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January 31, 2000


The opinion of the court was delivered by: Keys, United States Magistrate Judge.


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. Murrell. Id.

On March 18, 1997, Ms. Murrell met with Mr. Kesler and Ms. McCutcheon. (Pl.'s 12(N) ¶ 2 at 3; EEOC Compl. ¶ 43.) During that meeting, Ms. Murrell was advised that she would be placed on a Performance Improvement Plan ("P.I.P."). Id. When Ms. Murrell reviewed the document on which they were basing the decision to place her on a P.I.P., she commented that "the details cited [were] incorrect and unfounded." Id. Mr. Kesler and Ms. McCutcheon stated that "it would be very difficult [for Ms. Murrell] to make the necessary improvements in order to pass the P.I.P." Id. According to Ms. Murrell, "Ms. McClutcheon [sic] made it clear that she was aware of [her] emotional state as a result of the harassment inflicted by the company over the previous 16 months and suggested that [she] find another type of work to do." (Pl.'s 12(N) ¶ 2; EEOC Compl. ¶ 43.) Also, Ms. Murrell claims that she advised Ms. McCutcheon that "it was not the job that caused her depression, but the managerial staff," and Ms. McCutcheon "suggested very strongly that this company was not the proper company for [her] to work for and suggested strongly that [she] resign and take a few months off to try and recover." (Pl.'s 12(N) ¶ 2; EEOC Compl. ¶ 43.)

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 week. Id.

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 her

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.
It should be noted as I have already stated that at no time since our meeting with her in Chicago has she asked for or been granted any time off. She has not taken any sick days or any other authorized days however, she has not been performing any functions of her job.

(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:

Per our conversation on Friday I have revised and updated the original performance improvement plan that was completed on Cheri. I have attached both for you [sic] review and input. I have indicated in the revised plan that the original date of the plan will be March 19, 1997. This is because she was advised that date by Kathleen and myself that if she ...

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