JUAN R. SÁNCHEZ, District Judge.
Plaintiffs Edgar Mitchell, John Muller and Joseph Cherneski bring employment discrimination claims against Messer Griesheim Industries, Inc./ALIG LLC (MG), and its three successors in interest, L'Air Liquide S.A., Air Liquide Industrial U.S. LP, and Air Liquide Large Industries U.S. LP, pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626 et seq. and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 961 et seq. Plaintiffs allege MG discriminated against them on the basis of age by not inviting them to participate in a one-time investment opportunity MG offered to certain of its employees in October 2001. In addition, Muller alleges MG retaliated against him for filing ADEA charges with the Equal Employment Opportunity Commission (EEOC) by denying him severance benefits.
Defendants ask this Court to grant summary judgment in their favor on all claims, asserting Plaintiffs' discrimination claims are time-barred and are legally insufficient in any event because MG's failure to invite Plaintiffs to participate in the investment opportunity was not an adverse employment action. As to Muller's retaliation claim, Defendants assert it is not unlawful retaliation to abide by a uniform policy which requires those employees entitled to severance benefits to sign a general release of all claims in exchange for the severance.
For the following reasons, Defendants' motion will be granted in its entirety.
In 2001, MG was owned by Messer Griesheim GmbH (Messer), a worldwide industrial gas company headquartered in Germany. In April 2001, Allianz Capital Partners (Allianz) and Goldman Sachs (Goldman) became major shareholders of Messer. Their interest was in seeing their investment in Messer increase in value over the next several years, and their intention was to sell their Messer shares in three to seven years. On October 1, 2001, as an incentive to improve Messer's overall profitability and to enhance MG's value and ability to retain certain employees to ensure MG achieved its financial objectives for the sale, MG, through Messer, invited a number of its employees by e-mail to participate in a one-time discretionary investment opportunity, the Messer Investment
Doerr charged MG's General Counsel and Vice President of Human Resources, James Anderson, with oversight of the selection process. Anderson, assisted by MG's Director of Human Resources, Mike Savage, was to ensure the selection criteria were consistently applied and compliant with anti-discrimination and equal opportunity laws. General Managers (GMs) of each of MG's five divisions, and the Vice Presidents who reported to them were automatically invited to participate in the MIP. Each of the five GMs was then to propose additional candidates for participation from within their respective divisions. Thus, for the Bulk Products Division, in which all three Plaintiffs were employed as sales representatives, GM Wayne Harman, was responsible for recommending candidates for the MIP. Harman could have consulted with his direct report, David Esposito, the Vice President within the Bulks Products Division, regarding the selection process; however, there is no evidence Harman ever did so. Although the selection of additional candidates was essentially a group decision among the five GMs, the GMs generally deferred to each other's recommendations regarding the proposed candidates from within their respective divisions.
In deciding whom to recommend for the MIP within the Bulks Products Group division, Harman used his own discretion and based his decisions on his own personal judgment and understanding of what the various business units within the Division were doing, each employee's responsibilities and experiences, and the ultimate goals of the MIP strategic plan. Harman testified he "identified the skill sets and positions [he] felt were most critical and created a list." Harman Dep. at 141:8-9. He also conducted "contingency planning" for individuals who could readily fill positions "should some absences occur later on that needed to be filled, so [he] had the people executing today as well as some bench strength to draw on...." Id. at 141:10-16. Importantly, Harman felt sales representatives such as Plaintiffs could not significantly impact his division's profitability with respect to the MIP's overall three to seven year timeframe because MG's bulk products customers were generally subject to long-term contracts with seven-year terms. As a result, Harman recommended only one bulk products sales representative who "had been in applied technology,
The MIP was entirely voluntary, as it came with significant requirements and also carried significant risk. Those who opted to participate in the MIP were required to invest a minimum amount equal
As a matter of company policy, the financial information and program details of the MIP were to be kept confidential and were not to be openly discussed with employees who were not selected for the program. According to Doerr, "like any benefit program or salary or bonus, ... it was between the company and the individual." Doerr Dep. 377:19-21. Accordingly, a special informational meeting was held off premises at a nearby hotel on October 8, 2011 for the selected employees. Notwithstanding MG's efforts to keep the MIP confidential, by October 4, 2001, just three days after the invitation email was sent, Mitchell called Muller to ask him what he knew about the so-called MIP. By October 11, 2001, the two men learned the MIP was an investment program, knew the names of some of the invitees, were aware a meeting had been held for those invited to participate, and by default, knew they had not been selected to participate in the MIP.
In 2004, the "exit" event occurred when the stock of Messer, MG's parent company, was sold to a French industrial gas company. MIP participants profited from the sale.
On May 12, 2004, Plaintiffs each filed a Charge of Discrimination with the EEOC and the PHRC, and subsequently received a Notice of Right to Sue from the EEOC. On July 29, 2005, Plaintiffs filed the instant suit, alleging their non-selection for the MIP based on age constituted an adverse employment action in violation of the ADEA and the PHRA. Muller filed his separate claim for retaliation on the same date, alleging he was denied his severance benefits in retaliation for filing his ADEA complaint.
A motion for summary judgment shall be granted "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To defeat such a motion, the opposing party "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 (citation and internal punctuation omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is `no genuine issue for trial.'" Id.
To preserve a claim under the ADEA and the PHRA,
The discovery rule functions to delay the initial running of the statutory limitations period in employment discrimination cases, but only until the plaintiff has discovered or, by exercising reasonable diligence, should have discovered (1) that he or she has been injured, and (2) that this injury has been caused by another party's conduct. Oshiver, 38 F.3d at 1386; New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1124 (3d Cir.1997). As a general rule, the statute of limitations begins to run when the potential claimant's cause of action accrues. Oshiver, 38 F.3d at 1385. The accrual date is not necessarily the date on which the wrong that injures the potential claimant occurs, but the date on which the potential claimant discovers he or she has been injured. Id.; Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (stating limitations period begins to run when plaintiff "knew or should have known of the injury upon which its action is based" (internal citation omitted)); Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1127 (3d Cir.1988). The determination of when a claim accrues is an objective inquiry turning on "not what the plaintiff actually knew but what a reasonable person should have known." Kach, 589 F.3d at 634. A cause of action may accrue "even though the full extent of the injury is not then known or predictable." Id. at 634-35. Significantly, it is the "awareness of actual injury, not ... awareness that this injury constitutes a legal wrong" that determines when a claim accrues under the discovery rule. Craig v. Thomas Jefferson Univ., No. 08-4165, 2009 WL 2038147, at *6 (E.D.Pa. July 7, 2009) (quoting Podobnik v. United States Postal Serv., 409 F.3d 584, 590-91 (3d Cir.2005)).
Here, the record shows that Mitchell and Muller were undoubtedly aware of
Given these facts, the discovery rule could at most apply to toll the statute of limitations from October 1, 2001, the date the email was sent to the invitees of the MIP, to October 11, 2001, the date of Muller's notes, at which point both Mitchell and Muller were aware that an alleged discriminatory employment action had occurred. Indeed, there appears to be no other purpose for Muller's October 11 notes than to document the alleged discriminatory act to support a future claim. Despite this knowledge, Mitchell and Muller did not file their charges with the EEOC until May 12, 2004, more than two full years later.
Mitchell and Muller contend the doctrine of equitable tolling should apply to save their claims because MG actively misled them into missing the deadline for filing their claim. Pls.' Resp. 63. Mitchell and Muller reason, although they knew they had not been selected for the MIP (i.e., that they suffered actual injury) more than 300 days before the EEOC charges, they did not know, and could not have known, their age motivated their non-selection (i.e., that they suffered legal injury) until August or September 2003 because of MG's active misrepresentations to them.
A plaintiff seeking equitable relief from a statute of limitations must establish: (1) the defendant actively misled the plaintiff respecting the plaintiff's cause of action; and (2) this deception caused the plaintiff's non-compliance with the limitations provision. Oshiver, 38 F.3d at 1387; see also Lutz v. Philips Elecs. N. Am. Corp., 347 Fed.Appx. 773, 777 (3d Cir. 2009) (explaining a plaintiff seeking the benefit of equitable tolling must establish "(1) material misrepresentation or fraudulent concealment; (2) reasonable and detrimental reliance upon the misrepresentation or concealment, and (3) extraordinary circumstances"). Plaintiffs thus ask this Court to apply the equitable tolling doctrine until the time they became aware of their legal injury rather than the date they became aware of their actual injury. Such a rule contravenes Third Circuit precedent.
Cherneski separately asks this Court to apply the discovery rule to his claims, arguing because he did not learn of the MIP until Fall 2003, his filing with the EEOC on May 12, 2004 was timely. Although Defendants allege Mitchell and Muller also spoke to Cherneski about the MIP and their collective non-selection for the program in October 2001—the same time Mitchell and Muller admit they spoke to one another about the MIP—the record does not support this claim. The record reveals Mitchell did not recall exactly when he spoke to Cherneski about the MIP, but he did not believe it was in October 2001. Defendants argue because Mitchell admits he, Muller and Cherneski were "very close friends," and because Mitchell testified he talked to both Muller and Cherneski upon learning additional information about the MIP at later dates,
Consequently, there is a genuine issue of material fact with respect to when Cherneski discovered the alleged injury— whether Cherneski learned about the MIP in October 2001, as Defendants assert, or later, in September 2003, as Cherneski claims. For this reason, the Court does not find Cherneski's claims are necessarily time-barred.
Regardless of whether any of the Plaintiffs' discrimination claims were timely filed, summary judgment is still warranted because non-selection for an invitation to participate in the MIP does not constitute an adverse employment action. Thus, Plaintiffs cannot demonstrate they were discriminated against because of their age pursuant to the ADEA and PHRA.
The ADEA makes it "unlawful for an employer ... to fail or otherwise refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To prove a prima facie case of age discrimination under the ADEA, Plaintiffs must establish they were: (1) over forty years of age; (2) qualified for the position at issue; (3) subject to an adverse employment action; and (4) ultimately replaced by a "sufficiently younger person." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Anderson v. CONRAIL, 297 F.3d 242, 249 (3d Cir.2002).
The parties agree Plaintiffs were all over 40 in 2001 and, therefore, belong to the protected class under the ADEA. Defendants argue, and this Court agrees, Plaintiffs have failed to prove a prima facie case of age discrimination, however, because they cannot establish the third element, namely that they suffered an adverse employment action when they were not selected to participate in the MIP, the discretionary one-time investment program.
The Third Circuit has defined an adverse employment action as one that is "serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment." Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.2001) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)). In their motion, Defendants assert the MIP was a "discretionary investment opportunity akin to a stock option program" and the non-selection of an employee to participate in the MIP "had no effect upon one's salary, job responsibilities, or any other incident of employment." Defs.' Mot. Summ. J. 31. As a result, Defendants argue the MIP does not constitute an adverse employment action.
The Third Circuit has not addressed the precise question of whether non-selection for a one-time discretionary investment opportunity, such as the MIP, amounts to an adverse employment action, however, other courts have found that denial of similar such discretionary income is not. In Hottenroth v. Village of Slinger, for example, the Seventh Circuit held a supervisor's failure to recommend an employer for certification as a journeyman-lineman did not constitute an adverse employment action because this benefit was wholly within an employer's discretion to deny or grant to the employee, was not a component of the employee's compensation, terms, conditions or privileges of employment, and could not be considered an entitlement. 388 F.3d 1015, 1033 (7th Cir.2004) (quoting Tyler v. Ispat Inland, Inc., 245 F.3d 969, 972 (7th Cir.2001)); see also Douglas v. Jackson, No. 04-00847, 2007 WL 891349,
Consistent with this premise, the Third Circuit, in Tucker v. Merck & Co., granted summary judgment when it determined the plaintiff was not subject to an adverse employment action where his negative performance evaluations had no impact on his compensation or terms of employment. 131 Fed.Appx. 852, 857 (3d Cir.2005). Quoting the Seventh Circuit, the Third Circuit went so far as to state, "even a negative evaluation that leads to a lower than expected merit wage increase or bonus probably does not constitute an adverse employment action." Id. (citing Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir.1996); EEOC v. Wyeth Pharm., No. 03-2967, 2004 WL 503417, *2 n. 3 (E.D.Pa. Mar. 11, 2004)).
Similarly, in Seldon v. Nat'l R.R. Passenger Corp., the plaintiff sued her former employer for discrimination when it did not select her for a pilot work-from-home program. No. 05-4165, 2007 WL 3119976 (E.D.Pa. Oct. 24, 2007). Granting the defendant's summary judgment motion, this court stated, "[p]articipation in the program was a `discretionary benefit,' and [the employer's] non-selection of the plaintiff for the pilot program does not constitute an adverse employment action." Id. at *5.
Plaintiffs argue the failure to select them for participation in the MIP in fact constituted an adverse employment action because it "involved much more than the receipt or denial of a discretionary bonus" as they were "deprived of the opportunity to change their entire relationships with their employer from one of master and servant in which the servant's sole compensation is in the form of wages or salary, to a partnership in which the former servant shares equity in a common enterprise with its former master." Pls.' Resp. 95. In support of this argument, Plaintiffs cite Hishon v. King & Spalding, in which the Supreme Court reversed the dismissal of a Title VII claim by a female associate who alleged she had been passed over for partnership. 467 U.S. 69, 72, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The petitioner argued consideration for partnership was not only part of her employment contract, but could also be considered a benefit that was "part and parcel" of an associate's status as an employee at her law firm: advancement to partnership after apprenticeship was a "matter of course" for associates who received positive performance evaluations; associates regularly expected to be considered for partnership; the firm represented associates were "promoted to partnership `on a fair and equal basis'"; and the firm explicitly used the prospect of ultimate partnership for recruiting purposes.
Hishon thus turns on a benefit that is "part and parcel" of an employment relationship—one that is explicitly advertised to attract new recruits, and known to associates at the outset of employment. Therefore, the opportunity to "make partner" is an expectation and, likely an aspiration for many associates that is, in whole or part, based on performance. Here, no component of Plaintiffs' employment was impacted as a result of their non-selection for the MIP. In fact, Cherneski can hardly argue the MIP was an adverse employment action because he admits he did not even know about it until September 2003— nearly two full years after the MIP was introduced. Doerr's deposition testimony that it would not surprise him if there were employees who were not selected for the MIP who never became aware of the program's existence is equally telling. At the very least, an employee must be aware his or her employer has taken an adverse action for there to be a cause of action. A benefit cannot be said to be "part and parcel" of the employment relationship when the employee is unaware of its existence. It remains undisputed that, at no point, were Plaintiffs entitled to selection for the MIP. See Sicher, 2011 WL 892746, at *3 (holding "an adverse employment action does not include an employer's refusal to grant an employee a discretionary benefit to which she is not automatically entitled." (citing Hottenroth, 388 F.3d at 1033)). Plaintiffs may have been disappointed when they learned they were not invited to participate in the MIP, but "not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). Although Plaintiffs stress the "sheer amount of money involved in the Plaintiffs' MIP exclusion" is what distinguishes this case from the discretionary bonus cases or performance evaluation cases, the magnitude of the discretionary benefit does not determine whether it is "part and parcel" of the employment relationship. Moreover, this argument fails to recognize that there was no guarantee of a return on the MIP. Had the MIP participants lost their investments, Plaintiffs would have been relieved they had not been invited to participate in the MIP in the first place, and it is unlikely they ever would have filed suit. Tellingly, Plaintiffs filed their claims with the EEOC and PHRA shortly after the "exit" event occurred, and the plan participants received a considerable gain on their investment.
Plaintiffs also argue MG's decision not to select them for the MIP resulted in a significant change in a condition of employment because it caused them to lose stature and influence among their peers. This assertion is entirely baseless, and Plaintiffs do not cite to a single piece of evidence to support it. To the contrary, the record demonstrates that each Plaintiff continued to flourish at MG after the MIP was introduced. In fact, all three Plaintiffs testified they continued to receive salary increases, merit increases, bonuses and/or commissions in the years following the MIP's offering. In addition, all three men received praiseworthy performance evaluations: Mitchell was touted a "proven
Alternatively, Plaintiffs argue they have presented direct evidence of age discrimination. Even in a direct evidence case, however, Plaintiffs must establish they were subjected to an adverse employment action. Connors v. Chrysler Financial Corp., 160 F.3d 971, 976-77 (3d Cir.1998). As already discussed, Plaintiffs have not established this element of their claim.
Plaintiffs would nevertheless still face a "high hurdle" in making out a direct evidence case. Id. (citation omitted). There must be evidence "that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring); see also Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir.1994) ("Direct evidence of discrimination would be evidence which, if believed, would prove the existence of the fact [in issue] without inference or presumption." (quotation omitted)); Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir.1994) ("We have said that the evidence required to come within the Price Waterhouse framework must directly reflect a discriminatory or retaliatory animus on the part of a person involved in the decisionmaking process." (quotation omitted)).
The evidence Plaintiffs characterize as direct evidence of age discrimination is the following: (1) a remark by a regional manager (not a decisionmaker) that the MIP was designed to benefit "Next Generation" recruits; (2) "old age" comments by a regional logistics manager (not a decisionmaker); (3) remarks by Esposito that he, not Harman, made the recommendations for the MIP and that Mitchell was qualified for the MIP, but Esposito believed Mitchell would retire before the program had run its course; and (4) a September 21, 2001 email from MG's General Counsel, James Anderson, indicating MG took morale into consideration in its MIP selection process.
To the extent any of this evidence concerns only Mitchell or Muller, it need not be considered as Mitchell's and Muller's claims are both time-barred, as discussed above. Thus, insofar as the second and third pieces of direct evidence listed above pertain solely to Mitchell and Muller, and not to Cherneski, they do not apply. With respect to the first piece of evidence, it refers to a remark made by an individual who Plaintiffs' concede was not a decisionmaker and, therefore, his remarks are not direct evidence. Evidence of "stray remarks in the workplace" and remarks by "nondecisionmakers" does not shift the burden of proof to defendant. Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775; see also Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513-14 (3d Cir.1997). Finally, the fourth piece of evidence, the September 21, 2001, email, is
Although this email was sent by a decisionmaker, there is no evidence Anderson placed "substantial negative reliance" on age. Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775. More importantly, it is not evidence that Harman, the decisionmaker for the Bulk Products Division, made any decisions relating to the MIP selection process solely based on age. Therefore, the evidence offered by Plaintiffs is insufficient to support their claims.
Moreover, Plaintiffs have not shown circumstances giving rise to an inference of discrimination. While the MIP selection process was discretionary within MG, and there was not a checklist such that meeting a proscribed number of items guaranteed an invite, the circumstances of the Plaintiffs' non-selection does not give rise to an inference of unlawful discrimination. MG has offered detailed description and justification for how Harman reached his decisions for each individual he recommended. Harman clearly set forth his reasoning why sales representatives were not his focus, explaining they could not contribute to profitability in any meaningful way given the fact their customers were locked into long-term, fixed contracts.
The September 21, 2001, email makes no mention whatsoever of age as a determining factor in selecting candidates for the MIP. It is therefore insufficient to show Anderson placed "substantial negative reliance" on age, Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775, or, more importantly, that Harman based any of his decisions on age with respect to the MIP selection process for candidates from the Bulk Products Division. Indeed, of the employees within the Bulk Products Division who were not selected by Harman to participate in the MIP, 53%—more than half—were outside of the protected class. Moreover, individuals within the protected class were selected, while individuals outside of the protected class were not selected. Consequently, there can be no inference of age discrimination. Tishman v. Associated Press, No. 05-4278, 2007 WL 4145556, at *5 (S.D.N.Y. Nov. 19, 2007) (holding a reasonable juror could not infer discrimination where almost half of the employees who suffered the same adverse employment action as plaintiffs were outside of the protected class). It is thus clear from the record that MG's selection process was based on reasonable factors other than age. Smith v. City of Jackson, Miss., 544 U.S. 228, 241, 125 S.Ct. 1536, 161 L.Ed.2d 410 (U.S.2005).
In sum, this Court finds that there is no genuine issue of material fact, and Defendants are entitled to judgment as a matter of law on all of Plaintiffs' age discrimination claims. First, Mitchell's and Muller's claims are time-barred because they failed to file their EEOC charges within the 300-day limitations period. Second, Plaintiffs have failed to prove a prima facie case of unlawful age discrimination because they cannot, as a matter of law, show that MG's denial of its investment opportunity constitutes an adverse employment action. Moreover, Plaintiffs have failed to show circumstances from which a reasonable juror could infer age discrimination. Accordingly,
Finally, Defendants argues Muller's separate claim for retaliation fails because he has not shown MG acted in retaliation for his filing ADEA charges when it denied him severance benefits. To establish a claim for retaliation, a plaintiff must show (1) he was engaged in protected activities; (2) the employer took an adverse employment action after or at the same time as the employee's protected activity; and (3) a causal link exists between the protected activity and the adverse action. Glanzman v. Metro. Mgmt. Co., 391 F.3d 506, 515-16 (3d Cir.2004). An employee engages in protected conduct when he "opposes discrimination on the basis of age." Barber v. CSX Distribution Serv., 68 F.3d 694, 702 (3d Cir.1995).
In April through May 2004, MG offered eligible employees a severance package in the event of a Change in Control. The plan was tailored according to the employees' salary and length of service with MG. In exchange for the benefits, MG required its eligible employees to sign a General Release and Waiver of Claims, which was set forth in the severance package materials. Shortly thereafter, on May 12, 2004, Muller filed his claim with the EEOC. On October 29, 2004, Muller was terminated.
In these circumstances, Muller's retaliation claim fails because MG denied him severance benefits only after he refused to sign the same general Release and Waiver required of all MG employees seeking similar benefits, and Muller therefore cannot show benefits were denied because of his EEOC charge rather than his failure to sign the release. DiBiase v. SmithKline Beecham Corp., 48 F.3d 719 (3d Cir.1995) (holding separation benefit plan providing enhanced benefits to employees terminated in a Reduction-in-Force which was conditioned upon the signing of a general release (which expressly included waiver of age discrimination claims) did not violate ADEA even though the release did not provide any additional consideration to ADEA-protected workers); see also Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d 1498, 1508 (10th Cir.1996) (concluding that the plaintiff failed to prove the causal link required for a retaliation claim, because the defendant employer "required completion of a form waiving all claims against [the employer] from all employees prior to disbursing the [benefits]") (emphasis added); Griffin v. Kraft Gen. Foods, 62 F.3d 368 (11th Cir.1995) (rejecting claim that termination plan violated the ADEA where
Accordingly, summary judgment in favor of Defendants is appropriate on all of Plaintiffs' claims.
In addition, Plaintiffs' last-ditch effort to save their claims based on the Lilly Ledbetter Fair Pay Act of 2009 fails as well, because Plaintiffs' claims are not pay compensation discrimination claims and, therefore, the Act does not apply. Noel v. Boeing Co., 622 F.3d 266, 271 (3d Cir.2010).
Mitchell again testified he would have spoken to Cherneski in 2003 upon receiving a list of the MIP invitees from Muller, explaining, "I would think I would have done that as a matter of course since all three of us are very close friends, been with the company a long time and so forth, just to share what I had learned with him." Mitchell Dep. at 71:23-72:7
In addition, Muller's argument based on the Older Workers Benefit Protection Act, 29 U.S.C. § 626, which imposes specific requirements for releases covering ADEA claims, is not applicable given Muller never signed the release at issue here.
