Bryant v. Rego Enterprises, LLC et al
ORDER granting 15 Motion for Summary Judgment. The Clerk is directed to enter judgment, dismissing the complaint against REL and Greg Wetanson with prejudice and without prejudice as to Herrera. Ordered by Judge Brian M. Cogan on 12/23/2016. (Cogan, Brian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against :
REGO ENTERPRISES, LLC doing business :
as DALLAS BBQ, GREG WETANSON, and :
DECISION AND ORDER
16 Civ. 5131 (BMC)
COGAN, District Judge.
Plaintiff has brought claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. (“Title VII”), 42 U.S.C. § 1983, 42 U.S.C. § 1981, the New York State Human
Rights Law, N.Y. Exec. Law §§ 290-301 (“NYSHRL”), and the New York City Human Rights
Law, N.Y.C. Admin. Code §§ 8-101 to 8-703 (“NYCHRL”), against Rego Enterprises, LLC
doing business as Dallas BBQ (“REL”), Greg Wetanson, the owner of REL, and Alejandro
Herrera, a former manager at Dallas BBQ, arising from the alleged assault and battery, sexual
harassment, gender discrimination, and hostile work environment caused by defendant Herrera.
The case is before me on the motion for summary judgment of REL and Wetanson (the
“REL defendants”). 1 The REL defendants argue that plaintiff’s action is barred by the release
she signed in connection with her departure from her employment and the severance package she
received. Thus, although plaintiff’s complaint is one sounding in civil rights, the issue before me
is one of contract. For the reasons that follow, the REL defendants’ motion is granted.
Defendant Herrera has not appeared in this matter. A review of the docket shows no certificate of service. It has
been over 90 days from the filing of the complaint, which means plaintiff has failed to timely effect service under
Federal Rule of Civil Procedure 4(m). The claims against him are dismissed.
The following facts are taken from the parties’ Local Rule 56.1 statements, specifically
the facts that the parties have deemed undisputed. I have noted where there are disputes.
Plaintiff had been employed as a manager overseeing customer service at the Rego Park
branch of Dallas BBQ. On May 19, 2016, she was completing her work in an office in the Rego
Park branch when defendant Herrera groped her buttocks. Plaintiff made an internal complaint
regarding the incident on May 27. She spoke with a few individuals after making the complaint,
During a meeting on June 2 with Eric Levine, the Director of Human Resources of REL,
and Wetanson, plaintiff advised them that she did not wish to continue working for Dallas BBQ
following the incident with Herrera. What followed in the days between June 3 and June 9 were
conversations between plaintiff and Levine negotiating her departure from Dallas BBQ. 2
On June 3, Levine received an e-mail from plaintiff in which she stated: “Starting today, I
will take my vacation and look forward to discussing a golden parachute.” The next day,
plaintiff emailed Levine and summarized the events giving rise to the current situation; in
relevant part, she summarized the previous day in the following way: “The next day, June 3,
2016, I called Greg Wetanson and proposed that I use my earned vacation days and within that
time, maybe they can consider a severance package because of the circumstances and my
discomfort of working due to the sexual offense crime.”
On June 5, plaintiff and Levine spoke on the telephone about a severance package, a
conversation that was recorded. During the phone call, plaintiff and Levine spoke about
Curiously, in plaintiff’s response to defendant’s Local Rule 56.1 statement, she denies the statement of fact that
“[she] and Levine negotiated the terms of her severance agreement and debt forgiveness between June 3, 2016 and
June 9, 2016,” but she admits each and every succeeding statement of fact that comprised the negotiations.
compensation. Plaintiff and Levine spoke again that next day on June 6 via telephone. During
that conversation, which lasted nearly 23 minutes, the following was stated:
Plaintiff: And I do not, I don’t want to take legal action against the company. I
don’t want to. That’s why I’m putting everything on the table so we can bow out
gracefully and we can tap out gracefully.
Plaintiff: Okay. It’s a lawsuit, Eric. It’s a very serious lawsuit. It’s a lawsuit not
only of sexual harassment and discrimination – for the mere fact that I’m over 40
years old in the workplace and the proper channels weren’t taken – it’s a very
serious lawsuit, and I’m just gonna be very honest. And I don’t want to do that…
Plaintiff: Are you aware of like what the purpose of a severance package or a
golden parachute is? Are you aware of the concrete definition, what it’s in place
Levine: A severance package is when you leave a job and sometimes you get one
week per year or two weeks per year, depending on the situation.
Plaintiff: Okay, that’s a severance package; a golden parachute is for management.
Levine: You use that term golden parachute; we’re not using that term. This is not
lotto, nobody’s using that term –
Plaintiff: No, I’m I’m –
Levine: You’re using that term.
Plaintiff: No, but it’s a term. Just like a severance package. It’s a, it’s a, it’s an
escalated version of a severance package in situations [inaudible] in situations that
are similar to mine where there is a possibility of legal action being taken or there
is a merger or there is some type of company buyout, but it’s some significant
situation where it would be better for the employee and the employer to part ways,
okay? And then I would then, therefore, forfeit my right to take legal action –
Levine: I got you. I got you. We’re on the same page. We’re talking [inaudible]
Plaintiff: So now. Okay, so now – if I have the ability and I have all the credibility
to sue the company for an excess of maybe 7, 8, 9 million, which I could very easily
Plaintiff: I don’t want to do that. So, therefore, I ought to resort to a golden
parachute. And I say you know what, I would be satisfied with about $250,000 to
After that, Levine stated to plaintiff that they were not on the same page in terms of payout, and plaintiff ultimately reduced her figure, stating, “I won’t sell myself short. I won’t. . . . I
will not settle for 20 weeks. I need at least a whole year’s salary.” Levine then asked plaintiff if
she would need benefits, then stating that she is going to need COBRA benefits given the fact
that she is a parent and that benefits are expensive. Thereafter, plaintiff stated that she wanted
benefits to be part of her severance package.
Plaintiff and Levine spoke again that next day on June 7 via telephone. Levine updated
plaintiff on the status of his negotiations with upper management regarding the terms negotiated
during their previous day’s phone call. He told her that he had negotiated for her six months’
salary and six months of benefits. Plaintiff then asked whether there would be loan forgiveness,
as plaintiff had borrowed money from several individuals, amounting to over $7,800.
Plaintiff and Bryant spoke again later on June 7 via telephone. During that conversation,
the following was stated:
Plaintiff: . . . My hope was that, you know, initially if I could at least get like a
year’s salary, you know, and I see that that’s not – we’re not in the same ball park.
Um. Just taking into consideration that we aren’t meeting on those ends, can we
do it – let’s say $30,000 net.
Levine: $30,000 net. Could I call the CFO and talk about that? Okay?
Plaintiff: That’s fine. Yeah. That’s fine.
Plaintiff and Levine spoke again the following day on June 8 by telephone. During that
conversation, plaintiff sought an update on when she would see a draft of a letter memorializing
their agreement. Levine responded, “Oh yeah, no problem, we made the deal yesterday. I have
it being written up.” Plaintiff then asked for the letter to include a term for the money to be
wired into her account: “Okay, can we draft in the letter for it to be wired into my account?”
Plaintiff and Levine spoke again the following day on June 9 by telephone. In relevant
part, plaintiff asked whether the money could be wired into her account by June 16.
The following day, on June 10, Levine met plaintiff and her husband at a Starbucks,
during which time he provided her with the Severance Agreement and General Release (together,
the “Agreement”). Plaintiff denies receiving the whole Agreement at that precise moment;
instead, she avers that she was only shown the first and last pages and did not review the entire
Agreement before signing.
The Severance Agreement outlined the following terms of plaintiff’s departure from her
employment at Dallas BBQ:
severance pay in the total amount of Thirty Five Thousand Eight Hundred Fifty
Two and 08/100 Dollars ($35,852.08), less normal tax and payroll deductions. The
net amount to be paid to you will be $30,000. Also, you are relieved from repaying
the salary advances from petty cash totaling $2,290. You understand and
acknowledge that all rights and claims waived and released herein are in exchange
for these payments and other consideration provided in this Agreement to which
you otherwise would not be entitled and which are greater than benefits normally
given by the Company to terminated employees.
This language appears on the first page of the Agreement, which plaintiff admits she received
prior to signing the Agreement’s signature page.
The Severance Agreement had a general release clause, which stated, in relevant part
that, that plaintiff “agree[s] to execute and be bound by the terms of the General Release annexed
to and made a part of this Agreement,” and that she “understand[s] the payments and benefits
provided in this Agreement are made in consideration of the waiver and release of claims as
provided in the General Release.” Plaintiff denies seeing this language before signing the
Agreement, asserting that she was only given the first and last pages of the Agreement, and this
language appears on the second page of the Agreement.
The Severance Agreement also contained a representations and acknowledgement clause,
where plaintiff warranted that she “carefully read and understand[s] the provisions of this
Agreement and the incorporated General Release.” Plaintiff denies seeing this language before
signing the Agreement, again alleging that she was only given the first and last pages of the
Agreement, and this language appears on the second page of the Agreement.
On the last page of the General Release, which plaintiff admits she received (of course
she must admit this, as the last page is the signature page), the following paragraph appears in all
capital letters above where plaintiff signed her name:
RELEASOR ACKNOWLEDGES SHE FULLY UNDERSTANDS THE
CONTENTS OF THE LETTER AGREEMENT AND GENERAL RELEASE
AND EXECUTES THEM FREELY AND VOLUNTARILY, WITHOUT
DURESS, COERCION OR UNDUE INFLUENCE. THIS RELEASE AND THE
LETTER AGREEMENT MAY BE REVOKED WITHIN SEVEN (7) DAYS
FOLLOWING THEIR EXECUTION AND THEY SHALL NOT BECOME
EFFECTIVE OR ENFORCEABLE UNTIL THE SEVEN (7)-DAY
REVOCATION PERIOD HAS EXPIRED. RELEASOR FURTHER
ACKNOWLEDGES SHE HAS HAD SUFFICIENT TIME AND
OPPORTUNITY PRIOR TO SIGNING THE GENERAL RELASE [sic] AND
LETTER AGREEMENT TO CONSIDER THEIR CONTENT AND
IMPLICATIONS AND TO CONSULT WITH ANYONE OF HER CHOOSING
INCLUDING AN ATTORNEY.
IN WITNESS WHEREOF, RELEASOR has signed this General Release this 10th
day of June, 2016.
On that same day, plaintiff was given her loan forgiveness letter, on which she wrote
comments: “BRENDA $3395;” “KEITH IRUNR - 710.00;” “SHAQ - $200.00;” “JOHN
BRUNO - $80.00;” “PETTY CASH - 2290.00 (QUEENS);” and “ “___” [likely meant to denote
same as above, that is, ‘PETTY CASH’] 1145 - (BRONX) - COOP CITY.” Plaintiff avers that
she wrote the comments at the insistence of Levine, but in any regard, the tabulation of these
figures indicate loan forgiveness valued at over $7800.
On that same day, plaintiff sent an email to Levine, stating: “Please waive my wait period
of 7 days and deposit funds into account as soon as possible. Regards, Racquel Bryant.” Plaintiff
admits that she sent the email, but avers that she did so at the instruction of Levine. In an e-mail
plaintiff sent five days later, she stated: “Gentlemen, I wish this all didn’t happen. I really
appreciate the life experience the company has given. I wish you all the best. Yours Truly,
The payment agreed to by the parties was directly deposited into plaintiff’s bank account
on June 16, 2016. Five days after receiving the funds via direct deposit and eleven days after
signing the Agreement, plaintiff sent an email stating the following: “This serves as formal
notice to the company that today June 21, 2016, I Racquel Bryant am revoking the General
Release and Waiver and Agreement signed June 10, 2016.” Levine informed plaintiff that she
was too late.
Prior to commencing this action, plaintiff filed a charge of employment discrimination
with the United States Equal Employment Opportunity Commission (“EEOC”), alleging
circumstances of discrimination based on sex and retaliation. The EEOC issued a right to sue
letter, and plaintiff commenced this action.
“[S]ummary judgment may be granted only if there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. In determining whether
there is a genuine dispute as to a material fact, [the court] must resolve all ambiguities and draw
all inferences against the moving party.” Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135
(2d Cir. 2013) (alteration, citations, & internal quotation marks omitted). In ruling on a motion
for summary judgment, a district court “may rely on any material that would be admissible at a
trial.” Lyons v. Lancer Ins. Co., 681 F.3d 50, 57 (2d Cir. 2012) (quotation marks omitted); see
also Call Ctr. Techs., Inc. v. Grand Adventures Tour & Travel Publ’g Corp., 635 F.3d 48, 52 (2d
Cir. 2011) (“[T]he non-moving party must come forward with admissible evidence sufficient to
raise a genuine issue of fact for trial . . . .” (internal quotation marks omitted)). A dispute is not
“genuine” if no reasonable jury “could return a verdict for the nonmoving party.” Nabisco, Inc.
v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986)).
The Agreement Is Valid
Plaintiff does not dispute that she signed the Agreement, which includes a waiver of her
claims under Title VII. Instead, she attacks her execution of the Agreement as having been made
without sufficient knowledge. “[A] release is a species of contract law and ‘is governed by the
principles of contract law.’” Golden Pac. Bancorp v. FDIC, 273 F.3d 509, 514 (2d Cir. 2001)
(quoting Bank of Am. Nat’l Trust & Sav. Ass’n v. Gallizeau, 766 F.2d 709, 715 (2d Cir. 1985)).
“’Where the language of a release is clear, effect must be given to the intent of the parties as
indicated by the language employed.’” Wang v. Paterson, No. 07-2032, 2008 WL 5272736, at
*4 (S.D.N.Y. Dec.18, 2008) (quoting Shklovskiy v. Khan, 273 A.D.2d 371, 372, 709 N.Y.S.2d
208, 209 (2d Dep’t 2000)). Under New York law, “[a] release will not be treated lightly, and
will be set aside by a court only for duress, illegality, fraud, or mutual mistake.” Rivera v.
Sovereign Bank, 976 F. Supp. 2d 270, 286 (E.D.N.Y. 2013) (quoting Shklovskiy, 273 A.D.2d at
372, 709 N.Y.S.2d at 209 (internal quotation marks omitted). “A natural person who manifests
assent to a transaction has full legal capacity to incur contractual duties thereby unless he is
(a) under guardianship, or (b) an infant, or (c) mentally ill or defective, or (d) intoxicated.”
Restatement (Second) of Contracts § 12(2).
Here, there are no allegations of duress, illegality, fraud, mutual mistake, or any
incapacity on the part of plaintiff, like mental illness or intoxication. Instead, plaintiff argues
that she was not given a chance to read the entire Agreement before signing and did not know the
rights she was releasing, and then somehow that she only got around to reading the Agreement in
full eleven days after signing it, well after the seven days she had to revoke the Agreement and
after she received the money that she negotiated as part of her severance package.
In her opposition, plaintiff argues that she did not know what she was signing away and
that she was not told she was waiving her right to sue. In the hopes of arguing something akin to
incapacity, plaintiff makes the following averments in her affidavit: (i) that human resources
never informed her that she was waiving her rights to litigate her claims nor that she should
consult with an attorney prior to signing the Agreement; (ii) that she did not receive the entire
Agreement prior to her executing it; (iii) that she only had five minutes to review the documents
before signing, and (iv) that she did not understand the significance of the seven-day revocation
The facts of this case belie plaintiff’s averments, and no reasonable jury could find
otherwise. In fact, plaintiff’s own recorded statements show her sworn statements in opposition
to this motion to be affirmatively false. First, plaintiff made several statements that reflect a
keen awareness and understanding that she was negotiating a severance package consisting of
cash and benefits in return for the waiver of her legal rights. I need not repeat them all as they
are set forth above, but one excerpt mandates the conclusion that plaintiff knew what she was
doing. Plaintiff raised the term “golden parachute,” which Levine was unaware of, and plaintiff
explained that it is “an escalated version of a severance package . . . in situations that are similar
to mine where there is a possibility of legal action being taken . . . where it would be better for
the employee and the employer to part ways, okay? And then I would then, therefore, forfeit my
right to take legal action.” It is baffling that plaintiff avers in her affidavit that she did not know
she was releasing her legal rights when it was she that raised the “golden parachute” and defined
it as the quid pro quo for a forfeiture of the right to bring a legal action.
“[A] self-serving, contradictory affidavit fails to raise a triable issue of fact when it
conflicts with documentary evidence.” Christiana Bank & Trust Co. v. Dalton, No. 06-CV-3206,
2009 WL 4016507, at *4 (E.D.N.Y. Nov. 17, 2009); Dzanoucakis v. Chase Manhattan Bank,
USA, No. 06-CV-5673, 2009 WL 910691, at *8 (E.D.N.Y. Mar. 31, 2009) (where the
“uncontroverted record clearly supports a [particular] finding,” then “[p]laintiff’s own selfserving declaration to the contrary is insufficient, under the circumstances, to raise a triable issue
of fact”). I cannot credit plaintiff’s self-serving affidavit in the face of overwhelming evidence
of entirely contradictory statements by plaintiff, because if a jury were to credit such testimony, I
would have to find that verdict unreasonable and set it aside. Plaintiff had a clear understanding
as to the terms of her severance package; she negotiated the terms with an eye towards the
forfeiture of her legal rights, and she did not need Human Resources to inform her of a fact that
her own statements prove that she already knew.
With respect to her attempts to excuse her failure to timely revoke the Agreement, those
averments are also unavailing. Plaintiff now avers that she did revoke the contract on the
seventh business day after signing it. As an initial matter, the Court notes that during the premotion conference, plaintiff provided an entirely different reason in favor of her having made a
timely revocation: She stated that she thought the revocation period was seven days from receipt
of payment, which occurred on June 16, making her June 21 revocation timely. In opposition to
the motion, in contrast, she has sworn that in fact she thought the revocation period was seven
business days from signature, which also would make her revocation timely. But her excuses
beg the question. She cannot contend that she did not understand the significance of a revocation
period, but also argue that she thought she was complying with the revocation period.
Finally, plaintiff had seven full days with the Severance Agreement and General Release.
Her arguments predicated on the alleged brief five minutes she had before execution or that she
only saw the first and last pages fall flat because of those seven days. She had the time to read
the Agreement, which is only seven pages, five pages comprising the Severance Agreement and
two pages comprising the General Release.
Plaintiff Knowingly and Voluntarily Released her Discrimination Claims Under
The analysis does not end there, however. The particular release of her discrimination
claims triggers additional analysis under federal law: The effectiveness of a release of a claim of
employment discrimination under Title VII depends on whether the employee’s release was
“voluntary and knowing.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n.15, 94 S. Ct.
1011 (1974); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 438 (2d Cir. 1998). To
determine whether plaintiff’s release was given voluntarily and knowingly, the Second Circuit
uses a “totality of circumstances” test. Livingston, 141 F.3d at 438. Courts consider several
factors in this analysis, including:
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.
Livingston, 141 F.3d at 438 (internal quotation marks omitted). Applying the Livingston factors
to the facts here establishes that plaintiff’s release of her Title VII claims was voluntary and
The first factor favors validity of the release because plaintiff has sufficient education and
business experience to understand the Agreement. Plaintiff is a graduate of the University of
Illinois – Urbana with a degree in speech communications. She had previously worked in the
pharmaceutical industry as a saleswoman before her term as a manager at Dallas BBQ. This
demonstrates that plaintiff is educated and has business experience.
The second factor also favors validity because as discussed above, plaintiff had access to
the Agreement for seven days before she had to revoke it, irrespective of the time she had before
signing the Agreement.
The third factor also favors validity. Even though the Agreement was drafted and
provided by the REL defendants, plaintiff had significant input into the terms of the Agreement.
She spoke with an agent of the REL defendants almost every day between June 3 and June 9,
negotiating the cash amount, benefits, and loan forgiveness.
The fourth factor favors validity, as well, because the Agreement and the release of
discrimination claims are clear. The Agreement in multiple places clearly stated that plaintiff
was releasing her employer of liability. Further, the General Release specifically references
federal and state employment discrimination statutes and was only two pages long, seven pages
for the whole Agreement.
The fifth factor does not favor validity because plaintiff was not represented by counsel,
but this factor does not help her because she had ample opportunity to consult with an attorney,
either while she was negotiating the terms of her severance or in the seven-day revocation period
during which she had the Agreement, and there is nothing so complicated about this agreement,
or, as shown above, so unsophisticated about this plaintiff that an attorney’s advice was essential
to her understanding.
Finally, the sixth factor also favors validity of the Agreement, as plaintiff was not entitled
to severance pay, and the Agreement was clear on this fact. The Agreement is unequivocal:
“You understand and acknowledge that all rights and claims waived and released herein are in
exchange for these payments and other consideration provided in this Agreement to which you
otherwise would not be entitled and which are greater than benefits normally given by the
Company to terminated employees.”
Plaintiff Knowingly and Voluntarily Released her Discrimination Claims Under
State and Municipal Law
Similar to its federal counterpart, in evaluating a waiver of claims of employment
discrimination, New York law looks at whether a release is “knowingly and voluntarily entered
into,” as well as whether the agreement is “clear and unambiguous on its face.” Skluth v. United
Merchants & Mfrs., Inc., 163 A.D.2d 104, 106, 559 N.Y.S.2d 280, 282 (1st Dep’t 1990). This
analysis applies to plaintiff’s waiver of her claims under NYSHRL and NYCHRL. See e.g.,
Johnson v. Lebanese Am. Univ., 84 A.D.3d 427, 922 N.Y.S.2d 57 (1st Dep’t 2011) (applying
Skluth to claims under both NYSHRL and NYCHRL but finding the waiver invalid). However,
rather than looking at the “totality of the circumstances,” New York law relies on principles of
contract law, a standard that is less stringent than the one that applies to the waiver of
discrimination claims under federal law. See e.g., Livingston v. Bev-Pak, Inc., 12 F. Supp. 2d
242 (N.D.N.Y. 2000).
As has already been discussed, under contract principles, plaintiff is bound by the release
she signed. She pleaded no fraud, mutual mistake, duress, or illegality, nor any form of
incapacity. Moreover, because the federal “totality of the circumstances” analysis is more
stringent and because her release was knowing and voluntary under the more stringent analysis,
it follows that her release would be knowing and voluntary under New York law. See, e.g.,
Loksen v. Columbia Univ., No. 12 CIV. 7701, 2013 WL 5549780, at *6 (S.D.N.Y. Oct. 4, 2013)
(dismissing state law employment discrimination claim after finding release of federal claims
satisfied the totality of circumstances test).
In sum, “[g]iven the clear and unambiguous language contained in the General Release;
the strong public policy in favor of enforcing such a release; and the absence of any allegations
indicating that the General Release was a result of duress, illegality, fraud, or mutual mistake,”
the terms of the General Release will be upheld. See Lambertson v. Kerry Ingredients, Inc., 50 F.
Supp. 2d 163, 170 (E.D.N.Y. 1999).
The REL defendants’ motion for summary judgment is granted. The Clerk is directed to
enter judgment, dismissing the complaint against REL and Greg Wetanson with prejudice and
without prejudice as to Herrera.
Digitally signed by Brian
Dated: Brooklyn, New York
December 23, 2016
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