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 some

improper conduct by the defendant. Pierce v. Atchison Topeka and Santa Fe Ry. Co., 65 F.3d
562, 571 (7 Cir. 1995).

Defendant’s assertion that “plaintiffs simply have failed to present any facts that would
tend to establish any of the factors under the totality of the circumstances test” is contradicted by
the plain text of the complaint. The crux of plaintiffs’ complaint is that, (1) defendant had a duty
to disclose information regarding the impending announcement of the 5 and 5 Plan, and (2) had
plaintiffs known of the superior benefits that could have been available to them under the 5 and 5
Plan, they would not have accepted the FMP' and executed the Releases, Drawing all reasonable
inferences in plaintiffs’ favor, the court cannot conclude as a matter of law that plaintiffs
knowingly and voluntarily executed the Releases. Defendant’s arguments might have greater
weight if they are presented in a motion for summary judgment or at trial, after a fully developed
record, but are inappropriate on a motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6).

Thus, defendant’s motion to dismiss on the basis of the Release is denied.

‘In its reply brief, defendant asserts that “the FMP was an involuntary program and
plaintiffs did not have the option of foregoing termination and selecting the [5 and 5 Plan].” This
simply begs the question, however, since plaintiffs allege that they were selected for the FMP on
the basis of their sex and age.


a duty to disclose the imminence of the 5 and 5 plan to them prior to their signing and acceptance
of the FMP. Plaintiffs further allege that defendant discriminated against plaintiffs on the basis
of age and sex by including them, but not similarly situated male and younger employees, in the
FMP.

DISCUSSIO}

In its motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), defendant argues that, (1) the
Release precludes all of plaintiffs’ claims, and (2) plaintiffs’ state law fraud claims, Counts II
and VI, should be dismissed for the additional reason that they are preempted by ERISA. For the
reasons stated below, the court grants defendant’s motion to dismiss Counts II] and VI, but
denies the motion to dismiss Counts I, IL, IV, and V.

1. The Release

In response to defendant’s assertion that plaintiffs’ claims are precluded by the Release,
plaintiffs maintain that their execution of the Release was not knowing and voluntary. See Pierce
y. Atchison Topeka and Santa Fe Ry. Co., 110 F.3d 431, 438 (7" Cir. 1997) (“Knowing and
voluntary consent is a prerequisite to the effectiveness of waivers of federal antidiscrimination
claims.”). To determine whether a release was knowing and voluntary, courts generally examine
the “totality of the circumstances” surrounding the employee’s execution of the release, which
involves consideration of the following factors: (1) the employee’s age and business experience;
(2) the employee’s input in negotiating the terms of the release; (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 consulted with an attorney; (7) whether the


2. ERISA Preemption

Defendant further argues that plaintiffs’ state law fraud claims must be dismissed
pursuant to ERISA’s preemption provision, which provides that ERISA “shall supersede any and
all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29
U.S.C. § 1144(a). Generally, “{t]he common thread running through [preemption] cases is that
complete preemption is required where a state law claim cannot be resolved without an
interpretation of the [plan] by federal law.” Rice v. Panchal, 65 F.3d 637, 644 (7" Cir. 1995).

Plaintiffs concede that “the denial of plans and benefits is part of the fraud [claim].”
Indeed, with respect to their fraud claims, plaintiffs seek damages in the amount of the benefits to
which they believe they would have been entitled under the 5 and 5 Plan. These claims would
require, at the very least, an analysis of the underlying benefit plans - specifically, whether
plaintiffs were in fact eligible to participate in the 5 and 5 Plan and the scope of the benefits
provided thereunder. Accordingly, plaintiffs’ fraud claims “relate to” any employee benefit plan
and are preempted by ERISA. See Anderson v. Humana, Inc., 24 F.3d 889, 891 (7" Cir. 1994)
(“A claim... that employees were fraudulently induced to pick one option under a plan rather than

another, lies comfortably within the zone of exclusive federal control.”); see also Reilly v. Blue

Cross and Blue Shield United of Wisconsin, 846 F.2d 416, 426 (7" Cir. 1988) (state law claims
for fraud preempted by ERISA). Counts III and VI are therefore dismissed, and plaintiffs are

granted leave to amend their complaint to assert ERISA claims.



__ Minute Order Form (06/97)

United States District Court, Northern District of Iinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Robert W. Gettleman than Assigned Judge

CASE NUMBER 02 C 8140 DATE October 3, 2003

TITLE

CASE Patricia Andreas,et al v Lucent Technologies

MOTION: of the motion being presented.

[ln the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
) ’

DOCKET ENTRY:

qQ
Q)

@)
4)
6)
(6)

”
(8)

(9)

Filed motion of [ use listing in “Motion” box above.]
Brief in support of motion due

Answer brief to motion due. . Reply to answer brief due.

Hearing
Status hearing set for 10/9/03, at 9:00 a.m.
Pretrial conference[held/continued to] [set for/re-set for] on set for at

Trial[set for/re-set for] on at
[Bench/Jury trial] [Hearing] held/continued t to at

o0oo0a0aqaaagd

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) O General Rule21 OFRCP41(a)(1) O FRCP41(a)(2).

ao) if [Other docket entry]

counts I,II,IV and V.

ay @ (For further detail see order attached to the original minute order.]

Memorandum opinion and order entered. Defendant’s motior, to dismiss
is granted with respect to counts III and VI and denied with} respect to

Document

Number. - 4

No notices required, advised in open court.
No notices required. efoaies
X | Notices mailed by judge's staff.
Notified counsel by telephone, le 03
Docketing to mail notices.
Mail AO 450 form. initiate
Copy to judge/magistrate judge. 44ynoa 49k db \ S10" sn
" date mailed notice
courtroom 60
GDS deputy's .
initials sim id €- Lie
Date/time received i in 7 -_
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i-04-



CONCL'!
For the reasons stated herein, defendant’s motion to dismiss is granted with respect to
Counts III and VI and denied with respect to Counts I, II, IV, and V. The parties are directed to

appear for a status report on October 9, 2003, at 9:00 a.m.

“(ROW (te

Robert W. Gettleman
United States District Judge

ENTER: October 3, 2003



2

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
PATRICIA ANDREAS and NORMA FOGG, )
)
Plaintiffs, )
) No. 02C8140
v. )
) Judge Robert W. Gettleman
LUCENT TECHNOLOGIES INC., ) D
) OCKETED
Defendant. ) ocr
06 2093

MEMORANDUM OPINION AND ORDER

In their six-count complaint, plaintiffs seek monetary and injunctive relief from defendant
Lucent Technologies, Inc. (“Lucent”) arising from the severance package they received as part of
Lucent’s Force Management Program (“FMP”). Specifically, plaintiffs assert claims under the
Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. (Counts I and
TV), and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000(e) et seq.
(Counts II and V), as well as state law fraud claims (Counts I and VI). Defendant has moved
to dismiss plaintiffs’ complaint pursuant to Fed. R. Civ. P. 12(6)(6), arguing that (1) plaintiffs’
claims are precluded by the releases they executed as part of their severance packages, and (2)
plaintiffs’ state law fraud claims should be dismissed for the additional reason that they are
preempted by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et
seq. For the reasons stated below, defendant’s motion to dismiss is granted with respect to

plaintiffs’ fraud claims, but denied with respect to plaintiffs’ ADEA and Title VII claims.



FACTS

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule
on its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When
considering the motion, the court accepts the allegations of the complaint as true and views the
facts in the light most favorable to the plaintiff. Travel All Over the
Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996).

According to plaintiffs’ complaint, they were informed in Spring 2001 that they were
going to be part of Lucent’s FMP program and, although their positions were being terminated,
they were free to seek other employment opportunities within Lucent. Plaintiffs allege that their
FMP status precluded them from obtaining other positions within Lucent, however, and their
employment was therefore terminated in May 2001.

Employees terminated under the FMP were eligible for certain additional benefits
expressly conditioned upon the signing of a Termination Agreement and Release (the “Release”).
Both plaintiffs accepted these benefits and signed the Release, which provided that in
consideration of supplemental pension benefits,

T intend to give up any rights I may have under these [employment discrimination

laws] or any other laws with respect to my employment and termination of

employment at Lucent and acknowledge that no Lucent Entity has (a)

discriminated against me, (b) breached any express or implied contract with me,

or (c) otherwise acted unlawfully toward me.

In June 2001, after plaintiffs’ termination, Lucent instituted a voluntary retirement
program known as the “5 and 5 Plan,” which provided for the addition of five years of service
and five years of age to employees eligible to participate in the program. According to plaintiffs,

the benefits under the 5 and 5 Plan were superior to those under the FMP plan, and defendant had