has acknowledged that he was not entitled to that sum if he did not sign the release. (Tr. 61)
The only Bormann factor that may favor plaintiff is his role in deciding the terms of the release. Plaintiff contends that Nynex offered him the release, which appears to be a standardized form agreement, on a "take it or leave it" basis and that he was not afforded an opportunity to negotiate any of its terms. Defendant asserts that plaintiff could have negotiated the terms of the release but chose not to. Hence, it appears that a question of fact exists regarding whether plaintiff had the opportunity to play a role in deciding the terms of the release.
This question of fact does not, however, preclude us from deciding, as a matter of law, that plaintiff executed the release knowingly and voluntarily. See Bormann, 875 F.2d at 403 n.1; Frumkin v. Int'l Business Machines Corp., 801 F. Supp. 1029, 1043 (S.D.N.Y. 1992). Even if we were certain that plaintiff could not have negotiated the terms of the release, we would conclude that plaintiff chose to sign the release knowingly and voluntarily because the other Bormann factors overwhelmingly favor defendant. Therefore, some doubt as to whether plaintiff could have negotiated the terms of the release, had he attempted to, is simply not material.
Plaintiff advances three arguments in support of his contention that the release is invalid. First, he asserts that the release is ambiguous. He contends that consequently, he was not aware that he was relinquishing his right to pursue claims arising out of events that occurred during his employment. Plaintiff acknowledges, however, that he understood that he was giving up his right to pursue claims against Nynex growing out of his termination. (Tr. 54, 62, 65, 67, 72) In light of the plain and unambiguous language of the release, which refers repeatedly to claims arising from plaintiff's "employment or termination of employment," plaintiff's argument is simply untenable.
Next, plaintiff argues that the release is voidable because defendant fraudulently induced him to sign it. Plaintiff contends that he would not have signed the release if defendant had not concealed from him the existence of pervasive discriminatory practices that denied him promotions throughout his career and that resulted in his placement in Band 4 and his termination. In order for plaintiff to establish that he was fraudulently induced to sign the release, however, he must demonstrate, inter alia, that defendant made a misrepresentation to him or actively concealed a material fact from him. See Joint Venture Asset Acquisition v. Zellner, 808 F. Supp. 289, 302 (S.D.N.Y. 1992). Plaintiff has not identified a single instance in which defendant made a misrepresentation to him or actively concealed the existence of discrimination against him. (Tr. 67-69) Plaintiff's wholly conclusory assertions of fraudulent concealment--which consist of nothing more than plaintiff's contention that he did not know about the alleged discrimination so defendant must have concealed it from him--are not sufficient to create a question of fact on this issue.
Third, plaintiff argues that the release is invalid because he signed it under economic duress. He asserts that he was forced to sign the release because he anticipated difficulty in finding a new job and feared that he would not be able to make his mortgage payments while he was out of work. In order to establish that the release is voidable on the ground of economic duress, plaintiff must show that "the agreement was obtained: (1) by means of wrongful threat precluding the exercise of free will; (2) under the press of financial circumstances; (3) where circumstances permitted no other alternative." Frumkin, 801 F. Supp. at 1044 (internal quotations omitted); Joseph v. Chase Manhattan Bank, N.A., 751 F. Supp. 31, 35 (E.D.N.Y. 1990). Plaintiff has failed to demonstrate that a question of fact exists on this issue. Plaintiff faced termination of his employment with Nynex regardless of whether he signed the release. His choice, therefore, was between departing with $ 60,500 or with $ 45,375 and the right to bring any discrimination claims that he might have. While this choice is unlikely to be an easy one for someone facing financial difficulties and the uncertainties of unemployment, there is no indication that plaintiff was unable to make the decision of his own free will or that his circumstances were so straitened that they permitted no other alternative but signing the release. See EEOC v. American Express Publishing Corp., 681 F. Supp. 216, 219 (S.D.N.Y. 1988) ("The fact that a party faces a difficult choice--between additional benefits or pursuing his legal rights--does not alone indicate lack of free will.")
Defendant is therefore entitled to summary judgment dismissing plaintiff's claims under Title VII on the ground that plaintiff knowingly and voluntarily released those claims.
Furthermore, plaintiff's claims under N.Y. Exec. L. § 296 must be dismissed on the same ground. Under New York state law, "[a] valid release which is clear and unambiguous on its face[,] . . . even one relinquishing a discrimination claim[,] will be enforceable so long as the agreement has been knowingly and voluntarily entered into." Zveiter v. Brazilian Nat'l Superintendency of Merchant Marine, 833 F. Supp. 1089, 1096 (S.D.N.Y.) (internal quotation omitted), opinion supplemented, 841 F. Supp. 111 (S.D.N.Y. 1993); Skluth v. United Merchants & Mfrs., Inc., 163 A.D.2d 104, 559 N.Y.S.2d 280, 282 (App. Div. 1990), appeal withdrawn, 583 N.Y.S.2d 189 (N.Y. 1992). "A release may, of course, be attacked for being the product of fraud, duress or undue influence." Skluth, 559 N.Y.S.2d at 282. Because, as we explained above, plaintiff's assertions of ambiguity, fraud and duress do not create a question of fact regarding the validity of the release and because we have already determined, under the more stringent Bormann standard, that plaintiff signed the release knowingly and voluntarily, defendant is entitled to summary judgment dismissing plaintiff's claims under N.Y. Exec. L. § 296 on the ground that plaintiff knowingly and voluntarily released those claims.
For the foregoing reasons, we grant defendant's motion for summary judgment dismissing the claims of plaintiff Julian Gittens.
Date: June 17, 1996
White Plains, New York
William C. Conner
Senior United States District Judge