Kozelouzek and Linda Harris, Alliance's Senior Vice President of
Human Resources. Id. On November 10, 1997, Semkow and
Kozelouzek met with Campbell and advised her that her employment
was being terminated. Campbell Dep. at 165. Campbell was given a
written Release which provided for severance of one month's
salary plus earned but unused vacation time upon its execution.
See Severance and Release Agreement, Ex. 8 to the Collins Aff.
Campbell executed the Release on November 29, 1997 and Alliance
sent her the severance payment. Campbell Dep. at 176-77. Campbell
commenced this action in January of 1999.
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
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,