Case Information
‐ ‐ cv Apparel, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 stated term United States Court Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City New York, th day December, two thousand seventeen. PRESENT: BARRINGTON D. PARKER,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges .
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GLENN D E BELLO,
Plaintiff ‐ Appellant ‐ ‐ cv
VOLUMECOCOMO APPAREL, INC.,
VOLUMECOCOMO APPAREL OF NEW YORK,
INC., YONG AHN, AKA ANDREW AHN, HYOSIK
CHANG, AKA CHRIS CHANG,
Defendants Appellees
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FOR PLAINTIFF APPELLANT: VALDI LICUL, Vladeck, Raskin & Clark, P.C., York, New York. *2 FOR DEFENDANTS ‐ APPELLEES: Andreas E. Theodosiou, Braverman
Greenspun, P.C., New York, New York. Appeal from United States District Court for the Southern District of York (Buchwald, J.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED judgment of district AFFIRMED.
Plaintiff appellant Glenn DeBello appeals January 26, judgment court, entered pursuant January 25, memorandum and order, dismissing employment discrimination claims alleging violations Title VII Civil Rights Act 1964, U.S.C. § 2000e et seq. and local law, doctrine non conveniens Dismissal on contractual designating Superior Court Angeles, West Judicial District exclusive claims. principally argues violates preference, embodied provision, litigating local plaintiff. We assume parties ʹ familiarity underlying facts, procedural history, issues appeal. draw following facts parties ʹ pleadings affidavits, Bloomberg LP (2d Cir. 2014), view them light
most favorable DeBello, Phillips Audio Active Ltd. (2d Cir. October defendant appellee Apparel, VolumeCocomo ), clothing manufacturer offices New York and Los Angeles, hired DeBello, an experienced sales professional, as its Vice President of Product Development and Private Brands initial term three years an annual salary of $360,000. Defendant ‐ appellee VolumeCocomo Apparel New York, Inc., wholly ‐ owned subsidiary VolumeCocomo and defendants ‐ appellees Yong Ahn and Hyosik Chang executives both companies. VolumeCocomo ʹ s headquarters Angeles house travel, accounting, payroll, and human resources departments, as well as teams responsible design, production, and price setting. To carry out his responsibilities, DeBello regularly communicated VolumeCocomo ʹ s employees and once traveled California.
DeBello alleged VolumeCocomo employees, including DeBello ʹ s supervisor Mitchell Rudnick, repeatedly harassed and humiliated DeBello because they believed he too feminine and because what they perceived his sexual orientation. harassment took place York occurred almost daily. In February DeBello complained about his treatment Rudnick, who ignored dismissed concerns. March VolumeCocomo reduced annual salary one third, April fired without explanation. agreement (the Agreement ) includes choice
law provides follows: Any dispute arising relationship between parties to this Agreement shall governed and construed under and according to California law, and any action or arbitration based thereon shall venued Superior Court of Angeles, West Judicial District. ʺ App. ¶ 4.3. The Agreement also contains a provision confirming parties have each received independent legal advice attorneys of their own choosing respect to terms of this Agreement attorneys had opportunity to review Agreement make changes. Id. ¶ 4.9. October 2013, filed a complaint U.S.
Equal Employment Opportunity Commission, issued notice of right to sue October 2015. On January 13, 2016, brought this action against defendants alleging discrimination, hostile work environment, retaliation violation of VII, York State Human Rights Law, N.Y. Exec. Law § et seq. N.Y.C. Administrative Code § et seq. well as breach contract under common law. On April defendants moved dismiss under doctrine non conveniens Agreement forum clause. The granted motion dismiss. This appeal followed. appropriate way enforce pointing foreign through doctrine non conveniens Atl. Marine Const. Co. Dist. Court W. Dist. Tex. S. Ct. (2013). Although decided standard review dismissal suit non *5 conveniens on forum selection Martinez , 740 F.3d at we need address that issue here, because we conclude that the dismissal was proper even under de novo review.
A forum selection clause is presumptively enforceable if it was reasonably communicated party resisting enforcement, ʺ has ʺ mandatory force, ʺ ʺ covers parties involved in dispute. ʺ Phillips , F.3d at 383. does dispute that forum selection clause at issue presumptively
enforceable.
A party can rebut presumption by demonstrating enforcement would be unreasonable or unjust M/S Bremen Zapata Off Shore Co. (1972). at (citation omitted). decline enforce forum if: ʺʹ (1) incorporation result fraud or overreaching; (2) law be applied selected fundamentally unfair; (3) enforcement contravenes strong public policy ʹ which suit brought; ʹ or (4) trial selected will so difficult inconvenient plaintiff effectively will deprived day court. ʹʺ Id. (quoting Phillips at Under third Bremen factor, only one relies, decide whether enforcement contravenes public policy looking federal cases statutes . . because such materials constitute declarations justifies invalidating clause. Id. district court rejected DeBello argument that enforcement forum selection clause contravenes public policy, concluding that DeBello failed demonstrate that could not adequately adjudicate his claims or protect civil rights. contends that he required make either showing. agree a forum selection clause may deemed
invalid solely conflict a strong public policy forum state. Under plain language, four factors offer independent grounds for invalidating a forum selection clause. See at 228; see also Bremen at A contractual choice should held unenforceable if enforcement would contravene strong public suit brought, whether declared by statute or by judicial decision. challenging plaintiff argue contractual inadequate, but he or she required do so. argues issue contravenes policy, reflected Title VII provision, for litigating employment local affected discriminatory acts. provides judicial (1) unlawful employment practice took place, (2) records relevant practice maintained administered, (3) plaintiff would worked but unlawful *7 employment practice. 42 U.S.C. § 2000e 5(f)(3). [1] But if the employer is located in any those districts, then venue proper in the judicial district the employer principal office. Id. provision designed to ʺ prevent ʹ national companies distant offices ʹ from seeking to discourage ʹ forc[ing] plaintiffs to litigate far their homes. ʹʺ , 740 F.3d 228–29 (alteration in original) (quoting Passantino v. Johnson & Johnson Consumer Prods., Inc. F.3d 505 (9th Cir. 2000)); see also Stebbins State Farm Mut. Auto. Ins. Co. (D.C. Cir. 1969) [T]he intent Congress to limit to judicial district concerned the alleged seems clear. have declined ʺ adopt per se rule ʺ giving contractual clauses dispositive effect civil rights laws are concerned, noting federal favoring enforcement civil rights laws so
important advancement modern society. Red Bull Assocs. Best Western Int l, (2d Cir. Although find no circuit decisions squarely addressing this issue, several district courts have held clauses *8 unenforceable they conflict with Title VII ʹ s special provision. See, e.g., Smith v. Kyphon, Inc. , 578 F. Supp. 2d 954, 961 (M.D. Tenn. 2008); Thomas v. Rehab. Servs. Columbus, Inc. , 45 F. Supp. 2d 1381 (M.D. Ga.
We conclude, however, in circumstances here, ʹ s policy argument does not overcome presumption a valid selection clause [should be] given controlling weight all but most exceptional cases. ʺ Atl. Marine S. Ct. at (alteration original) (quoting Stewart Org., Inc. Ricoh Corp. , (1988) (Kennedy, J., concurring)). This an exceptional case. upheld selection designating England exclusive for plaintiff ʹ s Americans Disabilities Act, despite Act ʹ incorporation Title VII ʹ special provision Act ʹ s identification federal interest combatting discrimination based on disability. at 229. persuaded here freely bargained unenforceable solely conflict preference reflected Title VII provision. Although deprived his choice venue, he retains his right litigate his claims. Cf. Desiderio Nat l Ass n Sec. Dealers, (2d Cir. 1999) (compulsory arbitration clauses enforceable claims). Moreover, DeBello, an experienced professional who hired executive position relatively high salary, willingly entered into agreement knowing it contained he did so after he had *9 opportunity consult with attorney make changes Agreement. VolumeCocomo headquartered Angeles regularly interacted with ʹ employees.
We emphasize clauses do not have dispositive effect civil rights laws concerned, Red Bull we do foreclose possibility conflict provision, combined other factors, render unenforceable. We hold simply has made sufficient showing here. considered remaining arguments find them
without merit. Accordingly, AFFIRM judgment court.
FOR THE COURT: Catherine O Hagan Wolfe, Clerk
[1] provision provides in relevant part: Such an action may brought in any judicial district in State in which unlawful employment practice alleged have been committed, judicial district in which employment records relevant such practice maintained administered, judicial district which aggrieved person would worked but alleged unlawful practice, but if respondent found within any such district, such action brought within judicial respondent has principal office. U.S.C. § 2000e 5(f)(3).