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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 1 of 17

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




Plaintiff,

12 CV 6758 (RPP)









OPINION AND ORDER



- against -


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.

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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 2 of 17

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.)

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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 3 of 17

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 1-

2.) 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.)



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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 4 of 17

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.




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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 5 of 17

(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, 15-

17, 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



Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 6 of 17

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).

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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 7 of 17

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.)

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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 8 of 17

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).



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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 9 of 17

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.

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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 10 of 17

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

Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 11 of 17

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.

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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 12 of 17

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.)





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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 13 of 17

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).


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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 14 of 17

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”).


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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 15 of 17

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

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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 16 of 17

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.)


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Case 1:12-cv-06758-RPP Document 22 Filed 06/04/13 Page 17 of 17

Dated: New York, New York

June 4,2013

~liitJ 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

(631) 983-8830

Fax: (631) 983-8831


Defendant's Counsel:

Lorie Elizabeth Almon

Seyfarth Shaw LLP.

620 Eighth Avenue

New York, NY 10018-1405

(212) 218-5517

Fax: (212) 218-5526


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