The opinion of the court was delivered by: Keys, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendants' Motion for
Summary Judgment, pursuant to Federal Rule of Civil Procedure 56.
For the reasons set forth below, Defendants' Motion for Summary
Judgment is denied.
Defendant United States Fidelity and Guaranty Company ("USF &
G") is an Illinois Corporation. (Complaint [Compl.] ¶ 5.)
Defendant Netmax Claims Services, Inc. ("Netmax") is a wholly
owned subsidiary of USF & G. (Compl. at 1.) Both USF & G and
Netmax are wholly owned subsidiaries of St. Paul Insurance Co.
(Compl. at 1.) On June 22, 1992, USF & G and Netmax hired
Plaintiff Cheryl Murrell as an investigator in USF & G's Special
Investigations Division ("SID"). (Plaintiff's 12(N)*fn2 [Pl.'s
12(N)] ¶ 1; Equal Employment Opportunity Commission Complaint
[EEOC Compl.] ¶ 3; Defendants' 12(M) [Defs.' 12(M)] ¶ 1.) For the
purposes of this Opinion, the terms USF & G and Netmax will be
used interchangeably in referring to the Defendants.
On March 7, 1997, Russ Kesler, Ms. Murrell's supervisor, sent a
memorandum to his supervisor, Charles Nelson, asking for
"authority to terminate Cheryl Murrell effectively [sic]
immediately."*fn3 (Pl.'s 12(N) ¶ 2 at 15; Plaintiff's Exhibit
[Pl.'s Ex.] 11 at 4.) Kathleen McCutcheon, USF & G's Home Office
Human Resource Manager, also received a copy of this memorandum.
(Pl.'s Ex. 11 at 1.)*fn4 During this week, Mr. Kesler also
called Ms. Murrell to tell her that he was coming to Chicago "to
discuss problems with the Chicago branch." (Pl.'s 12(N) ¶ 32;
EEOC Compl. ¶¶ 40-41; Defs.' 12(M) ¶ 32.) His call upset Ms.
Ms. Murrell did not feel that the P.I.P. being offered was "one
that would be fair or workable." (Pl.'s 12(N) ¶ 3; EEOC Compl. ¶
44.) Mr. Kesler and Ms. McCutcheon made it clear that the only
alternative that Ms. Murrell had was to resign. (Pl.'s 12(N) ¶ 3;
EEOC Compl. ¶ 44.) In her opinion, the company made it clear to
her that she "was not welcome back as an employee under any
circumstances." (Pl.'s 12(N) ¶ 3; EEOC Compl. ¶ 48.)
Mr. Kesler advised Ms. Murrell that, "due to the comments she
had made" to Mr. Kesler, they were willing to make her an "offer
on a severance package."*fn5 (Pl.'s 12(N) ¶ 2 at 16; Pl.'s Ex.
10 at 27-28.) Mr. Kesler claims that they explained the severance
package to Ms. Murrell at that meeting. Id.
Ms. Murrell requested some time "to think over [her] options as
[she] was very upset and had a career breaking decision to make."
(Pl.'s 12(N) ¶ 3; EEOC Compl. ¶ 44.) Mr. Kesler and Ms.
McCutcheon gave Ms. Murrell two days to make her decision. (Pl.'s
12(N) ¶ 3; EEOC Compl. ¶ 44.) Ms. Murrell requested more than two
days, so that she would have time to discuss the matter with her
attorney. Id. However, Ms. McCutcheon refused to give her more
time. Id. By the end of the meeting on March 18th, Ms. Murrell
had not given an answer as to which way she would go. (Pl.'s
12(N) ¶ 2; Pl.'s Ex. 10 at 32.)
Incidentally, USF & G alleges that Ms. Murrell left the office
on March 18, 1997, and did not come back, except for a brief time
on March 28, 1997, to turn in her company car and company-issued
equipment to Mr. Kesler. (Defs.' 12(M) ¶ 6; Appendix in Supp. of
Defs.' Motion Sum. J. ["Defs.' Ex."], Ex. B, Cheryl Murrell's
Deposition [Murrell Dep.] at 50-51.) According to USF & G, Ms.
Murrell did not perform any of her job duties after March 18,
1997. (Defs.' 12(M) ¶ 6.) On the other hand, Ms. Murrell claims
that she continued to work out of her house until March 28, 1997,
by responding to pages, responding to voice mail, working on a
company-provided lap to computer, driving the company-provided
car, and working on company files. (Pl.'s 12(N) ¶¶ 2, 6; Pl.'s
Ex. 14 ¶¶ 9-10.) She said that the last day that she performed
work for USF & G was "[s]ometime in March of 1997."*fn6 (Murrell
Dep. at 50.) Ms. Murrell explained that she and others from the
Chicago SID unit did not come into the office on a regular basis,
because there was not sufficient space for all of the employees
to work in the office. (Pl.'s 12(N) ¶ 6; Pl.'s Ex. 14 ¶¶ 3-8.)
Instead, the investigators would report in approximately once a
Ms. Murrell was unable to reach her attorney in the two days
allotted to her by Mr. Kesler and Ms. McCutcheon for her
decision, because the attorney was out of town. (Pl.'s 12(N) ¶ 4;
EEOC Compl. ¶ 45.) On March 20, 1997, Ms. Murrell called Mr.
Kesler and advised him of her decision to resign. Id. According
to Ms. Murrell, she confirmed with him that by resigning, she
"would still have a period of three weeks to make [her] final
decision." (Pl.'s 12(N) ¶ 4; EEOC Compl. ¶ 45.) Ms. Murrell
believed that she was protected by the Older Workers Benefit
Protection Act of 1990, 29 U.S.C. § 626(f), because she was over
40. (Pl.'s 12(N) ¶ 4.)
Also on March 20th, Mr. Kesler sent Ms. Murrell a "Severance
Agreement and General Release" in memorandum form. (Defs.' 12(M)
¶ 4; Defs.' Ex. C 1 at 1.) The "Severance Agreement and General
Release" set forth the terms for "an amicable separation of [Ms.]
Murrell's employment by USF & G." Id. The document stated that
USF & G records would reflect that Ms. Murrell's employment with
USF & G would "terminate effective June 27, 1997." (Defs.' Ex. C
1 at 1.) According to this document, Ms. Murrell would continue
present assignment until March 28, 1997 . . . [when
she would] no longer . . . be required to perform
that assignment, but . . . [would] be fully available
to work with USF & G on such matters as shall be
required from time to time. Of course, during this
period, [Ms. Murrell] must abide by all standard
policies and procedures of USF & G including, but not
limited to, USF & G's Code of Conduct.
(Defs.' Ex. C 1 at 1.) The "Severance Agreement and General
Release" asserted that, if Ms. Murrell complied with all terms of
the "agreement," USF & G would provide her with a series of
benefits, including accrued vacation pay, health and dental
insurance, and a possible VIP Bonus. (Defs.' Ex. 1 at 1.) In
return, she had to release USF & G from any and all liabilities
or claims. (Defs.' Ex. C 1 at 3.) Neither Ms. Murrell nor Mr.
Kesler signed this "Severance Agreement and General Release."
(Defs.' Ex. C 1 at 4.)
On March 21, 1997, Mr. Kesler e-mailed Ms. Murrell regarding
the "Severance Agreement and General Release." (Pl.'s Ex.
2.)*fn7 Mr. Kesler stated that it was his "understanding that
you accept the offer this date. I also understand that you accept
the offer pending discussion with your attorney maintaining your
rights as outlined in paragraph 7." (Pl.'s Ex. 2.) Furthermore,
Mr. Kesler told Ms. Murrell that he planned to meet with her in
Chicago on Friday, March 28, 1997, "to retrieve all equipment and
items in [her] possession."*fn8 (Pl.'s Ex. 2.)
On March 27, 1997, Mr. Kesler e-mailed Ms. McCutcheon and Mr.
Nelson stating that:
I did page and speak with Cheryl after our
conversation. I advised Cheryl that I was still
coming to Chicago tomorrow, 03/27/97, to collect her
equipment as per our agreement which she verbally
accepted last Friday 03/21/97. She stated she would
confer with her attorney who had been the one asking
for the extention [sic]. I advised her that we had
been proceeding under the agreement and she had not
been at work since accepting the agreement. Again,
she stated she would consult with her attorney.
(Pl.'s Ex. 3; Pl.'s 12(N) ¶ 4.)
On March 28, 1997, Mr. Kesler collected all of Ms. Murrell's
company equipment. (Pl.'s 12(N) ¶ 5; Pl.'s Ex. 14 ¶ 10; EEOC
Compl. ¶ 46.) According to Ms. Murrell, this was the event that
"convinced" her that she was "terminated" — when "they took away
[her] car, [her] computer, [her] fax machine, [her] pager, [her]
ID card, [her] security pass to get into the office and any other
equipment that [she] needed to work." (Murrell Dep. at 50.) USF &
G continued to deduct from Ms. Murrell's paycheck for the use of
a company car at least through April 4, 1997, even though she did
not have the car as of March 28, 1997. (Pl.'s 12(N) ¶ 2; Defs.'
Ex. C 3 at 1.)
On March 30, 1997, Mr. Kesler e-mailed Ms. McCutcheon and said:
"Kathleen: I forgot to mention in my other email [sic] that I
have held onto Cheryl [sic] bonus package. Once she has signed
the agreement and the 7 days have passed I will give it to her."
(Pl.'s Ex. 5; Pl.'s 12(N) ¶ 4.) On April 8, 1997, Mr. Kesler
e-mailed Ms. McCutcheon again and acknowledged that the "21-day
period" under the Older Workers Benefit Protection Act expired on
April 12, 1997: "Kathleen: Just to let you know I have not yet
received the signed copy of the agreement from Cheryl. If I
calculate correctly her 21 days expires Friday the 12th. Have you
heard anything?" (Pl.'s 12(N) ¶ 4; Pl.'s Ex. 13.)
From April to December of 1997, Michael Greenwald, Ms.
Murrell's attorney, and Reid Bowman, USF & G's in-house counsel,
sent letters to each other and carried out a series of
discussions regarding Ms. Murrell's employment situation. First,
on April 11, 1997, Mr. Greenwald sent Mr. Kesler a letter
informing him that Ms. Murrell had consulted his law firm
concerning "the offer you have tendered in connection with the
termination of her employment." (Pl.'s 12(N) ¶ 10; Defs.' Ex. C 2
at 1.) Ms. Murrell authorized Mr. Greenwald "to reject the offer
on her behalf." Id. Mr. Greenwald also told Mr. Kesler that
"the conduct of various past and present employees of NE[T]
MAX/USF & G gives Ms. Murrell valid and substantial claims
against the company for gender discrimination in employment,
sexual harassment, and intentional infliction of emotional
distress. . . ." (Defs.' Ex. C 2 at 1.) Furthermore, Ms. Murrell
had asked him "to prepare the proper pleadings to be filed with
the Equal Employment Opportunity Commission and/or the Illinois
Department of Human Rights as well as with the United States
District Court. . . ." (Defs.' Ex. C 2 at 1.) In his letter, Mr.
Greenwald also stated that Ms. Murrell would be willing to settle
for "reasonable severance pay . . . reimbursement for past
expenses, vacation pay . . . continuation of benefits . . .
compensatory damages . . . provisions for appropriate
outplacement services . . . and reasonable attorneys' fees."
(Defs.' Ex. C 2 at 2; Defs.' 12(M) ¶ 10.)
On April 14, 1997, Ms. Murrell sent a follow-up letter to Mr.
Kesler stating that she was "willing to work if allowed." (Pl.'s
12(N) ¶ 11; Defs.' Ex. C 3 at 1.) She said that she was unable to
work, because she had been "denied access to the necessary
equipment to do [her] job." (Defs.' Ex. C 3 at 1.) Ms. Murrell
further stated that she was:
unclear as to the present status of [her] employment.
If I have been terminated, you have an obligation to
comply with C.O.B.R.A. I would ask that you send the
necessary information to me immediately so that I can
file the necessary paperwork and pursue and protect
my rights under C.O.B.R.A.
(Pl.'s 12(N) ¶¶ 2, 11; Defs.' Ex. C 3 at 2.)
On May 4, 1997, Mr. Kesler sent Mr. Nelson and Ms. McCutcheon
an e-mail that stated: