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Sabit Yousef v. Capital One Services

August 24, 2011


The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh



This matter comes before the Court upon motion by Capital One Services' ("COS")("Defendant") to dismiss the complaint of Sabit Yousef ("Plaintiff") pursuant to Fed.R.Civ.P. 12(b)(6). After carefully considering the submissions of the parties, and based upon the following, it is the finding of this Court that COS' motion will be granted in part, and the case will be remanded to State Court for further proceedings not inconsistent with this Opinion.


Plaintiff began working at the Trust Company of New Jersey in or about March of 1994. (Pl.'s Compl. ¶ 17). Plaintiff initially served as Assistant Vice President of Middle Eastern Affairs and was later promoted to Vice President of Middle Eastern Community affairs in or about 2000. Id. During his employment with Trust Company, Plaintiff's supervisor characterized his production as "nothing short of spectacular" and described Plaintiff as " hardworking and dedicated to doing the best job." (Aff. of Sabit Yousef, Ex. A). When Trust Company was acquired by North Fork Bancorporation, Inc. ("North Fork") in 2004, Plaintiff received a written confirmation that he was to continue working for North Fork, serving as its Director of Middle Eastern Community Affairs. Id. at ¶ 21-22. Shortly thereafter, in or about 2005, Plaintiff was transferred to North Fork's Private Banking Sector to serve as its Vice President of Private Banking. Id. at ¶ 23.

In 2006, Capital One Financial Corporation acquired North Fork and promoted Plaintiff to the position of Vice President. Id. at ¶ 26. On December 8, 2008, Capital One provided Plaintiff with a notice of termination letter ("termination notice"), informing him that he was being "placed into employment transition for a sixty day period" and that his employment would end on February 5, 2009. (Br. in Supp. of Defs.' Mot. to Dismiss at 2).

On December 9, 2008, Plaintiff received an email from Defendant Covington that instructed him to "work with Jon Trombley to transition [Plaintiff's] clients and prospects into [Trombley's] sales and service force."(Aff. of Sabit Yousef, Ex. H). Jon Trombley, who is described as being both younger than Plaintiff and not of Middle Eastern descent, was the Executive Vice President of Capital One. (Pl.'s Compl. ¶ 47). On February 19, 2009, in consideration for twelve months "Severance Pay," Plaintiff executed a Letter of Agreement ("LOA") to "fully release and forever discharge (Capital One) . . . from any and all claims . . ." which included, " . . . all claims arising under or relating to employment . . ." (Aff. of Sabit Yousef, Ex. I ¶ 16).

Plaintiff filed this complaint on February 1, 2011, in the Superior Court of New Jersey. On April 12, 2011, complaint was removed by Defendants to United States District Court for the District of New Jersey. Plaintiff alleges that he is the victim of unlawful discrimination, harassment, wrongful termination and unjust enrichment under the New Jersey Law Against Discrimination. Plaintiff names as Defendants in this matter Capital One Services, Inc., Capital Once Financial Corp., Capital One, N.A., and James Covington. (Pl.'s Compl. at 1). Plaintiff seeks damages for lost wages and retirement benefits, as well as unpaid vacation and personal days allegedly owed to him. (Pl.'s Compl. at 11). Additionally, Plaintiff seeks damages for the emotional distress and mental anguish he suffered as a result of the Defendants' allegedly discriminatory conduct. (Pl.'s Compl. at 10).


A. Under the New Jersey Law Against Discrimination ("LAD"):

It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer, to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. . . N.J.S.A. 10:5-12, (2008)

B. Fed. R. Civ. P. 12(b)(6)

"The [d]istrict [c]court, in deciding a motion under Fed. R. Civ. P. 12(b)(6), [is] required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most favorable to the [Plaintiff]." Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [ ] a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A court is] not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above a speculative level, [ ] on the assumption that all factual allegations in the complaint are true (even if doubtful in fact)." Bell at 555-56. The Complaint must set forth direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. Bell, 550 U.S. at 562. That said, something more than a mere possibility of a claim must be alleged; the plaintiff must allege "enough facts to state a claim for relief that is plausible on its face." 570.


A. Waiver

Defendants argue that Plaintiff waived his right to bring any and all claims against COS after he "knowingly and willfully" executed the Letter of Agreement ("LOA') on February 19, 2009. (Reply Br. in Supp. of Defs.' Mot. to Dismiss at 6). Defendants point to the explicit language provided in Section 16 of the LOA which releases Defendants from claims "arising from or relating to [Plaintiff's] employment with [Capital One] and any of its affiliates or the termination of that employment, or any circumstances related thereto, or any other matter, cause or thing whatsoever." (Aff. of Sabit Yousef, Ex. I ¶ 16). Plaintiff contests the assertion that he signed the release 'knowingly and voluntarily,' and argues that while he may be barred from resurrecting claims he had against COS at the time the LOA was executed, he is not precluded from bringing "future claims that arise after the execution of [the] agreement." (Pl.'s Br. in Opp'n to Defs.' Mot. to Dismiss at 12).

The test used to determine whether or not the release of an LAD claim is valid is grounded in the analysis that has been applied to claims arising under Title VII 42 U.S.C.§ 2000 et. seq., which seeks to ensure that the waiver was made "knowingly and willfully." Coventry v. U.S. Steel Corp., 856 F.2d 514, 522 (3d Cir. 1988). The Third Circuit has adopted the "totality of the circumstances test" in order to determine whether claims have been waived "knowingly and willfully." Martinez v. National Broadcasting Co., 877 F. Supp. 219 (D.N.J. 1994) (citing Coventry, 856 F.2d at 521-525. The analysis incorporates a variety of factors, which include (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; (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.

Moroni v. Penwest Pharmaceuticals Co., No. 07-5546, 2009 WL 3335504 *5 (D.N.J Oct. 13, 2009) Upon review of the facts, the Court finds that the Plaintiff's voluntary execution of the LOA satisfies the "totality of the circumstances" test, and results in a ...

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