Fact Issues Preclude Dismissal of Title VII Sexual Harassment and NYCHRL Aiding and Abetting Claim Against Columbia University; Alleged Release Not Dispositive

In CHRISTIAN ESPINAL, Plaintiff, v. THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, RAMON MARTINEZ, Individually, KIM KADEL, Individually, & TERRI CALDES, Individually, Defendants., No. 16 CIV. 4100 (CM), 2016 WL 6561406 (S.D.N.Y. Oct. 24, 2016), the court held that issues of fact precluded dismissal of plaintiff’s sexual harassment claims. Specifically, the court could not conclude, as a matter of law at the motion to dismiss stage, that an alleged waiver of claims was “knowing and voluntary”.

This case arises from plaintiff’s allegations that, while working at Columbia University in food service, he was subjected to sexual harassment by a fellow worker. Defendants investigated the complaint, and concluded that both plaintiff and the alleged harasser were both involved in inappropriate conduct and could no longer work for the university. After being given the opportunity to resign, the parties entered into a “Memorandum of Agreement” outlining the terms of plaintiff’s departure. In exchange for a release of claims by plaintiffs, Columbia agreed to provide plaintiff with a neutral reference and not to contest plaintiff’s unemployment benefits. Plaintiff later sued; the defendants moved to dismiss plaintiff’s complaint, arguing (inter alia) that this release barred plaintiff’s claims.

The court explained the applicable law:

The enforceability of the Memorandum of Agreement as to Plaintiff’s Title VII claims is governed by federal law. See Olin Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 15 (2d Cir. 1993); Cordoba v. Beau Dietl & Assocs., No. 02 Civ. 4951 MBM, 2003 WL 22902266, at *4 (S.D.N.Y. Dec. 8, 2003). Under Title VII, an employee may waive a discrimination claim so long as the release is made knowingly and voluntarily. Cordoba, 2003 WL 22902266, at *4.The Second Circuit has adopted a “totality of the circumstances” test to determine whether a waiver of Title VII claims is knowing and voluntary. See Bormann v. AT&T Commc’ns, Inc., 875 F.2d 399, 403 (2d Cir. 1989). In Bormann, the Second Circuit outlined several factors relevant to this analysis:(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, 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.In addition, courts have considered a seventh factor—whether the employer encouraged the employee to consult an attorney and whether the employee had a fair opportunity to do so.Id.These factors are not an exhaustive list, “and all need not be satisfied before a release is deemed enforceable.” Cordoba, 2003 WL 22902266, at *5. “The essential question is whether, in the totality of circumstances, the individual’s waiver of his right can be characterized as knowing and voluntary.”

Applying the law, the court explained:

The Columbia Defendants argue that Plaintiff’s waiver of his right to sue was knowing and voluntary under Bormann’s totality of the circumstances test.

Plaintiff, on the other hand, contends that his waiver of rights cannot be characterized as knowing and voluntary under Bormann.

On the surface, it is obvious that some of the relevant Bormann factors are satisfied.

Plaintiff has sufficient education and business experience to warrant “the inference that [he] was capable of understanding the terms of the” Memorandum of Agreement. Id.; see also Bachiller v. Turn On Prods., Inc., No. 00 Civ. 8701(JSM), 2003 WL 1878416, at *4 (S.D.N.Y. Apr. 14, 2003), aff’d,86 Fed. App’x 465 (2d Cir. 2004). The Memorandum of Agreement is “unambiguous and comprehensible.” Cordoba, 2003 WL 22902266, at *5. InMandavia v. Columbia Univ., 912 F. Supp. 2d 119, 131 (S.D.N.Y. 2012), the Court held that a similar one-page release involving Columbia University was “clear and unambiguous,” satisfying the Bormann factor. Plaintiff also received valid consideration for his waiver—namely, Columbia University’s promise to provide prospective employers with a neutral reference and not to contest his application for unemployment benefits. Cordoba, 2003 WL 22902266, at *6.

However, Plaintiff argues in his affidavit that he lacked sufficient time to review the Memorandum of Agreement before signing it, and that he was not given the opportunity to consult with an attorney during the July 30, 2015 meeting. In his affidavit, Plaintiff describes a “short time span and high-pressure environment.” See Mandavia, 912 F. Supp. at 130.

Plaintiff played no active role in negotiating the terms of the Memorandum of Agreement. Although Plaintiff acknowledged in the Memorandum of Agreement that he was fully and fairly represented by his Union, Plaintiff claims in his affidavit that he was given several documents to sign in a short period of time and did not have an opportunity to review any of them. While the Columbia Defendants claim that Plaintiff’s representation by his Union is sufficient, Plaintiff attests that he “was not given an opportunity to consult with an attorney nor was an attorney present when [he] signed the document.” (Espinal Decl. ¶ 8) Finally, Plaintiff claims that he was pressured by the University to “make a decision on the spot and that his only guidance came from” his Union representative, who does not appear to be an attorney. See Mandavia, 912 F. Supp. at 132. Although the Columbia Defendants argue that Plaintiff was encouraged to meet with an attorney, the Memorandum of Agreement “itself does not offer that advice,” see id., and Plaintiff himself denied under oath that he was given this opportunity.

In his opposition brief, Plaintiff, for the first time, argues that he was “fraudulently induced” to sign the Memorandum of Agreement. Plaintiff claims that he “only signed the Agreement with the false impression that he was signing a document that his unemployment benefits [would] not be contested by Defendants.” (Pl. Br. at 12) The “false impression” was allegedly conveyed by Plaintiff’s Union representative. Plaintiff’s complaint does not plead a cause of action for fraudulent inducement, but the allegations pertaining to the pressures that Plaintiff felt in executing the Memorandum of Agreement, including statements made by the (non-party) Union representative, affect whether Plaintiff’s waiver was knowing and voluntary under Bormann.

Given the existence of disputed issues of fact, the Court cannot conclude, at the motion to dismiss stage, that Plaintiff knowingly and voluntarily released the Columbia Defendants from liability.