Andresen v. Intepros Fed., Inc.

240 F.Supp.3d 143

Jensine ANDRESEN, Plaintiff,

v.INTEPROS FEDERAL, INC., Defendant.

Civil Action No. 15–446 (EGS)

United States District Court, District of Columbia.

Signed February 27, 2017

Ari Micha Wilkenfeld, Wilkenfeld Herendeen & Atkinson, Washington, DC, for Plaintiff.

Hans P. Riede, Odin, Feldman & Pittleman, P.C., Reston, VA, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

Dr. Jensine Andresen brings this lawsuit against defendant IntePros Federal, Inc. Dr. Andresen asserts various federal and District of Columbia statutory claims, including claims under the Age Discrimination in Employment Act of 1967; Title VII of the Civil Rights Act of 1964; the Fair Labor Standards Act; the District of Columbia Human Rights Act; and the District of Columbia Wage Payment and Collection Law. Pending before the Court is IntePros' renewed motion to compel arbitration and to stay this litigation pending arbitration. Upon consideration of the motion, the response and reply thereto, the parties' supplemental filings, the applicable law, and the entire record, the Court GRANTS IntePros' renewed motion to compel arbitration and STAYS this action during the pendency of the arbitration. IntePros will be responsible for arbitral fees and expenses in the manner specified herein.

I. Background

On June 13, 2013, Dr. Andresen entered into a written contract with IntePros entitled "Sub Contractor Agreement IT Consulting" ("the Agreement"), wherein Dr. Andresen contracted with IntePros to perform work on a government contract with TRICARE Management Activity, which has since become the Defense Health Agency ("DHA"). Am. Compl., ECF No. 10–1 ¶ 13; Sub Contractor Agreement IT Consulting ("Agreement"), Ex. 2, ECF No. 12–1. The Agreement contains an arbitration clause that reads in full:

Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligation [sic] hereunder of the parties hereto shall be settled and determined by arbitration before the Commercial Panel of the American Arbitration Association in accordance with the Commercial Arbitration Rules. The arbitrators shall have the power to award specific performance or injunctive relief and reasonable attorneys' fees and expenses to any party in any such arbitration. However, in any arbitration proceeding arising under this Agreement, the arbitrators shall not have the power to change, modify or alter any express condition, term or provision hereof, and to that extent the scope of their authority is limited. The arbitration award shall be final and binding upon the parties and judgment thereon may be entered in any court having jurisdiction thereof.

Agreement, Provision 9(f), Ex. 2, ECF No. 12–1 at 4. Dr. Andresen worked for IntePros pursuant to the Agreement as an "Information Technology Analyst I" at DHA until she was terminated on June 16, 2014. Am. Compl., ECF No. 10–1 ¶¶ 15, 174.

On March 26, 2015, Dr. Andresen filed a complaint against IntePros in this Court alleging age discrimination, sex discrimination, unlawful retaliation, and failure to pay overtime compensation. Compl., ECF No. 1 ¶¶ 204–31. IntePros subsequently filed a motion to compel arbitration. Def.'s Mot. to Compel Arbitration, ECF No. 5. Prior to the Court resolving that motion, on November 25, 2015, Dr. Andresen filed a motion to amend the complaint, seeking to add two additional claims of unlawful termination. See Mot. to Amend Compl., ECF No. 10. IntePros opposed the motion to amend the complaint and filed a renewed motion to compel arbitration. See Def.'s Renewed Mot. to Compel Arbitration, ECF No. 11; Def.'s Mem. in Supp. of Renewed Mot. to Compel Arbitration and Opp. to Mot. to Amend Compl. ("Def.'s Mem. Supp."), ECF No. 12. The parties briefed the motion to amend and the renewed motion to compel arbitration. See Def.'s Mem. Supp., ECF No. 12; Pl.'s Opp. to Renewed Mot. to Compel Arbitration and Reply to Opp. to Mot. to Amend Compl. ("Pl.'s Opp."), ECF No. 13; Def.'s Reply, ECF No. 15. On March 29, 2016, the Court granted Dr. Andresen's motion to amend her complaint and, in light of the renewed motion to compel arbitration, denied as moot IntePros' initial motion to compel arbitration. See Minute Entry of March 29, 2016. Upon review of the parties' briefing of IntePros' renewed motion, the Court concluded that supplemental briefing would greatly aid in the resolution of that motion.¹ Having received that supplemental briefing, IntePros' renewed motion is ready for adjudication.

II. Standard of Review

A motion to compel arbitration is examined under the summary judgment standard of Federal Rule of Civil Procedure 56(c), as if it were " ‘a request for summary disposition of the issue of whether or not there had been a meeting of the minds on the agreement to arbitrate.’ " Mercadante v. XE Servs., LLC , 78 F.Supp.3d 131, 136 (D.D.C. 2015) (quoting Aliron Int'l, Inc. v. Cherokee Nation Indus., Inc. , 531 F.3d 863, 865 (D.C. Cir. 2008) ). Under Rule 56(c), summary judgment is appropriate only if " ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ " Id. (quoting Aliron Int'l , 531 F.3d at 865 ). " ‘The party seeking to compel arbitration must present evidence sufficient to demonstrate an enforceable agreement to arbitrate.’ " Id. (quoting Haire v. Smith, Currie & Hancock LLP , 925 F.Supp.2d 126, 129 (D.D.C. 2013) ). "The burden then shifts to plaintiffs to show that there is a genuine issue of material fact as to the making of the agreement." Id. (internal quotation marks omitted). "The Court will compel arbitration if the pleadings and the evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. (internal quotation marks omitted).

III. Analysis

Congress enacted the Federal Arbitration Act ("FAA") to counteract "widespread judicial hostility to arbitration." Am. Express Co. v. Italian Colors Rest. , ––– U.S. ––––, 133 S.Ct. 2304, 2308–09, 186 L.Ed.2d 417 (2013). Section 2 is "the primary substantive provision of the [FAA]." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). It provides that "[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The FAA "also establishes procedures by which federal courts implement § 2's substantive rule." Rent–A–Center, West, Inc. v. Jackson , 561 U.S. 63, 68, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). "Under § 3, a party may apply to a federal court for a stay of the trial of an action ‘upon any issue referable to arbitration under an agreement in writing for such arbitration.’ " Id. (quoting 9 U.S.C. § 3 ). "Under § 4, a party ‘aggrieved’ by the failure of another party ‘to arbitrate under a written agreement for arbitration’ may petition a federal court ‘for an order directing that such arbitration proceed in the manner provided for in such agreement.’ " Id. (quoting 9 U.S.C. § 4 ).

The "question whether the parties have submitted a particular dispute to arbitration"—that is, the gateway "question of arbitrability"—is usually "an issue for judicial determination." Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (internal quotation marks omitted). That usual rule is upended, however, when the parties "clearly and unmistakably" agree that the question of arbitrability should be reserved for arbitral resolution. Id. A written agreement memorializing the parties' agreement to arbitrate the threshold question of arbitrability has come to be known as a "delegation provision." See Rent–A–Center , 561 U.S. at 68, 130 S.Ct. 2772. A delegation provision "is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other." Id. at 70, 130 S.Ct. 2772.

Thus, when a valid and enforceable delegation provision is in place, a court is prohibited from reaching the gateway question of arbitrability and must reserve that question for arbitral resolution. See id. ; Howard v. Rent–A–Center, Inc. , No. 10-103, 2010 WL 3009515, at *3 (E.D. Tenn. July 28, 2010) ("If the court concludes the parties intended such a delegation and concludes that delegation is enforceable, the court must compel arbitration on issues relating to arbitrability along with the underlying dispute."). However, when a delegation provision is invalid or unenforceable, that opens the door for judicial resolution of the question of arbitrability. Thus "before an arbitrator can determine the question of arbitrability, the Court must consider any challenges to the validity of the delegation provision." Mercadante , 78 F.Supp.3d at 137. If the challenges of a party opposed to arbitration are directed at the "primary" arbitration clause generally—as opposed to being directed at the delegation provision specifically—the delegation provision must be treated as valid and enforceable and, accordingly, the question of arbitrability must be reserved for an arbitrator. Rent–A–Center , 561 U.S. at 72, 130 S.Ct. 2772. Thus, in sum, where a primary arbitration clause and a delegation provision are both in place, a party opposed to arbitration must overcome two hurdles to entirely avoid arbitration: (1) She must demonstrate that the delegation provision, separate and apart from the primary arbitration clause, is invalid or unenforceable such that the threshold question of arbitrability should be subject to judicial, rather than arbitral, resolution; and, once she has cleared that first hurdle, (2) she...