10-1771-cv Ridinger v. Dow Jones & Co.

UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2

- - - - - - 3 August Term, 2010 4 (Argued: November 18, 2010 Decided: July 11, 2011) 5 Docket No. 10-1771-cv 6

_________________________________________________________ 7 THOMAS RIDINGER, 8 Plaintiff-Appellant , 9

- v. - 10 DOW JONES & COMPANY INC., 11 Defendant-Appellee

. 12

_________________________________________________________ 13 Before: KEARSE, McLAUGHLIN, and LIVINGSTON, Circuit Judges

. 14 Appeal from a judgment of the United States District Court for the Southern District 15 of New York, Frank Maas, Magistrate Judge , summarily dismissing age discrimination complaint as 16 barred by separation agreement entered into by plaintiff in connection with the termination of his 17 employment. See717 F.Supp.2d 369 (2010). 18 Affirmed. 19 JONATHAN BOBROW ALTSCHULER, New York, 20 New York, submitted a brief for Plaintiff21 Appellant

. 22 KEVIN G. CHAPMAN, Princeton, New Jersey, for 23Defendant-Appellee

. 1 KEARSE, Circuit Judge : 2 Plaintiff Thomas Ridinger appeals from a j udgment of the United States District Court 3 for the Southern District of New York, Frank Maas, Magistrate Judge , dismissing his complaint 4 against his former employer, defendant Dow Jone s & Company Inc. ("Dow Jones") seeking monetary 5 and equitable relief for alleged age discrimination in violation of the Age Discrimination in 6 Employment Act ("ADEA"), 29 U.S.C. § 621 et seq ., and state law. The magistrate judge, before 7 whom the parties had consented to proceed for all purposes, granted summary judgment dismissing 8 the complaint on the basis of a separation agreement entered into by Ridinger and Dow Jones in 9 connection with the termination of his employment, in which Ridinger agreed to waive and release 10 all claims, expressly including claims under the ADEA, that he might have against Dow Jones through 11 the date of the agreement. On appeal, Ridinger contends principally that the separation agreement 12 is unenforceable, arguing that its provisions do not comply with requirements of the Older Workers 13 Benefit Protection Act ("OWBPA"), see29 U.S.C. § 626(f), and applicable Equal Employment 14 Opportunity Commission ("EEOC") regulations, or at l east that there were genuine issues of material 15 fact as to whether the separation agreement met those requirements. For the reasons that follow, we 16 reject his contentions and affirm the judgment of the district court. 17

2I. BACKGROUND 1

We describe the record in the light most favorable to Ridinger as the party against 2 whom summary judgment was granted, drawing all reasonable inferences in his favor. The following 3 facts are undisputed. Ridinger was first empl oyed by Dow Jones in 2001. In December 2007, when 4 he was a 62-year-old photo editor at Dow Jones's SmartMoneymagazine, his employment was 5 terminated. Ridinger was granted a severance p ackage that included 20 weeks' salary and other 6 benefits, in exchange for which he signed a Separation Agreement and General Release ("Separation 7 Agreement" or "Agreement"). Ridinger received all of the benefits promised to him in the 8 Agreement. 9

A. The Separation Agreement and Ridinger's Complaint 10 Ridinger commenced the present action against Dow Jones in 2009 for alleged 11 violation of the ADEA, asserting that although Dow Jones had informed him that the reason for his 12 termination was that his position was being eliminated, that explanation was a pretext for age 13 discrimination, as his position remained extant and was filled by a younger employee. Dow Jones 14 moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b) and 12(d) on the ground that this 15 action is barred by Ridinger's volunt ary execution of the Separation Agreement, in which he waived 16 and released his present claims. 17 The Separation Agreement, which was attached to the Dow Jones motion, defined 18 Ridinger as "Employee" and Dow Jones as "the Comp any"; its most relevant terms are set out in ¶ 4, 19
entitled " Waiver of claims against Employer ," which provides in part as follows: 20

3(a) Employee, in exchange for the payments and other consideration 1 embodied in this Agreement, waives, releases and forever discharges the 2 Company . . . from all claims, causes of action, [or] lawsuits . . . which 3 Employee may now or hereafter have ag ainst the Company from the beginning 4 of time through the date of this Agreement, including but not limited to: (i) 5 any claim or cause of action arising under Title VII of the Civil Rights Act of 6 1964, as amended, the Age Discrimination in Employment Act (the "ADEA"), 7 . . . and any other common law, fede ral, state or local law prohibiting 8 discrimination or limiting an employer's right to terminate employees . . . . 9 Nothing in this Agreement shall limit or restrict Manager's[sic ] right 10 under the ADEA to challenge the validity of this Agreement in a court of 11 law. This waiver and release does not apply to any claim that may arise 12 under the ADEA after the date that Employee signs this Agreement. 13 (b) Employee warrants that he has not filed, and agrees that he will not 14 file or cause to be filed, any action, su it, or claim with any federal, state or 15 local court relating to any claim within the scope of this paragraph 4, unless 16 such a covenant not to sue is invalid under applicable law, in which case this 17 sub-paragraph (b) shall be stricken from this Agreement, but all other 18 provisions shall remain in full force. 19 (Separation Agreement ¶¶ 4(a) and (b) (emphasis inoriginal).) Subparagraph (d), entitled "Limitation 20 on Promise Not to Sue ," provides in pertinent part that 21 [n]otwithstanding the agreements and obligations contained in paragraph[] 22 4(b) . . . above, Employee understands that he retains the right to file charges 23 with a government agency and to partic ipate in an investigation or litigation 24 initiated by a government agency, without penalty or obligation to the 25 Company under this Agreement. Employee further understands that he retains 26 the right to bring a legal action to enfo rce the terms of this Agreement or to 27 challenge the validity of this Agreement without penalty or obligation to the 28 Company under this Agreement (except that the benefits to Employee provided 29 in this Agreement may not apply if the Agreement is deemed to be invalid). 30 Employee further understands that, under the law, the obligations to repay 31 money received and to pay the Company's damages and costs provided for in 32 paragraph 4(b) in the event that Employee breaches his promise not to file a 33 suit over released claims do not apply to claims under the ADEA. Therefore, 34 the financial obligations of paragraph 4(b) would not apply to a suit filed 35 solely under the ADEA, but Employee nevertheless understands that the 36 waivers and releases contained in paragraph 4(a) still apply to ADEA claims 37 and that he has waived all ADEA claims as part of this Agreement and that in 38 any suit brought under the ADEA, Employee would not be entitled to any 39 damages or other relief unless this Agreement and the waivers contained in it 40
4were deemed to be unlawful or otherwise invalid. 1 (Id . ¶ 4(d).) 2

B. The Decision of the District Court 3 Pursuant to Rule 12(d), the district court treated Dow Jones's motion to dismiss as one 4 for summary judgment because it relied on matters out side the complaint, to wit, the Separation 5 Agreement. Ridinger submitted a memorandum of law in opposition to Dow Jones's motion but did 6 not submit an affidavit or any factual matter. Citing principally Thomforde v. IBM , 406 F.3d 500 (8th 7 Cir. 2005) ("Thomforde "), and Syverson v. IBM , 472 F.3d 1072 (9th Cir. 2007) ("Syverson "), 8 Ridinger argued that 9 [w]hile it is true that Mr. Ridinger executed the document attached to the 10 moving papers, the courts and EEOC have consistently taken the position that 11 the language in the waiver part of thos e agreements do not in this case waive 12 Mr. Ridinger's right to commence the instant action. 13 (Plaintiff's Brief in Opposition to Motion To Dismiss Based on Waiver of Claims, dated September 14 30, 2009 ("Ridinger Mem."), at 4.) Ridinger cited an online EEOC "pamphlet" stating that waivers 15 of ADEA claims in severance agreements, in order to be enforceable, must be "'written in a manner 16 calculated to be understood.'" (Ridinger Me m. at 4 (quoting EEOC, UNDERSTANDING WAIVERS 17
OF DISCRIMINATION CLAIMS IN EMPLOYEE SEVERANCE AGREEMENTS at ¶ IV.6.).) See 18 http://www.eeoc.gov/policy/docs/qanda_ severance- agreements.html (last visited May 31, 2011). 19 With respect to the Separation Agreement in the present case, Ridinger's memorandum suggested that 20 the relevant provisions were unduly lengthy (see , e.g. , Ridinger Mem. at 3 ("Sub-section (a) contains 21 25 lines and over 300 words"); id . ("Sub-section (b) contains 11 lines")), and were confusing because 22 in paragraph 4 of the Dow Jones Separation Agreement and General Release 23
5captioned Waiver of Claims against Employer there is an inconsistency. In 1 sub-paragraph (a) the employee, in this case, Mr. Ridinger, waives his right to 2 sue and then in bold face the Agreement states that the waiver and release does 3 not apply to any claim that may arise under the ADEA after the employee 4 signs the Agreement. There are similar instances in sub-paragraphs b and d. 5 (Ridinger Mem. at 5.) Ridinger did not identify the "similar instances" of alleged inconsistency in 6 ¶¶ 4(b) and 4(d). 7 In a Memorandum Decision and Order dated April 13, 2010, published at 717 8 F.Supp.2d 369, the district court rejected Ridinger's arguments and granted the motion to dismiss. 9 The district court noted that the separation agreements dealt with by the courts in Thomfordeand 10 Syversonhad used technical legal terms that were not easily understood or parsed by a layperson, and 11 in combinations that could easily be misunderstood, inthat they "required an employee to release all 12 ADEA claims, but also said that the employee's covenant not to sue did not apply to actions 'based 13 solely under the ADEA.' Syverson , 472 F.3d at 1082; Thomforde , 406 F.3d at 502." 717 F.Supp.2d 14 at 371. Thus, the district court noted, the Thomfordeand Syversoncourts concluded that a lay 15 employee, without a clear understanding of the differe nce between a release and a covenant not to sue, 16 might well believe that the agreement left him free to bring an action against the employer under the 17
ADEA. 18 The district court found the language of the Separation Agreement to be "a far cry" 19 from the language challenged in Thomfordeand Syverson , noting that the Agreement "clearly states 20 that Ridinger's waiver extends to ADEA claims, but that he retains the right to challenge the validity 21 of the Agreement containing the waiver." 717 F.Supp.2d at 373. The court concluded that the 22 Agreement here "accurately sets forth Ridinger's contractual and statutory rights." Id

. 23 In addition, having noted Ridinger's claim that there was "an inconsistency in the 24

6Agreement between the waiver of his right to sue and the subsequent language indicating that his 1 release 'does not apply to any claim that may arise under the ADEA after the employee signs the 2 Agreement,'" id . (quoting Ridinger Mem. at 5), the court found no inconsistency, stating that 3 the OWBPA expressly requires, as one of the eight requirements for an 4 effective waiver, that an employee "not waive rights or claims that may arise 5 after the date the waiver is executed." . . . Language that tracks the OWBPA 6 obviously cannot be the basis for a claim that the Agreement is unenforceable. 7 717 F.Supp.2d at 373 (quoting 29 U.S.C. § 626(f)(1)(C).). The district court concluded that the 8 Separation Agreement 9 adequately conveys the limitations that Ridinger accepted in exchange for 10 enhanced severance pay. There also is no indication that any of the 11 undertakings set forth in the Agreement were couched in terms too 12 complicated for Ridinger to understand. 13 717 F.Supp.2d at 374. 14 The court also noted that--although not mentioned by Ridinger in his opposition to 15 Dow Jones's motion--the Agreement contains an"apparent word processing error," 717 F.Supp.2d 16 at 373, in providing that nothing limits or restricts the right of the "'Manager,'" a term not defined in 17 the Agreement, to challenge the validity of the Agreement, id . at 372. The court found this flaw 18 inconsequential because 19 the Agreement elsewhere makes clear that the "Employee . . . retains the right 20 to bring a legal action to . . . challenge the validity of th[e] Agreement . . . 21 (except that the benefits to Employee provided in th[e] Agreement may not 22 apply if the Agreement is deemed to be invalid)." [Separation Agreement 23 ¶ 4(d).] Accordingly, even if Ridinger thought that the term "Manager" 24 referred to Dow Jones, the Agreement correctly informed him of his rights. 25 Moreover, if Ridinger interpreted the term "Manager" to refer to himself, the 26 Agreement twice stated the applicable law correctly. This apparent word 27 processing error therefore does not aff ect the enforceability of the Agreement. 28 Id . at 372-73. 29

7Judgment was entered dismissing the complaint, and this appeal followed. 1

II. DISCUSSION 2

On appeal, Ridinger contends primarily that the Separation Agreement is 3 unenforceable because it does not comply with the OWBPA requirement that it be written in a manner 4 calculated to be understood. He also contends th at the Agreement is unenforceable because it failed 5 to advise him to cons ult an attorney prior to signing and that there exist disputed issues of fact that 6 should have precluded the grant of summary judgment. For the reasons that follow, we find no basis 7 for reversal. 8

A. The OWBPA 9 The ADEA, enacted in 1967, generally forbids an employer "to fail or refuse to hire 10 or to discharge any individual or otherwise discri minate against any individual with respect to his 11 compensation, terms, conditions, or privileges of em ployment, because of such individual's age." 29 12 U.S.C. § 623(a)(1). In 1990, Congress enacted the OWBPA, amending the ADEA, to "impose[] 13 specific requirements for releases covering ADE A claims," Oubre v. Entergy Operations, Inc. , 522 14 U.S. 422, 424 (1998). 15 Added as § 7(f) of the ADEA, the OWBPA provides in part that 16 [a]n individual may not waive any right or claim under [the ADEA] unless the 17 waiver is knowing and voluntary . . . . [A] waiver may not be considered 18 knowing and voluntary unless at a minimum

-- 19 (A) the waiver is part of an agreement between the individual 20 and the employer that is written in a manner calculated to be 21
8understood by such individual, or by the average individual eligible to 1 participate ; 2 (B) the waiver specifically refers to rights or claims arising 3 under [the ADEA]; 4 (C) the individual does not waive rights or claims that may 5 arise after the date the waiver is executed; 6 (D) the individual waives rights or claims only in exchange for 7 consideration in addition to anythi ng of value to which the individual 8 already is entitled; 9 (E) the individual is advised in writing to consult with an 10 attorney prior to executing the agreement; 11 (F)(i) the individual is given a period of at least 21 days within 12 which to consider the agreement; or 13 (ii) if a waiver is requestedin connection with an exit 14 incentive or other employment termination program offered to 15 a group or class of employees, th e individual is given a period 16 of at least 45 days within which to consider the agreement; 17 (G) the agreement provides that for a period of at least 7 days 18 following the execution of such ag reement, the individual may revoke 19 the agreement, and the agreement shall not become effective or 20 enforceable until the revocation period has expired[.] 21 29 U.S.C. § 626(f)(1)(A)-(G) (emphases added). 22 The OWBPA "stricture[s] on waivers" ar e "strict" and "unqualified." Oubre , 522 U.S. 23 at 427. "An employee may not waive an ADEA claim unless the employer complies with the statute," 24 id . (internal quotation marks omitted); an employee's retention of the moneys paid to him pursuant 25 to a separation agreement that fails to meet th e minimum requirements of the OWBPA does not ratify 26 the agreement, seeid . at 425-28; see also Hodge v. New York Collegeof Podiatric Medicine , 157 27 F.3d 164, 167 (2d Cir. 1998) (employee's acceptance of continued employment and benefits for one 28 year did not ratify a separation agreement that did not meet the minimum requirements of the 29
9OWBPA). 1 Regulations promulgated by the EEOC repeat and reflect these strictures. See29 2 C.F.R. § 1625.22(b). For example, with respect to the "written in a manner calculated to be 3 understood" requirement imposed by § 626(f)(1)(A) (the"clarity requirement"), regulations cited by 4 Ridinger state in part that 5 [w]aiver agreements must be drafted in plain language geared to the level of 6 understanding of the individual party to the agreement or individuals eligible 7 to participate. Employers should take into account such factors as the level of 8 comprehension and education of typical participants. Consideration of these 9 factors usually will require the limitation or elimination of technical jargon and 10 of long, complex sentences. 11 (4) The waiver agreement must not have the effect of misleading, 12 misinforming, or failing to inform participants and affected individuals. 13 29 C.F.R. §§ 1625.22(b)(3) and (4). 14 The burden of proving that a claimed "wai ver was knowing and voluntary" within the 15 meaning of the OWBPA is on "the party asserting the validity of [the] waiver." 29 U.S.C. § 626(f)(3). 16 Section 626(f)(1)(A)'s focus on both the "individual" participating employee and "the average 17 individual" who is eligible to participate may warrant both a particularized and a generalized 18 assessment of the agreement's waiver provisions. However, where the individual employee has not 19 presented the district court with any evidence from which to infer that his own comprehension level 20 was below that of the average eligible employee, the employer carries his burden with respect to the 21 clarity requirement if the language of the waiver agreement is calculated to be understood by the 22 average eligible employee. While evidence as to an individual employee's comprehension level might 23 present an issue of fact to be tried, the matter of whether the agreement's language is calculated to be 24 understood by the average eligible employee is essentially an issue of law. 25

10In Thomfordeand Syverson , the Eighth and Ninth Circuits, respectively, concluded 1 that the language of IBM documents partially titled "General Release and Covenant Not to Sue" (the 2 "IBM agreements") failed to meet § 626(f)(1)(A)'s clarity requirement. In each IBM agreement, the 3 employee agreed to a release of "'all claims'"--inc luding "'claims arising from the [ADEA]'"--and gave 4 a "'covenant not to sue,'" which included an "'agree[ ment] . . . never [to] institute a claim of any kind 5 against IBM . . . related to [his] employment with IBM'"; however, each agreement also provided that 6 "'[t]his covenant not to sue does not apply to ac tions based solely under the [ADEA].'" Thomforde , 7 406 F.3d at 501-02 (quoting IBM agreement); Syverson , 472 F.3d at 1081-82 (same). Reasoning that 8 a lay employee could easily read these provisions as allowing the employee to bring an action under 9 the ADEA, the Thomfordeand Syversoncourts concluded that the IBM agreements were not written 10 in a manner calculated to be understood by the rele vant employees, as required by § 626(f)(1)(A), and 11 were thus unenforceable under the OWBPA. SeeThomforde , 406 F.3d at 504; Syverson , 472 F.3d 12
at 1087. 13

B. Ridinger's Lack-of-Clarity Challenge 14 As indicated in Part I.B. above, Ridinger opposed Dow Jones's motion in the district 15 court solely as a matter of law, w ithout suggesting that there was any factual issue to be resolved. He 16 argued that Dow Jones's motion should be deniedon the basis of the decisions in Thomfordeand 17 Syverson , apparently equating the language in the Separation Agreement with the language in the 18 IBM agreements that were at issue in those cases. (SeeRidinger Mem. at 4.) The district court, 19 however, correctly noted that th e language of the Separation Agreement signed by Ridinger is quite 20 different from that in the IBM agreements considered in Thomfordeand Syverson . Although ¶ 4 of 21

11the Separation Agreement uses the terms "waiver, " "release," and "covenant not to sue," it does not 1 use or combine them in the manner found to be conf using in the IBM agreements. Paragraph 4 of the 2 Separation Agreement refers to covenants not to sue only in stating that Ridinger agrees not to sue 3 Dow Jones as provided in that paragraph "unle ss such a covenant not to sue is invalid under 4 applicable law." (Separation Agreement ¶ 4(b).) Further, unlike in Thomfordeand Syverson --where 5 lay readers could plausibly read the phrase "[the] c ovenant not to sue does not apply to actions based 6 solely under the [ADEA]" to mean that they could bring actions based solely under the ADEA despite 7 having released the employer from all ADEA claims, seeThomforde , 406 F.3d at 502-03 (internal 8 quotation marks omitted); see also Syverson , 472 F.3d at 1083-84--the Separation Agreement here 9 clearly explains that it is only the "financial obligations " triggered by a breach of Ridinger's promise 10 not to sue that "would not apply to a suit filed solely under the ADEA, but . . . that the waivers and 11 releases contained in paragraph 4(a) still apply to ADEA claims." Separation Agreement ¶ 4(d) 12 (emphasis added). 13 In this Court, Ridinger argues that while the language at issue in other cases "may" 14 have been different (Ridinger brief on appeal at 15), the Separation Agreement is unenforceable 15 because "the waiver section . . . contains technical jargon, complex sentences that are written in a 16 manner not calculated to be understood by the average individual" (id . at 15-16). Ridinger does not 17 specify what "jargon" he found confusing; his only nonconclusory argument in support of his "not 18 calculated to be understood" contention is based on the "word processing error" noticed by the district 19 court, 717 F.Supp.2d at 372-73 (pointing out that ¶ 4(a) of the Separation Agreement states that 20 nothing in the Agreement "limit[s] or restrict[s] Manager's [sic ] right under the ADEA to challenge 21 the validity of this Agreement in a court of law" (emphasis and internal quotation marks omitted))-- 22

12which Ridinger, in his opposition to the motion, ha d not contended was confusing. Focusing on that 1 clause in his brief on appeal, Ridinger argues as follows: 2 What that provision states is that the Manager can under ADEA challenge the 3 validity of the Agreement. Since Dow Jones used boiler plate language in the 4 Agreement and because of the responsibilities that Ridinger had as a photo 5 editor, it is reasonable to conclude that sub-section might give him the right to 6 challenge the validity of the Agreement de novo in court. 7 (Ridinger brief on appeal at 12 (emphasis added).) As a basis for claiming confusion, this argument 8 is meritless. That boilerplate error could not have misledRidinger to believe that he had the right to 9 challenge "the validity" of the Agreement in court because the Agreement in fact expressly gave him 10 that right--which he acknowledged: "Employee. . . understands that he retains the right to bring a 11 legal action to . . . challenge the validity of this Agreement " (Separation Agreement ¶ 4(d) (emphases 12 added)). And Ridinger has pointed to nothing in the Separation Agreement that could have led him 13 to believe he retained the right to bring an action alleging age discrimination in violation of the 14 ADEA, rather than simply an action challenging the validity of the Separation Agreement. 15 Finally, although it is not clear whether Ridi nger intended to pursue here the argument 16 he made to the district court--that the Separation Agreement was confusing because of what he called 17 "an inconsistency" between the language stating that "Ridinger[] waives his right to sue" and the 18 subsequent language "stat[ing] that the waiver and release does [sic ] not apply to any claim that may 19 arise under the ADEA after the employee signs the Agreement" (Ridinger Mem. at 5)--we note that 20 that argument too is meritless in light of the discre te time periods specified. The Agreement expressly 21 provides that Ridinger waives his right to sue only with respect to claims "through the date of this 22 Agreement" (Separation Agreement ¶ 4(a)); that provision plainly is not inconsistent with the 23 provision that he does not waive his right to sue w ith respect to "any claim that may arise under the 24

13ADEA afterthe date that Employee signs this Agreement" (id . (other emphasis omitted)). 1 In sum, having reviewed the Separation Agreement de novoin light of the record 2 before the district court, which, as discussed inPart II.C. below, included no suggestion by Ridinger 3 that there were any factual issues to be resolvedas to such matters as his particular level of 4 comprehension, we conclude that Dow Jones met its burden of showing that the Agreement was 5 written in a manner calculated to be understood by the relevant Dow Jones employees. 6

C. Ridinger's Other Arguments 7 Ridinger makes two additional arguments on this appeal: (1) that summary judgment 8 should have been denied because there are issues of fact to be tried, and (2) that the Separation 9 Agreement is unenforceable because he was not advised in writing, as required by OWBPA, to 10 consult with an attorney before signing the Agreement, see29 U.S.C. § 626(f)(1)(E). We see no basis 11 for reversal. 12 Neither of these arguments was made to the district court. We normally will not 13 disturb a judgment on the basis of an argument thatwas not made to the district court. See , e.g. , 14 Leyda v. AlliedSignal, Inc. , 322 F.3d 199, 207 (2d Cir. 2003); Gilbert v. Frank , 949 F.2d 637, 640 15 (2d Cir. 1991). "[T]his bar to rais ing new issues on appeal is not ab solute," but "it may be overcome 16 only when necessary to avoid manifest injustice." Thomas E. Hoar, Inc. v. Sara Lee Corp. , 900 F.2d 17 522, 527 (2d Cir.) (internal quotati on marks omitted), cert. denied , 498 U.S. 846 (1990). We see no 18 potential injustice here. 19 Ridinger acknowledges that factual matters --such as his "education and business 20 experience, his role in deciding the terms of the ag reement, . . . and whether he had a fair opportunity 21

14to consult with counsel"--were not presented to the district court. (Ridinger brief on appeal at 18.) 1 Dow Jones, in moving to dismiss on the basis of the Separation Agreement, a "matter[] outside the 2 pleadings," Fed. R. Civ. P. 12(d) , expressly invoked Rule 12(d), wh ich required, unless the Agreement 3 was excluded by the court, that the motion be"treated as one for summary judgment," id . If Ridinger 4 believed there were genuine issues of material fact to be tried, so as to preclude summary judgment, 5 it was incumbent on him to so inform the district court and to do so by proffer of admissible evidence, 6

see , e.g. , ITC Ltd. v. Punchgini, Inc. , 482 F.3d 135, 151 (2d Cir.) ("conclu sory statements, conjecture, 7 and inadmissible evidence are insufficient todefeat summary judgment"), cert. denied , 552 U.S. 827 8 (2007). He did not. Indeed, even in this Court, Ridinger mentions the above factual matters only in 9 the heading of the final point in his brief and provides no elaboration, no reference to evidence 10 (admissible or inadmissible) and, hence, no reason to believe that there should have been a trial. 11 Nor are we persuaded that we should entertain the claim that the Separation Agreement 12 is unenforceable on the ground that Ri dinger was not advised to consult an attorney prior to signing 13 the Agreement. In the Agreement, Ridinger " ACKNOWLEDGE[D] ," inter alia , that 14 [t]he Company has advised me to consult with an attorney prior to signing 15 this Agreement, and I have had the opportunity to consult with an 16 attorney prior to signing this Agreement. 17 (Separation Agreement ¶ 6(e) (emphasis in original).) We see no injustice in refusing to allow him 18 to introduce on appeal the new contention that he was not so advised. 19

CONCLUSION 20

We have considered all of Ridinger's arguments that are properly before us and have 21

15found them to be without merit. The judgment of the district court is affirmed. 1

16