the final case on for argument today is charlie reverses city of new york department of education  please court good morning sara gruber on behalf of the appellant jacqueline charlotte making presentation with the permission of appointed pro bono counsel proly das in this case the plaintiff appellant had two separate lawsuits against the same defendant she settled her earlier filed personal injury suit without any discussion at all about the discrimination suit that was then pending seven months later the city comes back in the discrimination suit and this is after the personal injury suit has been dismissed and stipulated dismissed they come back seven months later with the boilerplate release and say no this one too was also dismissed the issue here is about the plaintiff opponents knowledge both parties and ten and whether the this court's precedent in borman applies to safeguard miss charlotte charlie's rights to pursue her federal remedial rights under the americans with disabilities act she prepared to get the thirty thousand dollars but i would imagine so or at the very least the city here didn't move to enforce the settlement agreement and in fact the city's position in law in litigation and their litigation conduct in both cases suggests that even the city didn't intend to settle the the discrimination suit in fact what happened was this the notice  language she was count she was represented by to counsel and she signed the document the document could not be plainer well your honor i would disagree that the document is plame i agree  just had remorse after she did it while you're on this isn't just a straight contract case because her federal remedial rights are in play and barmen is in play that requires a knowing and voluntary waiver not just a literal waiver and we don't even conceive that the waiver itself is as clear as as as the court suggests is right so is there up in vermont there's some case law to that effect when there's other things going on it has to be has to be a carve out york law that's been and that we've got to look at under the york law to determine the extent of that agreement yes your honor there's no that i know of there's no law that says that it has to reference the anti discrimination statutes in order for it to be waived however new york law does require in which this court cited in golden pack that the intent of the parties has to actually mean what what it says in the general release and in fact the courts the court of appeals his statement as general releases are almost never you know we  i'm going to waive medicare rights and it's the court can take judicial notice of the city's other releases in other cases this was a personal injury release and both parties conduct before and after suggest that nobody intended to settle the personal personal injury action  this i thought that your argument and argument but the central argument was that when we are dealing with discrimination claims that this society in our courts have highly valued we don't want to cut them off prematurely we have got to be very careful about ensuring that the waiver of a claim of discrimination gender discrimination disability discrimination race commission is knowing and voluntary and that's why we set out the borman factors exactly or that that is your argument yes your honor it's well it's one of them and to be fair the second circuit has not explicitly said that the knowing involuntary test adopted informant applies to eighty eight and rehabilitation claims but it's a logical extension same category as gender and exactly exactly and so to your honor's point yes the language of the reliefs certainly release in this record yes your honor and where were that so it was raised in by raising the issue of fact about what was intended that was never discussed and that you raise the argument that  this was outside the scope of the job lease yes your and that it to the to that extent if it marries up with the knowing involuntary test where did you do what was in the motion to the extent that it says i never intended to nobody discussed and it doesn't cover and if you view that as raising a question of or challenging the scope of the yes your honor and to the extent and even had it not been explicitly raised the court can consider it anyway because it is part and parcel of the knowing mcclurg held that didn't speak to ambiguity at all however we do believe that there is an ambiguity but even then generally says are disfavored or at the very least the party's intent can inform what the release means and what it says  claimed injury in this matter that language suggests that the prior language doesn't mean what it says that's a clear ambiguity here was this really this really reach  from her lawyer or from one of i believe this occurred during a pretrial in one day in the personal interaction where she was represented by separate counsel than the counsel she had in discrimination suit and the testimony below to enforce it once the discrimination suit wasn't dismissed it's the conduct by both parties that suggests that was never an intended consequence and bohrman requires that it has to be a knowing consequence of her signing it because the contract itself  given well your honor speaking to a presumption i don't i don't agree with the discourse conclusion about there being a presumption that if a plaintiff is counsel then the release stands in every consequence and in fact the circuits that have adopted presumptions relating to representation by counsel would allow it to be rebutted and it would have been rebutted here particularly given the uncontroverted testimony which the course court must accept as true in a motion for summary judgment that she wasn't counselled and in fact the court which she was not was not i think it was not counsel and this court essentially ducked that position in ios e versus amex that was adopted by coventry and then by extension informant which says you can get advice from a lawyer it doesn't mean you understand and all the other factors do need to be considered when you when you are signing a release but even when you have a lawyer because the king here is safeguarding remedial rights that congress has said is important and must be rigorously scrutinized before you can waive them interpol they expressly state that where circumstantially the parties clearly intend for the general release to be a general release the general release applies now here the district court's sound decision  two again it goes to the totality of the circumstances of circumstances so here those circumstances are shown by four undisputed facts first miss charlie has never contended that any counsel in this suit in the other suit has been incompetent or inadequate she filed the suit in september signed bad generally used in october and filed an amended complaint in the suit in november that expressly referenced the personal injury suit that she had just signed a general release in so december late december december thirtieth two thousand and fifteen so it was not yet officially settled at that time and you know the and the fourth fact is that mr harley has a college education she's been a teacher for decades she clearly is is an intelligent woman who can read the basic language of the contract on appeal miss charlie does not dispute these facts nor does she present a genuine dispute of material fact i it is sufficient to present a genuine dispute on the face of an affidavit saying i didn't understand the plain contract even though i was advised by competent counsel in both suits then that would wreak havoc not just in enforcing settlement releases but also in contract cases in a myriad of subject matter areas rather her appeal relies on numerous misunderstandings first is that she put your simple leave that the court is required to draw all inferences in her favor and the law instead is that the court is required to draw all reasonable inferences in the favor the gist report was not required to disregard common sense not required to ignore the plain facts in this situation surrounding her decision to enter this release nor was it required to ignore the very plain language that the face of this contract shows further on appeal shall we can continue to rely many cases which are very different from from this context and again i will know as i alluded to earlier that many of the employment cases that are looking at is a situation where the employer presents a contract at to relating to being very relate to being very careful when we determine that nation claim is the subject of a general release that doesn't specifically refer to the to the discrimination claim he went through the borman factors to determine whether it was knowing whether the waiver was made knowingly and voluntarily he did your honor yes and much of that there's much more you can do besides that bormann this court said the lack of opportunity to negotiate on its own does not does not mean require trial and voluntary and as we look to the general circumstances surrounding the entry of that contract  and that brings me to my final point which is that this is a pragmatic question what are the circumstances feel like how's this scenario feel and here being represented by common counsel her bargaining power in an act into active litigations the clarity of the language a mystery is education and training really shows that in this practical scenario she understood she entered this contract voluntarily and knowingly and the broader implications of this case and cases to come is also a practical one this court has repeatedly emphasized that parties need to rely on settlement agreements need to believe that a close matter remains so and makes this i mean i just don't  a way going through those factors to determine the intent of the parties at least with respect to figuring out whether they voluntarily knowingly intended to waive the discrimination that is correct your hon for i expect and i'm sure ms gruber will stand up and tell us or reiterate this force if not she may be prompted to i mean that the argument under borman is that this if it was not clear or not intended ever that this release cover the discrimination claims so so i mean and so we're back to determining whether judge in the district court got the borman factors right yes if we get to that point  but i think that's where we're headed we're sorry speaking for myself that seems to be where i am so tell me why i judge it can got those factors right and when you're doing that and you'll have plenty of time don't worry about ok when you're doing that what standard do we apply to judge at consumer review of the borman factors quick aside i'm thinking about the way this circuit analyzes  the polaroid factors for copyright for example you know what is this whole balancing act and there's some delicate balancing the gets done that so how do we analyze how do we review a district court's application of the borman factors and we get there i think because it is a mix question of fact and law it would lean towards because there are no well the district court in this case may no actual direct findings because the new facts that are here are undisputed based on this record they're just plain subject to judicial notice so going through those factors  first is the plaintiff's education and business experience mr ellery has a college education she has been teaching for many decades she clearly understands what it means to sign a release that says any and all claims that she now has or ever will have known or unknown the amount of time that she had possession to or access to the agreement you know she had i believe she signed it with less in less than twenty four hours but there's been no representation that she was pressured to do that there's been no representation that she didn't have an opportunity to talk to or competent counsel during that time so i'm not sure that that goes one way or the other and again i would know that this court has said that the here you know did not write the terms of the agreement but again we would emphasize that she was actively living in litigating a case so this is different she had more of a role than a than an employee signing on at hiring the second day of work for say a work given an agreement which at that time she was actively litigating both cases the clarity of the greenman i think i think we can all agree that it is very clear whether the point of was represented by or consulted with an attorney she was that has not been disputed whether consideration was given in exchange for the waiver she was given thirty five thousand dollars that seems to be a substantial s moving on whether the employer encouraged the employee to consult an attorney whether she had a fair opportunity to do so we would contend that the circumstances would show that she had a fair opportunity to do so but but yeah and so on that w back and in this case is not about whether the district judge got the is right it's about whether he applied the factors on a motion for summary judgment on this record this record what evidence in the record  a question of law for the court the second is under new york law the intent of the parties is king and intent is a question of fact now a question of fact here and what i didn't hear the city say was that it intended to settle the scrim anation suit it waited seven months to even amen its answer to include this as an affirmative defense and it waited even longer didn't present evidence of its own to say yes we intended it and we were there who were in the thousands and thousands and thousands of contract claims we hear in this court cross the street what the parties here is reflected in what they saw and if we are to unbutton that we have a gigantic can understand what is a stretch for well your honor i would say that this court in borman said contract law would play too salient a role if we could allow everyone to waive their claims without knowing they're doing so and only four and specifically for these types of discrimination claims is your view that the knowing involuntary requirement here in this  is that it's subjective requirement or is that an objective requirement that is that a reasonable person requirement or is it to intend x y or z but i think that the borman factors give a number of factors that are objective evidence of that get at the subjective issue and that's why on this record the should have been testimony but the only testimony there was speaks to both in the declaration on page seven of the brief says at no time did i think by signing this release i was also releasing the defendant from this discrimination lawsuit to discriminate the generally is does not require the discrimination suit to be dismissed the release appears to be a form pertaining to my personal injury lawsuit there was no extra consideration given to exchange for a lease and i'll almost all of the factors the objective factors going miss charlotte is favor she was and i have to say that there's no evidence in the record at all about what she was advised by either lawyer and in fact the only evidence in the record suggests that she was not at this point this isn't at issue matter and and in all of the cases in which summary judgment is juda kate on this point you get testimony and affidavits or live testimony from lawyers who were in the room saying yes we negotiated exactly the suit we negotiated the personal injury suit and both but here what we have here is the plaintiff issuing a demand for nine hundred thousand dollars and then a month later settling for thirty five thousand in what appears to be an only states that it is applied to the personal injury suit alone and in this case she didn't waver claims form and didn't allow her to but she didn't anyway and so she needs to be allowed to either hear her claims on the merits or at least the judge needs to make a credibility determination based on all the factors subjective and objective about what happened that day settlement conference and thereafter so that was knocked so we have a month between notice of removal and actual settlement conference a couple days later plaintiff in this in the discrimination suit amends her complaint city does nothing month between filing a complaint the discrimination complaint and settlement of the complaint then the city waits seven months to files an answer does not assert waiver release seven months later files an answer with release for the first time and decides to take discovery on that point but after all this discovery they have only the release to show that's it and in fact the light bulb went off and they saw and it's the same defendant in each case you think that they would have moved to enforce the week and tomorrow as cases are on