16-1130-cv
Montanez v. The Cheesecake Factory Restaurants, Inc.

                                   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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 31st day of January, two thousand seventeen.

PRESENT:            RALPH K. WINTER,
                    JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                                 Circuit Judges.


ISAAC MONTANEZ,

                              Plaintiff-Appellant,                    16-1130-cv

                              v.

THE CHEESECAKE FACTORY RESTAURANTS, INC.,

                              Defendant-Appellee,

CHRISTIAN LUNA, KITCHEN MANAGER, SHAWN
REED, GM, DAMON NOBLE, MANAGER,
CLINT MALEK,

                              Defendants.



FOR PLAINTIFF-APPELLANT:                                   Isaac Montanez, pro se, Albany, NY.




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FOR DEFENDANT-APPELLEE:                                     Clemente J. Parente, Counsel of Record,
                                                            Kristi Rich Winters, Jackson Lewis, P.C.,
                                                            Albany, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Glenn T. Suddaby, Chief Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Appellant Isaac Montanez, proceeding pro se, appeals from the District Court’s determination
that a prior settlement agreement barred his federal discrimination claims. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

         We review de novo a judgment on the pleadings under Federal Rule of Civil Procedure 12(c).
Willey v. Kirkpatrick, 801 F.3d 51, 61–62 (2d Cir. 2015). A Title VII plaintiff may waive his claims, but
a court should accept a waiver only if it was knowing and voluntary. See Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 438 (2d Cir. 1998). To determine where a waiver was knowing and
voluntary, a court considers the totality of the circumstances. Id. Relevant factors include the amount
of time the plaintiff had possession of or access to the agreement before signing it, the role of the
plaintiff in deciding the terms of the agreement, the clarity of the agreement, and whether the
consideration given in exchange for the waiver exceeds employee benefits to which the employee
was already entitled by contract or law. Id.

         Upon review, the totality of the circumstances demonstrates that Montanez’s waiver was
knowing and voluntary. The New York State Division of Human Rights facilitated the settlement.
Montanez had over a week to review the two-page agreement. The agreement was clear and
included an unambiguous waiver provision. And Montanez received consideration in exchange for
the waiver. Montanez’s contention that the release provision excluded his federal employment
discrimination claim fails: he waived any “employment discrimination claims arising under local,
state or federal statute.”

                                           CONCLUSION

       We have reviewed all of the arguments raised by Montanez on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the March 22, 2016 judgment of the District
Court.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk



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