addressing the covenant not to sue continues with a statement that “this Release” does not prohibit an employee from filing a charge with the EEOC, again intimating that the terms are interchangeable. We can easily see how a participant under this Agreement could construe the statement that “[t]his covenant not to sue does not apply to actions based solely under the [ADEA]” as an exception to the general release, not just an exception to the covenant not to sue. Given the lack of clarity in the Agreement, and IBM’s declination to tell Thomforde what it meant by the language, we hold that the Agreement is not written in a manner calculated to be understood by the intended participants as required by the OWBPA. Cf. Cole v. Gaming Entm’t, L.L.C., 199 F.Supp.2d 208, 214 (D.Del.2002) (<HOLDING>). As such, the Agreement is ineffective as a
holding that defendants waiver was knowing and intelligent even when police withheld information from defendant that his attorney sought to consult with him holding that a trial courts order that defendant not consult with his attorney during an overnight recess during trial violated the sixth amendment recognizing fifth amendment right to be informed of right to remain silent to have questions cease and to consult with an attorney before being subjected to psychiatric examination that may be used against defendant in capital sentencing proceedings holding that if a suspect indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning holding language reciting that employee acknowledges that heshe has been advised to consult with an attorney prior to executing this agreement was insufficient to meet statutory requirement that employer must advise employee in writing to consult an attorney prior to signing the waiver