     14-2849-cv
     Anderson v. Xerox Corp.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of August, two thousand fifteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                JOHN M. WALKER, JR.,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       HERBERT E. ANDERSON,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-2849-cv
16
17       XEROX CORPORATION, LAWRENCE M. BECKER,
18       Xerox Corporation Plan Administrator,
19       RETIREMENT INCOME GUARANTEE PLAN
20       (RIGP),
21                Defendants-Appellees.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                        NIRA T. KERMISCH, Law Office of
25                                             Nira T. Kermisch, Sudbury,
26                                             Massachusetts.
27


                                                  1
 1   FOR APPELLEES:             MARGARET A. CLEMENS (Pamela S.C.
 2                              Reynolds, on the brief), Littler
 3                              Mendelson, P.C., Rochester, New
 4                              York.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Western District of New York (Larimer, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Herbert E. Anderson appeals from the judgment of the
14   United States District Court for the Western District of New
15   York (Larimer, J.), granting summary judgment in favor of
16   defendants-appellees Xerox Corporation (“Xerox”), Lawrence
17   M. Becker, and the Retirement Income Guarantee Plan. We
18   assume the parties’ familiarity with the underlying facts,
19   the procedural history, and the issues presented for review.
20
21        We affirm on one of the grounds relied upon by the
22   district court: when Anderson was terminated from employment
23   by Xerox in 2002, he executed an agreement relinquishing
24   “any and all claims of any kind, known or unknown”--
25   including ERISA claims--arising out of “facts which [had]
26   occurred prior to the date of [the] Release.” Joint App’x
27   41.1 As consideration, he received a severance payment
28   equal to 26 weeks’ salary (totaling approximately $47,000).
29   Such releases are enforceable. Frommert v. Conkright, 535
30   F.3d 111, 120-23 (2d Cir. 2008), rev’d and remanded on other
31   grounds, 559 U.S. 506 (2010).
32
33        As we explained in Frommert, “an individual can waive
34   his or her right to participate in a pension plan governed
35   by ERISA” so long as that waiver “is made knowingly and
36   voluntarily.” 535 F.3d at 121 (internal quotation marks
37   omitted). We specifically rejected the principal arguments
38   that Anderson now presses: that the language of the release
39   somehow preserved the ERISA claims at issue, id., and that
40   the payment received was inadequate consideration, id. at
41   122.


         1
              Because we affirm on this basis, we need not
     consider whether Anderson’s claims are also time-barred.
     Anderson’s contempt claim is meritless for the reasons
     stated by the district court.
                                  2
 1        Although the release in Frommert was executed after
 2   litigation began and the employees unquestionably then knew
 3   about the deduction of the “phantom account,” the booklet
 4   given to Anderson prior to the release gave him sufficient
 5   notice that the same type of deduction would be made in
 6   calculating his benefit. Joint App’x 65. Anderson argues
 7   that he was fraudulently induced into executing the release
 8   because it promised that the severance payment would be “in
 9   addition to anything of value to which [he was] otherwise
10   entitled,” and he was already entitled to receive the
11   benefits payments at issue (without the “phantom account”
12   reduction). But that is precisely the position we rejected
13   in Frommert. 535 F.3d at 121 (rejecting argument that
14   “[Xerox] employees [who released claims] were entitled by
15   law not simply to receive some pension benefits, but to have
16   their benefits calculated without any reduction attributable
17   to a phantom account” (quoting Frommert v. Conkright, 472 F.
18   Supp. 2d 452, 462 (W.D.N.Y. 2007))).
19
20        For the foregoing reasons, and finding no merit in
21   Anderson’s other arguments, we hereby AFFIRM the judgment of
22   the district court.
23
24                              FOR THE COURT:
25                              CATHERINE O’HAGAN WOLFE, CLERK
26




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