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Albert Fortunato v. Nestle Waters North America

September 28, 2011


The opinion of the court was delivered by: Henry S. Perkin, M.J.


Plaintiff, Albert Fortunato ("Mr. Fortunato"), was employed by Defendant Nestle Waters North America, Inc. ("NWNA") as its National Transportation Manager. Mr. Fortunato contends that he was terminated from employment on January 9, 2009 in violation of the Age Discrimination in Employment Act ("ADEA") and the Pennsylvania Human Relations Act ("PHRA"). See 29 U.S.C. § 621, et seq.; 43 Pa. C.S.A. § 951, et seq. Presently before the Court is Defendants' Joint Motion for Summary Judgment and Mr. Fortunato's Motion for Summary Judgment. For the reasons that follow, Defendants' Motion will be granted as to Mr. Fortunato's ADEA claims against Defendants James Blair, Bill Trackim and Ken Safft and Mr. Fortunato's PHRA claims. Defendant's Motion will be denied as to Mr. Fortunato's ADEA claims against NWNA. Mr. Fortunato's Motion will be granted, and the parties shall continue to litigate Mr. Fortunato's ADEA claims against NWNA.


Mr. Fortunato is a forty-nine year old adult individual. (Compl. ¶ 5; Ans. ¶ 5;

Fortunato Dep. 7:5-9). NWNA has a place of business in Breinigsville, Pennsylvania, where Mr. Fortunato was employed as the National Transportation Manager. (Compl. ¶ 7; Ans. ¶ 7; Fortunato Dep. 9:10-18, 14:21-24-15:1). Mr. Fortunato graduated from St. Peter's College with a B.S. in Computer Science and a minor in Mathematics. (Fortunato Dep. 8:11-16). Defendants, James Blair ("Mr. Blair"), Bill Trackim ("Mr. Trackim") and Ken Safft ("Mr. Safft") are adult individuals residing in Pennsylvania. (Compl. ¶ 8, ¶ 9, ¶ 10; Ans. ¶ 8, ¶ 9, ¶ 10). Mr. Trackim was Mr. Fortunato's direct supervisor from September 2002 until late 2007, and he is currently Vice President of NWNA's Supply Chain. (Fortunato Dep. 9:5, 24-10:1-5; Trackim Aff. ¶¶ 1-2). Mr. Blair was Mr. Fortunato's supervisor from late 2007 until January 9, 2009 and is NWNA's Director of Logistics Operations. (Fortunato Dep. at 10:12-22; Blair Aff. ¶¶ 1-2). Mr. Safft was NWNA's National Director of Human Resources. (Safft Dep. 10:22-25 -- 11:1-3).

On January 9, 2009, Mr. Fortunato met with Messrs. Blair, Trackim and Safft in the Breinigsville office ("Meeting"). (Fortunato Dep. 14:13-24 --16:1-15.) The Meeting began with Mr. Blair informing Mr. Fortunato that he was being terminated. (Fortunato Dep. 16:8-12; Trackim Aff. ¶ 6; Blair Aff. ¶ 5; Safft Dep. 31:7-13.) During the Meeting, Mr. Safft gave Mr. Fortunato a Confidential Separation Agreement and General Release ("Separation Agreement"). (Fortunato Dep. 17:18-21.) Mr. Safft reviewed the Separation Agreement with Mr. Fortunato paragraph by paragraph and asked Mr. Fortunato if he had any questions. (Fortunato Dep. 19:19-24-20:1-4; Safft Dep. 34:22-24-37:1-17.)

The Separation Agreement provides that Mr. Fortunato releases claims under the ADEA and Mr. Fortunato testified that he understood that he was releasing such claims. (Separation Agreement at p. 6-7; Fortunato Dep. 49:23-24-50:1-19.) Mr. Fortunato acknowledged that he received an additional three months of salary known as severance pay as compensation in exchange for signing the Separation Agreement in addition to that which he was already entitled. (Fortunato Dep. 52:15-22; Separation Agreement at 1.) Mr. Fortunato also received outplacement services at NWNA's expense. (Fortunato Dep. 34:14-24.) The Separation Agreement informed Mr. Fortunato to consult with an attorney. (Separation Agreement at 6.) Mr. Fortunato understood both from his review of the Separation Agreement and from Mr. Safft telling him, that he had the right to consult with an attorney before signing the Separation Agreement. (Fortunato Dep. 42:13-21.)

The Separation Agreement provides and Mr. Fortunato acknowledged in his deposition testimony that he had seven (7) days to revoke the Agreement after signing it. (Fortunato Dep. 42:22-24- 43:1-4; Safft Dep. 38:15-25-39:1-13; Separation Agreement at 6.) Mr. Fortunato reviewed the Separation Agreement between January 9 and 14, 2009. (Fortunato Dep. 43:5-9.)

Mr. Fortunato testified during his deposition testimony that during the last week in January or the first week in February, he learned that he was not terminated as part of an alleged reduction in force ("RIF"). (Fortunato Dep. 41:18-22.) He stated that when he was terminated, he did not ask whether his termination was the result of a RIF, he did not receive a list of other employees terminated as a result of a RIF and he did not ask who else was terminated as a result of a RIF. (Fortunato Dep. 20:16-22; 61:15-21.) Mr. Fortunato did not attempt to contact anyone at NWNA to question the reason for his termination after he allegedly found out his termination was not the result of a RIF. (Fortunato Dep. 56:21-24 -- 57:1-10.)


On July 7, 2010, Mr. Fortunato filed a two-Count Complaint against NWNA, Mr. Blair, Mr. Trackim and Mr. Safft, alleging that he was subjected to disparate treatment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. (Count I) and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. § 951, et seq (Count II) on the basis of his age, which was forty-seven (47) at the time he was terminated from NWNA. On August 31, 2010, Defendants filed an Answer with Affirmative and Additional Defenses and Counterclaim, denying Plaintiff's claims. In their Counterclaim, Defendants contended that the Separation Agreement Plaintiff signed bars the instant action because Plaintiff waived his right to sue for discrimination under the ADEA.

This case was originally assigned to the docket of the Honorable James Knoll Gardner. On November 16, 2010, Judge Gardner signed the consent and order referring this case to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. section 636(c) and Federal Rule of Civil Procedure 73. Subsequently, counsel for Plaintiff and Defendants agreed, with this Court's approval, to bifurcate this matter so that discovery related only to the Separation Agreement would be conducted by February 25, 2011, followed by dispositive motions. On March 28, 2011, both Plaintiff and Defendants filed their respective Motions for Summary Judgment. On April 15, 2011, Defendants filed their Memorandum of Law in Opposition to Plaintiff's Motion, and on April 18, 2011, Plaintiff filed his Response in Opposition to Defendants' Motion.


Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." F ED. R. C IV. P. 56(a). The essential inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248.

The adverse party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Celotex, 477 U.S. at 325). To establish "that a fact cannot be or is genuinely disputed," a party must:

(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against" the movant. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (citations and quotations omitted).


Defendants argue the following grounds in their Motion for Summary Judgment:

(1) the Separation Agreement bars Plaintiff's ADEA claims because it complied with the Older Workers Benefits Protection Act ("OWBPA"), 29 U.S.C. § 626; (2) Plaintiff cannot prove that he signed the Separation Agreement under duress; (3) Plaintiff's claims against Blair, Trackim and Safft pursuant to the ADEA fail because the ADEA does not provide for individual liability; and (4) the Separation Agreement bars Plaintiff's PHRA claims because he made a knowing and voluntary waiver of his right to pursue claims under the PHRA. Plaintiff contends in his Motion for Summary Judgment that: (1) the Separation Agreement does not comply with the "strict, unqualified statutory structure stricture on waivers" imposed on the release of age discrimination cases under the OWBPA; and (2) the Separation Agreement is ineffective to release Plaintiff's age discrimination claims.

A. Plaintiff's Claims Under the PHRA and Against the Individual Defendants.

Plaintiff concedes that his claims under the PHRA and against the Individual Defendants should be dismissed. See Pl.'s Ans Defs.' Mot., p. 1 n.1. Thus, summary judgment is granted to the Defendants on Plaintiff's PHRA claims which comprise Count II of the Complaint, and Plaintiff's claims under the ADEA against Defendants James Blair, Bill Trackim and Ken Safft in Count I of the Complaint. Plaintiff's remaining claim is an ADEA claim against NWNA in Count I of the Complaint.

B. Whether the Separation Agreement Bars Plaintiff's ADEA Claims Against NWNA.

Waivers of ADEA claims are governed by the OWBPA, which provides that any effective waiver of rights or claims under the OWBPA must be "knowing and voluntary." Wastak v. Lehigh Valley Health Network, No. CIV.A. 00-4797, 2002 WL 468709, at * 4 (E.D. Pa. Mar. 27, 2002)(Hutton, J.). The OWBPA states that a waiver may not be considered knowing and voluntary unless at a minimum--

(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;

(B) the waiver specifically refers to rights or claims arising under this chapter;

(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;

(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which ...

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