                  Not for Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                          For the First Circuit
No. 04-1789
                               GERARD O'NEILL,

                           Plaintiff, Appellant,

                                        v.

                    THE NEW YORK TIMES COMPANY AND
                     THE GLOBE NEWSPAPER COMPANY,

                          Defendants, Appellees.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]



                                     Before

                           Boudin, Chief Judge,

                       Cyr, Senior Circuit Judge,

                        and Lipez, Circuit Judge.



     Edward J. Dailey, with whom Lisa M. Fleming and Bromberg
Sunstein, LLP were on brief for appellant.
     Joan Ackerstein, with whom Gregory I. Rasin, David J. Kerman,
Richard W. Paterniti and Jackson Lewis LLP were on brief for
appellees.


                               August 17, 2005
            Per Curiam. Gerard O’Neill appeals from a district court

judgment dismissing his age discrimination claim against his former

employers,    the      New   York   Times      Company   and    the    Boston   Globe

Company,1 pursuant to the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621 et seq., and the Older Workers Benefit

Protection Act (OWBPA), 29 U.S.C. § 626(f)(1).                   We affirm.

                                           I

                                    BACKGROUND

            O’Neill was employed as a journalist by the Boston Globe

for 35 years, eventually becoming the editor of the investigative-

journalism unit, known as the “Spotlight Team”.                   In January 2000,

when O’Neill was 58 years old, Globe Editor Matthew Storin notified

O’Neill    that   he    planned     to    remove   him   from    the    position   of

Spotlight Team editor effective January 1, 2001.                       Storin stated

that he wanted new ideas on the Team, and suggested that O’Neill

should    consider     early   retirement       rather    than    transferring     to

another position at the Globe.                 Eventually, Storin offered the

Spotlight Team editorship to a 54-year-old employee.

            After Globe editors had declined to accept several of

O’Neill’s    proposals       for    new    work    assignments,        he   undertook

negotiations with the Globe’s human resources department regarding

early retirement.        In June 2000, the Globe formulated a Voluntary



     1
      The New York Times is the parent company of Globe. For ease
in reference, we shall refer to O’Neill’s employer as “the Globe”.

                                          -2-
Early Retirement Program (the 2000 VERP), targeting those non-union

employees who were at least 52 years of age, who had at least

twenty years of service, and who would not have to be replaced in

the positions they occupied at the time they opted for early

retirement.     In September 2000, the Globe offered the VERP to

O’Neill, as well as sixteen other employees who purportedly met the

eligibility   requirements.   The   Globe   provided   each   of   these

employees with written notification, as required by the OWBPA,

listing the job positions, ages, and years of service of the

seventeen eligible employees, as well as of those Globe employees

with the same job titles who did not meet the VERP eligibility

requirements.    Additionally, the VERP included a general release

and waiver of the employees’ ADEA rights.    See 29 U.S.C. § 626(f).

The notification advised employees to consult an attorney before

making the “important decision” whether to accept the VERP.        Only

five of the employees, including O’Neill, opted to take early

retirement under the 2000 VERP.       Nonetheless, O’Neill “saw [the

VERP] as a coerced retirement, because it was the only other option

to doing a take-it-or-leave-it reduced retirement after 35 years of

meritorious work for the Globe.” O”Neill retired effective January

2001.

          The following year, the Globe once again offered a VERP

to its employees.    When O’Neill learned of the terms of the 2001

VERP, which he considered more lucrative than those in the 2000


                                -3-
VERP,   he   was   of   the   mind   “that     somehow   [he]’d   been    treated

differently because of [his] age,” and he contacted an attorney.

The Globe rejected O’Neill’s requests that he be permitted to

participate in the 2001 VERP, rather than the 2000 VERP.                 On May 3,

2002, O’Neill’s attorney transmitted a draft complaint to the

Globe, alleging that its use of the 2000 and 2001 VERPs constituted

illegal age discrimination.          Nevertheless, O’Neill filed no charge

with the Massachusetts Commission Against Discrimination (MCAD)

until May 5, 2003.

             In August 2003, O’Neill filed an action for damages

against the Globe in state court, alleging that the 2000 VERP had

materially omitted or misrepresented facts that the Globe was

obligated to disclose under the OWBPA.               The Globe removed the

action to federal district court. In an amended complaint, O’Neill

alleged, inter alia, that the Globe had violated the ADEA by

including    him   as   one   of   the   seventeen   employees     eligible    to

participate, and that it had violated the OWBPA by providing

inadequate disclosures in the 2000 VERP documents.

             Following discovery and a hearing, the district court

entered summary judgment for the Globe, based inter alia on two

independent grounds:          (i) the general release of ADEA rights

contained in the 2000 VERP was “knowing and voluntary,” hence

enforceable under 29 U.S.C. § 626(f); and (ii) the ADEA claim was

time-barred in that O’Neill failed to file an administrative


                                         -4-
complaint with the MCAD within 300 days of the alleged injury, as

required by 29 U.S.C. § 626(d)(2).

                                            II

                                      DISCUSSION

                  On appeal, O’Neill primarily focuses upon whether the

2000       VERP    provided   sufficient     disclosures      of    information   as

required under the OWBPA.              It is unnecessary to address these

issues,       however,     inasmuch    as        the   district    court   correctly

determined that the O’Neill ADEA claim is time-barred by the

statute of limitations in 29 U.S.C. § 626(d)(2).

                  We review the summary judgment ruling de novo, viewing

all evidence and reasonable inferences therefrom in the light most

favorable to the non-moving party, in order to determine whether

there exists a trialworthy issue of material fact, and the moving

party is entitled to judgment as a matter of law.                  See Megwinoff v.

Banco Bilbao Vizcaya, 233 F.3d 73, 74 (1st Cir. 2000).

                  The O’Neill ADEA claim unquestionably is time-barred.

Subsection 626(d)(2) requires that an employee file a charge with

the EEOC within 300 days “after the alleged unlawful practice

occurred.”2         Although O’Neill alleges that the Globe coerced him

into early retirement in 2000 (e.g., “I accepted the 2000 buyout,



       2
      The     claim O’Neill filed in May 2003 with the MCAD would have
served as     a simultaneous filing with the EEOC as well. See Davis
v. Lucent     Techs., Inc., 251 F.3d 227, 230 (1st Cir. 2001) (citing
29 C.F.R.     § 1601.13(a)(4)).

                                         -5-
even though I saw it as a coerced retirement.”), he failed to

submit an MCAD charge until May 2003.            An employee who is presented

with such a take-it-or-leave-it retirement package is thereupon

deemed on      notice of the fact of his injury for purposes of

commencing the limitations period in subsection 626(d)(2).                   See,

e.g., Am. Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 122-23

(1st Cir. 1998).

              O’Neill maintains that he did not know until discovery

occurred in the present action that the Globe deliberately withheld

pertinent information from the 2000 VERP documents which should

have been disclosed by the Globe under the OWBPA.             An employee need

not possess all the pertinent facts of an employer’s alleged

discriminatory action in order to commence the running of the

limitations period.           Rather, it is enough that he “knows that he

has been hurt and also knows that his employer has inflicted the

injury.”      Morris v. Gov’t Dev. Bank of P.R., 27 F.3d 746, 750 (1st

Cir.   1994);    see    Am.    Airlines,   133   F.3d   at   123   (noting   that

employees had sufficient information once employer presented them

with a retirement package on a “take it or leave it” basis, viz.,

retire or lose your job).          Furthermore, when O’Neill learned that

the    2001   VERP     allegedly    contained    more   lucrative    terms,    he

concededly thought “that somehow [he]’d been treated differently

because of [his] age,” and he contacted an attorney.               Yet he filed

no administrative charge until May 5, 2003, well beyond the time


                                       -6-
prescribed by subsection 626(d)(2).

           Finally, O’Neill endeavors to evade the clear constraints

prescribed in the limitations provision by invoking the principle

of equitable tolling.    O'Neill contends that, given the fact that

the Globe deliberately withheld from the VERP documents information

which the Globe was required to disclose under the OWBPA, he was

unable to ascertain that crucial, undisclosed information until he

conducted discovery in the course of this lawsuit, and hence could

not know whether or not he had any viable ADEA claim.         This claim

fails as well.

           Equitable tolling applies only if the employee is aware

of his ADEA rights, yet fails to file a timely administrative

charge due to reasonable reliance upon the employer’s deceptive

conduct. Such employer deception must exceed any alleged deception

that is part and parcel of the ADEA claim itself (viz., the Globe’s

alleged failure to disclose in the 2000 VERP the facts which are

required by the OWBPA), see American Airlines, 133 F.3d at 124

(noting that plaintiffs “simply parroted the same events that gave

rise to their underlying claim:       that American misled them as to

the reason for the VERP”), and must have succeeded in “‘lull[ing]

the plaintiff[] into believing that it was not necessary for [him]

to   commence   litigation,’”   id.   (citation   omitted).    However,

O’Neill, who signed a release of his ADEA rights, has alleged no

such deceptive or dilatory practices on the part of the Globe.


                                  -7-
Thus,   the    subsection   626(d)(2)    limitations   period   was   never

equitably tolled.

              For the foregoing reasons, the district court judgment is

              Affirmed.




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