Decided: October 16, 1990; As Amended November 27, 1990.
On appeal from Superior Court, Law Division, Ocean County.
Petrella and Muir, Jr. The opinion of the court was delivered by Muir, Jr., J.A.D.
[244 NJSuper Page 172] This appeal requires us to determine whether plaintiff executed a valid waiver of his age discrimination rights under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-12, when he signed a release and covenant not to sue in return for special severance pay allowance and at the same time retired from the defendant's employment. The trial judge found plaintiff knowingly and voluntarily signed the waiver, found the waiver supported by valid consideration, and granted summary judgment dismissing plaintiff's complaint. We affirm and, in doing so, adopt a totality of the circumstances approach for determining the validity of such waivers.
The essential facts are undisputed. On December 9, 1963, at age 39, plaintiff went to work as an assistant foreman at defendant's production and paint filling department in Newark, New Jersey. Shortly thereafter, he became foreman and worked at the Newark facility until a 1969 promotion led to a transfer to a Georgia manufacturing and packing facility. In 1972 he received another promotion and returned to Newark. By 1981 he had risen to Distribution Manager earning over $25,000 annually. During his employment with defendant, he enhanced his Newark Diesel Institute degree by taking college courses in personnel management.
In 1981 plaintiff's standing with defendant took a turn for the worse. A new supervisor found plaintiff short on qualifications for his then management position. The supervisor offered plaintiff a demotion at the Newark facility, which plaintiff accepted. The supervisor also put plaintiff on a non-raise status.
Shortly thereafter, defendant transferred plaintiff to South Plainfield to manage a smaller warehouse. Subsequently, defendant again transferred plaintiff to another facility in Piscataway.
As the result of his demotion and non-raise status, plaintiff sought a personnel department review of his treatment. In a six-page handwritten letter, plaintiff described his employment history. In the letter he pleaded, "Was there anything I could do to further prove myself and at least be left alone until retirement time." Plaintiff ended the letter by saying, "I firmly believe this is a pure case of age discrimination." The letter did not result in any change in plaintiff's employment circumstances.
The employment circumstances were influenced by defendant's decision to consolidate its east coast operation into one facility in Hunt Valley, Maryland, and to reduce the number of east coast employees. In August plaintiff rejected an opportunity
for promotion, salary increase, and retransfer to Newark to close down the Newark plant. At the time he resided in a retirement community in Lakewood. Plaintiff and his wife discussed the longer drive from Lakewood to Newark, whether the salary increase was worth the extra commute, and the issue of going to a job that had a definite end. He rejected the transfer.
Shortly after the announcement about consolidation, defendant invited its employees interested in transferring to Hunt Valley to sign up for interviews. Plaintiff knew about the invitation. In fact, he saw and greeted other company employees who came to Piscataway for the purpose of conducting the interviews.
Plaintiff never requested an interview nor did he advise any company employee that he was interested in transferring to Hunt Valley. He explained this failure by stating the company had always come to him about promotion ...