JESSICA BRISTOL, Plaintiff, -v.- SECURITAS SECURITY SERVICES USA, INC., Defendant.
21 Civ. 10636 (AJN) (GWG)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 11, 2022
GABRIEL W. GORENSTEIN, United States Magistrate Judge
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Plaintiff Jessica Bristol brings this employment discrimination action under
I. BACKGROUND
Securitas “provides uniformed security officer and patrol services for businesses
I have received a copy of the Securitas Security Services USA, Inc. (the “Company“) Dispute Resolution Agreement (the “Agreement“) and I have read and I understand all of the terms contained in the Agreement. I understand that employment or continued employment at the Company constitutes acceptance of this Agreement and its terms. I further acknowledge that the Company and I are mutually bound by this Agreement and its terms.
DRA Acknowledgement at 1. The Agreement (annexed as Ex. B to Fredericks Decl.) states that it “applies to your employment whether or not you sign the acknowledgment, which is intended simply to confirm that you have received and read your copy.” Agreement at 1.
In its first paragraph, the Agreement states that it is an “Arbitration Agreement.” Id. The first paragraph further states: “Under the terms set forth below, both you and the Company mutually agree and thus are required to resolve claims either may have against the other by Arbitration instead of in a court of law.” Id. (emphasis added). A later provision provides that the Agreement “appl[ies] to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration,” including, “without limitation, disputes relating to the interpretation or application of this Agreement.” Id. at 2. The Agreement recognizes that a court would have to resolve any disputes “over the enforceability, revocability, or validity of the Agreement.” Id. at 2. The Agreement applies to “all disputes regarding the employment relationship.” Id. The Agreement states that it “is governed by the Federal Arbitration Act,” id. at 1, and requires that disputes that fall under its terms are “to be resolved only by an Arbitrator through final and binding arbitration and not by way of court or jury trial,” id. at 2.
According to the complaint, several years after beginning employment with Securitas, Bristol became pregnant, and in September 2019 she was diagnosed as having a high-risk pregnancy. See Comp. ¶¶ 27-28. After Bristol underwent a surgical procedure, her physicians advised her not to stand for long periods of time, and Bristol provided Securitas with a physician‘s note to that effect. See id. ¶¶ 29-31. Bristol alleges that Securitas could have placed her on restrictive desk duty to minimize the health risk associated with her employment, but it did not, and she was often required to stand at work. See id. ¶¶ 33-37. Bristol eventually gave birth prematurely to a child who has experienced significant health problems. See id. ¶¶ 38-56. Bristol alleges that Securitas‘s failure to provide her with a sitting post constituted discrimination on the basis of her disability and pregnancy. See id. ¶¶ 57-68.
II. LEGAL STANDARD
The FAA reflects “a strong federal policy favoring arbitration as an alternative means of dispute resolution.” Ross v. Am. Express Co., 547 F.3d 137, 142 (2d Cir. 2008) (quotation omitted). Section 2 of the FAA provides in pertinent part:
A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract
or transaction, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
The Second Circuit has held that a court considering a motion to compel arbitration of a dispute first must
determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it must then decide whether to stay the balance of the proceedings pending arbitration.
JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 169 (2d Cir. 2004) (quotation omitted). “[U]nder the FAA, ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.‘” Id. at 171 (quoting Moses H. Cone Mem‘l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)).
When a motion to compel arbitration is brought, a “court applies a standard similar to that applicable for a motion for summary judgment.” Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003). “If undisputed facts in the record require[] the issue of arbitrability to be resolved against the Plaintiff as a matter of law,” the motion to compel arbitration must be granted. Id. If, however, the party opposing arbitration can show “there is an issue of fact as to the making of the agreement for arbitration, then a trial is necessary.” Id. (citing
III. DISCUSSION
Bristol does not contest that factors two through four of the four-factor test require arbitration here. Instead, she argues that the Agreement is insufficiently definite in its terms to be enforceable. See Pl. Opp. at 3-7. She also argues that she did not knowingly and voluntarily waive her right to a jury trial. See id. at 7-12. We view each of these arguments as relating to the first factor of the four-factor test: mutual assent, and we thus turn to a discussion of that factor.
To determine whether there is an agreement to arbitrate, “we look to ‘state contract law principles.‘” Abdullayeva v. Attending Homecare Servs. LLC, 928 F.3d 218, 222 (2d Cir. 2019) (quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016)). Under New York law, contract formation requires a “manifestation of mutual assent [that is] sufficiently definite to assure that the parties are truly in agreement with respect to all material terms.” Starke v. SquareTrade, Inc., 913 F.3d 279, 289 (2d Cir. 2019) (citing Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109 (1981)).
Bristol argues that the Agreement is too indefinite for her to be bound by its terms because it “lacks essential, material terms which are necessary for any agreement to
Bristol focuses first on the Agreement‘s procedure for selecting an arbitrator, arguing that the Agreement provides merely that the parties “will attempt to negotiate a mutually agreeable arbitrator.” Id. While it is correct that the Agreement directs the parties to attempt to agree to an arbitrator, the Agreement provides details about the selection of an arbitrator if that attempt fails. The paragraph entitled “Selecting the Arbitrator” provides:
The Arbitrator shall be selected by mutual agreement of the Company and the Employee. Unless the Employee and Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If for any reason the parties cannot agree to an Arbitrator, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral Arbitrator. The court shall then appoint an Arbitrator, who shall act under this agreement with the same force and effect as if the parties had selected the Arbitrator by mutual agreement. The location of the arbitration proceeding shall be no more than 45 miles from the place where the Employee last worked for the Company, unless each party to the arbitration agrees otherwise in writing.
See Agreement at 3-4 (emphasis added).
While Bristol argues that this provision is indefinite because it is a “mere agreement to agree,” which is unenforceable, see Pl. Opp. at 5 (quoting Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 95 (2d Cir. 2007)), the Agreement does not require that the parties reach an agreement on an arbitrator in order for an arbitrator to be appointed. Instead, the Agreement specifically provides that a court shall appoint an arbitrator if no agreement is reached.3 Accordingly, we find no indefiniteness of this term that would preclude enforcement of the Agreement as to Bristol.
We similarly find no deficiencies in the other allegedly “essential” terms Bristol claims have been omitted or left indefinite by the Agreement. Although Bristol contends that arbitration agreements are unenforceable when they do not specify “the location of the arbitration, the arbitral forum, . . . the rules of arbitration (i.e., comprehensive, streamlined, class, consumer, etc.) which will apply, and the applicable choice of law,” see Pl. Opp. at 5, “[c]ourts within this circuit have routinely rejected the argument that the procedural rules governing arbitration constitute essential
The only case cited by Bristol to support her position is Dynamic Int‘l Airways, LLC. v. Air India Ltd., 2016 WL 3748477, at *6 (S.D.N.Y. July 8, 2016), see Pl. Opp. at 6-7, which involved two competing agreements to Arbitrate. The agreement that was the subject of the discussion cited by Bristol was in the form of a letter to the court that asked the court to “afford the parties sufficient time to agree upon the location, forum and terms of arbitration.” Dynamic Int‘l Airways, 2016 WL 3748477, at *2. The Court found that letter “contemplates that the parties would negotiate those terms in the future” and thus that the letter did not reflect that the parties intended to be bound. Id. at *6. In other words, the parties in Dynamic Int‘l Airways
made clear that they intended the procedural terms to be resolved before they had an agreement. Here, by contrast, nothing in the Agreement suggests that the parties had to resolve the procedural terms in order to have reached an agreement.4
In any event, we note that the Agreement does provide some specificity as to the terms Bristol identifies. The Agreement provides that the “location of the arbitration proceeding shall be no more than 45 miles from the place where the Employee last worked for the Company, unless each party to the arbitration agrees otherwise in writing.” Agreement at 3-4. While the Agreement does not cite a set of arbitration rules that will govern the proceeding, a section entitled “How Arbitration is Conducted” provides that “the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.” Id. at 4. Of course, because the Agreement provides for the manner in which the arbitrator will be selected, any procedural matter not specified will be resolved by the arbitrator.
Bristol‘s only other argument is that she did not “knowingly and voluntarily waive[]” her right to a jury trial. Pl. Opp. at 7-8. Citing Morgan Guar. Tr. Co. of N.Y. v. Crane, 36 F. Supp. 2d 602 (S.D.N.Y. 1999), she asks the Court to analyze this question by applying the four-factor test applied to instances where a
Id. at 604. But Morgan did not involve an arbitration agreement. The same is true of the other cases Bristol cites that have applied the test articulated in Morgan. Instead, these cases involve commercial or consumer contracts that contained a clause waiving the right to a jury trial. See, e.g., Sherrod v. Time Warner Cable, Inc., 2014 WL 6603879, at *1 (S.D.N.Y. Nov. 21, 2014) (contract for telephone services); RREF RB-AL SLDL, LLC v. Saxon Land Dev., LLC, 2012 WL 1366720, at *1 (M.D. Ala. Apr. 19, 2012) (promissory note). By contrast, the waiver of a jury trial here is simply part-and-parcel of the agreement to arbitrate. In light of the applicability of the FAA to this case and the abundant case law on the standards for enforcing arbitration agreements, we do not see a warrant for applying a test for analyzing jury waivers to arbitration agreements. In other words, the four-factor test cited in Morgan is properly applied to a standalone jury waiver clause, not to an otherwise valid arbitration agreement.
“[T]he FAA mandate[s] a stay of proceedings when all of the claims in an action have been referred to arbitration and a stay requested.” Katz v. Cellco P‘ship, 794 F.3d 341, 347 (2d Cir. 2015). Here, all of Bristol‘s claims must be arbitrated, and Securitas has requested a stay of this proceeding pending the arbitration. See Def. Mem. at 11. Accordingly, this case will be stayed pending the outcome of the arbitration proceeding.5
IV. CONCLUSION
For the foregoing reasons, defendant‘s motion to compel arbitration (Docket # 8) is granted. This action is stayed pending the conclusion of the arbitration. The parties are directed to report to the Court within 14 days of the arbitration‘s conclusion.
SO ORDERED.
Dated: April 11, 2022
New York, New York
GABRIEL W. GORENSTEIN
United States Magistrate Judge
Notes
If in the agreement provision be made for a method of naming or appointing an arbitrator . . . such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein . . . .