Alexander v. Possible Prods., Inc.

336 F.Supp.3d 187

Ashlynn ALEXANDER, Plaintiff,

v.POSSIBLE PRODUCTIONS, INC., et al., Defendants.

17 Civ. 5532 (DAB)

United States District Court, S.D. New York.

Signed October 4, 2018

Tana Marie Forrester, Troy L. Kessler, Shulman Kessler, LLP, Melville, NY, for Plaintiff.

Mary Jane Eaton, Alexander Leonard Cheney, Andrew Spital, Willkie Farr & Gallagher LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER

DEBORAH A. BATTS, United States District Judge.

On July 20, 2017, Plaintiff Ashlynn Alexander filed a Complaint against Defendants Possible Productions Inc. ("Possible"), Showtime Pictures Development Company ("Showtime"), and Travis Rehwaldt, asserting claims for sex discrimination under the New York City Human Rights Law ("NYCHRL") (Count 3) and for retaliation under Title VII (Count 1), the New York State Human Rights Law ("NYSHRL") (Count 2), and NYCHRL (Count 4), stemming from her work as a body double on the television show The Affair. Defendants filed the instant Motion to compel the arbitration of Plaintiff's claims or, in the alternative, to dismiss them. For the following reasons, the Court DENIES Defendants' Motion to Compel Arbitration and DENIES their Motion to Dismiss.

I. BACKGROUND

A. Allegations Relevant to Employment Discrimination

Plaintiff alleges that she was employed by Showtime and Possible from October 2013 to September 2015 as a body double for the character of Alison on the television show The Affair. (Compl. ¶ 36.) Rehwaldt was an assistant director on the show and was allegedly Plaintiff's supervisor. (Id. ¶¶ 37-38.)

At the end of filming each day, all cast and crew members received a call sheet, created by Rehwaldt, which listed each person's role and a detailed schedule for the next day's work. (Id. ¶ 39-40.) Generally, the call sheets listed Plaintiff's role as "Alison Body Double." (Id. ¶ 42.) Plaintiff alleges that on September 17, 2015, she received a call sheet (the "Call Sheet") from Rehwaldt describing her role as, "Alison Sexytime Double." (Id. ¶¶ 44-45.) Defendants have attached the purported Call Sheet to their Motion to Dismiss. (Declaration of Mary Eaton ("Eaton Decl.") Ex. F.) That document lists Plaintiff's name under a column entitled cast with her character listed as "Alison Double" in the column next to her name. Lower down on the same sheet in a section entitled "Instructions," the Call Sheet says: "MAKEUP/HAIR: Alison sexy time Double. Sc. B: Noah's Jacket." (Id. )

Plaintiff alleges that she felt humiliated after receiving the Call Sheet because she thought it reduced her to a sexual object. (Compl. ¶¶ 45-47.) The day after she received the Call Sheet, she met with Rehwaldt to complain of what she felt was sexual harassment. (Id. ¶ 48.) Plaintiff told him that he had sexually harassed her, that his actions humiliated her in front of her coworkers, and that she was concerned she would not be paid properly for her work the day before. (Id. ¶ 49.) Rehwaldt allegedly admitted that the language he used on the Call Sheet was inappropriate but also told her that she could be replaced easily. (Id. ¶ 50.) Plaintiff did not complain further because she was allegedly afraid that she would lose her job. (Id. ¶ 52.)

On September 24, 2015, Plaintiff allegedly "received notice that she was no longer needed" on set for The Affair. (Id. ¶ 53.) When she asked for an explanation, she was allegedly told that she did not have a good hair match with the actress playing Ashley and that the show was looking for someone else to fill her role. (Id. ¶ 54.)¹ Plaintiff thought that this explanation was untrue because she had been wearing a wig for the duration of her work in the role without issue and because the actress hired to replace her in the role also allegedly wears a wig. (Id. ¶¶ 55-56.)

B. Relevant Contractual Provisions

Showtime allegedly hired Plaintiff pursuant to a Performer's Freelance Television Contract (the "Contract"). (Eaton Decl. Ex. A.) The Contract incorporates certain provisions of the Screen Actors Guild Television Agreement (Eaton Decl. Ex. B (the "CBA") ). The Contract contains an Arbitration Clause which states:

Should any dispute or controversy arise between the parties hereto with reference to this contract, or the employment herein provided for, such dispute or controversy shall be settled and determined by conciliation and arbitration in accordance with and to the extent provided in the conciliation and arbitration provisions of the [CBA], and such provisions are hereby referred to and by such reference incorporated herein an made a part of this agreement with the same effect as though the same were set forth herein in detail.

(Contract ¶ 13.)

Section 50 of the CBA is entitled "Arbitration." (CBA § 50.) It states: "Disputes involving or relating to the right of termination of a performer's individual employment contract are not arbitrable, except ... with respect to ... body doubles." (CBA § 50(b).)

The CBA also sets forward a "Policy of Non-Discrimination and Diversity." (CBA § 59.) It indicates:

The parties hereto reaffirm their commitment to: a) a policy of non-discrimination an fair employment in connection with the engagement and treatment of performers on the basis of sex, race, color, creed, national origin, age, marital status, disability or sexual orientation, in accordance with applicable state and federal law; and b) to continue the active promotion of diversity, as set forth herein, in all categories of employment covered by this Agreement.

(CBA § 59(a)(1).) The section also contains an arbitration provision, stating that with one exception not applicable in this case, "the matters covered in this Section are not subject to the provisions of Section 50 herein." (CBA § 59(d).)

II. DISCUSSION

A. Motion to Compel Arbitration²

1. Legal Standard

Section 4 of the Federal Arbitration Act "requires courts to compel arbitration ‘in accordance with the terms of the agreement’ upon the motion of either party to the agreement." AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 344, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (quoting 9 U.S.C. § 4.) "To determine whether the parties intended to submit a given matter to arbitration, the general rule is that courts ‘should apply ordinary state-law principles that govern the formation of contracts.’ " T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329, 344 (2d Cir. 2010) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) ).

Although agreements to arbitrate a dispute are generally construed broadly, see Application of Whitehaven S.F., LLC v. Spangler, 45 F.Supp.3d 333, 343 (S.D.N.Y. 2014), aff'd, 633 F. App'x 544 (2d Cir. 2015), "[c]ollectively bargained agreements to arbitrate statutory discrimination claims must be ‘clear and unmistakable.’ " Lawrence v. Sol G. Atlas Realty Co., 841 F.3d 81, 82 (2d Cir. 2016) (quoting Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 80–81, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) ). The Second Circuit has described this standard as "exacting." Id. at 84. "Arbitration clauses that are ‘very general,’ mandating, for example, arbitration of all ‘matters under dispute’ are insufficient, because such language ‘could be understood to mean matters in dispute under the contract’– and not necessarily statutory claims." Rasmy v. Marriott Int'l, Inc., No. 16-CV-04865 (AJN), 2017 WL 773604, at *10 (S.D.N.Y. Feb. 24, 2017) (quoting Wright, 525 U.S. at 80-82, 119 S.Ct. 391 ). "[E]xplicit incorporation of statutory antidiscrimination requirements" is necessary to meet the exacting standard applicable when a party seeks to compel arbitration in cases involving CBAs and discrimination claims. Wright, 525 U.S. at 80, 119 S.Ct. 391.

In this case, a straightforward reading of the agreements in question requires the Court to DENY Defendant's Motion to Compel Arbitration. The Court begins with the Contract's arbitration clause (Contract ¶ 13), which appears to contain a broad statement in favor of arbitration. However, the clause incorporates the CBA's arbitration provisions. The CBA too appears to favor arbitration because it states that disputes involving the termination of employment contracts of body doubles (like Plaintiff) are arbitrable. (CBA § 50(b).)

The non-discrimination provisions of the CBA, however, clearly exempt discrimination claims from the CBA's arbitration provisions. (See CBA § 59(d) ("the matters in this Section are not subject to the provisions of Section 50").) Thus, Plaintiff cannot be compelled to arbitrate her discrimination claims. There is not a "clear and unmistakable" statement that discrimination claims must be arbitrated.

Defendants attempt to argue that Section 59, the non-discrimination provisions, do not cover an individual employee's rights with respect to violation of employment laws. In making this argument, they confuse the applicable legal standard. Even without the exemption contained in Section 59, Plaintiff could not be compelled to arbitrate her claims. The arbitration clause in Section 50 is broad, saying, in effect, disputes involving body doubles are arbitrable. (See CBA § 50(b).) However, to compel arbitration of discrimination disputes under a CBA, an arbitration clause must specifically name anti-discrimination statutes. See Wright, 525 U.S. at 80, 119 S.Ct. 391 ; Cox v. Perfect Bldg. Maint. Corp., No. 16-CV-7474 (VEC), 2017 WL 3049547, at *2 (S.D.N.Y. July 18, 2017) (example of clause referencing specific statutes where court compelled arbitration); Fernandez v. Windmill Distrib. Co., 159 F.Supp.3d 351, 361 (S.D.N.Y. 2016). Accordingly, Defendants' Motion to Compel Arbitration is DENIED.

B. Rule 12(b)(6) Motion to Dismiss

1. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

For a complaint to survive a motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the plaintiff must have pleaded "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550...