                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 18a0171p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 JENA MCCLELLAN,                                         ┐
                                  Plaintiff-Appellant,   │
                                                         │
                                                         >      No. 17-1992
        v.                                               │
                                                         │
                                                         │
 MIDWEST MACHINING, INC.,                                │
                                 Defendant-Appellee.     │
                                                         ┘

                         Appeal from the United States District Court
                    for the Western District of Michigan at Grand Rapids.
                   No. 1:16-cv-01308—Paul Lewis Maloney, District Judge.

                                    Argued: June 13, 2018

                             Decided and Filed: August 16, 2018

              Before: COLE, Chief Judge; CLAY and THAPAR, Circuit Judges.
                                   _________________

                                         COUNSEL

ARGUED: William F. Piper, WILLIAM F. PIPER, PLC, Portage, Michigan, for Appellant.
Gregory N. Longworth, CLARK HILL PLC, Grand Rapids, Michigan, for Appellee. Philip M.
Kovnat, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus Curiae. ON BRIEF: William F. Piper, WILLIAM F. PIPER, PLC, Portage, Michigan,
for Appellant. Gregory N. Longworth, CLARK HILL PLC, Grand Rapids, Michigan, for
Appellee. Philip M. Kovnat, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Amicus Curiae.

         CLAY, J., delivered the opinion of the court in which COLE, C.J., joined, and THAPAR,
J., joined in part. THAPAR, J. (pp. 18–24), delivered a separate opinion concurring in part and
dissenting in part.
 No. 17-1992                  McClellan v. Midwest Machining, Inc.                         Page 2


                                      _________________

                                           OPINION
                                      _________________

       CLAY, Circuit Judge. Plaintiff Jena McClellan brought suit against her former employer
to enforce her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), and the Equal Pay Act,
29 U.S.C. § 206(d). The district court granted summary judgment for Defendant on the grounds
that Plaintiff’s federal claims were barred by the common law tender-back doctrine. Because we
conclude that the tender-back doctrine does not apply to claims brought under Title VII and the
Equal Pay Act, we REVERSE the district court’s judgment and REMAND for further
proceedings.

                                        BACKGROUND

                                      Factual Background

       In 2008, Defendant Midwest Machining, Inc., a maker of component parts for complex
tools and machines, hired Plaintiff Jena McClellan as a telemarketer and quickly promoted her to
work in their “inside sales” department. In late August of 2015, Plaintiff announced to her
employer that she was pregnant. According to Plaintiff, her supervisor made negative comments
for weeks in response to the announcement, including “commenting sardonically and jealously
about her perfect life,” (R. 1, Compl., PageID # 3), and was annoyed by Plaintiff’s absences for
pre-natal appointments. About three months later, Plaintiff was terminated “[d]espite [her] many
years of service for the company in its inside sales department and no record of discipline in over
six years.” (R. 33, Second S. J. Order PageID # 230.)

       Plaintiff testified that on the day of termination, Philip Allor, Midwest’s president, called
her into his office. There, he presented Plaintiff with an agreement and said that she “needed to
sign then if [she] wanted any severance.” (R. 17-3, McClellan Aff., PageID # 90.) As the
district court explained, although the two reviewed the agreement together, “Allor did not ensure
McClellan’s understanding as they went along at a rapid pace.” (R. 33, Second S. J. Order,
PageID # 231 (citing R. 31-4, McClellan Dep., PageID # 202).) Plaintiff testified that she felt
 No. 17-1992                    McClellan v. Midwest Machining, Inc.                      Page 3


bullied throughout the meeting, that she felt she could not ask any further questions, and that
Allor’s tone was “raised” during the entire conversation. (R. 31-4, McClellan Dep., PageID #
203–04.) “[W]hen McClellan challenged a paragraph early on, and stated, ‘I still should have
had one week [of vacation] left,’ Allor forcefully replied, ‘[you] do not,’ and moved on.” (R. 33,
Second S. J. Order, PageID # 231 (citing R. 31-4, McClellan Dep., PageID # 202).) Plaintiff
also testified that Allor shut the door and she did not feel free to leave.

       “Feeling pressured,” Plaintiff signed the agreement, without the benefit of a lawyer.
(R. 17-3, McClellan Aff., PageID # 90.) The agreement provided that Plaintiff would waive
“any and all past, current and future claims” she had against Midwest. (R. 16-1, Severance
Agreement, PageID # 62.) Plaintiff would later affirm that she “did not understand that the
‘claims’ referred to in . . . the severance agreement meant discrimination complaints.” (R. 17-3,
McClellan Aff., PageID # 90.) Instead, she “assumed it referred to any unpaid wages or
benefits.” (Id.)

       Under the terms of the Severance Agreement, Defendant Midwest agreed to pay Plaintiff
$4,000, payable in eight weekly installments beginning November 27, 2015. Defendant made
each payment and Plaintiff accepted them.

                                        Procedural History

       Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission, which issued her a right-to-sue letter on August 11, 2016. On November 6, 2016,
Plaintiff met with an attorney and explained what had transpired during her employment with
Midwest. Given that any Title VII claim was about to expire, Plaintiff’s attorney “immediately
drafted a lawsuit.” (R. 17-2, Piper Aff., PageID # 83.)

       On November 9, 2016, Plaintiff filed a complaint, naming Midwest Machining, Inc. and
Self Lube, Inc. as defendants. The complaint alleges that Midwest “terminated Ms. McClellan
because of her pregnancy.” (R. 1, Compl., PageID # 4.) It also accuses Midwest of maintaining
a sex-segregated workforce insofar as “all 20 or so people who worked in inside sales . . . were
women,” and “all three people who worked in outside sales were men.” (Id. at PageID # 2.) The
complaint further avers that Midwest “paid male outside sales persons substantially higher
 No. 17-1992                  McClellan v. Midwest Machining, Inc.                       Page 4


commissions and paid them substantially more overall than female inside sales persons, even
though the positions required substantially similar duties, requirements, equal skill, effort and
responsibility, under the same or similar working conditions.” (Id. at PageID # 3.) The suit
brought claims for “pregnancy discrimination” under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C.
§ 2000e(k), under 42 U.S.C. § 1981a, and under the Michigan Elliot-Larsen Civil Rights Act,
MCL 37.2101 et seq. (Count I); and for equal pay violations under the Equal Pay Act (“EPA”),
29 U.S.C. § 206(d) et seq., under the Michigan Minimum Wage Law of 1964, MCL 408.381 et
seq. (repealed 2014), and under the Elliot-Larsen Act (Count II).

       After receiving Plaintiff’s complaint, Midwest’s counsel informed Plaintiff’s counsel of
the severance agreement. On or around December 1, 2016, about three weeks after Plaintiff filed
suit and before any responsive pleading was due, Plaintiff sent a letter to Midwest, at the
direction of her attorney, saying that she was “rescinding the severance agreement . . . because
[she] want[ed] to litigate matters relating to [her] former employment and termination.” (R. 17-
2, McClellan Letter, PageID # 85; R. 17-2, Piper Aff., PageID # 83.) Enclosed with the letter
was a check for $4,000. Midwest responded by returning the check to Plaintiff a week later,
asserting that “[t]here is no legal basis for rescinding the severance agreement.” (R. 17-2,
Midwest Resp., PageID # 87.)

       On February 24, 2016, Defendants filed a motion for summary judgment, arguing that the
severance agreement barred Plaintiff’s claims. They further argued that Plaintiff’s claims were
also barred because she did not “tender back” the monetary consideration she received under the
severance agreement before commencing her lawsuit. On April 18, 2017, the district court
granted in part and denied in part Defendants’ motion for summary judgment. The court
dismissed Defendant Self Lube, Inc., holding that there was no such legal entity known as Self
Lube, which instead is a valid assumed name for Midwest Machining, Inc. The court then
denied summary judgment for Defendant Midwest without prejudice and held that “at this stage
and on this factual record, the Court cannot conclude the release was valid under federal law.”
(R. 19, First S. J. Order, PageID # 101.) The court permitted the parties to conduct discovery
limited to the issue of whether Plaintiff “knowingly and voluntarily executed the agreement.”
 No. 17-1992                    McClellan v. Midwest Machining, Inc.                            Page 5


(Id. at PageID # 102–04.) The court also ordered further briefing as to whether federal law
required a plaintiff to tender back any consideration received under a severance agreement
before commencing suit under Title VII and the EPA.

        On May 30, 2017, Defendant Midwest Machining, Inc. filed a renewed motion for
summary judgment. And on August 3, 2017, the court granted it. The court held that genuine
disputes of material fact precluded summary judgment on the issue of whether Plaintiff
“knowingly” and “voluntarily” executed the severance agreement. Indeed, the court found that
on the morning Plaintiff signed the agreement, “she was ‘blindsided’ by an unexpected meeting”
to terminate her employment; “she felt ‘bullied,’ did not feel free to leave the room, and did not
feel like she could ask any questions.” (R. 33, Second S. J. Order, PageID # 232.) Further,
Philip Allor had “insisted [Plaintiff] sign the agreement and forcefully said if she wanted any
money after her abrupt termination, she would need to sign the agreement; she had no time to
consider whether to sign the release, and certainly no time to consult with a lawyer.” (Id.) The
court added that Plaintiff “received a small sum of money to extinguish any claims if she truly
suffered unlawful discrimination” and found that “she did not understand the broad scope of the
agreement.” (Id.) Based on these facts, the district court concluded that a jury could find that
Plaintiff did not enter into the agreement knowingly and voluntarily.

        Nonetheless, the district court granted summary judgment for Midwest based on “the
common-law doctrines of release and tender back.” (Id. at PageID # 229.) The court held that,
even if a severance agreement is voidable on grounds of duress or involuntariness, a plaintiff will
still ratify the contract unless she “return[s] the consideration” as a precondition to filing suit, (id.
at PageID # 233), and Plaintiff “did not ‘tender back’ [the consideration] prior to filing suit.”
(Id. at PageID # 232.) The court did not mention that Plaintiff had offered to tender back the
money shortly after filing suit. The court declined to exercise supplement jurisdiction over her
state law claims.

        Plaintiff subsequently filed a timely notice of appeal.
 No. 17-1992                  McClellan v. Midwest Machining, Inc.                         Page 6


                                          DISCUSSION

I.     Standard of Review

       We review a district court’s grant of summary judgment de novo. Maben v. Thelen,
887 F.3d 252, 263 (6th Cir. 2018). Summary judgment is proper “if the movant shows that 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). The moving party bears the burden of showing that no genuine
issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving
party must demonstrate the “basis for its motion, and identify[ ] those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323
(internal citations and quotation marks omitted). The nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986) (internal citations and quotation marks omitted). The reviewing court must then
determine “whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52.
A court should view the facts and draw all reasonable inferences in favor of the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II.    Analysis

       A. The common law tender-back doctrine does not apply to claims brought under
          Title VII or the Equal Pay Act.

       “Federal law controls the validity of a release of a federal cause of action.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1481 (6th Cir. 1989); accord Gascho v. Scheurer Hosp., 400 F.
App’x 978, 981 (6th Cir. 2010). And when evaluating a plaintiff’s challenge to the validity of a
release, courts must “remain[] alert to ensure that employers do not defeat the policies of . . .
Title VII by taking advantage of their superior bargaining position or by overreaching.” Adams
v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995).

       The district court dismissed Plaintiff’s Title VII and EPA claims on the ground that she
did not “tender back” the $4,000 she received under the severance agreement prior to filing her
 No. 17-1992                   McClellan v. Midwest Machining, Inc.                         Page 7


lawsuit. The court held that, under the tender-back doctrine, “even if a party signs a release
under duress, she must ‘as a condition precedent to suit, . . . return the consideration in exchange
for a release.’” (R. 33, Second S. J. Order, PageID # 233 (quoting Oubre v. Entergy Operations,
Inc., 522 U.S. 422, 436 (1998) (Thomas, J., dissenting).)

       This “tender-back doctrine” is rooted in “general principles of state contract
jurisprudence.” Oubre, 522 U.S. at 425. The doctrine provides that “contracts tainted by
mistake, duress, or even fraud are voidable at the option of the innocent party,” but “before the
innocent party can elect avoidance, she must first tender back any benefits received under the
contract.” Id. (citations omitted). “If she fails to do so within a reasonable time after learning of
her rights . . . she ratifies the contract and so makes it binding.” Id. (citations omitted). At the
heart of this appeal is whether the tender-back doctrine applies to claims brought under Title VII
and the EPA, a question of first impression in this Circuit. We now hold that a plaintiff is not
required to tender back consideration received under a severance agreement before bringing
claims for violations of Title VII or the EPA.

       In a number of unpublished opinions, we have discussed the application of the tender-
back doctrine to other federal statutes. For instance, in Samms v. Quanex Corp., 99 F.3d 1139
(6th Cir. 1996) (unpublished table decision), this Court endorsed the tender-back doctrine in the
context of a claim brought under the Employee Retirement Income Security Act (“ERISA”),
where the plaintiff had not tendered back money received in exchange for signing a release
before filing suit. We recognized, however, that “[t]here are times when, as a matter of public
policy, courts have refused to apply the tender back doctrine.” Id. at *3. Then, in Bittinger v.
Tecumseh Prods. Co., the Eastern District of Michigan held that tender back was a “prerequisite
to plaintiff’s maintenance of a claim challenging the validity of a release in a non-ADEA
context.” 83 F. Supp. 2d 851, 871 (E.D. Mich. 1998). We adopted that opinion without
commentary. Bittinger v. Tecumseh Prods. Co., 201 F.3d 440 (6th Cir. 1999) (unpublished table
decision). Next, in Halvorson v. Boy Scouts of Am., 215 F.3d 1326 (6th Cir. 2000) (unpublished
table decision), this Court affirmed the granting of summary judgment for the defendant on the
grounds that the plaintiff released the defendant from claims brought under the ADA, the FMLA,
 No. 17-1992                   McClellan v. Midwest Machining, Inc.                        Page 8


and ERISA, and subsequently ratified that release by retaining the severance money. The Court
did not explicitly address the tender-back rule.

       The only published decision from this Court identified by the parties that discusses the
tender-back doctrine in the context of a release of federal claims is Raczak v. Ameritech Corp.,
103 F.3d 1257 (6th Cir. 1997). In Raczak, Judge Jones rendered the opinion of the Court on the
tender-back issue, writing that he “[did] not believe Plaintiffs are required to tender back the
consideration they received as a precondition to bringing suit against the Defendants under the
Age Discrimination in Employment Act.” Id. at 1268–69. Judge Jones reasoned as follows:

       [T]o require Plaintiffs to tender back benefits would be inequitable. A tender-
       back requirement would deter meritorious ADEA filings. Potential Plaintiffs
       would be faced with the Hobsonian choice of releasing their claims and receiving
       payments immediately or filing an age discrimination claim that would likely take
       years to resolve. It is doubtful that few claimants would choose the latter. If
       Plaintiffs had already received release consideration they would have to recover
       any amounts spent before they could bring a claim. This would bar Plaintiffs
       from litigating their age discrimination claims in court. Rather than a bar to suit,
       a release should be considered as a factor that would reduce the judgment amount
       received by a plaintiff upon bringing suit.

Id. In reaching this conclusion, Judge Jones relied on the Supreme Court’s decision in Hogue v.
Southern R.R. Co., 390 U.S. 516 (1968).

       In Hogue, the Supreme Court held that a plaintiff was not required to tender back
payments received prior to bringing suit under the Federal Employers Liability Act (“FELA”),
45 U.S.C. § 51 et seq. The district court in the instant case distinguished Hogue as relying on a
provision in the FELA that “seemingly supplanted common law.” (R. 33, Second S. J. Order,
PageID # 235.) That provision states that “[a]ny contract, rule, regulation, or device whatsoever,
the purpose or intent of which shall be to enable any common carrier to exempt itself from any
liability created by this chapter, shall to that extent be void[.]” 45 U.S.C. § 55. But the Court in
Hogue explicitly disclaimed reliance on this provision. See 390 U.S. at 518 (“There is no
occasion to decide whether the release here involved violated [42 U.S.C. § 55].”). Instead, the
Court held that it was “sufficient for the purposes of [its] decision to note that a rule which
required a refund as a prerequisite to institution of suit would be ‘wholly incongruous with the
general policy of the Act to give railroad employees a right to recover just compensation for
 No. 17-1992                   McClellan v. Midwest Machining, Inc.                          Page 9


injuries negligently inflicted by their employers.’” Id. (quoting Dice v. Akron, C. & Y.R. Co.,
342 U.S. 359, 362 (1952)). Defendant distinguishes Hogue on the grounds that “[t]he Supreme
Court could easily have relied on Section [55] of the FELA.” (Brief for Appellee at 16.)
Significantly, however, it did not.

       In Raczak, Judge Jones held that “Hogue may be extended logically to ADEA claims” as
“[b]oth statutes are designed to make employees whole again from injuries received, whether
physical or emotional, during the course of employment.” Id. at 1270. Notably, he too did not
rely on any particular provision of the ADEA in reaching his conclusion.

       Just one year later, the Supreme Court would bear out Judge Jones’ reasoning in Raczak,
marking the second time that the Supreme Court has disavowed the tender-back rule in the
context of remedial employment statutes. In Oubre, the plaintiff signed a release as part of a
termination agreement from her position with Entergy that purported to discharge Entergy from
any claims arising from her employment.          522 U.S. at 422.      Oubre later brought an age
discrimination claim under the ADEA, and Entergy asserted that the claim was barred by the
release. The release, however, did not comply with a provision in the ADEA (created by the Old
Workers Benefit Protection Act (“OWBPA”), 29 U.S.C. § 626(f)(1)) that prescribes standards
that must be followed for a release of claims to be valid. Entergy admitted the release was
defective, but argued that the doctrines of tender-back and ratification still barred Oubre’s suit.
The Court disagreed, holding that because the agreement did not conform to the OWBPA, which
“sets up its own regime for assessing the effect of ADEA waivers, separate and apart from
contract law,” the employer had no defense based on the plaintiff’s failure to tender back the
severance money, “notwithstanding how general contract principles would apply to non-ADEA
claims.” Id. at 427.

       Although this conclusion was specific to the OWBPA and the ADEA, it offers some
guidance for other cases involving federal remedial statutes.         First, the Court rejected the
employer’s claim that the general rule in contract law is that a plaintiff must tender back benefits
received under a contract before bringing suit. Id. at 426. The Court highlighted cases to the
contrary and noted that in equity “a person suing to rescind a contract, as a rule, is not required to
restore the consideration at the very outset of the litigation.” Id. (internal citations omitted).
 No. 17-1992                   McClellan v. Midwest Machining, Inc.                      Page 10


Further, the Court explained that applying the tender-back doctrine to ADEA lawsuits “would
frustrate the statute’s practical operation . . . .” Id. at 427. Justice Kennedy, writing for the
Court, explained as follows:

       In many instances a discharged employee likely will have spent the moneys
       received and will lack the means to tender their return. These realities might
       tempt employers to risk noncompliance with the OWBPA’s waiver provisions,
       knowing it will be difficult to repay the moneys and relying on ratification. We
       ought not to open the door to an evasion of the statute by this device.

Id.

       Evidently, the Supreme Court was motivated in part by the remedial goals of the statute.
And as Amicus, Equal Employment Opportunity Commission, points out, “[t]he same policy
concerns apply with equal if not greater force here. If the district court’s decision is affirmed,
employers within this Circuit will have every incentive to pressure employees into executing
waivers under duress, or even engage in deceptive practices to induce them to do so, knowing
that it will be difficult for those employees, especially lower-paid ones, to tender back the
consideration and rescind the agreement.” (Brief for Amicus Curiae at 12.)

       Courts have applied Oubre and Hogue to bar tender prerequisites in lawsuits involving
other federal statutes. See Botefur v. City of Eagle Point, 7 F.3d 152, 156 (9th Cir. 1993)
(recognizing that “the rule announced in Hogue, that tender back is not required for suit under
the FELA, is generalizable to suits under other federal compensatory statutes” and finding no
tender back requirement for § 1983 plaintiff); Smith v. Pinnell, 597 F.2d 994, 996 (5th Cir. 1979)
(same for Jones Act plaintiff). In Long v. Sears Roebuck & Co., which was a pre-Oubre
decision, the Third Circuit considered tender back and ratification in the context of the ADEA.
105 F.3d 1529 (3d Cir. 1997). Although part of the court’s discussion was based on the
OWBPA, the court also addressed more general issues and looked to Hogue for guidance,
concluding that “courts have regularly applied the analysis in Hogue to reject tender
requirements in lawsuits brought under a variety of federal remedial statutes.” Id. at 1541.

       The Third Circuit explained that the ADEA was clearly a “federal remedial statue,” and,
because the purpose of the ADEA was to provide redress for discrimination, the court held that
the tender-back rule should be rejected in suits under the ADEA, just as it was for suits under the
 No. 17-1992                  McClellan v. Midwest Machining, Inc.                       Page 11


Federal Employers Liability Act. The court explained that “[t]he mandate of Hogue is that
tender back requirements imposed in connection with the release of federal rights be evaluated in
light of the general policy of the statute in question.” Id. at 1541 n.22. Further, the court
identified the challenge involved in calculating the proper amount for tender back:

       A tender requirement in such cases would . . . create a conundrum as to how much
       [consideration] should be tendered to restore the pre-release status quo. There is
       no available method of forcing the parties to agree on what an appropriate amount
       would be, since typically the employer does not specify how much of the
       consideration paid to the employee is for the retirement and how much is for the
       release.

Id. at 1543–44 (quoting Isaacs v. Caterpillar, Inc., 765 F. Supp. 1359, 1368 (C.D. Ill. 1991))
(alteration in Long). The court reasoned that this confusion as to the amount of consideration to
be returned would require “an employee to return a sum that typically incorporates consideration
for multiple factors not challenged in an age case: waivers for other violation of law or contract,
rolled-in vacation and sick time, and a public relations benefit to the employer that itself may
deter other litigation.” Id. at 1544. Thus, the court determined that it would best serve the
purposes of the ADEA to reject the tender requirement in such cases.

       Later, the Third Circuit cited Oubre to reaffirm the approach it took in Long and extended
Hogue to claims brought under ERISA. See Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770
(3d Cir. 2007). The court explained that “ERISA, like the ADEA and the FELA, is a ‘federal
remedial statute.’ It was ‘designed to promote the interests of employees and their beneficiaries
in employee benefit plans.’” Id. at 784 (quoting Dewitt v. Penn-Del Directory Corp. 106 F.3d
514, 520 (3d Cir. 1997)). Further, “[t]he same deterrence concerns exist in this context as well.
A plaintiff should not be deterred from bringing a meritorious claim.” Id. “Additionally, as the
Court explained in Oubre the application of the doctrine of ratification to ERISA claims may
frustrate the practical operation of the protections ERISA affords.        It is likely that many
employees discharged in violation of § 510 may have spent the moneys they received as
severance pay. Employers could risk noncompliance with the requirement that a release must be
made knowingly and voluntarily and simply rely on ratification.” Id.
 No. 17-1992                 McClellan v. Midwest Machining, Inc.                       Page 12


       Returning to the instant case, the reasoning in Hogue and Oubre is clearly relevant to
claims brought under Title VII and the EPA. The Supreme Court has recognized that the ADEA
(the statute at issue in Oubre) and Title VII “share common substantive features and also a
common purpose: ‘the elimination of discrimination in the workplace.’” McKennon v. Nashville
Banner Publ’g Co., 513 U.S. 352, 358 (1995) (quoting Oscar Mayer & Co. v. Evans, 441 U.S.
750, 756 (1979)). The Court explained as follows:

       Congress designed the remedial measures in these statutes to serve as a “spur or
       catalyst” to cause employers “to self-examine and to self-evaluate their
       employment practices and to endeavor to eliminate, so far as possible, the last
       vestiges” of discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-
       418 (1975) (internal quotation marks and citation omitted); see also Franks v.
       Bowman Transp. Co., 424 U.S. 747, 763 (1976). Deterrence is one object of
       these statutes. Compensation for injuries caused by the prohibited discrimination
       is another. Albemarle Paper Co. v. Moody, supra, at 418, 95 S.Ct., at 2372;
       Franks v. Bowman Transp. Co., supra, at 763-64. The ADEA, in keeping with
       these purposes, contains a vital element found in both Title VII and the Fair Labor
       Standards Act: It grants an injured employee a right of action to obtain the
       authorized relief. 29 U.S.C. § 626(c). The private litigant who seeks redress for
       his or her injuries vindicates both the deterrence and the compensation objectives
       of the ADEA. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974)
       (“[T]he private litigant [in Title VII] not only redresses his own injury but also
       vindicates the important congressional policy against discriminatory employment
       practices”); see also Teamsters v. United States, 431 U.S. 324, 364, 97 S.Ct. 1843,
       1869, 52 L.Ed.2d 396 (1977).

Id. Similarly, the Supreme Court has explained that “[t]he Equal Pay Act is broadly remedial,
and it should be construed and applied so as to fulfill the underlying purposes which Congress
sought to achieve.” Corning Glass Works v. Brennan, 417 U.S. 188, 208 (1974).

       Like the ADEA, Congress designed Title VII so that the enforcement of its substantive
measures against employers would be effected, at least in substantial part, through private
individuals asserting a claim. “In such cases, the private litigant not only redresses his own
injury but also vindicates the important congressional policy against discriminatory employment
practices.”   Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974).           And the Court
recognized that imposing a tender-back rule in the ADEA context would undermine this feature
of the statute insofar as “[i]n many instances a discharged employee likely will have spent the
moneys received and will lack the means to tender their return,” thereby tempting employers to
 No. 17-1992                   McClellan v. Midwest Machining, Inc.                        Page 13


“risk noncompliance . . . knowing it will be difficult to repay the moneys and relying on
ratification.” Oubre, 522 U.S. at 427. The same could be said in the Title VII and EPA contexts,
which confront the same economic realities; indeed, employees discharged following instances
of sex discrimination (and especially those fired because they are pregnant) are just as likely to
need their severance funds for living expenses as are employees discharged following any other
form of discrimination.

       Only the Eighth Circuit has a published, post-Oubre case that explicitly discusses the
application of the tender-back rule to Title VII claims. See Richardson v. Sugg, 448 F.3d 1046,
1057 (8th Cir. 2006) (applying Oubre’s policy considerations to a prospective Title VII waiver
and finding “that the doctrines of tender-back and ratification do not bar [Plaintiff’s] suit.”).
As for district courts, some have followed Hogue and Oubre to find that the tender-back doctrine
does not create a prerequisite to filing suits under Title VII. For instance, a district court in New
Mexico explicitly applied Oubre to a Title VII case, holding that:

       [a]n inflexible application of the tender back rule would, as a practical matter,
       prevent courts from determining the conditions under which a release has been
       obtained. Plaintiffs with meritorious suits effectively would be precluded from
       bringing their claims. As emphasized in Hogue, supra, this would be contrary to
       Congress’ purposes in passing statutes such as the FELA, ADEA, or Title VII.

Rangel v. El Paso Nat. Gas. Co., 996 F. Supp. 1093, 1097 (D.N.M. 1998) (collecting cases).
Some district courts in our circuit, however, have instead chosen to extend our Court’s decisions
in Bittinger and Samms and have required tender back in Title VII cases. See, e.g., Larkins v.
Reg’l Elite Airline Servs., LLC, No. 1:12cv139, 2013 WL 1818528, at *6 (S.D. Ohio Apr. 29,
2013); Williams v. Detroit Pub. Sch., No. 10-10856, 2011 WL 6945729, at *7 (E.D. Mich. Dec.
6, 2011).

       Defendant relies on Fleming v. United States Postal Serv. AMF O’Hare, 27 F.3d 259 (7th
Cir. 1994), a pre-Oubre case, which held that the plaintiff in a Title VII case had to tender back
payments received under a severance agreement with the postal service before she could bring an
employment suit. The court decided that, since Title VII does not statutorily regulate releases
(unlike the FELA, the Jones Act, and the ADEA), ordinary contract rules of tender back and
ratification apply. See id. at 262 (“This is a garden-variety rescission case requiring tender back
 No. 17-1992                        McClellan v. Midwest Machining, Inc.                                   Page 14


of consideration received.”). In reaching this conclusion, the court relied on a “free-market”
contract law analysis: “[A] premise of a free-market system is that both sides of the market,
buyers as well as sellers, tend to gain from freedom of contract.” Id. at 261. However, as the
Eighth Circuit recognized, Fleming “was decided without the aid of Oubre’s policy
underpinnings to the effect that releases of claims under remedial statues like the ADEA and
Title VII frustrate the purposes of those statutes.” Richardson, 448 F.3d at 1057. Indeed, the
language in Oubre and its emphasis on the economic realities of the recently-discharged cast
serious doubt on the Seventh Circuit’s approach. “Title VII was created precisely to combat a
deficiency in the market, namely inappropriate discrimination, which had the effect of placing
parties in unequal bargaining positions.” Rangel, 996 F. Supp. at 1097. Thus, “[i]t would appear
contrary to Congressional intent to apply a free market approach in interpreting a statute aimed at
fighting the market deficiency of improper discrimination.” Id. at 1098.

         In sum, we conclude that the language and reasoning of Oubre and Hogue apply equally
to claims brought under Title VII and the EPA. In Oubre, the Supreme Court was worried about
“tempt[ing] employers to risk noncompliance . . . knowing it will be difficult to repay the
moneys and rely[] on ratification.” 522 U.S. at 427. Similarly, we worry that requiring recently-
discharged employees to return their severance before they can bring claims under Title VII and
the EPA would serve only to protect malfeasant employers at the expense of employees’
statutory protections at the very time that those employees are most economically vulnerable.
We therefore hold that the tender-back doctrine does not apply to claims brought under Title VII
and the EPA. Rather, as the Supreme Court said in Hogue, “it is more consistent with the
objectives of the Act to hold . . . that . . . the sum paid shall be deducted from any award
determined to be due to the injured employee.” 390 U.S. at 518.1


         1
          The dissent ignores the peculiarities of Title VII and claims brought under other federal remedial statutes
and would treat them no differently than any other claims. Indeed, the dissent cites to numerous state commercial
cases to explain how the tender-back doctrine should apply to the instant case and even admonishes the majority that
“there is no federal general common law.” (internal quotation marks, alteration, and citation omitted). But of
course, the dissent also acknowledges that “[b]oth the Supreme Court and the Sixth Circuit have broadly stated that
federal law governs the validity of an agreement to release a federal cause of action.” Contrary to the dissent, the
issues presented by this case require us to look to federal law, not to state law.
         The dissent’s refusal to look away from state law helps explain the confusion in its preferred approach to
the tender-back doctrine. After presenting a largely superfluous history lesson on the doctrine’s application in courts
 No. 17-1992                         McClellan v. Midwest Machining, Inc.                                     Page 15


         B. Plaintiff effectively tendered back the consideration prior to bringing suit.

         Assuming arguendo that Plaintiff were required to tender back in order to file her claims
under Title VII and the EPA, the district court still erred by granting summary judgment for
Defendant. The record is undisputed that upon Plaintiff’s counsel learning that the parties had
entered into a severance agreement, Plaintiff sent a check to Defendant for the full amount she
received. Instead of accepting the check, however, Defendant returned it a week later, baldly



of law and courts of equity, the dissent suggests that “[t]o decide which version of the rule to apply courts should
consider the requested remedy.” If the requested remedy is damages, then, the dissent argues, the rule should be
strict and it should require the return of consideration before initiating suit; if, however, the remedy requested is an
equitable one, then the rule should be more flexible, asking whether the plaintiff returned the consideration within a
reasonable time. Thus, the dissent would remand this case to the district court to analyze the remedies Plaintiff
seeks and determine which rule to apply. This approach does not make sense in the context of a claim brought
under Title VII.
       Remedies under Title VII are different than remedies for violations of state commercial law. As the
Supreme Court has highlighted, the Congressional Record regarding Title VII makes clear that:
         [t]he [remedy provisions of Title VII] are intended to give the courts wide discretion exercising
         their equitable powers to fashion the most complete relief possible. In dealing with the present
         section 706(g) the courts have stressed that the scope of relief under that section of the Act is
         intended to make the victims of unlawful discrimination whole, and that the attainment of this
         objective rests not only upon the elimination of the particular unlawful employment practice
         complained of, but also requires that persons aggrieved by the consequences and effects of the
         unlawful employment practice be, so far as possible, restored to a position where they would have
         been were it not for the unlawful discrimination.
Albemarle Paper Co., 422 U.S. at 421 (emphasis added) (quoting 118 Cong. Rec. 7168 (1972)). Thus, Title VII
remedies aim “to make the victims of unlawful discrimination whole by restoring them, so far as possible . . . to a
position where they would have been were it not for the unlawful discrimination.” Ford Motor Co. v. E.E.O.C., 458
U.S. 219, 230 (1982) (internal quotation marks and alterations omitted) (quoting Albemarle Paper Co., 422 U.S. at
421). And “[w]here a court finds that invidious discrimination has taken place in violation of Title VII, the district
court has broad discretion to fashion remedies to make the victims whole[.]” Oakley v. City of Memphis, 566 F.
App’x 425, 429 (6th Cir. 2014). Further, “[t]he [Title VII] scheme implicitly recognizes that there may be cases
calling for one remedy but not another, and . . . these choices are, of course, left in the first instance to the district
courts.” Albemarle Paper, 422 U.S. at 415–16.
          As this Court has explained, “Congress’ purpose in vesting a variety of ‘discretionary’ powers in the courts
was . . . to make possible the ‘fashion(ing) (of) the most complete relief possible.’” Isabel v. City of Memphis,
404 F.3d 404, 414 (6th Cir. 2005) (quoting Albemarle, 421 U.S. at 425) (alteration in Albemarle). That a party
requests a particular form of relief does not decide the appropriate relief in a Title VII case. See Selgas v. American
Airlines, Inc., 104 F.3d 9, 13 n.2 (1st Cir. 1997) (“It is clear that in a Title VII case, it is the court which has
discretion to fashion relief comprised of the equitable remedies it sees as appropriate, and not the parties which may
determine which equitable remedies are available.”). And it should be clear that the district court cannot predict
what relief will be appropriate for a case before discovery has completed and before the type and scope of the injury
have been established at trial. In short, the dissent’s preferred approach—i.e., to have the district court decide at the
outset the appropriate form of relief and then use that to decide how to apply the tender-back rule—does not make
sense in the context of a Title VII case: a district court simply will not know how or what relief to fashion at the
outset of the case.
 No. 17-1992                         McClellan v. Midwest Machining, Inc.                                   Page 16


asserting that “[t]here is no legal basis for rescinding the severance agreement.” (R. 17-2,
Midwest Resp., PageID # 87.)

         For the district court, the timing of the return attempt was the deciding factor. The court
held that Plaintiff could not pursue her federal claims because she did not tender back the
consideration “prior to filing suit.”2 (R. 33, Second S. J. Order, PageID # 232.) But “[e]ven
assuming that federal law requires that Plaintiff tender back the consideration that she received
under the release, federal law does not require that the tender back be before, or
contemporaneous with, the filing of the original complaint.” Gascho v. Scheurer Hosp., 589 F.
Supp. 2d 884, 891 (E.D. Mich. 2008). In reaching the alternative conclusion, the district court
erroneously relied on Michigan law and Justice Thomas’ dissent in Oubre, where he wrote that a
party seeking to void a release must “as a condition precedent to suit, . . . return the consideration
received in exchange for a release.” Oubre, 522 U.S. at 436 (Thomas, J., dissenting) (citing
Buffum v. Peter Barceloux Co., 289 U.S. 227, 234 (1933)). The Oubre majority, however, held
that the party “elect[ing] avoidance” may tender back any benefits received under the severance
agreement not only before filing suit, but at any point “within a reasonable time after learning of
her rights.”      522 U.S. at 425 (emphasis added).                This comports with the Restatement of
Contracts, which provides that “[t]he power of a party to avoid a contract for . . . duress . . . is
lost if, after the circumstances that made it voidable have ceased to exist, he does not within a
reasonable time manifest to the other party his intention to avoid it.” Restatement (Second) of
Contracts § 381(1) (1981) (emphasis added).

         Accordingly, even if Plaintiff were required to tender back the consideration, she was
required to do so not before filing suit but within a “reasonable time” after she discovered that
the severance agreement revoked her right to bring a discrimination claim. And given the district
court’s factual finding that Plaintiff “did not understand she had given up her right to sue for
discrimination” until engaging counsel to represent her in this matter, (R. 33, Second S. J. Order,
PageID # 231), and that her counsel drafted a complaint immediately after speaking with her, it

         2It is worth noting that Fleming faulted the plaintiff’s attorney for not asking the court of appeals to remand
the case so that the plaintiff could offer to tender back the funds, 27 F.3d at 262—the clear implication being that,
even under Fleming’s framework, Plaintiff would be allowed to proceed with her suit, given that she did offer to
return the consideration.
 No. 17-1992                   McClellan v. Midwest Machining, Inc.                         Page 17


stands to reason that Plaintiff’s offer to tender back the consideration fell “within a reasonable
time after learning of her rights,” Oubre, 522 U.S. at 425.

       In sum, even if we were to hold that plaintiffs are required to tender back consideration
prior to bringing claims under Title VII and the EPA, the plaintiff in this case effectively did so.

                                         CONCLUSION

       For the reasons set forth above, we REVERSE the district court’s decision and
REMAND for further proceedings consistent with this opinion.
 No. 17-1992                   McClellan v. Midwest Machining, Inc.                          Page 18


             __________________________________________________________

                   CONCURRING IN PART AND DISSENTING IN PART
             __________________________________________________________

        THAPAR, Circuit Judge, concurring in part and dissenting in part. Congress does not
write statutes on a blank slate. Instead, it legislates against the backdrop of existing common
law. So, when Congress wants to displace the existing common law, it must do so clearly. See
A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 52 (2012). Because
Congress did not clearly override the common law ratification and tender-back doctrines when it
passed Title VII or the Equal Pay Act, I would apply both rules in McClellan’s case and remand
for further fact-finding.

                                                  I.

        Jena McClellan claims that she entered into a release agreement with her employer while
under economic duress. She now seeks to rescind that agreement so she can sue her employer
for discrimination. In a typical case, two common law doctrines would pose an obstacle to her
suit. First, she would have to prove that she did not ratify the agreement with her employer.
And second, she would have to tender back (i.e., return) the money she received in exchange for
signing the agreement.

        The majority, however, holds that neither doctrine applies in McClellan’s case because
she filed suit under Title VII and the Equal Pay Act. According to the majority, the ratification
and tender-back doctrines are inconsistent with these remedial statutes’ objectives and, as a
result, we should set both rules aside for this category of plaintiffs. I respectfully disagree.

        Statutes and the common law coexist in our legal system. So when Congress sets out to
regulate a particular subject, chances are that some common law rules touching on that subject
already exist. Courts are then left to decide how much of the common law, if any, Congress
displaces when it passes new legislation. Fortunately, an age-old presumption guides us in this
inquiry: Unless Congress clearly and explicitly states otherwise, courts should assume that
Congress expected the existing common law to apply in conjunction with the statute. See United
States v. Texas, 507 U.S. 529, 534 (1993) (“Statutes which invade the common law . . . are to be
 No. 17-1992                   McClellan v. Midwest Machining, Inc.                        Page 19


read with a presumption favoring the retention of long-established and familiar principles.”
(internal quotation marks omitted)); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch)
603, 623 (1812) (“The common law, therefore, ought not to be deemed to be repealed, unless the
language of a statute be clear and explicit for this purpose.”).

       Congress did not clearly and explicitly displace the common law ratification or tender-
back rule in either Title VII or the Equal Pay Act.           The statutes’ texts contain no such
displacement. And we know Congress knows how to displace the common law. Indeed, in two
similar statutes, Congress specifically regulated releases. See Oubre v. Entergy Operations, Inc.,
522 U.S. 422 (1998) (Older Workers Benefit Protection Act); Hogue v. S. Ry. Co., 390 U.S. 516
(1968) (per curiam) (Federal Employers’ Liability Act).            By regulating releases, Congress
“necessarily implie[d] a negative” and because Congress devised its own rules to govern release
agreements, we could fairly infer that Congress did not want to retain the common law rules that
would have otherwise applied. 1 William Blackstone, Commentaries on the Laws of England
*89 (explaining that the common law only “gives place” when the “statute is couched in negative
terms, or where its matter is so clearly repugnant that it necessarily implies a negative”); see also
Oubre, 522 U.S. at 424–25 (noting the Older Workers Benefit Protection Act “imposes specific
requirements for releases”); Hogue, 390 U.S. at 516–17. In other words, Congress spoke directly
to the question addressed by the common law. Texas, 507 U.S. at 534.

       Tellingly, Congress did not include a similar release-agreement provision in Title VII or
the Equal Pay Act. See Fleming v. U.S. Postal Serv. AMF O’Hare, 27 F.3d 259, 261 (7th Cir.
1994) (stating the “common law rule requiring tender as a prerequisite to rescission may have to
give way” only in cases where federal law “regulates releases”). And McClellan has not pointed
to any other statutory provision that might negate the ratification and tender-back rules.
Accordingly, I see no reason to conclude that Title VII or the Equal Pay Act displaced these
doctrines and would apply them in McClellan’s case.
 No. 17-1992                  McClellan v. Midwest Machining, Inc.                       Page 20


                                                II.

        Since Title VII and the Equal Pay Act do not abrogate the ratification and tender-back
doctrines, several difficult questions emerge about how to apply them in McClellan’s case.

        Federal or state law. Should courts apply state federal or state common law to determine
whether McClellan has ratified the release agreement or tendered back? At first blush, the
answer appears to be federal law. Both the Supreme Court and the Sixth Circuit have broadly
stated that federal law governs the validity of an agreement to release a federal cause of action.
Dice v. Akron, Canton, & Youngstown R.R., 342 U.S. 359, 361 (1952) (“[The] validity of
releases under [FELA] raises a federal question to be determined by federal rather than state
law.”); Garrett v. Moore-McCormack Co., 317 U.S. 239, 243–45 (1942) (holding releases under
the Jones Act to be governed exclusively by federal law); Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1481 (6th Cir. 1989) (applying the “federal common law of release” to determine
whether a release “obtained by a fiduciary from a beneficiary” was valid).

        But in recent years, the Supreme Court has reminded courts and litigants that “[t]here is
no federal general common law” and refused to apply it in contexts similar to this one.
O’Melveny & Myers v. FDIC, 512 U.S. 79, 83 (1994) (quoting Erie R. Co. v. Tompkins, 304 U.S.
64, 78 (1938)) (characterizing litigant’s argument that federal common law should apply as “so
plainly wrong”). And consistent with Erie’s longstanding principle, a handful of circuits have
held that state, not federal, common law applies when determining whether a plaintiff has validly
released or settled federal claims. Makins v. District of Columbia, 277 F.3d 544, 547–48 (D.C.
Cir. 2002) (joining “[t]he Seventh, Eighth, Tenth, and Eleventh Circuits, and perhaps the Third,
Fourth, and Ninth,” in “look[ing] to state law [to] determin[e] if” a party validly settled federal
claims); Morgan v. S. Bend Cmty. Sch. Corp., 797 F.2d 471, 476 (7th Cir. 1986) (doubting “the
authority for and scope of any general rule that federal law governs all aspects of the settlements
in Title VII litigation”).

        Despite this tension in the case law, neither party has asked us to reconsider whether
federal common law should apply. Instead, each asks us to evaluate the doctrines under federal
common law. But even applying federal common law, questions remain.
 No. 17-1992                        McClellan v. Midwest Machining, Inc.                                  Page 21


         Ratification. A party can ratify a contract in many ways, including (1) asserting a
willingness to go along with the bargain, or (2) delaying filing suit while using the money
received under the deal. See Restatement (Second) of Contracts § 380 cmts. a–b (Am. Law Inst.
1981).    Initially, it appears that McClellan ratified the agreement through option two: she
collected all of the money from her employer and may have spent it before filing suit. But the
story is more complicated. McClellan claims that she signed the release agreement under
economic duress.         And a party who enters an agreement under economic duress cannot
subsequently ratify that agreement until the duress has ended. See Oubre, 522 U.S. at 434
(Scalia, J., dissenting) (“[A] party who has contracted under duress cannot ratify until the duress
is removed.”); 28 Williston on Contracts § 71:9 (4th ed.) (“No acts can constitute a ratification,
however, that are or were done although the fear or influence that operated to induce the original
transaction is still effective.”). So to determine whether McClellan ratified, we must know
whether she was still under the alleged economic duress when she cashed the checks. Since the
record remains unclear on that point, I would remand for further fact-finding before deciding
whether the ratification doctrine bars McClellan’s suit.

         Tender-Back. Under the tender-back doctrine, a plaintiff cannot file a lawsuit and keep
the money she received in exchange for her promise not to sue. See Oubre, 522 U.S. at 440
(Thomas, J., dissenting) (one cannot “simultaneously retain[] the benefits of the release and su[e]
to vindicate released claims”). Here, McClellan offered to give the money back to her employer
three weeks after filing her lawsuit. But the employer argues that by waiting three weeks,
McClellan missed her window for effectively tendering back.

         The tender-back rule is a centuries-old doctrine that emerged in an era when we still had
courts at law and courts in equity.1 See Badger v. Phinney, 15 Mass. 359, 363–64 (1819)
(requiring the avoiding party to restore money before suing to recover goods from a general

         1The   majority opinion calls my consideration of history “superfluous.” But one must look at past common-
law cases to understand the development of the common law. See, e.g., Cuomo v. Clearing House Ass’n, LLC, 557
U.S. 519, 525–29 (2009) (discussing history of common law visitation powers while interpreting National Bank
Act); id at 540–46 (Thomas, J., concurring in part and dissenting in part) (writing for the other four Justices with a
different interpretation of the common law history); see also Kirstaeng v. John Wiley & Sons, Inc, 568 U.S. 519,
537–539 (2013) (common law history of the first sale doctrine); Samantar v. Yousuf, 560 U.S. 305, 311-13 (2010)
(common law history of sovereign immunity). No more so is this true than when trying to understand why two
distinct tender-back rules developed in the common law and how they may respectively apply today.
 No. 17-1992                   McClellan v. Midwest Machining, Inc.                        Page 22


store); see also Stewart v. Dougherty, 33 Ky. (3 Dana) 479, 481 (1835) (stating “a party
wish[ing] to rescind the contract . . . must tender back the horse he got”); Bristol v. Braidwood,
28 Mich. 191, 195 (1873) (discussing that the plaintiff’s right to rescind accrued after “tendering
back the mortgage”); Miller v. Bieghler, 174 N.E. 774, 776 (Ohio 1931) (stating tender back is a
general rule of contract); see also 2 James Kent, Commentaries on American Law 194, 197 (1st
ed. 1827) (discussing void-ability on account of infancy and ratification); 1 Joseph Story,
Commentaries on Equity Jurisprudence §§ 307, 346 (1st ed. 1836). Because courts at law and
courts in equity performed different functions, they applied the rule differently. Generally,
courts at law required plaintiffs to return the money before initiating lawsuits. See Restatement
(Second) of Contracts § 384 cmt. b. And courts in equity applied a more flexible approach,
asking only whether the plaintiff tendered back within a reasonable time. Id.

       The formal law-equity divide no longer endures. Yet both versions of the rule continue
to exist today. Compare Talmer Bank & Trust v. Malek, 651 F. App’x 438, 444 (6th Cir. 2016)
(Ohio common law), with Atwell v. Tenn. State Emps. Ass’n, No. 3:14-cv-1808, 2015 WL
5697311, at *4 (M.D. Tenn. Sept. 28, 2015) (Tennessee common law). And modern courts
struggle to determine which version of the rule applies in each case. Fleming, 27 F.3d at 261.
Nevertheless, federal courts have applied some version of the rule to agreements releasing an
individual’s rights under contemporary federal statutes. See Samms v. Quanex Corp., 99 F.3d
1139, *3 (6th Cir. 1996) (unpublished table decision) (ERISA); see also Hampton v. Ford Motor
Co., 561 F.3d 709, 717 (7th Cir. 2009) (citing Fleming, 27 F.3d at 260–61) (Title VII); Brown v.
City of S. Burlington, 393 F.3d 337, 346 (2d Cir. 2004) (False Claims Act).

       To decide which version of the rule to apply, courts should consider the requested
remedy. If a plaintiff asks for an equitable remedy, the equitable version of the rule should
generally apply. And if a plaintiff asks for damages, the legal version should typically apply. In
some cases, that inquiry will be easy.        But the question is harder in release cases like
McClellan’s. When a plaintiff asks a court to rescind a release agreement so that she can sue
under a federal statute, the plaintiff asks for two remedies: first, rescission, and second, whatever
remedies she ultimately seeks under the statute. What remedy is the proper touchstone for the
tender-back rule? Here, McClellan seeks equitable remedies: rescission and reinstatement. See
 No. 17-1992                         McClellan v. Midwest Machining, Inc.                                     Page 23


2 Joseph Story, Commentaries on Equity Jurisprudence §§ 688–95 (listing rescission as an
equitable remedy); see also Fleming, 27 F.3d at 261 (listing reinstatement as an equitable
remedy). She also seeks damages, historically a legal remedy. But see Chauffeurs, Local No.
391 v. Terry, 494 U.S. 558, 571 (1990) (stating a monetary award may be equitable if “incidental
to or intertwined with injunctive relief”). On the one hand, the fact she seeks an equitable
remedy—reinstatement—could be sufficient grounds to apply the equitable rule. Or it might be
more appropriate to apply a remedy-by-remedy analysis, such that any legal remedies she seeks
are subject to the legal version of the rule, while her equitable remedies require only reasonable
timing. Or there is a third possibility. Since tender-back relates to rescission of McClellan’s
release itself, perhaps the equitable nature of rescission should require courts to always apply the
equitable version of the rule. I would remand to the district court to analyze the remedies
McClellan seeks and determine the applicable rule in the first instance.2

         Timing of reasonableness. Assuming the equitable rule applies (at least in part), the
district court should consider whether the timing of McClellan’s tender back was reasonable.
See 2 James Kent, Commentaries on American Law 194 (“In the case of voidable contracts [by
infants], it will depend upon [the] circumstances . . . whether any overt act of assent or dissent on
his part be requisite to determine the fact of his future responsibility.”); see also Oubre, 522 U.S.
at 440–41 (Thomas, J., dissenting) (stating “immediate tender is not always required”); Stewart,
33 Ky. at 481 (requiring tender back of a horse “in a reasonable time”); Bieghler, 174 N.E. at
776 (suggesting that it is sufficient in “nearly all jurisdictions” for a party to “sufficiently excuse
himself” of the duty to tender back). In making that determination, the district court on remand
might consider pleading rules as a reference. See Fed. R. Civ. P. 15(a)–(b); see, e.g., Girard v.


         2The   majority opinion posits that the common law approach of asking district courts to do what they do
everyday—analyze complaints—is unworkable. This unworkability evidently follows from the majority opinion’s
belief that Title VII allows judges to provide remedies that the parties themselves do not seek. The opinion’s only
citation for that wide-reaching proposition is part of a footnote in an out-of-circuit case. Selgas v. Am. Airlines, Inc.,
104 F.3d 9, 13 n.2 (1st Cir. 1997). But if one reads the entire footnote, it becomes clear that the Selgas court did not
do what the majority opinion says. Instead, the court applied a remedy that the plaintiff herself sought in her
complaint. Id. (“Additionally, [the plaintiff’s] repeated requests for reinstatement in her original complaint and in
subsequent motions bely a claim that she elected one form of recovery over the other.”). Selgas then cannot support
the majority opinion’s proposition that courts can simply free-wheel Title VII remedies. And, moreover, Selgas
goes to show that Title VII does not displace the ordinary rules of pleading—the same rules that the common law
approach to tender-back embraces.
 No. 17-1992                  McClellan v. Midwest Machining, Inc.                        Page 24


St. Louis Car Wheel Co., 27 S.W. 648, 650–52 (Mo. 1894) (analyzing if and when tender back
needed to occur when it was raised as an affirmative defense in the pleadings); see also Talmer,
651 F. App’x at 443–44 (discussing the interplay between Ohio’s strict tender-back rule and
Federal Rule of Civil Procedure 15); Romero v. Allstate Ins. Co., 170 F. Supp. 3d 779, 790 n.9
(E.D. Pa. 2016) (assessing tender back considering plaintiff’s three amended complaints). The
fact that McClellan tendered back before her employer’s first responsive pleading would lend in
favor of finding the timing of her tender reasonable. On the other hand, had she tendered back
later, meanwhile subjecting the employer to expensive discovery, her timing might deserve
greater scrutiny. See McQuiddy v. Ware, 87 U.S. 14, 19 (1873) (“[H]e who seeks equity must do
equity.”).

                                         *       *       *

       Accordingly, I agree with the majority that we should remand the case. But rather than
moving forward with the merits of McClellan’s Title VII and Equal Pay Act claims, I would
instruct the district court to reconsider the ratification and tender-back doctrines consistent with
this opinion.
