Recchia v. Kellogg Co.

951 F. Supp. 2d 676, 28 Am. Disabilities Cas. (BNA) 451, 2013 WL 3214931, 2013 U.S. Dist. LEXIS 90022, 119 Fair Empl. Prac. Cas. (BNA) 120

• Court: District Court, D. New Jersey
• Decided: June 27, 2013
• Docket: Civil Action No. 10-4899 (JEI/KMW)
• Status: Published

Opinion

OPINION

IRENAS, Senior District Judge.

This is an employment discrimination case. Plaintiff Nicholas Recchia (“Recchia”) was terminated by Defendant Kellogg Company (“Kellogg”) as part of a restructuring program. Recchia brings claims against Kellogg under a variety of federal and state employment law statutes. Presently before the Court are Kellogg’s Motion for Summary Judgment (Dkt. No. 47) and Motion to Seal (Dkt. No. 48).¹ For the reasons given below, the Motion for Summary Judgment will be granted and the Motion to Seal will be denied.

I.

For the purposes of this Motion, the Court resolves any factual disputes in favor of Plaintiff Nicholas Recchia.² Recchia is a former employee of Defendant Kellogg Company, a multinational food manufacturing company. (SUMF³ ¶ 1) He worked as a warehouse supervisor at a Kellogg facility in Blue Anchor, New Jersey (“Blue Anchor”) from 1981 until he was terminated on September 1, 2009. (Id. ¶ 2; SSMF ⁴ ¶ 1) He was fifty-five years old at the time. (Compl. ¶ 16)

Sometime in 2008, Recchia began drinking to excess, in part due to concerns about his son’s substance abuse problems. (SUMF ¶ 3) In March 2009, Recchia checked into an inpatient rehabilitation center to treat his alcohol dependency. He was discharged from the facility in June 2009. (SSMF ¶¶ 2, 4) After his discharge from the treatment center, Recchia was diagnosed with kidney cancer. (Id. ¶ 4) He underwent surgery and received treatment for kidney cancer from June through August 2009. (Id.; SUMF ¶ 6) During this period, Recchia was on an approved leave of absence from work. (SSMF ¶ 3)

While Recchia was on his leave of absence, Kellogg was undergoing a restructuring through a program called K-Lean. (SUMF ¶ 7) The first step of this two-step program involved creating new job descriptions and organizational charts for various Kellogg facilities. The second step of the program was assessing the workforce at each facility to determine which employees were most qualified for the new jobs. (Id. ¶ 9) An outside consultant, Celerant, assisted Kellogg in creating the new job descriptions and facility-wide organizational charts. (Id. ¶ 10) Celerant recommended that the Blue Anchor 'facility adopt a new managerial structure with eleven instead of twelve supervisor positions. (Id. ¶ 14)

As part of the assessment process, managers at the Blue Anchor facility were to assess the existing supervisors to determine where they would be placed within the new organizational structure, if they were placed at all. (SSMF ¶ 15) Kellogg’s Corporate Human Resources Department developed an assessment form for teams to use in conducting the assessments. (SUMF ¶ 11) Each candidate was .assessed on each criterion on a scale of 1 to 5, with 5 being the highest score. (Id. ¶ 12) The minimum score needed to qualify for a position was 2.5; positions were to be awarded to the individual with the highest score of those assessed for that position. (Id. ¶ 13)

Ron Daubenhauser, the Blue Anchor plant director, and Christine Ferrigno, the human resources manager, determined that Recchia was a candidate for three positions: Operations Services Manager, Operations Supervisor, and Operations Supervisor — Logistics. (SSMF ¶ 20) The first position was a level 2 .position; the second two were level 3 positions. (SUMF ¶ 15) Level 2 positions were higher on the organizational chart than level 3 positions. (Def.’s Ex. 4) Recchia was Subsequently disqualified from the Operations Services Manager and Operations Supervisor positions, as he was assessed at 2.08 and 2.35 for those positions respectively. (SUMF ¶ 16)

Although Recchia qualified for the Operations Supervisor — Logistics position with a score of 2.58, another employee, Juan Ferriero, received a higher score of 3.0 and as a result was selected for that position. (Id. ¶¶ 17-18) Ferriero is one year older than Recchia. (Id. ¶ 21) Recchia was assessed “without a position.”⁵ (SSMF ¶ 46)

The K-Lean assessment was completed in April 2009 while Recchia was on his leave of absence. (SUMF ¶ 22) Instead of terminating him, Kellogg informed Recchia that he had been assessed without a position but could remain on a leave of absence. Wben he returned to work, he would be considered for any available openings for which he was qualified. (Id. ¶¶ 22-23) Recchia was released to return to work on September 1, 2009. At that time, there were two Operations Supervisor positions open. (SSMF ¶ 52) However, based on his score of 2.35 for that position, Kellogg deemed that Recchia was not qualified and terminated him. (SUMF ¶ 24)

At the time of his termination, Recchia received a written Employee Separation' Packet, which included, among other things, a benefits summary, the Kellogg Company Severance Benefit Plan (“Severance Plan”), and a Separation Agreement and General Release (“Release”). (Compl. Ex. B; SSMF ¶ 55) The benefits summary explained the various benefits for which Recchia was eligible, including continuation of health insurance pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), 29 U.S.C. §§ 1161-69, 42 U.S.C. §§ 3000bb-1 to -8. (Compl. Ex. B) The packet also contained two lists created to comply with the Older Workers Benefit Protection Act of 1990 (“OWB-PA”), 29 U.S.C. § 626(f). (Id.) One list provided the job titles and birthdays of the Blue Anchor employees who were selected for termination and thus eligible for the Severance Plan; the other gave the job titles and birthdays of ineligible employees. (Id.)

Under the Severance Plan, Recchia was eligible to receive severance pay and benefits for a period of twenty-six weeks. (Def.’s Ex. 10 (“Release”) ¶ 2(a)) However, Recchia’s receipt of those benefits was contingent upon him signing the Release and waiving any possible claims against Kellogg (Def.’s Ex. 9 (“Severance Plan”), at 2, 6; Release ¶¶ 2, 13), including any claims arising under Title VII, the Age Discrimination in Employment Act (“ADEA”), as amended by the OWBPA, 29 U.S.C. §§ 621-34, the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461, as well as any claims for discrimination. (Release ¶ 13) The Release advised Recchia to consult an attorney and stated that Recchia had a minimum of forty-five days — until October 16, 2009 — to consider the Release. (Id. ¶ 19) It further provided that Recchia could revoke the Release within seven days of signing it. (Id. ¶ 20) Finally, the Release specified that the OWBPA lists were attached and that Recchia acknowledged receiving them. (Id. ¶ 21)

Although the Severance Plan allowed Kellogg to begin making severance payments and providing benefits to Recchia before he had signed the Release, it explicitly stated that

the entitlement to any severance benefits under this Plan is contingent upon the Employee’s submission of an unrevoked form. Therefore, if an Employee fails to submit the signed form to Kellogg, or submits the signed form but later revokes it, no additional severance benefits will be paid to the Employee and Kellogg ... may offset the amount of any severance payments already made from sums otherwise due to the Employee ..., and if the full amount of said severance payments are not fully offset, Employee shall pay the balance to Kellogg upon demand.

(Severance Plan 6) Kellogg began providing severance payments and benefits to Recchia on the day he was terminated, September 1, 2009. (SUMF ¶ 28)

Sometime between September 1, 2009, and October 6, 2009, Recchia consulted with an attorney, Jacqueline Vigilante, regarding the Severance Plan and the Release. (SSMF ¶ 70) On October 6, Ms. Vigilante sent a letter to Kellogg indicating that she had reviewed the Employee Separation Packet and that she believed there was “potential liability for Kellogg’s.” (Def.’s Ex. 11, at 1) The letter stated that Recchia would “accept a revised severance package including the equivalent of eighteen months [sic] severance with full contribution to the pension plan so that Mr. Recchia can make his full 30 years employment.” (Id. at 2) It also asked for an additional thirty days to consider the Release “while the parties’ [sic] discuss and consider the information contained in this correspondence.” (Id. at 3)

On October 9, seventeen days before the end of the forty-five-day period, Patrick Cronin, Associate Human Resources Business Partner, terminated Recchia’s severance pay and benefits. (SSMF ¶ 72) At the same time, Ms. Vigilante’s letter was sent to the Kellogg ERISA Administrative Sub-Committee (“Committee”), which is charged with administering the Severance Plan. (Pl.’s Ex. 18) The Committee considered Recchia’s request for an exception to the Severance Plan’s prohibition on the accrual of “additional credited, vesting or eligibility service ... for purposes of any such, retirement plan.” (Severance Plan 4; Pl.’s ..Exs. 16, 18) On November 2, the Committee denied Recchia’s request for an exception,' stating that the Committee could not, deviate, from the Severance Plan’s terms. (Pl.’s Ex. 16)

During this time frame, Recchia was still being treated for kidney cancer and alcohol dependency. In addition, his son, who was covered by Recchia’s insurance policy, was undergoing treatment for substance abuse. (SSMF ¶¶ 77-78) On October 28, 2009, Recchia and his wife, Maria Recchia, sought to have their son admitted to an inpatient treatment facility. While there, they-were told that their son’s coverage had been deniéd, and they paid for two days of his treatment out of pocket. (Id. ¶¶ 79-80) This was the first time Recchia became aware that he was no longer receiving severance pay and benefits. (Id. ¶ 79) The following day, Recchia submitted a COBRA coverage election form to Kellogg, in which he requested coverage for himself and his son. (Pl.’s Ex. 2, at Ex. E) By November 9, Recchia had obtained COBRA coverage. (Pl.’s Ex. 22)

On November 1, the inpatient treatment center released Recchia’s son because they were not receiving payment for his treatment. (SSMF ¶ 81) He took a bus to Camden, New Jersey, where he sold his possessions for illegal drugs and stayed for three days before Recchia and his wife found him. (Id. ¶ 83) On November 9, Recchia’s son was admitted to another treatment center. (Pl.’s Ex. 2 ¶21) That same day, Recchia signed the Release after talking to Ms. Vigilante (Release 7; PL’s Ex. 3 (“Recchia Dep.”), at 197:17-22), and Kellogg reinstated his severance payments and benefits. (SSMF ¶ 91) Kellogg paid Recchia the full twenty-six weeks of severance pay and provided benefits during that entire period. (SUMF ¶ 32)

On July 1, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued a Notice of Right to Sue to Recchia. (Compl. Ex. A) Recchia filed his Complaint on September 24, 2010. (Dkt. No. 1) He brings six counts against Kellogg, including fraud and duress with respect to the Release (Count I), age discrimination and retaliation in violation of the ADEA (Counts II and III), disability discrimination in violation of the Americans with Disabilities Act (“ADA”) (Count IV), unlawful interference in violation of ERISA (Count V), and age and disability discrimination and retaliation in violation of the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. §§ 10:5-1 to - 49 (Count VI). (Id.) Kellogg moves for summary judgment on all counts. (Dkt. No." 47)

II.

“[Sjummary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the nonmoving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986).

“ ‘With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.’ ” Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir.2004). (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). The role of the Court is not “to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 249, 106 S.Ct. 2505.

III.

The threshold question before the Court is whether Recchia waived his claims against Kellogg when he signed the Release. An employee may waive his claims against an employer as long as he does so voluntarily and knowingly. Coventry v. U.S. Steel Corp., 856 F.2d 514, 522 (3d Cir.1988); see also Lockheed Corp. v. Spink, 517 U.S. 882, 894-95, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996) (holding that release of “any employment-related claims” is permissible under ERISA); Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n. 15, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (noting that an employee may enter into an agreement to waive Title VII claims as long as “the settlement was voluntary and knowing”); Cuchara v. Gai-Tronics Corp., 129 Fed.Appx. 728, 730-31 (3d Cir.2005) (applying this standard to a waiver of ADA and ERISA claims); Swarts v. Sherwin-Williams Co., 244 N.J.Super. 170, 176, 581 A.2d 1328 (1990) (“The statutory protections against age discrimination under the NJLAD do not bar knowing, willful waiver of those protections.”). In examining the validity of such a waiver, courts in the Third Circuit and New Jersey use a totality of the circumstances test. Coventry, 856 F.2d at 522-23; see also Geraghty v. Ins. Servs. Office, Inc., 369 Fed.Appx. 402, 405-06 (3d Cir.2010); Swarts, 244 N.J.Super. at 177, 581 A.2d 1328 (adopting the Third Circuit’s totality of the circumstances test). The court “may also consider ^whether there is evidence of fraud or undue influence, or whether enforcement of the agreement would be against the public interest.’ ” Cuchara, 129 Fed.Appx. at 731 (quoting W.B. v. Matula, 67 F.3d 484, 497 (3d Cir.1995)).

In addition, a waiver of ADEA claims must meet certain statutory requirements as outlined in the OWBPA, 29 U.S.C. § 626(f)(1). “The party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to [§ 626(f)(1)].” Id. § 626(f)(3).

Kellogg moves for summary judgment on all counts of Recchia’s Complaint on the basis that Recchia waived his claims when he signed the Release. Recchia’s primary argument is that the Release is invalid because he signed it under duress. In the alternative, he claims that the Release is invalid because it fails the totality of the circumstances test. Finally, Recchia argues that even if the Release is valid under the totality of the circumstances test, it is still invalid as to his ADEA claims because it did not comply with the OWBPA, 29 U.S.C. § 626(f)(1). The Court addresses each argument in turn.

A.

Recchia’s main argument is that the Release is invalid because he signed it under duress. There are two elements to economic duress under New Jersey law⁶: “1. The party alleging economic duress must show that .he has been the victim of a wrongful or unlawful act or threat, and 2. Such act or threat must be one which deprives the victim of his unfettered will.” Continental Bank of Pa. v. Barclay Riding Academy, 93 N.J. 153, 459 A.2d 1163, 1175 (1983) (quoting 13 Samuel Williston, A Treatise on the Law of Contracts § 1617, at 704 (3d ed. 1970)). The key factor in determining whether duress exists is “the wrongfulness of the pressure exerted.” Id. It is enough that an act be contrary to moral or equitable standards to constitute a wrongful act. Id.

Because of this test’s fluidity, each situation must be examined on a case-by-case basis “to determine if the threatening party acted wrongfully.” Id. (citing West Park Ave., Inc. v. Ocean Twp., 48 N. J. 122, 224 A.2d 1, 5 (1966)). Courts generally require “the party alleging financial difficulty [to] allege that it was contributed to or caused by the one accused of coercion.” Id. at 1176. Duress is usually not present where there is adequate consideration. Id.

Bearing these factors in mind, the Court finds that Recchia did not sign the Release' under duress. Recchia alleges thát Kellogg contributed to or caused his financial distress, namely his lack of medical insurance and his inability to cover medical bills, when it stopped providing benefits. (Pl.’s Br. in Opp’n (“Pl.’s Br.”) 10) He further argues that Kellogg was obligated to pay him severance and benefits while he considered the Severance Plan and therefore acted wrongfully when it withdrew those benefits. (Id. at 10-11) But even if Kellogg did contribute to or cause-some of Recchia’s financial distress, a plain reading of the Severance Plan shows that Kellogg did not commit a wrongful act.

The Severance Plan sets forth the circumstances and procedures under which an eligible terminated employee may receive severance benefits for a specified period of time known as the Severance Leave of Absence or SLOA. Severance benefits include severance pay and continued participation in employee benefit plans, such as “medical, dental, prescription drug, life insurance and voluntary programs (including supplemental life insurance and long-term care).” (Severance Plan 5) Participation in employee benefit plans is predicated on the employee “(i) pay[ing] the monthly premium or contribution rate applicable to ‘active’ employees, (ii) complying] with the other terms of the respective plan, and (iii) complying] with the terms of the Release of Claims.” (Id. at 5-6)

Under the heading “CONDITIONS FOR SEVERANCE BENEFITS,” the Severance Plan specifies that “an Employee is eligible to begin receiving severance benefits if he ..., [inter alia ], properly executes and submits to Kellogg a form of release of claims ... within the time period specified, and does not thereafter revoke the Release of Claims.” (Id. at 2) The Severance Plan also has a section titled “SEVERANCE BENEFITS CONTINGENT UPON UNREVOKED RELEASE.” That section reads,

At or before the commencement of the SLOA, an eligible Employee will be given the Release of Claims____ The Employee will be informed of the deadline for signing and returning the form to Kellogg, and of any applicable revocation period. Although the Employee’s severance pay may begin before the expiration of such deadline and revocation period, the entitlement to any severance benefits under this Plan is contingent upon the Employee’s submission- of an unrevoked form.

Therefore, if an Employee fails to submit the signed form to Kellogg, or submits the signed form but later revokes it, no additional severance' benefits will be paid to- the Employee and Kellogg and/or the Employee’s Employer may offset the amount of any severance payments already made from sums otherwise due to the Employee ..., and if the full amount of said severance payments are not fully offset, Employee shall pay the balance to Kellogg upon demand.

(Id. at 6) (emphasis added)

This language leaves no doubt that Kellogg’s obligation to make severance payments and provide benefits under the Severance Plan is triggered only after the employee signs the Release. Further, if the employee revoked the Release, Kellogg would stop providing severance pay and benefits and could seek reimbursement for any severance pay and benefits that it had already paid. (Id.) Kellogg could choose to provide severance pay and benefits to an employee before he signed the Release, as happened here; however, nothing in the Severance Plan obligates Kellogg to do so.

As Kellogg was not required to provide severance pay and benefits to Recchia until after he signed the Release, its decision to stop providing benefits did not constitute a wrongful act. Indeed, if Recchia had declined to sign the Release, Kellogg would have been entitled to seek repayment of the severance payments it had already made to him. (Id.) Therefore, Kellog did not commit a wrongful act.

Furthermore, nothing in the record indicates that Recchia was deprived of his free will. Recchia might have faced economic pressure due to the lack of health insurance coverage for him and his son.⁷ But that kind of pressure does not create economic duress. See, e.g., Sauter v. Fed. Home Loan Bank of N.Y., 2009 WL 2424689, at *9 (D.N.J. Aug. 5, 2009) (“Although Sauter faced economic pressure in the sense that she was offered the economic incentive of healthcare coverage in exchange for releasing any claims she might have, this pressure did not affect the voluntariness of the waiver, and therefore does not constitute economic duress.”). As the Third Circuit has noted, “the law is clear that the existence of financial pressure to sign a waiver is insufficient to establish that it was executed involuntarily.” Wastak v. Lehigh Valley Health Network, 342 F.3d.281, 295 (3d Cir.2003).

Ample record evidence supports finding that the cessation of benefits did not create economic pressure that rose to the level of duress. Recchia had other insurance options available to him. While there is some question as to when Recchia became aware of his various insurance options, there is no question that he knew of them when he signed the Release. In his deposition, Recchia stated that after he learned that Kellogg had halted his severance benefits, he and his wife discussed having her health insurance cover both Recchia and their son. (Recchia Dep. 106:3-107:14) He also testified that in late October, a Kellogg representative told him that he was eligible for retiree medical insurance coverage if he chose to enroll in it. (Id. at 103:16-24)

Recchia also knew he could extend his coverage through COBRA before he signed' the Release. First, the benefits summary in the Employee Separation Packet explicitly stated that Recchia was eligible to continue his health insurance through COBRA. (Compl. Ex. B) Second, Récchia actually elected to enroll in COBRA on October 29, 2009, eleven days before he signed the Release. (Release 7; Pl.’s Ex. 2, at Ex. E) Indeed, by November 9, the day he signed the Release, Recchia had obtained COBRA coverage at a rate of $225.77 per month for himself and his son. (Pl.’s Ex. 22; Pl.’s Ex. 2, at Ex. E) The COBRA election form stated that Recchia’s COBRA coverage was effective October 10, 2009, so his medical bills would have been covered retroactively. (Pl.’s Ex. 2, at Ex. E) Therefore, Recchia’s election of COBRA coverage would have alleviated most of the economic concerns that he cites as a basis for duress.

Another factor counseling against finding duress is that Recchia consulted with counsel before signing the Release.⁸ Indeed, Recchia’s testimony that he spoke to his attorney the same day he signed the Release and that he followed her advice with respect to the Severance Plan weighs heavily in favor of finding that he was not under duress. (Recchia Dep. 73:13-16; 197:17-22)

Recchia argues that Kellogg interfered with his ability to consult counsel when it treated Ms. Vigilante’s October 6 letter as a rejection and immediately stopped making severance payments and providing benefits. Recchia’s argument is unpersuasive. First, the record shows conclusively that Recchia did not know that Kellogg had ceased providing severance pay and benefits until October 28, 2009, approximately two weeks after the fortyfive-day consideration period had ended. The Court finds it difficult to see how Kellogg’s decision to cease payments on October 9 could have interfered with Reechia’s ability to consult with counsel during the consideration period when he was not even aware that Kellogg had done so.

Second, Kellogg was entitled to stop payments after the consideration period had passed. Although the Court agrees with Recchia that the October 6 letter did not constitute a rejection in and of itself, the letter along with Recchia’s failure to sign the Release within the forty-five-day period was a rejection of the Severance Plan. Thus, by October 28, Kellogg had no obligation to provide severance pay and benefits. Indeed, Kellogg had no obligation to accept the Release from Recchia when he signed it on November 9, yet Kellogg chose to honor it anyway. As such, the argument that Kellogg’s termination of benefits and severance pay somehow interfered with Recchia’s ability to consult with counsel is unpersuasive.

Finally, Recchia received adequate consideration in exchange for signing the Release. As discussed above, Recchia was not entitled to any severance pay or benefits. The Severance Plan specifically states, “Severance benefits under this Plan are extra compensation to eligible Employees, not compensation that the Company is required to pay outside of this Plan. Therefore, the severance benefits will be provided as consideration for the Employee’s execution of and compliance with the Release of Claims____” (Severance Plan 3) In exchange for signing the Release, Recchia received twenty-six weeks of severance pay and benefits, which he would not have received otherwise. (Release ¶ 2(a)) These benefits are adequate consideration such that a jury could not reasonably find that Recchia signed the Release under economic duress.⁹ Accordingly, the Court finds that Recchia was not under duress when he signed the Release.¹⁰ Summary judgment will be granted in favor of Kellogg on Count I.

B.

Recchia next argues that the Release is invalid under the totality of the circumstances test. Under that test, a court considers:

(1) the clarity and specificity of the release .language; (2) the plaintiffs education and business experience; (3) the amount of time plaintiff had for deliberation about the release before signing it; (4) whether plaintiff knew or should have known his rights upon execution of the release; (5) whether plaintiff was encouraged to seek, or in fact received benefit of counsel; (6) whether there was an opportunity for negotiation of the terms of the Agreement; and (7) whether the consideration given in exchange for the waiver and accepted by the employee exceed[ed] the benefits to which the employee was already entitled by contract law.

Long v. Sears Roebuck & Co., 105 F.3d 1529, 1538 (3d Cir.1997) (quoting Cirillo v. Arco Chem. Co., 862 F.2d 448, 451 (3d Cir.1988)) (alteration in original). Every factor weighs in favor of finding that Recchia knowingly and voluntarily waived his claims against Kellogg.

1. Clarity and specificity of the Release

The language of the Release is clear and specific. Paragraph 13 of the Release states,

In consideration of the compensation and benefits provided pursuant to this Agreement ..., Employee ... irrevocably ... and unconditionally releases, waives and forever discharges [Kellogg] ... from any and all claims or causes of action that Employee had, has or may have, known or unknown, relating to Employee’s employment with and/or termination from the Company up until the date of this Agreement, including but not limited to, any claims arising under Title VII of the Civil Rights Act of 1964, as amended, Section 1981 of the Civil Rights Act of 1866, as amended, the Civil Rights Act of 1991, as amended, the Family and Medical Leave Act of 1993, as amended, the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act of1990, the of 1990[sic], as amended, the Employee Retirement Income Security Act; claims under any other federal, state or local statute, regulation or ordinance; claims for discrimination or harassment of any kind, breach of contract or public policy, wrongful or retaliatory discharge, defamation or other personal or business injury of any kind; claims of representation, misrepresentation, or negligent representation, and any and all other claims to any form of legal or equitable relief, damages, compensation or benefits ..., or for attorneys fees or costs.

(Release ¶ 13) (emphasis added) This language leaves no doubt as to the nature of the claims that Recchia waived in exchange for severance pay and benefits. See, e.g., Yousef v. Capital One Servs., Inc., No. 11-1687, 2011 WL 3739362, at *4 (D.N.J. Aug. 24, 2011) (finding similar language to provide “a clear, thorough, and definitive explanation as to what claims were released”). Although Recchia argues that the claims were not “set forth in an easy-to-read, bulleted list,” there is no requirement that the claims be presented in that format. See id.; Moroni v. Penwest Pharm. Co., No. 07-5546, 2009 WL 3335504, at *2, *6 (D.N.J. Oct. 13, 2009) (holding that similar language, in a similar format, was “clear and specific”).

Recchia also claims that the Release is not specific because it fails to list “several of the statutes covering Mr. Recchia’s discrimination claims, including the ADA and NJLAD claims.” (Pl.’s Br. 18) Again, this argument is unavailing. Courts in this Circuit have repeatedly held that failure to mention a particular statute does not invalidate a release of claims. See, e.g., Geraghty, 369 Fed.Appx. at 406 (holding that a release precluded the plaintiffs CEPA claim despite not specifically listing the CEPA statute where it stated that the plaintiff released the employer from “any and all claims ..., including, but not limited to” several federal and state statutes); Cobb v. George Weston Bakers Distrib., Inc., No. 10-0676, 2012 WL 2344452, at *5 (D.N.J. June 19, 2012) (“[T]he Release plainly and clearly releases any and all causes of action Plaintiff had against Defendants.”); Weinberg v. Interep. Corp., No. 05-5458, 2006 WL 1096908, at *4 (D.N.J. Apr. 26, 2006) (finding that the plaintiff could not bring his NJLAD claim where he had agreed to release “all claims arising under state anti-discrimination statutes and any claims for wrongful termination or unlawful discrimination); Mosley v. Bay Ship Mgmt., 174 F.Supp.2d 192, 197 (D.N.J.2000) (finding that plaintiffs agreement to “drop his beef’ against defendant constituted a knowing and voluntary waiver of his right to bring a NJLAD claim); see also Swarts, 244 N.J.Super. at 178, 581 A.2d 1328 (finding that the plaintiff had waived his NJLAD claim even though the release did not specifically list the NJLAD).

The Release here clearly states that Recchia waives “any and all claims or causes of action” against Kellogg, “including, but not limited to” several federal statutes, including, inter alia, the ADEA and ERISA, as well as “claims under any other federal, state or local statute, regulation or ordinance; claims for discrimination or harassment of any kind ..., [and] wrongful or retaliatory discharge.” (Release ¶ 13) Based on this language, it is clear that the first factor weighs in favor of finding the Release valid.

2. Education and business experience

Recchia also has sufficient education to understand the Release. Recchia is a high school graduate and attended college for two years, although he did not complete his degree. (Pl.’s Ex. 31 ¶ 2) This level of education is enough “to satisfy the ‘minimal threshold’ necessary for this factor.” Cobb, 2012 WL 2344452, at *6 (quoting Ponzoni v. Kraft Gen. Foods, Inc., 774 F.Supp. 299, 310 (D.N.J.1991)); see also Riddell v. Med. Inter-Ins. Exch., 18 F.Supp.2d 468, 472 (D.N.J.1998) (finding that a plaintiff without a college education whose work was mainly clerical could understand a release).

3. Time for deliberation

Recchia had adequate time to consider the Release before signing it. Courts focus on the time provided rather than the time actually taken to consider a release. See, e.g., Cobb, 2012 WL 2344452, at *6; Sauter, 2009 WL 2424689, at *5. In this case, Kellogg provided Recchia with at least forty-five days to consider the Release. (Release ¶ 19) In addition, the Release specified that Recchia could revoke the Release within seven days of signing it. (Id. ¶ 20) Forty-five days is more than enough time to consider the Release, especially in light of the fact that this period was a-floor. See Cuchara, 129 Fed.Appx. at 731 (finding that twenty-one days was a sufficient amount of time to contemplate a release). In fact, Recchia signed the Release almost seventy days after he first received it. (Release 7)

Recchia argues that Kellogg interfered with and shortened the consideration period when it stopped paying severance benefits to Recchia. (Pl.’s Br. 19-20) This argument fails for three reasons. First, Recchia’s argument is based on the premise that he was entitled to receive severance payments through the consideration period and that Kellogg’s decision to halt payments somehow removed his ability to consider the terms of the Release. But as discussed above, any severance benefits Recchia received prior to signing the Release were paid solely at Kellogg’s discretion and were contingent upon him eventually signing the Release. Thus, Recchia cannot use Kellogg’s decision to cease payments to show that it shortened the consideration period. Second, as the Court previously noted, Recchia was not aware that Kellogg had stopped severance payments and benefits until approximately two weeks after the end of the consideration period. Third, even if it were the case that Kellogg shortened the consideration period, Recchia still had over thirty days to consider the Release. In fact, Recchia took an additional thirty days after the initial forty-five-day period before he actually signed the Release. Taken together, these facts show that there is no dispute that Recchia had adequate time in which to consider the Release.

k. Knowledge' of rights

The record is clear that Recchia knew his rights when he signed the Release. In his deposition, Recchia admitted that he knew he was releasing Kellogg from any possible claims when he signed the Release (Recchia Dep. 118:9-17) and that he had no intention of bringing any claims against Kellogg at that time. (Id. at 118:18-119:7); see, e.g., Wastak, 342 F.3d at 294-95 (finding that a release valid where the plaintiff testified that he understood he was receiving salary continuation in exchange for agreeing not to bring a lawsuit against his employer). Further, Recchia sought counsel over a month before he signed the Release on November 9, 2009.

On October 6, 2009, Ms. Vigilante sent a letter to Kellogg indicating that she believed Recchia’s termination “was based upon his disability, the supervisors’ perception of his disability and/or use of federal protected medical leave.” (Def.’s Ex. 11, at 2) The letter also said the layoff “was in violation of the Older Workers Benefits Protection Act.” (Id.) In his deposition, Recchia stated that he read the letter before Ms. Vigilante sent it to Kellogg and that he agreed with its contents. (Recchia Dep. 78:6-16, 81:22-82:3) Based on this record evidence, it is clear that Recchia knew his rights when he executed the release. Thus, this factor weighs in favor of validity.

5. Benefit of counsel

The above evidence is also relevant to whether Recchia was encouraged to seek, or in fact received the benefit of counsel. “[T]he more important consideration is whether consultation with a lawyer was encouraged ..., rather than whether the plaintiff in fact received the benefit of counsel.” Cirillo, 862 F.2d at 454. Courts consistently find that it “normally suffice[s] for the employer to suggest that the employee may wish to consult an attorney.” Id.; see also Sauter, 2009 WL 2424689, at *6 (holding that being encouraged to seek counsel was sufficient to meet this factor).

There is no question that Kellogg encouraged Recchia to seek counsel. The cover page of the Separation Packet clearly says, “Please review the enclosed documents thoroughly and if you desire, consult with an attorney.” (Compl. Ex. B) In addition, the Release itself states, “Employee has been advised to consult an attorney before signing this Agreement.” (Release ¶ 19) Furthermore, Recchia received the benefit of counsel. There is abundant record evidence that he contacted and consulted with Ms. Vigilante before he signed the Release. Indeed, he spoke with her the same day that he signed the Release.

Recchia contends that Kellogg undermined his ability to consult with counsel when it stopped paying severance benefits upon receipt of Ms. Vigilante’s October 6 letter. (Pl.’s Br. 21-22) Recchia also states that Pat Cronin told him Kellogg ceased payments because Recchia “lawyered up” (Recchia Dep. 122:23-25), which, he argues, shows that the cessation of benefits was meant to interfere with Recchia’s right to consult with counsel. This argument is unsuccessful. Recchia continued to consult with Ms. Vigilante after Kellogg ceased paying severance benefits, and in fact did so the day he signed the Release. Further, as discussed above, Recchia did not know that Kellogg had stopped paying benefits until after the consideration period had ended. Although Kellogg could have taken a different course of action rather than terminating Recchia’s benefits, its decision to do so did not interfere with Recchia’s ability to consult with counsel. Thus, this factor also weighs in favor of finding validity.

6. Opportunity for negotiation

“The ability to negotiate the terms of a release suggests that the atmosphere surrounding its execution was not oppressive and thus indicates a voluntary waiver.” Sauter, 2009 WL 2424689, at *7. However, the absence of an opportunity to negotiate does not prove invalidity. Cirillo, 862 F.2d at 454 n. 4. But “to the extent such absence and other evidence suggest that the atmosphere surrounding the execution was oppressive, it is, of course, a relevant consideration.” Id.

In this case, Recchia attempted to negotiate the terms of the Release but was ultimately unsuccessful. In addition to stating that she believed there was “potential liability for Kellogg” (Def.’s Ex. 11, at 1), Ms. Vigilante also indicated in her October 6 letter that Recchia would be willing to sign the Release if he received “a revised severance package,” which would include “the equivalent of eighteen months [sic] severance with full contribution to the pension plan.” (Id. at 3) In the alternative, Recchia was willing to “accept employment for the next eighteen months as a full time employee with Kellogg’s with full benefits as existed on the date of his separation of September 1, 2009.” (Id.) The letter sought to modify the Severance Plan so that Recchia would be able to “retire from Kellogg’s after 30 full years of service.” (Id.)

Upon receipt of the letter, Cronin ordered the immediate cessation of benefit payments to Recchia. (PL’s Ex. 21) However, Kellogg simultaneously forwarded Recchia’s request to the Kellogg ERISA Administrative Sub-Committee (“Committee”), which was charged with administrating the Severance Plan. (Pl.’s Ex. 18) The Committee considered Recchia’s request and on November 2; sent him a letter stating that under the terms of the Plan, they would not be able to “bridg[e] to eligibility for any additional early retirement benefits.” (Pl.’s Ex. 16) Thus, the Committee denied Recchia’s request to modify the terms of the Release. (Id.)

Based on these facts, the Court finds that this factor weighs in favor of validity. The record shows that Kellogg did consider Recchia’s request to change the terms of his severance package. Even though the ultimate outcome was unfavorable to Recchia, the pertinent question is whether he had an opportunity to negotiate, not whether the negotiation resulted in more favorable terms for him. Cf. Cobb, 2012 WL 2344452, at *7 (noting that the critical inquiry is whether plaintiff has an opportunity to negotiate). As such, Recchia had an opportunity to negotiate the terms of the Release.

7. Adequacy of consideration

The final factor is whether Recchia received adequate consideration in exchange for signing the Release. As discussed above, in exchange for signing the Release, Recchia received twenty-six weeks of severance pay as well as the continuation of benefits during those weeks. Recchia was not entitled to severance pay or benefits by either contract or law. Therefore, the Court finds that he received meaningful consideration in exchange for his waiver of claims. See Cirillo, 862 F.2d at 454-55; Cobb, 2012 WL 2344452, at *7; Yousef, 2011 WL 3739362, at *7.¹¹

In light of these factors, Recchia’s execution of the Release was knowing and voluntary under the totality of the circumstances test. Therefore, the Release is valid as to Recchia’s ADA, ERISA, and NJLAD claims, and summary judgment will be granted for Kellogg on Counts IV, V, and VI.

C.

Recchia next argues that even if the Release is valid under the totality of the circumstances test, it does not meet the requirements of the OWBPA, thus rendering the Release invalid as to his ADEA claim.

The OWBPA is an amendment to the ADEA that Congress passed with two purposes: first, to affirm that age discrimination is unlawful with respect to all employee benefits; and second, to protect older workers from being coerced into releasing their rights under the ADEA. Long, 105 F.3d at 1534 (citing S.Rep. No. 263, 101st Cong., 2d Sess. 2 (1990)). To effect the second goal, the OWBPA requires waivers of ADEA claims to meet certain minimum requirements. Those requirements are set forth in 29 U.S.C. § 626(f):

(1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary.... [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 ...;

(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 individual already is entitled;

(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;

(F) ... (ii) if a waiver is requested in connection with an ... employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;

(H) if a waiver is requested in connection with an ... employment termination program ... the employer ... informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to—

(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and

(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

29 U.S.C. § 626(f)(1). “The OWBPA ... incorporates no exceptions or qualifications.” Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998); see also Ruehl v. Viacom, Inc., 500 F.3d 375, 381-82 (3d Cir.2007). “[T]he party asserting the validity of a waiver shall have the burden of proving ... that a waiver was knowing and voluntary....” Id. § 626(f)(3).

In this case, the Court has already found that the Release complies with most of the OWBPA’s requirements, as several requirements are substantially similar to the totality of the circumstances factors. Specifically, the Release meets the requirements of 29 U.S.C. § 626(f)(1)(A, B), (D-G).¹² Thus, the Court need address only whether the Release complies with 29 U.S.C. § 626(f)(1)(H).

Section 626(f)(1)(H) requires employers to provide employees who are terminated as part of a termination program, such as a reduction in force,¹³ with information about the program. In particular, employers must supply the terminated employee with the criteria for eligibility for the program and with lists of the ages and positions of both employees who were terminated through the program and those who were retained. Id. § 626(f)(1)(H)(i, ii). An “employment termination program” takes place when a group or class of employees are involuntarily terminated and “offered additional consideration for their decision to sign a waiver.” 29 C.F.R. § 1625.22(f)(1)(iii)(A) (2012). “Typically, an involuntary termination program is a standardized formula or package of benefits that is available to two or more employees. ...” Id. § 1625.22(f)(1)(iii)(B).

The record shows that Kellogg complied with both provisions. The Severance Plan clearly states its eligibility criteria. (Severance Plan 1-2) In addition, the Employee Separation Packet included the required lists. The first list is titled “Blue Anchor — Eligible” and contains the job titles and birthdays of the two employees terminated at the Blue Anchor facility, which includes Recchia. (Compl. Ex. B) The second list is titled “Blue Anchor— Not Eligible” and has the job titles and birthdays of all retained employees.¹⁴ (Id.) There is no dispute that the Blue Anchor facility was the decisional unit. See 29 C.F.R. § 1625.22(f)(3)(ii)(C).

Contrary to Recchia’s contention that Kellogg was required to provide the criteria for selection in the reduction-in-force program, the OWBPA requires only the disclosure of the eligibility factors for the Severance Plan. See id. § 1625.22(f)(1)(iii)(A, B) (defining “program” as the package of benefits offered, not the involuntary termination program); see also Rupert v. PPG Indus., Inc., Nos. 07-0705, 08-0616, 2009 WL 596014, at *56-57 (W.D.Pa. Feb. 26, 2009) (following the EEOC regulations and finding that “program” refers to the benefits plan); Ricciardi v. Elec. Data Sys. Corp., No. 03-5285, 2007 WL 576323, at *4 (E.D.Pa. Feb. 20, 2007) (holding that a release needed to include only the criteria for eligibility in the severance plan, not the criteria for termination).¹⁵ As such, Kellogg has met the requirements of the OWBPA, and the Release is valid with respect to Recchia’s ADEA claims. Summary judgment will be granted for Kellogg on Counts II and III.¹⁶

IV.

Kellogg has also moved to seal Exhibit 2 to its Motion for Summary Judgment. Exhibit 2 is a presentation that Celerant prepared regarding the K-Lean program, its purpose, and its implementation. Kellogg certifies that the document contains confidential and proprietary information that could provide a competitive advantage for Kellogg’s competitors or cause harm to Kellogg. (Def.’s Statement 3-4) In addition, Kellogg certifies that some of the information in the document is proprietary to Celerant and may provide a competitive advantage to its competitors. (Id. at 4)

A party seeking a motion to seal must explain “(a) the nature of the materials or proceedings at issue, (b) the legitimate private or public interests which warrant the relief sought, (c) the clearly defined and serious injury that would result if the relief sought is not granted, and (d) why a less restrictive alternative to the relief sought is not available.” See L.Civ.R. 5.3(c)(2). Kellogg has not explained what serious injury it will suffer if the document is not sealed, nor has it provided a less restrictive alternative to sealing the document.

Based on the information provided, the Court is not convinced that allowing the document to remain unsealed will cause actual harm to Kellogg or Celerant. The document details how to perform a restructuring that took place in a few Kellogg facilities over four years ago. The Court fails to see how unsealing this document would provide an advantage to Kellogg’s competitors such that Kellogg will experience any serious injury.¹⁷ As such, the public’s interest in transparency far outweighs any potential harm to Kellogg. Accordingly, Kellogg’s motion to seal will be denied.

V.

For the foregoing reasons, summary judgment will be granted in favor of Defendant Kellogg on all counts. Defendant’s Motion to Seal will be denied. An appropriate Order accompanies this Opinion.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Dkt. No. 47) AND DENYING DEFENDANT’S MOTION TO SEAL (Dkt. No. 48)

This matter having appeared before the Court upon the Defendant’s Motion for Summary Judgment (Dkt. No. 47) and Motion to Seal (Dkt. No. 48), oral argument having been held on June 20, 2013, the Court having considered the submissions of the parties, for the reasons set forth in an Opinion issued on an even date herewith, and for good cause appearing;

ORDERED THAT:

(1) Defendant Kellogg Company’s Motion for Summary Judgment (Dkt. No. 47) is hereby GRANTED.

(2) Defendant Kellogg Company’s Motion to Seal (Dkt. No. 48) is hereby DENIED.

(3) The Clerk of Court is hereby directed to close this file.

1 . This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). The Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a).

2 . In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to' the nonmoving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986).

3 . SUMF refers to Defendant’s Statement of Material Facts Not in Dispute submitted in support of its Motion for Summary Judgment (Dkt. No. 47) pursuant to Local Civ. R. 56.1.

4 . SSMF refers to Plaintiff's Supplemental Statement of Material Facts submitted in support of his opposition to Defendant’s Motion for Summary Judgment (Dkt. No. 56).

5 . In addition to Recchia, one other Blue Anchor employee, Anne Mrozchek, was assessed without a position. She scored 1.58, 1.67, and 1.75 for the positions for which she was assessed. (SSMF ¶¶ 48, 50) Morzchek was forty-four years old at the time. (Compl. Ex. B)

6 . Although the Release provides that Michigan law governs any disputes arising under it (Release ¶ 17(c)), the threshold question of whether the Release is valid is examined under New Jersey law. See, e.g., Siegel v. Norwegian Cruise Line, No. 00-6271, 2001 WL 1905983, at *4 (D.N.J. May 14, 2001) (analyzing a claim of economic duress under New Jersey law where a choice-of-law provision specified that Florida law would apply). In addition, both parties have relied on New Jersey law in presenting their arguments.

7 . Recchia’s economic duress argument focuses on his lack of medical insurance and his inability to cover medical bills.

8 . Kellogg argues that having the benefit of counsel defeats a duress defense and cites Third Circuit case law in support of its argument. (Def.'s Br. in Supp. of Def.’s Mot. for Summ. J. (“Def.'s Br.”) 12) However, the cases on which Kellogg relies construe Pennsylvania, not New Jersey, law. See, e.g., Harsco Corp. v. Zlotnicki, 779 F.2d 906, 911 (3d Cir.1986) (analyzing plaintiff's duress defense under Pennsylvania law). By contrast, there is no such clear law in New Jersey, and this Court is unwilling to adopt Pennsylvania's rule. Cf. Tak Commc’ns, Inc. v. West Deptford Townhome Assocs. Ltd. P’ship, No. 91-0121, 1992 WL 296535, at *6 (E.D.Pa. Oct. 8, 1992) ("Although it is clear that Tak's consultation with counsel is relevant to its state of mind, ... under New Jersey law, the opportunity to consult with counsel does not preclude a claim of economic duress as a matter of law.”).

9 . To the extent that Recchia may be making an emotional duress argument, the Court finds that argument ineffective for substantially similar reasons to those discussed in connection with Recchia's economic duress arguments. See Sauter, 2009 WL 2424689, at *9-10 (using the same analysis to consider plaintiff's economic and emotional duress defenses).

10 . Recchia also argues that the Release is invalid because Kellogg "placed Mr. Recchia under undue duress" in violation of the Older Workers Benefit Protection Act (OWBPA) of 1990. (Pl.'s Br. 16-17) Because the Court determines that Recchia did not sign the release under duress, this argument fails as well.

11 . Recchia argues that he did not receive adequate consideration in exchange for signing the Release because the pay and benefits he would have received had he not been terminated would have far exceeded the severance pay and benefits he received under the here. Courts consistently examine the benefits to which a plaintiff is entitled after termination, not what he might have been entitled to had he not been terminated. See, e.g., Cobb, 2012 WL 2344452, at *7; Yousef, 2011 WL 3739362, at *7; Sauter, 2009 WL 2424689, at *8; Moroni, 2009 WL 3335504, at *6; Riddell, 18 F.Supp.2d at 474. Almost without exception, a plaintiff would receive more benefits from continuing to be employed than he would receive from being terminated. Using that standard as a baseline would necessitate finding against validity for this factor in almost every case.

12 . The parties agree that the Release complies with 29 U.S.C. § 626(f)(1)(C), which provides that a waiver may not prohibit the employee from bringing claims arising after the date of the waiver's execution. The Release here comports with this requirement. (Release ¶ 13(e)).

13 . Kellogg argues that even though it "treated the waiver as being requested in 'connection with ... a reduction-in-force,' ” K-Lean was not designed to be a reduction-in-force program. (Def.’s Reply Br. 6 n. 2) However, as K-Lean meets the EEOC’s definition of an reduction in force, 29 C.F.R. § 1625.22(f)(iii)(1)(B), the Court will treat it as such.

14 . Plaintiff argues here that Kellogg did not provide him with a list of ineligible employees when he was terminated. (Pl.'s Br. 26) But the record is clear that Kellogg did provide Recchia with this list. In fact, Recchia attached copies of both lists to his Complaint as part of the Separation Packet. (Compl. Ex. B) Indeed, Recchia’s arguments surrounding the deficiency the OWBPA lists have been inconsistent. In her October 6, 2009 letter to Kellogg, Ms. Vigilante wrote that the OWBPA lists were deficient because they did not provide information regarding reductions in force in other Kellogg facilities. (Def.’s Ex. 11, at 2) In the Complaint itself Recchia did not even identify a missing list as a violation of the OWBPA, despite the fact that he listed several other violations. (Id. ¶ 38) Recchia now attaches only one of the OWBPA lists and argues that he never received the other one (Pl.'s Ex. 32), even though he has already provided the Court with both lists. (Compl. Ex. B) The Court is not persuaded.

15 . The Court is aware that courts in other districts have concluded that “program” refers to an involuntary termination program, not the benefits program itself, with respect to the eligibility factor disclosure. See Pagliolo v. Guidant Corp., 483 F.Supp.2d 847, 861 (D.Minn.2007); Faraji v. FirstEnergy Corp., No. 04-1493, 2007 WL 756750, at *5 (N.D.Ohio Mar. 7, 2007); Merritt v. First-Energy Corp., No. 05-0586, 2006 WL 4568793, at *3 (N.D.Ohio Mar. 31, 2006); Massachusetts v. Bull HN Info. Sys., Inc., 143 F.Supp.2d 134, 147 n. 29 (D.Mass.2001); see also Kruchowski v. Weyerhaeuser Co., 423 F.3d 1139, 1143-44 (10th Cir.2005), withdrawn and superseded on reh’g in part, 446 F.3d 1090 (10th Cir.2006). But as noted in Rupert, 2009 WL 596014, at *56-57, none of these opinions discussed either the import of the EEOC regulations’ definition of “program,” or the significance of the absence of termination criteria in the EEOC’s sample disclosure form, 29 C.F.R. § 1625.22(f)(4)(vii)(B). In addition, almost all of these decisions trace back to a footnote in Bull, which did not discuss the EEOC’s regulations at all.

Where a statute is ambiguous, as the OWB-PA is here, the Court must defer to the agency's construction as long as "the agency’s answer is based on a permissible construction of the statute.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The EEOC has made clear that for the purposes of 29 U.S.C. § 626(f)(1)(H), an involuntary employment termination program refers to the benefits program offered to terminated employees. Given the level of deference required as well as the fact that the two district courts in this Circuit to have considered this question reached the same conclusion as the Court in this case, the Court finds that Kellogg was required to provide the eligibility factors for the Severance Plan, not for K-Lean.

16 . Because the Court finds that the Release precludes all of Recchia’s claims, the Court does not address the parties’ arguments on the merits of his claims.

17 . Indeed, at oral argument counsel for Kellogg indicated that the passage of time had lessened the need for sealing the document.