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February 19, 2004.


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


Plaintiff Elizabeth T. Farrell, proceeding pro se, has brought this action pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-634, alleging that her former employer, defendant Title Associates, Inc., discriminated against her on the basis of her age when it terminated her employment in September 2002. Title Associates has moved to dismiss the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that in December 2002 Farrell entered into an agreement releasing any age discrimination claims. The parties have consented to exercise of jurisdiction over this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the following reasons, the motion is converted into one for summary judgment and granted.


  A. The Complaint

  The complaint alleges as follows: Farrell was employed by Title Associates from September 1995 until September 2002. See Schedule A ("Schedule A") (annexed to Complaint, submitted to Pro Se Office on May 30, Page 2 2003, and filed on June 24, 2003 (Docket #2) ("Complaint")), at 1-2. During her seven years of employment, Farrell was responsible for setting up and managing the Production Department. Id. at 1. On September 26, 2002, Jeffrey Gurren, the Chief Executive Officer of Title Associates, fired Farrell. Id. at 1-2. When he did so, Gurren screamed at Farrell and demeaned her in front of her colleagues. Id. at 2. At the time, Farrell was 45 years old and her termination was motivated by her age. Id.; Complaint ¶ 7. By firing Farrell without first speaking to her privately about complaints made by fellow employees, Title Associates treated Farrell differently from younger employees, who were routinely spoken to privately about complaints. Schedule A at 1-2. The two employees who replaced Farrell were 23 and 27 years old. Id.

  B. The Release

  On December 16, 2002, Farrell signed a release of claims in exchange for a monetary payment. The release provided as follows:
In exchange for Title Associate's [sic] payment, except for a claim for unemployment insurance benefits, you RELEASE Title Associates, its parents, subsidiaries, affiliates, officers, directors, employees and agents from ANY AND ALL CLAIMS you may have, known or unknown, RELATED TO YOUR EMPLOYMENT, YOUR SEPARATION FROM EMPLOYMENT OR OTHERWISE, from the beginning of time through the date you sign this Agreement.
You understand and agree that you are RELEASING Title Associates . . . from . . . any and all claims for discrimination . . . on the basis of . . . age.
See Letter from Jeffrey Gurren to Elizabeth Farrell, dated December 5, 2002 ("Release") (annexed as Ex. 1 to Affirmation of Andrew P. Marks, dated August 4, 2003 ("Marks Affirm.") (annexed as Ex. A to Memorandum of Law in Support of Defendant's Motion to Dismiss, filed August 7, 2003 (Docket #5) ("Def. Mem."))), ¶ 5. The Release provided that Title Associates Page 3 would pay Farrell a lump sum payment of $2115.38 minus taxes and other withholding amounts, as required by law. Id. ¶ 2.

  Farrell concedes that she executed the Release but says that she did so only "because [she] thought that if [she] did not execute the Release [her] Employer would challenge [her] unemployment compensation." Affirmation of Elizabeth T. Farrell, filed August 21, 2003 (Docket #7) ("Farrell Affirm."), ¶ 2(B). She states she was offered two weeks' severance pay at the time of her termination but her attorney told her that she would receive the severance check only if she signed a waiver of her rights to sue. Id. As she was "about to be evicted" and "needed money for groceries," she signed the waiver. Id.


  Title Associates has moved to dismiss the complaint under Fed.R. Civ. P. 12(b)(6). See Notice of Motion, filed August 7, 2003 (Docket #4). The sole basis for this motion is the Release signed by Farrell. See Def. Mem. at 1-2. Because Title Associates has presented documents outside of the complaint in support of its motion, the Court must first decide whether to treat the motion as one for summary judgment under Fed.R.Civ.P. 56(c).

  Fed.R.Civ.P. 12(b) provides that "[i]f . . . matters outside the pleading are presented to and not excluded by the court, [a] motion [to dismiss under 12(b)(6)] shall be treated as one for summary judgment." See also Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989) ("On a motion to dismiss, the district court must limit itself to a consideration of the facts alleged on the face of the complaint and to any documents attached as exhibits or incorporated by reference." (citations omitted)). A complaint is deemed to include "documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, Page 4 88 (2d Cir. 2000) (citing Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)).

  Because Farrell is proceeding pro se, affording her notice and an opportunity to respond is a particular concern. See, e.g., Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983); see also Fed.R.Civ.P. 12(b) ("[A]ll parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."). "The essential inquiry is whether the [plaintiff] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985), cert. denied, 475 U.S. 1015 (1986).

  Here, Title Associates' motion papers have put Farrell on notice that it is seeking to dismiss the complaint exclusively on the basis of the effect of the Release. See Def. Mem. at 6-10. In addition, Farrell understands that this is the basis for Title Associates' motion inasmuch as she filed two separate affidavits — one after Title Associates' initial motion papers were filed and the other after its reply brief was filed — addressing the issue of the Release. See Farrell Affirm.; Reply Memorandum in Further Support to Dismiss Defendant's Motion to Dismiss, filed October 22, 2003 (Docket #9) ("Reply Mem."). These affidavits offer the specific facts that Farrell relies upon in support of her argument that the Release was invalid. Farrell Affirm. ¶¶ 2(A)-(B); Reply Mem. ¶ 2. Thus, Farrell has had a full opportunity to address any factual issues raised in Title Associates' papers and converting the motion to one for summary judgment is appropriate. Page 5

  Summary judgment may not be granted unless "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A material issue is a "dispute[] over facts that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Thus, "`[a] reasonably disputed, legally essential issue is ...

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