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December 23, 1985


The opinion of the court was delivered by: KELLY


 On May 1, 1985 a jury returned a verdict in favor of the plaintiffs, Frank Valenti, Walter Beckwith and Jay Bumpers, *fn1" finding that defendant, International Mill Service, Inc. ("IMS") had purposefully discriminated against the plaintiffs on the basis of age. Special interrogatories were submitted to the jury requiring them to determine back pay damages as well as front pay or future damages. After receiving the jury's verdict and damage assessment, and after considering memoranda of law submitted on the issue of the appropriate relief to be granted, the court ruled on August 8, 1985 that in lieu of a money damage remedy, the plaintiffs were to be reinstated to positions comparable to those they held prior to being dismissed by the defendant. Presently before the court are numerous post-trial motions of the defendant and the plaintiffs.


 1. Plaintiffs' Motion to Dismiss Defendant's Motion for JNOV or New Trial for Lack of Jurisdiction

 The plaintiffs have moved to dismiss the defendant's motion for JNOV or New Trial for lack of jurisdiction, as the plaintiffs assert the defendant's motions were not timely filed. Reinstatement and judgment was ordered by the court in a Memorandum and Order entered on August 12, 1985. A stipulation signed by the plaintiffs and the defendant (that all post-trial motions required to be filed within ten days of the date of judgment must be filed by August 29th) was authorized by the court and entered on August 16th. An amended judgment was entered on August 20th. On August 29th the defendant's motions for JNOV and new trial were entered.

 The plaintiffs cite Fed. R. Civ. P. 6(b) as authority for their claim that parties may not stipulate to an extension of time for the filing of a motion JNOV or new trial, and claim the amended judgment of August 20th "amounted to no more than a clerical correction." The court disagrees. The final judgment of the court is the amended order entered on August 20, 1985, which clarified and established the legal rights of the parties. Accordingly, the defendant's motions were timely filed when entered on August 29, and the plaintiffs' motion to dismiss them will be denied.

 2. Defendant's Motion for Judgment Notwithstanding the Verdict ("JNOV")

 Voluntary and Knowing Release

 On March 15, 1982, plaintiff Frank Valenti signed a termination letter, a non-compete agreement, and an employee innovation and non-disclosure agreement. The letter offered Valenti benefits, including salary in excess of $27,000; health, dental, and life insurance; and other services. The defendant claims these benefits were given to Mr. Valenti in exchange of signing the letter, which the defendant claims constitutes an explicit release of all claims against the defendant, including civil rights claims. The plaintiff claims the benefits were given to him in exchange for signing the non-compete and non-disclosure agreements and for acting as a consultant upon demand. The plaintiff asserts the release language in the letter cannot be construed as a release of civil rights claims against the defendant, and that the documents cannot be viewed as a release because the plaintiff did not voluntarily and knowingly release the defendant. The defendant argues that the alleged release of claims requires the court to grant its JNOV motion.

 A waiver of a federal remedial right is not to be taken lightly. E.E.O.C. v. United States Steel Corp., 583 F. Supp. 1357, 1361 (W.D. Pa. 1984). There can be no prospective waiver of an employee's rights under Title VII and where an employee waives his cause of action under Title VII as part of a voluntary settlement, the court must determine that the employee's consent was voluntary and knowing. Id., citing Alexander v. Gardner-Denver, 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974).

 The defendant asserts the release language is clear and unambiguous ("In consideration of the foregoing, you hereby release IMS . . . from any and all actions, causes of actions, claims and demands whatsoever . . ."). Further, the defendant claims Mr. Valenti was aware of his rights under the ADEA because he served as Chief Personnel Officer at IMS for almost five years. The defendant also asserts that Mr. Valenti testified he was aware his age was a key factor in the termination decision at the time he signed the letter. Based on these assertions, the defendant claims that Mr. Valenti entered into a valid release of his discrimination claim, and that there are no vitiating circumstances of fraud, duress, lack of consideration, or mutual mistake of fact.

 The court finds that the termination letter used by IMS, dated March 15, 1982, cannot operate as a release in this case and thus does not warrant support of the defendant's motion for JNOV. First, the letter does not expressly refer to a waiver of a federal right. Second, the circumstances surrounding the execution of the letter were not in the context of the settlement of a disputed claim, because no claim had been filed. "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. . . . In this regard, a release is not a device to exempt from liability but is a means of compromising a claimed liability. . . ." E.E.O.C. v. U.S. Steel, 583 F. Supp. at 1362. Third, Mr. Valenti was not represented by his own attorney. The defendant claims the plaintiff's experience likens the circumstances of this case to those in Runyan v. NCR, 573 F. Supp. 1454 (S.D. Ohio 1983) which upheld the release of an ADEA claim. Runyan was overturned on appeal, Runyan v. NCR, 759 F.2d 1253 (1985); the opinion was subsequently vacated by the Sixth Circuit and rehearing en banc is pending. Regardless of the ultimate result in Runyan, the court finds that Mr. Valenti's experience as a personnel officer does not meet that of the plaintiff in Runyan - "an experienced labor law attorney 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." Runyan, 573 F. Supp. at 1464. Fourth, evidence was produced at trial that Mr. Valenti's action in signing the letter was not voluntary and knowing, and the jury answered a specific interrogatory on the issue, and found that the signing was not voluntary and knowing.

 In summary, the circumstances surrounding the execution of the letter do not indicate that Mr. Valenti knew he had a potential claim under the ADEA and voluntarily settled and released this claim. Accordingly, JNOV with respect to plaintiff Valenti is not appropriate on the basis of a release.

 Discrimination and Willfullness

 The defendant has moved the court to enter JNOV on several grounds in addition to the issue of the 'release letter'. The defendant claims that competent evidence was not introduced to establish a prima facie case of discrimination, and claims findings that the defendant discriminated against the plaintiffs because of their age, that the nondiscriminatory reasons for discharge were pretextual, and that the defendant willfully violated the ADEA cannot be sustained. The court finds none of these arguments to be persuasive, and will deny the defendant's motion for JNOV.

 The purpose of a motion for JNOV is not to relitigate the case. See Duffy v. Wheeling Pittsburgh Steel Co., 738 F.2d 1393 (3d Cir. 1984). In considering the motion, the court must review the evidence in the light and with all reasonable inferences most favorable to the party who secured the jury verdict. Fireman's Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171 (3d Cir. 1976), cert. denied 429 U.S. 1053, 50 L. Ed. 2d 770, 97 S. Ct. 767 (1977).

 The defendant puts forth three reasons why the court should enter a JNOV. The defendant claims the findings of the jury are contrary to the evidence and are based on speculation and emotion, that no competent evidence was introduced to establish that the stated reasons for the terminations were pretexts for age discrimination, and that the determination IMS acted willfully in discharging the plaintiffs in violation of the ADEA was not supported by the evidence. However, the record reveals that testimony and exhibits provided the jury with a basis for supporting the plaintiffs' claims. This evidence includes, inter alia, the Harris memo of December 29, 1981 and the accompanying list, which the plaintiffs assert provides direct proof of age discrimination by setting forth details (ages and years of service) of those selected for "early retirement", the statements of Mr. Bayer and other ...

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