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.
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
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.
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
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
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. 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,
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.
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 ...