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September 10, 1990


The opinion of the court was delivered by: Sifton, District Judge.


Plaintiff, Jerome Joseph, filed suit in state court alleging employment discrimination against him by defendant, Chase Manhattan Bank ("Chase" or the "Bank"). Chase removed the action to this Court on the ground that plaintiff's complaint states a cause of action under ERISA and possibly Title VII. This matter is before the Court on Chase's motion for summary judgment based on a release signed by Joseph or, in the alternative, for an evidentiary hearing limited to the factors listed in Bormann v. AT & T Communications, Inc., 875 F.2d 399 (2d Cir. 1989), to determine the validity of the release.

Chase asserts that plaintiff's claims are barred because plaintiff has signed a waiver of all claims against his employer,*fn1 the pertinent part of which reads as follows:

  "In return for the benefits available to me under the Program,
  the sufficiency of which is hereby acknowledge. I fully and
  finally waive, discharge and release any and all claims of
  whatsoever nature, known and unknown, other than my right to
  the enforcement of the terms of the Program and my rights
  solely to my retirement benefits which have been accrued,
  funded and vested to date, against The Chase Manhattan Bank,
  N.A., its current and future subsidiaries and divisions and
  their directors, officers, employees, attorneys and agents
  (`Chase'), including, without limitation, any and all rights
  and claims, including any eligibility prior to 18 months from
  the date of my voluntary retirement for reemployment with
  Chase, whether in law or in equity, which I or anyone acting
  through me, my estate or on behalf of me or my estate might
  otherwise have had or asserted, including, but not limited to,
  claims under Title VII of the Civil Rights Act of 1964, the
  Civil Rights Act of 1966, the Age Discrimination in Employment
  Act of 1967, the Employee Retirement Income Security Act of
  1974, Executive Orders 11246 and 11141, and all federal, state
  and local law claims, whether statutory or common law,
  including, but not limited to, those under the laws of the
  State of New York, and I waive all rights to share in any
  damages awarded under any class action or EEOC charge that may
  be brought against Chase based on my employment with or
  retirement from Chase."

Joseph signed the release in connection with his participation in Chase's voluntary retirement program ("VRP"). Under the VRP, employees aged 50-69 with at least ten years of service were given the opportunity to retire early with extra benefits,*fn2 in consideration for which they were to leave by December 31, 1987, and sign the aforementioned release of any claims against the corporation. The offer was made to qualified employees on October 21, 1987. Acceptance was required by signing a form before 5 p.m. on November 30, 1987. After acceptance, employees were given until December 14, 1987, to rescind their acceptance and continue their employment with Chase until such date as they chose to retire under their original retirement plan.

Joseph was employed by Chase from October 1980 through December 1987. He has an M.B.A. degree. His last position was second vice president, functioning as a capital budget analyst. Joseph was not eligible to retire in December 1987 under Chase's ordinary retirement plan but was eligible to accept the VRP. According to his deposition, Joseph wished to take advantage of the VRP but did not wish to sign the waiver, apparently because he was already considering suing Chase. There is no evidence presented, nor is there reason to infer that Chase knew of Joseph's intention to sue. He appears to have been offered the VRP package purely because he was a member of the eligible class. Joseph admits that no one at Chase advised him to accept the VRP, nor was he threatened with loss of his job or other repercussions if he did not sign.

Joseph attempted to return the acceptance form to Chase on November 18, 1987, with the waiver paragraph crossed out but was informed that in order to participate in the VRP he had to agree to the waiver and that therefore his counter offer was unacceptable. Thereafter, Joseph consulted with his attorney and decided to sign the acceptance form without the waiver paragraph crossed out. He returned it shortly before 5 p.m. on November 30, 1987, the last date for acceptance.

Also in the record is an affidavit from Joseph, submitted to the state court before removal in connection with an order to show cause, stating: "During the course of my employment with the defendant, I have been subjected to a number of injustices. most prevalent among them being defendant's failure to properly assess my performance and to grant me raises and promotions to which I am entitled." The record also contains an affidavit from plaintiff's attorney in 1988, Jack Solerwitz. This affidavit states that in 1979 plaintiff was promoted to second vice president in Chase's financial projects division but did not receive the appropriate pay raise according to Chase's official paychart*fn4 and that plaintiff was denied eight salary reviews between 1980 and 1987. Plaintiff's salary in December 1987, according to Solerwitz affidavit, was $41,040.00.*fn5 Plaintiff has presented no evidence regarding his mental state or economic circumstances during the period he was offered and accepted the early retirement package.

In February 1988 this Court denied summary judgment after considering it sua sponte as a result of defendant's 12(b)(6) motion to dismiss. Defendant now moves for summary judgment on the basis that discovery has been completed and that plaintiff's deposition together with his failure to produce evidence sufficient to make out a valid claim of duress establish that such relief is now appropriate. Accordingly, this Court now reconsiders the motion de novo based on the evidence before it.


In Bormann v. AT & T Communications, Inc., 875 F.2d 399 (2d Cir. 1989), a case involving a waiver of claims under ADEA, the Second Circuit adopted the Third Circuit's totality of circumstances standard for determining whether a waiver of claims agreement is valid. In Coventry v. U.S. Steel Corp., 856 F.2d 514, 524 (3rd Cir. 1988), the court announced that "in the determination of whether a waiver was signed knowingly and voluntarily, review of the totality of the circumstances in which it was signed must be had."*fn6

In Bormann, the Second Circuit listed eight factors to be considered in determining whether an employee signed a release "knowingly, willfully, and free from coercion": (1) plaintiff's education and business experience, (2) the amount of time plaintiff had possession of or access to the agreement before signing it, (3) the role of the 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 the employee was already entitled by contract or law, (7) whether the employer encouraged or discouraged the employee's consultation with an attorney, and (8) whether the employee had a fair opportunity to consult an attorney.

These factors weigh heavily in favor of the defendant. Plaintiff has an M.B.A. and considerable business experience. Plaintiff had the agreement for forty days before he was required to sign it and had fifteen days to reconsider Chase's offer after his counter offer was rejected. With respect to the plaintiff's role in determining the terms of the agreement, the fact that Chase's offer was accepted in its original form does not in any way bolster plaintiff's case. The offer, counter offer, and eventual acceptance of the original offer constitute a negotiation, and the fact that defendant was unable successfully ...

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