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July 6, 2000


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


Plaintiff Ingrid Campbell brings this action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., alleging claims of racial discrimination for failure to promote and wrongful termination.*fn1 Defendants Alliance National Incorporated ("Alliance"), Daria Semkow and Laura Kozelouzek move for summary judgment dismissing the complaint under Rule 56(c) of the Federal Rules of Civil Procedure. For the following reasons, defendants' motion is granted and the case is dismissed.

I. Facts

A. Alliance's Business

During 1997, Daria Semkow was Alliance's Area General Manager responsible for all of Alliance's New York City centers. Id. ¶ 3. Semkow reported to Laura Kozelouzek, then Senior Vice President for the Northeast Region. Id. Semkow and Kozelouzek maintained their offices in New York City. Id. ¶ 4. Lisa Roeck was the Area Operations Manager during this period and, as such, was responsible for training and assisting other Operations Managers.

B. Campbell's First Employment with Alliance

Campbell began full-time employment with Alliance in September 1990 as a telephone operator at Alliance's 599 Lexington Center. See Deposition of Ingrid Campbell ("Campbell Dep."), Ex. 1 to the Affirmation of Christopher Collins, defendants' attorney ("Collins Aff."), at 27-28. In 1995, she was promoted to Communications Supervisor. Id. at 35. In January of 1996, Campbell voluntarily resigned her position with Alliance and left to work for a competitor. Id. at 60-61. Campbell acknowledged that prior to her resignation, she was never discriminated against because of her race. Id. at 65-66.

C. Alliance's Re-Hiring of Campbell

Campbell became dissatisfied with her new position, id. at 75, so she called Kozelouzek and inquired whether there were any job opportunities. Id. at 78-79. Kozelouzek advised Campbell that they should stay in touch. Id. at 79; see also Deposition of Laura Kozelouzek ("Kozelouzek Dep."), Ex. 3 to the Collins Aff., at 122-23.

Shortly thereafter, Kozelouzek contacted Campbell about an Operations Manager position which became available at 26 Broadway. Campbell Dep. at 80-81; Kozelouzek Dep. at 124. After interviewing Campbell, Kozelouzek discussed the possibility of hiring her with Semkow and Roeck. Kozelouzek Dep. at 125; see also Deposition of Daria Semkow ("Semkow Dep."), Ex. 2 to the Collins Aff., at 343-44. Although Roeck had some reservations about hiring Campbell, Semkow Dep. at 349, Semkow and Kozelouzek hired Campbell as Operations Manager at the 26 Broadway Center. Id. at 343. Campbell's employment as an Operations Manager began on February 3, 1997. See Plaintiff's Hiring Letter, dated January 15, 1997, Ex. 3 to the Campbell Dep., Ex. 8 to the Collins Aff. That letter stated that plaintiff was to be paid $33,000 per year with a performance incentive program (bonus) of up to $3,600 per year. Id. That letter also stated that Campbell's supervisor of record would be Laura Kozelouzek but that in the future it could be the Area General Manager (Daria Semkow). Id.

As Operations Manager, Campbell had overall responsibility for the operations of 26 Broadway including the oversight of all facilities management such as center readiness, renovations, and client and vendor relations. See Operations Manager Job Description, Ex. 5 to the Campbell Dep., Ex. 8 to the Collins Aff. Campbell was also responsible for all financial management aspects of the center including billing, processing daily bank deposits, and data collection from Alliance's client telephone usage system (Microcall). Id.

D. Campbell's Performance Problems

Campbell responded in writing to this probation memorandum and disputed several items including problems with C-Plus, excessive tardiness, and the missing $1,700. See Letter from Campbell to Semkow, dated May 20, 1997, Ex. 12 to the Campbell Dep., Ex. 8 to the Collins Aff. In that letter, Campbell took full responsibility for her "lack of judgment and thoroughness in maintaining and supervising the data of Microcall." Id. Campbell then provided a litany of problems she encountered at 26 Broadway including personnel changes, security issues, and billing. Id. Finally, Campbell conceded that "all of the above mentioned is just cause for my below average performance as the Operations Manager." Id.

Campbell's performance problems persisted and on June 20, 1997, her probation was extended for another thirty days. See Letter from Semkow to Campbell, dated June 20, 1997, Ex. 13 to the Campbell Dep., Ex. 8 to the Collins Aff. The following four areas of inadequate performance were stated in that memorandum: (1) overall job knowledge and performance was below expectations; (2) failing to conduct regular client satisfaction interviews; (3) inadequate staff development (including high turnover and low morale); and (4) lack of communication with staff and clients. Id.

On July 28, 1997, Campbell's probation was again extended. See Letter from Semkow and Roeck to Campbell, dated July 28, 1997, Ex. 15 to the Campbell Dep., Ex. 8 to the Collins Aff. This probation memorandum listed 23 areas in which Campbell's performance needed improvement. These areas included: "Billing & Reports," "Staff Stabilization & Training," "Telecommunications," "Client Relations & Follow Up Procedures," and "Time Management." Id. The memorandum also stated that failure to meet consistent, acceptable performance within the next thirty days would result in termination. Id.

Campbell's performance problems nevertheless continued and she was again placed on a 30-day probation on October 8, 1997. See Letter from Semkow and Kozelouzek to Campbell, dated October 8, 1997, Ex. 17 to the Campbell Dep., Ex. 8 to the Collins Aff. The following four areas of inadequate performance were identified: (1) poor judgment in the hiring of a new word processor; (2) lack of responsiveness in handling an important request from Alliance's Chief Financial Officer; (3) excessive costs with use of the company car service; and (4) lack of judgment in making decisions (failure to recognize when supervisor approval was necessary). Id. The letter concluded that failure to improve could result in extension of the probationary period or termination of employment. Id.

II. Discussion

A. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden of showing that no genuine factual dispute exists rests on the moving party. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In assessing the record to determine whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).

Once the moving party has met its initial burden of production, the non-moving party must come forward with specific facts evidencing a genuine issue for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotation marks and citations omitted, alteration in original).

Greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (citations omitted). This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999) (internal quotation marks and citation omitted, brackets in original). However, even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp, 118 F.3d at 110; Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).

B. Release Is Not A Bar To This Action

In return for the severance and vacation pay, Campbell agreed to release Alliance from any claims for wrongful discharge and for discrimination based upon, inter alia, Title VII of the Civil Rights Act of 1964. See Severance and Release Agreement ("Release"), Ex. 7 to the Campbell Dep., Ex. 8 to the Collins Aff., ¶¶ 2-3. The Release states: "I represent that I have read and understand the foregoing Severance and Release Agreement and that I voluntarily and knowingly intend to be bound by its terms." Id. ¶ III. The Release did not, however, inform Campbell that she should consult an attorney nor did Alliance advise her to do so. Kozelouzek Dep. at 205.

"Under Title VII, an employee may validly waive a claim of discrimination so long as the waiver is made knowingly and willfully." Bormann v. AT & T Communications, Inc., 875 F.2d 399, 402 (2d Cir. 1989) (internal quotation marks and citations omitted). In determining whether a waiver is knowing and voluntary, the Second Circuit has adopted the "totality of circumstances" test applied by the Third Circuit in Coventry v. United States Steel Corp., 856 F.2d 514, 524 (3d Cir. 1988). See Bormann, 875 F.2d at 403. Accordingly, the following factors, first enunciated by Judge Morris Lasker in EEOC v. American Express Publ'g Corp., 681 F. Supp. 216, 219 (S.D.N.Y. 1988), are relevant in determining voluntariness:

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. The above list is not exhaustive and the absence of a single factor is not necessarily dispositive. See Laniok v. Advisory Comm. of Brainerd Mfg. Co. Pension Plan, 935 F.2d 1360, 1368 (2d Cir. 1991) (citation omitted).

Here, application of the above factors, while helpful, is not dispositive. The first factor seemingly cuts in favor of finding a knowing and voluntary waiver. Campbell is a high school graduate who has attended college but has not received a degree. See Campbell Dep. at 11. Moreover, she held a managerial position at Alliance. This Court has held that "a plaintiff with a high school education and management experience [is] capable of understanding a straightforward release much like the stipulation at issue here." Prunella v. Carlshire Tenants, Inc., 94 F. Supp.2d 512, 516 (S.D.N.Y. 2000) (citing Nicholas v. Nynex, Inc., 929 F. Supp. 727, 731 (S.D.N.Y. 1996)). The second factor also militates in favor of waiver. Campbell considered the release for almost three weeks before signing it and discussed it with various family members. Campbell Dep. at 169-72, 176. This is a sufficient period of time. See Glugover v. Coca-Cola Bottling Co. of New York, Inc., 91 Civ. 6331, 1993 WL 312269, at *9 (S.D.N.Y. Aug. 12, 1993), aff'd mem., 60 F.3d 810 (2d Cir. 1995) (possession of agreement for over two months deemed sufficient). In addition, Campbell was given seven days within which she could revoke the Release after signing it, but she chose not to do so. See Release ¶ III. The third factor cuts against a finding of waiver as Campbell had no input as to the terms of the Release. However, the Bormann court expressly stated that a trial as to "voluntariness" is not required merely because the plaintiff did not have an opportunity to negotiate the terms of the waiver. 875 F.2d at 403 n. 1. The fourth factor, clarity of the agreement, weighs in favor of waiver. The Release states that in consideration of the payments listed in ¶ 1, Campbell:

1) Hereby unconditionally release[s] ALLIANCE . . . from any and all claims arising out of my employment and termination from employment including, but not limited to, any claims for wrongful discharge or for discrimination based upon age, race, color, religion, sex, national origin, or handicap. . . .

Release ¶ II. As in Nicholas, here too "[i]t is difficult to imagine language that could inform plaintiff more clearly of the nature of [her] rights and of the fact that [she] is relinquishing those rights by signing the release." 929 F. Supp. at 731. The fifth factor weighs against a waiver as Campbell was not represented by counsel nor was she ever advised to consult an attorney.

The sixth factor, whether extra consideration was given in exchange for the release, is in dispute. Campbell claims that she was entitled to severance pay as a matter of company policy. She further argues that the "Employee's Handbook" on which she arguably relied, dated April 22, 1997, expressly provides for the payment of unused vacation time to those employees who are terminated. See § II-D-13(b)(1) of the Employee's Handbook, Ex. L to the Declaration of Sheldon Eisenberger, plaintiff's counsel, in Opposition to Defendants' Motion for Summary Judgment, dated March 29, 2000 ("Eisenberger Decl."). The Employee's Handbook is silent, however, as to severance pay. Alliance maintains, on the other hand, that the payment of severance is entirely discretionary under the "Associate Handbook on Personnel Benefits and Administrative Policies and Procedures," dated September 1997 and in effect at the time of Campbell's termination. See Collins Aff. Ex. 9. Section 112 of the Associate Handbook states that the "Company, at its discretion, may award severance pay to Associates to compensate for the loss of their jobs." (emphasis added). The discretionary nature of severance payment is further supported by the testimony of Laura Kozelouzek. See Kozelouzek Dep., Ex. 10 to the Eisenberger Decl., at 446 (it was not Alliance's policy or common practice to give severance to employees who were terminated). Section 301 of the Associate Handbook, governing annual leave, provides that vacation pay will be forfeited if an Associate is terminated for cause or misconduct. In light of the above, it appears that Campbell did in fact receive compensation that she would not have otherwise received absent the signing of the Release, namely, severance pay equal to one month's salary. Thus, the sixth Bormann factor also weighs in favor of waiver.

Despite the fact that the majority of the Bormann factors favor a finding of a voluntary and knowing waiver, I cannot reject Campbell's claim that she did not understand that she would be waiving her statutory rights to bring suit by signing the ...

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