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October 13, 1994

CATHERINE WAGNER, et al., Plaintiffs,


The opinion of the court was delivered by: RUBEN CASTILLO

Before the Court is a Motion for Summary Judgment, filed by Defendant, NutraSweet Company ("Nutrasweet" or "company"), and a Motion for Class Certification, filed by Plaintiff, Catherine Wagner ("Wagner"), on behalf of the potential class: Anne Marie Sorcenelli ("Sorcenelli"); Sarah Baldwin Weissman ("Weissman"); and Jenny Bridges Cox Harrison ("Harrison"). After careful review, the court finds that NutraSweet's Motion for Summary Judgment must be granted in part and denied in part (# 70-1). *fn1" Further, the court's disposition of NutraSweet's Motion mandates that Wagner's pending Motion for Class Certification be denied.


 On April 8, 1992, Wagner, individually and on behalf of a class of female plaintiffs similarly situated, filed a three count Amended Complaint ("Complaint") against NutraSweet. In her Complaint, Wagner alleges violations of the Equal Pay Act, 29 U.S.C. § 206(d)(1982), and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et. seq. (1982), *fn2" as amended by the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071-1099. *fn3"

 As pled, the Complaint satisfies all jurisdictional prerequisites required by Title VII and the Equal Pay Act ("EPA"). First, NutraSweet is an "employer," and Wagner and the other members of her class are former "employees" of the company for purposes of both statutes. 42 U.S.C. § 2000e(Title VII); 29 U.S.C. § 262(b) and (c). Second, the court has federal question jurisdiction over Wagner's claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3); venue is also proper pursuant to 28 U.S.C. § 1391(b)(1) and (2) and 42 U.S.C. § 2000e-5(f)(3), as alleged in Wagner's Complaint. Third, Wagner filed a claim with the EEOC within 180 days from the date her cause of action arose. *fn4" 42 U.S.C. § 2000e-5(e). Fourth, Wagner filed suit in district court on April 8, 1992, the same day she received a right to sue letter from the EEOC, thus satisfying Title VII's ninety (90) day requirement. 42 U.S.C. § 2000e-5 (f)(1); 29 C.F.R. § 1601.28 (1991). Fifth, Wagner filed suit on April 8, 1992, satisfying the EPA's two year statute of limitations for any claims arising after March 25, 1991. 29 U.S.C. § 225(a). *fn5"


 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1985). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact." Id. at 248.

 "The substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. Factual disputes that are irrelevant or unnecessary are not material. Id.

 "Summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). As stated in Anderson, "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. at 249. "When a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial." Id. at 250. "There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. at 249. If the evidence is merely colorable, or is not significantly probative, or is no more than a scintilla, summary judgment may be granted. Id. at 249-250.


 I. The 1991 Reconfiguration

 In March 1991, NutraSweet began to implement the reconfiguration and the resulting terminations. 12(m) P 3. Each terminated employee received a letter stating that he or she had been terminated ("separation letter") and setting forth the severance benefits which NutraSweet planned to provide under its March 1, 1991, Separation Guidelines ("Guidelines"). According to the Guidelines, an employee terminated due to conditions beyond the employee's control such as job elimination or change in job content, would receive severance pay and continued participation in health and benefit programs. According to the Guidelines, NutraSweet intended to calculate the duration of these benefits on an individual basis depending upon the employee's status and seniority with the company. The Guidelines also referred to the possibility that an employee might be placed on "redeployment" prior to termination of employment. Exhibit H, Wagner's Mem. In Opp. at 2.

 In addition to setting out the severance benefits being offered to the employee, the separation letters also contained a general release, which stated:

In consideration of the payments set out in this letter, you for yourself, your executors, personal representatives, successors and assigns hereby release and absolve the officers, directors, successors and assigns from any and all claims, charges, demands, or causes of action, known or unknown, asserted or unasserted, in any way arising from your employment, separation of employment or failure to be recalled or rehired by the company, including but not limited to, all claims which would have been raised pursuant to any common law cause of action or pursuant to any federal, state or local statute, order, law or regulation. In making this Agreement, you and the Company agree that you were an "employee-at-will" of the Company and not employed pursuant to either a written or oral employment contract.

 Directly below the release language, was a line for the employee's signature. Catherine Wagner and the other plaintiffs signed this release. Although the language of the release was identical for each plaintiff, the consideration offered in exchange was not. Some background discussion regarding each plaintiff's separation agreement is therefore necessary to the resolution of this Motion.

 A. Catherine Wagner

 Catherine Wagner was hired by NutraSweet on March 1, 1984, as a personnel manager. 12(m) P 8. In late 1985, Wagner moved to NutraSweet's Research & Development ("R&D") Group. 12(m) P 10. In her positions first as Manager of Personnel and then as Director of Human Resources, Wagner was the top human resources executive for R&D. 12(m) PP 12-14. As Director, Wagner was responsible for providing employee relations services for the R&D Group, including management of salary, bonuses, hiring, promotion, termination and the administrative functions which accompanied those tasks. 12(m) P 16.

 In 1991, Wagner was responsible for implementing various components of the reconfiguration as they related to the termination of R&D employees. Wagner's tasks included the review of termination decisions in R&D with Mike Losee, Vice President of R&D, and each of the R&D managers in order to ensure equal employment compliance. 12(m) P 18. Wagner also reviewed and prepared documents recommending termination decisions within R&D to NutraSweet's "Separation Process Review Committee." 12(m) PP 19 and 21.

 After the significant reduction of R&D, Wagner determined that NutraSweet no longer needed a director responsible for R&D's human resources functions. 12(m) P 26. As a result, Wagner recommended that her position should be eliminated and a Manager, Human Resources position be created in its stead. 12(m) P26. Mike Losee agreed to the change and offered Wagner the position. 12(m) P 27; 12(n) PP 9-10. Wagner refused, expressing her intention to leave the company instead. 12(m) P 27; 12(n) P 10.

 NutraSweet offered Wagner a "separation package" on March 25, 1991, which included a general release. 12(m) P 28-29; 12(n) P 10. Wagner, aware that the release was intended to prevent her from suing the company for any claims, known or unknown, which arose during her tenure, signed the agreement. 12(m) PP 28, 30; 12(n) P 28, 30. In exchange for this agreement, NutraSweet offered Wagner two months' redeployment pay beginning August 5, 1991, outplacement services, *fn6" and severance benefits worth $ 46,307.69. NutraSweet also offered Wagner a "Retention Period" to complete various projects with retention pay "equal to one half of the amount of [Wagner's] separation pay," or $ 23,153.00.

 According to the terms of her Retention Agreement with NutraSweet, Wagner's Retention Period was designed to last no longer than October 1, 1991, with the possibility of a shorter period should the projects be completed ahead of schedule. Exhibit J, NutraSweet's CMSJ. On August 1, 1991, NutraSweet presented Wagner with a second separation letter requesting her to release the company from liability for claims arising from March 30, 1991, through August 5, 1991. *fn7" Exhibit I, NutraSweet's CMSJ. Wagner refused to sign this agreement because she believed that NutraSweet had discriminated against her during the retention period. 12(m) P 38; Pl.'s Uncontested Facts P 11.

 In April 1991, Wagner learned that a Director, Human Resources position was open in another department. 12(n) P 11; NutraSweet Response to 12(n) P 11. Although she applied for this position and was qualified, Nutrasweet did not select her, but hired Mike Vinitsky, another Nutrasweet employee instead. 12(n) P 11; NutraSweet's 12(n) Response P 11. In late July 1991, as Wagner's retention period neared its end, Nutrasweet named Wayne Tompkins as Director, Human Resources for R&D. 12(n) P 12; NutraSweet Response to 12(n) P 12. At the time Tompkins was named as Director, he held the position of Manager in R&D and had been retained to pick up the responsibilities left after elimination of Wagner's Directorship. NutraSweet Memo. In Support CMSJ at 8. While acting Director, Wagner knew that the Manager position, and thus Tompkins, was paid at a lower rate than the Director position she held. 12(m) P 16. Further, Tompkins, even after being named to the Director position, earned less money than Wagner earned when she held the position. NutraSweet Response to 12(n) at 6-7.

 B. Anne Marie Sorcenelli

 Anne Marie Sorcenelli ("Sorcenelli") was employed by NutraSweet as the Director, Human Resources for The NutraSweet Business Group ("TNBG") from April 1990 until April 5, 1991. 12(m) P 45. Her responsibilities included compensation, recruitment, termination, redeployment, management review, management succession, management training, equal employment opportunity compliance and all other employee relations issues for her business group. 12(m) PP 49, 50. Sorcenelli also participated in the corporate HR meetings which led to the preparation of the separation ...

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