that two employees who terminated from non-R&D groups, Anna Richo Moore and Christine Karbowiak Vanek, were advised that if they did not sign the release they would not receive "redeployment" and outplacement benefits. According to Grayson, neither individual signed the release and neither received "redeployment" or outplacement benefits. This testimony is material and, because it is also uncontroverted, it is determinative on the issue of outplacment benefits. Plaintiff's evidence is not sufficiently probative. See Exhibit I and J, Pl.'s Mem. In Opposition (Wagner deposition testimony and an Outplacement Services Document).
Wagner stands in a different position than the purported class for several reasons. First, the redeployment pay she received did not constitute consideration for her release because she was entitled to it under the WARN Act. Second, although the outplacment services she received for her March 25, 1991, release constituted valid consideration, as she understood they did, it is not clear from the record whether a "tender" of the benefits received from these services is possible. Third, the retention period and corresponding pay Wagner received not only constitute a separate agreement, i.e., the "Retention Agreement," but are also part of the March 25th "separation package." NutraSweet argues that this retention pay constitutes part of the consideration Wagner received in exchange for her release. Wagner does not offer an argument in response.
NutraSweet was not legally obligated to offer Wagner a retention period and retention pay. Thus, this "Retention Agreement" or "offer" constitutes consideration. The only question is whether it constitutes consideration for Wagner's release.
The undisputed facts indicate that the Retention Agreement did constitute consideration for the release. When Wagner received the Separation Letter dated March 25, 1991, the "Retention Agreement" was attached to it. Although the two agreements were contained in separate documents, each referred to the other. Further, the letters informed Wagner that her redeployment pay, outplacement services and severance benefits were affected by the dates of her employment. Thus, it is reasonable to infer that when Wagner signed the release contained in the Separation Agreement, she knew that the retention period extended the dates of her separation benefits and thus added to the total amount of benefits she received as part of the Separation Agreement.
After careful consideration, the Court finds that the timing of the two offers, the fact that NutraSweet attached the "Retention Agreement" to the "Separation Agreement," and the reference to the retention period in the March 25, 1991, Separation Letter make it indisputable that the Retention Agreement was offered as consideration for Wagner's release. Thus, according to the tender rule, these retention payments should have been tendered to NutraSweet before Wagner brought suit. Her failure to tender or offer to tender this consideration bars her from raising any claims covered by the March 25, 1991 release.
II. THE PROSPECTIVE WAIVER RULE
Prospective claims not yet in existence or "within the contemplation of the parties" cannot be waived by signing a general release. See Riley v. American Family Mutual Insurance Co., 881 F.2d 368, 371 n.6 (7th Cir. 1989)("prospective waivers are unenforceable"); Fair v. International Flavors & Fragrances, 905 F.2d 1114, 1115 (7th Cir. 1990) (noting that "courts should not recognize general releases of claims not known or contemplated by the parties at the time of the release"); Goodman v. Epstein, 582 F.2d 388, 402 n.42 (7th Cir. 1978)("any attempt to release a claim in futuro is invalid"). See also International Insurance Co. v. Sargent & Lundy, 242 Ill. App. 3d 614, 609 N.E.2d 842, 182 Ill. Dec. 308 (5th Dist. 1993)(general releases apply only to claims in existence at the time the release is executed; claims arising subsequent to execution are discharged only by a "clear expression of intent to that effect"); Chubb v. Amax Coal Co., Inc., 125 Ill. App. 3d 682, 686, 80 Ill. Dec. 917, 466 N.E.2d 369 (5th Dist. 1984) (same). The bar against prospective waivers, however, is not absolute.
Claims contemplated, but not yet in existence, at the time a release is executed are waived. Id. Fair v. International, 905 F.2d 1114, 1115 (7th Cir. 1990)(pension claim arising two years after execution of release barred because parties "should have been aware of any impact the Settlement Agreement might have upon [plaintiffs'] impending retirement benefits"); Oberweis Dairy, Inc. v. Associated Milk Producers, Inc., 568 F. Supp. 1096 (N.D. Ill. 1983)(Shadur, J.)(although prospective nature of antitrust claims required court to rescind release for reasons of public policy, Judge Shadur noted that the release if "read fairly" purported to discharge defendant from claims asserted because they were "within the contemplation" of parties when release executed). Claims of which a signing party has actual knowledge or that the party could have discovered upon reasonable inquiry are also barred. E.g., Fair, 905 F.2d at 115 (7th Cir. 1990); Oberweis Dairy, 568 F. Supp. at 1101 (N.D.Ill. 1983), citing Goodman v. Epstein, 582 F.2d 388, 402-04 (7th Cir. 1978), cert. denied, 440 U.S. 939, 59 L. Ed. 2d 499, 99 S. Ct. 1289 (7th Cir. 1978). See also Oglesby v. Coca-Cola Bottling Co., 620 F. Supp. 1336, 1342 (N.D.Ill. 1985). Application of these rules results in judgment against Sorcenelli but not against Wagner.
Sorcenelli concedes that the release she signed on April 30, 1991, is valid and enforceable. She contends, however, that the release is not enforceable against claims which she could not discover upon reasonable inquiry, even if these claims arose before she signed the release. Specifically, Sorcenelli claims that she did not know her successor Mike Vinitsky received a larger MIP award in 1990 until after she signed her release.
The law clearly states that unknown claims are those which are in existence and can be discovered upon reasonable inquiry, or claims which are contemplated by the parties executing the release, even if they do not yet exist. The undisputed facts demonstrate that Sorcenelli's claim existed and was within her contemplation at the time she signed the release.
Sorcenelli knew that she did not receive the same compensation as other employees at her level in her group, and that Mike Vinitsky, her comparative and ultimate successor, earned approximately $ 20,000 more than she did. Further, Sorcenelli complained to her supervisors, on more than one occasion, about the amount of her 1991 MIP Award in relation to other employees in her department. The fact that Sorcenelli did not have access to the exact amount of Vinitsky's award prior to her termination does not change the equation. Had Sorcenelli refused to sign the release and brought suit instead, legal methods of discovery could have uncovered this information. Thus, Sorcenelli cannot contend that the claim she now alleges, although in existence at the time she signed the release, could not be discovered upon reasonable inquiry.
Accordingly, the court will direct the entry of summary judgment against Sorcenelli in favor of NutraSweet.
Although Sorcenelli's claim cannot be considered prospective, Wagner's claims can. Several reasons support this distinction.
First, the claims Wagner alleges did not arise until after she executed the March 25, 1991 release. Claims not in existence at the time a release is executed cannot be waived unless they are within the contemplation of the parties. Second, the record does not indicate whether Wagner had a basis for believing that NutraSweet engaged in discriminatory hiring and firing before she signed her release. Wagner also apparently never complained to anyone (unlike Sorcenelli) regarding compensation or promotional opportunities. Thus, there is no basis for a reasonable jury or the court to find that Wagner contemplated suing NutraSweet for sex discrimination at the time she signed her release.
Finally, Wagner (unlike Sorcenelli) remained an employee of NutraSweet after execution of her release. The March 25, 1991 release, however, did not purport to cover the claims which arose during her retention period. NutraSweet apparently recognized this fact because it offered Wagner a second release dated August 1, 1991. Exhibit I, NutraSweet CMSJ. Although the August 1, 1991, Separation Letter is framed as a "reconfirmation" of Wagner's previous Separation Agreement and release, functioning only to clarify the dates of her departure and the payment of benefits already agreed to on March 25, 1991, the August 1st letter contains a second release, with identical language, which Wagner was asked to sign. In the court's judgment, Wagner's refusal to sign the second release gives her the right to bring suit against NutraSweet for any claims arising from March 30, 1991, through the last day of her employment, October 5, 1991. Accordingly, summary judgment will be denied with respect to Wagner's claims regarding the hiring of Mike Vinitsky in April 1991 and the alleged promotion of Wayne Tompkins in July/August 1991.
III. CLASS CERTIFICATION
The entry of judgment against the purported class members' individual claims renders plaintiffs' Motion for Class Certification somewhat moot. Cf. Chambers v. American Trans Air, 17 F.3d 998 (7th Cir. 1994)(circuit court found motion for class certification moot where district court entered summary judgment on individual claims of class representative). Nonetheless, the court finds it necessary to address this motion on the merits, given the fact that two of Wagner's individual claims survive summary judgment, thereby leaving open the possibility of future class actions.
The court finds that Plaintiffs' Motion for Class Certification must be denied, because it does not meet at least one of Rule 23(a)'s four conditions, namely, typicality of claims and defenses.
See General Tel. Co. v. Falcon, 457 U.S. 147, 156, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982)(to be certified, Title VII classes must meet with particularity each of the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure). Typicality is met where the representative plaintiff's claim "arises from the same event or practice or course of conduct that gives rise to the claims of the class members and is based on the same legal theory." Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). As can be seen from the court's discussion of NutraSweet's Motion for Summary Judgment, the claims alleged (and the releases executed) by the purported class are not typical, because they require application of several legal theories and individual analysis of each release and claim. This finding holds true even though plaintiffs' claims arise from the same event or practice, namely, NutraSweet's 1991 reconfiguration and the issuance of its general release.
IT IS THEREFORE ORDERED that NutraSweet's Consolidated Motion for Summary Judgment (# 70-1) is GRANTED IN PART AND DENIED IN PART. The Clerk of the Court is directed enter judgment in favor of NutraSweet and against Anne Marie Sorcenelli, Sarah Baldwin Weissman and Jenny Bridges Cox Harrison on all counts of the Amended Complaint. The Clerk is further directed to enter judgment in favor of NutraSweet and against Catherine Wagner on all claims alleged in the Complaint which arose before March 25, 1991. NutraSweet's Motion for summary judgment is denied, however, with respect to Wagner's claims arising after March 30, 1991, specifically, the claims related to Mike Vinitsky and Wayne Tompkins. IT IS FURTHER ORDERED that Plaintiffs' Motion for Class Certification (# 59-1, originally 13-1) is DENIED and Motion to Compel (#25-1)
To expedite pretrial proceedings, Plaintiff is directed to file an amended complaint which sets forth the remaining claims with more specificity within fourteen (14) days from the date of this order. Defendant will be given fourteen (14) days to answer this amended complaint and this matter will be set for status on October 28, 1994, at 9:30 a.m., for the express purpose of setting an appropriate discovery and trial schedule for the remaining claims involved in this case.
United States District Judge
October 13, 1994
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that defendant, The Nutrasweet Company's consolidated motion for summary judgment is granted in part and denied in part. Judgment is entered in favor of defendant Nutrasweet and against Anne Marie Sorcenelli, Sarah Baldwin Weissman and Jenny Bridges Cox Harrison on all counts of the Amended Complaint. Judgment is entered in favor of Nutrasweet and against plaintiff Catherine Wagner on all claims alleged in the Complaint which arose before March 25, 1991. Nutrasweet's motion for summary judgment is denied, however, with respect to Wagner's claims arising after March 30, 1991 specifically, the claims related to Mike Vinitsky and Wayne Tompkins. It is further ordered that Plaintiffs' motion for class certification is denied and Plaintiffs' motion to compel is moot. Plaintiff is directed to file an amended complaint which sets forth the remaining claims with more specificity by October 27, 1994.
Date October 13, 1994