United States District Court, District of New Jersey
September 19, 1991
GEORGE B. PONZONI, PLAINTIFF,
KRAFT GENERAL FOODS, INC., DEFENDANT.
The opinion of the court was delivered by: Lechner, District Judge.
This is an employment discrimination suit brought by
plaintiff George B. Ponzoni ("Ponzoni") against defendant Kraft
General Foods, Inc. ("Kraft"). Jurisdiction is alleged pursuant
to the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. § 626, et seq. ("ADEA"), and 28 U.S.C. § 1331
Kraft now moves for summary judgment pursuant to Fed.R.Civ.P.
56 on the grounds that Ponzoni signed a valid and enforceable
release and subsequently ratified the release by his
conduct.*fn1 For the reasons set out below, summary judgment
Ponzoni was hired in December, 1954 by Maxwell House Coffee
Company ("Maxwell House"), which is now a wholly-owned
subsidiary of Kraft. Moving Brief, ¶ 1. During the term of his
employment, Ponzoni served as a research scientist at various
Maxwell House facilities involved in research and product
development in the areas of food-product development, cryogenic
technology, freeze drying and evaporation technology and
logistics and technical applications. 1st Ponzoni Dep.
78:20-22; 2nd Ponzoni Dep. 19:5-10. As a result of Ponzoni's
work, Kraft was awarded eleven patents. One patent application
was pending at the time of his termination. 2nd Ponzoni Dep.
On 31 March 1990, Ponzoni's employment at Kraft was
terminated. At the
time of Ponzoni's termination he was employed at the Maxwell
House facility in Hoboken, New Jersey (the "Hoboken Facility").
Ponzoni Aff., ¶ 2. During the course of Ponzoni's employment
with Kraft, he received a Bachelor's degree of science in
chemistry, a Masters degree and Ph.D. in business
administration. App. Vol. III, D-46-47, Lesnewich Aff., ¶ 9. In
addition, Ponzoni is a member of professional organizations and
the American Association of Retired Persons (the "AARP"). App.
Vol. III, D-45; 1st Ponzoni Dep. 22:25-23:7.
Prior to June 1989, Ponzoni and other employees of Kraft
became interested in issues regarding aging and the work force.
In an attempt to learn about older employees' rights, Ponzoni
contacted the AARP. The AARP referred Ponzoni to Kenneth I.
Nowak, Esq. ("Nowak"), an attorney with a Newark, New Jersey
law firm, because he is knowledgeable in the field of the
rights of older employees. 1st Ponzoni Dep. 93-97.
Ponzoni first met with Nowak in June 1989. Ponzoni was a
representative and Chairman of the Hoboken Facility's Committee
of Aging. The purpose of the meeting was to discuss issues
relating to an anticipated work force reduction at the Hoboken
Facility. Id. 97:3-99:11. This meeting was primarily
educational; Ponzoni was informed in general terms about rights
under the ADEA and the New Jersey Law Against Discrimination
(the "NJLAD"), N.J.S.A. 10:5-12 et seq.. Ponzoni also received
from Nowak or from the AARP two pamphlets concerning legal
rights as a senior citizen.*fn2
Kraft Work Reduction Program
In late 1989, Kraft began to undergo a massive restructuring
of its world-wide coffee research and development
organizations. Ruff Aff., ¶ 3. As a result of the
restructuring, Kraft formed two "centers of expertise" for all
coffee research: the North American COE (the "NACOE") to be
located in Tarrytown, New York and the European COE (the
"ECOE") to be located in Banbury, England. Id. NACOE was
designed to support the United States and Canadian coffee
businesses as well as to conduct product research for all
world-wide Kraft roast and ground coffee businesses. ECOE was
designed to support the European market and take over research
of soluble coffees. Id., ¶ 4.
NACOE was formed by consolidating two research groups based
in Hoboken, New Jersey — The Maxwell House Coffee Technical
Research group and the Kraft International research group. Id.,
¶ 3. By consolidating these two groups, Kraft created greater
efficiency by decreasing the number of employees performing the
same managerial and administrative functions and by reducing
the number of technical specialists and levels of technicians.
Id., ¶ 5.
In late 1989, as a result of the restructuring plans, Kraft
began plans to implement a work force reduction program (the
"WRP"). Id., ¶ 6. Although Kraft lacked a standard plan
regarding reductions in the work force, it was the practice of
Kraft to adopt a program as each occasion required. Helm Aff.,
¶ 10. Despite slight variations in the wording and terms, every
WRP had a two-phase implementation of voluntary and involuntary
terminations. In addition every WRP offered an enhanced
severance pay package to those terminated employees who
executed a release waiving the right to raise any claims
against Kraft. The WRP offered to the Hoboken Facility
employees in February 1990 was implemented under the foregoing
On 20 February 1990, then Director of Research of the Hoboken
facility, John Ruff ("Ruff") distributed an all-employee
bulletin (the "20 February Bulletin") informing employees of
the Kraft reorganization, the reasons for the reduction in work
force and an indication of the support
Kraft would offer. Ruff Aff., ¶ 7. The Bulletin stated, in
The consolidation is part of a restructuring of
our worldwide coffee research which we recommended
following extensive study by a team of research
managers from around the world.
Most of the research jobs at Hoboken will be
transferred to Tarrytown, with relocation
assistance available to eligible employees. About
20 jobs will be discontinued. We will attempt to
achieve the reduction with voluntary retirements.
Anyone whose employment is terminated will be
provided with a broad array of support including
job-hunting assistance, various counseling
programs and severance payments.
20 February Bulletin.
On that same date, Ruff and Dr. Paul Jackson, Group Director
of the Kraft International research group, held a meeting with
affected employees. (the "20 February Meeting") Ruff Aff.,
¶ 8. During the 20 February Meeting, Ruff explained the reasons
for the restructuring and the effect on the Hoboken facility
employees. In addition, he explained the two-phase voluntary
and possibly involuntary WRP. Id. He stated that employees at
least fifty years old with a minimum of ten years of service
(the "50/10 Employees") could voluntarily terminate their
employment and be eligible for enhanced severance pay benefits.
Id. Ruff stated the 50/10 Employees would receive a package
setting forth the details of the WRP immediately after the
Ruff instructed the affected employees that they must inform
payroll of their decision to participate in the voluntary phase
no later than 8 March 1990. Id. Lastly, Ruff stated Kraft would
make its decisions to offer new employment positions and
whether to invoke the involuntary phase during the week of 12
March 1990. Id. At the close of the meeting, Ruff distributed
the packages along with individualized letters to the 50/10
Employees. Id., ¶ 9.
It is uncontroverted that Ponzoni received and read the 20
February Bulletin, 1st Ponzoni Dep. 50:18-20, attended the 20
February Meeting and received the 20 February package.*fn3 The
package Ponzoni received contained a cover letter from Henry
Helm, Human Resources Director-Eastern Region, to George
Ponzoni (the "20 February Letter"). Ponzoni contends he did not
read the 20 February letter at the time of receipt it; he
merely glanced at it. Ponzoni Aff., ¶ 4. The 20 February Letter
invited the addressee to participate in the voluntary phase of
the WRP. The 20 February Letter outlined the details of the
WRP, including the types of enhanced severance benefits
available, time restrictions and the requirement for employees
to sign a release to be eligible for the enhanced severance pay
program. 20 February Letter.*fn4
In addition, the package contained information on insurance,
tax matters, pension benefits, special separation pay and a
"Release of Claims/Designation of Beneficiary" form (the
"Release").*fn5 Helm Aff., ¶¶ 8-9; App.Vol. III, D-7A-7T. The
Release provided that the signatory relinquished
all rights to raise any claims or demands that he or she may
have against Kraft for any known or unknown, past, present or
future acts or inactions of Kraft. Release. Such claims
explicitly included ADEA claims and civil rights claims on
whatever statutory basis against Kraft.*fn6 Release.
Ponzoni stated that after attending the meeting and receiving
the package he had no intention of participating in the
voluntary phase of the WRP. Ponzoni Aff., ¶ 4. Because of lack
of interest in the voluntary termination phase, Ponzoni
contends he only "looked at but did not review carefully" the
20 February Letter or package or any previous enhanced
severance program. Id.; 2nd Ponzoni Dep. 43:17-44:7.
On or about 8 March 1990, Ponzoni met with Nowak*fn7
allegedly to discuss possible employment discrimination claims
(the "8 March Meeting"). Ponzoni Aff., ¶ 5. Nowak testified at
his deposition that prior to the 8 March Meeting, Ponzoni
telephoned him and "indicated that, in fact, some of the
concerns that had been raised several months before were, in
fact, occurring." Nowak Dep. 21:20-23. Kraft argues, therefore,
based on the deposition of Nowak and timing of the meeting,
that Ponzoni met to discuss the ramifications of the Kraft
reorganization. Moving Brief, ¶¶ 10-12.
It is unclear whether releases were discussed at the 8 March
Meeting. Although Ponzoni does not recall discussing or
receiving advice on releases during his meeting with Nowak,
Ponzoni Aff., ¶ 6, he does not deny this. Nowak acknowledged
that he had seen the 20 February Letter during the 8 March
Meeting. Nowak Dep. 27:15-17. With respect to the Release,
Nowak testified that he did not recall seeing the blank Release
during the 8 March Meeting. Id. 29:2-4. Nowak, however, stated:
Q. Do you recall discussing the particular topic
which is signing of a general release of claims
during that meeting with Mr. Ponzoni?
Q. Did he ask you during that meeting questions
about signing a general release?
A. Well, I don't know if he specifically asked me
a question about signing a release; but I do
believe that there was a discussion about various
options that would be available, various different
And I believe that I indicated to him that he
should not sign any papers if he wasn't sure of
what he was going to do and what he wanted to do;
and that he
could tell them, if they handed him papers, that
he wanted to speak to his attorney.
Later, Nowak testified the question of signing a release was
raised in the context of what Ponzoni's approach should be, if
and when he is terminated. Id. 61:24-62:15. Nowak reiterated to
Ponzoni not to sign anything, to discuss any papers with an
attorney and to try to negotiate with Kraft. Id. 62:2-9.
On 9 March 1990 Ponzoni declined to participate in the
voluntary WRP. 2nd Ponzoni Dep. 93:12-98:22, App.Vol. III,
D-12. As mentioned, Ponzoni stated he did not have an interest
in the program and he thought Kraft would get a sufficient
number of volunteers to avoid invoking the involuntary phase.
Ponzoni Aff., ¶ 7.
On 12 March 1990 Ponzoni's supervisor, Bill Craig ("Craig"),
notified Ponzoni that his position was terminated and directed
him to leave the premises that day.*fn8 Thereafter, Ponzoni
was taken to see Daniel Zanetich, the personnel manager
("Zanetich"). The facts regarding the actual discussion in
Zanetich's office are unclear.
Zanetich testified that he expressed his regrets to Ponzoni
and reiterated the need to downsize the facility. Zanetich Dep.
18:14-22. He stated Ponzoni was in shock and just repeated: "I
don't know what I am going to do." Id. 19:1-25. Zanetich
testified that because of Ponzoni's emotional turmoil and
injury to his ego, Zanetich suggested treating the termination
as a voluntary rather than involuntary one. Id. 19:8-12. After
receiving the necessary authorization from Craig, Zanetich
informed Ponzoni that his termination would be considered a
voluntary one.*fn9 Id. 19:12-20. Before the meeting concluded,
Zanetich "reminded [Ponzoni] that as part of the program, so he
fully understood, was that there was a release of claims that
had to be signed and that without the signed release of claims
that he would not be entitled to any of the termination
benefits." Id. 20:1-5. Zanetich said Ponzoni then left his
office with the Release. Zanetich does not, however, recall if
he later witnessed Ponzoni's signature of the Release.
Ponzoni's recollection of the meeting is less clear and
varies at different points of his deposition testimony. He
testified that after the apologies, Zanetich told him he had to
sign some documents.
Q. Did he go over with you anything about how you
get your severance pay?
A. Well, he said, you must sign this document,
and then we had a — backdated it to March 9.
Q. Do I understand you to say he told you that
you had to sign the document in order to get your
A. Something to that effect, yeah.
1st Ponzoni Dep. 81:6-14. However, at another point in his
deposition, Ponzoni testified that Zanetich merely stated that
he must sign the document. Id. 83:20-22. According to Ponzoni,
Zanetich did not "exactly say that you must sign in order to
get your money. . . ." Id. 84:2-5.
Ponzoni claims that he was in a state of shock and "in a fog"
and, therefore, just signed the documents. Ponzoni Aff., ¶ 7.
Ponzoni stated he did not read the document before signing it
but claims he was pressured into signing it. Id. ¶ 7. Ponzoni
could not recall, however, whether Zanetich told him he should
read the Release.
Q. Did you read any part of the document?
Q. None of it?
Q. Did Mr. Zanetich tell you that you should not
read it, but you should sign it?
A. He indicated, you must sign this document.
That was the general tone of the conversation.
1st Ponzoni Dep. 83:14-22.
After signing the Release, Ponzoni returned to his work
department with a copy
of the signed Release. Ponzoni claims it was at that time when
he first read the Release. Ponzoni testified to his reaction
when he read the release:
As I went over it I said, hey, this is pretty
serious. . . . It was more than what I thought I
was signing . . . you know, but as the fog cleared
and time went by I said hey, — somewhere it said
I'm entitled to legal counsel. I thought I should
get some of that and see what gives.
Id. 111:3-14. Ponzoni testified he understood the Release
language "in consideration" to mean that if you sign the
Release you get your money. Id. 124:9-16.
Ponzoni then returned to Personnel to retrieve the Release.
Ponzoni asked for the release and said "all bets were off."
Id. 101:11-12. Although Ponzoni did not use the word rescind,
he was aware of its meaning at the time he retrieved the
Q. Did I understand you correctly that you
thought by saying words to the effect all bets are
off to someone in the office you thought you had
rescinded your signature on the release?
A. Well, yeah. At least certain parts of it,
Id. 110:3-8. Ponzoni contends he believed he had rescinded the
first paragraph of the Release which contained the in
consideration language. Id. 123:21-124:18.
Ponzoni also testified that by retrieving the Release he
wanted to digest it and change the address to his Clifton, New
Jersey address.*fn10 Id. 89:9-10, 80:12-13. Ponzoni stated he
wanted the information to come to his New Jersey address
because he was there four days out of the week, he had the room
for the next year and possibly for tax purposes. Id. 103:4-15.
Ponzoni claims at the time he changed the address he was
uncertain whether we would return the Release to payroll.
Ponzoni Aff., ¶ 9. He testified that he then put the Release
into his personal WRP file. 2nd Ponzoni Dep. 125:9-14.
When Ponzoni returned to his office with the Release, he also
started reading through the entire package and 20 February
Bulletin. Id. 90:11-91:3. At that point, Ponzoni claims that he
assumed he would still be entitled to enhanced severance pay
even though he had rescinded the Release because of his many
years of service and because "whether you were separated
voluntary, involuntary, they said you were going to get
severance pay anyway." 1st Ponzoni Dep. 128:3-6.
After Ponzoni had retrieved the Release, he received a
memorandum and telephone call from Margaret Hips of Personnel
("Hips") requesting his "white forms." Id., ¶ 10. Ponzoni
testified that Hips did not tell him which forms he needed or
that forms were needed in order to receive enhanced severance
pay. Hips merely referred to the white forms. Ponzoni then took
the folder containing the documents in his possession to Hips
and said to her: "[T]ake whatever you need." 1st Ponzoni Dep.
108:2-6. Ponzoni also stated he was unaware the Release was in
the folder or that Hips took the Release. Ponzoni Aff., ¶ 10
Ponzoni testified at deposition that he did not discuss with
Hips the Release or his entitlement to enhanced severance pay.
Id. 108:19-109:6. He stated, however: "I think I was thinking
about getting checks to the bank because I would need money —
if this gets backed up . . . the wolves would be at the door."
2nd Ponzoni Dep. 153:8-14. Ponzoni asserted that he did not
become aware that Kraft possessed the Release until he was so
informed by Nowak. Ponzoni Aff., ¶¶ 10-11. It was at that point
that he surmised Hips had taken it from his folder. Id.
On or around 7 May 1990 Ponzoni received a check in the
amount of $135,000 for enhanced severance pay. Id., ¶ 11.
Ponzoni argues he believed he was entitled
to the enhanced severance pay*fn11 and endorsed the check and
deposited the check into his account in Tarrytown, New York.
1st Ponzoni Dep. 34:17-24.
On 24 May 1990 Ponzoni met again with Nowak to discuss his
termination and possible age discrimination claims. During that
meeting, Ponzoni did not tell Nowak that he signed the Release
or that he had retrieved the signed Release from Kraft. Nowak
Dep. 39:5-19. Ponzoni claims he did not request Nowak to
investigate his termination and inquire whether an extension of
his employment was possible. Nowak testified Ponzoni did ask
him to write to Kraft regarding his termination. Therefore,
Nowak wrote Raymond Viault, the President of Maxwell House
Coffee Company, to confirm the validity of the facts before
pursuing Ponzoni's claims. Id. 38:20-41:14.
Kraft in-house counsel, Burton L. Reiter, wrote Nowak
explaining the reasons for Ponzoni's termination and enclosed
a copy of the Release. After learning of the Release Nowak
decided not to represent Ponzoni in an action against Kraft.
Nowak questioned Ponzoni about the Release and why he had not
been informed of it earlier. According to Nowak, Ponzoni did
not inform him of it because "he had doubts about the validity.
. . ." Id. 48:21-24. After receiving Nowak's decision not to
represent him, Ponzoni had no further communications with
On 29 June 1990 Ponzoni filed discrimination charges with the
Equal Employment Opportunity Commission (the "EEOC") and the
New Jersey Division on Civil Rights. During the proceeding
Ponzoni made a sworn statement to Investigator Pinion of the
EEOC: "to my knowledge I was entitled to two (2) weeks of
severance pay. I signed a release so that I should receive
twenty-four (24), weeks of severance pay."*fn12 App.Vol. III,
D-44 ¶ 9. During his deposition testimony, however, Ponzoni did
not recall telling the agent that he signed the release in
order to receive enhanced severance pay. 2nd Ponzoni Dep.,
On 28 September 1990, Ponzoni filed his Complaint and ceased
his pursuit of his administrative actions. Ponzoni alleged
Kraft discriminated against him in violation of the ADEA and
NJLAD. On 6 December 1990 Ronald J. Hedges, United States
Magistrate Judge, ordered limited discovery regarding the
threshold issue of the validity of the Release pursuant to
Kraft's request. Magistrate Judge Hedges directed that
discovery be completed by 31 January 1991 and later modified
the direction allowing the parties until 1 April 1991 to
Kraft moves for summary judgment under Fed.R.Civ.P. 56 on the
ground that Ponzoni has failed to introduce evidence which
establishes the existence of a genuine issue of material fact.
Kraft contends there is no genuine issue of material fact
because Ponzoni voluntarily executed a valid Release which he
never rescinded. Kraft also contends that if it is determined
the Release executed by Ponzoni was invalidly executed or
rescinded, Ponzoni nevertheless ratified the release by
accepting the enhanced severance pay. Kraft contends
that if summary judgment is not granted, it is entitled to a
separate trial on the sole issue of the validity of the
A. Summary Judgment Standard of Review
To prevail on a motion for summary judgment, the moving party
must establish "there is no genuine issue as to any material
fact and that [it] is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). The present task is to determine whether
disputed issues of fact exist, but a district court may not
resolve factual disputes in a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242
, 249-50, 106
S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); see Nathanson v.
Medical College of Pennsylvania, 926 F.2d 1368
, 1380 (3d Cir.
1991) (Summary judgment may not be granted "if there is a
disagreement over what inferences can be reasonably drawn from
the facts even if the facts are undisputed."). All evidence
submitted must be viewed in a light most favorable to the party
opposing the motion. Boyle v. Governor's Veterans Outreach &
Assistance Center, 925 F.2d 71
, 75 (3d Cir. 1991); Weldon v.
Kraft, Inc., 896 F.2d 793
, 797 (3d Cir. 1990); see Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
, 587, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Todaro v. Bowman,
872 F.2d 43
, 46 (3d Cir. 1989); Joseph v. Hess Oil, 867 F.2d 179
182 (3d Cir. 1989). "`Any "unexplained gaps" in material
submitted by the moving party, if pertinent to material issues
of fact, justify denial of a motion for summary judgment.'"
Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497
, 502 (3d
Cir. 1990) (quoting O'Donnell v. United States, 891 F.2d 1079
1082 (3d Cir. 1989)).
Although the summary judgment hurdle is a difficult one to
overcome, it is by no means insurmountable. As the Supreme
Court has stated, once the party seeking summary judgment has
pointed out to the court the absence of a genuine issue of
its opponent must do more than simply show that
there is some metaphysical doubt as to the
material facts. . . . In the language of the Rule,
the non-moving party must come forward with
`specific facts showing that there is a
genuine issue for trial.' . . . Where the record
taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no
`genuine issue for trial.'
Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (emphasis in
original, citations and footnotes omitted). In other words, the
inquiry involves determining "`whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.'" Brown v. Grabowski, 922 F.2d 1097
, 1111 (3d
Cir. 1990) (quoting Anderson v. Liberty Lobby, 477 U.S. at
251-52, 106 S.Ct. at 2512), cert. denied, ___ U.S. ___, 111
S.Ct. 2827, 115 L.Ed.2d 997 (1991).
The Supreme Court elaborated on the summary judgment standard
in Anderson v. Liberty Lobby: "If the evidence [submitted by a
party opposing summary judgment] is merely colorable . . . or
is not significantly probative . . . summary judgment may be
granted." 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations
omitted). The Supreme Court went on to note in Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986):
"One of the principal purposes of the summary judgment rule is
to isolate and dispose of factually unsupported claims or
defenses, and we think it should be interpreted in a way that
allows it to accomplish this purpose." Id. at 323-24 (footnote
Once a case has been made in support of summary judgment, the
party opposing the motion has the affirmative burden of coming
forward with specific facts evidencing a need for trial. see
Fed. R.Civ.P. 56(e); see also Maguire v. Hughes Aircraft Corp.,
912 F.2d 67, 72 (3d Cir. 1990) (non-moving party may not rest
mere allegations); Schoch v. First Fidelity Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990) (neither unsupported allegations
in pleadings and memoranda of law nor conclusory allegations in
affidavits will establish genuine issue of material fact);
Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1165 (3d Cir.
1990) (cannot create issue of fact merely by questioning
credibility of movant's witnesses; circumstantial evidence may
raise issue of fact); Aronow Roofing Co. v. Gilbane Building
Co., 902 F.2d 1127, 1128 (3d Cir. 1990) ("summary judgment will
be granted where the non-moving party fails to `establish the
existence' of an element essential to the case"); Carlson v.
Arnot-Ogden Memorial Hosp., 918 F.2d 411, 413 (3d Cir. 1990)
("nonmoving party must adduce more than a mere scintilla of
evidence in its favor").
B. Waiver Analysis
Kraft argues Ponzoni waived his right to raise ADEA claims by
signing the Release. As the Third Circuit has stated: "It is
well-established that a release is the giving up or the
abandoning of a claim or right to the person against whom the
claim exists or the right is to be enforced or exercised. . .
." In re Bankers Trust Co., 752 F.2d 874
, 883 (3d Cir. 1984).
Kraft asserts that the Release executed by Ponzoni constitutes
just such waiver. The language of the Release provided:
In consideration of my being granted severance
payments . . . I do hereby . . . release and
forever discharge General Foods Corporation . . .
of and from all claims and demands of every name,
type, act and nature arising or existing by reason
of any known or unknown . . . act or inaction
This Release includes, but is not limited to, any
claims . . . asserted under Federal, State or local
statutes concerning civil rights; . . . the Age
Discrimination in Employment Act of 1967; . . . and
all claims which I now have or may ever have
regarding my employment with General Foods
App.Vol. III D-5 (emphasis added).
1. Waiver of ADEA Claims
To be valid, a waiver must be knowing and willful. See
Coventry v. U.S. Steel Corp., 856 F.2d 514, 518 (3d Cir. 1988).
"[S]ubject to a close evaluation of various factors that are
indicia of `knowing' and `willful' waiver, employees may
execute valid waivers of their ADEA claims." Cirillo v. Arco
Chem. Co., 862 F.2d 448, 451 (3d Cir. 1988), Coventry, 856 F.2d
at 518; 29 U.S.C. § 626(f). To determine whether an employee
executed a release knowingly and willfully, the Third Circuit
has adopted a "totality of circumstances" test. Coventry, 856
F.2d at 524. The factors to consider in the analysis include,
but are not limited to:
(1) the clarity and specificity of the release
language; (2) the plaintiff's education and
business experience; (3) the amount of time
plaintiff had for deliberation about the release
before signing it; (4) whether Plaintiff knew or
should have known his rights upon execution of the
release; (5) whether plaintiff was encouraged to
seek, or in fact received benefit of counsel; (6)
whether there was an opportunity for negotiation
of the terms of the Agreement; and (7) whether the
consideration given in exchange for the waiver and
accepted by the employee exceeds the benefits to
which the employee was already entitled by
contract or law.
Cirillo, 862 F.2d at 451.*fn14
Analyzing the totality of the
circumstances here, Ponzoni's signing of the Release effected a
valid waiver of his ADEA claims.
a. Clarity and Specificity of the Release Language
The Release language is clear and specific. The Release
unequivocally states it applies to "all claims and demands of
every name, type, act and nature arising or existing by reason
of any known or unknown,
past, present or future act or inaction whatsoever." Release,
¶ 1. The Release continues to describe with particularity the
nature of claims it covers as:
any claims . . . which have or might have been
asserted under Federal, State or Local statutes
concerning civil rights; unlawful employment
practices or wage and hour requirements; Title VII
of the Civil Rights Act of 1964; Civil Rights Act
of 1871 (Section 1981); Fair Labor Standards Act;
the Equal Pay Act of 1963; the Age Discrimination
in Employment Act of 1967; the Rehabilitation Act
of 1973 (Section 503 and 504); Executive Order
11246, as amended, any and all claims which I now
have or may ever have had regarding my employment
and separation from employment with General Foods
Id. (emphasis added).
When a release explicitly refers to ADEA claims, it has been
found to be straightforward and certain. See Pears v. Spang,
718 F. Supp. 441, 445-46 (W.D.Pa. 1989). Ponzoni argues because
the Release combines two subjects, the Release and a
designation of beneficiary, it is inherently confusing. The
fact that the Release included a designation of beneficiary
request does not detract from the clarity of the Release. The
designation of beneficiary request was the last and a separate
paragraph of the Release.
b. Education and Experience of Plaintiff
The second factor, education and experience, see Cirillo, 862
F.2d at 451, is a minimal threshold. In Pears, the court found
the plaintiff's high school diploma and attendance of a
one-year secretarial school at Boston University to have
constituted sufficient education and experience to execute a
Release. See 718 F. Supp. at 446.
In this case, it is uncontroverted that Ponzoni is a very
highly educated and experienced man. He received a Bachelor's
degree in Science and Master's and Doctorate degrees in
Business Administration. During his thirty-four years of
employment at Kraft, Ponzoni's work resulted in twelve patents
and he belongs to various professional organizations and
associations. In addition, Ponzoni served as chairperson of an
aging employee's group at Kraft.
c. Deliberation Time Prior to Signing
Kraft distributed the package containing the Release on 20
February 1990, the same day of the 20 February Bulletin and
Meeting. During the 20 February Meeting, Ruff described the
two-phase WRP and instructed the employees to inform payroll no
later than 8 March 1990 of their decision to participate in the
voluntary reduction phase. Ponzoni attended this meeting.
Similarly, the 20 February Letter contained in the package
stated the employees must make a decision by 8 March 1990.
Although Ponzoni claims he only glanced at this letter and
contents of the package, he declined to participate in the
voluntary reduction phase on 9 March 1990. Ponzoni therefore
had over two weeks to deliberate about the Release before
making his decision. By the time Ponzoni signed the Release on
12 March 1990,*fn15 his deliberation time increased to almost
Ponzoni alleges that because he had no intention of
participating in the voluntary phase until his involuntary
termination on 12 March 1990, the deliberation time should run
from that date. Accepting Ponzoni's contention as accurate, his
decision not to read the Release was a deliberate decision on
his own part. Ponzoni testified that Zanetich did not ask him
to sign immediately, when Ponzoni was in Zanetich's office on
12 March 1990. 1st Ponzoni Dep. 82:13-15.*fn16 As well,
Ponzoni had been advised by Nowak that he was entitled to
counsel before he signed any document regarding termination
from Kraft. Nowak Dep. 28:5-9. Ponzoni has not presented
evidence from which an inference could be drawn that had
Ponzoni requested additional
al time to deliberate signing the Release, Zanetich would have
Ponzoni's conclusory allegations of being pressured into
signing the Release on 12 March 1990 also fall short of
generating a genuine issue of material fact. In
Coventry, the plaintiff argued his waiver of claims was made
under duress. The Third Circuit held that a plaintiff must
establish "a wrongful act or threat which prevented a party
from exercising his free will and judgment" to constitute a
claim of duress. Coventry, 856 F.2d at 524 n. 12 (quoting
Plechner v. Widener College, Inc., 569 F.2d 1250 (3d Cir.
In Coventry, the court noted the choice presented to the
employee was little more than a "Hobson's choice." 856 F.2d at
524. The court observed:
Hallas testified that he was advised by Wilson
that his only options were accepting the mutual
option pension benefits, and foregoing his claims,
or being placed on automatic lay-off and losing
his income and hospitalization benefits
immediately. Moreover, in light of USS's policy of
denying severance benefits to persons who were
`otherwise eligible' for a pension plan, Hallas
could not opt to have his employment terminated
completely and take severance benefits. `Hallas's
choice,' therefore, after thirty-five years of
service, was between a layoff of uncertain
duration, that would bring the certain cessation
of his income, and an early retirement plan that
would make pension benefits available to him only
if he agreed to forego his rights under the ADEA.
These circumstances illustrate that Hallas's
decision to sign the release was not the result of
negotiation between him and his employer and,
further, that Hallas was placed in precisely the
`take it or leave it' predicament that supports a
finding that his decision was not knowingly and
willfully made. These circumstances should have
been considered by the district court in its
determination of the validity of Hallas's waiver.
856 F.2d at 524.
Coventry is easily distinguished from the facts surrounding
Ponzoni. During Ponzoni's meeting with Zanetich on 12 March
1990, Ponzoni attempted to negotiate his termination date,
albeit unsuccessfully. Ponzoni was not confronted with a
Hobson's choice. Regardless of whether Ponzoni signed the
Release, he was still entitled to his pension benefits. If
Ponzoni did not sign the Release, he would still enjoy normal
severance pay. In fact, by signing the Release in exchange for
enhanced severance pay, Ponzoni received an additional
twenty-four months' pay — $135,000.
Ponzoni was not prevented from exercising his free will and
judgment. As stated, Ponzoni could not, recall the words said
to him in Zanetich's office. He could not remember whether
Zanetich told him to read the Release before signing it or
exactly what Zanetich's words were with respect to Ponzoni's
reading the Release before signing it. 1st Ponzoni Dep.
83:13-84:5. Ponzoni has not presented facts to prove or infer
he was denied time to deliberate signing the Release or that
Kraft pressured him to immediately sign the Release. Ponzoni's
mere allegation that he was under pressure, absent a showing of
a wrongful act or some support, is insufficient to establish a
genuine issue of material fact regarding duress.
d. Plaintiff's Knowledge of His Rights
It is uncontroverted Ponzoni was aware of a possible age
discrimination claim arising out of the WRP. Opposition Brief,
17. Not only had he discussed the matter with Nowak, he read
pamphlets published by the AARP and New Jersey State Bar
Ponzoni's contention that he was unaware of age
discrimination claims could be waived is without merit. Ponzoni
testified he visited Nowak on 8 March 1990 to discuss the
ramifications of the Kraft reorganization. Ponzoni had a full
opportunity to read the Release prior to that meeting and to
raise any questions regarding whether such claims could be
Upon reading the express terms of the Release, Ponzoni would
have and clearly
should have realized that by signing the document, he would
forego his rights under the ADEA. Ponzoni contemplated the
possibility of ADEA claims, met with Nowak to discuss older
employees' rights and then signed an explicit release of these
claims. Ponzoni, a highly educated individual, knew of his
rights upon execution of the Release. He was quite involved
with the issues concerning aging and the work force.
e. Plaintiff's Opportunity to Seek Counsel
On 8 March 1990 Ponzoni sought legal advise from Nowak
regarding his individual situation. Ponzoni denies but Nowak is
uncertain whether the Release was specifically discussed.
Ponzoni Aff. ¶ 6; Nowak Dep. 29:2-4. Nowak testified, however,
he discussed the general topic of signing releases. Id.
27:18-25. Nowak informed Ponzoni of the various options under
work reduction programs and not to sign the papers unless he
was certain. Nowak also advised Ponzoni that he had a right to
consult an attorney before he signed anything. Id. 27:25-28:9.
Regardless of whether the 8 March Meeting constituted
consultation with counsel, Ponzoni cannot take advantage of
this factor. Unlike the release in Coventry, the Release
explicitly stated the signatory had the opportunity to consult
with counsel. Even where a plaintiff does not seek counsel, an
express statement regarding his or her right to do so satisfies
this factor. See Pears, 718 F. Supp. at 446. The focus is
whether consultation with a lawyer was encouraged orally or in
writing, not whether a plaintiff in fact received the benefit
of counsel. See Cirillo., 862 F.2d at 454; see also Mullen v.
New Jersey Steel Corp., 733 F. Supp. 1534, 1545 (D.N.J. 1990)
(defendant did not actually discourage employee from seeking
The fact that the Release contained an express written
statement that Ponzoni had the opportunity to see counsel alone
is sufficient to satisfy this factor. Nevertheless, Ponzoni did
have the benefit of advice from Nowak before he signed the
f. Plaintiff's Opportunity to Negotiate
In Cirillo, the Third Circuit explained:
[T]the existence of an opportunity to negotiate
with respect to a release is a substantial indicia
that its execution was knowing and voluntary.
While the absence of such an opportunity is not as
strong an indicia that a release is unknowing or
involuntary, to the extent such absence and other
evidence suggest that the atmosphere surrounding
the execution was oppressive, it is, of course, a
862 F.2d at 454 n. 4. Cirillo had no direct opportunity to
negotiate the terms of the special allowance or the release. He
did, however, after being terminated, request an extension of
his length of service in order to increase his benefits
package. The Circuit stated that Cirillo's efforts indicated he
did not perceive himself as being completely at
the mercy of an intractable employer . . . [and]
perceived the channels for negotiation open and in
fact availed himself of them in an effort to stay
his date of termination.
Id. at 454 n. 4.
In this case, the facts are similar to Cirillo. Ponzoni
admits he attempted to negotiate an extension of his employment
with Kraft. Opposition Brief, 18. If Ponzoni received an
extension of employment, he would increase his pension
benefits.*fn17 Ponzoni's contention that his efforts to extend
his employment are irrelevant to the issue of negotiating the
terms of the Release are without merit.
As was the case in Cirillo, the fact that Ponzoni raised the
issue of an extension of
employment does not give rise to an oppressive atmosphere.
Ponzoni's testimony regarding the execution of the Release does
not establish or suggest oppressive circumstances precluding
his ability to negotiate the terms of the Release. Ponzoni
testified that Zanetich did not demand that he sign the Release
before he left Zanetich's office. Ponzoni further testified
that he signed the Release in Zanetich's office because he was
"in a fog" and just did what was requested. 1st Ponzoni Dept.
82:13-21. Although Ponzoni did not seek out an opportunity to
discuss or negotiate the release of specific claims before
signing the Release, he has not established or suggested there
was an oppressive atmosphere. The absence of Ponzoni's
opportunity to specifically negotiate the language regarding
ADEA claims is not a strong indicia that the waiver was
unknowing or involuntary.
The last factor, whether the consideration given in exchange
for the waiver and accepted by Ponzoni exceeds the benefits to
which he was already entitled by contract or law,
Cirillo, 862 F.2d at 451, supports finding a valid waiver.
Kraft has no standard enhanced severance pay program for its
employees whose employment is terminated. Helm Aff., ¶ 10.
Rather, Kraft adopts a two-phase reduction program as each
occasion requires. At the 20 February Meeting employees,
including Ponzoni, were informed that 50/10 Employees who
participated in the voluntary reduction phase would be eligible
for an enhanced severance package of up to the equivalent of
two years salary. Ruff. Aff., ¶ 8. The 20 February Letter
further described the available enhanced severance options.
Although Ponzoni apparently had some severance pay
available,*fn18 neither his contract nor prevailing law
entitled him to the $135,000 he received.
As was the case in Cirillo, the Release made no attempt to
interfere with or cutoff the pension benefits or unenhanced
severance pay to which Ponzoni was entitled. The Release was an
additional package offered to 50/10 Employees whereby they
could exchange their right to bring employment claims against
Kraft for an enhanced severance package. Ponzoni was not forced
into signing the Release under the threat of losing benefits to
which he was already entitled.
Ponzoni alleges the consideration does not exceed the amount
he was already entitled to as an involuntarily terminated
employee. The 20 February Bulletin states:
We will attempt to achieve the reduction with
voluntary retirements. Anyone whose employment is
terminated will be provided with a broad array of
support including job hunting, assistance, various
counseling programs and severance payments.
20 February Bulletin.
Ponzoni contends, according to the general language of the 20
February 1990 Bulletin, involuntarily terminated employees were
entitled to receive enhanced severance pay without signing the
Release.*fn19 Ponzoni Aff., ¶ 12. Even assuming Ponzoni's
termination was not treated as a voluntary termination,*fn20
the 20 February 1990 Bulletin does not state all involuntarily
employees will receive enhanced severance pay.
The 20 February 1990 Bulletin makes a general statement to
the employees regarding the events surrounding the Kraft
reorganization. Although it did state "[a]ny-one whose
employment is terminated will be provided with . . . severance
pay," it did not go into the nature of severance pay to be
received by voluntary or involuntarily terminated employees.
Accordingly, the 20 February 1990 Bulletin cannot be
interpreted to promise enhanced severance pay to all
involuntarily terminated employees. Therefore, Ponzoni cannot
use the 20 February Bulletin as a basis for his claim that he
was, as an involuntarily terminated employee, otherwise
entitled to the $135,000.
Ponzoni's testimony also contradicts his asserted
understanding. Ponzoni made the following statements with
respect to receiving enhanced severance pay at Kraft:
Q. . . . as far as you knew or heard, everyone who
got [enhanced] severance pay had to sign a release
to get it?
A. Well, like I alluded to before, I assume so,
1st Ponzoni Dep. 68:15-20. No where in his testimony did
Ponzoni testify that he was aware of a Kraft policy to allow an
employee to get enhanced severance pay without signing a
Ponzoni's testimony further cuts against his allegation that
he was unaware he had to sign the Release to receive enhanced
severance pay. When testifying about his meeting with Zanetich,
he stated Zanetich said something to the effect that Ponzoni
had to sign the Release in order to get his money.
In Pears, plaintiff claimed ignorance by quibbling over the
terms of the release while admitting she understood the impact
of the Release. See Pears, 718 F. Supp. at 446-47. The plaintiff
knew that by signing the release she could not sue the company;
however, she claimed she did not know what the words "release"
and "discharge" meant. Id. at 447. The court held "plaintiff's
quibbling about simple everyday language rings quite hollow and
will not avoid summary judgment." Id.
In this case, in light of Ponzoni's testimony and Kraft's
clear policy regarding the release requirement, Ponzoni's view
of the applicability of the language of the documents he
possessed cannot be the basis to defeat summary judgment.
Ponzoni also argues the consideration did not exceed what he
was already entitled to as a result of his many years of
service and the years he had left in service even if his
termination was voluntary. Ponzoni Aff., ¶ 13; 2nd Ponzoni Dep.
156:3-18.*fn21 In Cirillo, the plaintiff argued that he
believed the terms of the release only pertained to claims
arising from the retirement options under the various
retirement plans, not to claims arising from his termination.
See 862 F.2d at 452. The court stated:
Even if we accept that Cirillo in fact understood
the Release as not addressing any claims arising
from his firing, we must conclude that such a
misguided subjective belief, without more, is
insufficient to defeat summary judgment in the
face of clear and unambiguous language. A contrary
conclusion would undermine the utility of the
voluntary settlement process.
Id. (citations omitted).
Ponzoni's belief that he was entitled to enhanced severance
because of his many years of service despite the terms of the
Release is baseless. The terms of the Release explicitly stated
that the waiver of claims against Kraft was in consideration
for receiving enhanced severance pay. Release, ¶ 1. Ponzoni's
subjective belief does not form a basis to hold that the
consideration given for his release of claims did not
exceed the benefits to which he was legally entitled.
With respect to the years of service Ponzoni had left, his
belief is without merit. Ponzoni was terminated. He had no
contractual right to be employed until he was sixty-five. He
was not entitled to $135,000 in enhanced severance to cover his
Ponzoni has failed to raise a genuine issue of material of
fact with respect to the validity of the Release; all the
factors weigh in favor of finding that Ponzoni executed a
knowing and voluntary waiver. Accordingly, summary judgment is
granted in favor of Kraft regarding the validity of the Release
and Ponzoni's ADEA claims.
2. Waiver of NJLAD Claims
Kraft argues Ponzoni waived his right to raise state age
discrimination claims by signing the Release. In Swarts v.
Sherwin-Williams Co., 244 N.J. Super. 170, 581 A.2d 1328
(App. Div. 1990), the Appellate Division adopted the totality of
circumstances standard of review followed by the Third and
Second Circuit Courts. Id. at 177, 581 A.2d 1328. In adopting
the totality of circumstances analysis, the Appellate Division
stressed the "need to carefully examine any situation in which
an older worker bargains away his statutory right to be free
from age discrimination." Id. at 177, 581 A.2d 1328.
For the reasons set forth above, Ponzoni made a knowing and
voluntary waiver of his NJLAD claims. Ponzoni was fully aware
of his statutory rights and had ample time to deliberate or
discuss with an attorney the rights he was waiving. Ponzoni did
not sign the Release in order to get retirement benefits, but
rather to take advantage of an enhanced severance pay package.
Ponzoni has failed to establish a genuine issue of material
fact with respect to the validity of the Release under NJLAD.
Accordingly, summary judgment is granted in favor of Kraft
regarding the validity of the Release and Ponzoni's NJLAD
C. Rescission of the Release
Ponzoni argues regardless of whether he made a knowing and
voluntary execution of the Release, his retrieval of the
Release on 12 March 1990 constituted a rescission. Ponzoni
further contends he did not later accept the terms of the
Release because he was unaware the Release was resubmitted to
Kraft. It is undisputed Ponzoni retrieved the Release from
Kraft's personnel office. The dispute concerns how the Release
was returned to Kraft.
Under ordinary contract principles, a party's acceptance must
be clear and unequivocal. Mellon Bank, N.A. v. Aetna Business
Credit Inc., 619 F.2d 1001, 1015 (3rd Cir. 1980); Kalish &
Rice, Inc. v. Regent Air Corp., 624 F. Supp. 173, 176 (S.D.N Y
1985); In re Athos Steel and Aluminum, Inc., 71 B.R. 525, 543
(Bankr.E.D.Pa. 1987). Acceptance can be done through acts or
conduct. Havens Steel Co. v. Randolph Engineering Co.,
613 F. Supp. 514, 522 (W.D.Mo. 1985); Restatement (Second) of
Contracts, § 19 (1981). When acceptance is by conduct, the
court must look to objective circumstances, not the subjective
intent of the party. Capital Assoc. Int'l, Inc. v. Knoll
Int'l., Inc., No. 90-5518, 1991 WL 158959, 1991 U.S. Dist.
LEXIS 11285 (E.D.Pa.14 August 1991); see also NLRB v.
International Union of Operating Eng'rs, 315 F.2d 695, 699 (3rd
Cir. 1963) ("`[C]onduct which imports acceptance is acceptance
. . . whatever may have been the actual state of mind of the
party.'" (Holmes, J.)); Restatement (Second) of Contracts, §
Looking at the entirety of the record, Ponzoni made an
unequivocal acceptance of the Release. Ponzoni's affidavit
states that at the time he changed his address, he "was, not
sure whether [he] was going to return the release or whether
[he] was going to keep it." Ponzoni Aff., ¶ 9. Ponzoni
testified after changing the address he put the Release back
into his personal WRP file. 2nd Ponzoni Dep. 125:9-14. Ponzoni
also admits he received a memorandum from personnel that
stated: "We do not have your white forms that were in the
package that you received. We
have to have them if you want your money." App.Vol. III, D-43;
3rd Ponzoni Dep. 6:3-7:18. Ponzoni was aware from reading the
Release that enhanced severance pay was conditioned on signing
the Release. 1st Ponzoni Dep. 124:9-18.
Ponzoni testified that on or around 28 March 1990, he
received a call from Hips requesting the white forms.
Id. 125:15-30. At that time, Ponzoni took his personal WRP file
to Hips' office. Rather than asking Hips what forms she needed,
Ponzoni told her to "take what you need." Id. 125:17-126:7. In
his affidavit, Ponzoni claims he did not know the Release was
in his folder. Ponzoni Aff. ¶ 10. Ponzoni does not recall
watching Hips take forms or discussing with her which forms she
was taking. 2d Ponzoni Dep. 126:2-7.
Ponzoni's conduct constitutes a valid acceptance. Ponzoni has
only offered his subjective state of mind that he did not
intend to return the Release and that he did not know the
Release was in his personal WRP file. Ponzoni's conduct does
not, however, convey the same intent. After having been told
that he had to submit forms in order to receive his money,
Ponzoni took no affirmative steps to guarantee the Release was
not redelivered to Kraft. Rather, Ponzoni took his WRP file to
Hips' office and told her to take what she needed. At no point,
did Ponzoni manifest to Kraft, verbally or through conduct, any
intent other than that he intended to return the Release to
Considering the objective circumstances, Kraft could not know
Ponzoni did not intend to accept the Release when he submitted
his file to Kraft. Accordingly, Ponzoni's acceptance was
D. Ratification of the Release
Kraft argues even if Ponzoni's allegations concerning the
Cirillo factors or the resubmission of the Release are
accepted, it is still entitled to summary judgment. Kraft
argues when Ponzoni accepted the $135,000, he ratified the
terms of the Release.
In Mullen, plaintiff executed a severance agreement and
addendum under which plaintiff released any claims against
defendant for which plaintiff received a sum of money. 733
F. Supp. at 1548. After receiving payment under the severance
addendum, plaintiff raised breach of contract claims against
the defendant. It was held:
Even if the release had not been effective when
signed, [plaintiff's] acceptance of the benefits
of the Severance Agreement and failure to complain
until all checks had been delivered would ratify
Id. at 1548 (citing Client's Sec. Fund v. Allstate Ins. Co.,
219 N.J. Super. 325, 333-334 (App. Div. 1987); Clarkson v.
Selected Risks Insurance Co., 170 N.J. Super. 373, 379-380
(Law.Div. 1979); American Photocopy Equipment Co. v. Ampto.,
Inc., 82 N.J. Super. 531, 538-39, 198 A.2d 469 (App. Div.)
cert. denied, 42 N.J. 291, 200 A.2d 125 (1964), cert. denied,
379 U.S. 842, 85 S.Ct. 80, 13 L.Ed.2d 47 (1964).
The acceptance of benefits ratifies the release of ADEA
claims. See O'Shea v. Commercial Credit Corp., 930 F.2d 358,
362-63 (4th Cir. 1991); Grillet v. Sears, Roebuck & Co.,
927 F.2d 217 (5th Cir. 1991); Constant v. Continental Telephone
Co., 745 F. Supp. 1374 (C.D.Ill. 1990); Dalessandro v. Monk,
864 F.2d 6, 8 (2d Cir. 1988); E.E.O.C. v. American Express Public
Corp., 681 F. Supp. 216, 219 (S.D.N.Y. 1988) (acceptance of
benefits constitutes ratification); Widener v. Arco Oil and Gas
Co., 717 F. Supp. 1211, 1217 (N.D.Tex. 1989).
In Widener, the plaintiffs argued they were unaware that they
had signed a release until the defense was raised by the
defendant in the litigation. The court held even if the
releases were not knowingly and voluntarily executed, the
plaintiffs ratified them by retaining the monies paid as
consideration. Widener, 717 F. Supp. at 1217.
In Grillet, the court stated:
A party cannot be permitted to retain the benefits
received under a contract and at the same time
escape the obligations imposed by the contract. .
. . If a releasor, therefore, retains the
consideration after learning that the release is
continued retention of the benefits constitutes a
ratification of the release.
927 F.2d at 220 (citations omitted).
As previously stated, Kraft had no standard enhanced
severance program. Upon Ponzoni's termination, he was not
entitled to enhanced severance pay. He could receive enhanced
severance pay only if he signed the Release. Ponzoni testified
that Zanetich told him he must sign the documents presented to
him in order to receive the enhanced severance pay. The record
also indicates after Ponzoni signed the Release, he took it
back to his office to read it. He testified that he understood
the "in consideration" language to mean he had to sign in order
to get his money.
Regardless of whether Ponzoni knew Kraft possessed the
Release when Ponzoni received the check for $135,000, he was
well aware of Kraft's bargain. Because Ponzoni retained the
$135,000 with knowledge of the bargain and no other valid claim
to the consideration, he thereby ratified the Release.
For the foregoing reasons, partial summary judgment is
granted and the complaint is dismissed in its entirety with
prejudice under Fed.R.Civ.P. 56.