Sowe v. Pall Corporation

Filing 26

ORDER granting 20 Motion for Summary Judgment. Judgment shall be entered in favor of defendant.. Signed by Senior Judge Frederick J. Scullin, Jr on 8/14/2018. (bjw, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
AMADOU SOWE,
Plaintiff,
v.

3:17-CV-449
(FJS/DEP)

PALL CORPORATION,
Defendant.
________________________________________________
APPEARANCES

OF COUNSEL

OFFICE OF EDWARD E. KOPKO
308 North Tioga Street, 2nd Floor
Ithaca, New York 14850
Attorneys for Plaintiff

EDWARD E. KOPKO, ESQ.

SEYFARTH SHAW LLP
620 Eighth Avenue
New York, New York 10018
Attorneys for Defendant

STACEY BENTLEY, ESQ.
RAYMOND C. BALDWIN, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court is Defendant's motion for summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure. See Dkt. No. 20.1

1

The Court scheduled oral argument regarding this motion for August 10, 2018, in
Albany, New York. See Motion Scheduling Notice dated July 3, 2018. However, due to some
confusion about the location, Plaintiff's counsel failed to appear. Therefore, the Court
determined that, rather than reschedule the hearing date, it would decide the motion based on the
parties' submissions.

II. BACKGROUND
Plaintiff commenced his employment with Defendant in 1988; and, at all times during his
employment, Plaintiff worked at Defendant's facility in Cortland, New York. Plaintiff's last
position with Defendant was "Principal Scientist" in the "Central Technology Organization
("CTO"), one of Defendant's many business units. From November 1, 2015, through the end of his
employment with Defendant, Plaintiff's managers were Thomas Sorensen, Director, Research &
Development, and Eilidh Bedford, Vice President, Research & Development. At all relevant times,
there was a Human Resources ("HR") Office at Defendant's Cortland Facility, in which Melanie
Carr was the HR Director and Pamela Denmark was the HR Manager.
On November 11, 2015, Plaintiff met with Mr. Sorensen, Ms. Denmark, and Scott Hopkins,
Senior Director, Research & Development, at which time they informed him that his position would
be eliminated the following month. In fact, in December 2015, Defendant effected a reduction in
force ("RIF") within its CTO, resulting in the separation of thirteen CTO employees, one of whom
was Plaintiff. During the November 11, 2015 meeting, management and HR also explained to
Plaintiff that, before the end of the year, he would receive a severance package offer for his
consideration.
On December 23, 2015, Mr. Sorensen and Ms. Denmark met with Plaintiff and handdelivered a proposed Separation and General Release Agreement ("Separation Agreement"), along
with an RIF Memo, which included a chart of impacted and non-impacted CTO employees. The
Separation Agreement expressly provided as follows:
Plaintiff's last day of employment with Defendant was January 1,
2016;
In exchange for his execution and non-revocation of the Separation
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Agreement, Plaintiff would receive monetary consideration to which
he was not otherwise entitled;
In exchange for the monetary consideration, Plaintiff would be
"unconditionally and irrevocably releas[ing], waiv[ing],
discharg[ing], and giv[ing] up" all "actions, charges, controversies,
demands, causes of action, suits, rights, and/or claims whatsoever for
. . . damages," against [Defendant], through the date he executed the
agreement, including those arising under "the Age Discrimination in
Employment Act ("ADEA"), the Older Workers' Benefit Protection
Act . . . [and] the New York State Human Rights Law" and including
claims "of which [Plaintiff] is not aware; and
The Settlement Agreement would be effective on the 8th day after
Plaintiff executed it if he did not revoke his signature by that date.
See generally Dkt. No. 20-7, Separation and General Release Agreement.
In addition, the Separation Agreement required the following representations from Plaintiff:
Plaintiff "had sufficient opportunity to consider [the Separation]
Agreement";
Plaintiff "read [the Separation] Agreement";
Plaintiff "underst[ood] all the terms and conditions";
Plaintiff "entered into [the Separation] Agreement of [his] own free
will and volition"; and
Plaintiff had 45 days to review the Separation Agreement and RIF
Memo and was "free to use as much or as little of the 45-day period
as he . . . wishe[d] or consider[ed] necessary before deciding to sign
[the Separation] Agreement."
See id. at ¶ 12(A).
The Separation Agreement clearly "advised and encouraged" Plaintiff to "consult with his
own independent counsel before signing," see id., an instruction Plaintiff admits Ms. Denmark also
verbally provided to him during their December 23, 2015 meeting. Plaintiff met with his attorney,
Edward Kopko, who represents him in this action, regarding the proposed Separation Agreement.
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Thirty-seven days after receiving the Separation Agreement, and after conferring with his
attorney, Plaintiff signed and returned the Separation Agreement by hand-delivering his signed
Separation Agreement to Ms. Denmark, at Defendant's Cortland facility, on January 29, 2016.
Although the Separation Agreement expressly provided a seven-day revocation period, Plaintiff
never revoked his signature. Plaintiff received the full monetary consideration Defendant promised
him in the Separation Agreement, and he never returned that consideration to Defendant.
On April 24, 2017, Plaintiff filed his complaint in this action. See Dkt. No. 1 ("Complaint").
In his complaint, Plaintiff asserted the following causes of action: (1) "violat[ion of] 42 U.S.C.
§ 1983 by violating the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq."; (2)
"violat[ion of] the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq."; (3) violat[ion
of] New York Executive Law, § 296, related to age discrimination"; (4) violat[ion of] the OWBPA,
§ 626(f)[(1)](F)(ii)"; (5) "violat[ion of] the OWBPA, § 626(f)[(1)](H)(i)(ii)"; (6) violation of "29
C.F.R. Section 1625.22(a)(3)"; (7) fraudulent inducement; and (8) "inflict[ion of] mental pain and
anguish." See Complaint at ¶¶ 65-72.2
After the parties completed discovery on the issues relevant to the validity and
enforceability of the Separation Agreement, Defendant filed the pending motion for summary
judgment. See Dkt. No. 20. Plaintiff filed opposition to the motion, see Dkt. No. 21, to which

2

Defendant notes that, after Plaintiff filed his complaint, "[t]he parties and the Court
agreed that the case would proceed most efficiently if the parties first addressed the issue of
whether Plaintiff previously released the claims he now asserts. To this end, the Court
temporarily stayed merits-based discovery and motion deadlines, and permitted bifurcated
discovery, with the initial phase focused upon issues relevant to the validity and enforceability of
the Separation Agreement." See Dkt. No. 20-1 at 5.
References to page numbers of documents in the record are to the page numbers that the
Court's Electronic Case Filing system generates.
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Defendant filed a reply, see Dkt. No. 22.

III. DISCUSSION
A.

Preliminary matters
1. Plaintiff's response to Defendant's Statement of Material Facts
Local Rule 7.1(a)(3) provides as follows:
Any motion for summary judgment shall contain a Statement of
Material Facts. The Statement of Material Facts shall set forth, in
numbered paragraphs, each material fact about which the moving
party contends there exists no genuine issue. Each fact listed shall set
forth a specific citation to the record where the fact is established.
The record for purposes of the Statement of Material Facts includes
the pleadings, depositions, answers to interrogatories, admissions and
affidavits. It does not, however, include attorney's affidavits. Failure
of the moving party to submit an accurate and complete Statement of
Material Facts shall result in a denial of the motion.
**********
The opposing party shall file a response to the Statement of
Material Facts. The non-movant's response shall mirror the movant's
Statement of Material Facts by admitting and/or denying each of the
movant's assertions in matching numbered paragraphs. Each denial
shall set forth a specific citation to the record where the factual
issue arises. The Court shall deem admitted any properly supported
facts set forth in the Statement of Material Facts that the opposing
party does not specifically controvert. The non-movant's response
may also set forth any additional material facts that the non-movant
contends are in dispute in separately numbered paragraphs,
followed by a specific citation to the record where the fact is
established.

N.D.N.Y. L.R. 7.1(a)(3) (bolding added).
As Defendant accurately points out, Plaintiff's response to Defendant's Statement of
Material Facts contains no citations to the record. See generally Dkt. No. 21-2, Plaintiff's Response

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to Statement of Undisputed Facts and Plaintiff's Counter-Statement of Facts. Furthermore,
Plaintiff's "Counter-Statement of Facts," to the extent that Plaintiff intends these statements to be
"additional material facts," are not in "separately numbered paragraphs" nor are they "followed by a
specific citation to the record where the fact is established." See generally id.
The underlying purpose of Local Rule 7.1(a)(3) "is to assist the court in framing the issues
and determining whether there exist any triable issues of fact that would preclude the entry of
summary judgment." Cf. Younglood v. Glasser, No. 9:10-CV-1430, 2012 WL 4051846, *4
(N.D.N.Y. Aug. 22, 2012) (citation and footnote omitted). Furthermore, as courts in this District
have indicated on numerous occasions, this District's "'Local Rules requirements are not empty
formalities.'" Willig v. Swarts, No. 1:12-CV-1649, 2015 WL 5093771, *2 (N.D.N.Y. Aug. 28, 2015)
(quoting Bombard v. Gen. Motors Corp., 238 F. Supp. 2d 464, 467 (N.D.N.Y. 2002) (stating that
"[t]he courts of the Northern District have adhered to a strict application of Local Rule 7.1(a)(3)'s
requirement on summary judgment motions" (citations omitted))).
Since Plaintiff's response to Defendant's Statement of Material Facts does not comply with
the requirements of Local Rule 7.1(a)(3), the Court accepts the factual assertions that Defendant set
forth in its Statement of Material Facts as true to the extent that the evidence in the record supports
those facts. See Aktas v. JMC Dev. Co., Inc., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012) (accepting
the third-party defendants' statement of material facts as true because the defendant/third-party
plaintiff failed to respond to it in accordance with Local Rule 7.1(a)(3) (citations omitted)).

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2. Plaintiff's abandonment of his state-law claims under New York Human Rights
Law
Defendant notes that, although it moved for summary judgment with regard to all of
Plaintiff's claims, Plaintiff only responded to its arguments concerning his ADEA claims.
Therefore, Defendant asserts that the Court should conclude that Plaintiff has abandoned his statelaw claims under the New York Human Rights Law ("NYHRL").
As the Second Circuit explained in Jackson v. Fed. Express, 766 F.3d 189 (2d Cir. 2014),
"[g]enerally . . . a partial response [to a motion for summary judgment] reflects a decision by a
party's attorney to pursue some claims or defenses and to abandon others." Id. at 196. "Moreover,
preparation of a response to a motion for summary judgment is a particularly appropriate time for a
non-movant party to decide whether to pursue or abandon some claims or defenses. Indeed, Rule
56 is known as a highly useful method of narrowing the issues for trial." Id. Finally, "[w]here
abandonment by a counseled party is not explicit but such an inference may be fairly drawn from
the papers and circumstances viewed as a whole, district courts may conclude that abandonment
was intended." Id.
In its Memorandum of Law, Defendant included a section entitled "The Separation
Agreement is Likewise Valid and Enforceable Under the NYHRL's 'Totality of the Circumstances'
Test." See Dkt. No. 20-1. In this section, Defendant addressed Plaintiff's claims under the NYHRL
and set forth its reasons for arguing that the Court should grant its motion for summary judgment
and dismiss Plaintiff's NYHRL claims under the "totality of the circumstances" test.
In response, Plaintiff's Memorandum of Law makes no mention of his NYHRL claims or the
"totality of the circumstances" test that would apply to those claims. In fact, in his Memorandum of
Law, Plaintiff focuses entirely on the issue of whether the Separation Agreement complied with the
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OWBPA and whether Defendant's representations to him were fraudulent.
Viewing the papers that the parties submitted in support of and in opposition to Defendant's
motion, the Court finds that, based on these submissions and the circumstances in their entirety,
Plaintiff has abandoned his claims under the NYHRL. Therefore, the Court grants Defendant's
motion for summary judgment with regard to those claims.

3. The troublesome email chain
In paragraph 33 of this Declaration in opposition to Defendant's motion for summary
judgment, Plaintiff asserts that, "[b]y email dated January 19, 2016, I inquired about the deadline
for submitting the Separation Agreement and [Ms.] Denmark responded, suggesting that I turn in
the Separation Agreement earlier than February 15, 2016:
[Email from Plaintiff to Ms. Denmark]
Good morning, Pamela,
When is the deadline for signing the document?
I am in the process of setting up a computational fluid dynamics
consulting business. I intend to talk to my lawyer about this business
setup as well as have him review the severance document around the
end of January if not sooner.
Regards,
Amadou
[Email from Ms. Denmark to Plaintiff]
I suggest we meet to discuss this further. I'm thinking we could meet
this week or next and you can give me your signed Agreement at the
same time. When would be a good time for you?
Best regards,
See Dkt. No. 21-1, Declaration of Amadou Sowe ("Sowe Decl.") at ¶ 33.
Plaintiff further asserts, in the next paragraph, that, "[b]y these emails from [Ms.] Denmark,
I felt that [Ms.] Denmark was pressing me to deliver the Separation Agreement to [Ms.] Denmark

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prior to the February 15, 2016 deadline." See id. at ¶ 34.
Then in the next paragraph of his declaration, Plaintiff states, "By email dated January 19,
2016 [Ms.] Denmark told me that she would not be at Pall after February 1, 2016:
On Tue, Jan 19, 2016 at 10:18 AM, <[e-mail]>
wrote:
Hi Amadou,
The deadline is February 15th. Remember I won't be here after
February 1st. So if we don't meet before February 1st then Melanie
[Carr] can discuss the PTO [Personal Time Off] with you.
Starting your own business sounds like an exciting adventure!!
Good luck!
Best regards,
See id. at ¶ 35.
Finally, Plaintiff states that,
[e]ven though I wanted the additional time after February 1, 2016 to
submit the Separation Agreement, I felt compelled to submit the
Separation Agreement to [Ms.] Denmark before [Ms.] Denmark left
prior to February 1, 2016, and I made arrangements to meet with
[Ms.] Denmark on Friday, January 29, 2016 when I delivered the
signed Separation Agreement to [Ms.] Denmark.
See id. at ¶ 36.
Defendant claims that Plaintiff's cutting and pasting from the entire email chain from which
he took these passages is misleading and that, additionally, although Plaintiff should have turned
this email chain over to Defendant in response to its discovery request, he failed to do so.3 The
Court has reviewed the entire email chain, which Defendant provided as part of its reply to

3

This email chain is clearly responsive to Defendant's discovery request; and, therefore,
Plaintiff should have provided it to Defendant during discovery.
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Plaintiff's opposition to its motion. See Dkt. No. 22-4, Reply Declaration of Melanie Carr, at ¶ 2;
Dkt. No. 22-5, Exhibit 1 to Reply Declaration of Melanie Carr. Having done so, it is clear that Ms.
Denmark never provided Plaintiff with any misleading information about the deadline for returning
the Separation Agreement nor did she exert any pressure on Plaintiff to return the Separation
Agreement prior to her leaving Defendant's employ at the end of January 2016. In fact, when
Plaintiff asked her directly what the deadline was, she responded, "February 15th." In addition,
until January 19, 2016, the email chain, from which Plaintiff cut and pasted these portions, related
to Plaintiff's questions about the calculation of his PTO, which he directed to Ms. Denmark and Mr.
Sorensen, with copies to Melanie Carr, Ms. Denmark's boss, and Traci Resch. Thus, it is not
surprising that Ms. Denmark reminded Plaintiff that she would not be there after February 1st and
that, therefore, if they did not meet before that time, he could continue his discussion about the
calculation of his PTO with Ms. Carr.
For all these reasons, the Court finds that Plaintiff's reliance on this email chain to create an
issue of fact regarding the issue of whether the Separation Agreement met the requirements of the
OWBPA is unavailing.

B.

Plaintiff's claim that the Separation Agreement does not meet the requirements
of the OWBPA
"In 1990, Congress enacted the Older Workers Benefit Protection Act ("OWBPA"), which

'amend[ed] the ADEA[] to impose specific requirements for releases covering ADEA claims.'"
McCormack v. IBM, 145 F. Supp. 3d 258, 266 (S.D.N.Y. 2015) (quoting Ridinger, 651 F.3d at 313).
"'A purported waiver of ADEA claims is governed by [OWBPA], which states that "an individual
may waive his rights only if the waiver is knowing and voluntary."'" Id. (quoting Wahab v. Estee
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Lauder Cos., Inc., No. 12-CV-3932, 2014 WL 4904592, at *16 (E.D.N.Y. July 17, 2014) (quoting
29 U.S.C. § 626(f)(1)), adopted by 2014 WL 4906511 (E.D.N.Y. Sept. 30, 2014)).
The OWBPA provides that "a waiver may not be considered knowing and voluntary unless
at a minimum" certain conditions are met, the following of which are at issue in this case:
if a waiver is requested in connection with an exit incentive or other
employment termination program offered to a group or class of
employees, the individual is given a period of at least 45 days within
which to consider the agreement [and]
**********
if a waiver is requested in connection with an exit incentive or other
employment termination program offered to a group or class of
employees, the employer (at the commencement of the period
specified in subparagraph (F)) informs the individual in writing in a
manner calculated to be understood by the average individual eligible
to participate, as to –
(i) any class, unit, or group of individuals covered by such program,
any eligibility factors for such program, and any time limits
applicable to such program; and
(ii) the job title and ages of all individuals eligible or selected for the
program, and the ages of all individuals in the same job classification
or organizational unit who are not eligible or selected for the
program.
29 U.S.C. § 626(f)(1)(F)(ii), (H)(i), (H)(ii).
"'The OWBPA strictures on waivers are strict and unqualified[,]' and '[a]n employee may
not waive an ADEA claim unless the employer complies with the statute.'" McCormack, 145 F.
Supp. 3d at 267 (quoting Ridinger, 651 F.3d at 314). "'The burden of proving that a claimed
"waiver was knowing and voluntary" within the meaning of the OWBPA is on "the party asserting
the validity of [the] waiver."'" Id. (quoting Ridinger, 651 F.3d at 314 (quoting 29 U.S.C. §
626(f)(3))) (citing Wahab, 2014 WL 4904592, at *17 (same)).
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Furthermore, "'the OWBPA requirements set out in § 626(f) are only minimum requirements
to find a waiver knowing and voluntary, and . . . the ultimate test remains whether that waiver was
in fact knowing and voluntary.'" Id. (quoting Sheridan v. McGraw-Hill Cos., Inc., 129 F. Supp. 2d
633, 638 (S.D.N.Y. 2001)) (other citation omitted). "To determine whether a waiver is knowing or
voluntary, '[d]istrict courts review the totality of the circumstances.'" Id. (quoting Callahan v.
Unisource Worldwide, Inc., 451 F. Supp. 2d 428, 434 (D. Conn. 2006)). In this context, "[t]he
EEOC's regulations provide that facts and circumstances that bear on the question of whether a
waiver is knowing and voluntary include whether 'there is a material mistake, omission, or
misstatement in the information furnished by the employer to an employee in connection with the
waiver.'" Id. at 367-68 (quoting 29 C.F.R. § 1625.22(a)(3)) (citing O'Grady v. Middle Country Sch.
Dist. No. 11, 556 F. Supp. 2d 196, 201 (E.D.N.Y. 2008) ("Nonstatutory circumstances, such as
fraud, duress, or coercion in connection with the execution of the waiver, may render an ADEA
waiver not knowing and voluntary.")). In fact, "'[t]he legislative history of the OWBPA indicates
that the fundamental purpose of its waiver provisions is to ensure that an older worker who is asked
to sign an ADEA waiver does so in the absence of fraud, duress, coercion, or mistake of material
fact.'" Id. (quoting Butcher v. Gerber Prods Co., 8 F. Supp. 2d 307, 319 (S.D.N.Y. 1998)).

1. Compliance with OWBPA, 29 U.S.C. § 626(f)(1)(F)(ii)
The record belies Plaintiff's claim that Defendant did not give him a period of at least 45
days to consider the Separation Agreement. First, the Separation Agreement, which Plaintiff
received on December 23, 2015, explicitly stated that the "Agreement must be executed and
delivered to Employer (Attn: Pamela Denmark, Human Resources Manager) on or before February

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15, 2016," indicating that Plaintiff had more than 45 days to review the agreement. Furthermore,
Plaintiff's assertion that, because Ms. Denmark left Defendant's employ as of February 1, 2016,
Defendant somehow shortened the 45-day period is specious, particularly in light of the fact that,
when, on January 19, 2016, Plaintiff asked Ms. Denmark in an email when the deadline for
returning the agreement was, she responded, "February 15, 2016." Finally, Plaintiff has not pointed
to anything in the record that would support "his belief" that he had to return the Separation
Agreement to Ms. Denmark, and no one other than Ms. Denmark, before she left Defendant's
employ, particularly in light of the fact that the Separation Agreement defines "Employer" as
"PALL CORPORATION, a New York corporation with its principal offices at 25 Harbor Park
Drive, Port Washington, New York 11050." See Dkt. No. 20-7, Separation and General Release
Agreement, at 2.
For all these reasons, the Court concludes that the undisputed facts demonstrate that the
Separation Agreement complied with 29 U.S.C. § 626(f)(1)(F)(ii).

2. Compliance with OWBPA, 29 U.S.C. § 626(f)(1)(H)(i), (ii)
Plaintiff argues that the Separation Agreement and the accompanying RIF Memo do not
comply with § 626(f)(1)(H)(i) and (ii). The RIF Memo states, in pertinent part, "[c]ertain
employees of the Central Technology Organization division of Pall Corporation (the "Company")
have been notified by the Company that their employment with the Company will terminate in
connection with a reduction in force with respect to such division (the "Reduction in Force")." See
Dkt. No. 20-10 at 2. Plaintiff asserts that "[t]he RIF is false, deceptive, and misleading in that the
'Central Technology Organization division of Pall Corporation' [("CTO"), in which he worked,] is a

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world-wide division, not simply a division within the United States, and [Defendant] listed only
employees is [sic] the United States, and did not include in the Decisional Unit other . . . employees
outside the United States." See Complaint at ¶ 42.
In its Statement of Material Facts, Defendant asserts that, "[i]n December 2015, [it] effected
a reduction in force within its CTO, resulting in the separation of thirteen (13) CTO employees,
including Plaintiff . . . [and] [t]he impacted employees worked at [Defendant's] facilities in
Cortland, NY, Port Washington, NY, and Pensacola, FL." See Dkt. No. 20-2 ("Defendant
Statement of Facts") at ¶¶ 9-10 (citing Carr Decl. at ¶ 3). As noted, because Plaintiff's response to
Defendant's Statement of Material Facts did not comply with Local Rule 7.1(a)(3), the Court deems
Defendant's facts admitted because they are supported by the record, specifically Ms. Carr's
Declaration as well as the RIF Memo.4
In addition to information about the decisional unit, in this case Defendant's CTO division,
the employer must also inform the affected employee of "the job titles and ages of all individuals
eligible or selected for the program, and the ages of all individuals in the same job classification or
organizational unit who are eligible or selected for the program." 29 U.S.C. § 626(f)(1)(H)(ii); see

4

Furthermore, Defendant asserts that Plaintiff has manufactured an objection to the RIF
Memo's limitation to U.S. employees without any factual evidence to support this objection or
citing any authority that would require an employer to include non-U.S. employees in ADEA
workforce reduction disclosures accompanying a separation agreement. See Dkt. No. 22 at 10.
Moreover, Defendant notes that the OWBPA amended the ADEA, which generally protects only
U.S. employees. See id. (citing 29 U.S.C. § 630(f)).
In pertinent part, 29 U.S.C. § 630(f) provides that "[t]he term 'employee' includes any
individual who is a citizen of the United States employed by an employer in a workplace in a
foreign country." 29 U.S.C. § 630(f). Plaintiff has not pointed to anything in the record to
indicate that, if in fact Defendant's CTO division is international in scope, any of the individuals
who work in Defendant's CTO division outside the United States are United States citizens and,
thus, would be considered "employees" within the meaning of the ADEA and the OWBPA.
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also Ribble v. Kimberly-Clark Corp., No. 09-C-643, 2012 WL 589252, *13 (E.D. Wis. Feb. 22,
2012) (noting that "[t]he employer must include the job titles and ages of all of the employees
within the decisional unit and indicate those who are retained and those whose employment was
terminated").
In this case, the RIF Memo that Defendant provided to Plaintiff included a chart with the
"age," "title," and "number" of employees who had a particular title for both employees in the CTO
who were "ineligible," i.e., "those employees of the Company who are not being terminated on or
about such date, but who have the same job classification or are in the same organizational unit as
eligible employees" and those who were "eligible," i.e., "[t]hose employees whose employment will
terminate in connection with the Reduction in Force." See Dkt. No. 20-10 at 2.
As the undisputed facts make clear, the RIF Memo, which Defendant provided to Plaintiff,
provided all of the information that § 626(f)(1)(H)(i) required, i.e., the definition of the decisional
unit and all of the information that § 626(f)(1)(H)(ii) required, i.e., job title and ages of individuals
who were both eligible and ineligible. Therefore, the Court finds that Defendant has demonstrated
that the Separation Agreement and RIF Memo comply with the requirements of 29 U.S.C.
§ 626(f)(1)(H)(i), (ii).

C.

Plaintiff's claim that Defendant fraudulently induced him to sign the Separation
Agreement
Plaintiff asserts that Defendant fraudulently induced him to sign the Separation Agreement

by falsely, deceptively and misleadingly telling him that his position was being eliminated as part of
an RIF when Defendant actually was not eliminating his position.
This claim does not require much discussion. As the court explained in McCormack,
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"'[f]raudulent inducement claims are subject to the heightened pleading standards of Federal Rule of
Civil Procedure 9(b)[.]'" McCormick, 145 F. Supp. 3d at 275 (quoting Eaves, 785 F. Supp. 2d at
246-47). Therefore, a plaintiff "'must: "(1) specify the statements that the plaintiff contends were
fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4)
explain why the statements were fraudulent[.]"'" Id. at 275-76 (quoting First Hill Partners, 52 F.
Supp. 3d at 637 (quoting Rombach, 355 F.3d at 170)).
Plaintiff bases his claim on his allegation that, "[o]n or about February 12, 2016, (after the
[sic] February 6, 2016, the date on which [Defendant] believed the Release to be effective)
[Defendant] posted an advertisement for an [sic] job position on 'glassdoor.com' for an 'Engineer IIComputational Fluid Dynamics-Cortland, New York,' position similar to the one formerly occupied
by [Plaintiff] and performing identical duties." See Complaint at ¶ 58 & Exhibit "4" attached
thereto. Plaintiff further alleged that he "did not sign the Release knowingly and voluntarily,
because if he had known that [Defendant] was maintaining a position identical to the position
formerly occupied by [Plaintiff], [he] would not have relinquished his right to sue for age
discrimination in exchange for the compensation offered to him arising from the Release." See id.
at ¶ 59.
At his deposition, when asked about this job posting and its relevance to his claim that
Defendant had fraudulently induced him to sign the Separation Agreement, Plaintiff stated that he
had included this job posting in his discovery materials because
A. [T]he job posting was put in less than five days after the revocation
period.
So you could see that the reason for adding this in there is
really to prove my point, that [Defendant's] argument was completely
fraudulent, because they tell you that we're eliminating your position
because of RIF, which all of a sudden you sign the Separation
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Agreement, and then they post the job that you had.
That's the reason for having that in there.
Q. Are you claiming that this job posting was for the position that you
occupied with [Defendant]?
A.

It's a position that I could do at [Defendant].

See Dkt. No. 22-2, Transcript of Plaintiff's Deposition, at 77:18-78:11.
In response, Melanie Carr, Defendant's Director of Human Resources at the Cortland
facility, stated in her reply declaration that she had reviewed the job description to which Plaintiff
had referred in ¶ 38 of his Declaration, i.e., the one discussed above, and it was not the posting for
Plaintiff's former position. See Dkt. No. 22-4 ("Carr Reply Decl.") at ¶ 3.
In light of the fact that Plaintiff backed away from the allegation in his complaint that the
job posting in question was for the position that he had formerly held and, instead, was a position
that he "could do," and Ms. Carr's declaration that the posting in question was not for Plaintiff's
former position, the Court finds that, even if Plaintiff sincerely believed that his termination was the
product of unlawful discrimination, this belief was "insufficient to support an allegation of
fraudulent inducement when no other evidence supports this claim." Sheridan v. McGraw-Hill
Cos., Inc., 129 F. Supp. 2d 633, 638-39 (S.D.N.Y. 2001) (citation omitted). As the court noted in
Sheridan, "allowing such a belief to invalidate a waiver [would] preclude[] the possibility of ever
having an enforceable waiver of discrimination claims." Id. at 639.
Accordingly, for these reasons, the Court concludes that Plaintiff has not raised an issue of
fact with regard to his claim of fraudulent inducement.

IV. CONCLUSION

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Having reviewed the entire file in this matter, the parties' submissions and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion for summary judgment, see Dkt. No. 20, is GRANTED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and close
this case.

IT IS SO ORDERED.

Dated: August 14, 2018
Syracuse, New York

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