Further, [Nobles] acknowledge[s] that [he has] a full understanding of the terms of this
Agreement....” (Def.’s Ex. 3.)

Nobles attempted to read the waiver but was not able to read through the whole release
because it was long and used many terms that he did not understand. (P1.’s 56.1 § 40.)
According to Nobles, he did not appreciate that the waiver purported to release any claims he
could file under Title VII for harassment. (Pl.’s 56.1 § 43.) Nobles never sought the assistance
of counsel. (Pl.’s 56.1 § 42.) Nobles was asked to promptly return the document; and he signed
the waiver on June 11, 2002, after he possessed the agreement for one week. (Def.’s 56.1 14.)
Nobles received and retained the agreed upon severance package. (Def.’s 56.1 17.) Nobles,
however, filed a complaint with the Equal Employment Opportunity Commission; and then
Nobles filed a complaint with this Court. (Def’s 56.1 ff 18-20.)

ANALYSIS

There is a material factual issue that Nobles knowingly and voluntarily signed the waiver
releasing his rights to pursue any claims in the courts. “Employees may waive their federal [Title
VII] rights in private settlements provided that their consent to a release is both knowing and
voluntary.” Pierce v. Atchison, Topeka & Sante Fe Ry. Co., 65 F.3d 562, 570 (7th Cir. 1995).

The Seventh Circuit uses a multi-factor “totality of the circumstances” approach when
analyzing the execution of a release. These factors include but are not limited to: (1) the
employee’s education and business experience, (2) the employee’s input in negotiating the terms
of the contract, (3) the clarity of the agreement, (4) the amount of time the employee had for
deliberation before signing the release, (5) whether the employee actually read the release and

considered its terms before signing it, (6) whether the employee was represented by counsel or



Furthermore, no facts indicate Nobles was forced to return the agreement quickly. Nobles states
that Discover wanted the agreement promptly returned, but one week does not seem
unreasonably inadequate to decide whether to sign the release.

The fifth factor, whether the employee actually read the release before signing it, favors
neither side. Nobles alleges that he attempted to read the agreement; but, because of its length
and complexity, he could not fully read the waiver. Nobles, though, must have read some of the
agreement, even if he did not read every word. In light of the summary judgment standard,
however, the Court cannot reasonably infer whether Nobles read the key portions of the
document; and this factor cannot be weighed against him.

Nobles never met with an attorney to discuss the release; thus, the sixth factor — an
important one — clearly favors Nobles. The seventh factor, though, favors Discover. In a similar
case, this Court found a settlement package of only two weeks favors the employer when
weighing the excess benefits that the employee was already entitled to by contract or law.
Rinaldi, 2001 U.S. Dist. LEXIS, at * 5. Here, Nobles received fifteen weeks of pay as part of his
severance package. Nobles was not already entitled to these benefits by contract or law, even if
he wanted to receive a larger settlement.

Finally, the eighth factor, whether the defendant used improper conduct to induce the
Telease, favors Discover, as well. Nobles alleges that Discover would allow him to return to
work but that he would be terminated if any further trouble ensued. The threat of future
termination for future work problems cannot be considered improper, the employer must have

the ability to properly terminate employees for creating problems.



Nobles to another position with inconvenient work hours. (PI.’s 56.1 17.) Later on, Nobles
was sexually harassed by another employee. (PI.’s 56.1 J 19.) Nobles met with his superiors, but
these people did nothing to rectify the problems. (P1.’s 56.1 ff] 20-25.) In fact, Nobles was told
that he was the problem and was thereafter suspended and placed on administrative leave. (Pl.’s
56.1 {J 26-30.)

Nobles and Discover then began discussing his future with the company. Discover gave
Nobles two choices: (1) resign and accept a severance package; or (2) come back to work and
face termination, without receiving severance, if any more problems occurred. (PI.’s 56.1 4 34.)
Nobles decided that he would accept a severance package that would officially end his
employment on May 31, 2002. (Def’s 56.1 7.) Nobles and Discover negotiated the amount of
severance Nobles would receive. (Def?s 56.1 {{[ 9-12; Pl’s 56.1 {] 35-37.) The parties agreed on
fifteen weeks of salary. (Def’s 56.1 13; Pl.’s 56.1 38.)

On June 4, 2002, Nobles received Discover’s separation agreement in the mail. (Def’s
56.1 { 13; Pl.’s 56.1 39.) Included in this agreement was a five-page, single-spaced waiver of
Nobles’s claims against Discover. (Def’s 56.1 § 16; Def’s Ex. 3.) This waiver and release stated,
on the bottom of the first page, that:

In exchange for providing [Nobles] with these enhanced benefits, [Nobles]

agree[s] to waive all claims against [Discover], and to release and forever

discharge [Discover] from any and all liability for any claims or damages of any

kind, whether known or unknown to you, that you may have against [Discover] as

of the date of your execution of this Agreement including, but not limited to, any

claim . . . arising under Title VII of the Civil Rights Act of 1964, as amended...

(Def’s 56.1 4 16; Def.’s Ex. 3.) The waiver also states, near the bottom of page four, that

“[Nobles] acknowledge[s] that this agreement has been executed voluntarily by [Nobles].


consulted with an attorney, (7) whether the consideration given in exchange for the waiver
exceeded the benefits to which the employee was already entitled by contract or law, and

(8) whether the employee’s release was induced by improper conduct on the defendant’s part.
Pierce, 65 F.3d at 571.

A high school education is usually deemed sufficient to weigh the first factor in the
defendant’s favor. See, e.g., Rinaldi v. World Book, Inc., 85 Fair Empl. Prac. Cas. (BNA) 1238;
No. 00 C 3573, 2001 U.S. Dist LEXIS 8420, at *16-17 (N.D. Ill. May 3, 2001) (Darrah, J.).
Work experience and further education, such as attending junior college, bolster this
determination. See, e.g., Grant v. Potter, No. 99 C 7464, 2002 U.S. Dist LEXIS 6200, at * 14-15
(N.D. IIL. April 10, 2002) (Darrah, J.) (finding that eighteen years’ work experience and two
years of junior college education weighed this factor in favor of the defendants).

Learning disabilities and mental illnesses can also impact the educational factor. In
Haswell v. Marshall Field & Co., 16 F. Supp. 2d 952, 959 (N.D. Ill. 1998), the plaintiff was
found “not mentally capable of understanding the release or making a knowing and voluntary
decision whether to accept or reject” the waiver by a neuropsychologist. In addition, the plaintiff
was not able to read, fill out work applications, or understand complex issues. Based partly on
this factor, the court concluded that the waiver was invalid. But see Melanson v. Browning
Ferris Indus., Inc., 281 F.3d 272, (1st Cir. 2002) (determining, based on the totality of the
circumstances test, that plaintiff's waiver was voluntary and knowing because no competent
medical evidence indicated that her mental conditions affected her capacity).

Here, it is undisputed that Nobles did not graduate high school; he dropped out at the age

of fifteen. Nobles also alleges that he is dyslexic, although no affidavits from medical



A determination is not made by simply totaling factors. Instead, “totality of the
circumstances” must be weighed. While three factors favor Discover, the remaining factors
indicate Nobles failed to understand that he was signing a waiver of his claims. Nobles never
sought an attorney; the agreement was complex and included many legal terms; Nobles lacked a
high school education; and Nobles had little input in negotiating the specific terms of the waiver.
There remains a factual question as to which party the “totality of the circumstances” favors.
While a trial could produce a different result, for the purposes of resolving a motion for summary
judgment, Nobles’s waiver was not signed knowingly and voluntarily.

In light of this decision, it is unnecessary to resolve any other issues raised by the
Defendant’s motion.

CONCLUSION
For the foregoing reasons, Discover’s Motion for Summary Judgment on the Complaint is

denied.

aN)

oni W. DARRAH
oni States District Judge



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 2446 DATE 10/8/2003
CASE Nobles vs. Discover Financial Services
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented]

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) im Answer brief to motion due___._ Reply to answer brief due

4) oO Ruling/Hearingon____—_ssetfor___—_at

(5) im Status hearing[held/continued to] [set for/re-set for] on setfor_____at.

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___—ssetfor_— at.

) oO Trial[set for/re-set for] on___at

(8) o [Bench/Jury trial] [Hearing] held/continued to____at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) Local Rule 41.1 OFRCP41(a\(1) OO FRCP41(a)(2).

(0) =o [Other docket entry] For the reasons stated in the attached memorandum opinion and order,
defendant’s motion for summary judgment on the complaint [13-1] is denied. Enter Memorandum
Opinion and Order.

(11) [For further detail see order attached to the original minute order. ]

No notices required, advised in open court.

No notices required.

number of notices

Notices mailed by judge’s staff. OCT 09 2003

Notified counsel by telephone.

date docketed

wv | Docketing to mail notices. Uf
Mail AO 450 form. ' a eia-s'n docketing deputy iniMls 2 D

ABNoS Sole

Copy to judge/magistrate ju \
courtfios U4 C+ 190 60 date mailed notice
MF deputy’s
ini Cae

Date/time received in ; -
central Clerk's Office mailing deputy initials



professionals were produced to verify this allegation. Neither side has produced any other
evidence concerning Nobles’s work experience. Therefore, in light of the summary judgment
standard, a material issue about Nobles’s education and business experience exists, and this
factors favors Nobles.

The second factor, the employee’s input in negotiating the terms of the settlement, can
indicate knowledge and voluntariness when employees actively negotiate portions of the
severance package. Maloney v. R.R. Donnelly & Sons Co., No. 97 C 8890, 1999 U.S. Dist.
LEXIS 1120, at * 20 (N.D. Ill. Feb. 1, 1999) (stating that plaintiff's handwritten objections on the
agreement shows an understanding of the waiver). Although Nobles negotiated the amount of
severance he received, Nobles was not able to object or provide input on the specific waivers of
the agreement. The negotiations may indicate Nobles had some awareness that he was losing
rights for the severance package. However, for the purposes of this motion, the lack of
negotiations over the specific terms of the agreement fairly support an inference that Nobles
failed to appreciate the specific rights he was losing.

The third factor, the clarity of the agreement, also favors Nobles. The agreement is five
pages long and single spaced. Although the waiver on the first page states that Nobles releases
Discover from all liability for claims as of the agreement’s execution date, this release is mixed
in with many complex legal terms. These terms include Title VII, the American with Disabilities
Act, and the Rehabilitation Act. In addition, the release is not bolded or set off in any other way
to indicate that Nobles was giving up his right to seek redress in the Courts.

The fourth factor, the time Nobles had to deliberate before signing the release, favors

Discover. Nobles does not dispute that he had at least one week to study the agreement.



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JEFF W. NOBLES, )
)
Plaintiff, )
)
vy. ) No: 02 C 2446
)
DISCOVER FINANCIAL SERVICES, ) Judge John W, Darrah :, a
INC., : ) Loue i ED
) ICT Og 20
Defendant. ) 0}

MEMORANDUM OPINION AND ORDER

Plaintiff, Jeff W. Nobles (“Nobles”), filed suit against Defendant, Discover Financial
Services, Inc. (“Discover”). Nobles alleges violations of Title VII of the Civil Rights Act of
1964. Presently before the Court is Discover’s Motion for Summary Judgment on the
Complaint. For the reasons that follow, Discover’s Motion for Summary Judgment is denied.

LEGAL STANDARD

Summary judgment is appropriate when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co.
v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). “One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims
or defenses ....” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, although the
moving party on a motion for summary judgment is responsible for demonstrating to the court

why there is no genuine issue of material fact, the non-moving party must go beyond the face of

22



the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to
demonstrate, through specific evidence, that a genuine issue of material fact exists and to show
that a rational jury could return a verdict in the non-moving party’s favor. Celotex, 477 U.S. at
322-27, Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp.,
24 F.3d 918, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind.
Bank y. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary
judgment, a court must view all inferences to be drawn from the facts in the light most favorable
to the opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185
F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475
USS. at 586. If the evidence is merely colorable or is not significantly probative or is no more
than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-250.

BACKGROUND

The undisputed facts, for the purposes of this motion, taken from the parties’ Local Rule
56.1(a) & (b) statements of material facts (referred to herein as “P1.’s 56.1” and “Def.’s 56.1”)
and exhibits, are as follows.

Nobles is a thirty-seven-year-old African-American male who resides in Cook County,
Illinois. (Def.’s 56.1 11.) Nobles, who avers that he suffers from dyslexia, dropped out of high
school at the age of fifteen. (Pl.’s 56.1 95.) Discover hired Nobles on or around April 30, 2000.
(Pl’s 56.196.) After Nobles started working for Discover, he was harassed and mistreated by his

co-workers. (PI.’s 56.1 4] 10-16.) Instead of remedying the harassment, Discover reassigned