Opinion
No. 04 Civ. 2434 (RCC)(KNF).
July 25, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD C. CASEY, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Plaintiff Clifton Bradley ("Bradley"), proceeding pro se, commenced this action against TIAA-CREF ("TIAA"), alleging violations of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621- 634, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Before the Court is TIAA's application, made pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the amended complaint for failure to state a claim upon which relief may be granted. TIAA contends that the plaintiff entered into an agreement that bars him from asserting the claims made in the amended complaint. Bradley opposes the defendant's application. It is addressed below.
According to the defendant, its true name is Teachers Insurance and Annuity Association of America.
In preparing his amended complaint, Bradley has used an employment discrimination complaint form provided by the Pro Se Office for this judicial district. On that form, Bradley did not indicate in the appropriate space on the first page of the complaint that he is raising a claim under Title VII. However, Bradley makes clear elsewhere in his amended complaint that he is making a claim of employment discrimination on the basis of his race. Accordingly, the Court construes the amended complaint as asserting a claim of race discrimination under Title VII.
II. BACKGROUND AND FACTS
Bradley, who is black and 53 years old, alleges that he was employed by TIAA as a senior business consultant in the defendant's Individual Insurance Division from June 2000 until September 3, 2002. On or about June 4, 2002, Bradley received from TIAA a notice that his employment would be terminated. The notice, which is attached as an exhibit to Bradley's affidavit in opposition to the instant application, was addressed to "TIAA-CREF Group Insurance Associate" — that is, to employees of the defendant's Group Insurance Division, a division to which Bradley maintains he was not assigned. Bradley contends that when he inquired about the notice of termination, management personnel at TIAA told him that his employment was being terminated as part of a "reduction in force" that was undertaken for financial reasons and was related to the sale of the Group Life Division, in May 2002, to another company.
The amended complaint also refers to the division of TIAA to which Bradley was assigned as the "Life Division."
In the amended complaint and in his affidavit in opposition to the instant motion, Bradley also refers to the division subject to the layoffs as the "Group Division" or "Group Life Division."
Bradley alleges that his work for TIAA received favorable reviews from his supervisors consistently. Therefore, he contends, his termination can only be the result of age and race discrimination. In support of this contention, Bradley states, in his affidavit, that TIAA did not terminate the employment of Charlotte Witthar ("Witthar"), a white, 26-year-old woman who had been hired in December 2001 to work in the Group Insurance Division. According to Bradley, shortly before Bradley's employment ended, TIAA reassigned Witthar to the Individual Insurance Division so that eventually she could replace Bradley. Bradley maintains that, during his last two weeks at TIAA, he was assigned the task of training Witthar to perform his job functions.
In July 2002, Bradley filed a charge of discrimination against TIAA with the United States Equal Employment Opportunity Commission ("EEOC"), alleging that his termination constituted unlawful employment discrimination on the bases of age and race. The EEOC closed its file on Bradley's charge of discrimination and, on December 30, 2003, issued him a notice that advised him of his right to file an action in a federal district court. Thereafter, Bradley commenced the instant action.
TIAA contends that prior to the end of Bradley's employment, TIAA provided him with a proposed Separation and Release Agreement ("Release"), dated August 5, 2002. TIAA submitted a copy of the Release in support of the instant application and has relied upon it to support its application to dismiss the amended complaint. The Release provides, inter alia, that in exchange for certain monetary payments, Bradley agreed to release TIAA "from any liability for any and all claims and causes of action arising under federal, state, or local laws, including but not limited to the Age Discrimination in Employment Act of 1967 . . . [and] Title VII of the Civil Rights Act of 1964, as amended . . ." (emphasis in original). According to paragraph 15 of the Release, TIAA provided Bradley a list of the titles and ages of all employees "in the same business decisional unit" who were "eligible or selected" for the reduction in force, as well as the job titles and ages of employees in that business decisional unit who were not eligible or selected for the reduction in force. The Release indicates that Bradley signed and dated it on September 17, 2002.
TIAA contends that the Release bars the claims asserted in the amended complaint. When it served the instant application upon Bradley, TIAA also provided Bradley with a notice stating that the Court might convert the motion to dismiss into one for summary judgment. The notice also advised Bradley that should the motion be converted, the amended complaint might be dismissed, pursuant to Fed.R.Civ.P. 56, if Bradley did not respond to the motion with sworn statements or other evidence to support his claims.
In opposition to the instant application, Bradley has submitted his own affidavit. In it, he does not dispute that he signed the Release, but contends that his waiver of claims was not knowing or voluntary — and, therefore, is not enforceable — because: (1) TIAA allowed him only until September 17, 2002 — 43 days after the Release was provided to him — to determine whether to execute the Release; and (2) TIAA did not provide him with information about the employees in the Individual Insurance Division who were considered for termination. Therefore, Bradley maintains, the Release is not a bar to his claims.
III. DISCUSSION
Conversion of Motion
When presented with matters outside of the pleadings in connection with a motion made pursuant to Fed.R.Civ.P. 12(b)(6), "the court may exclude the additional material and decide the motion on the complaint alone or it may convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material." Fonte v. Board of Managers of Continental Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988); see also Fed.R.Civ.P. 12(b). In support of its application, TIAA has submitted the Release to the Court. Accordingly, it must be determined whether the Release is a matter outside the amended complaint and, if so, whether the instant application might appropriately be treated as an application for summary judgment.
For the purpose of Fed.R.Civ.P. 12(b)(6), "the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). In considering a motion made pursuant to this Rule, a court may also consider any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995). Even when a document is not incorporated by reference, a court may nevertheless consider it to be part of a complaint when the plaintiff's claims "rel[y] heavily upon [the document's] terms and effect," rendering it integral to the complaint. Int'l Audiotext Network, Inc. v. American Telephone and Telegraph Co., 62 F.3d 69, 72 (2d Cir. 1995). The Second Circuit has emphasized, however, that a "plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
Bradley did not attach the Release to the amended complaint. Although the amended complaint contains occasional, passing references to a "separation agreement" or "severance agreement," it does not, in so doing, incorporate the Release by reference.See Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985) (even "limited quotation" of a document, without more, does not constitute incorporation by reference). Bradley's claims do not rely on the Release or any of its provisions in any way. Accordingly, the Release is not integral to the amended complaint.
TIAA cites two cases in which district courts determined that it was appropriate to consider the releases at issue in those actions when evaluating motions to dismiss. See Matusovsky v. Merrill Lynch, 186 F. Supp. 2d 397, 400 (S.D.N.Y. 2002);Laramee v. Jewish Guild for the Blind, 72 F. Supp. 2d 357, 359 (S.D.N.Y. 1999). In Laramee, the court apparently concluded that the release at issue in that action was attached to the complaint or incorporated therein by reference. See id. As noted above, Bradley has not attached the Release to or incorporated the Release into the amended complaint. Accordingly, the circumstances that lead the Laramee court to consider the release at issue in that action are inapposite to the circumstances of this action.
In Matusovsky, the court found that a release that was "explicitly referenced in" a complaint could be considered in connection with a motion to dismiss. See Matusovsky, 186 F. Supp. 2d at 400. The only Second Circuit case cited inMatusovsky for that proposition is a securities action in which the court considered a prospectus, even though the prospectus was not attached to the complaint. See id. (citing I. Meyer Pincus Assocs. v. Oppenheimer Co., 936 F.2d 759, 760-62 [2d Cir. 1991]). In Pincus, the plaintiff's claims were founded entirely upon misleading statements made, allegedly, by the defendants in the prospectus. Pincus, 936 F.2d at 760-61. Since Pincus' claims relied upon the prospectus, the Second Circuit held that the prospectus was integral to the complaint. See id. at 762. The Second Circuit did not determine to consider the prospectus merely because it was referenced in the complaint; indeed, the court stated that it considered the prospectus " despite the fact that the complaint contains only 'limited quotation' from that document." Id. (emphasis supplied). The court then cited Goldman, 754 F.2d at 1066, which, as noted above, held that "limited quotation" of a document in a complaint does not constitute incorporation by reference and does not warrant consideration of the document in connection with a motion to dismiss.
Accordingly, notwithstanding the determination in Matusovsky, the Court is not persuaded that the pertinent decisional law in this Circuit permits consideration of the Release in connection with the Fed.R.Civ.P. 12(b)(6) application in this action merely because Bradley makes references to the Release in the amended complaint. Therefore, the Court finds that the Release is a matter outside the amended complaint and that it is not appropriate to consider the Release in connection with the instant Fed.R.Civ.P. 12(b)(6) application.
As the Release may bar one or both of Bradley's claims, the Court finds that it would be appropriate to convert the defendant's motion into one for summary judgment, pursuant to Fed.R.Civ.P. 56. Fed.R.Civ.P. 12(b) requires that the plaintiff be given adequate notice that a motion styled as a motion to dismiss may, under certain circumstances, be treated as one for summary judgment. See Fed.R.Civ.P. 12(b). Adequate notice is of particular concern where, as here, the plaintiff is proceeding pro se. See, e.g., Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983). The central question in determining whether a plaintiff has been granted adequate notice "is whether the [plaintiff] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." In re G. A. Books, Inc. v. Stern, 770 F.2d 288, 295 (2d Cir. 1985).
As noted above, TIAA served a notice upon Bradley upon the filing of the instant application, expressly advising Bradley of the possibility that the application might be evaluated under Fed.R.Civ.P. 56. Bradley's submission of an affidavit in opposition to the application, in which he directly addresses the issues raised by TIAA's submission of the Release, demonstrates that he received adequate notice that the Release might be considered in connection with TIAA's application.
Summary Judgment
Summary Judgment may be granted in favor of the moving party "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). When considering a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying 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, 2553 (quoting Fed.R.Civ.P. 56[c]).
Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986). In order to meet this burden, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id. at 256, 2514. A genuine issue of material fact exists only if a rational trier of fact could find in favor of the non-moving party. See Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356.
Where a litigant appears before a court pro se, that litigant's submissions in opposition to a motion for summary judgment should be read liberally and interpreted so as "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). However, this does not mean that the pro se litigant is released from the typical requirements of summary judgment; a "bald assertion" made by apro se litigant that is not supported by evidence will not be sufficient to overcome a motion for summary judgment. See Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995).
By submitting the Release, which purports relieve TIAA of any liability to Bradley under Title VII or the ADEA, TIAA has met its burden of identifying an evidentiary basis for its contention that no genuine question of material fact is raised by Bradley's claims. As a result, it must be determined whether Bradley has met his burden to present evidence that would permit a rational trier of fact to find that the Release is not an effective waiver of each of his claims.
A. ADEA Claim
A purported waiver of an ADEA claim is governed by the Older Workers Benefits Protection Act ("OWBPA"), 29 U.S.C. § 626(f). OWBPA provides that "an individual may not waive any right or claim under [the ADEA] unless that waiver is knowing and voluntary," and that "a waiver may not be considered as knowing or voluntary unless at a minimum" it conforms to certain specific statutory requirements. 29 U.S.C. § 626(f)(1). OWBPA provides that "if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is [to be] given a period of at least 45 days within which to consider the agreement." 29 U.S.C. § 626(f)(1)(F)(ii). OWBPA requires further that an employer provide to an employee "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)(H)(ii). The statutory requirements for waiver of claims under OWBPA are clear and unqualified. See Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427, 118 S. Ct. 838, 842 (1998). Any release which is deficient with respect to these requirements cannot be given effect. Id.
In his affidavit, Bradley states that TIAA provided him fewer than 45 days to consider the Release. In particular, he maintains that, after 43 days, TIAA told him that if he did not sign the Release at that time he would not be "eligible to receive the benefits offered." Although an "employee may sign a release prior to the end of the . . . 45 day time period . . . as long as the employee's decision to accept such shortening of time is knowing and voluntary," such a release is not effective if the employer "threat[ens] to withdraw or alter the offer prior to the expiration of the 21 or 45 day time period." 29 C.F.R. § 1625.22(e)(6). Bradley's statement that TIAA told him that he would not receive his severance benefits if he did not execute the Release when he did demonstrates that there is a material issue of disputed fact concerning the validity of the Release under OWBPA.
Bradley also states in his affidavit that he was assigned to the Individual Insurance Division and not to the Group Insurance Division. The information provided to Bradley by TIAA concerning employees eligible and not eligible for the reduction in force pertained only to the Group Insurance Division. Therefore, a material issue of disputed fact exists concerning whether TIAA provided Bradley with the information required by OWBPA, 29 U.S.C. § 626(f)(1)(H)(ii), in order for a waiver of an ADEA claim to be effective in a situation such as this.
Since the effectiveness of the Release with respect to the ADEA claim depends upon facts about which there are material disputes, TIAA is not entitled to a summary judgment that the Release bars this claim.
B. Title VII Claim
An individual may waive his right to assert a claim under Title VII so long as the waiver was knowing, willful and voluntary.Bormann v. ATT Communications, Inc., 875 F.2d 399, 402 (2d Cir. 1989) (quoting Coventry v. United States Steel Co., 856 F.2d 514, 522 [3d Cir. 1988]). A court must determine whether such a waiver was knowing and voluntary based upon the "totality of the circumstances." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 438 (2d Cir. 1998). In particular, the factors relevant to this determination include, but are not limited to:
1) the plaintiff's education and business experience, 2) the amount of time the plaintiff had possession of or access to the agreement before signing it, 3) the role of plaintiff in deciding the terms of the agreement, 4) the clarity of the agreement, 5) whether the plaintiff was represented by or consulted with an attorney, . . . 6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law, [7] whether [the] employer encourages or discourages [the] employee to consult an attorney . . . and [8] whether the employee had a fair opportunity to do so.Bormann, 875 F.2d at 403 (internal quotation marks and citations omitted).
In the case at bar, the Release notified Bradley that its execution would bar him from bringing any claim, including a claim under Title VII, against TIAA based upon the circumstances of his discharge. Although the evidence in the record does not speak to Bradley's education, the plaintiff was employed as a "senior business consultant," from which it cannot be inferred that he lacked a significant degree of business experience. According to Bradley, he received a copy of the proposed Release 43 days before he signed it. Under the terms of the Release, he also had the option of revoking it up to seven days after he signed it. The Release provides that Bradley "acknowledge[s] that TIAA-CREF has given [Bradley] opportunities to discuss and negotiate the terms of this Agreement with TIAA-CREF." The terms of the Release are clear and unambiguous. The Release encouraged Bradley expressly to consult with an attorney prior to executing the agreement. In his affidavit, Bradley indicates that, for some or all of the period beginning August 5, 2002, and ending September 11, 2002, he "had [an attorney] at that time." See Affidavit in Opposition at 7. Additionally, although the record does not indicate whether Bradley conferred with an attorney at the EEOC, Bradley states in materials attached to the amended complaint that he conferred with some person(s) at that agency and that "they . . . indicated that I could proceed with signing severance as EEOC will investigate." In consideration of his execution of the Release, Bradley received substantial monetary payments to which he was apparently not otherwise entitled.
In his affidavit, Bradley states that: (1) the waiver of claims contained in the Release is "ambiguous"; (2) he was not given time off from work during which to consult with an attorney about the Release; (3) he was not provided 45 days to consider the Release; and (4) he was not given lists of employees in the Individual Insurance Division who were and were not eligible for termination. The statement that the waiver of claims contained in the Release is ambiguous is a conclusion without any evidentiary support; indeed, the Release states that "Bradley agreed "to release and discharge TIAA-CREF . . . from any liability for any and all claims and causes of action arising under federal, state, or local laws, including but not limited to . . . Title VII of the Civil Rights Act of 1964, as amended. . . ." In light of Bradley's statement in his affidavit that he had an attorney for at least some of the relevant 43-day period and his statement in the amended complaint that he was able to confer with the EEOC during this period, the fact that Bradley may not have been given time off from work during which to consult an attorney does not support the conclusion that Bradley was unable to consult with or secure representation by an attorney. The third and fourth statements noted above pertain to the standard for a knowing and voluntary waiver of ADEA claims under the OWBPA, as discussed above. In order to determine the effectiveness of the Release with respect to the Title VII claim, however, these factual contentions must be considered under the standard set forth inBormann. Considering the totality of the circumstances described above, the facts that Bradley was given 43 days to consider the Release and that he was not given the above-noted lists would not permit a rational trier of fact to conclude that Bradley's execution of the Release was not knowing and voluntary.
In the case at bar, Bradley has not met his burden to demonstrate that the waiver of Title VII claims contained in the Release was ineffective. Therefore, TIAA is entitled to a summary judgment that the Release bars Bradley's Title VII claim.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that: (1) TIAA's application be converted to one for summary judgment; (2) TIAA's application be denied with respect to Bradley's ADEA claim; and (3) TIAA's application be granted with respect to Bradley's Title VII claim.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard Conway Casey, 500 Pearl Street, Room 1350, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).