United States District Court, Southern District of New York
February 8, 1990
A.N. GEORGE, PLAINTIFF,
MOBIL OIL CORPORATION, AND MOBIL EUROPE, INC., DEFENDANTS.
The opinion of the court was delivered by: Walker, Circuit Judge[fn1]:
MEMORANDUM AND ORDER
Plaintiff alleges that Mobil Oil Corporation ("Mobil") and
its subsidiary Mobil Europe, Inc. ("MEI") discriminated against
him on the basis of his age in violation of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et
seq. and New York Executive Law § 296 (McKinney 1988).
Defendants move for summary judgment, pursuant to Fed.R.Civ.P.
56. For the reasons set forth below, the Court denies
Certain facts are not in dispute. Plaintiff A.N. George was
employed by Mobil from 1968 until his termination in 1986 at
the age of 62. In 1973 he became General Manager of MEI's Greek
affiliate.*fn2 From 1978 on, plaintiff served in MEI's London
headquarters as Area Executive, the third highest MEI line
position, supervising four and later seven of MEI's smaller
European marketing affiliates. He reported to John Simpson,
Vice President of MEI, who in turn reported to P.W. Wilson, MEI
President. Each year, Mobil evaluated the performance of its
employees. Throughout his tenure as Area Executive, plaintiff
was rated "MR," meaning that he more than met job
requirements, and received favorable comments.*fn3
In the early-to-mid-1980's, the oil industry experienced
economic difficulty due to a precipitous fall in prices. In
response, MEI undertook a restructuring in 1985 in order to, in
part, "reduce unnecessary duplication of effort . . . and
eliminate a level of staff management between the affiliate and
the Division." D.Mem. Exh. B, p.1. Mobil made large cuts in MEI
staff and rerouted certain responsibilities to either MRDI in
New York or the affiliates. D.Mem. at 4. These changes affected
George as Area Executive "basically in the planning area," by
reducing his ability to depend upon staff assistance. George
Dep. at 253. Although the 1985 reorganization was originally to
be completed at year's end, in mid-August Wilson reported to
Robert Swanson, Executive Vice President of MRDI, that "[by]
September 1 revised communications and staff responsibilities
will be in place . . . [B]y September 1 we will have converted
to the new operating mode." P.Exh. M.
A further restructuring was planned and ultimately
implemented in 1986. The MEI offices were to be relocated to
New York, and all MEI functional departments were to be
eliminated and replaced by a single small, non-specialized
Administration Department. Specialized staff assistance would
still be available from MRDI departments, although their
personnel would also be cut.
On February 26, 1986, Simpson finalized George's 1985
Appraisal of Performance. Like all George's prior appraisals as
Area Executive, the 1985 evaluation praised George — calling
him "a results-oriented executive" — and rated him MR, at
the time considered very good by some Mobil personnel managers,
with a recommendation that he be retained in his position.
P.Exhs. E, A pp. 50-52. The affiliates in his portfolio were
profitable and outperforming projections. There was no negative
comment or suggestion that plaintiff had trouble adjusting to
the restructuring. Simpson indicated that plaintiff's "[j]ob
responsibilities should be modified or expanded to provide for
continuing challenge," and commented that his "[p]osition [as
restructured] should continue to provide a challenge." Simpson
gave George a copy of this appraisal on March 25, 1986, but did
not discuss it with him. Nevertheless, Simpson later claimed
that as of the time of the appraisal he had begun to doubt
plaintiff's effectiveness under the restructuring. Simpson Dep.
at 9-12, 20-30, 36.
In a memorandum to Wilson dated April 9, 1986, plaintiff
detailed his progress in implementing the reorganization. The
memorandum advised that "[o]n a staff basis, because of the
increased delegation of authorities, we are coping," and
recommended additional contact between the Planning Department
and affiliates and the dedication of one planner to the needs
of the seven smaller affiliates. D.Exh. D.
At a Mobil Career Development meeting held in Phoenix,
Arizona on May 12-13, 1986, a recommendation by Wilson that
plaintiff be replaced as Area Executive when the MEI office was
moved to New York was adopted, and Wilson was directed to find
a replacement. He instructed Simpson to review plaintiff and
five other candidates to determine who was best qualified.
Simpson employed a ranking form evaluating a number of
criteria, all ostensibly free from age bias, each of which was
valued numerically. P.Exh. W. Of the six, plaintiff received
the lowest overall score, while Brian Davis, a younger employee
and professional planner then serving as General Manager of the
Portugal affiliate, scored highest. Davis subsequently became
George's replacement as Area Executive. Simpson completed the
ranking on or before June 6, 1986.
Paul J. Hoenmans, President of the Marketing and Refining
Division, made the final decision to fire plaintiff. Hoenmans
Dep. at 4. In a June 4, 1986 memorandum to Mobil's President,
Hoenmans recommended separation of George and two other
executives due to the restructuring. Hoenmans explained that
plaintiff's prior success was predicated on the availability of
"substantial staff support", and that without such support he
would be hurt by his lack of "sufficient expertise in the
position's substantial functions" and "analytic ability".
D.Mem.Exh. I. On May 30, however, Patricia L. Arthur, Mobil
Manager of Human Relations, had circulated a "placement
request" describing George as "surplus" and requesting managers
having or anticipating a suitable opening for him to respond by
June 6. George was then "not [yet] aware of his redundant
position." P.Exh. V.
On June 17, Wilson and Simpson told plaintiff that he would
be removed as Area Executive effective September 1, 1986, when
MEI would move. They explained that management considered Davis
better qualified for the restructured position. Plaintiff was
told that he would continue to receive his salary and benefits
through December 31, 1986, and that he was entitled to a
$477,100 retirement benefit and a termination allowance of
During the summer of 1986, George remained in contact with
his superiors at Mobil, discussing, inter alia, the possibility
of enhancing his retirement package with more money or a
consultancy contract. George Dep. at 372-75, 385. Plaintiff
claims he continually reminded them of his desire to be placed
in another job commensurate with his skills and general pay
level, George Aff. ¶ 48; George Dep. at 400ff, although his
first written communication to this effect was a letter to
Simpson on October 29. Three positions were submitted for his
consideration. The one he agreed to consider, however, was
In October 1986, plaintiff inquired of the Equal Employment
Opportunity Commission ("EEOC") about his termination and the
release required by Mobil in connection with his termination
allowance. This release, which appears in a printed form
entitled "TERMINATION BENEFITS", in a section headed
"Termination Allowance Benefit", states:
The above termination allowance has been granted
in connection with your termination of employment.
This allowance is conditioned on your not having
any claim against the Company by reason of
termination of employment
and on the company receiving assurance to this
effect by your signature below.
I agree to the above provisions and I accept the
terms and conditions.
D. Reply Mem.Exh. D. Plaintiff was told that signing the
release would have no effect on his legal rights.
On November 5, 1986, Simpson prepared and signed an Appraisal
of Performance for calendar year 1986. P.Exh. BB. This
appraisal was negative in tone, and gave plaintiff a grade of
MR/MR-, his first lower than MR. Simpson criticized George's
strategy studies, affiliate direction and guidance, utilization
of opportunities opened by the European Economic Community,
oral communication skills, problem-solving and decision-making,
and adaptation to MEI's restructuring, specifically
over-reliance on staff. Many of these criticisms contradicted
In January 1987, having been advised that no further offer of
reemployment would be forthcoming, and after consulting an
attorney, George accepted the retirement package, signing the
release without objection.
George subsequently brought suit against Mobil and MEI
seeking damages and injunctive relief alleging that his
termination had been motivated primarily by his age, and was
therefore in violation of the ADEA.
Summary judgment may be granted only where, upon
consideration of the available evidence, "there is no genuine
issue as to any material fact . . ." Fed.R.Civ.P. 56(c). Such
an issue exists "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). All reasonable inferences must be drawn in favor of
the non-moving party and all ambiguities and differences must
be resolved to its benefit. United States v. Diebold,
369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam);
Patrick v. LeFevre, 745 F.2d 153, 161 (2d Cir. 1984). Summary
judgment is ordinarily inappropriate where intent and state of
mind are at issue. Ramseur v. Chase Manhattan Bank,
865 F.2d 460, 465 (2d Cir. 1988); Meiri v. Dacon, 759 F.2d 989,
997-98 (2d Cir. 1985); Patrick, supra at 159. Similarly,
"[r]esolution of credibility conflicts and the choice between .
. . conflicting versions are matters for the jury and [are] not
properly decided . . . on summary judgment." Robison v. Via,
821 F.2d 913, 924 (2d Cir. 1987) (citations omitted); see also
Patrick, 745 F.2d at 159-60 (circumstantial evidence
challenging plaintiff's credibility only punctuates the need
for full factual exposition). "It is only when the witnesses
are present and subject to cross-examination that their
credibility and the weight to be given to their testimony can
be appraised." Poller v. Columbia Broadcasting System, Inc.,
368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962).
A. The Release
Defendants claim that summary judgment is appropriate because
George is barred from asserting any age discrimination claim by
virtue of his signing the release of all claims arising from
his termination. The Court concludes that SJ is inappropriate
because a genuine issue of material fact remains as to whether
plaintiff signed the release knowingly and voluntarily.
"[A]n unsupervised release of rights under the ADEA is
permissible, subject to close evaluation of various factors
that are indicia of a `knowing' and `willful' waiver."
Bormann v. AT & T Communications, Inc., 875 F.2d 399, 402 (2nd
Cir. 1989). Whether a release was knowing and willful is
decided by reference to the "totality of the circumstances," a
more stringent standard than "ordinary contract principles."
Bormann, 875 F.2d at 403 (citing Coventry v. U.S. Steel Corp.,
856 F.2d 514, 524 (3rd Cir. 1988)). The following factors are
"helpful," though "not exhaustive," in applying this standard:
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, and 6) whether the
consideration given in exchange for the waiver
exceeds employee benefits to which the employee
was already entitled by contract or law.
Bormann, 875 F.2d at 403 (quoting Equal Employment Opportunity
Commission v. American Express Publishing Corp., 681 F. Supp. 216,
219 (S.D.N.Y. 1988) (Lasker, J.)).
Several factors here admittedly militate in favor of
defendants. The language of plaintiff's waiver clearly and
unambiguously releases defendants from any claims relating to
his termination. Contrary to plaintiff's assertion, waiver of
ADEA claims need not be specifically recited where the waiver
is otherwise unambiguous.*fn5 EEOC v. American Express, 681
F. Supp. at 219; accord Stroman v. West Coast Grocery Co.,
884 F.2d 458, 461 (9th Cir. 1989). Nor does defendants' alleged
knowledge at the time of the release that plaintiff had an
age-related grievance shield these claims from waiver.
Plaintiff's claims fall well within the scope of the release,
which is limited only to "any claim against the Company by
reason of termination of employment."*fn6 The agreement is
also clear in its requirement that plaintiff waive his right to
sue defendants as a condition of receiving his termination
Moreover, plaintiff is a well-educated, sophisticated
businessman, undoubtedly well acquainted with agreements of
this sort. Plaintiff had the Termination Benefits form in his
possession for a matter of months, ample time for him to
carefully review it and consider its consequences.
Other factors, however, raise factual questions as to
plaintiff's voluntariness. Plaintiff had no role in deciding
the terms of the release, which was contained in a printed form
and was tied to a predetermined, non-negotiable termination
allowance. While lack of opportunity to negotiate the terms of
an agreement does not by itself require a trial on
voluntariness where other indicia show an awareness by
plaintiff of the rights he was surrendering, it may serve as
one of several factors warranting denial of summary judgment.
Bormann, 875 F.2d at 403 and n. 1 at 403. Additionally,
although plaintiff consulted an attorney regarding the release,
that attorney neither participated in negotiating the agreement
nor was present when plaintiff signed it. As in EEOC v.
American Express, plaintiff's "attorney advised him that the
agreement was not binding, a factor which, though not
chargeable to [defendants], may be relevant in determining
[plaintiff]'s voluntariness in signing." 681 F. Supp. at 220.
Moreover, it is by no means clear that "the consideration
given in exchange for the waiver exceeds employee benefits to
which the employee was already entitled." Id. at 219; Bormann,
875 F.2d at 403. A bulletin in defendants' "Mobil Benefits
News" of May 27, 1986 outlines enhanced benefits for terminated
employees. Included is a formula for determining the allowance
for such employees, with no mention of this allowance being
conditional upon any release. Wilson's memorandum to plaintiff
of June 17, 1986, confirming their discussion regarding
plaintiff's retirement, also sets out the termination allowance
without mention of release as a precondition. Cf. Bormann, 875
F.2d at 400 (Termination Payment Plan included two options, the
more lucrative of which was clearly contingent on a release of
all claims by the employee). These omissions, together with the
other remaining questions, raise a genuine issue of material
the voluntariness of the release sufficient to defeat summary
B. The Age Discrimination Claims
Plaintiff alleges that defendants fired him because of his
age, and thereby violated the ADEA. That statute provides that
It shall be unlawful for an employer — (1) to fail
or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or
privileges of employment, because of such
29 U.S.C. § 623(a). As a "person aggrieved," plaintiff has
standing to assert a civil action under the statute.
29 U.S.C. § 626(c)(1).
In adjudicating ADEA claims, courts have applied the
three-step analysis laid out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d
668 (1973), for Title VII race discrimination cases. See, e.g.
Haskell v. Kaman Corp., 743 F.2d 113 (2d Cir. 1984); see also
Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d Cir. 1983).
The burden of proof in all such employment discrimination cases
is initially on the plaintiff to raise a prima facie case of
discrimination. The defendant may then counter by asserting a
legitimate, non-discriminatory reason for the allegedly
discriminatory act. The burden finally rests with the plaintiff
to show "that the proffered reason was not the true reason for
the decision . . . Plaintiff [must show] the court that a
discriminatory reason more likely motivated the employer or
that the employer's proffered explanation is unworthy of
credence." Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981);
(citing McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at
1825-26 (1973)). Plaintiff need not demonstrate that age was
the sole reason for discharge, only that it made a difference.
Montana v. First Federal S. & L. of Rochester, 869 F.2d 100,
105 (2d Cir. 1989) (citing Hagelthorn v. Kennecott Corp.,
710 F.2d 76, 82 (2d Cir. 1983)).
The only issue presently before the Court is plaintiff's
claim of pretext. Defendants have conceded prima facie
discrimination under the McDonnell/Burdine standard for the
purposes of this motion. Plaintiff has not challenged the
accuracy of defendants' proffered legitimate reason, namely
that his replacement was better qualified for the Area
Executive position as restructured in 1985 and 1986. Plaintiff
must therefore raise a genuine issue of material fact as to
whether defendants' stated legitimate reasons for his dismissal
are a mere pretext in order to defeat summary judgment. The
Court finds that plaintiff has met this burden.
Defendants claim that plaintiff was dismissed from his job
because he relied too heavily upon professional staff support
and lacked certain necessary skills, notably in the area of
planning, to be able to perform effectively the new Area
Executive function. However, plaintiff's positive 1985
appraisal appears to have covered a period of at least three
months in which plaintiff operated under the new order, with no
mention of these supposedly fatal shortcomings.*fn8 Simpson's
claim that he had already begun to question plaintiff's
performance under the restructuring, but nevertheless refrained
from mentioning these doubts because he felt it unfair to
judge on so short a period of time, is unsupported by any
evidence predating the instant claim. Simpson's contention,
therefore, cannot, without a credibility determination
inappropriate on summary judgement, overcome the inference
favorable to plaintiff that plaintiff's performance was
satisfactory even after the reorganization of MEI. This
inference would tend to show "that the employer's proffered
explanation is unworthy of credence." Burdine, 450 U.S. at 256,
101 S.Ct. at 1095.
There also remains a genuine issue of material fact regarding
the extent to which the restructured position required skills
which plaintiff lacked. Plaintiff has conceded that the
reorganizations required the Area Executive to do more himself,
particularly in the area of strategic planning, with less staff
assistance. However, evidence supports the contention that the
restructured, New York based Area Executive relied extensively
on professional staff, albeit MRDI staff instead of the defunct
MEI departments, in planning and other areas. Dunn Dep. at
9-14. Davis' testimony that he took on nearly all planning work
himself may, therefore, reflect more his own propensity as a
professional planner than actual job requirements. See Davis
Dep. at 81-83.
There is, moreover, no prior indication of any deficiency in
plaintiff's planning skills. This is remarkable in light of the
Area Executive Position Description, which clearly assigns high
priority to the functions of planning business strategy and
establishing short- and long-term operating and financial
objectives for affiliates.*fn9 A jury could thus infer, in
support of a finding of pretext, that the change in plaintiff's
position cannot adequately or credibly account for the decision
to fire him.
Nor is there any evidence, with the exception of the 1986
Appraisal of Performance, that plaintiff was incapable of
adjusting to the new environment. That document remains
suspect, not only because it was created after plaintiff's
dismissal, but because it reversed all of his prior
evaluations. See Gunby v. Pennsylvania Electric Co.,
840 F.2d 1108 (3d Cir. 1988).
The timing and lack of demonstrable objectiveness of
Simpson's ranking of candidates also tends to support an
inference of pretext. The inclusion of plaintiff in this
exercise after the recommendation to separate him was adopted
suggests that his dismal rating may have been a foregone
conclusion. This inference is reinforced by Mobil personnel
managers' testimony that the ranking form used was
unprofessional, highly subjective, and susceptible to
self-justifying distortion. Devan Dep. at 75-76; MacKenzie Dep.
at 62-63. Particularly suspect is the item concerning skills
particular to the position and replaceability by other
employees. Plaintiff received the lowest possible rating,
despite the fact that, of the six candidates, only he had any
experience as Area Executive. Defendants' proffered
explanations of the ranking procedure again depend upon
credibility determinations which the Court may not now make.
There is, therefore, a genuine issue of material fact as to
whether the ranking was merely pretextual.
Having concluded that genuine issues of material fact exist
to be tried, the Court need not consider each of plaintiff's
remaining allegations. Defendants have failed to meet their
burden under the summary judgment standard.
Accordingly, defendants' motion for summary judgment is
denied in its entirety.