Phillips v. Orleans County

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

TROY PHILLIPS, )

)

Plaintiff, )

)

Vv. ) Case No. 1:18-cv-00752

)

ORLEANS COUNTY, CHARLES NESBITT, JR. )

in his individual capacity, GERALD GRAY in his )

individual capacity, DANIEL DONOHUE in his )

official capacity as President of the Civil Service )

Employees Association Local 1000, and CIVIL )

SERVICE EMPLOYEES ASSOCIATION )

LOCAL 1000, INC., )

)

Defendants. )

OPINION AND ORDER GRANTING THE COUNTY DEFENDANTS’ MOTION

FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFF’S

MOTION FOR PARTIAL SUMMARY JUDGMENT

(Docs. 87 & 88)

Plaintiff Troy Phillips brings this action against Defendants Orleans County,

Charles Nesbitt, Jr., Gerald Gray, Daniel Donohue, and the Civil Service Employees

Association Local 1000, Inc. (“CSEA”), alleging discrimination based on race and age in

violation of Title VII of the Civil Rights Act of 1964 (“Title VII"), 42 U.S.C. §§ 1981

and 1983, and the Age Discrimination in Employment Act (“ADEA”). Pending before

the court is a motion for partial summary judgment filed by Defendants Orleans County,

Charles Nesbitt, Jr., and Gerald Gray (collectively, the “County Defendants”) on the

issues of ratification and waiver with regard to Plaintiff's race-based hostile work

environment, disparate treatment, and retaliation claims.’ Also pending is Plaintiffs

cross-motion for summary judgment to strike the affirmative defenses of waiver and

ratification.

' The County Defendants do not seek summary judgment with regard to Plaintiff's age

discrimination claim pursuant to the ADEA in Count VI. See Docs. 87 at 2; 87-7 at 33.

Plaintiff is represented by Earl Thomas Hail, Esq. The County Defendants are

represented by Heather L. Dechert, Esq. and Michael P. McClaren, Esq. Defendants

Daniel Donohue and CSEA are represented by Leslie C. Perrin, Esq.

1 Procedural History.

Plaintiff filed a Complaint on July 9, 2018; a First Amended Complaint on July

13, 2018; and a Second Amended Complaint (the “SAC”) on July 16, 2019, The SAC

alleges the following claims: Count 1: racially hostile work environment in violation of

Title VII against Defendant Orleans County; Count II: disparate treatment on the basis of

race in violation of Title VII against Defendant Orleans County; Count Ill: retaliation in

violation of Title VII against Defendant Orleans County; Count IV: violation of 42

U.S.C. § 1981 against Defendant Donohue, in his official capacity, and Defendant CSEA;

Count V: violation of 42 U.S.C. §§ 1981 and 1983 against Defendants Nesbitt and Gray,

in their individual capacities, and Defendant Orleans County; and Count VI: violation of

the ADEA, 29 U.S.C. §§ 621-634, against Defendant Orleans County.

On July 15, 2019, the court issued an Opinion and Order denying the County

Defendants’ motion to dismiss and denying Defendants Donohue’s and CSEA’s motion

to dismiss. A scheduling conference was held on December 2, 2020, at which the court

bifurcated Plaintiff's claims and stayed all discovery unrelated to the issue of whether

Plaintiff released his claims through a settlement agreement.

On October 18, 2021, the County Defendants filed the pending motion for partial

summary judgment regarding Counts I-III and V of Plaintiff's SAC. (Doe. 87.) Plaintiff

opposed the motion on November 15, 2021, and on December 6, 2021, the County

Defendants replied. On October 18, 2021, Plaintiff also filed a motion for partial

summary judgment to strike the County Defendants’ affirmative defenses of waiver and

ratification. (Doc. 88.) The County Defendants opposed the motion on November 15,

2021, and Plaintiff replied on December 6, 2021. A hearing was held on January 14,

2022, at which time the court took the pending motions under advisement.

The County Defendants filed a 136-paragraph statement of undisputed facts. (Doc.

87-6.) In response, Plaintiff filed a sixty-nine-page statement of admissions, partial

admissions, and denials. (Doc. 93-1.) Plaintiff further filed a 136-paragraph statement of

undisputed facts in support of his motion for partial summary judgment. (Doc. 88-2,) The

County Defendants responded with a forty-four-page objection which contained an

additional eighty paragraphs of undisputed facts. (Doc. 92-4.) This briefing style is by no

means supported by the complexity of the issues raised, which are relatively

straightforward and which involve a core set of material facts that are undisputed. See

Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001) (observing that a

statement of material facts is intended to “streamline the consideration of summary

judgment motions by freeing district courts from the need to hunt through voluminous

records without guidance from the parties”); see also Allen v. Dairy Farmers of Am, Inc.,

2014 WL 2610613, at #3 (D. Vt, June 11, 2014) (“Tn light of the voluminous factual

record before the court, and the absence of any discernible effort by the parties to narrow

the fact[s] .. . before the court, the court will not attempt to set forth all of the undisputed

facts but will instead only consider those facts necessary to address the [pending

motions.]”) (collecting cases).

Il. The Undisputed Facts.

On January 14, 2015, Defendant Orleans County terminated Plaintiff's

employment for insubordination and other alleged violations including failure to record

time. On ot about January 22, 2015, Defendant CSEA, Plaintiff's union, filed a grievance

on his behalf protesting his termination. From on or about February 3-9, 2015, Plaintiff

attended meetings with CSEA representatives and discussed a potential settlement. On

February 9, 2015, ina meeting with CSEA Unit President Ms. Cynthia Troy, Plaintiff

signed a written settlement agreement (the “Agreement”) purporting to resolve all of his

employment-related claims against Defendant Orleans County.

The Agreement is written in non-technical language and is comprised of a two-

page, fourteen-paragraph document. It states that Plaintiff will “release the County, which

shall discharge it, its legislators, elected officials, successors and assigns, agents,

employees, managers, department heads and supervisors from any and all actions, suits or

claims, including attorney’s fees, against it arising out of the subject matter of

[Plaintiffs] employment with the County.” (Doc. 87-5 at 10, 4 11.) The Agreement also

states that Plaintiff “acknowledges and agrees that the Union has fully and fairly

represented him in the processing of the above-referenced grievance and in the

negotiation of this [A] greement[.|” /d, at 12. In signing the Agreement, Plaintiff

acknowledged that he “carefully read each and every provision . . . and that he fully

understands all of the terms and conditions of this Agreement.” Jd. at 13.

“Plaintiff received a copy of the fully-executed Agreement in the mail” within “a

couple weeks” after his meeting with Ms. Troy. (Doc. 87-6 at 18, | 120.) He also

received a six-month continuation of his health insurance benefits and a check in the

amount of $17,500 ($16,863.91 after deductions) from Defendant Orleans County, which

he cashed and deposited into his personal bank account. Plaintiff applied for, received,

and cashed unemployment benefits following execution of the Agreement. See id. at §

125. In late July or August of 2015, after Plaintiffs health insurance and unemployment

benefits expired, he contacted an attorney.

On approximately August 19, 2015, Plaintiff “met with [his] attorney related to his

claims in this case” and was “informed that he would need to tender back the

consideration received for the voidable [A]greement.” (Doc. 88-2 at 19, 4 107.) On

approximately August 27, 2015, Plaintiff filed a charge of illegal employment

discrimination with the United States Equal Employment Opportunity Commission (the

“BROC”), which was cross-filed with the New York State Division of Human Rights. See

id. at 21, 4 117. In his EEOC complaint, Plaintiff acknowledged that he had signed a “no

sue letter” during settlement negotiations wherein he waived his rights, including any

Title VII claims. (Doc. 87-4 at 41) (internal quotation marks omitted). Plaintiff, however,

alleged that the Agreement failed to advise him of his rights under the Older Workers

Benefit and Protection Act (the “OWBPA”). On June 17, 2016, the EEOC “issued a right

to sue notice against the [CSEA.]” (Doc. 88-2 at 21,4118.)

In 2017, after being advised he had to return the money he received under the

Agreement, Plaintiff made multiple deposits to his attorney. Approximately nineteen

months after being notified of the tender back requirement, “Plaintiff's attorney issued a

letter to [Defendant Orleans] County dated March 17, 2017, stating Plaintiff intended to

tender back [the consideration received under the Agreement] and requesting an

accounting of the benefits provided[.]” (Doc. 87-6 at 19, □ 130.) In that letter, Plaintiff's

attorney requested the “the name, title[,] and address of the party to whom your client

wishes the tender back check to be sent.” (Doc. 87-4 at 56.) In response, the County

Defendants informed Plaintiff's attorney they “intend[ed| to enforce the release in its

entirety” and would not provide an accounting or accept a tender back payment. (Doc.

88-12 at 2.) Plaintiff did not send any funds to Defendant Orleans County in response. At

the time of Plaintiff's counsel’s tender back offer, Plaintiff had insufficient funds in his

counsel’s account to tender back even the $17,500. (Doc. 87-6 at 19, ¥ 131.)

On April 25, 2018, “the EEOC issued [its] determination as to Orleans County in

which the EEOC, in part, reversed [its] initial determination, finding the waiver [in the

Agreement]... to be invalid under the [OWBPA].” (Doc. 88-2 at 21, q 119.) On July 9,

2018, Plaintiff filed his Complaint in this court. On July 30, 2019, almost four years after

discussing the tender back requirement with his attorney, Plaintiff tendered back payment

in the amount of $17,500 to Defendant Orleans County, which included the lump sum

payment Plaintiff received but not his six months of health insurance benefits or

unemployment benefits. (Doc. 87-4 at §8-59.) Plaintiff's check was returned to him

uncashed in August 2019.

IIL Disputed Issues of Fact.

Although the parties agree regarding many of the events that preceded the

Agreement, certain facts remain disputed, including whether the totality of the

circumstances demonstrate that the Agreement was knowing and voluntary under

Bormann v. AT & T Comme'ns, Inc., 875 F.2d 399 (2d Cir. 1989). The vast majority of

the disputed facts Plaintiff cites pertain to his representation by Defendant CSEA, and not

to the County Defendants. See Kramer v. Vendome Grp. LLC, 2012 WL 48413 10, at *6

(S.D.N.Y. Oct. 4, 2012) (holding that a plaintiff alleging a release was voidable on duress

grounds “must demonstrate that the difficult circumstances she faces are a result of the

defendant’s actions”) (citation omitted) (emphasis supplied), Plaintiff admits that he

never communicated directly with the County Defendants regarding the Agreement,

which was drafted by CSEA. The County Defendants were also not present when he

signed it. He nonetheless claims that Defendant CSEA was acting on the County

Defendants’ behalf in negotiating the Agreement, although he cites no evidence beyond

speculation to support this claim. He likewise cites no evidence that the County

Defendants acquiesced in Defendant CSEA’s alleged dual representation,

For purposes of ratification and tender back, none of the disputed facts are

material. See Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 39 (2d Cir.

2015) (observing that a fact is material if it “‘might affect the outcome of the suit under

the governing law’”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). Accordingly, although disputed issues of fact preclude a resolution of whether

the Agreement was enforceable when signed, the court can resolve as a matter of law the

issue of whether Plaintiff subsequently ratified it.

IV. Conclusions of Law and Analysis.

A. Standard of Review. .

The court must grant summary judgment when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

56(a). “A fact is ‘material’... if it ‘might affect the outcome of the suit under the

governing law.’” Rodriguez, 788 F.3d at 39 (quoting Anderson, 477 U.S. at 248). “A

dispute of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.’” Jd. at 39-40 (quoting Anderson, 477 U.S. at 248). The

court “constru[es] the evidence in the light most favorable to the non-moving party” and

“resolve[s] all ambiguities and draw[s] all permissible factual inferences in favor of the

party against whom summary judgment is sought.” Lenzi v. Systemax, Inc., 944 F.3d 97,

107 (2d Cir, 2019) (internal quotation marks omitted). There is no genuine dispute where

“the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party[.]” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (citation omitted).

The moving party always “bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp, v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks

omitted). “Once the moving party demonstrates that there are no genuine issues of

material fact, the nonmoving party must come forth with evidence sufficient to allow a

reasonable jury to find in [its] favor.” Spinelli v. City of New York, 579 F.3d 160, 166 Qd

Cir, 2009) (internal quotation marks omitted). “Thus, a nonmoving party can defeat

a summary judgment motion only by coming forward with evidence that would be

sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence

of [an] element at trial.” Jd. at 166-67 (internal quotation marks omitted) (alterations in

original).

“The function of the district court in considering the motion for summary

judgment is not to resolve disputed questions of fact but only to determine whether, as to

any material issue, a genuine factual dispute exists.” Kaytor v. Elec, Boat Corp., 609 F.3d

§37, 545 (2d Cir. 2010) (citation omitted). “A non-moving party cannot avoid summary

judgment simply by asserting a ‘metaphysical doubt as to the material facts.” Woodman

WWOR-TY, Inc., 411 F.3d 69, 75 (2d Cir. 2005) (quoting Matsushita, 475 U.S. at 586).

“If the evidence is merely colorable, or is not significantly probative, summary judgment

may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted). However, if the

evidence “presents a sufficient disagreement to require submission to a jury[,]” the court

should deny summary judgment. Jd. at 451-52. “Credibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Kaytor, 609 F.3d 537 at 545 (internal quotation marks

and emphasis omitted).

B. Whether Plaintiff Ratified the Waiver of His Title VII and § 1981

Claims Against the County Defendants.

Plaintiff asserts that he did not execute the Agreement knowingly or voluntarily.

Although he concedes that he signed the Agreement, he claims that, in doing so, he did

not read or understand it. He seeks to be relieved of the Agreement and to preclude the

County Defendants from arguing that he has waived his claims and ratified the

Agreement. The County Defendants respond that the Agreement nevertheless remains

valid and enforceable against Plaintiff because he ratified the Agreement by continuing to

accept its benefits and failing to tender them back in a timely manner.

“In enacting Title VII, Congress expressed a strong preference for encouraging

voluntary settlement of employment discrimination claims.” Carson v. Am. Brands, Inc.,

450 U.S. 79, 88 n.14 (1981). Courts generally refuse to relieve a party of the

consequences of a document which the party has signed but not read, See Marciano v.

DCH Auto Grp., 14 F. Supp. 3d 322, 330 (S.D.N.Y. 2014) (observing that, under New

York law, “‘[a] party is under an obligation to read a document before he or she signs it,

and a party cannot generally avoid the effect of a [document] on the ground that he or she

did not read it or know its contents’”) (quoting Brandywine Pavers, LLC v. Bombard, 108

A.D.3d 1209, 970 N.Y.S.2d 653, 655 (2013)) (alterations in original). Correspondingly,

“(when a party makes a deliberate, strategic choice to settle, she cannot be relieved of

such a choice merely because her assessment of the consequences was incorrect.” US. ¥.

Bank of New York, 14 F.3d 756, 759 (2d Cir. 1994). The parties brief at length whether

the Agreement is enforceable under Bormann. The court need not resolve this issue

because the doctrines of ratification and tender back govern the outcome.

Courts within the Second Circuit “appl[y] the doctrines of ratification and tender-

back in determining whether a release is voidable.” Davis v. Eastman Kodak Co., 2007

WL 952042, at *6 (W.D.N.Y. Mar. 29, 2007). Although the concepts of ratification and

tender back are related, they impose distinct requirements. With respect to ratification, □

the Second Circuit has explained:

It is a generally accepted principle that a voidable contract can be cured by

ratification through express or implied conduct, but that a person charged

with ratification of such a contract must have acted voluntarily and with full

knowledge of the facts... . With respect to ratification of a release by

conduct, the test is whether the releasor, with full knowledge of the material

facts entitling him to rescind, has engaged in some unequivocal conduct

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giving rise to a reasonable inference that he intended the conduct to amount

to a ratification.

Brown v, City of S. Burlington, Vt., 393 F.3d 337, 343-44 (2d Cir. 2004) (internal

quotation marks omitted); see also Clark v. Buffalo Wire Works Co., Ine., 3 F. Supp. 2d

366, 371 (W.D.N.Y. 1998) (“Ratification is an act by which an otherwise voidable and,

as a result, invalid contract is confirmed, and thereby made valid.”) (citations omitted). In

the context of a release involving Title VII claims, “{rjatification occurs ‘at the point that

a party learns that his prior agreement not to sue is voidable but continues to accept the

benefits of that agreement.’” Davis, 2007 WL 952042, at *6 (quoting Livingston v. Bev-

Pak, Inc., 112 F. Supp. 2d 242, 249 (N.D.N.Y. 2000)).

“(T]he tender back doctrine concerns actions the employee-plaintiff must take

before filing suit.” Jd. It “requires, .. asa condition precedent to suit, that a plaintiff

return the consideration received in exchange for a release, on the theory that it is

inconsistent to bring suit against the defendant while at the same time retaining the

consideration received in exchange for a promise vot to bring such a suit.’” /d, (quoting

Oubre v. Entergy Operations, Inc,, 522 US. 422, 436-37 (1998) (Thomas, J. dissenting)

(emphasis in original). “Thus, under the tender back doctrine, an employee who obtains

extra severance benefits in exchange for a release in favor of the employer must tender

the extra benefits back to the employer as a condition precedent to challenging the

validity of the release.” Jd. “The tender back doctrine operates not to make the voidable

release binding, as does ratification, but rather precludes a party from simultaneously

retaining the benefits of the release and suing to vindicate released claims.” /d. (internal

quotation marks omitted).

The Second Circuit has observed “[ijn order to avoid a finding of ratification

where consideration has been paid, it is essential that the releasor tender back the sum

received.” Brown, 393 F.3d at 344; see also Cheung v. New York Palace Hotel, 2005 WL

2387573, at *4 (E.D.N.Y. Sept. 28, 2005) (observing that, within the Second Circuit, “the

rule requiring the return of consideration before a contractual release may be rescinded is

controlling”). While some courts have found that a tender back is not required by federal

discrimination statutes, including Title VII, as a condition precedent fo filing suit,” it

remains true that “failure to tender back the consideration received under a voidabie

release can indicate ratification of said release[.]” Sapio v. Selux Corp., 2021 WL

4844274, at *2 (N.D.N.Y. Oct. 18, 2021) (citation omitted).

Upon his receipt of the Agreement, which he signed in February of 2015, Plaintiff

“continue[d] to accept the benefits of thle A] greement” until his attorney made an inquiry

regarding tender back in March of 2017, almost two years after informing Plaintiff that

the Agreement was voidable. Livingston, 112 F. Supp. 2d at 249 (determining that a

plaintiff who had neither tendered back nor offered to tender back the consideration

received for “almost two years|,]” despite being represented by counsel, ratified the

agreement and was “barred from bringing his federal law claims”) (citing Kristoferson v.

Otis Spunkmeyer, Inc., 965 F. Supp. 545, 548 (S.D.N.Y. 1997)). At the time of the first

tender back offer, Plaintiff’s attorney’s account contained insufficient funds to tender

back even the lump sum payment Plaintiff had received. Although Plaintiff now contends

that he was “able to borrow” the remaining funds, it is undisputed that he did not do so.

(Doc. 93 at 31.) His partial tender back offer was rejected by the County Defendants by

letter dated April 3, 2017. Plaintiff made no tender back prior to filing suit or for

approximately one year thereafter.

While the tender back doctrine may not bar Plaintiff from filing his claims, an

untimely tender back may ratify the Agreement. Based on the undisputed facts in this

case, Plaintiff’s choice to retain the benefits of the Agreement over a period of years with

full knowledge that the Agreement was voidable constitutes ratification as a matter of

law. See, e.g., VKK Corp. v. Nat'l Football League, 244 F.3d 114, 122-23 (2d Cir. 2001)

2 See, e.g., Oubre v. Entergy Operations, Inc., $22 U.S, 422, 427-28 (1998) (holding that a tender

back payment was not a prerequisite to filing suit pursuant to the OWBPA and the ADEA),

McClellan v. Midwest Machining, Inc., 900 F.3d 297, 308 (6th Cir. 2018) (“We therefore hold

that the tender-back doctrine does not apply to claims brought under Title VII[.}”); Sapio v. Selux

Corp., 2021 WL 4844274, at *2 (N.D.N.Y. Oct. 18, 2021) (noting that plaintiff's claims of

discrimination pursuant to 42 U.S.C, § 1981 and other state law causes of action were not

“barred solely by the fact that [plaintiff] did not tender back the consideration she received for

signing the {rJelease prior to filing suit”) (emphasis in original) (footnote omitted),

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(determining that a releasing party must “promptly repudiate” the release to overcome

ratification and observing that “[d]elays as short as six months” have constituted}

forfeiture of [a] claim”); Nicomedez v. AIG, 2012 WL 5264560, at *5 (S.D.N.Y. Oct. 16,

2012) (granting summary judgment on ratification grounds where plaintiff retained the

consideration obtained under a release for over seven months because “(sluch a period is

too long to prevent ratification”); Livingston, 112 F. Supp. 2d at 249 (observing that a

“key element of ratification” is “the failure of the plaintiff to tender back, or to offer to

tender back, the consideration that he received in exchange for executing the release”)

(citations and footnote omitted).

Plaintiff asserts that the Second Circuit’s “prompt repudiation” requirement

articulated in VKK Corp. v. Nat'l Football League does not apply because it “involve[s]

causes of action sounding in [dJuress.” (Doc. 99 at 21). However, if “prompt repudiation”

is required even in cases involving duress, a fortiori, it applies in cases where no duress

by the County Defendants is alleged. See Austin v. Advance Publ’ns, Inc., 2017 WL

1232528, at *4 (E.D.N.Y. Mar. 31, 2017) (finding plaintiff asserting Title VII claim

ratified a release where she secured counsel but waited seven months to challenge the

release, during which she was “no longer under duress and had time to review the

documents|,}” because this period was “too long to be considered ‘prompt’”) (quoting

VKK, 244 F.3d at 123); Loksen v. Columbia Univ., 2013 WL 5549780, at *6 (S.D.N.Y.

Oct. 4, 2013) (concluding plaintiff ratified a release and was barred from bringing Title

VII claims where it was “undisputed that [plaintiff has retained the nine months’ salary

he received as consideration for waiving his claims against the [d] efendants”).

Plaintiff's argument that his filing an EEOC charge asserting voidability of the

Agreement under the OWBPA, (Doc. 88-10), a distinct statutory framework, “provided

Defendant Orleans County with constructive notice that he considered the settlement

agreement to be voidable and that it was his intention to void that agreement[,]” (Doc. 93

at 34), is equally unavailing. When “a plaintiff retains the consideration paid after

executing a release, ‘filing an EEOC charge does not prevent ratification.’” Austin, 2017

WL 1232528, at *4 (quoting Rivera v. Sovereign Bank, 976 F. Supp. 2d 270, 289

Li.

(E.D.N.Y. 2013)); see also Davis v. Eastman Kodak Co., 2007 WL 8098431, at *3

(W.D.N.Y. July 19, 2007) (finding ratification despite plaintiffs’ assertions that they

“acted ‘as quickly as possible’ to challenge [a] release by bringing [their] lawsuit within

the EEOC’s statutory framework”).

Nor does Plaintiff's reliance on the Southern District of New York’s 1997

Kristoferson decision compel a different result. In that case, the court held:

[TJhis Court will henceforth require that, before a Title VII plaintiff who

has previously received benefits for signing a release from such liability

can go forward with such an action, the plaintiff must execute a formal

undertaking that requires the plaintiff, if the release is later found to be

invalid, to return the consideration to the employer, in an amount (including

possible interest) and on a schedule and other terms to be determined by the

Court at the conclusion of the case, regardless of whether the plaintiff

thereafter prevails on her Title VII claim. The Court’s theory in

promulgating this approach is to place formerly-released plaintiffs at some

potential economic risk if they choose to breach the facial terms of the

release by bringing Title VII actions, while, on the other hand, not to

impose an immediate price to the bringing of such a lawsuit that may prove

prohibitive to legitimate victims of discrimination whose very economic

circumstances may have contributed to their involuntarily executing a

dubious release. In short, the object is to make sure that neither side gets a

completely free ride on the expensive conveyance of legal process.

Kristoferson, 965 F. Supp. at 549.

In Davis, this court evaluated Kristoferson and determined that “Tw hile this

approach is innovative, it has not been suggested by plaintiffs in response to the instant

motion, it has not been endorsed by the Second Circuit, and this [c]ourt declines to adopt

it here.” Davis, 2007 WL 952042, at *9 n.7. After reviewing the policy considerations set

forth in Kristoferson, the Davis court found “the doctrines of ratification and tender back

to be controlling[.]” Jd. at *9, Plaintiff had notice of Kristoferson and never proposed its

unique course of action as an alternative to a timely tender back. See Ackermann v.

United States, 340 U.S. 193, 198 (1950) (holding that, in the context of Fed. R. Civ. P.

60(b), strategic decisions made during the course of litigation do not provide a basis for

subsequent relief); see also Austin, 2017 WL 1232528, at *4 (granting summary

judgment on the basis of ratification where plaintiff “retained counsel who would have

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explained the significance of the [release and its terms” but then failed to promptly

repudiate the agreement). Kristoferson is neither controlling nor persuasive, and in any

event, is inapplicable to this case.

Because Plaintiff was represented by counsel who advised him of the tender back

requirement nineteen months before any tender back was proposed and nearly four years

before a partial tender back was made, no rational finder of fact could find that a timely

tender back took place. See Matsushita Elec. Indus. Co., 475 U.S. at 587 (observing that

summary judgment may be granted where no rational fact finder could find in favor of

the non-moving party). Plaintiff’s tender back “occur[red] too late to undo the ratification

resulting from acceptance and retention of the [benefits.]” Tung v. Texaco Inc., 32 F.

Supp. 2d 115, 118 (S.D.N.Y. 1997), aff'd in relevant part, 150 F.3d 206, 209-10 (2d Cir.

1998) (“The judgment of the district court is affirmed insofar as it dismissed [plaintiff's]

Title VII claims[.]”); see also Blakeney v. Lomas Info. Sys., Inc., 65 F.3d 482, 485 (Sth

Cir. 1995) (“Retaining the consideration after learning that the release is voidable

constitutes a ratification of the release. .. . [A] belated tender, afier suit was filed, to

return that part of the severance pay that was attributable to [plaintiff's] discrimination

claims .. . not only fails to return the status quo, but by any standard is untimely.”)

Moreover, Plaintiff received six months of healthcare benefits and unemployment

compensation which were never tendered back.

“By intentionally retaining the .. . benefits [PJlaintiff[] received in exchange for

the release, even after [he was] aware of the alleged defects involved in procuring the

release, [Plaintiff has] ratified the release[ he] signed.” Davis, 2007 WL 952042, at *9.

The County Defendants’ motion for partial summary judgment is therefore GRANTED

and Plaintiffs cross-motion to strike the County Defendants’ affirmative defenses of

waiver and ratification is DENIED.

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CONCLUSION

For the foregoing reasons, the court GRANTS the County Defendants’ motion for

partial summary judgment on its affirmative defenses of waiver and ratification with

regard to Counts I-III and V of Plaintiffs SAC (Doc. 87) and DENIES Plaintiffs motion

for partial summary judgment to strike the County Defendants’ affirmative defenses of

waiver and ratification (Doc. 88).

SO ORDERED.

. ot

Dated this day of June, 2022. ena

Christina Reiss, District Judge

United States District Court

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