prohibits the release of such retaliation claims. Again, plaintiff has failed to cite any case law suggesting that a release of such claims is invalid.
Permitting employees to waive claims of retaliatory discharge for whistle-blowing activities is consistent with the principle that employees may validly release claims of discrimination under Title VII, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. §§ 261-634. See Bormann v. AT & T Communications, Inc., 875 F.2d 399, 402 (2d Cir.), cert. denied, 493 U.S. 924, 107 L. Ed. 2d 272, 110 S. Ct. 292 (1989); Coventry v. U.S. Steel Corp., 856 F.2d 514, 517-18 (3d Cir. 1988). In a comparable case, the Tenth Circuit concluded that claims of wrongful discharge for whistle-blowing activities were barred by a release similar to that signed by plaintiff. See White v. General Motors Corp., Inc., 908 F.2d 669 (10th Cir. 1990), cert. denied, 498 U.S. 1069, 112 L. Ed. 2d 850, 111 S. Ct. 788 (1991). The Court concludes that claims of retaliatory discharge may be released.
Throughout his submissions, plaintiff alleges that defendant forced him to engage in various practices, including taste-testing one of the drugs he sold, in violation of the Prescription Drug Marketing Act of 1987 (the "Act"). In his affidavit he states that he believes that the money paid to him pursuant to the settlement agreement constituted "extortion" and was an attempt to prevent him from reporting, among other things, defendant's violations of various provisions of the Act. (Pla. Aff., P 4.) Such an agreement would be unenforceable. See McGrane v. Reader's Digest Ass'n, Inc., 822 F. Supp. 1044, 1045-46, 1051-52 (S.D.N.Y. 1993). However, nothing in the settlement agreement is designed to preclude plaintiff from reporting violations of the Act or any other health and safety law violations to the proper authorities. Further, at oral argument and in his memorandum of law plaintiff argued that the settlement agreement is illegal on the grounds that it constitutes an attempt by defendant to conceal violations of workers' compensation law and labor law prohibiting retaliatory personnel action, not on the grounds that it constitutes an attempt to prevent plaintiff from reporting defendant's violations of health and safety law.
Plaintiff makes serious allegations, but he has failed to present any authority suggesting that claims under section 740 and section 215 cannot be validly waived. The Court concludes that the release of such claims is valid. The settlement agreement is therefore enforceable, and by its terms, bars plaintiff's claims of discrimination.
Failure of Performance
In addition to challenging the enforceability of the settlement agreement on grounds that the agreement is illegal, plaintiff argues that he is not bound by the agreement because, contrary to its terms, defendant did not provide continued medical, hospital, and dental benefits. According to the Director of Benefits Administration at Squibb at the time, due to an administrative error, plaintiff's continued coverage was not properly recorded. The error was corrected by November of 1991, shortly after plaintiff informed defendant that his claims for benefits had been rejected, and plaintiff was advised to re-submit any eligible medical or dental bills for which he had been denied coverage. According to the benefits administration director, all eligible medical and dental bills incurred during the period for which plaintiff was to receive continued benefits under the settlement agreement would have been covered. (See Affidavit of Kathryn P. Kehoe, P 5-6.) Plaintiff has not presented any evidence to the contrary.
The Court concludes that there is no genuine issue of material fact with respect to defendant's performance under the agreement. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Defendant's performance was substantial. See Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 243, 129 N.E. 889, 891 (1921) (Cardozo, J.) (whether performance is substantial is a "question . . . of degree, to be answered, if the inferences are certain, by the judges of the law."). Plaintiff received the $ 56,581.24 payment due under the agreement without incident and retained it.
Certainly, defendant's brief clerical lapse does not render the entire agreement unenforceable. See Inhabitants of City of Plainfield v. Palmer, 72 F.2d 312, 313 (3d Cir. 1934) (substantial performance by one party coupled with the retention of benefits by the other allows former to bring an action on the contract); E. Allan Farnsworth, Contracts § 8.16, at 638 (2d ed. 1990). Moreover, any failure of performance was cured by the correction of the administrative error. See Farnsworth, supra, § 8.17, at 640. Accordingly, plaintiff is bound by the agreement.
Tortious Interference Claim
As discussed above, the Court concludes that the settlement agreement bars plaintiff's claims of discrimination. However, the Court cannot conclude at this time that the agreement bars plaintiff's claim of tortious interference with prospective contractual relations.
Plaintiff alleges that he has been unable to obtain employment since his termination because defendant has provided "false and unauthorized information to potential employers and non-essential persons." (Amended Complaint, P 62.) Nothing in the submissions to the Court specifically addresses whether such a claim is barred by the settlement agreement.
Upon examination of the agreement, it appears that neither paragraph four of the agreement, under which plaintiff agreed not to file any complaints alleging race, age, or national origin discrimination at any time in the future, nor paragraph thirteen, under which plaintiff agreed to release defendant from all claims plaintiff had or claimed to have prior to and at the time the agreement was entered into,
bars a claim of tortious interference with prospective contractual relations based on actions taken by defendant subsequent to plaintiff's separation. Accordingly, defendant's motion for summary judgment dismissing plaintiff's claim of tortious interference with prospective contractual relations is denied.
Defendant requests an award of costs, attorneys fees, and other expenses pursuant to the terms of the settlement agreement. Defendant argues that it has incurred substantial costs and fees in the course of defending claims plaintiff failed to withdraw and claims plaintiff initiated in violation of the agreement, including the claim pending at the time of the settlement agreement before the New York Division of Human Rights and the discrimination claim filed with the New York Workers' Compensation Board after the execution of the agreement. Under the agreement, plaintiff agreed "to indemnify and hold [defendant] harmless from and against any and all loss, cost, damages or expenses, including, without limitation, attorney's fees incurred by [defendant] . . . by reason of any representation made [in the agreement by plaintiff] which was false, and known by [plaintiff] to be false when made. " (Separation Agreement and General Release, Ex. G to Feinblatt Aff., P 14 (emphasis added)). On the basis of the current record, it appears that at least in partial compliance with the terms of paragraph three of the settlement agreement, plaintiff obtained the administrative withdrawal of the discrimination charges he filed with the E.E.O.C.
Thus, material issues of fact exist with respect to plaintiff's intent to comply with the agreement, and, therefore, the Court cannot conclude as a matter of law that plaintiff knowingly made false representations at the time he entered into the agreement. Accordingly, defendant's motion for costs and attorney's fees is denied at this time.
Defendant's motion for summary judgment dismissing plaintiff's discrimination claims is granted. Defendant's motion for summary judgment dismissing plaintiff's claim of tortious interference with prospective contractual relations is denied. Defendant's request for an order requiring plaintiff to dismiss with prejudice all pending claims against Squibb or its representatives and permanently enjoining plaintiff from asserting new legal claims in any forum against Squibb or its representatives is also denied.
Dated: Brooklyn, New York
December 30, 1993
RAYMOND J. DEARIE
United States District Judge