIF
affecting a decisional unit plaintiffs identify as the NACP Customer Development Organization,
which also included the 2007 Sales RIFs and the 2008 NACD RIF. Plaintiffs contend that the five
remaining individual plaintiffs were not part of any of the decisional units, though three of the five
were included by K-C in the September 2006 NACP RIF.
If this is true, plaintiffs contend that K-C then should have listed the employees chosen in
its earlier RIFs in each RIF that followed. This was clearly not required, however, and would have
made its disclosures far more confusing. Contrary to plaintiffs’ contention, K-C’s Global Business
Plan was not an involuntary termination program and thus did not trigger cumulative disclosures.
Rather, the Global Business Plan covered K-C’s general global strategy including management of
K-C’s portfolio of brands and products, financial performance objectives, cost cutting, and
restructuring. The 186-slide PowerPoint presentation to K-C’s Board of Directors regarding the
Global Business Plan — the only written recitation of the Plan — first refers to a “net headcount
reduction of between 4,500 and 5,5000 [employees]” on slide number 77 and makes only passing
references to such reductions thereafter. (Dkt. 34, Ex. A.) The fact that one component of the
Global Business Plan involved cost cutting measures — such as shrinking K-C’s workforce — does
not mean that the Global Business Plan was itself an “involuntary termination program” under the
OWBPA. Indeed, the Global Business Plan does not meet the definition of an “involuntary
termination program” because it does not specifically refer to a “group or class of employees who
were involuntarily terminated and who are offered additional consideration in return for their
decision to sign a waiver.” 29 C.F.R. § 1625.22(f)(1)(iii)(A). Instead it sets out wide-reaching
general corporate goals that include the goal of reducing headcount.
25

Reductions can be

accomplished by attrition and other programs besides involuntary terminations. Simply because
K-C’s Global Business Plan included a Severance Pay Plan does not transform it into an involuntary
termination program. The fact that a company with over 50,000 employees happens to list among
its stated goals its intent to reduce costs and eliminate staff, and provides funds to pay severance,
is simply insufficient to turn the company’s business plan into an involuntary termination plan for
purposes of the OWBPA. I therefore conclude that the Global Business Plan did not require K-C
to make cumulative disclosures as part of its separate reductions-in-force and now turn to the
various RIFs which resulted in the plaintiffs’ terminations.
1. Essential Sciences
Plaintiff Bruce Achter was terminated as a result of the Essential Sciences RIF in March
2006. (Foster Aff., Ex. 4.) He was one of six employees terminated under this RIF. The Separation
Agreement Achter signed informed him that “[e]mployees in specific organizations within the
Essential Sciences Department are eligible for the reduction-in-force program” and provided a list
of the ages and job titles of all 79 employees who were considered for the RIF. (DSF ¶¶ 90–92.)
The Agreement did not say what “specific organizations” were included, however, and whether all
of the employees within those organizations were included, or just some of them.
This vague description fails to convey an essential element Achter needed in order to assess
the validity of a possible age discrimination claim – namely, the actual group of employees that
were considered for termination. In its brief, K-C explains that employees reporting to two specific
managers were those considered within the Essential Sciences Department. This may very well be
true, but K-C’s failure to describe these limitations, or the “eligibility factors,” to the terminated
employees renders meaningless its veracity or good faith in selecting the unit. Under OWBPA an
26

employer not only has an obligation to make appropriate judgments with respect to decisional units,
but must also provide meaningful notice to terminated employees as to the specific group of
employees who were considered – in other words, who was included within the decisional unit. See
Kruchowski, 446 F.3d at 1093-94 (employer failed to comply with OWBPA requirement that
terminated employees be informed of decisional unit at time they consider whether to waive any
ADEA claims when Group Termination Notice established decisional unit as all salaried employees
of mill but employer later indicated that decisional unit was only those salaried employees who
reported to certain manager).
“Employees in specific organizations within the Essential Sciences Department” does not
give terminated employees the tools to make an informed choice as to whether they were singled
out because of their age. Under this vague description, K-C could have left out a large number of
younger employees within the same department who were never considered for termination, thereby
disguising the fact that older workers were over-represented among those who were terminated.
While this may not have occurred, without an adequate description of the relevant group, employees
have no meaningful way to evaluate the merits of their potential discrimination claims. Thus while
“Essential Sciences” might have been a perfectly acceptable decisional unit, “some employees from
Essential Sciences” is not acceptable without providing more detail as to the objective criteria used
to narrow the number of employees within the Essential Sciences Department that were considered.
K-C’s supplement states that the Exhibit B to the Essential Sciences 2006 RIF Separation
Agreement did not identify the employees reporting directly to Directors Everett, Daley, or Wilks,
which comprised 63 employees. (ECF No. 172 ¶ 7.) By failing to provide employees with this
information, K-C essentially cut out almost half of the employees fitting within the vague
27

description of “some employees from Essential Sciences” and therefore did not give the affected
employees an adequate opportunity to assess their claims.
As noted above, the regulations themselves suggest that if less than an entire department of
a facility is considered, the narrowing must be according to objective criteria. K-C both failed to
describe how terminees were selected from a subset of a decisional unit and failed to supply the
information for the entire population of the decisional unit. Thus, the waivers in this RIF could not
have been “knowing and voluntary” within the meaning of the OWBPA and are accordingly invalid.
2. Adult Feminine Care Product and Technology Development 2006
Forty-eight employees, eighteen of whom are plaintiffs, were terminated as a result of the
Adult Feminine Care Product and Technology Development (AFC P&TD) RIF in July 2006. The
Separation Agreements signed by these plaintiffs informed them that “[p]ositions in Adult/Feminine
Care P&TD Department were considered for this program as part of a departmental redesign.” (DSF
¶ 110.) Although the Separation Agreement did not specify which positions in the AFC P&DT
Department were considered, K-C stated in its supplemental findings that all of the positions were
included, with the exception of three directors; one vice president; and three hourly pilot facility
operators who worked on AFC P&TD projects, were paid out of a separate budget, and worked out
of separate facility. (ECF No. 172 ¶ 13.) While it would have been better for K-C to note which
positions within AFC P&TD were excluded in the Separation Agreement, the fact that these
positions were not included would have been clear from the attached Exhibit B, which listed the job
titles and ages of the 191 AFC P&TD employees within the decisional unit that were considered for

28

termination.3 Under the circumstances, any error in not listing the three directors, vice president,
and three hourly pilot facility operators was de minimis. Compare Kruchowski, 446 F.3d at 1095
(rejecting argument that failure to include fifteen employees representing ten percent of the
workforce was di minimis). I therefore conclude that K-C’s disclosure was sufficient.
Plaintiffs’ argument that the AFC P&TD RIF was actually part of a larger RIF is not
supported by the record. In essence, their contention is that because K-C was also in the process
of reorganizing its various departments, it should have treated them as one decisional unit. Since
K-C’s disclosures identified only the pre-reorganization departments or units, and did not include
the ages of all individuals in the reorganized department, plaintiffs argue they were deficient. But
the fact that K-C planned to reorganize or combine various departments does not mean that a RIF
implemented before the reorganization takes place must encompass the members of the other
departments that the reorganization will affect. If management concludes that the AFC P&TD
Department is overstaffed or over budget, for example, there is no reason it may not implement a
RIF affecting only that department before moving forward with plans to combine it with other
departments. The decisional unit remains AFC P&TD even though there may be plans to combine
that department with others down the road.
Plaintiffs also take issue with K-C’s contention that the AFC P&TD RIF was motivated by
budgetary concerns, whereas the pertinent Separation Agreements stated that the RIF was “part of
a department redesign.” (Foster Aff., Ex. 5, ¶ 15.) But whether it was motivated by budgetary
3

I also note that higher level employees are not analogous to those clearly being considered
for the RIF. An over-inclusion of information can be just as problematic as an under-inclusion to
an employee attempting to assess the likelihood of success of a discrimination claim. As managerial
positions perform different functions, have different salaries, and are not analogous, this Court has
no issue with K-C’s decision to exclude them, in this RIF or elsewhere, from Exhibit B.
29

considerations, plans for a department redesign, or both makes no difference, as long as the RIF was
limited to the AFC P&TD Department. It is the decisional unit that the employer is required to
identify pursuant to § 626(1)(f)(H)(i), not the motivation for it, that determines the scope of the
disclosure required under § 626(1)(f)(H)(ii).
In its challenge to each of K-C’s § 626(1)(f)(H) disclosures, plaintiffs repeatedly seek to
combine RIFs in different decisional units so as to invoke the cumulative disclosure rule. But the
cumulative disclosure rule only applies to RIFs in the same decisional unit that are intended to take
place in increments over time. See 29 C.F.R. § 1625.22(f)(4)(vi) (“An involuntary termination
program in a decisional unit may take place in successive increments over a period of time.”) (italics
added). RIFs that are implemented in different decisional units are not subject to the cumulative
disclosure rule. Here, the undisputed evidence establishes that K-C implemented a RIF in the AFC
P&TD Department in July of 2006. Having elected to reduce positions in that department, K-C was
not required to include in its disclosure job classifications and ages of employees from other
departments in order for plaintiffs’ waivers to be valid.
Finally, Plaintffs argue that K-C’s Exhibit B disclosures for the AFC P&TD RIF understated
the number of employees in the department by 31. Since the Exhibit B did not list the job
classifications and ages of all of the employees within the decisional unit who were not terminated,
plaintiffs argue it is deficient and their waivers are therefore invalid. As K-C points out, however,
plaintiffs’ argument is based on an older organizational chart that reflects the number of employees
within the AFC P&TD Department as of December of 2005, not June of 2006. The number of
employees within the decisional unit was 191 by June of 2006 when the RIF was implemented due
to previous transfers, retirements and resignations.
30

I conclude that the separation agreements are valid because they describe with the requisite
specificity (using objective criteria) the positions in the AFC P&TD Department considered for this
program as part of a departmental redesign. Employees terminated as part of the AFC P&TD RIF
could make an “informed choice” so as to make their waivers “knowing and voluntary.” The
waivers in this department are therefore valid.
3. Consumer Sales 2006
One hundred employees, fourteen of whom are plaintiffs, received notification of
termination in 2006 and the relevant decisional unit was identified as: “Consumer Sales employees
in Customer Team East, Customer Team Metro, Customer Team Retail, Customer Team Safeway,
Category Space Management, Eastern Region, Midwest Region, and Western Region are eligible
for the reduction-in-force program.” (DSF ¶ 148.) Exhibit B for this RIF listed the job titles and
ages of the 257 employees within the decisional unit and noted the employees that had/had not been
selected for termination. (DSF ¶ 150.) This RIF was caused by restructuring certain portions of the
Consumer Sales Organization. (DSF ¶¶ 124, 125, 127.) The leaders of the teams that faced cuts
provided input and the decisions were made by K-C’s General Manger of U.S. Retail Operations
and the four Regional Directors who reported to him. (DSF ¶¶ 119, 121, 123, 133–35, 138, 141.)
The disclosure is sufficient. The description provides sufficient notice as to the decisional
unit from which the terminated employees are drawn. Although K-C did not include on the
accompanying Exhibit B six administrative assistants who held the only non-exempt job titles on
the teams, this was not fatal. (ECF No. 172 ¶¶ 18–19.) Administrative assistants are not analogous
to the other employees selected for termination in the Consumer Sales 2006 RIF, and the omission
of these positions would also have been apparent from the attached Exhibit B. The waivers are
accordingly valid.
31

4. Corporate Innovation Organization (CIO) 2006
The Innovations 2006 RIF refers to a reduction K-C implemented in three areas within what
it called the Corporate Innovation Organization in September of 2006. Those three areas, according
to the Separation Agreements, included Innovation Center – NATO, Enterprise Growth Incubator,
and Innovation Training Recruiting. (Ex. 8, ¶ 15.) A total of 33 employees, six of whom are
plaintiffs, were selected for termination as a result of this RIF out of a total of 282.
Plaintiffs’ primary challenge to this RIF is that the actual decisional unit is much broader.
According to plaintiffs it should have included “the entire [Research & Development]/[Corporate
Innovation Organization]” including not only the above referenced 33 employees from 2006 but
also: (1) a 2005 RIF from the Analytical and Measurement Technology group; (2) a 2006 RIF from
the Essential Sciences group; (3) a 2008 RIF from the Corporate Innovations Organization; and (4)
a 2008 RIF from the Enterprise Growth Incubator team. Plaintiffs argue that K-C’s Innovations
2006 RIF “affected many of the same subgroups that were touched by the two previous RIFs”
(number 1 and 2 as listed above). (Pl. Br. in Sup., ECF No. 71 at 51.) Plaintiffs see a common
thread running through the RIFs because the Innovations 2006 Exhibit B listed some of the same
employees who had been previously listed in the Exhibit Bs from the two earlier RIFs. (Foster Aff.,
ECF No. 73, ¶ 21.)
Here again, plaintiffs’ argument that K-C failed to comply with the OWBPA is premised on
their own opinion of what the decisional unit should have been, as opposed to the unit from which
K-C actually selected the employees for separation. As noted above, K-C did consolidate three RIFs
into one decisional unit, showing a willingness to consolidate RIFs where appropriate. A decisional
unit should “reflect the process by which an employer chose certain employees for a program and
32

ruled out others from a program.” 29 C.F.R. § 1625.22(f)(3)(i)(B). Here, plaintiffs focus on the fact
that between 2005 and 2008 K-C’s Research and Development Group underwent significant
changes while changing into the so-called Corporate Innovation Organization. But this long-term
organizational change does not equate to “a single process” by which K-C “chose certain
employees” for termination. Id. Instead each RIF that affected the broader Research and
Development area was initiated at different times and involved different sub-groups, or decisional
units of employees. The mere fact that some employees were considered for — and listed on the
Exhibit Bs of — multiple RIFs does not mean all five RIFs were part of a single process. Essential
Sciences was merged with Innovations – NATO, following the earlier RIF in that department. Since
NATO was one of the three departments whose employees were considered for termination for the
Innovations 2006 RIF, members previously considered for termination during the Essential Sciences
RIF were included on the Exhibit B disclosure for the Innovations 2006 RIF. But the Innovations
2006 RIF covered many more employees than were considered for the earlier Essential Sciences
RIF. Thus, the decisional units for the two RIFs were different, and the cumulative disclosure rule
did not apply.
Plaintiffs also argue that K-C’s disclosure concerning the Innovations 2006 RIF is
insufficient because it failed to inform the individual employees in writing in a manner calculated
to be understood by the average employee as to what class, unit, or group of employees the RIF was
intended to cover. While plaintiffs do not take issue, for purposes of this argument, with the
Enterprise Growth Incubator and Innovation Training Recruiting portions of the RIF, they argue that
the use of the term Innovation Center – NATO was materially misleading because no such
department or unit was identifiable in September 2006, when the RIF was announced.
33

Notably, plaintiffs’ argument is based entirely on their attorneys’ analysis of certain K-C
documents. That fact that many of the employer’s documents do not reflect recent changes in
organizational structure, however, is not evidence that a unit created as a result of those changes
does not exist. Plaintiffs point to no testimony of their own, whether by declaration or deposition,
indicating that they did not understand what organizational unit K-C meant by Innovation Center
– NATO. K-C, on the other hand, has responded to plaintiffs’ attorneys’ analysis with declarations
of Cheryl Perkins, the Senior Vice-President and Chief Innovation Officer who headed the
Corporate Innovation Organization starting in January 2006, and Rob Everett, her deputy who led
the Innovation Center – North America, which became Innovation Center – NATO in March 2006.
(Decl. of Cheryl Perkins, ECF No. 97 ¶¶ 1, 12; Decl. of Rob. Everett, ECF No. 86, ¶¶ 15-16.)
Everett, in particular describes the formation of Innovation Center – NATO, along with Innovation
Center – Asia, in March 2006, and the merging of what remained of Essential Sciences after the
March RIF. An attached email substantiates his account of the formation and existence of such an
organizational unit, and an organizational chart shows its make-up just prior to the September RIF.
(Everett ECF 86, Ex. A and B.)
In the face of the evidence offered by K-C and absent any evidence of actual confusion on
the part of the plaintiffs affected by the Innovations 2006 RIF, I conclude that K-C is entitled to
summary judgment as to the release plaintiffs signed as to this RIF as well. Here, K-C used
objective criteria in describing the relevant decisional units — the Innovation Center – NATO,
Enterprise Growth Incubator, and Innovation Training Recruiting and Career Development
Departments — and the employees listed in the relevant Exhibit B exactly matched the described
decisional unit. (ECF No. 172 ¶ 23.) The waivers were accordingly valid.
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5. North Atlantic Consumer Products 2006
K-C’s decisional unit disclosure stated:
[Employee’s] relationship with KCC is ending as part of a group reduction-in-force
program. Six areas within the North American Consumer Product organization were
selected for a headcount reduction in order to further the Organizational Redesign
associated activities. These six areas are: Baby and Child Care Products and
Technology Development, Marketing Services, Product Supply, Customer Supply
Chain, Customer Development, and Marketing. Certain persons within these six
areas were considered for the program.
(DSF ¶¶ 223, 267.) Exhibit B to the separation agreements identified 276 employees, 57 of whom
were identified as those selected for involuntary termination. Three of these 57 are plaintiffs.
The portion of the Separation Agreement identifying the decisional unit suffers from the
same defect as the Separation Agreement for the Essential Sciences RIF. What sort of decisional
group is “certain persons?” What types of neutral, objective criteria were used to scale down the
listed six areas within K-C’s North American Consumer Product organization? Since K-C does not
delve into further detail, employees would have no way to evaluate the likelihood their age played
in termination decisions and the waivers are invalid.
This uncertainty is further highlighted by K-C’s own supplement to the record. By K-C’s
own admission, the description, in its current incarnation, would have included 3,326 salaried
employees (and up to 7,737 employees if hourly employees were also included in the list.) (ECF
No. 172 ¶ 27.) However, the Exhibit did not identify all of these employees but instead only listed
276 employees. Affected employees had no way to assess the strength of their claims from such
a randomly narrowed sample of North American Consumer Products employees. As such, this set
of waivers is invalid.

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6. Family Care Network of the Future
Between 2005 and 2008 K-C reorganized its distribution network. K-C sought to increase
efficiency by consolidating and streamlining the manner in which its products were distributed. It
reduced the work of the roughly seventy distribution centers associated with specific manufacturing
plants or mills, and created regional distribution centers capable of packaging and distributing the
full range of K-C products that would be run by third-party logistics companies. As a result of this
change, K-C no longer required the number of employees at the distribution centers associated with
its mills. K-C was initially able to reduce the workforce at these plants through normal attrition as
the regional centers came online. In 2008, however, K-C decided that a RIF was required at two
of its remaining mill or plant distribution centers: one at Fullerton, California, and the other at
Beech Island, South Carolina. Two plaintiffs — one from a California warehouse distribution
facility and the other from a South Carolina warehouse distribution facility — were terminated after
their bosses considered several employees and determined the two were no longer necessary in light
of the reorganization. K-C laid out the decisional unit as follows: “[E]mployee’s relationship with
KCC is ending as part of a group reduction-in-force program. Employees in the Distribution
Centers at Fullerton and Beach Island whose jobs were impacted by the Family Care Network of
the Future project were included in this reduction-in-force program.” (DSF ¶ 304.) Exhibit B to
the separation agreement stated that seven employees were considered for reduction, two of whom
were selected for reduction. (DSF ¶ 305.)
K-C’s decisional unit description is insufficient. It failed to reasonably identify the
decisional unit from which the terminations were to occur. Instead of specifically identifying the
employee group from which the terminations were to occur, it simply advised the employees that
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certain employees at those two distribution centers — employees whose positions were impacted
by the company’s reorganization — were considered for termination. This qualification is
unhelpful. Presumably, all of the employees were impacted by the company’s reorganization. In
any event, such a vague description fails to meet the requirements of the OWBPA. In fact, K-C’s
Exhibit B identified all employees in the Distribution Centers at the time the selection decisions
were made, except for 40 hourly employees. (ECF No. 172 ¶ 7.) There is no reason K-C could not
have clearly identified the group of employees affected. It could have restricted itself to salaried
employees, or to distribution employees, or to any other identifiable and meaningful grouping.”
K-C’s failure to accurately describe the decisional unit in its disclosure renders the waivers signed
by the employee invalid. See Kruchowski, 446 F.3d at 1095 (“Defendant failed to provide the
correct, mandated information when it informed plaintiffs that the “decisional unit” included all
salaried employees of the Mill. Because the information defendant provided did not meet the strict
and unqualified requirement of the OWBPA, the Release is ineffective as a matter of law.”).
7. 2008 Innovations – Corporate Innovations Organization
K-C defined the decisional unit in the Separation Agreement as: “Employees in the
Innovations CIO Department were considered for this reduction-in-force program.” (DSF ¶ 333.)
The accompanying Exhibit B lists the job titles and ages of 63 employees considered for termination
and annotates the 19 employees, including four plaintiffs, selected for termination. (DSF
¶¶ 334–335.)
Plaintiffs complain that the 2008 Innovations CIO RIF was subject to cumulative disclosure
and, accordingly, that K-C should have included the September 2006 CIO RIF in the 2008
decisional unit. Plaintiffs, however, have no evidence that the two CIO RIFs were actually
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successive stages in a single RIF. The mere fact that two RIFs took place in one department in a
company does not require cumulative disclosures where, as here, there is undisputed evidence that
the two RIFs are separated by over a year, involved different decision makers, were implemented
for different reasons, and were facilitated by different human resources managers. Plaintiffs’
disagreement with K-C’s decision-making process does not create an issue of fact.
K-C included all employees of the Innovations CIO Department on Exhibit B lists. (ECF No.
172 ¶ 38.) For the reasons repeatedly discussed above, K-C properly formulated a decisional unit
and described its legitimately derived decisional unit with enough detail so as to give employees an
informed choice. The waivers in this section are accordingly valid.
8. North America Customer Development
K-C’s final RIF, and corresponding decisional unit disclosure, stems from 2008 layoffs in
the North America Customer Development group. K-C’s decisional unit was presented as:
“Employees in select departments within Customer Development North America were considered
for this reduction-in-force program. Those departments included: NA Customer Development
(Business Analysis, Sales, Training, Strategic Grocery, Strategic Speciality and US Retail
Operations) and NA Customer Supply Chain (Strategy Development and Supply Chain Analysis).”
(DSF ¶ 359.) Exhibit B for this RIF contained the job titles and ages of the employees considered
for the RIF. (DSF ¶¶ 361–362.)
Plaintiffs argue K-C should have combined the 2008 North America Customer Development
RIF with earlier reductions in force related to the same overarching sales organization. But
plaintiffs rely on conjecture to support their theory that the 2008 RIF was simply a later iteration of
earlier RIFs. The difference between plaintiffs’ own assessment and K-C’s factually supported
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position does not establish a genuine issue of material fact. There is no evidence that, at the time
K-C implemented the 2006 RIF, it knew another RIF would take place. More importantly, the pool
of employees from which the 2008 RIF terminations were made was significantly broader than the
2006 pool of employees. The 2006 RIF involved three regional teams, two support function teams,
and three strategic teams — a total of 257 employees. (DSF ¶¶ 119–138.) The 2008 RIF, in
contrast, drew from a much wider group of 870 employees from the North America Customer
Development group and from the North America Supply Chain group. (Def. Rep. Br., ECF No. 147
at 7.) K-C has presented undisputed evidence that the two RIFs were separate, leaving no genuine
issues of material fact.
These waivers are thus valid, for the reasons discussed above. K-C provided notice that
employees within the listed Customer Development North America Departments were eligible and
all of these employees were listed on the corresponding Exhibit B. (ECF No. 172 ¶ 41.) The notice
provided to employees was adequate.

CONCLUSION
For the reasons set forth I conclude that plaintiffs are entitled to summary judgment on the
three aforementioned separation agreements (Essential Sciences, North Atlantic Consumer Products
2006, and Family Care Network of the Future ). Based on the undisputed facts before me, I find that
with these select RIFs K-C failed to comply with the requirements of the OWBPA. K-C has failed
to demonstrate that the disclosures provided sufficient detail as to the employees considered so as
to provide those terminated with an “informed” choice; the Exhibit Bs did not correspond with the

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vague descriptions given in the Separation Agreements. K-C had the burden to demonstrate validity
and has not done so with respect to this major element of the waivers.
However, as to the other five RIFs discussed above (AFC P&TD 2006, Consumer Sales
2006, Innovations 2006, Innovations CIO 2008, and NACD 2008), K-C did comply with the
requirements of the Act. The disclosures provided sufficient means for employees to make an
informed decision as to their likelihood of success going forward with an age discrimination claim
and thus the remaining waivers are valid as a matter of law. Accordingly, and for the reasons set
forth above, K-C’s motion for partial summary judgment (ECF No. 77) is DENIED in part and
GRANTED in part and plaintiffs’ motion for partial summary judgment (ECF No. 70) is DENIED
in part and GRANTED in part. The Clerk is directed to set this matter on the Court’s calendar
for a telephone conference to discuss further scheduling.
SO ORDERED this

21st

day of February, 2012.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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