Withers v. Avis Budget Car Rental Llc

MOTION for Partial Summary Judgment with Incorporated Memorandum of Law

D. Me.February 22, 2017

UNITED STATES DISTRICT COURT DISTRICT OF MAINE ELIZABETH WITHERS, PLAINTIFF, v. AVIS BUDGET CAR RENTAL, LLC, DEFENDANT. ) ) ) ) ) ) ) ) ) ) Docket No. 2:16-cv-00504-NT DEFENDANT AVIS BUDGET CAR RENTAL, LLC’S PARTIAL MOTION FOR SUMMARY JUDGMENT WITH INCORPORATED MEMORANDUM OF LAW I. INTRODUCTION Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56, Defendant Avis Budget Car Rental, LLC (“Avis” or the “Company”), moves for summary judgment on Counts IX and X of Plaintiff’s First Amended Complaint. In support of this motion, Avis relies upon the incorporated memorandum of law, the Statement of Material Facts (“SMF”) with record citations, and the Affidavits submitted herewith. II. RELEVANT FACTUAL BACKGROUND While employed by Avis, Plaintiff opted into a class action lawsuit filed by Avis employees alleging overtime pay violations under the Fair Labor Standards Act (“FLSA”) and state wage and hour laws, entitled Ruffin et al. v. Avis Budget Car Rental, LLC and Avis Rent A Car System, LLC, Case No. 2:11-cv-01069 (D.N.J.) (“Ruffin”). SMF ¶ 1. The Ruffin matter was resolved in conjunction with a second class action, Ravenell et al. v. Avis Budget Car Rental, LLC and Avis Rent A Car System LLC, Index No. 08-cv-02113 (E.D.N.Y.) (“Ravenell”) (together, the “Class Action Lawsuits”). SMF ¶ 2. On or about July 17, 2013, Plaintiff testified Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 1 of 10 PageID #: 263 2 as a witness in the Class Action Lawsuits. SMF ¶ 3. Plaintiff alleges that Avis terminated her employment on or about November 22, 2013. SMF ¶ 4. Plaintiff further alleges that she reapplied for a position with Avis “on or around December 27, 2013,” and that she believes her position was filled by a new hire on or about February 17, 2014. SMF ¶ 5. In May of 2016, the Class Action Lawsuits were resolved by the entry of a Settlement Agreement and Release of Claims, which had been executed by the parties on June 15, 2015 (the “Settlement Agreement”). SMF ¶ 6. Plaintiff was included within the definition of “Parties Plaintiff” to the Settlement Agreement, and Defendant was included as one of the “Released Parties.” SMF ¶ 8. The Settlement Agreement was expressly intended to resolve the Class Action Lawsuits “and any claims, damages, or causes of action arising out of the dispute which is the subject of said Lawsuits.” SMF ¶ 9 (emphasis added). “Released Claims,” as defined in the Settlement Agreement, includes: any and all claims, debts, liabilities, demands, obligations, guarantees, costs, expenses, attorney’s fees, penalties, damages, interest, actions or causes of action assert in the Actions or which could have been asserted in the Actions of the Parties Plaintiff, which relate to (a) the alleged misclassification of the Parties Plaintiff as exempt under the [FLSA] or any applicable state or local wage and hour laws, and (b) the alleged failure to pay the Parties Plaintiff all wages due under the FLSA or any applicable state or local wage and hour laws, including all overtime or other premium wages. The “released claims” include, without limitation, all claims for restitution or other equitable relief, liquidated damages, punitive damages, statutory and civil penalties of any nature whatsoever, retirement or deferred compensation benefits derived from any of the foregoing released claims during any and all applicable statute of limitations periods and prior to June [15], 2015, the date of execution of this Agreement. SMF ¶ 10 (emphasis added). All Parties Plaintiff would be deemed to have “released, waived, and discharged with prejudice the Released Parties from his or her Released Claims” upon the Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 2 of 10 PageID #: 264 3 entry of an order of dismissal in the Class Action Lawsuits. SMF ¶ 11. The Settlement Agreement is governed by the laws of the state of New York. SMF ¶ 12. A District Court Judge sitting in the Eastern District of New York approved the Settlement Agreement based on the Report and Recommendation of a Magistrate Judge. SMF ¶ 13. The Magistrate Judge specifically acknowledged the risk of retaliation against those persons who participated and gave deposition testimony in considering whether the named plaintiffs were adequately compensated by the settlement. SMF ¶ 14. The Order of Dismissal in the Ruffin matter was entered on May 17, 2016. SMF ¶ 15. On July 1, 2016, Plaintiff was issued a settlement check in the Class Action Lawsuit, which she then endorsed and deposited on or about July 7, 2016. SMF ¶ 16. Above her endorsed signature appears the following language: This check is for wages and other alleged damages claimed by you under the Fair Labor Standards Act (“FLSA”) and applicable state or local wage laws. By endorsing this check, you agree to be bound by the release language in the accompanying settlement check stub. SMF ¶ 17. Exhibit 2 to the Settlement Agreement explains that the settlement check stub includes the following release language: By opting into this lawsuit and by operation of this settlement and the Court’s approval of this settlement, you knowingly and voluntarily agree to forever and fully release [Avis] . . . of any and all claims, debts, liabilities, demands, obligations, guarantees, costs, expenses, attorney’s fees, damages, actions or causes of action asserted in the Actions or which could have been asserted in the Actions . . . . SMF ¶ 18 (emphasis added). On July 8, 2016, after receiving her settlement, Plaintiff filed her original Complaint in this lawsuit in Maine state court, alleging, inter alia, a claim for “Whistleblower Discrimination” Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 3 of 10 PageID #: 265 4 under the Maine Human Rights Act and the Maine Whistleblowers’ Protection Act. See ECF Document 1-1. After Avis removed the matter to this Court, Plaintiff filed her First Amended Complaint, adding a claim for “Retaliation under the Fair Labor Standards Act.” See ECF Document 10. These two causes of action allege that Avis retaliated against Plaintiff because she participated and gave deposition testimony in the Class Action Lawsuits. See ECF Document 10, Counts IX and X. III. ARGUMENT A. Summary Judgment Standard “Summary judgment is ‘a means of avoiding full-dress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways.’” Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 24-25 (1st Cir. 2015) (citing Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)). Summary judgment is appropriate when the relevant pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). For summary judgment purposes, “genuine” means that “a reasonable jury could resolve the point in favor of the nonmoving party.” A fact is “material” if its “existence or nonexistence has the potential to change the outcome of the case.” Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011) (citations omitted). The nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999). If the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 4 of 10 PageID #: 266 5 burden of proof at trial,” summary judgment should enter. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); McCrory v. Spigel, 260 F.3d 27, 31 (1st Cir. 2001); see also Henry v. United Bank, 686 F.3d 50, 54 (1st Cir. 2012). “A properly supported summary judgment motion cannot be defeated by relying upon conclusory allegations, improbable inferences, acrimonious invective, or rank speculation.” Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010). B. Plaintiff’s Claims in Count IX and Count X of the First Amended Complaint are Barred by the Settlement Agreement and Release of Claims “It is beyond cavil that a suit can be barred by the earlier settlement of another suit in either of two ways: res judicata or release.” Reppert v. Marvin Lumber and Cedar Co, Inc., 359 F.3d 53, 56 (1st Cir. 2004). A release will operate to bar a claim where it (1) applies to the plaintiff, (2) encompasses the claims asserted by the plaintiff, and (3) is legally enforceable. See Nottingham Partners v. Trans-Lux Corp., 925 F.2d 29, 32 (1st Cir. 1991). Under New York law, “a valid release constitutes a complete bar to an action on a claim which is the subject matter of the release.” Allen v. Riese Orgs, Inc., 106 A.D.3d 514, 516 (N.Y. App. Div. 2013). “A release will not be treated lightly because it is ‘a jural act of high significance without which the settlement of disputes would be rendered all but impossible.’” Id. (citation omitted); see also Fid. and Guar. Ins. Co. v. Star Equipment Corp., 541 F.3d 1, 5 (1st Cir. 2008) (“Settlement agreements enjoy great favor with the courts ‘as a preferred alternative to costly, time-consuming litigation.”’). A defendant establishes its prima facie right to judgment as a matter of law by submitting to the Court a valid release that encompasses the plaintiff’s claims. See, e.g., Warmhold v. Zagarino, No. 2014-00632, 2016 WL 6465064, * 2 (N.Y. App. Div. Nov. 2, 2016). Unless the plaintiff can offer admissible evidence sufficient to raise an issue of trial fact about the validity of the release, judgment must be entered for the defendant. Id. Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 5 of 10 PageID #: 267 6 1. The Settlement Agreement and Release of Claims Applies to Plaintiff There can be no dispute that the Settlement Agreement entered in the Class Action Lawsuits applies to Plaintiff. Plaintiff’s name appears in “Exhibit 1: List of Parties Plaintiff” to the Settlement Agreement. SMF ¶ 8. Plaintiff also accepted, endorsed, and deposited the settlement check issued to her as a result of the settlement of the Class Action Lawsuits. SMF ¶ 16. 2. The Settlement Agreement and Release of Claims Covers the Claims Asserted by Plaintiff in Counts IX and X of the First Amended Complaint As a party to the Settlement Agreement, Plaintiff agreed that “any claims, damages, or causes of action arising out of the dispute which is the subject of [the Class Action] Lawsuits, be settled and compromised as between the Parties Plaintiff and [Avis].” SMF ¶ 9. The claims released as part of the settlement included “any and all claims … actions, or causes of action” that “could have been asserted” in the Class Action Lawsuits. SMF ¶ 10. Thus, the question is whether Plaintiff’s claims in Counts IX and X of the First Amended Complaint “could have been” asserted within the Class Action Lawsuits. The answer is yes. a. Plaintiff’s Claims Accrued Prior to Execution of the Settlement Agreement and Release of Claims Plaintiff alleges that Avis retaliated against her for participating and testifying in the Class Action Lawsuits, and that the allegedly retaliatory acts took place following her July 2013 testimony and up until her position was allegedly filled by a newly-hired employee in February of 2014. SMF ¶ 22. The Settlement Agreement was executed a year and a half later on June 15, 2015 and covered claims that arose prior to its execution. SMF ¶ 6. Thus, Plaintiff’s claims in Counts IX and X of the First Amended Complaint accrued within the time period covered by the Settlement Agreement. Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 6 of 10 PageID #: 268 7 b. Plaintiff Could Have Brought Her Whistleblower and Retaliation Claims in the Ruffin Class Action Lawsuit “It is well-established that ‘[c]lass actions may release claims, even if not pled, when such claims arise out of the same factual predicate as the settled class claims.’” Donovan v. Rite Aid of New York Inc., 2013 WL 6183136, * 3 (S.D.N.Y. Nov. 14, 2013). In Donovan, the Southern District of New York was faced with a retaliation claim by a plaintiff who had previously opted into class action litigation against his employer relating to overtime violations under the FLSA and state wage and hour laws. Id. at * 1. Like here, the alleged retaliation occurred prior to settlement of the class action. Id. at * 4. Also like here, the broad release language covered “any and all” claims and causes of action that “could have been asserted” in the class action. Id. at * 1. The court held that the release barred the plaintiff’s claim that his employment was terminated in retaliation for having joined and testified in the class action. Id. at * 4. In doing so, the court specifically rejected the plaintiff’s argument that he could not have brought his retaliation claim in the class action, noting that both the FLSA and applicable state wage and hour laws contain anti-retaliation provisions. Id. The court also rejected the plaintiff’s argument that, because the settlement agreement did not specifically mention non-wage claims, they were not released, finding that the agreement’s “any and all” language was broad enough to include retaliation claims. Id. The language of the Settlement Agreement at issue here is similarly broad and in no way excludes retaliation claims. In fact, the Magistrate Judge who recommended that the Settlement Agreement be accepted by the District Court specifically contemplated that the consideration being paid was intended to compensate for potential retaliation, and awarded the named plaintiff’s only slightly more than the opt-in plaintiffs because the named plaintiffs were not the only persons potentially subject to retaliation. SMF ¶ 14. Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 7 of 10 PageID #: 269 8 That Plaintiff could have brought her retaliation claims within the Ruffin matter is not merely theoretical. Two opt-in plaintiffs in the Ravenell matter did precisely that. On June 11, 2019, the named plaintiff in Ravenell filed a motion for preliminary injunction alleging that Avis had terminated opt-in plaintiff Tyler Talkington (“Talkington”) in retaliation for participating in the lawsuit. SMF ¶ 19. Thereafter on September 16, 2009, the plaintiff filed an Amended Complaint, which added Talkington and another former Avis employee, Travis Lubbers (“Lubbers”), as named plaintiffs and alleged that they were each terminated by Avis in retaliation for participating in Ravenell. SMF ¶ 20. Talkington and Lubbers’ retaliation claims remained a part of Ravenell until they were settled in April of 2015. SMF ¶ 21. The fact that Talkington and Lubbers brought their retaliation claims within the Class Action Lawsuits demonstrates that Plaintiff could have done the same. In other words, her retaliation claims fall demonstrably within the “could have been asserted” language in the definition of Released Claims. As such, Plaintiff has released those claims and is now barred from asserting them in this litigation. 3. The Settlement Agreement and Release of Claims is Valid and Enforceable The Settlement Agreement is governed by New York law. SMF ¶ 12. Under New York law, “[a] release is a contract, and its construction is governed by contract law.” Warmhold, 2016 WL 6465064, * 1. As a contract, a release is valid unless the plaintiff can prove that there has been “fraud, duress or some other fact which will be sufficient to void the release.” Id.; accord Allen, 106 A.D.3d at 516 (a “release is binding on the parties unless it is shown that it was procured by fraud, duress, overreaching, illegality or mutual mistake”). Plaintiff elected to opt in to the Ruffin class action and was represented in that matter by experienced counsel who negotiated the terms of the Settlement Agreement. Prior to entering Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 8 of 10 PageID #: 270 9 that agreement, the parties engaged in “significant discovery,” including the depositions of 251 Parties Plaintiff (including Plaintiff here). SMF ¶ 3, 7. A Magistrate Court Judge sitting in the Eastern District of New York reviewed the Settlement Agreement, determined that it was reasonable, and recommended that it be accepted, and a District Court Judge agreed with and adopted that recommendation. SMF ¶¶ 13-14. Furthermore, in consideration for her release of any and all claims against Avis, Plaintiff received a monetary settlement. SMF ¶ 16. On these facts, there can be no dispute that the Settlement Agreement constitutes a valid, enforceable contract. As such, it operates as a bar to Plaintiff’s retaliation claims in Counts IX and X of the First Amended Complaint. IV. CONCLUSION For the reasons set forth above, summary judgment should be entered in Avis’ favor on Counts IX and X of Plaintiff’s First Amended Complaint. Dated: February 22, 2017 /s/ Shiloh D. Theberge Shiloh D. Theberge (Bar No. 4746) LITTLER MENDELSON, P.C. 1 Monument Square, Suite 600 Portland, ME 04101 Phone: 207.774.6001 stheberge@littler.com Attorney for Defendant Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 9 of 10 PageID #: 271 10 CERTIFICATE OF SERVICE I, Shiloh D. Theberge, attorney for Avis Budget Car Rental, LLC, hereby certify that on the date noted below, I electronically filed the foregoing document using the CM/ECF system, which will send notification of such filing to the following: Kristin L. Aiello, Esq. Peter M. Rice, Esq. Disability Rights Maine 24 Stone Street, Suite 204 Augusta, Maine 04330 kaiello@drme.org pmrice@drme.org Dated: February 22, 2017 /s/ Shiloh D. Theberge Shiloh D. Theberge (Bar# 004746) LITTLER MENDELSON, P.C. 1 Monument Square, Suite 600 Portland, ME 04101 Phone: 207.699.1112 stheberge@littler.com Attorney for Defendant Case 2:16-cv-00504-NT Document 18 Filed 02/22/17 Page 10 of 10 PageID #: 272