MARIE SUCHOWACKI v. GENERAL MOTORS CORPORATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6398-04T26398-04T2

MARIE SUCHOWACKI,

Plaintiff-Appellant,

v.

GENERAL MOTORS CORPORATION, GENERAL

MOTORS TRUCK & BUS LINDEN ASSEMBLY,

CARLOS SANZ, individually and

in his official capacity as Area

Manager of General Assembly, JOHN

AGLIALORO, individually and in his

official capacity as the Plant Manager,

Defendants-Respondents,

and

JOHN OFSANKO, individually and in his

official capacity as Manufacturing Planner,

Defendant.

_________________________________________

 

Submitted March 20, 2006 - Decided April 11, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

L-4678-03.

Martin Melody, attorneys for appellant (Eugene J. Melody and Nancy S. Martin, of counsel; Ms. Martin, on the brief).

Klett Rooney Lieber & Schorling, and Heather R. Gill (Lathrop & Gage) of the Missouri Bar, admitted pro hac vice, attorneys for respondents (Rosemary J. Bruno, Christopher J. Dalton, and Ms. Gill, on the brief.)

PER CURIAM

Plaintiff, Marie Suchowacki, appeals from a July 8, 2005, Order granting summary judgment in favor of defendants, General Motors Corporation (GM), Carlos Sanz and John Aglialoro, and dismissing plaintiff's complaint alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. The judge found that plaintiff knowingly and voluntarily signed a release of her previously filed LAD claims when she signed and did not later revoke a One-Year Transition Program (OYTP) Agreement, which allowed certain salaried employees at GM's Linden plant to take a one-year paid leave of absence prior to retiring. We reverse and remand for further proceedings.

On December 30, 2003, plaintiff filed a two-count complaint in the Law Division, alleging gender discrimination and retaliation under the LAD. Following an unsuccessful attempt to remove the matter to the federal court, GM and Aglialoro filed their answer on March 16, 2004, denying the allegations in plaintiff's complaint. On July 1, 2004, defendants Ofsanko and Sanz filed their answer, also denying the allegations in plaintiff's complaint. Plaintiff filed an amended complaint on March 30, 2005, alleging two additional counts of gender discrimination and retaliation. Thereafter, the parties signed a joint stipulation dismissing without prejudice the claims against Ofsanko and the third and fourth counts of the amended complaint against Sanz.

We recite the facts relevant to the disposition of this appeal. Plaintiff is a high school graduate who attended one year of college. In October 1972, plaintiff commenced working for GM as an hourly employee at the General Motors Truck & Bus Linden Assembly Plant (Linden Plant). In January 1978, she was promoted to a salaried, sixth-level supervisory position on a temporary basis, which became a permanent assignment in 1980. She held that position until 1988 when she was promoted to a seventh-level general supervisor. Slightly over one year later, due to a reduction in "shift," plaintiff again became a sixth-level supervisor.

In 1992 or 1993, plaintiff was promoted to a seventh-level general supervisor position. In March 1994, plaintiff assumed the position of eighth-level acting shift superintendent, but was returned to the seventh-level position in August. During the remainder of her employment with GM, plaintiff held various seventh-level positions, including manufacturing planner, senior engineer, general supervisor, and business manager.

During the time that plaintiff held the position of acting general assembly planner, she claimed that her superiors told her that she would assume the position permanently in November or December 2001. Instead, a male employee was given the position. Following the receipt of a right to sue letter from the Equal Employment Opportunity Commission, she filed her December 2003 complaint.

Plaintiff continued as an employee. In the fall of 2004, while plaintiff's LAD case was pending, GM announced that the Linden Plant would cease production. GM employees, both salaried and hourly, were given an opportunity to apply for a transfer to another facility. In January 2005, plaintiff applied for a transfer to a Wilmington, Delaware facility, but was not selected. According to plaintiff, the other applicants were five males, all of whom received positions in Wilmington. Her amended complaint followed her non-selection for employment in Wilmington. According to GM, she could apply for a position in Arlington, Texas.

On March 7, 2005, GM offered forty-three eligible salaried Linden Plant employees who would be at least fifty-one years old by the end of December 2005, and had ten or more years of service, an opportunity to participate in the OYTP. Those participating would receive a continuation of their full salary for twelve months, vehicle vouchers of $10,000 for seventh-level employees, and $20,000 for eighth-level employees, life insurance, tuition reimbursement up to $7000, and the continued opportunity to participate in the Health Care Program, Flex Enrollment spending accounts, and Long-Term Care Insurance. GM retained outside consultants to offer pre-decision career/life counseling and reemployment transition services. GM also retained Fidelity Investments to offer a Retirement Income Advantage Program to employees at no cost.

The eligible employees had forty-five days to review and sign the OYTP Agreement, which included a release of claims, and an additional seven days after signing to revoke an acceptance. Defendant Aglialoro, Plant Manager, and Claude Willis, Personnel Director, met with each of the forty-three employees to explain the OYTP and to give them a packet that included the OYTP Agreement.

The Agreement contains the following relevant language:

I have evaluated the policy and benefit arrangements made available to me under the OYTP and have decided to accept them. I understand the purpose of the OYTP is to assist participating employees to transition to a career outside of GM. My leave of absence will be effective June 1, 2005 and I will separate employment from GM no later than May 31, 2006 at the expiration of my one-year OYTP leave.

. . . .

I am satisfied with the terms of this Agreement and the OYTP and acknowledge I am voluntarily accepting these terms. This acceptance is not under duress. I acknowledge that I am not being coerced into signing this Agreement. I understand that execution of this Agreement is a condition of eligibility for the OYTP.

. . . .

I further acknowledge GM has made decisions regarding operations, staffing, redeployment, job assignment, and/or employee placement in reliance upon my decision to separate. Once this Agreement is effective, I will not be allowed to rescind my decision regarding the OYTP and GM may terminate my employment on May 31, 2006. I further acknowledge that I will not be eligible at any time in the future for reemployment by GM or affiliated companies.

(emphasis added).

It also includes a release, which states:

In consideration for the provisions of the OYTP, I, on my behalf and on behalf of any heirs, agents, representatives, successors, or assigns, hereby release and forever discharge GM and its subsidiaries, their officers, directors, employee benefit plans and employees, from all claims, demands, and causes of action, known or unknown which I may have based on my employment or my separation from GM or its subsidiaries. This release specifically includes, without limitation, a release of any claims I may have under the Employee Retirement Income Security Act of 1974 (ERISA); the Age Discrimination in Employment Act (ADEA), which prohibits discrimination in employment based on age; Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, national origin, religion, or sex; the Equal Pay Act; state fair employment practices or civil rights laws, and any other federal, state, or local laws, or regulations, or any common law actions relating to employment, or employment discrimination, including but not limited to those which preclude any form of discrimination based on age. This includes, without limitation, any claims for breach of employment contract, either express or implied, defamation, slander, libel, and wrongful discharge. This Agreement does not waive any claims that arise after the date I separate from GM under this Agreement. (emphasis added).

The provision setting forth the forty-five day review period and the seven-day revocation period states:

I acknowledge that I have been offered a period of forty-five (45) days to review and consider this Agreement before signing it. If I execute this Agreement, I shall have a period of seven (7) calendar days to revoke, in writing, my acceptance and this Agreement shall not be effective until expiration of this 7-calendar day period. For this revocation to be effective, written notice must be received by the representative of GM, whose name appears below [on the signature line], no later than the close of business on the 7th calendar day after I sign this Agreement. If I revoke this Agreement, it shall not be effective or enforceable, and I will not receive the benefits and considerations described therein.

The OYTP "encouraged [eligible employees] to review the provisions and the terms of the Agreement with an attorney or advisor of their choosing." The Agreement also states in a separate paragraph, "I have also been advised to consult with an attorney, but understand whether or not I do so is my own decision."

On March 24, 2005, plaintiff's counsel sent GM's counsel a settlement demand of $100,000. Aglialoro was deposed on March 29, 2005, a day prior to his meeting with plaintiff concerning the OYTP. Aglialoro and Willis met with plaintiff on March 30, 2005. Nobody discussed the lawsuit during the meeting or that plaintiff would release her claims by signing the Agreement. On April 12, 2005, GM's counsel rejected plaintiff's demand and made a counter-offer of $3000. Plaintiff rejected GM's $3000 offer on April 13, 2005. Plaintiff signed the OYTP on April 28, 2005.

On May 18, 2005, GM's counsel sent plaintiff's counsel a Joint Stipulation of Dismissal of Plaintiff's Claims With Prejudice and a letter notifying him that plaintiff had signed the OYTP release. Plaintiff's counsel responded in a letter dated May 24, 2005, labeling the May 18 letter an "attempt[] to enforce an alleged settlement reached with our client without communicating same to this office . . . ." Plaintiff's counsel further noted the seven-day review period in the OYTP and advised that because it was less than seven days since counsel was notified respecting "the purported settlement, [i]t is hereby rejected." He also raised ethical considerations if it was GM'S intention to rely on the seven-day review period because plaintiff's counsel was not notified. The motion for summary judgment, which is the subject matter of this appeal, was filed on behalf of defendants on June 10, 2005.

Granting defendants' motion, the judge stated:

The court has to deal with whether the . . . waiver was executed knowingly or willfully and there is the totality of the circumstances. . . . There are eight criterias [sic], which perhaps are not exhausted [sic], but certainly are factors to be considered by the court.

Plaintiff argues the agreement is invalid since they didn't prepare the agreement. It was . . . unclear they argue and that they were misdirected. At least counsel says that was what occurred, but he does not dispute that plaintiff meets one of the criteria about education, business experience. There is no question that she had 45 days in which to review the matter, that the consideration exceeded the benefits to which she was entitled through her employment, that she was encouraged pursuant to the agreement to consult [an] attorney, that she had an opportunity to do so, and the court finds certainly there was no slight of hand, that was the misdirection, the argument.

Again, there's sufficient case law, including [Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577 (App. Div.), certif. denied, 181 N.J. 545 (2004)], which talks about releases, the signing of a release, the impact. Any . . . distinctions that that case might raise, does not change the analysis in this matter. Again, in this case, GM's release includes the following languages [sic], which I've read a few times, for all fair employment practices, civil right [sic] law, federal, local, regs, common law relating to employment or employment discrimination. That language is clearly less ambiguous than any claim language that was used in the [Rockel] case. They were any claims. [sic] Here . . . they're specific, therefore, the language is such that the execution of the agreement should be and can be considered knowing and willful, in spite of plaintiff's misunderstanding of its impact. She was given the opportunity, 45 plus seven. The fact that counsel only became aware of that and that within seven days of his becoming aware of it took action, in fact, the seven days had long passed before counsel was consulted by his client.

I'm satisfied, therefore, plaintiff signed a valid general waiver of all claims against the defendant, therefore, the defendant's motion is granted.

Because this appeal arises from the grant of motions for summary judgment, "we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff[]." Strawn v. Canuso, 140 N.J. 43, 48 (1995). Plaintiff essentially contends that the motion judge erred in applying the standard required for the granting of summary judgment. She argues that the judge did not appropriately consider the "totality of the circumstances" as enunciated in Swarts v. Sherwin-Williams Co., 244 N.J. Super. 170 (App. Div. 1990), while defendants argue the contrary.

Plaintiff asserts that the judge did not address the ethical considerations respecting GM's failure to contact plaintiff's counsel at the time it offered the OYTP, which contained release language, despite its knowledge of plaintiff's ongoing litigation. In this regard, plaintiff points to the timing of Aglialoro's meeting with her one day after his deposition, signifying that, despite clear knowledge of the plaintiff's pending suit, he never mentioned it in relationship to the OYTP offer. Additionally, plaintiff questions the timing of the March 30 meeting occurring between the outstanding March 24 offer to settle and defendant's counteroffer of $3000 on April 12. Plaintiff also focuses on the fact that GM litigation counsel was made aware of the OYTP offer from its client sometime prior to his being notified and that he was notified for the first time by counsel after the revocation period had passed.

Plaintiff also asserts that, three days prior to signing the OYTP, she sent a check for $1500 to a financial expert to prepare a financial wage loss report for her lawsuit. She argues that that she would not have done so had she known that she was dismissing her lawsuit. She also asserts that it was her belief that the release language in the package was without prejudice to her lawsuit because she had been offered a $3000 settlement following the OYTP offer, every other eligible employee received the same package, and her complaint was not mentioned in the release.

In Swarts, this court adopted the six factors enumerated in the Third Circuit's decision in Coventry v. U.S. Steel Corp., 856 F.2d 514, 524 (3d Cir. 1988), and an additional two factors from other cases decided by the Second and Third Circuit Courts of Appeal, to determine whether a release is knowing and voluntary. Swarts, supra, 244 N.J. Super. at 177. The eight factors to be considered as part of the "totality of the circumstances" are:

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, . . . 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 an employer encourages or discourages an employee to consult an attorney and [8)] whether the employee had a fair opportunity to do so.

[Ibid. (quoting Coventry, supra, 856 F. 2d at 523).]

These eight factors, however, are not "exhaustive." Ibid. Indeed, we stressed "the need to carefully examine any situation in which older worker[s] bargain[] away [their] statutory right to be free from age discrimination." Ibid. We also note in passing that the plaintiff's LAD complaint in Swarts was filed after he had signed his release in exchange for a retirement package. Id. at 175.

Defendants assert the following points: (1) the release provision in the OYTP was clear and used specific language; (2) plaintiff's education and business experience were sufficient for her to fully evaluate and understand the OYTP and release provisions; (3) she never asked for any modification of the Agreement terms; (4) she was given adequate time to review and sign the agreement and revoke it after execution; (5) she was represented by counsel throughout; (6) she was encouraged by the plain wording of the agreement to consult counsel and given a fair opportunity to do so; and (7) she received substantial consideration for waving her claims.

We agree that the evidence presented by defendant at first blush established all but factor five. We also agree that plaintiff's stated belief that the OYTP did not apply to her lawsuit did not excuse her failure to clarify whether it had an impact on her suit or discuss it with her attorney before signing it. We are also struck, however, by the circumstances raised by plaintiff, specifically the timing of the meeting with Aglialoro, his failure to refer to plaintiff's lawsuit during the meeting, the inherent inconsistency of GM's counteroffer made while the OYTP offer, purportedly releasing plaintiff's prior LAD claim, was outstanding, and the lack of any information as to whether corporate counsel, who presumably prepared the OYTP Agreement, was aware or made aware by Aglialoro or anyone else of plaintiff's prior claim, thus requiring defendants to provide notice to plaintiff's counsel during the time the offer was outstanding or within the revocation period.

There is also some question in our minds concerning whether the OYTP consideration was given in exchange for plaintiff waiving her existing lawsuit. That is to say, was the OYTP Agreement release language intended by GM to reach back to the discrimination issues raised by plaintiff prior to GM's determination to close the Linden plant, or did it, in the context in which it was made, pertain to the separation of the forty-three employees from their employment with GM and, to that extent, apply only to plaintiff's Count Three and Four claims regarding GM's decision not to transfer her to its Wilmington facility. Although the release language encompasses claims the releaser "may have based on . . . employment or . . . separation," the stated purpose of the OYTP was "to assist participating employees to transition to a career outside of GM." It further acknowledged that in reliance upon the employee's decision to separate, GM had made operational, staffing, redeployment, job assignment, and employee placement decisions. Likewise, the lack of communication between GM and its litigation defense counsel during the period that the OYTP remained open, and prior to plaintiff's acceptance, suggests that the OYTP Agreement release language was separate and apart from the ongoing litigation.

The principles and purposes governing summary judgment are well settled. The most significant aspect of these principles is that all reasonable doubts as to the presence of genuine issues of fact are to be resolved against the movant. Ruvolo v. Am. Cas. Co., 39 N.J. 490, 499 (1963). After carefully considering the entire record and the arguments in the light of the applicable law, we do not have sufficient confidence in the state of the record to endorse the motion judge's grant of summary judgment in favor of defendants because there remains a genuine issue of material fact as to whether, under the totality of the circumstances, there was a voluntary and knowing waiver by plaintiff of all of her discrimination claims. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

We are satisfied that, because these issues deal with the conduct of the parties and that of counsel during the pendency of the underlying LAD litigation, the court must conduct a hearing to determine the credibility of plaintiff's stated belief and whether GM intended its release language to apply to litigation pending at the time the OYTP offer was outstanding and, if so, to what extent. In determining GM's intent, the court should consider the circumstances giving rise to the $3000 counteroffer, its relationship to the OYTP Agreement and whether individuals in the corporation had knowledge of both between March 24, and April 12, 2005. Moreover, if the court determines that the release language was intended to apply to plaintiff's litigation, it should consider whether corporate counsel responsible for preparing the OYTP Agreement gave instructions to advise pending litigation counsel of the release and, if not, why such instructions were not provided. Consideration should also be given to what transpired at the meeting between plaintiff and Aglialoro. Only after a full consideration of these fact-sensitive issues can a determination be made concerning whether, under the totality of the circumstances, plaintiff voluntarily waived her existing claims, or the failure to inform litigation counsel or specifically refer to plaintiff's ongoing litigation unfairly influenced plaintiff to bargain away her statutory right to be free from discrimination in the work place.

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

 

The complaint also named General Motors Truck & Bus Linden Assembly, which is not a separate corporate entity, but the plant owned by GM where plaintiff was employed. We, therefore, refer to both, collectively, as GM.

Twelve months of plaintiff's salary totaled $97,560.

Although Aglialoro indicates the meeting occurred on March 30, plaintiff alleges that Aglialoro was deposed one week prior to the meeting that occurred "[i]n or about" the first week in April.

(continued)

(continued)

17

A-6398-04T2

April 11, 2006