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.
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
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
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.
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.
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,
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,
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
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