date of the OWBPA, was broad enough to include a general release of employment claims. The problem with the release, and the reason it was voidable (although in that case not properly voided), was that it was executed in reliance upon a misrepresentation and under extreme time pressure. 927 F.2d at 219.
Here, the question is not the voidability of the release, but its scope. In this regard, the court finds that the benefits plaintiff received could not have been in exchange for the relinquishment of his rights under the ADEA, because federal law now provides that those rights cannot be relinquished without a specific reference to the ADEA in the written release.
Furthermore, were the technical deficiencies in the release not a per se bar to ratification, the facts in the record do not demonstrate that plaintiff intended to relinquish any potential claims under the ADEA when he executed the release. At that time, plaintiff was living in Belgium and working for the European subsidiary of an American corporation. He did not consult an American lawyer before signing the agreement, and was not advised by defendant to do so. Nor did defendant advise plaintiff verbally of his rights under the ADEA before he signed the agreement. Accordingly, there is no evidence that the separation benefits plaintiff received were in exchange for a release of his ADEA claim.
Next, defendant argues that plaintiff is estopped from pursuing his ADEA claim. According to defendant, separation benefits were paid to plaintiff in reliance upon his promise to live up to the agreement as executed. This argument is merely an attempt to do indirectly what the court has said defendant cannot do directly. The court has already ruled that plaintiff did not receive severance pay in exchange for relinquishing his ADEA claim. Plaintiff has kept his promise to abide by the agreement as executed; unfortunately for defendant, the agreement as executed does not include a release from an ADEA claim. Defendant merely paid plaintiff what it was already contractually obligated to pay. As such, the payments were not made in detrimental reliance upon plaintiff's promise. See Geva v. Leo Burnett Co., Inc., 931 F.2d 1220, 1223 (7th Cir. 1991) (party may be estopped only where another has detrimentally relied upon a promise).
4. Proof of Discrimination
At the outset, the parties disagree as to what standard governs the analysis of plaintiff's discrimination claim. Defendant argues that the court should apply the mixed-motive analysis set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S. Ct. 1775, 1794, 104 L. Ed. 2d 268 (1989).
Plaintiff, on the other hand, contends that the McDonnell Douglas burden-shifting analysis controls.
After reviewing the record, the court concludes that defendant's motion for summary judgment fails under either standard. Under Price Waterhouse, Germay's alleged statement to Collins that he was being terminated because he was "older" than Lamy constitutes direct evidence of age discrimination. Defendant contends that the phrase "older" referred to plaintiff's ability to qualify for pension benefits, a consideration which, in certain circumstances, may be non-discriminatory. According to defendant, the phrase "older" was "an isolated, descriptive remark by someone not terribly fluent in English." Defendant's memo at 18. While defendant may be correct, such a credibility judgment is inappropriate on summary judgment. Questions concerning Germay's intent are left for trial.
The same result accrues from the application of the McDonnell Douglas burden-shifting analysis. Defendant has articulated a nondiscriminatory rationale for plaintiff's termination; namely, that Lamy was more qualified than plaintiff for the newly created corporate marketing position. Plaintiff, however, has produced evidence of pretext: an affidavit that Germay had commented that plaintiff was being terminated because he was "older." Again, whether that phrase in context is innocuous or pejorative is a question which the court cannot resolve on summary judgment. Accordingly, defendant's motion for summary judgment is denied.
Defendant's motion for summary judgment is denied.
IT IS SO ORDERED.
HARRY D. LEINENWEBER, Judge
DATED: August 14, 1992