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BACHILLER v. TURN ON PRODUCTS

April 11, 2003

ROSA BACHILLER, PLAINTIFF,
v.
TURN ON PRODUCTS, INC. D/B/A YOUNIQUE KNIT, INC., AND DESIREE RAGABEER, DEFENDANTS.



The opinion of the court was delivered by: John S. Martin, United States District Judge

OPINION & ORDER

In this action, Rosa Bachiller ("Plaintiff") alleges that Turn On Products, Inc. ("Turn On" or "Defendant") and Desiree Ragabeer ("Ragabeer" or "Defendant") discriminated against her violation of Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., the New York State Human Rights Law, Executive Law §§ 290 et seq., and the New York City Human Rights Law, Administrative Code §§ 8-101 et seq.

Plaintiff alleges that Defendants discriminated against her during her employment at Turn On and unlawfully terminated her employment there on the basis of her race and/or national origin and her age.

This case is presently before the Court on Defendants' motion for summary judgment. For the reasons set forth below, Defendants' motion is granted.

FACTUAL BACKGROUND

Plaintiff is Puerto Rican and was 54 years old at the time she was discharged. She came to the United States at age four and eventually obtained a High School Equivalency Diploma.

Plaintiff commenced employment at Turn On on July 1, 1997 as an accounts payable clerk and was discharged on October 9, 1999. On that date, Ragabeer, Turn On's Office Manager, informed Plaintiff of her termination and provided her with a written agreement releasing all claims Plaintiff may have against Turn On and its agents (the "Release") and a notice letter (the "Notice"). The Notice, which is addressed to Plaintiff, acknowledges the provision of three copies of the Release to her and establishes her rights with respect to the Release, stating:

Please note, as stated in the Release Agreement, that you have the right to consult with an attorney and 21 days from this date to review the Release Agreement. Additionally, if you decide to execute the attached Release Agreement, you will have seven (7) days following the execution of the Release Agreement to revoke the same.
(emphasis added). Plaintiff acknowledged receipt of the Notice and the Release by signing the Notice. The Release is a four-page typewritten document which provides that Plaintiff will receive a severance pay of $1,400 if she signs it. Although the Release acknowledges that Turn On owes Plaintiff one week's vacation pay, amounting to $700, it does not make receipt of that amount contingent on the execution of the Release:
2. Severance Pay. (a)(i) Bachiller acknowledges that the Company has no obligation to make the Severance payment set forth hereunder. In consideration of Bachiller entering into this agreement, together with its Release, Confidentiality, Non-Disparagement and other provisions, the Company agrees to pay Thousand Four Hundred Dollars ($1,400.00) less any and all appropriate Federal, State and City taxes required to be deducted (the "Severance Payment"). The Severance Payment will be paid to Bachiller provided she has not exercised her right to cancel this Agreement under Article 5 of this Agreement.
(ii) Additionally, the Company acknowledges that it owes Bachiller one (1) week's vacation pay of Seven Hundred Dollars ($700.00), which will be paid to Bachiller by the Company minus the appropriate deductions.
(b) This will confirm that the Company shall have absolutely no obligation to make the Severance Payment set forth in 2(a)(i) above and Bachiller shall not be entitled to any Severance Payment unless and until this Agreement with its Release and Confidentiality provisions and Non-Disparagement is deemed effective and enforceable as stated above.
(emphasis added).

The Release also sets forth in detail the claims and causes of action that Plaintiff would relinquish if she signed the Release:

Bachiller hereby irrevocably and unconditionally releases, waives and forever discharges the Company and its successors, assigns, and all its past and present directors, officers, shareholders, consultants, agents, employees, representatives, attorneys, fiduciaries (hereafter the "Other Releasees") from any and all actions, causes of action, claims, demands, damages, right, remedies and liabilities (hereinafter referred to collectively as "Bachiller's Claims") of whatsoever kind or character, in law or equity, suspected or unsuspected, past or present, that she has ever had, may now have or may later assert, against the Company and the other Releasees or any of them, including, but not limited to, claims arising out of or related to Bachiller's employment and positions with the Company or her termination of employment and those positions, from the beginning of time to the last time of Bachiller's employment, including, without limitation: (i) any and all claims arising from any federal, state and/or local labor or civil rights laws, including, without limitation, the federal Civil Rights Acts of 1866, 1871, 1964 and 1991, the Age Discrimination in Employment Act of 1967, as amended by, inter alia, the Older Worker Benefit Protection Act of 1990 . . . and New York State and New York City Human Rights laws and Labor Laws . . .; (ii) any and all claims arising out of any claim for . . . any age, sex, race or other type of discrimination or harassment or related claims, including federal, state and/or local laws.
Plaintiff signed the Release on the day she was discharged and claims she did so because Ragabeer told her she had to sign it in order to receive her vacation pay. Plaintiff consulted an attorney sometime after her discharge. On or about October 22, 1999, Plaintiff's attorney contacted Turn On seeking to revoke the Release. The seven-day time period permitting revocation had already expired.

DISCUSSION

Defendants contend that Plaintiff waived the claims asserted in this action by executing the Release. Plaintiff argues that the Release is invalid because Defendants did not provide her with adequate time to consider the agreement.

Under the Older Workers' Benefit Protection Act of 1990 ("OWBPA"), 29 U.S.C. ยง 626(f), an individual's waiver of claims under the Age Discrimination in Employment Act of 1967 ...


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