Allen v. Chanel, Inc.,

Filing 22

OPINION AND ORDER: re: 9 MOTION to Dismiss Plaintiff's Complaint filed by Chanel, Inc. On September 6, 2012, Plaintiff Anu Allen (Allen) filed this action against her former employer, Chanel, Inc. (Chanel), alleging employment discrimination, harassment, and wrongful termination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e, et seq., the Civil Rights Act of 1866, 42 U.S.C. 1981, et seq., the AgeDiscrimination in Employment Act (ADEA), 29 U.S.C. 621 , et seq., and the New York State Human Rights Law (NYSHRL), N.Y. Exec. Law 290, et seq. Plaintiff seeks compensatory and punitive damages, including back pay, front pay, and lost benefits, as well as recoupment of her legal costs. On November 12, 20 12, Defendant, based on a Separation and Release Agreement alleged to have been exectuted by the parties, moved to dismiss the Complaint pursuant to Rule12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief c an be granted or, alternatively, pursuant to Rule 12(c) for judgment on the pleadings. Plaintiff submitted answering papers on December 4, 2012. Defendant submitted its reply papers on December 10, 2012. Oral argument was held on December 13, 2012. F or the reasons discussed below, Defendants motion to dismiss is converted to a motion for summary judgment and denied. For the foregoing reasons, the Defendants converted motion for summary judgment isdenied without prejudice. This decision on a Court-converted motion for summary judgment should not be deemed a bar to either party filing a motion for summary judgment at the close of discovery. IT IS SO ORDERED. (Signed by Judge Robert P. Patterson on 6/4/2013) Copies Sent By Chambers. (rsh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
ANU ALLEN,
Plaintiff,

12 CV 6758 (RPP)

- against OPINION AND ORDER
CHANEL INC.,
Defendant.
-----------------------------------------------------------X
ROBERT P. PATTERSON, JR., U.S.D.J.
On September 6, 2012, Plaintiff Anu Allen (“Allen”) filed this action against her former
employer, Chanel, Inc. (“Chanel”), alleging employment discrimination, harassment, and
wrongful termination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e, et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, et seq., the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and the New York State
Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290, et seq. Plaintiff seeks compensatory
and punitive damages, including back pay, front pay, and lost benefits, as well as recoupment of
her legal costs.
On November 12, 2012, Defendant, based on a “Separation and Release Agreement”
alleged to have been exectuted by the parties, moved to dismiss the Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can
be granted or, alternatively, pursuant to Rule 12(c) for judgment on the pleadings. Plaintiff
submitted answering papers on December 4, 2012. Defendant submitted its reply papers on
December 10, 2012. Oral argument was held on December 13, 2012.
For the reasons discussed below, Defendant’s motion to dismiss is converted to a motion
for summary judgment and denied.
1

I.

Facts1
Beginning on or about May 10, 1993, Defendant first employed Plaintiff as the main

executive receptionist at Defendant’s corporate headquarters. (See Compl. ¶ 9; Def.’s Mem. of
Law in Supp. of Mot. to Dismiss (“Def.’s Mem.”) at 3.) Subsequently, she became the Office
Services Coordinator, and later, the Samples Coordinator for the Fashion Division.2 (See id.
¶¶ 11-12.) Plaintiff alleges that she suffered and reported multiple instances of discrimination
during her employment. On or about February 28, 2012, Defendant terminated Plaintiff’s
employment with the company.3 (See id ¶ 12; Def.’s Mem. at 4.)
Upon terminating Plaintiff, Defendant presented Plaintiff with “a hard copy of a letter
agreement titled ‘Separation and Release Agreement,’” (the “Chanel Separation and Release
Agreement”), dated February 28, 2012. (Def.’s Mem. at 1; see also Tr. of Oral Arg. on Def.’s
Mot. to Dismiss (“Tr.”) at 11, Dec. 13, 2012.) The Chanel Separation and Release Agreement is
styled as a letter from the Defendant to the Plaintiff setting forth the terms and conditions of
Plaintiff’s separation from the company. (See Def.’s Mem. at 1-2; Tr. at 11.) The Chanel
Separation and Release Agreement stated that Plaintiff’s “regular wages up to and including the
Termination Date . . . [as well as unused] vacation time . . . shall be provided [to you] regardless
of whether you sign this Agreement.” (Decl. of Laurie E. Almon (“Almon Decl.”), Ex. B ¶ 2,
ECF No. 10.)
1

Pursuant to the standard for summary judgment motions, all facts are construed in favor of the non-moving party,
here the Plaintiff. See Vergara v. Bentsen, 868 F. Supp. 581, 589 (S.D.N.Y. 1994).
2

Plaintiff’s Complaint alleges that the changes in her position constituted negative employment actions due to her
age, race, sex, or appearance; that her employment opportunities were impaired because of ongoing discrimination
based upon her age, race, and sex; and that she was harassed because of her age, race, and sexual orientation.
(Compl. ¶¶ 10, 20.)
3

Defendant contends that Plaintiff was terminated becaued the Samples Coordinator position had been eliminated.
(Def.’s Mem. at 4.) Plaintiff alleges that the Samples Coordinator position still exists, and that her termination was
motivated, at least in part, by her complaints of discrimination. (Compl. ¶¶ 14, 16, 25, 28.)
2

The Chanel Separation and Release Agreement granted Plaintiff a separation payment
somewhat in excess of what she would have otherwise received under her employment contract
in exchange for Plaintiff’s acceptance of the terms and conditions outlined in the Chanel
Separation and Release Agreement. (See Almon Decl., Ex. B ¶¶ 2-3; see also Def.’s Mem. at 12.) Specifically, Paragraph 3 of the Chanel Separation and Release Agreement, which is entitled
“Additional Consideration,” states:
In return for your signing (and not revoking) this Agreement,
which contains a general release of claims, . . . as is described in
detail under Paragraph 4 below, . . . the Company will provide you
with the following benefits: [. . .] You agree that the payments and
benefits provided to you in this Paragraph 3 . . . are in full
discharge of any and all of the Company’s liabilities and
obligations to you . . . and complete consideration for your
promises and undertakings under this Agreement, including, but
not limited to, your release of claims as set forth in Paragraph
4....
(Almon Decl., Ex. B ¶ 3.) In turn, Paragraph 4 of the Chanel Separation and Release Agreement,
which is entitled “General Release of Claims,” states that Plaintiff releases her claims against the
company, “including, but not limited to” the causes of action listed in Paragraph 4. (Id. ¶ 4
(emphasis added).) Specifically, Paragraph 4 declares that:
For and in consideration of the payments and benefits to be
provided to you . . . , you . . . hereby forever release and discharge
[Defendant] . . . from any and all claims . . . including, but not
limited to, claims of discrimination and harassment on the basis of
race, color, . . . sex, sexual orientation, age, . . . and any other
legally protected characteristic . . . and any and all claims under
any contract, statute, regulation, agreement, duty or otherwise.
(Id. (emphasis added).) The Chanel Separation and Release Agreement explicitly states that it
“may be modified only by a writing signed by both parties.” (Almon Decl. Ex B ¶ 9; see also
Def.’s Mem. at 5.)

3

The Chanel Separation and Release Agreement was pre-signed by Defendant’s
representative before it was presented to Plaintiff. (See Def.’s Mem. at 1; Tr. at 11.) Under the
heading “Agreed to and Accepted,” a blank space was left for Plaintiff to sign, if she “agree[d]
with the terms and conditions of this Agreement.” (Almon Decl., Ex. B at 7; see also ¶ 10.) The
document provides Plaintiff with twenty-one days to consider its terms and seven days to revoke
it after signing. (See Almon Decl., Ex. B ¶ 10.) The Chanel Separation and Release Agreement
became “effective on the eighth (8th) day after [Plaintiff] sign[ed] it.” (Id.) The Chanel
Separation and Release Agreement advises Plaintiff to “consult with an attorney of [her] choice
before signing this Agreement.” (Almon Decl. Ex. B ¶ 10; see also Def.’s Mem. at 5.)
On or about March 19, 2012, Plaintiff initialed each page, signed the last page, and
returned to Defendant a full version of the Separation and Release Agreement. (See Pl.’s Mem.
of Law in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Mem.”) at 1; Def.’s Mem. at 2; see also
Almon Decl., Ex C.) Before initialing, signing, and returning the agreement to Defendant,
however, Plaintiff retyped page three and altered the content of Paragraph 4 (“General Release of
Claims”). (See Almon Decl., Ex. D; see also discussion supra at 3.) Prior to the list of potential
discrimination and harassment claims covered by Paragraph 4, Plaintiff’s version (“Plaintiff’s
Release”) changed the first two letters of the word “including” to read “excluding.” (See Pl.’s
Mem. at 1; Def.’s Mem. at 2.) Thus, Paragraph 4 of Plaintiff’s Release states, in relevant part:
For and in consideration of the payments and benefits to be
provided to you . . . , you . . . hereby forever release and discharge
[Defendant] . . . from any and all claims . . . excluding, but not
limited to, claims of discrimination and harassment on the basis of
race, color, . . . sex, sexual orientation, age, . . . and any other
legally protected characteristic . . . and any and all claims under
any contract, statute, regulation, agreement, duty or otherwise.

4

(Almon Decl., Ex. C ¶ 4 (emphasis added); see also Almon Decl., Ex. D ¶ 4 (comparing the
Chanel Separation and Release Agreement and Plaintiff’s Release).) Despite this material
change to its content preserving Plaintiff’s right to bring the listed claims, Paragraph 4 of
Plaintiff’s Release remains titled “General Release of Claims.” (See Almon Decl., Ex. C ¶ 4.)
Plaintiff inputted her small but materially significant change by retyping the entire third
page of the Chanel Separation and Release Agreement using the same fonts, margins, and words.
(See Def.’s Reply Mem. of Law in Further Supp. of Mot. to Dismiss (“Def.’s Reply”) at 2; Tr. at
5, 12, 16-17; compare Almon Decl., Ex. B, with id., Ex. C.) Other than the substitution of
“excluding” for “including” in Paragraph 4 on page three, Plaintiff made no other material
changes to the Chanel Separation and Release Agreement.4 (See Almon Decl., Ex D.) Indeed,
like the Chanel Separation and Release Agreement, Plaintiff’s Release remains styled as a letter
from the Defendant to the Plaintiff and carries the same date on its first page. (See id.)
There is no dispute that Plaintiff did not contact Defendant to discuss any changes to the
terms of the Release prior to signing and returning it. (See Def.’s Reply at 2, 5, 8; Tr. at 5, 1517, 19.) Instead, Plaintiff asserts that, after making her changes to the Release, she initialed the
lower right hand corner of each page but “placed a small 1 inch yellow sticky note on page 3 line
13 where the changes to the Agreement were made.”5 (Pl.’s Mem., Ex. A (Decl. of Pl., Dec. 4

4

Plaintiff’s Release contains three other changes that are not material to the scope of Plaintiff’s waiver in this case.
For example, although Plaintiff changed the word “excluding” to “including” prior to a list of possible claims under
the Employee Retirement Income Security Act of 1974 (“ERISA”), (see Almon Decl., Ex. D ¶ 4), Plaintiff has not
asserted any claims against the Defendant under ERISA in the instant action, although she was terminated just a few
months short of twenty years with the company. (See Compl. ¶¶ 34-53.) The other two changes to the language of
the Chanel Separation and Release Agreement appear to be typographical errors. (See Def.’s Mem. at 6 n.4.)
Specifically, on page three, Plaintiff changed the word “now” to “not,” and the word “your” to “you.” (Almon
Decl., Ex. D ¶¶ 4-5.) Neither party argues that these changes are material. (See Def.’s Mem. at 7; Tr. at 12.)
5

Defendant argues that Plaintiff’s declaration is inadmissible because it was electronically signed. (See Def.’s
Mem. at 4; Def.’s Reply at 4; Tr. at 19-20, 22 (citing Local Rule 13.16 (non-attorney signatures must be signed in
ink and scanned)).) Plaintiff’s counsel offered to upload a scanned version of Plaintiff’s declaration signed in ink.
(See Tr. at 24-26.) For the purposes of the present motion, where the facts are construed in favor of the non-moving
5

2012 (“Pl.’s Decl.”)) ¶ 5; see also Tr. at 12, 15-16.) Plaintiff does not, however, allege that she
wrote anything on the blank sticky note or anywhere else to indicate its purpose on the page.
(See Def.’s Reply at 2; Tr. at 22.)
Defendant claims to have neither received the sticky note nor noticed Plaintiff’s
alterations. (See Def.’s Reply at 9; Def.’s May 31, 2013 Let., Ex. A (Aff. of Megan Glickman
(“Glickman Aff.”)) ¶ 3). Defendant only noticed that Plaintiff signed the agreement. (See Def.’s
Reply at 8.) As Defendant “was not aware of . . . the purported change made to the [Chanel]
Settlement and Release Agreement by Ms. Allen,” (Def.’s May 31, 2013 Let., Glickman Aff. ¶
4), Defendant did not inform Plaintiff that it objected to her unilateral modifications, (see Pl.’s
Mem. at 1). Defendant claims that its Human Resources department did not have “the authority
to bind Chanel to pay substantial severance in exchange for no meaningful release,” (Def.’s May
31, 2013 Let., Ex. A ¶ 3.)
Subsequent to receiving Plaintiff’s signed Release, Defendant sent – and Plaintiff
received and retained – a check (“Severance Payment”), dated April 12, 2012, made out to the
Plaintiff from the Defendant in the amount of $14,940.19, covering nineteen weeks of severance
pay, less witholdings. (See Almon Decl., Ex. E; Def.’s Mem. at 7; Def.’s Reply at 5.)
Approximately five months after receipt of the Severance Payment, on September 6, 2012,
Plaintiff brought the instant discrimination and harassment action against Defendant. (See
Compl.)

party, the Court accepts Plaintiff’s declaration as signed. See S.D.N.Y.’s Elec. Case Filing Rules and Regulations,
R. 8.5 (“Documents requiring signatures . . . must be electronically filed either by: (a) submitting a scanned
document . . . or (d) in any other manner approved by the Court”) (emphasis added).
6

II.

Procedural Posture
Defendant’s motion seeks dismissal of Plaintiff’s Complaint under Rule 12(b)(6) for

failure to state a claim upon which relief can be granted or, alternatively, under Rule 12(c) as a
motion for judgment on the pleadings. (See Def.’s Mem. at 7-9.) In support of its motion to
dismiss, the Defendant submitted as exhibits the Chanel Separation and Release Agreement,
(Almon Decl., Ex. B), and Plaintiff’s Release, (Almon Decl., Ex. C). The Defendant also
submitted a document, (“Redline Comparison”), comparing the Chanel Separation and Release
Agreement and Plaintiff’s Release and highlighting the differences between them. (Almon
Decl., Ex. D.) In addition, the Defendant submitted a copy of Plaintiff’s Severance Payment,
purporting to establish that the Plaintiff received compensation from the Defendant as outlined
by the parties’ Severance Agreement.6 (Almon Decl., Ex. E.)
Plaintiff argues, however, that these four exhibits are outside the scope of her Complaint.
(See Pl.’s Mem. at 4-5.) Accordingly, Plaintiff contends that if the Court chooses to rely upon
these materials, Rule 12(d) requires the court to treat Defendant’s motion as one for summary
judgment under Rule 56, not as a motion to dismiss under Rule 12. (Id.)
A. Consideration of the Defendant’s Exhibits
In deciding a Rule 12 motion, a court may only consider the complaint itself or any
matters that are subject to judicial notice by the court. Byrd v. City of New York, No. 04 CV
1396, 2005 WL 1349876, at *1 (2d Cir. June 8, 2005) (discussing Rule 12(c)); Chambers v.
Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (discussing Rule 12(b)(6)). The complaint
is deemed to include any attached exhibits, statements, or documents incorporated into the
complaint by reference, as well as any documents that are “integral” to the complaint.
6

Subsequently, in a letter to the Court dated May 31, 2013, Defendant submitted a fifth exhibit: an affidavit from
Megan Glickman, the Director of Human Resources at Chanel. (See Def.’s May 31, 2013 Let., Ex. A.)
7

Chambers, 282 F.3d at 152-53; see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47
(2d Cir. 1991).
When extraneous materials are presented to the court in conjunction with a Rule 12
motion, the court must either exclude these materials or convert the motion to one for summary
judgment. Fed. R. Civ. P. 12(d); see Chambers, 282 F.3d at 154. Courts have considerable
discretion in deciding between these two options. See Fed. R. Civ. P. 12(d); Byrd, 2005 WL
1349876, at *2 (encouraging explication of this choice “whatever course of action [the district
court] chooses”); see also Gross Foundation, Inc. v. Goldner, No. 09 CV 8804, 2012 WL
6021441, at **5, 12 (E.D.N.Y. Dec. 4, 2012); Russomanno v. Murphy, No. 09 CV 8804, 2011
WL 609878, at **3-5 (S.D.N.Y. Feb. 16, 2011).
Here, the fundamental issue in Defendant’s motion to dismiss is whether or not Plaintiff
released her claims of discrimination. (Def.’s Mem. at 1; Pl.’s Mem. at 1.) In order to make this
determination, the Court must decide which – if either – Release governs and whether Plaintiff
waived her rights to bring suit on her claims knowingly, willfully, and voluntarily. See Bormann
v. AT&T Communications, Inc., 875 F.2d 399, 402 (2d Cir. 1989). Answering these questions
requires the Court to review the agreed upon facts pertaining to the parties’ behavior and the
documents they exchanged.
However, the Chanel Separation and Release Agreement, Plaintiff’s Release, the Redline
Comparison, and the Severance Payment, (collectively, “Defendant’s Exhibits”), (Almon Decl.,
Ex.’s B-E), were not attached to the Plaintiff’s Complaint, and neither party argues that these
materials are subject to judicial notice under Rule 201 of the Federal Rules of Evidence. See
Fed. R. Evid. 201; see also Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).

8

Consequently, for these exhibits to be considered on the present motion, they must either be
incorporated in, or integral to, the Plaintiff’s Complaint. See Chambers, 282 F.3d at 152-53.
1. Documents Incorporated by Reference
For incorporation by reference, a complaint “must make a clear, definite, and substantial
reference” to the documents. Helprin v. Harcourt, 277 F. Supp. 2d 327, 330-31 (S.D.N.Y. 2003).
“A mere passing reference or even references, however, to a document outside of the complaint,
does not, on its own” suffice to incorporate it. Williams v. Time Warner, Inc., 440 Fed. App’x.
7, 9 (2d Cir. 2011); see also Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989). Multiple
references to, and lengthy quotations from, an outside document have been considered
sufficiently substantial to incorporate the document into the complaint by reference. See
Helprin, 277 F. Supp. 2d at 330-31.
Plaintiff’s Complaint does not reference either the Severance Payment or the Redline
Comparison.7 As a result, neither may be deemed incorporated by reference.
The Chanel Separation and Release Agreement and Plaintiff’s Release, however, are
referenced once in the Complaint:
13.
Upon information and belief, [D]efendant terminated
[P]laintiff on the grounds that her position of Samples Coordinator
for the Fashion Division had been eliminated and demanded that
Plaintiff execute a general release agreement which Plaintiff
refused to sign without making chan[g]es[,] which changes were
made specifically retaining to Plaintiff the right to seek redress in
this Court for the outrageous actions exercised against Plaintiff by
Defendant.
(Compl. ¶ 13 (emphasis added).) Plaintiff’s reference to the original and amended Separation
and Release agreements is both clear and definite. See Helprin, 277 F. Supp. 2d at 330-31.
7

The Redline Comparison appears to have been created by Defendant “for the Court’s convenience” only after
Plaintiff filed her Complaint. (See Def.’s Mem. at 6, n.4.) Accordingly, Plaintiff could not have referred to the
Redline Comparison in her pleading.
9

However, given that the Plaintiff makes only a single passing reference to the Releases and does
not quote from either one, (Compl. ¶ 13), Plaintiff’s reference is not substantial in the context of
the entire Complaint. See Thomas v. Westchester Cnty. Health Care Corp., 232 F. Supp. 2d 273,
276 (S.D.N.Y. 2002) (“refer[ring] briefly in one paragraph” of a complaint does not incorporate
a document by reference for consideration of a Rule 12(b)(6) motion). Accordingly, the Chanel
Separation and Release Agreement and Plaintiff’s Release are not incorporated into the
Complaint by reference. See Williams, 440 Fed. Appx. at 9; Cosmas, 886 F.2d at 13;
Westchester Cnty., 232 F. Supp. 2d at 276.
2. Documents Integral to the Complaint
The Court may also consider extraneous materials if they are determined to be integral to
the Plaintiff’s Complaint. A document is only integral to a complaint, however, “where the
complaint relies heavily upon its terms and effect.” Chambers, 282 F.3d at 153 (internal
quotation marks omitted); see also Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 71-72 (2d Cir. 1995) (alleged Sherman Act violation, based upon an agreement between the
defendant and a third party, made that agreement integral to the plaintiff’s complaint); Cortec,
949 F.2d at 44-48 (allegation of securities fraud, based upon certain documents, made those
documents integral to the complaint).
This exception has been deemed narrow in scope. Williams, 440 Fed. Appx. at 9
(“narrow exception [recognized for] . . . a document upon which the complaint solely relies and
which is integral to the complaint”) (alteration in original) (internal quotation marks omitted);
see also Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). The Second Circuit has stressed
that actual reliance on the extraneous material is required, and that this exception will not be

10

satisfied by the Plaintiff’s “mere notice or possession” of such material. See Chambers, 282 F.3d
at 153.8
Here, Defendant has not shown that Plaintiff relied on the Chanel Separation and Release
Agreement, Plaintiff’s Release, the Redline Comparison, or the Severance Payment in framing
her discrimination complaint. While Defendant’s Exhibits may be relevant to the issue of
waiver, none of Defendant’s Exhibits relate to the substance of Plaintiff’s discrimination claims.
(See Compl. ¶¶ 1-2, 9-53.) Thus, none of Defendant’s Exhibits are integral to the Complaint,
and the Court may not consider them in the context of a motion to dismiss. See Fed. R. Civ. P.
12(d); Williams, 440 Fed. Appx. at 9; Chambers, 282 F.3d at 153; see also Global Network
Communications, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006)..
B. Conversion to a Motion for Summary Judgment
Given that the Court must consider materials outside the pleadings in order to address the
fundamental question raised by Defendant’s motion – whether or not Plaintiff waived her right to
assert the present discrimination claim against Defendant – the Court hereby exercises its
discretion, pursuant to Rule 12(d), to convert Defendant’s motion to dismiss into one for
summary judgment. See Fed. R. Civ. P. 12(d); see also Byrd, 2005 WL 1349876, at *2;
Russomanno, 2011 WL 609878, at *6 (converting a motion to dismiss to a motion for summary
judgment in order to consider a release of discrimination claims on substantially the same facts
as the present case); Ridinger v. Dow Jones, 717 F. Supp. 2d 369, 370 (S.D.N.Y. 2010) aff’d 651
F.3d 309 (2d Cir. 2011) (converting a motion to dismiss to a motion for summary judgment

8

The Defendant argues that the fact that Plaintiff had notice of the two Releases prior to filing her Complaint is
sufficient reason for the Court to consider them in the context of Defendant’s motion to dismiss. (Def.’s Mem. at 9;
Def.’s Reply at 3, n.1 (citing to Cortec, 949 F.3d at 48)). While Defendant is correct that a lack of notice is one of
the underlying reasons that motions to dismiss are converted into motions for summary judgment, see Cortec, 949
F.2d at 48, such notice is only significant “where a plaintiff has actual notice . . . and has relied upon these
documents in framing the complaint.” Id. (emphasis added). Defendant has not shown such reliance.
11

because of the moving parties’ reliance on a separation agreement, which was outside the scope
of the complaint).
C. Consequences of Conversion
Before converting a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary
judgment, a district court must give “sufficient notice to [the non-moving] party and an
opportunity for that party to respond.” Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d
Cir. 1995). The notice inquiry is essentially “whether the appellant 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, 294-95 (2d Cir. 1985).
Here, by order dated May 15, 2013, the Court notified the parties of its intention to
construe Defendant’s Rule 12 motion to dismiss as a Rule 56 motion for summary judgment and
invited the parties to submit supporting affidavits and/or exhibits if there were additional facts
outside the pleadings that the parties wished the Court to consider.9 (See Order, May 15, 2013,
ECF No. 18.) In response, Plaintiff resubmitted the December 4, 2012 declaration she originally
filed with her opposition to Defendant’s motion. (See discussion supra at note 5.) By letter
dated May 31, 2013, Defendant submitted an affidavit from Megan Glickman, Director of
Human Resources for Defendant. (See Def.’s May 31, 2013 Let., Glickman Aff.)
9

On the issue of notice, it was Plaintiff who initially suggested that the material attached by the Defendant could
only be considered by the Court on a motion for summary judgment. (See Pl.’s Mem. at 4-5 (discussing the
possibility of conversion).) Plaintiff further discussed the possibility of converting the Defendant’s motion to one
for summary judgment during oral arguments. (See Tr. at 18-19.) In addition, the Defendant’s attachment of
extrinsic material to its motion to dismiss constituted sufficient notice to Plaintiff of the possibility of conversion.
See In re G. & A. Books, 770 F.2d at 295 (citing Cook v. Hirschberg, 259 F.2d 56, 57-58 (2d Cir. 1958) (plaintiffs
had notice of the possibility of conversion to summary judgment because the defendants filed affidavits in support of
their motion to dismiss)). Moreover, Plaintiff directly responded to Defendant’s Exhibits in her opposition papers,
(see Pl.’s Mem. at 2-3, 6-9), which included a sworn affidavit that contained new factual assertions beyond the
scope of her Complaint, (see Pl.’s Mem., Ex. A; see also discussion supra at note 5), and at oral argument, (see Tr. at
11-18.)
12

Plaintiff “cannot complain of lack of a reasonable opportunity to present all material
relevant to a motion for summary judgment when both parties have filed exhibits, affidavits, . . .
etc., in support of and in opposition to a motion to dismiss.” See In re G. & A. Books, 770 F.2d
at 295. Plaintiff is therefore not prejudiced by the Court’s conversion of the Defendant’s motion
to dismiss to one for summary judgment because she had notice of this possibility and an
opportunity to respond to the additional material submitted by the Defendant. See Groden, 61
F.3d at 1052; In re G. & A. Books, 770 F.2d at 294-95.
III.

Legal Standard
On a motion for summary judgment, the moving party bears the burden of proving that

there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010). If the moving party makes
such a showing, the non-moving party “may not rest upon mere conclusory allegations or
denials, but must bring forward some affirmative indication that” specific facts show a genuine
issue for trial. Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal
quotation marks omitted); see also Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324.
To decide the present motion, the Court must determine if the parties entered into an
enforceable contract in which Plaintiff knowingly, willfully, and voluntarily waived the
discrimination claims she now brings.10 See Livingston v. Adirondack Beverage Co., 141 F.3d
434, 438 (2d Cir. 1998) (Title VII claims); Bormann, 875 F.2d at 402-03 (ADEA claims); see

10

A party seeking to enforce a purported settlement agreement – here, Defendant – carries the burden of proof to
demonstrate that the parties entered into such an agreement. See Benicorp Ins. Co. v. National Medical Health Card
Systes, Inc., 447 F. Supp. 2d 329, 335 (S.D.N.Y. 2006).
13

also Bachiller v. Turn on Prods., Inc., No. 00 CV 8701, 2003 WL 1878416 at *3 (S.D.N.Y.
2003) (Civil Rights Act of 1866 claims).
Courts weigh the following factors when considering whether, according to the totality of
the circumstances, federal discrimination claims11 were waived knowingly, willfully, and
voluntarily:
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, . . . 6) whether
the consideration given in exchange for the waiver exceeds
employee benefits to which the employee was already entitled by
contract or law, [7] whether [the] employer encourages or
discourages [the] employee to consult an attorney . . . and [8]
whether the employee had a fair opportunity to do so.
Id. (citing Bormann, 875 F.2d at 403) (alterations in original). “These factors are not exhaustive,
nor must they all be satisfied.” Id. at *4.
Waivers of ADEA claims must clear an additional hurdle. In addition to satisfying the
factor test detailed above, waivers of ADEA claims must also meet the statutory requirements of
the Older Worker Benefits Protection Act (“OWBPA”), 29 U.S.C. § 626(f); see also Tung v.
Texaco, Inc., 150 F.3d 206, 208-09 (2d Cir. 1998). The OWBPA requires, in relevant part, that:
(A) the waiver is part of an agreement between the individual and
the employer that is written in a manner calculated to be
understood by such individual, or by the average individual
eligible to participate; (B) the waiver specifically refers to rights or
claims arising under this chapter; (C) the individual does not waive
rights or claims that may arise after the date the waiver is executed;
(D) the individual waives rights or claims only in exchange for
consideration in addition to anything of value to which the
11

Any waiver meeting the federal standard also meets the requirements for a release with respect to Plaintiff’s state
law claim under the NYSHRL. See Bachiller v. Turn on Products, Inc., 86 Fed.Appx. 465, 466 n.2 (2d Cir. 2004)
(affirming the dismissal of NYSHRL claim while noting the standard is “less stringent than those applied to
[Plaintiff’s] federal claims”).
14

individual already is entitled; (E) the individual is advised in
writing to consult with an attorney prior to executing the
agreement; (F)(i) the individual is given a period of at least 21 days
within which to consider the agreement; . . . [and] (G) the
agreement provides that for a period of at least 7 days following
the execution of such agreement, the individual may revoke the
agreement, and the agreement shall not become effective or
enforceable until the revocation period has expired[.]
29 U.S.C. § 626(f)(1).
IV.

Discussion
Both parties agree that Plaintiff waived some of her claims against Defendant following

her termination, pursuant to the terms of their agreement. The parties disagree, however, as to
whether the Chanel Separation and Release Agreement or Plaintiff’s Release contains the terms
of their agreement, and thus they disagree about the scope of Plaintiff’s waiver. (See Def.’s
Mem. at 10 (“Release Agreement conced[ed] and settl[ed] all claims [Plaintiff] had against
Chanel relating to her employment”) (emphasis added); Pl.’s Mem. at 6 (“the Agreement [is] a
partial release only”) (emphasis added).) The parties’ briefs focus on the question of which
version of the release – if either – should be applied by the Court. For the reasons stated below,
however, the Court need not address this issue.
Neither party contends that Plaintiff’s waiver was unknowing, unwillful, or involuntary.
(See Def.’s Mem. at 10; Pl.’s Mem. at 6.) Indeed, neither party’s brief addresses this issue.
Nevertheless, given the public policy concerns animating the waiver requirement, the Court must
assess whether Plaintiff’s waiver satisfies the relevant standards.
Applying the factors described above favors a finding that Plaintiff knowingly and
voluntarily waived her claims.12 In this case, however, rote application of the factors is

12

Indeed, although the Court has no information about Plaintiff’s education, she amassed business experience by
working for Defendant in a professional setting for almost nineteen years. (See Compl. ¶¶ 9, 12.) Plaintiff possessed
15

inappropriate and misleading. The factors are a minimum bar that must be cleared for a waiver
to be knowing and voluntary, but the Court must consider the totality of the circumstances. See
Reid v. IBM Corp., No. 95 CV 1755, 1997 WL 357969, at *4 (S.D.N.Y. June 26, 1997).
Here, by changing the word “including” to “excluding” prior to the list of claims covered
by the Chanel Separation and Release Agreement before signing the agreement and returning it
to Defendant, Plaintiff manifested an intent to preserve her right to file a discrimination claim.
Thus, Plaintiff did not knowingly, willfully, and voluntarily waive her right to file a
discrimination claim, regardless of whether the Chanel Separation Release Agreement, Plaintiff’s
Release, or neither represents the agreement of the parties. See Livingston, 141 F.3d at 438;
Bormann, 875 F.2d at 402-03; Bachiller, 2003 WL 1878416 at *3; Tung, 150 F.3d at 208-09.
Consequently, Defendant has failed to show that Plaintiff waived the claims she raises in her
Complaint.
IV.

Conclusion
For the foregoing reasons, the Defendants’ converted motion for summary judgment is

denied without prejudice. This decision on a Court-converted motion for summary judgment
should not be deemed a bar to either party filing a motion for summary judgment at the close of
discovery.
IT IS SO ORDERED.

the Chanel Separation and Release Agreement for nineteen days before signing it, (see Pl.’s Mem. at 2; Almon
Decl., Ex. C. at 7), had the opportunity to seek alterations, (see Almon Decl., Ex. B ¶¶ 9-10), and had seven days
after executing the agreement to revoke her acceptance, (see id. ¶ 10.) The Chanel Separation and Release
Agreement is clear in all respects, including the steps for accepting, modifying, or rejecting the agreement, and is
written in a manner calculated to be understood by Plaintiff. (See id.) The agreement specifically states the claims
encompassed by the waiver. (See id. ¶ 14.) In exchange for her waiver, the Chanel Separation and Release
Agreement offered Plaintiff additional consideration that she was not otherwise entitled to under the terms of her
employment contract. (See id. ¶ 3). Finally, Plaintiff was encouraged in writing to consult with an attorney before
returning her waiver to Defendant, (see id. ¶ 10), and it appears that Plaintiff did so, (Tr. at 14.)
16

Dated: New York, New York
June 4,2013

~l iitJ fl/;:ti:=k~
Robert P. Patterson, .II.
U.S.D.J.

Copies of this Opinion and Order were sent to:
Plaintiffs Counsel:
Christopher H. Thompson

The Law Offices of Christopher Thompson

33 Davison Lane East

West Islip, NY 11795

[phone]

Fax: [phone]

Defendant's Counsel:
Lorie Elizabeth Almon

Seyfarth Shaw LLP.

620 Eighth Avenue

New York, NY 10018-1405

[phone]

Fax: [phone]

17