# Phillips v. Orleans County

> District Court, W.D. New York · June 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10365035

## Case

- **Court:** District Court, W.D. New York
- **Decided:** June 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10365035

## How later opinions describe it (automated extraction)

- 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
- 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”
- 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’”
- 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”

## Opinion text

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

$

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),
10

(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
12

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.

13

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365035. Public record. Not legal advice.