Charles P. LAMBERTI, Plaintiff-Counter-Defendant-Appellant, v. MOTOROLA SOLUTIONS, INC., Robert Sanders, and Jessica Micciche, Defendants-Counter-Claimants-Appellees, 604 F. App'x 64

Charles P. Lamberti, proceeding pro se, appeals the District Court’s grant of defendants’ motion for

summary judgment: Lamberti brought employment discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. The District Court granted

summary judgment on the ground that Lamberti knowingly and voluntarily signed a valid and enforceable waiver of his claims against defendants as part of a severance package. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal, to which we refer only as necessary to explain our decision to affirm. We review a district court’s grant of

summary judgment de novo, drawing in the non-moving party’s favor all reasonable factual inferences grounded in the record. Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 143 (2d Cir.2013).

Summary judgment in favor of the movant is appropriate only when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Jackson v. Fed. Express, 766 F.3d 189, 193-94 (2d Cir.2014). When deciding a defendant’s motion for

summary judgment, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Both Title VTI and the ADEA will permit enforcement of an employee’s waiver of statutory claims against his employer only if the waiver is “knowing and voluntary.” See Livingston v. Adirondack Beverage Co., 141 F.3d 434, 438 (2d Cir.1998) (Title VII claims); Powell v.

Omnicom, 497 F.3d 124, 131 (2d Cir.2007) (ADEA claims). In the Title VII context, we employ a “totality of the circumstances” test to assess the “knowing' and voluntary” quality of such a waiver. See Livingston, 141 F.3d at 438.

When applying this test, relevant factors include: 1) the plaintiffs education and business experience, 2) the amount of time the plaintiff had possession of or access to the agreement before signing it, 3) the role of plaintiff in deciding the terms of the agreement, 4) the clarity of the agreement, 5) whether the plaintiff was represented by or consulted with an attorney; and 6) whether the consideration given in exchánge for the waiver exceeds employee benefits to which the employee was already entitled by contract or law. Id. (internal quotation marks omitted).

In the ADEA context, the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), “provides specific statutory requirements for a ‘knowing and voluntary’ waiver that the employer must meet in order for an employee to waive his ADEA claims.” Powell, 497 F.3d at 131. One such requirement is that an employee be “advised in writing to consult with an attorney prior to executing” the waiver. 29 U.S.C. § 626(f)(1)(E).

An independent review of the record confirms that Lamberti raises no genuine issue of material fact regarding whether his waiver of claims against defendants was “knowing and voluntary” under either Title VII or the ADEA. Even if, as Lamberti alleges, his employer had a “standard practice” of offering terminated employees severance packages, Supplemental App. 68, Lamberti has not offered any evidence that he was “already entitled” to the payments he received as part of his severance, see Livingston, 141 F.3d at 438; 29 U.S.C. § 626(f)(1)(D).

Lamberti also concedes that, although he chose not to do so, his employer advised him, in writing, to consult an attorney before signing the waiver. See Supplemental App. 71-72; see also Livingston, 141 F.3d at 438 (noting that courts may consider “whether the employer encouraged the employee to consult an attorney” when conducting the “totality of the circumstances” test); 29 U.S.C. § 626(f)(1)(E). For these reasons, as well as others stated in the District Court’s thorough and well-reasoned opinion and order, we conclude that the District Court did not err in granting

summary judgment for defendants. We have considered all of Lamberti’s remaining arguments and find them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED.