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February 15, 2002


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.


Plaintiff Yevgeny Matusovsky ("Matusovsky") filed this action against defendant Merrill Lynch, Pierce & Smith Incorporated ("Merrill") alleging violations of his civil rights under federal, New York State and City laws. In response, Merrill filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the Court grants Merrill's motion.


According to the complaint, Merrill hired Matusovsky as a full-time consultant in 1998. At that time, Matusovsky informed Merrill that, as an Orthodox Jew, he observed the Sabbath and could not work on Saturdays. Initially, Merrill did not schedule Matusovsky for work on Saturdays. However, starting sometime during or after November of 1999, a new manager began assigning Matusovsky to work on Saturday nights and Sundays. In March of 2000, Matusovsky was put on probation for poor performance and attendance; on July 5, 2000, he was fired.

Shortly after his termination, Matusovsky commenced proceedings in the Civil Court of New York to obtain ten boxes of property from his office that he contended belonged to him. Before the Civil Court heard the matter, on September 22, 2000 Merrill settled the case. In that connection, Matusovsky signed a General Release stating that:

I [Yevgeny Matusovsky] release and give up any and all claims which I may have against You [Merrill]. This releases all claims, including those of which I am not aware and those not mentioned in this release. This General Release applies to all claims resulting from anything which has happened up to now. I specifically release any and all claims arising out of my small claims action brought in the Civil Court of New York, Index Number SCK 6773/2000.

(Memorandum of Law in Support of Defendant's Motion to Dismiss the Complaint ("Def.'s Mem."), at Ex. B ("General Release") at 1, ¶ 1.) In exchange for execution of the General Release, Matusovsky was permitted to retrieve the ten boxes he claimed and received a check in the amount of $45.00. (General Release, ¶ 3 ("Paragraph Three").)

Matusovsky acknowledges that he signed a "General Release purportedly releasing Merrill Lynch of any liability with respect to any claims Plaintiff may have against the company. (Complaint ("Compl."), ¶ 12.) Matusovsky claims-that the General Release does not bar this action because Merrill "did not provide Plaintiff with any consideration in exchange for the General Release." (Compl., ¶ 13.) Matusovsky made no allegations in his complaint regarding the circumstances under which he entered the General Release.

In response, Merrill filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) based on Matusovsky's failure to state a claim upon which relief may be granted. Merrill attached the General Release in support of its motion. Matusovsky opposed the motion on the grounds that the General Release is invalid and unsupported by consideration. The question before the Court is whether the General Release operates to bar this action. The Court concludes that it does.


A district court may grant a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) only if it appears beyond doubt that the non-moving party could prove no set of facts that would entitle it to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994). In reviewing the pleadings, a court must accept the non-moving party's factual allegations-as true. See Hishon, 467 U.S. at 73. Furthermore, a court may consider documents attached to the complaint as exhibits, or incorporated by reference, as well as any documents that are integral to, or explicitly referenced in, the pleading. See I. Meyer Pincus & Associates, Inc. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991); 2 Broadway LLC v. Credit Suisse First Boston, No. 00 Civ. 5773, 2001 WL 410074, 5 (S.D.N.Y. Apr. 20, 2001). If a plaintiff's allegations are contradicted by such a document, those allegations are insufficient to defeat a motion to dismiss. See 2 Broadway LLC, 2001 WL at 9 (citations omitted). Here, Matusovsky explicitly referred to the General Release in his complaint. Thus, the Court will examine that document in its consideration of Merrill's motion to dismiss the complaint.

Under federal law, an employee may waive his Title VII claim of discrimination against his employer, provided that the waiver is knowing and voluntary. Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 & n. 15 (1974); Bormann v. AT&T Communications, Inc., 875 F.2d 399, 402 (2d Cir. 1989); Livingston v. Bev-Pak, Inc., 112 F. Supp.2d 242, 247 (S.D.N Y 2000). Whether the employee's waiver was knowing and voluntary depends upon the totality of the circumstances, including factors such as:

(1) the plaintiff's education and business experience; (2) the amount of time that the plaintiff had possession of or access to the agreement before he signed it; (3) the plaintiff's role in deciding the terms of the waiver agreement; (4) the clarity of the agreement; (5) whether the plaintiff was represented by or consulted with an attorney prior to signing the agreement; (6) whether the consideration given to the plaintiff was in exchange for the waiver exceeds the employee benefits to which the plaintiff was already entitled by contract or law; (7) whether the employer encouraged or discouraged the plaintiff to consult with an attorney; and (8) whether the plaintiff had a fair opportunity to consult with an attorney prior to signing the agreement.

Livingston, 112 F. Supp. 2d at 247 (citing Bormann, 875 F.2d at 403). Not every factor must be present for a ...

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