The opinion of the court was delivered by: CONNER
On July 15, 1994, plaintiffs Lynn Nicholas, Lester Johnson and Julian Gittens filed this action against defendant NYNEX, Inc. ("Nynex"). Plaintiffs assert claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under § 296 of the New York Executive Law. Defendant has made a motion for summary judgment, pursuant to Fed. R. Civ. P. 56, dismissing the claims of plaintiff Gittens. For the reasons set forth below, defendant's motion is granted.
The following undisputed facts are taken from the parties' Rule 3(g) statements, from affidavits submitted by the parties and from plaintiff's deposition testimony. Plaintiff Gittens began working at Nynex in 1964. In 1986, he was promoted to the position of Systems Analyst. During 1992, in order to carry out a reduction in its workforce, Nynex evaluated all of its employees based on their position, experience, skills, knowledge, performance and potential. The employees were then divided into four "bands," and Nynex selected employees for termination in order of inverse seniority within each band. On October 12, 1992, Nynex informed Gittens that it had placed him in Band 4 and that he would be removed from the payroll in December 1992. Nynex also gave Gittens a packet of materials that included a document titled "Separation Agreement and Release." Gittens was entitled to $ 45,375.00 in separation pay. In addition, Nynex offered him a bonus of $ 15,125.00 if he signed the release. On December 9, 1992, Gittens did so. His employment at Nynex ceased on December 11, 1992. On or about September 30, 1993, Gittens filed a charge of discrimination with the EEOC, which issued a notice of right to sue dated April 13, 1994.
Plaintiff alleges that throughout his employment at Nynex, he was denied promotions, salary increases and bonuses because he is black. He contends that if he had received the promotions to which he was entitled, he would have been placed in a higher band and would not have been included in the group of employees who were terminated. He asserts claims under Title VII and N.Y. Exec. L. § 296 for disparate treatment and intentional discrimination on the basis of his race. Defendant seeks summary judgment on the grounds that plaintiff signed a valid release waiving these claims and that in any event, plaintiff's Title VII claims are time-barred.
Summary judgment should be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is one that "might affect the outcome of the suit under the governing law . . . ." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). No genuine issue for trial exists unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict for that party. See id., at 248-49. In evaluating a motion for summary judgment, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id., at 255.
Under Title VII, an employee may waive a claim for discrimination so long as the waiver is made knowingly and voluntarily. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 & n.15, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974); 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); Baba v. Warren Mgmt. Consultants, Inc., 882 F. Supp. 339, 343 (S.D.N.Y.), aff'd, 89 F.3d 826, 1995 U.S. App. LEXIS 37306, 1995 WL 722242 (2d Cir. 1995). In Bormann, the Second Circuit adopted a "totality of the circumstances" standard, which is somewhat more stringent than the analysis called for under ordinary contract law, for determining whether a release of discrimination claims was executed knowingly and voluntarily.
See Bormann, 875 F.2d at 403. The Court also articulated a number of factors that courts should evaluate in conducting this inquiry. These factors are:
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,  whether [the] employer encourages or discourages [the] employee to consult an attorney . . . and  whether the employee had a fair opportunity to do so.
Id. (citations omitted). These factors are not exhaustive, nor must all of the factors be satisfied before a release is enforceable. See Bormann, 875 F.2d at 403 & n.1.; Baba, 882 F. Supp. at 344. "The essential question is 'whether in the totality of the circumstances, the individual's waiver of his right can be characterized as "knowing and voluntary."'" Baba, 882 F. Supp. at 344 (quoting Laniok v. Advisory Comm'ee, 935 F.2d 1360, 1368 (2d Cir. 1991)).
4. I [Gittens] . . . understand that, pursuant to the Older Workers Benefit Protection Act of 1990, I have the right to consult with an attorney before signing this Separation Agreement and Release, I have 45 days to consider the Release before signing it, and I may revoke the Release within 7 calendar days after signing it.
5. I realize that there are various State and Federal laws that govern my employment relationship with the Company [Nynex] and/or prohibit employment discrimination on the basis of . . . race . . . and that these laws are enforced through the courts and agencies such as the Equal Employment Opportunity Commission, Department of Labor and State Human Rights Agencies. Such laws include, but are not limited to, Title VII of the Civil Rights Act of 1964 . . . . In consideration of the Release Bonus provided for in this Agreement, I intend to give up any rights I may have under these or any other laws with ...