waiver if he did not know that he was receiving anything of value in exchange for his right to bring an action." Seward does not argue that the release was in fact not supported by consideration, but only that at the time it was signed he believed that it was not so supported. Instead, Seward merely claims that he was mistaken as to the existence of consideration and the enforceability of the Release.
Seward's alleged mistaken opinion of the legal effect of the release, however, cannot as a matter of law affect the enforceability of the release. McCarthy v. McCarthy, 9 Ill. App. 2d 462, 133 N.E.2d 763, 769 (1956). "If you sign a release knowing what you are giving up but believing . . . that really you're giving up nothing because the release is unenforceable, you are bound by your decision." Fortino, 950 F.2d at 395. Seward suggests that the court inquire into his subjective intent at the signing of the Release. Such an inquiry, however, would unduly hamper the voluntary settlement of ADEA claims by enabling a plaintiff to avoid the consequences of the plain language of a release by an examination of the plaintiff's state of mind. Riley, 881 F.2d at 374. Seward was college educated, he signed a release with simple language specifically addressing ADEA claims, and he had at least some knowledge of contract law. Seward's alleged mistaken belief that the Release lacked consideration did not interfere with his comprehension of the Release's legal significance, or consequently, his ability to knowingly sign the waiver.
As a final attempt to demonstrate that the Release was not signed knowingly and voluntarily, Seward has identified certain statements made by a GMC personnel administrator (the "Administrator") representing that the Release could be revoked at any time. Prior to signing the Release, Seward claims that he inquired as to his right to change his mind and revoke it, to which he allegedly received an affirmative answer. Seward contends that the Administrator told him that he could withdraw the Release whenever he so wished, and that the Administrator informed him of an instance in which another GMC employee had revoked his written intent to retire. Furthermore, Seward claims that the Administrator informed him that she needed to have all GMC employees "categorized" (i.e. identified as transferring, retiring, etc.) for an upcoming meeting with GMC officials and that all employees other than Seward had been categorized. Seward asserts that he executed the Release based on this information and that this information was false. Seward contends that material issues of fact exist as to whether he would have signed the release had he known that GMC's statements were false.
In essence, Seward asserts that the Administrator's alleged fraudulent statements induced his execution of the Release. In order to constitute fraudulent inducement, a representation: (1) must be one of material fact which has been made for the purpose of inducing the other party to act, (2) must be known by the maker to be false, but reasonably believed by the other party, and (3) must be relied upon by the other party and acted upon to his damage. General Electric Credit Auto Lease, Inc. v. Jankuski, 177 Ill. App. 3d 380, 383, 532 N.E.2d 361, 363, 126 Ill. Dec. 676 (1988); Ainsworth Corp. v. Cenco Inc., 107 Ill. App.3d 435, 437 N.E.2d 817, 63 Ill. Dec. 168 (1982). If established, fraudulent inducement is sufficient to invalidate a contract. Id. Nevertheless, a defense of fraud is ordinarily unavailable to avoid the effect of a written agreement if the complaining party could have discovered the fraud by reading the instrument and was afforded a full opportunity to do so. Belleville Nat'l Bank v. Rose, 119 Ill. App. 3d 56, 456 N.E.2d 281, 74 Ill. Dec. 779 (1983). Furthermore, absent manifest inequality between the respective parties, one who is aware of the nature and character of the instrument being signied cannot subsequently avoid the terms of the instrument by claiming to have been deceived by representations outside the instrument itself. American Savings Association v. Conrath, 123 Ill. App. 3d 140, 146, 462 N.E.2d 849, 854, 78 Ill. Dec. 730 (1984).
Seward has implied that the Administrator's alleged false representation that all other employees had been "categorized" somehow induced him to sign the Release. Even assuming that this statement was false and was made for the purpose of inducing Seward to act, such a statement is not, as a matter of law, a material fact upon which Seward could be justified in relying. The statement that all other employees in Seward's situation had signed the Release is not a matter to which a reasonable person would attach importance in determining whether to execute the document in question. See Buechin v. Ogden Chrysler-Plymouth, Inc., 159 Ill. App. 3d 237, 511 N.E.2d 1330, 111 Ill. Dec. 35 (1987) (plaintiff defrauded when sold a "new" car without being told of previous owner); Richmond v. Blair, 142 Ill. App. 3d 251, 488 N.E.2d 563, 94 Ill. Dec. 564 (1985) (house purchaser defrauded by real estate broker's presale assurances that water seepage had been corrected); Bank of Northern Illinois v. Nugent, 223 Ill. App. 3d 1, 584 N.E.2d 948, 165 Ill. Dec. 514 (1991) (plaintiffs defrauded by loan recipient's intentional misrepresentation of economic condition of company). The Administrator's representation was not the type of statement the veracity of which would be material to Seward's decision to execute the Release, and thus, was not a fraudulent inducement rendering the Release unenforceable.
Seward asserts that the Administrator's statement regarding the revocability of the Release was an agreement or promise that GMC would treat the Release as unilaterally revocable by Seward. The Release, however, acknowledged in simple clear language that no other promises were made and that the document constituted the entire and exclusive agreement. Seward, as signatory to the Release, was not at liberty to accept the Administrator's prior representation, if made, that the Release could be rescinded at Seward's request because Seward acknowledged in the Release that no other "representations, promises or agreements" relating to his retirement had been made. See Hurley v. Frontier Ford Motors, Inc., 12 Ill. App. 3d 905, 299 N.E.2d 387 (1973) (buyer of used car precluded from relying on salesman's oral promise to repair where buyer could have noted discrepancy before signing "as is" contract); American Sav. Assoc. v. Conrath, 123 Ill. App. 3d 140, 462 N.E.2d 849, 78 Ill. Dec. 730 (1984) (complaining party could have discovered the fraud by reading the written document). Any reasonable reading of the Release should have alerted him that any prior agreement made with respect to his retirement, but not embodied in the Release, would not be honored by GMC. Belleville Nat'l Bank v. Rose, 119 Ill. App. 3d at 59, 456 N.E.2d at 284 (defense of fraud unavailable to avoid the effect of written agreement where complaining party could have discovered the fraud by reading the instrument).
In sum, Seward has asked the court to accept parol evidence of an alleged contractual right to unilateral rescission. Such a right would enable Seward to relieve himself of all obligations under the Release at his whim. Seward has not raised a genuine issue of fact that, with his college business education, years of supervisory experience, and real estate experience, he justifiably relied on this position when executing the Release. Because Seward has raised the alleged misrepresentations of the Administrator in an attempt to thwart GMC's motion for summary judgment, he must demonstrate with more than a scintilla of evidence that material issues of genuine fact exist as to the validity of the Release. Brownell, 950 F.2d at 1289. Self-serving statements of alleged parol misrepresentations summarily embodied in a response to a motion, unsupported by affidavits or any other evidence,
are insufficient to create genuine issues of fact in this matter. See Aungst v. Westinghouse Electric Corp., 937 F.2d 1216 (7th Cir. 1991) (self-serving testimony regarding plaintiff's own ability to work insufficient to contradict negative assessment of that ability); United States v. Binzel, 907 F.2d 746 (7th Cir. 1991) (self-serving allegations insufficient to raise genuine issue of fact which would preclude summary judgment). Accordingly, the court finds that there is no genuine issue of material fact that the Release executed by Seward was fraudulently induced.
In its motion for summary judgment, GMC argues that even if the execution of the Release was somehow defective, Seward's failure to tender back to GMC the consideration he received in exchange for his waiver of claims constitutes a ratification of the Release. Such a ratification would render the Release enforceable, affording GMC the benefit of its bargain. In Grillet v. Sears, Roebuck & Co., 927 F.2d 217 (5th Cir. 1991), the plaintiff over a period of months received approximately $ 36,000 in exchange for executing a release waiving any claims she might have against Sears. The Fifth Circuit held that, even assuming a release was tainted with fraud and duress, the plaintiff's failure to return the consideration upon her discovery of the fraud and duress ratified the release. Id. at 221. Specifically, the Grillet 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 voidable, her continued retention of the benefits constitutes a ratification of the release.
. . .
Even if Grillet's release was tainted by misrepresentation, Grillet ratified the release by keeping its benefits for an unreasonably long period of time.
Id. at 220-21 (citations omitted); see also Cumberland & Ohio Co. v. First American Nat'l Bank, 936 F.2d 846, 850 (6th Cir. 1991), cert. denied 116 L. Ed. 2d 783, 112 S. Ct. 878 (1992) (releasor who retains consideration after learning that a waiver and release is voidable effectively ratifies the release); but see Forbus v. Sears Roebuck & Co., 958 F.2d 1036 (11th Cir. 1992), petition for cert. filed (Sept. 14, 1992) (where invalid releases under the ADEA have been executed there is no tender-back requirement for instituting an ADEA suit).
The Fourth Circuit reached the same result in O'Shea v. Commercial Credit Corp., 930 F.2d 358 (4th Cir.), cert. denied, 116 L. Ed. 2d 139, 112 S. Ct. 177 (1991). In O'Shea, the plaintiff signed a release in exchange for severance pay and other benefits. Despite having signed the release, the plaintiff brought suit under the ADEA alleging the release was not knowingly or voluntarily signed. Id. at 330. The Circuit Court upheld the District Court's grant of summary judgment in favor of the defendant, stating:
Even if the release executed by the [employee] was invalid, the [employer] would have prevailed on the ground that the [employee's] subsequent acceptance of the severance pay demonstrated an intent to ratify the agreement. It is well-established proposition that the retention of the benefits of a voidable contract may constitute ratification.
Id. at 362 (citations omitted).
The events that Seward claims invalidate the Release occurred prior to his retirement on January 1, 1990. Every month after his retirement until his sixty-second birthday, from January 1, 1990 to July 6, 1992, Seward accepted more than $ 900 in additional benefits from the Release, despite his apparent belief that the Release was invalid or had been revoked. Furthermore, Seward continued to accept enhanced monthly benefits even after initiating this suit in violation of the express terms of the Release. Through his actions, Seward has attempted to have his cake and eat it too. To avoid ratifying the Release through his conduct, Seward should have at least refused the additional retirement benefits once he learned of the alleged invalidity of the Release. See Anselmo v. Manufacturers Life Ins. Co., 771 F.2d 417 (8th Cir. 1985) (silence and acquiescence for a considerable period after execution, action in accord with, and acceptance of benefits under contract amount to ratification). Instead, Seward retained and continued to receive the benefits of the Release after he discovered the alleged fraud and duress. Accordingly, Seward cannot avoid ratification.
Notwithstanding the logic of the Fifth and Fourth Circuits, Seward urges the court the follow the holding of Isaacs v. Caterpillar, Inc., 765 F. Supp. 1359 (C.D. Ill. 1991). The Isaacs district court ruled that plaintiffs who received certain benefits for signing a purported release were not required to tender back the consideration they received as a prerequisite to bringing an ADEA claim. The Isaacs decision, however, and the seminal case upon which it relied, Hogue v. Southern R. Co., 390 U.S. 516, 20 L. Ed. 2d 73, 88 S. Ct. 1150 (1968) (holding a tender back of consideration is not required for FELA claim in which mutual mistake of fact existed when release was signed), are distinguishable from the situation before the court. Neither Isaacs nor Hogue involved a situation in which a plaintiff continued to receive and retain the benefits of a release while cognizant of facts, which if true, would invalidate the release. To apply the holding of the court in Isaacs to Seward's case would encourage releasors with potential ADEA claims to postpone raising such claims and asserting the invalidity of their releases until the latest possible date, because they would have nothing to lose and the continued receipt of release benefits to gain. Accordingly, the court declines to apply the Isaac and Hogue analysis to the present situation, in which the releasor was aware of issues regarding the validity of the waiver but continued to accept the retirement funds tendered to him.
Seward further requests that this court adopt the holdings reached in Oberg v. Allied Van Lines, No. 91 C 6576, 1992 U.S. Dist WL 211506 (N.D. Ill. Aug. 26, 1992), and Collins v. Outboard Marine Corp., No. 91 C 4313, 1992 U.S. Dist WL 209279 (N.D. Ill. Aug. 17, 1992). Each of these cases, however, was decided in light of recent amendments to the ADEA, namely, the Older Workers Benefit Protection Act ("OWBPA"), Pub. L. No. 101-433, 104 Stat. 983 (1990). The OWBPA details the minimum requirements necessary for ADEA waivers to be considered knowing and voluntary. The Oberg and Collins courts found that the OWBPA's strict requirements for a knowing and voluntary waiver preclude waiver by ratification. Oberg at *6 (finding that ratification would as a practical matter undo the OWBPA's waiver provision); Collins at *4 (where release fails OWBPA's waiver requirements it cannot constitute a legal waiver of an ADEA claim; therefore, there can be no legal obligation that can be ratified). Because the OWBPA codification of the voluntary and knowing requirements was not in existence at the time the Release was executed, the findings of the Oberg and Collins courts are not applicable to the present case. See Oberg at *5 ("Prior to the enactment of the OWBPA, a release that was not knowing and voluntary when initially executed might have become enforceable through ratification if the employee both gained the knowledge withheld from her at the time of the signing and then voluntarily retained the benefits of her bargain").
Seward validly waived his right to redress an alleged ADEA claim against GMC by his voluntary and knowing execution of the Release. At the time of the waiver, he had the quality of mind essential to making a contract. The court finds that Seward raises no issues of material fact which support allegations that the Release was not knowingly and voluntarily executed. Furthermore, even if Seward's claims of fraud and duress were true, Seward nevertheless ratified the Release by keeping its benefits despite his awareness of the alleged circumstances that purportedly rendered it invalid. The court does not hold that Seward, prior to initiating this suit, was obligated to tender back to GMC the supplemental retirement benefits which he received. Rather, the court holds that Seward, to avoid ratification of the Release, was obligated to tender back or refuse the benefits he received after he became aware of the alleged fraud and duress he now raises as a defense to the Release.
For the reasons stated above, GMC's motion for summary judgment is granted.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court