Summary
holding that the failure to participate in the drafting of an agreement "does not preclude the finding that [the plaintiff] executed the release knowingly and voluntarily"
Summary of this case from Westbrooke v. Bellevue Hosp. Ctr.Opinion
97 Civ 2168 (WK).
May 29, 2001
Rosemary Carroll, Esq., Carroll Freiss, New York, NY, For Plaintiff.
Lon S. Bannett, Esq., New York, NY, For Defendant.
MEMORANDUM ORDER
This case is before us under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq., the Equal Pay Act of 1963, and New York Executive Law § 296 et seq. Currently before us is defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, we grant defendant's motion and dismiss the complaint in its entirety without leave to amend.
BACKGROUND
Plaintiff Barbara Benson ("plaintiff") was employed by Defendant Nynex Corporation ("defendant") or one of its predecessors, subsidiaries, or affiliates from 1963 through May 1994. Plaintiff first began her employment with defendant as a union clerk and was promoted two years later to a management position. Over the next twenty-nine years, plaintiff went on to hold various management positions with defendant involving clerical, technical, and supervisory work. For the last approximately six years of plaintiff's employment with defendant she worked in their engineering group in New York City.
Defendant is incorrectly named in the complaint as "Nynex, Inc."
On or about January 5, 1994 plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") and the State Division of Human Rights (the "SDHR") alleging that defendant discriminated against her on the basis of her gender by not awarding her a promotion and additional compensation. On May 4, 1994 defendant offered plaintiff and her qualified peers an enhanced retirement package (the "Package"), which provided pension incentives for qualified employees. Among other features, the Package offered an additional Social Security Supplement to provide early retiring employees with additional compensation until they became eligible to receive Social Security Benefits. In order receive the Package, recipients were required to sign a Separation Agreement and Release (the "Separation Agreement") waiving "any and all" claims arising out of their employment with defendant. The Separation Agreement states, in pertinent part: (Separation Agreement at ¶ 7)
I realize that there are various State, Federal and local laws that govern my employment relationship with the Company and/or prohibit among other things employment discrimination on the basis of . . . gender . . . and that these laws are enforced through the courts and agencies such as the [EEOC] . . . Such laws include . . . Title VII of the Civil Rights Act . . . In consideration of the benefits provided for in this Agreement, I intend to give up any rights I may have under these or any other laws or agreements with respect to my employment and termination of employment at [defendant] and acknowledge that [defendant] has not (a) discriminated against me, (b) breached my express or implied contract with me, or (c) otherwise acted unlawfully toward me.
The Separation Agreement further states that the recipient has read and understands it, knows that they are giving up important rights, has the right to consult an attorney before signing it and has signed it voluntarily. (Separation Agreement at 4). The Separation Agreement also contains a merger clause stating that it embodies the entire agreement between defendant and the recipient, fully supercedes any prior agreements or understandings pertaining to the subject matter thereof, and that the recipient has not relied on any representation or statement made by defendant or its agents which is not set forth in the Separation Agreement. (Separation Agreement at ¶ 14). A provision of the Separation Agreement sets forth the enhanced retirement benefit the employee would receive as consideration for signing it. (Separation Agreement at ¶ 2-3). Recipients had forty-five days to review the Separation Agreement and an additional seven days to rescind after signing it. (Separation Agreement at ¶¶ 4-5).
On May 10, 1994 plaintiff sent a letter to Don Sacco ("Sacco"), defendant's Vice President of Human Resources, regarding her entitled Social Security Supplement under the Package. This letter also informed Sacco of plaintiff's pending discrimination complaint with the SDHR and stated if she did not receive his decision regarding the Social Security Supplement, or if the decision was not in her favor, she would "consider this a further act of discrimination and add it to [her] formal complaint against [defendant]." Letter from plaintiff dated May 10, 1994.
On May 20 1994, before receiving a response to her letter of May 10, plaintiff signed the Separation Agreement in order to receive the Package. On May 23, 1994 Sacco responded to plaintiff's letter informing her that her Social Security Supplement would not be changed. This letter did not acknowledge her discrimination claim. On March 27, 1997 plaintiff filed the instant action.
DISCUSSION
Plaintiff brings this action alleging that she was denied opportunities for promotion and higher pay on account of her gender during the years 1986 through 1994. Defendant has filed for summary judgment claiming that plaintiff waived her right to bring this action by signing the Separation Agreement.
Employees may waive employment discrimination claims as long as such a waiver is made knowingly and voluntarily. Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36. The Second Circuit has adopted a "totality of the circumstances" standard to determine whether waivers are knowing and voluntary. Bormann v. AT T Communications, Inc. (2d Cir. 1989) 875 F.2d 399, 403, cert. denied, (1989) 493 U.S. 924. Boremann suggests the following factors for consideration: (1) the plaintiff's education and business experience; (2) the amount of time the plaintiff had possession of or access to the agreement prior to signing it; (3) the role of plaintiff in deciding the terms of the agreement; (4) the clarity of the agreement; (5) whether plaintiff was represented by or consulted with an attorney; (6) whether the consideration given in exchange for the waiver exceeds employee benefits to which plaintiff was already entitled to under contract or law; (7) whether the employer encouraged plaintiff to consult an attorney; and (8) whether the employee had a fair opportunity to do so. Id. at 403. This list of factors is not exhaustive, nor must all factors be satisfied to enforce the waiver. Nicholas v. Nynex, Inc. (S.D.N.Y. 1996) 929 F. Supp. 727, 730.
An analysis of these factors weigh heavily in favor of defendant. Plaintiff worked for defendant for over thirty years and during her deposition she referred to her vast business experience and how she worked to achieve promotions. (Pl. Dep. Tr. at 41). She even handled a labor grievance brought by an employee whom she supervised where that employee sought to rescind a release she had signed. Plaintiff held the Separation Agreement for sixteen days, although under the terms of the agreement she could have held it for forty-five days and had seven days after signing the agreement to rescind. The release is drafted in clear, unambigious language. The Separation Agreement states that plaintiff may seek the advice of an attorney before signing it. Plaintiff had adequate time to consult an attorney, and admits that she understood this right, even though she chose not to. Finally, plaintiff received consideration in exchange for signing the Separation Agreement. Cf. George v. Mobil Oil Corporation (S.D.N.Y. 1990) 139 F. Supp. 1577, 1581-82 (signing release was not a precondition to receiving allowance). Plaintiff admits that because of the Package, her retirement benefits were enhanced by $622.00 per month. (Pl. Dep. Tr. at 13, 111).
The only factor that weighs in plaintiffs favor is that she had no part in negotiating the terms of the Separation Agreement. This circumstance does not preclude the finding that she executed the release knowingly and voluntarily. Nicholas, 929 F. Supp. at 732.
Plaintiff argues that this case is different than Nicholas in that her May 10 letter reserved her right to bring this action, or in the very least indicates that she did not understand that signing the agreement would relinquish her right to pursue her discrimination claim. However, even if the letter had clearly articulated that she wished to reserve her right to bring this claim, which it did not, she signed the Separation Agreement on May 20, four days before she received Sacco's response to her letter.
Examining the totality of the circumstances, we find that plaintiff signed the release knowingly and voluntarily. In doing so, she waived her right to bring this discrimination claim against defendant.
CONCLUSION
There is no issue of material fact upon which a finder of fact could return a verdict in plaintiff's favor. For this reason, we grant defendant's motion for summary judgment.
SO ORDERED.