SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-916-94T2
JAMES G. KEELAN,
Plaintiff-Appellant,
v.
BELL COMMUNICATIONS RESEARCH,
Defendant-Respondent.
Argued March 13, 1996 - Decided April 11,
1996
Before Judges King, Kleiner and Humphreys.
On appeal from the Superior Court of
New Jersey, Law Division, Middlesex County.
Peter Van Schaick argued the cause for
appellant.
Roger J. Karlebach argued the cause for
respondent.
The opinion of the court was delivered by
KLEINER, J.A.D.
This appeal involves two issues: (1) when does the statute
of limitations commence to bar a claim under the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and (2)
when is a release of such a claim valid.
Plaintiff James G. Keelan filed a complaint under CEPA on
November 30, 1994. Plaintiff and 750 other workers received
written notification on September 23, 1992 that their employer,
defendant Bell Communications Research, Inc., intended to
implement a "force adjustment" effective December 2, 1992, and
that their employment with defendant would terminate on that
date.
With his notice of termination, plaintiff received a
proposed form of release. He was advised that in exchange for an
executed release, he would receive a termination allowance of
$41,000 less appropriate deductions, six months of paid medical
benefits, and outplacement services to assist him in locating new
employment. Plaintiff was specifically advised, "If you are
eligible, you will receive your service pension regardless of
whether you sign the Release Agreement or not." Plaintiff
executed the release on November 2, 1992. Thereafter, he
received his termination allowance.
Plaintiff's complaint alleged that he was included in the
group of employees being terminated because he had
conscientiously opposed defendant's failure to protect the safety
and health of employees working in one of defendant's facilities
from the hazards of poisonous gases used in a research laboratory
and for raising other safety-related issues. Defendant moved for
summary judgment, contending that plaintiff's claim under CEPA
was untimely filed and, alternatively, that plaintiff was not
entitled to damages because he had executed a general release.
Plaintiff cross-moved for partial summary judgment, contending
that the release contravenes public policy and is unenforceable
as a matter of law.
The motion judge denied plaintiff's cross-motion and granted
summary judgment to defendant. The judge concluded that the one-year limitations period of N.J.S.A. 34:19-5 commenced September
23, 1992, when plaintiff was notified of his impending employment
termination. Plaintiff's complaint, filed November 30, 1993, was
consequently deemed barred by the statute of limitations. The
judge, relying upon our decision in Swarts v. The Sherwin-Williams Co.,
244 N.J. Super. 170 (App. Div. 1990), alternatively
concluded that the release was voluntarily executed and also
barred plaintiff's claim.
Plaintiff appeals both conclusions of the motion judge. We
find that the one-year limitations period under N.J.S.A. 34:19-5
commenced to run on December 3, 1992, when plaintiff's employment
with defendant ceased, and that plaintiff's complaint therefore
was filed timely. We also conclude that genuine material issues
exist as to the voluntariness of the release. Those issues
precluded a grant of summary judgment. See Brill v. Guardian
Life Ins. Co. of America,
142 N.J. 520, 523 (1995); Rosenberg v.
Rosenberg,
286 N.J. Super. 58, 68 (App. Div. 1995).
Plaintiff was employed as Staff Manager for Environmental Health and Safety for defendant. In this capacity, he was responsible primarily for safety and health at the Building III site at Navesink. From 1985 to 1992, plaintiff pressed his
superiors to address and correct safety concerns pertaining to
the use of toxic gases in Building III.
In late 1991, an outside consultant found that "highly
toxic, poisonous and unstable gases are being used in Building
III and the areas are not protected in accordance with the high
hazard criteria. Table 306.2.1 specifically prohibits use of
poisonous gases except in high hazard areas."
In early 1992, defendant's Director issued an annual job-performance evaluation ranking plaintiff as "needing improvement"
on 10 out of 13 measures of "team work." In response to this
unfavorable evaluation, plaintiff filed a whistleblower complaint
(a complaint under the Conscientious Employee Protection Act)
with defendant's Manager of Corporate Security, alleging that he
was being harassed because of his safety work. Plaintiff alleged
that for the next several months, defendant's internal process
for resolving his whistleblower complaint "whitewashed the
misconduct by defendant's mismanagement." In May 1992, plaintiff
and the Director reached an agreement under which plaintiff
refrained from further pursuing his internal CEPA claim. In
return, the Director agreed they would work together
constructively to resolve any future safety concerns on
plaintiff's part.
Later in 1992, Bell conducted a major force reduction. On
September 23, 1992, plaintiff was notified both orally and in
writing that his job would be eliminated effective December 2,
1992. The notice also informed plaintiff that he could apply for
termination benefits consisting of a termination allowance of
$41,000 less appropriate deductions, six months' company-paid
medical benefits, and outplacement services (force adjustment
benefits) to help him locate new employment. The notice
specified that to be eligible for termination benefits, plaintiff
had to sign and return the release agreement attached to the
notification. Defendant contends that the written notification
made clear that termination benefits were not an entitlement but
constituted new and separate consideration. The notification
stated, "If you are eligible, you will receive your service
pension regardless of whether you sign the Release Agreement."
Plaintiff charges that his inclusion in the force reduction
was merely a pretext giving defendant the chance to terminate his
employment. Plaintiff stated, "The only reason I could see why I
was selected for termination was to retaliate against me for
voicing my safety concerns." Plaintiff also contends that he
told several co-employees that he was being terminated in
retaliation for conscientiously opposing unsafe practices.
Shortly thereafter, he claims that he was threatened with
immediate discharge if he was not quiet. Plaintiff also claims
that he tried to appeal defendant's termination decision but was
told that no internal company appeal was possible.
Plaintiff discovered that the release form which was
provided to him was incomplete, as the second page, which
required his signature, was missing. At plaintiff's request, he
was provided with a second page but was given only seven days to
sign it. Defendant claims that plaintiff signed the release the
same day he received the missing second page. Thereafter,
plaintiff received the promised severance package and his
employment terminated. On November 30, 1993, plaintiff filed his
complaint.
The CEPA provides in pertinent part:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose
to a supervisor or to a public body an
activity, policy or practice of the employer
or another employer, with whom there is a
business relationship, that the employee
reasonably believes is in violation of a law,
or a rule or regulation promulgated pursuant
to law;
b. Provides information to, or
testifies before, any public body conducting
an investigation, hearing or inquiry into any
violation of law, or a rule or regulation
promulgated pursuant to law by the employer
or another employer with whom there is a
business relationship; or
c. Objects to, or refuses to
participate in any activity, policy or
practice which the employee reasonably
believes:
(1) is in violation of a law, or a rule or
regulation promulgated pursuant to law;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of
public policy concerning the public health,
safety or welfare or protection of the
environment.
[N.J.S.A. 34:19-3.]
In its motion for summary judgment, defendant conceded that
the activities for which plaintiff claims he was discharged were
whistleblowing activities within the purview of N.J.S.A. 34:19-3a
to c. The primary question presented to the Law Division was
whether plaintiff's CEPA claim was time-barred.
N.J.S.A. 34:19-5, in part, provides:
Upon a violation of any of the
provisions of [CEPA], an aggrieved employee
or former employee may, within one year,
institute a civil action in a court of
competent jurisdiction.
N.J.S.A. 34:19-2e specifically defines "Retaliatory action" as
"the discharge, suspension or demotion of an employee, or other
adverse employment action taken against an employee in the terms
and conditions of employment."
The policy behind CEPA was articulated by Governor Thomas
Kean in the news release issued when he signed it into law on
Monday, September 8, 1986:
It is most unfortunate....but,
nonetheless, true....that conscientious
employees have been subjected to firing,
demotion or suspension for calling attention
to illegal activity on the part of his or her
employer.
It is just as unfortunate that illegal
activities have not been brought to light
because of the deep-seated fear on the part
of an employee that his or her livelihood
will be taken away without recourse.
[Office of the Governor, News Release at 1
(Sept. 8, 1986) (cited in Abbamont v.
Piscataway Bd. of Educ.,
138 N.J. 405, 418
(1994)).]
Defendant did not take "other adverse employment action . .
. in the terms and conditions" of plaintiff's employment.
Defendant did not alter any of the terms or conditions of
plaintiff's employment, but rather terminated him effective at a
future date. Defendant's action severed all terms and conditions
of plaintiff's employment. Nor did defendant merely suspend or
demote or transfer plaintiff. Defendant's retaliatory action,
then, consisted of plaintiff's actual "discharge."
Citing Connecticut Nat'l Bank v. Germaine,
503 U.S. 249,
253-54,
112 S. Ct. 1146, 1149,
117 L.Ed.2d 391, 397 (1992),
plaintiff argues that this court must presume that the
Legislature said what it meant and meant what it said in N.J.S.A.
34:19-3. In Germaine, the United States Supreme Court reiterated
the universal canon of statutory construction that unambiguous
statutory language must be read according to its plain meaning.
Ibid. The definition of retaliatory action speaks in terms of
completed action. Discharge, suspension or demotion are final
acts. "Retaliatory action" does not encompass action taken to
effectuate the "discharge, suspension or demotion." We therefore
find no retaliatory action until plaintiff's actual discharge.
We are cognizant that in an academic setting, the denial of
tenure, and not the subsequent date when the employment ceased,
invokes the running of the statute of limitations as to any claim
under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §2000e and
42 U.S.C. §1981. Delaware State College v. Ricks,
449 U.S. 250,
66 L.Ed 2d 431,
101 S. Ct. 498 (1980); Chardon v.
Fernandez,
454 U.S. 6, 8,
102 S. Ct 28, 29, 70 L.Ed.2d 6 (1981).
However, we are mindful that the Title VII cases have concluded
that the decision not to grant tenure is a distinct employment
action. As noted in the dissent of Justice Stevens in Chardon,
commenting upon Ricks:
The majority held merely that the denial of
tenure in the academic setting is
fundamentally different from a notice of
discharge; it is a distinct and separate
employment action, with important and far
reaching consequences for all aspects of the
employee's status. While denial of tenure is
often followed by discharge, it is not
always, and the consequences of denial of
tenure are not dependent on its being
followed by discharge. The Court found that
Ricks' complaint was based on the denial of
tenure, which was effective immediately; it
followed, therefore, that the limitations
period began as soon as Ricks received notice
of that action. Here, plaintiffs complain of
discharges and demotions, not of any distinct
event that occurred on an earlier date. The
letters notifying them of the planned actions
were notice and nothing more; they were not
actions in themselves comparable to the
denial of tenure.
[Chardon, supra, 454 U.S. at 13, 70 L.Ed.
2d
at 11.]
We find the distinction discussed by Justice Stevens
persuasive in our analysis. This is particularly so in view of
the language of N.J.S.A. 34:19-3, which focuses upon discharge as
a retaliatory act.
We must also take care not to read CEPA in a way that would
undermine its expressed goals. The Supreme Court, in Abbamont v.
Piscataway Bd. Educ.,
138 N.J. 405 (1994), likens CEPA to "a
civil rights statute." Justice Handler stated:
CEPA must be considered "remedial"
legislation and therefore should be construed
liberally to effectuate its important social
goal. Judiciary, Law and Public Safety
Committee, Statement on Assembly Bills No.
2872, 2118, 2228 (1990) (indicating that "the
remedies available under the `whistleblower'
act are to be liberally construed"); see also
Sabella v. Lacey Township, 204 N.J. Super.
55, 59,
497 A.2d 896 (App. Div. 1985) (noting
that remedial statutes must be liberally
construed) . . . .
[Id. at 431.]
CEPA provides only a one-year statute of limitations.
Commencing the statute of limitations at an earlier date
contravenes the concept that CEPA is remedial legislation that
should be liberally construed. The motion judge's conclusion
that plaintiff's cause of action accrued when he received written
notification of defendant's future intent to terminate his
employment effectively shortens the period in which plaintiff
could file his complaint. The decision disregards the fact that
from September 23, 1992 to December 1, 1992, plaintiff was still
gainfully employed by defendant. During that period of time,
plaintiff had the opportunity either through direct contact with
supervisory personnel or by a demonstration of loyalty or
excellent work performance to persuade defendant that its
decision was unwise. We conclude that plaintiff's cause of
action accrued on the date of actual discharge. Plaintiff'S
complaint was therefore timely filed on November 30, 1993.
As an alternative basis for granting summary judgment to defendant, the motion judge concluded that the release that plaintiff signed barred his CEPA claim. In reaching that conclusion, the judge cited Swarts v. The Sherwin-Williams Co., 244 N.J. Super. 170 (App. Div. 1990). In Swarts, we adopted the totality-of-the-circumstances test used by federal courts to determine the validity of an employee's release of claims against his employer. Id. at 177. We reasoned,
[G]iven the statutory goal, the validity of a waiver or release of a claim under the NJLAD must be made with considerations. What those careful considerations are is unsettled in our law. Accordingly, we turn to federal decisional law as a guide for standards appropriate for evaluating a waiver of an unlawful discrimination claim.
[Id. at 176.]
In Swarts, we reviewed federal authority and noted that the
Circuits were then split on the proper standard for a valid
release of an unlawful discrimination claim. Id. at 176-77. We
adopted the standard that we considered more solicitous of
employees' interests: "In light of the public goal of the NJLAD,
we find the totality of the circumstances the more persuasive and
appropriate standard." Id. at 177. Swarts also adopted a list
of six nonexhaustive factors delineated by the Third Circuit,
Coventry v. United States Steel Corp.,
856 F.2d 514, 524 (3rd
Cir. 1988), to determine whether an employee's release of ADEA
claims was knowing and voluntary:
1) the plaintiff's education and business
experience, 2) the amount of the 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.
[Swarts, supra, 244 N.J. Super. at 177
(quoting Coventry, supra, 856 F.2d at 523.]
We also indicated, "Additional factors to be considered are
(1) whether an employer encourages or discourages an employee to
consult an attorney and (2) whether the employee had a fair
opportunity to so." Ibid. (citing Bormann v. AT&T
Communications, Inc.,
875 F.2d 399, 403 (2d Cir. 1988), cert.
denied,
493 U.S. 924,
110 S. Ct. 292,
107 L.Ed.2d 272 (1989);
Cirillo v. Arco Chemical Co.,
862 F.2d 448, 454 (3d Cir. 1988)).
The United States Court of Appeals and the United States District
Courts in our Circuit have applied the totality-of-circumstances
test to employee waivers, using these factors. See, e.g.,
Cirillo, supra, 862 F.
2d at 454; Martinez v. National
Broadcasting Corp.,
877 F. Supp. 219, 227 (D.N.J. 1994); Ponzoni
v. Kraft General Foods,
774 F. Supp. 299, 314 (D.N.J. 1991),
aff'd,
968 F.2d 14 (3d Cir. 1992); Mullen v. New Jersey Steel
Corp.,
733 F. Supp. 1534, 1543 (D.N.J. 1990); McBriarty v.
American Telephone & Telegraph Corp., 1
990 WL 10338, *3, 52 Fair
Empl. Prac. Cas. (BNA) 58 (D.N.J. 1990) (not reported in F.
Supp.); Pears v. Spong,
718 F. Supp. 441, 445 (W.D. Pa. 1989).
Cf. W.B. v. Matula,
67 F.3d 484, 497 (3d Cir. 1995) (using many
of same factors to determine validity of release of claim under
Individuals with Disabilities Act (IDEA)).
The motion judge reviewed each of the Swarts factors and
concluded that there existed no genuine issue of material fact
and that plaintiff's release satisfied the totality-of-the
circumstances test adopted in Swarts. In determining that
conclusion anew, we must
[c]onsider whether the competent evidential
materials presented, when viewed in the light
most favorable to the non-moving party in
consideration of the applicable evidentiary
standard, are sufficient to permit a rational
factfinder to resolve the alleged disputed
issue in favor of the non-moving party.
[Brill v. Guardian Life Ins. Co. of America,
supra, 142 N.J. at 523.]
We initially note that plaintiff has admitted in his brief
on appeal that he is well-educated and that he was encouraged to
consult with an attorney before signing the release.
Accordingly, we first turn our attention to the other factors
discussed in Swarts.
In evaluating the clarity and specificity of the language of
the release, we may compare the release used here with the
release in Swarts. In Swarts, the release under scrutiny, which
we upheld, contained lengthy sentences. In fact, one sentence
contained 130 words. We note that the release provided to
plaintiff contains no sentence with more than fifty words. Most
of the sentences are under thirty words. The release does not
contain legal terminology or arcane vocabulary. Additionally,
the release terms are not inconspicuously placed within the
document. Cf. Cook v. Buxton, Inc.,
793 F. Supp. 622, 625 (W.D.
Pa. 1992) (finding significant that the release consisted of only
four lines of text buried in the middle of a two-page document
and was not otherwise made visible by the employer).
In evaluating clarity, one question which may be asked is
whether objectively the ordinary employee would know of his
rights upon execution of the release. Certainly, a release
executed by an employee who is unaware of his rights is not a
knowing or voluntary release. Plaintiff contends that the
release is unenforceable because it fails to mention the CEPA
claim specifically and consequently fails to apprise plaintiff of
his rights. Plaintiff finds support for that argument by
referring to the Older Workers Benefit Protection Act (OWBPA), 29
U.S.C. §§ 621-634. The motion judge found the OWBPA to be
inapplicable.
President Bush signed the OWBPA into law on the same day
Swarts was handed down, resolving the Circuit split on validity
of employee releases of ADEA claims and adding additional
criteria for a valid release. The OWBPA provides, in pertinent
part:
(f)(1) An individual may not waive any right
or claim under this Chapter [the ADEA of
1967,
29 U.S.C. §626] unless the waiver is
knowing and voluntary. Except as provided in
paragraph (2), a waiver may not be considered
knowing and voluntary unless at a minimum ....
(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 Act;
(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 individual already is
entitled; 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; or
(ii) 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;
(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).]
We disagree with plaintiff's reliance on this Act. OWBPA,
by its own terms, does not govern the validity of releases of
CEPA claims. OWBPA clearly and unambiguously states that "An
individual may not waive any right or claim under this chapter"
unless the release meets the listed criteria. Ibid. (emphasis
added). The Act referred to in the OWBPA is the Age
Discrimination in Employment Act of 1967,
29 U.S.C. §626, not the
New Jersey Conscientious Employee Protection Act.
In evaluating the necessity that the release specifically
refer to the CEPA claim, we note the U.S. Court of Appeals for
the Fifth Circuit recently rejected the argument that an employee
release was invalid because it failed to name the federal
employee-protection statute on which the employee sought to base
his claim, the Worker Adjustment and Retraining Notification Act
(WARN),
29 U.S.C. §2101-2109. The court reasoned:
Williams contends that the releases were
invalid because they did not mention WARN.
This argument is meritless. There is no
obligation under WARN or the common law for
the defendants to mention WARN for the
releases to be valid. The releases stated
that they included all claims relating to the
"time of my employment or to my layoff...."
WARN applies to layoffs and the releases
addressed all claims related to the
plaintiffs' layoffs; thus, the releases
barred WARN claims.
Williams v. Philips Petroleum Co.,
23 F.3d 930, 936 (5th Cir.),
cert. denied, U.S. ,
115 S. Ct. 582,
130 L.Ed.2d 497
(1994). Accord Fair v. International Flavors & Fragrances, Inc.,
905 F.2d 1114, 1117 (7th Cir. 1990) (general release barred ERISA
claim without specific mention of ERISA).
However, federal courts in our Circuit have held that
although employers are not absolutely obligated to mention a
specific statute in order to validly bar claims under that
statute, the failure to make such specific mention is detrimental
to the employer's case that the release is valid. See, e.g.,
Cook, supra, 793 F. Supp. at 624; Ponzoni, supra, 774 F. Supp. at
310; Pears, supra, 718 F. Supp. at 445-46. Given the peculiar
importance of CEPA in protecting whistleblowers' rights and
thereby ensuring public health and safety, defendant's failure to
mention CEPA claims by name and the effect, if any, upon the
issue of whether the release was knowing and voluntary, raised a
material issue which should have precluded a grant of summary
judgment.
Another Swarts factor pertains to time: "the amount of time
the employee had possession of or access to the release for the
purposes of deliberating before signing it." Plaintiff received
the first page of the two-page release on September 23, 1992.
Defendant was given forty-five days to sign the release.
Plaintiff requested the missing second page of the release on
November 2, 1992, seven days prior to the November 9, 1992
deadline.
The second page of the release form contains the following:
WHO IS BOUND
I am bound by this Release. In
addition, anyone who succeeds my rights and
responsibilities, such as my heirs or the
executor of my estate, is also bound. This
Release is made for Your benefit and all who
succeed to Your rights and responsibilities,
such as Your successors and assigns and the
heirs or the executor of Your estate.
REVIEW
I acknowledge that I was given this Release form at least forty-five (45) days prior to the date I was asked to sign it, and that I was advised to use the 45 days to consult with an attorney of my choosing,
prior to signing it. I also acknowledge that
I understand that this Release does not
become effective until seven (7) days after I
sign it, and unless agreed to by Bellcore. I
also acknowledge that within this seven-day
period I may revoke this Release and that if
I revoke this Release or Bellcore does not
agree to it, it will become null and void
and, I will not receive a termination
allowance. I also understand that should I
choose not to revoke this Release within the
seven (7) day period, and Bellcore agrees to
the terms of this Release, the Release will
then become effective and that Bellcore will
then pay me the termination pay allowed when
my employment with Bellcore terminates.
SIGNATURES
I have read, understand, and voluntarily
agree to the terms of this Release.
EMPLOYEE SIGNATURE: DATE:
The motion judge in his review of the "time factor" stated:
It is clear that Page 2 of the release didn't
add anything other than the signature page
and release of--of the heirs rights. In
other words, the major content--contents of
the release were stated on Page 1. In any
event, he had that--that Page 2 sufficient
time to--to look at it before making a
decision.
We disagree. Page two of the release does contain an
important contractual term applicable to plaintiff's heirs in the
event of his death. Moreover, page two contains an important
acknowledgment that plaintiff had forty-five days to review the
entire release document. Clearly, plaintiff had forty-five days
to review page one of the release. He had only seven days to
review page two. Although CEPA does not require that an employee
be given forty-five days to review a release before executing the
document, that period is clearly relevant in an evaluation of the
broader question of whether plaintiff voluntarily and knowingly
executed the release. Defendant argues that the letter dated
September 23, 1992 covered much of the same information that is
included within the release. Although defendant's contention is
correct, the letter did not contain any reference to the
contractual provision pertinent to the binding effect of the
release on plaintiff's heirs.
The fact that defendant gave plaintiff the second page of
the release well after the first page does not automatically
preclude a finding that the release was knowing and voluntary.
However, that question cannot be answered summarily. Swarts held
that eight days was enough time for the employee there to review
the release for purposes of an LAD waiver. 244 N.J. Super. at
178-79. Swarts, however, is countered by Cook v. Buxton, Inc.,
supra, 793 F. Supp. at 624-26, in which the Western District of
Pennsylvania held that ten days was insufficient time to
deliberate for a knowing and voluntary waiver of employment
claims. We conclude that the effect, if any, that the shorter
period of possession of page two of the release had upon
plaintiff's decision to sign the release after he received the
second page is a material fact that requires determination after
a plenary hearing.
The third factor in Swarts concerns the role of the employee
in deciding the terms of the release. This factor is not
specifically discussed in Swarts but is specifically discussed in
Coventry. This prong of the totality test is met when the
employee has the opportunity to negotiate, regardless of whether
he actually attempts to do so. See Coventry, supra, 856 F.
2d at
524-25. See also Cirillo, supra, 862 F.
2d at 454 n.4; Ponzoni,
supra, 744 F. Supp. at 312 (holding that plaintiff never sought
to discuss or negotiate, he did not establish oppressive
atmosphere and so absence of actual negotiation was not strong
indicator that release was unknowing or involuntary). Here,
Keelan had several conversations with Human Resources Specialist
Kieran Kole. Compare Mullen, supra, 733 F. Supp. at 1544-45,
wherein the employee had an opportunity to negotiate because he
had two meetings with his boss, one the day after he was
terminated, when he requested severance and the second when he
signed the release. The record includes Kole's affidavit, which
states, "Other employees did make requests for changes and some
of those requests were granted." We agree with the motion judge
that plaintiff had the opportunity to negotiate the terms of the
release.
The sixth and last Swarts factor is "whether the
consideration given for the release and accepted by the employee
exceeds the benefits to which the employee was entitled by
contract or law." Plaintiff contends that his termination
package was no more generous than that offered to any other
employee who signed a release, even though those employees had no
CEPA claim. This is not grounds for holding that the release was
unknowing and involuntary or for otherwise invalidating the
release. Neither contract nor law entitled plaintiff to the
benefits which he received for signing the release. Defendant's
cover letter accompanying the release clearly emphasized that
these benefits were separate from and in addition to those to
which terminated employees were already entitled: "If you are
eligible, you will receive your service pension regardless of
whether you sign the Release Agreement or not." In short,
plaintiff's acceptance of the release entitled him to
consideration above and beyond that to which he was entitled
absent the release, not to consideration above and beyond what
other terminated employees received for signing the release.
Summarizing our decision on this point, we hold that some
but not all of the Swarts factors raise material issues of fact
which preclude the granting of summary judgment.
Plaintiff contends that the release is unenforceable, as it was signed under duress. In support of that contention, plaintiff contends that he was under extreme pressure, as he had recently been divorced and had purchased a home and was in severe financial difficulty. While those factors may be grounds for personal sympathy for plaintiff, economic pressure alone is not enough to constitute duress rendering an otherwise valid release void. See, e.g., Three Rivers Motor Co. v. Ford Motor Co., 552 F.2d 885 (3d Cir. 1975); The Adonis, 38 F.2d 743, 744 (3d Cir. 1930); Killian v. McCulloch, 873 F. Supp. 938, 943 (E.D. Pa.
1995); Reed v. SmithKline Beckman Corp.,
569 F. Supp. 672, 674
(E.D. Pa. 1983).
However, plaintiff also contends that his supervisor
threatened him with immediate termination if he did not cease
discussing his CEPA claim with other employees. Immediate
termination would have deprived plaintiff of any opportunity to
accept the benefit package promised by defendant. The nature and
extent of the alleged threat by plaintiff's supervisor and the
effect that the threat had upon plaintiff's decision to execute
the release is material to the broader question of whether there
was a knowing and voluntary execution of the release.
Summary judgment was improperly granted.See footnote 1 Reversed.
Footnote: 1We need not address plaintiff's numerous references and arguments predicated upon OWBPA. As we noted, we have concluded that OWBPA is inapplicable to an analysis of the efficacy of the release of CEPA claims.