Order, previously issued by this Court, was in effect at that time.
We believe that the facts outlined above adequately support a finding that the use and enforcement of PF-116-B will cause irreparable harm to the EEOC for which the EEOC cannot be adequately recompensed in an action at law for damages. In this regard, U.S. Steel's use of PF-116-B has hindered and impeded the EEOC's investigative and administrative processes by having a "chilling" effect on those who have filed charges as well as on those who have not and will continue to do so unless an injunction is issued.
Thus, the EEOC has adduced sufficient facts to show a reasonable likelihood of eventual success on the merits and a reasonable probability of irreparable injury if the relief it requests is not granted.
The facts also show a possibility of harm to other interested persons, namely, the former U.S. Steel employees, if the preliminary injunction is denied. Thus, it is possible that the 70/80 retirement pension could be terminated with respect to any laid off or retired employee who files a charge or joins a lawsuit or who otherwise counsels or assists in the prosecution of charges or lawsuits, whether filed on behalf of themselves or on behalf of others. We further find that the harm to the employees and to the EEOC if the injunction is denied outweighs the harm to U.S. Steel if the injunction is granted.
Finally, issuance of an injunction would protect the public interest in maintaining and promoting the EEOC's ability to investigate and process charges of age discrimination.
* * *
CONCLUSIONS OF LAW
To the extent that any findings of fact may also be considered conclusions of law, they are hereby incorporated into our conclusions of law.
A preliminary injunction is not granted as a matter of right. Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982) (en banc). Its grant or denial is committed to the sound discretion of the trial court who must consider several factors in reaching a decision. Id. In this regard, the moving party must demonstrate (1) a reasonable likelihood of eventual success on the merits and (2) a reasonable probability of irreparable injury if relief is not granted. Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148, slip op. at 5 (3d Cir. 1984).
The U.S. Court of Appeals for the Third Circuit has clearly indicated that it will not uphold an injunction where the claimed injury only constitutes a loss of money since that is a loss capable of recoupment in a proper action at law. In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1145 (3d Cir. 1982).
Preliminary injunctive relief may not be granted unless both of the above requirements are satisfied. Id. at 1143. When relevant, the trial court should also consider (3) the possibility of harm to other interested persons from the grant or denial of the injunction and (4) the public interest. Id. See also Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975).
There is a dearth of ADEA case law on the legal issues before us. Nevertheless, cases decided under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., are instructive by way of analogy.
It is clear that there can be no prospective waiver of an employee's rights under Title VII. Alexander v. Gardner-Denver, 415 U.S. 36, 51, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). An employee, however, may waive his cause of action under Title VII as part of a voluntary settlement. Id. at 52 n. 15. In determining the effectiveness of any such waiver, a court must determine at the outset that the employee's consent to the settlement was voluntary and knowing. Id. Thus, a waiver of a federal remedial right is not to be lightly inferred. Lyght v. Ford Motor Co., 643 F.2d 435, 441 (6th Cir. 1981); Watkins v. Scott Paper Co., 530 F.2d 1159, 1172 (5th Cir. 1976), cert. denied, 429 U.S. 861, 50 L. Ed. 2d 139, 97 S. Ct. 163 (1976).
In most cases where a release or waiver of Title VII rights has been part of a settlement, a legal claim or claims has first been asserted, either by way of EEOC charges or actions in court or both. See, e.g., Pilon v. University of Minn., 710 F.2d 466 (8th Cir. 1983); Cox v. Allied Chemical Corp., 538 F.2d 1094 (5th Cir. 1976), cert. denied, 434 U.S. 1051, 54 L. Ed. 2d 804, 98 S. Ct. 903 (1978); United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S. Ct. 1684, 48 L. Ed. 2d 187 (1976). In this regard, "a release is not a device to exempt from liability but is a means of compromising a claimed liability . . . (emphasis added)." 517 F.2d at 861, quoting Callen v. Pennsylvania R.R., 332 U.S. 625, 631, 92 L. Ed. 242, 68 S. Ct. 296 (1948).
Furthermore, settlements in these cases are usually characterized by negotiations between the parties. See, e.g. Odomes v. Nucare, Inc., 653 F.2d 246 (6th Cir. 1981); Strozier v. General Motors Corp., 635 F.2d 424 (5th Cir. 1981); United States v. Allegheny-Ludlum Indus., Inc., supra.
Moreover, settlements in these matters are generally negotiated by counsel on behalf of the employees rather than by the employees themselves. See, e.g., Pilon v. University of Minn., supra; Odomes v. Nucare, Inc., supra; Strozier v. General Motors Corp., supra.
Given the case law, we conclude that the execution of the release, with one exception, was not part of the settlement or compromise of a claim.
We respectfully disagree with the position taken on this issue by the court in a case cited by U.S. Steel, Runyan v. NCR Corp., 573 F. Supp. 1454 (S.D. Ohio 1983), to the extent it differs from the position taken here. We do so only after carefully examining the authorities cited by that court and concluding that the cited authorities lend greater support to our own position.
Assuming arguendo that the former U.S. Steel employees who signed the release did so as part of a settlement, the factors considered significant by the relevant case law, as set forth below, compel us to conclude that the employees' consents to the alleged "settlements" in this case were not voluntary and knowing.
The mere signature of an employee on a waiver form is insufficient to establish a knowing, voluntary relinquishment of Title VII rights. Cox v. Allied Chemical Corp., supra at 1098. The mere existence of an express waiver is, of itself, insufficient to show actual waiver. Watkins v. Scott Paper Co., supra at 1173 n. 19.
Courts have found a voluntary and knowing consent where the employee was represented by counsel throughout the settlement. See, e.g., Pilon v. University of Minn., supra; Strozier v. General Motors Corp., supra.
Courts, in finding a voluntary and knowing consent, have also considered it important that the terms of the settlement and even more specifically, the language of the release, were negotiated by the parties. See, e.g., Pilon v. University of Minn., supra.
When finding that consent was not voluntary and knowing, the courts have emphasized that the employee was not represented by counsel and did not engage in any settlement negotiations. See, e.g., Lyght v. Ford Motor Co., supra. Even where counsel has still negotiated on behalf of employees, at least one court has questioned whether the employees' consent was voluntary and knowing where it was not clear that the lawyer advising the employees fully explained the terms of the settlement agreement and the waiver of their Title VII rights to them. See Cox v. Allied Chemical Corp, supra at 1098 n. 5 (on remand, district court must conduct a hearing to determine if employees gave their consent voluntarily and knowingly).
At least one court has considered whether the language of the release is clear in addition to considering the factors discussed above. See, e.g., Pilon v. University of Minn., supra.
Another court emphasized that, under the terms of the proposed settlement agreements and consent decrees, several company-union committees would furnish affected employees with comprehensive, relevant information concerning their rights under the proposed settlements before any releases would be signed. United States v. Allegheny-Ludlum Indus., Inc., supra. "Such information is calculated to insure that each electing employee settles knowingly and voluntarily. . . ." Id. at 856.
A review of the evidence before us in light of the pertinent factors above leads us to conclude that, with one exception, the employees' consents in this case were not voluntary and knowing even assuming the PF-116-B was part of a settlement. That evidence, as it pertains to these factors, is set forth in our findings of fact. We shall not set forth those findings again here.
U.S. Steel relies heavily upon Runyan v. NCR Corp., supra. That case, however, is easily distinguishable from the case before us on the questions of consent and waiver. In Runyan, the terminated employee was "an experienced labor lawyer who admittedly was aware of the ADEA, and presumably had the ability to research, discuss and resolve any questions or uncertainties he might have concerning the effect of the release he signed." Id. at 1464. Further, the court's recitation of the facts in that case indicate that negotiations did precede the settlement agreement even though Attorney Runyan was apparently not represented by another lawyer in these discussions. See id. at 1456.
Therefore, Runyan does not alter our conclusion that the consents to the alleged "settlements" in the instant case were not voluntary and knowing.
A plaintiff must establish irreparable injury as a prerequisite to the receipt of injunctive relief even in Title VII cases. Moteles v. University of Pa., 730 F.2d 913, slip op. at 10-11 (3d Cir. 1984). Hence, irreparable harm cannot be presumed merely from a violation of Title VII or, we believe, from a violation of the ADEA. See id. The Court of Appeals for the Third Circuit implied in dicta that it might join the Court of Appeals for the Ninth Circuit in relaxing the standard of injury when the EEOC, rather than a private party, seeks injunctive relief. See id.
Regardless, the EEOC can establish irreparable harm by showing that in fact its ability to investigate and prosecute has been impeded through a "chilling" effect caused by an employer's alleged wrongful act or conduct. See EEOC v. Anchor Hocking Corp., 666 F.2d 1037, 1043 (6th Cir. 1981). We have already found that the EEOC has factually made such a showing, thereby establishing the irreparable injury that is a prerequisite to injunctive relief.
We have also already found that the evidence shows a possibility of harm to other interested persons, namely, the former U.S. Steel employees, if the preliminary injunction is denied. We further found that the harm to the employees and to the EEOC if the injunction is denied outweighs the harm to U.S. Steel if the injunction is granted.
Finally, the ADEA and Title VII as well as the cases decided thereunder indicate that the public has an interest in maintaining and promoting the EEOC's ability to investigate charges of employment discrimination. See generally EEOC v. Shell Oil Co., 466 U.S. 54, 104 S. Ct. 1621, 80 L. Ed. 2d 41 (1984) ("it is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired"). The issuance of an injunction would protect this public interest.
In light of the above, this Court concludes that a preliminary injunction should issue. Accordingly, Plaintiff's Motion for Preliminary Injunction is granted.
An appropriate Order follows. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 583 F. Supp.]
And now, this 6th day of April, 1984, Plaintiff's Motion for Preliminary Injunction is hereby GRANTED.
It is hereby ORDERED that the Defendant U.S. Steel, its officers, agents, employees and all other persons acting in concert with them or on their behalf, are hereby enjoined from enforcing that portion of PF-116-B in which the signatory releases and waives all claims and causes of action under the ADEA and that portion in which the signatory promises: (1) not to file or permit to be filed on his or her behalf any claim under the ADEA, (2) not to counsel or assist in the prosecution of such claims and (3) to withdraw any such claim filed by the signatory or by others on his or her behalf and to refuse to participate in any such claim.
It is further ORDERED that the Defendant U.S. Steel, its officers, agents, employees and all other persons acting in concert with them or on their behalf, are hereby enjoined from terminating the 70/80 retirement pension from this day forward with respect to any individual who has filed a charge or claim under the ADEA with the EEOC or on whose behalf such a charge or claim has been filed, or who has assisted, participated or cooperated in the EEOC's investigation and prosecution of charges or claims under the ADEA.
It is further ORDERED that this Preliminary Injunction is effective immediately.
Nothing in this Order should be construed as requiring the reinstatement of 70/80 pensions that were terminated prior to the issuance of the Temporary Restraining Order. That matter shall be addressed on the merits at a later date.
The parties shall have until June 6, 1984 in which to conduct discovery on the merits. Any motions for summary judgment must be filed by the close of discovery.
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