United States District Court, N.D. Illinois, Eastern Division
KARL M. PALAN, Plaintiff,
COMMONWEALTH EDISON CO., EXELON CORPORATION, EXELON BUSINESS SERVICES COMPANY, LLC, and EXELON BUSINESS SERVICES COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Karl Palan alleges in this suit that Commonwealth Edison ("ComEd") terminated him in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq. Doc. 7. ComEd and the other defendants-all corporate relatives of ComEd who can and will be ignored for ease of exposition-have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Doc. 17. The motion is granted, and this case is dismissed with prejudice.
On a motion to dismiss under Rule 12(b)(6), the court must accept the operative complaint's well-pleaded factual allegations, with all reasonable inferences drawn in Palan's favor, but not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, " along with additional facts set forth in Palan's briefs opposing dismissal, so long as those additional facts "are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The facts are set forth as favorably to Palan as those materials permit. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
On March 17, 2014, ComEd fired Palan. Doc. 7 at 10. ComEd offered him a severance package that included a year's salary plus health benefits at the active employee rate, but only if Palan agreed to sign a waiver releasing all employment-related claims against not only ComEd but also Exelon Corporation (ComEd's parent) and its various subsidiaries and affiliates. Ibid.; Doc. 17-2 (copy of the cover letter, waiver, and healthcare plan worksheet that ComEd sent to Palan). The waiver explicitly included all claims under the ADEA and ADA. Doc. 7 at 10; Doc. 17-2 at 4, ¶¶ 2(a), (c). The waiver explicitly stated that Palan was not waiving "[c]laims arising after the date I sign this Waiver and Release." Doc. 17-2 at 5, ¶ 3(c). And the waiver stated that Palan "should consult with an attorney before signing this Waiver and Release, " id. at 6, ¶ 11, and allowed him 21 days in which to accept the offer, with a 7-day revocation period to follow, id. at 6, ¶ 12.
Palan understood that if he did not sign the waiver, he would not be entitled to the severance package. Doc. 7 at 11 (alleging that "the only income available for" Palan would be the severance payment in exchange for signing the waiver); Doc. 17-2 at 4 ("In exchange for the optional severance benefits... which I acknowledge I am not otherwise entitled to receive, I knowingly and voluntarily agree to this waiver and release of claims...."); Doc. 24-1 at 6 (where Palan states in his opposition brief that his choice was between "accessing my 401k and/or pension savings during any job search" and "to at least buy a year's time... and accept the terms of the waiver contract"). Palan signed the waiver and returned it to ComEd within the 21-day deadline, and did not revoke it within the 7-day revocation period. Doc. 7 at 11; Doc. 17-2 at 6. He filed this suit in October 2014. Doc. 1.
Defendants raise many grounds for dismissing Palan's lawsuit, but the waiver is dispositive. Although the waiver might be thought an affirmative defense and therefore an inappropriate ground on which to grant a Rule 12(b)(6) motion, see Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., ___ F.3d ___, 2015 WL 1621401, at *4 (7th Cir. Apr. 13, 2015) ("Dismissing a complaint as untimely at the pleading stage is an unusual step, since a complaint need not anticipate and overcome affirmative defenses, such as the statute of limitations.") (internal quotation marks omitted), Palan extensively references the waiver in his operative complaint, anticipating the affirmative defense by conceding that he signed the waiver but alleging that his consent was neither knowing nor voluntary, Doc. 7 at 10-12 (describing in detail why Palan believes the waiver is unenforceable). Given this, the court on a Rule 12(b)(6) motion may consider the waiver itself and cover letter and health care benefits worksheet accompanying the waiver, see Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) ("the district court was correct to rely solely on the two expressive works referenced in Brownmark's amended complaint and attached to SPDS's motion, as well as the allegations in the complaint, to decide on the fair use defense"); Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 675 & n.1 (7th Cir. 2009) (considering a magazine article relevant to the defendants' limitations defense on a Rule 12(b)(6) motion because "it [wa]s a central component to the complaint, " which anticipated the defense); 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 733, 735 (7th Cir. 2002) (holding that "the district court properly considered" a form attached to the Rule 12(b)(6) motion that "contains a limitation of remedies provision that, were it part of the contract, would have barred the relief [the plaintiff] sought in its second amended complaint"); Rzepiennik v. Archstone-Smith, Inc., 331 F.Appx. 584, 588 (10th Cir. 2009) (same), and determine whether the waiver defeats the suit, see Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 383 (7th Cir. 2010) ("if it is plain from the complaint that the [affirmative] defense is indeed a bar to the suit dismissal is proper without further pleading").
Palan does not dispute that the waiver, if enforceable, would bar his claims. Rather, he argues that the waiver was not "knowing and voluntary, " and therefore that it violated the Older Workers Benefit Protection Act of 1990 ("OWBPA"), Pub. L. No. 101-433, 104 Stat. 978 (Oct. 16, 1990). The OWBPA amended the ADEA to provide in relevant part:
(1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum-
(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
(B) the waiver specifically refers to rights or claims arising under 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 ...