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Foster v. Mountain Coal Company, L.L.C.

United States District Court, D. Colorado

May 16, 2014



LEWIS T. BABCOCK, District Judge.

This matter comes before me on Defendants' Motion for Summary Judgment (Robert Fisk) (Doc. # 45) to dismiss Plaintiff Robert Fisk's claims for age and disability discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et. seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et. seq., and the Colorado Anti-Discrimination Act, C.R.S. § 24-34-401, et. seq. Plaintiff Fisk, a former Mountain Coal employee, filed a Complaint on December 26, 2012 alleging various claims under the ADA, ADEA and Colorado law. [Doc. # 1]. Plaintiff Fisk signed a severance agreement under which he agreed to release Defendants from liability for any claims he had against the company in return for severance payment and other benefits. Defendants contend that Plaintiff Fisk waived his claims by signing the release and severance agreement at the time of his termination. Plaintiff Fisk alleges that the release is invalid because neither the severance agreement itself, nor the documents provided with it comply with the Older Workers' Benefit Protection Act ("OWBPA"), 29 U.S.C. § 626(f)(1), and that his waiver was not otherwise "knowing and voluntary." For the reasons set forth below, I deny Defendants' motion.


The enforceability of Plaintiff Fisk's Severance Agreement is a threshold issue that should be resolved before full discovery into Plaintiff Fisk's age and disability discrimination claims commence. The Parties conducted limited discovery regarding Plaintiff Fisk's Severance Agreement. Defendants then filed a motion for summary judgment regarding the enforceability of the Severance Agreement's waiver provision. Thus, this order is limited to addressing the validity the Severance Agreement's waiver provision.

Plaintiff Fisk has a high school education, has not taken any college courses, attended trade school for heating and air conditioning repair and maintenance ("HVAC"), but did not receive a degree or diploma. [Doc. # 52, 4]. His work background is in construction and mining, and he has worked in mining for the past 20 years. [ Id. at 5]. He worked as an underground miner for Defendant Mountain Coal Company of Colorado, L.L.C. at the West Elk Mine from May 2001 through June 2009. [ See Doc. # 45, 2].

In June 2009, he and "approximately sixty other employees were laid off as part of a reduction-in-force ("RIF") at the mine." [ Id. ] Plaintiff Fisk purportedly learned of his layoff during a June 17, 2009 meeting, at which he and the other terminated employees were presented with a Severance Agreement and Release of All Claims (the "Agreement"). [ Id. ] The Agreement released Defendants from "any and all claims arising from [Plaintiff] Fisk's employment in exchange for an $8, 800 severance payment and other consideration." [ Id. ] Plaintiff Fisk signed the Agreement on July 5, 2009. [ Id. ] The relevant sections of the Agreement provide:

2. Employee's employment will end effective June 17, 2009. Within the time required by law, Employer will pay Employee an amount equal to Employee's accrued wages plus all earned and unused vacation, less applicable taxes, withholdings and standard deductions. Within 45 days after Employee signs this Agreement, Employer also will pay Employee severance pay in the amount of $8, 800, less applicable taxes, withholdings and standard deductions as well as any prior pay advances.
4. Employee hereby releases Employer from all claims, demands or other rights to sue, whether they are known or unknown, foreseen or unforeseen, arising at any time before the date of this Agreement, including but not limited to those that arise from or relate to any aspect of Employee's employment with Employer, Employee's termination from employment or any employment custom, practice, policy, conduct or decision of Employer relating to any term or condition of Employee's employment, including but not limited to:
(1) any claims or rights that could be asserted under:
(a) the Age Discrimination in Employment Act as amended, 29 U.S.C. § 621 et seq. In accordance with such law, employee is provided in Exhibit A: 1) a written list of the job titles and ages of all individuals eligible or selected for the same reduction in force; 2) an identification of the job classification or organizational unit targeted for that reduction in force; 3) the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the reduction in force; and 4) the factors used to determine who is subject to the reduction in force.;
(b) any applicable state law prohibiting or otherwise relating to employment discrimination, including but not limited to the Colorado civil rights laws and any statutory or common law giving rise to a cause of action for retaliation for filing a worker's compensation claim or otherwise engaging in protected conduct;
(c) the common law of the state of Colorado;
(i) the Americans with Disabilities Act, 42 U.S.C. § 12101
5. Employee covenants and warrants that Employee will not sue or cause any complaint or lawsuit of any sort to be brought or join in or allow any complaint or lawsuit by any third party against Employer based in whole or in part on claims released in this Agreement. Employee further agrees that, if any person or entity should bring such a complaint or law suit on Employee's behalf, Employee hereby waives and gives up any right to recover under such claim and will exercise every good faith effort to have that claim dismissed. Despite the foregoing or anything to the contrary in this Agreement, Employee is not releasing Employee's right to file a Charge with or participate in an investigation by the Equal Employment Opportunity Commission, the Department of Labor or other state or federal agency, subject to the legal requirements for doing so. However, Employee waives and gives up any right to damages that may be awarded on the basis of such Charge and also waives and gives up any subsequent right to sue based on such Charge.
6. Because this agreement contains a release of claims under the Age Discrimination in Employment Act, Employee shall have 45 days from the day Employee receives it to consider it. Employee may accept the offer contained in this agreement at any time within that 45-day period by signing it and delivering it to Employer. If Employee does not accept this offer by signing this Agreement before the end of 45-day period, it shall be automatically revoked (meaning Employee will not have the right to a severance payment or to health coverage at active employee rates). If Employee does accept the offer, Employee shall have seven (7) days after delivery of the signed agreement to Employer to revoke (i.e. cancel) Employee's acceptance. The severance payment referenced above shall commence only after the seven (7) day revocation period expires, within the time limits previously indicated.
10. Employee will keep, and cause his/her attorneys and agents to keep, the terms of this Severance Agreement and Release strictly confidential and will not directly or indirectly disclose the terms to anyone (either verbally or in writing) except (a) that Employee may discuss this Agreement with his/her attorney or accountant on a confidential basis to the extent necessary to prepare Employee's tax returns or interpret the Agreement; (b) to the extent that Employee is compelled by a court or governmental authority to reveal the Agreement, provided, however, that Employee will immediately advise Employer of this fact; or (c) in a suit to enforce or for breach of this Agreement, provided that the Agreement is kept under seal by the Court pursuant to a protective order.
16. Employee acknowledges that Employee has been given a reasonable period of time within which to consider the terms of this Severance Agreement and Release.
17. Employee acknowledges that Employee has carefully read this Agreement, understands all its terms, and has signed it voluntarily with full knowledge of its significance after opportunity for consideration and consultation with Employee's attorney, family and/or advisors before signing this Agreement. Employee represents that no payments or other things of value have been promised to Employee for signing and delivering this Agreement other than the payments, agreements and benefits described herein, which payments, benefits and agreements constitute adequate payment for the claims herein released and Employee's other agreements outlined in this Agreement and that no attorney or counsel is entitled to any fees from Employer as a result of this Agreement.

Doc. # 45, ex. 2 (emphasis in original). In addition to severance payments, the Agreement states that Plaintiff Fisk would continue to receive health insurance for three months at employee rates. [ Id. ] Additional facts, related in the light most favorable to Plaintiff Fisk, the party against whom summary judgment is sought, will be provided as they relate to specific arguments and issues raised in the Parties' papers.


Fed. R. Civ. P. 56(a) allows a party to "move for summary judgment, identifying each claim or defense - on which summary judgment is sought." Summary judgment "is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Klen v. City of Loveland, 661 F.3d 498, 508 (10th Cir. 2011) ( quoting Fed.R.Civ.P. 56(a)). 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) ( citing Anderson, 477 U.S. at 248)). An issue is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. ( citing Anderson, 477 U.S. at 248). 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). A defendant may present an affirmative defense in a summary judgment motion which entitles it to a judgment as a matter of law. Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). A defendant making such a motion, however, must demonstrate that no disputed material fact exists regarding the affirmative defense asserted. Id .; Madrid v. Phelps Dodge Corp., 211 F.Appx. 676, 681 (10th Cir. 2006).

Under this standard, the court must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the nonmoving party. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party who "may not rest on mere allegation or denials of his pleading, but ...

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