Jose Ivan VILCHES; Francis X. Sheehan, Jr.; Jack Costeira, Individually, and on Behalf of All Others Similarly Situated, Appellants v. THE TRAVELERS COMPANIES, INC.; Travelers of New Jersey; Travelers Auto Ins. Co. of New Jersey; First Trenton Indemnity Co.
No. 10-2888
United States Court of Appeals, Third Circuit
Argued Jan. 11, 2011. Opinion Filed: Feb. 9, 2011.
411 Fed. Appx. 487
The first comparator identified by Moussa, Michael Winger, was accused of discussing his sexual experiences in the office and once placing his hands on a female coworker‘s hips and pulling her towards him. After an investigation that included eleven witness interviews, DPW concluded that the allegations were unsubstantiated, and the complaint was dismissed. The second comparator, Curt Anderson, was found to have been engaged in a consensual sexual relationship with a subordinate employee. Although he was suspended during the investigation, his suspension was limited to thirty days after he brought a union grievance. He was ultimately demoted but not terminated.
The District Court correctly concluded that neither comparator was “similarly situated,” such that the difference in the discipline that they received could support a jury‘s finding of pretext. As it observed, the allegations against Winger were substantially less serious than the allegations against Moussa, and a thorough investigation concluded that they were unfoundеd. And while Anderson‘s relationship with a subordinate may have been improper, there is no suggestion that it was involuntary, and certainly no suggestion that it involved the application of physical force. Insofar as DPW‘s investigation concluded that Moussa had repeatedly approached women and forcibly attempted to kiss them against their will, the Court correctly held that the comparators were insufficiently similar to permit a jury to conclude that Defendants’ proffered reason for terminating him was pretextual.3
IV. Conclusion
We will affirm the judgment of the District Court.
Jose Ivan VILCHES; Francis X. Sheehan, Jr.; Jack Costeira, Individually, and on Behalf of All Others Similarly Situated, Appellants
v.
THE TRAVELERS COMPANIES, INC.; Travelers of New Jersey; Travelers Auto Ins. Co. of New Jersey; First Trenton Indemnity Co.
No. 10-2888.
United States Court of Appeals, Third Circuit.
Argued Jan. 11, 2011.
Opinion Filed: Feb. 9, 2011.
Michael T. Grosso, Esq., William P. McLane, Esq., Andrew J. Voss, Esq., [Argued], Littler Mendelson, Newark, NJ, for Appellees.
OPINION OF THE COURT
RENDELL, Circuit Judge.
This appeal calls upon us to decide whether the District Court properly granted summary judgment to Appellee The Travelers Companies, Inc. (“Travelers“), in concluding that Appellants Vilches, Sheehan, and Costeira (collectively, “Vilches“) assented to the insertion of a class arbitration waiver into an existing arbitration policy, and that the waiver was not unconscionable. The District Court ordered the parties into arbitration to individually resolve the claims brought by Vilches under the Fair Labor Standards Act of 1938,
Factual & Procedural Background
We briefly summarize the allegations pertinent to our decision. Appellants Vilches filed a class and collective action in the Superior Court of New Jersey to recover unpaid wages and overtime allegedly withheld in violаtion of the FLSA and the NJWHL, contending that Travelers consistently required its insurance appraisers to work beyond 40 hours per week but failed to properly compensate the appraisers for the additional labor. Travelers removed the matter to the United States District Court for the District of New Jersey, and filed a Motion for Summary Judgment seeking the dismissal of the complaint and an order compelling Vilches to arbitrate their individual wage and hour claims.
Upon сommencing employment with Travelers, Vilches agreed to an employment provision making arbitration “the required, and exclusive, forum for the resolution of all employment disputes that may arise” pursuant to an enumerated list of federal statutes, and under “any other federal, state or local statute, regulation or common law doctrine, regarding employment discrimination, conditions of employment or termination of employment.”1 The agreement did not expressly reference class or collective arbitration or any waiver of the same. The agreement reserved to Travelers the right to alter or amend the arbitration policy at its discretion with appropriate notice to employees.
In April 2005, Travelers electronically published a revised Arbitration Policy. In addition to restating the expansive scope of the Policy, the update also included an express statement prohibiting arbitration through class or collective action:
The Policy makes arbitration the required and exclusive forum for the resolution of all employment-related and compensation-related disputes based on legally protected rights (i.e., statutory, contractual or common law rights) that may arise between an employee or former employee and the Company.... [T]here will be no right or authority for any dispute to be brought, heard or arbitrаted under this Policy as a class or collective action, private attorney
general, or in a representative capacity on behalf of any person.
(App‘x at 88) (emphasis added). Travelers communicated the revised Policy to Vilches in several electronic communications.2
Before the District Court, Vilches initially alleged that they never agreed to arbitrate any claims against Travelers; their position changed, however, during the course of proceedings and they ultimately conceded that all employment disputes with Travelers must be arbitrated pursuant to the arbitration agreement they signed at commencement of employment. They nevertheless insisted that the revised Arbitration Policy introduced by Travelers in April 2005 prohibiting class arbitration, which Travelers attempted to enforce, did not bind them because they never assented to its terms. Vilches further argued that, even assuming that the updated Policy did bind them, the revision was unconscionable and unenforceable.
Notwithstanding the fact that the parties agreed to arbitrate all employment disputes, as we discuss below, the District Court addressed the question of whether Vilches agreed to waive the right to proceed by way of class arbitration. In an oral decision, the District Court granted Travelers’ motion for summary judgment, finding that the various forms of correspondence from Travelers provided sufficiеnt notice to Vilches of the revised Policy, and that their electronic assent and continued employment constituted agreement to the update. As such, the Court held that Vilches waived the ability to proceed in a representative capacity through class arbitration. The Court‘s opinion only briefly touched upon the unconscionability claim, stating that “there was no adhesion that was part of that process.” (App‘x at 23.) The Court ordered the parties to individually arbitrate the employment disputes, and this appeal followed.
Jurisdiction and Standard of Review
The District Court exercised jurisdiction over Vilches‘s complaint pursuant to
“We exercise plenary review over questions regarding the validity and enforceability of an agreement to arbitrate.” Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177 (3d Cir.2010). A court “decides a motion to compel arbitration under the same standard it applies to a motion for summary judgment,” Kaneff v. Del. Title Loans, Inc., 587 F.3d 616, 620 (3d Cir.2009) (citation omitted), because the “order compelling arbitration is in effect a summary disposition of the issue of whether or not there had been a meeting of the minds on the agreement to arbitrate,” Century Indem. Co. v. Certain Underwriters at Lloyd‘s, London, 584 F.3d 513, 528 (3d Cir.2009) (citation omitted). Accordingly, “[t]he party opposing arbitration is given the benefit of all reasonable doubts and inferences that may arise.” Kaneff, 587 F.3d at 620. As with the standard for summary judgment, “[o]nly when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement.” Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir.1980).
The parties agree that any and all disputes arising out of the employment relationship—including the claims asserted here—are to be resolved in binding arbitration. Accordingly, the role of the Court is limited to deciding whether the revised Arbitration Policy introduced in April 2005—and the class arbitration waiver included within that revision—governed this dispute. We сonclude that the District Court should not have decided the issue presented as to the class action waiver, and, as we explain below, we will refer the resolution of this question to arbitration in accordance with governing jurisprudence. The District Court should have, however, ruled on the issue of unconscionability and we will address it.
We have repeatedly stated that courts play a limited role when a litigant moves to compel arbitration. Specifically, “whеther the parties have submitted a particular dispute to arbitration, i.e., the question of arbitrability, is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.” Puleo, 605 F.3d at 178 (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)). “[A] question of arbitrability arises only in two circumstances—first, when there is a threshold dispute over whether the parties have a valid arbitration agreement at all, and, second, when the parties are in dispute as to whether a concededly binding arbitration clause applies to a certain type of controversy.” Id. (quoting Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003)). In contrast, the Supreme Court has distinguished “questions of arbitrability with disputes over arbitration procedure, which do not bear upon the validity of an agreement to arbitrate.” Id. at 179. We noted in Puleo that “procedural questions“—such as waiver or delay—“which grow out of the dispute and bear on its final disposition are presumptively not for the judge.” Id.
This matter satisfies neither of the Puleo arbitrability circumstances. As stated, neither party questions “whether the parties have a valid arbitration agreement at all.” Id.; (see also Appellants’ Br. at 15 (“Plaintiffs do not challenge the validity of the arbitration agreements they entered into when they first began their employment“); Appellees’ Br. at 6 (“At the outset of employment, Appellants agreed to the Travelers Employment Arbitration Policy“)). The original arbitration provision to which Vilches admittedly agreed provided that “the required, and exclusive, forum for the resolution of all employment disputes” would be arbitration. (App‘x at 79 (emphasis added).) Here, the issue of whether an employee is bound by a disputed amendment to existing employment provisions falls within the scope of this expansive agreement to arbitrate. Indeed, the language makes clear that the “concededly binding arbitration clause applies” to the particular employment claims at stake here, and the parties do not advance a cognizable argument to suggest otherwise. Puleo, 605 F.3d at 178. According-
While the parties framed their arguments so as to invite the Court‘s attention to the class action waiver issue—namely, whether the revised Arbitration Policy expressly prohibiting class arbitration governs the relationship between Travelers and Vilches—we conclude that “the relevant question here is what kind of arbitration proceeding the parties agreed to.” Bazzle, 539 U.S. at 452 (emphasis in original). As stated, the addition of the disputed class arbitration waiver did not disturb the parties’ agreement to refer “all employment disputes” to arbitration, and, thus, “does not bear upon the validity of an agreement to arbitrate.” Puleo, 605 F.3d at 179. Assuming binding arbitration of all employment disputes, the contested waiver provision solely affects the type of procedural arbitration mechanism applicable to this dispute. “[T]he Supreme Court has made clear that questions of contract interpretation aimed at discerning whether a particular prоcedural mechanism is authorized by a given arbitration agreement are matters for the arbitrator to decide.” Id. (emphasis in original). Where contractual silence is implicated, “the arbitrator and not a court
should decide whether a contract was indeed silent” on the issue of class arbitration, “and whether a contract with an arbitration clause forbids class arbitration.” Stolt-Nielsen S.A. v. AnimalFeeds Int‘l Corp., — U.S. —, 130 S.Ct. 1758, 1771-72 (2010).
The Policy originally in force made no mention of class action or class arbitration, and was entirely silent on whether the parties had a right to proceed through class or collective arbitration.3 In contrast, the amended Policy explicitly precludes class arbitration. Accordingly, we must “give effect to the contractual rights and expectations of the parties,” and refer the questions of whether class arbitration was agreed upon to the arbitrator. Stolt-Nielsen, 130 S.Ct. at 1774.
Although we offer no forecast as to the arbitrator‘s potеntial resolution of these questions, assuming arguendo that the arbitrator finds the class action waiver binding, we will address Vilches’ alternative argument that the addition of the class action waiver was unconscionable for the sake of judicial efficiency, and because it does concern “arbitrability.” See Puleo, 605 F.3d at 179.
The contractual doctrine of unconscionability “involves both ‘procedural’ and ‘substantive’ elements,” and “requires a two-fold determination: that the contractual terms are unreasonably favorable to the drafter and that there is no meaningful choice on the part of the other party regarding acceptance of the provisions.” Parilla v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269, 277 (3d Cir.2004). “In addressing a claim that an arbitration clause is unconscionable, we apply the ordinary state law principles... of the involved state or territory.” Nino v. Jewelry Exch., Inc., 609 F.3d 191, 200 (3d Cir.2010). New Jersey case law provides that “adhesion contracts invariably evidence some characteristics of procedural unconscionability,” and “a careful fact-sensitive examination into substantive unconscionability is generally required.” Moore v. Woman to Woman Obstetrics & Gynecology, LLC, 416 N.J.Super. 50, 3 A.3d 535, 540 (2010) (internal quotations and citation omitted).
As we recently observed, the New Jersey Supreme Court has stated that “[t]he public interest at stake in... consumers[‘] [аbility to effectively] pursue their statutory rights under consumer protection laws” constituted the “most important” reason for holding a [] class-arbitration waiver unconscionable.” Homa v. Amer. Ex. Co., 663 F.3d 225, 230 (3d Cir.2008) (quoting Muhammad v. County Bank of Rehoboth Beach, De., 189 N.J. 1, 912 A.2d 88, 99-101 (2006)). Notably, however, “class action waiver becomes problematic when the waiver is found in a consumer contract of adhesion in a setting in which disputes between the contract parties predictably involve small amounts of damages.” Id. (citing Muhammad, 912 A.2d at 99) (emphasis added). Where a class action waiver is not part of a consumer contract of adhesion, New Jersey courts perceive nothing unconscionable or unfairly burdensome about an arbitration agreement. See Delta Fund. Corp. v. Harris, 189 N.J. 28, 912 A.2d 104, 115 (2006) (“[U]nder New Jersey law, the class-arbitration waiver in [an] arbitration agreement is not unconscionable per se.“). Indeed, “the affirmative policy of [New Jersey], both legislative and judicial, favors arbitration as a mechanism of resolving disputes.” Martindale v. Sandvik, Inc., 173 N.J. 76, 800 A.2d 872, 881 (2002).
Here, the class arbitrаtion waiver does not concern a consumer contract with predictably small damages, nor is the arbitration agreement in whole unconscionably adhesive, as “[m]ere inequality in bargaining power... is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context.” Id. at 880 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991)). “[T]he Supreme Court [in Gilmer] obviously contemplated avoidance of the arbitration clause only upon circumstances more egregious than the ordinary economic pressure faced by every employee who needs the job.” Id. (citation omitted) (alterations in original). Echoing virtually every court to consider “the adhesive effect of arbitration provisions in []
Moreover, “procedural unconscionability involves a ‘variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract fоrmation process.‘” Estate of Ruszala v. Brookdale Living Comms., Inc., 415 N.J.Super. 272, 1 A.3d 806, 819 (2010) (quoting Muhammad, 912 A.2d at 96). Vilches failed to establish these inadequacies in this instance. Vilches were always aware of the existence of an arbitration policy that could be amended, they were sophisticated employees with significant corporate experience, and they failed to demonstrate that Travelers utilized unduly complex contract terms or engaged in oppressive bargaining tactics when introducing the revised Policy. Furthermore, Travelers provided several notices of the class arbitration amendment and requested acknowledgment and agreement to the revision on an annual basis. Moreover, Vilches presented no evidence that they could not have negotiated the terms of the arbitration agreement or found another job, as is their burden.
Accordingly, assuming that the arbitrator finds the revised Policy binding, we do not find the timing and format of the class action waiver either рrocedurally or substantively unconscionable.
Conclusion
For the foregoing reasons, we will vacate the District Court order, and refer the matter to arbitration to resolve whether the parties can proceed as a class in arbitration pursuant to the relevant arbitration provisions.
Joseph ARUANNO, Appellant
v.
John S. CORZINE; Richard J. Codey; John O. Bennett; Donald T. DiFrancesco; James McGreevey; New Jersey Department of Parole; Mario Papparozzi; William McCargo.
No. 10-3949.
United States Court of Appeals, Third Circuit.
Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 Dec. 29, 2010.
Filed Jan. 13, 2011.