Bugtani v. Dish Network LLC, 18-CV-5003 (AMD) (RER)

GEETA BUGTANI, Plaintiff, v. DISH NETWORK LLC, Defendant.

18-CV-5003 (AMD) (RER)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

July 8, 2019

MEMORANDUM AND ORDER

ANN M. DONNELLY, United States District Judge:

On August 30, 2018, the pro se plaintiff, Geeta Bugtani, brought this action alleging discrimination, hostile work environment, and retaliation against her former employer, Dish Network. The plaintiff also claims whistleblower protection under the Sarbanes-Oxley Act, 18 U.S.C.A. § 1514A. On November 5, 2018, the defendant moved to compel arbitration and dismiss the complaint. For the reasons that follow, the defendant's motion to compel arbitration of the plaintiff's discrimination, hostile work environment, and retaliation claims is granted. The plaintiff's whistleblower claim is dismissed. The action is stayed pending arbitration.

BACKGROUND¹

The plaintiff was employed as a customer experience representative at DISH Network from sometime in January of 2017 until March 3, 2018. (ECF No. 1 at 4, 11; ECF No 15-1 at 32.) During her employment orientation, she signed an arbitration agreement with thecompany, (ECF No. 1 at 32; ECF No. 11 ¶ 2; ECF No. 11-1 at 2-4), which reads, in relevant part:

1. In consideration of the mutual promises within this Agreement, Employee and DISH mutually agree that any past, present or future claim, controversy, and/or dispute between them, including without limitation any claim or dispute arising out of or related to Employee's . . . employment, and/or termination of employment . . . shall be resolved by binding arbitration administered by the American Arbitration Association

2. A Party who wishes to arbitrate a Claim must prepare a written demand for arbitration . . . that identifies the claims asserted . . . That Party must file the Request for Arbitration - along with a copy of this Agreement

7. The Arbitrator shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement

15. Employee and DISH voluntarily agree to arbitrate all claims covered by this agreement.

(ECF No. 1 at 49; ECF No. 11-1 at 2-4.) The plaintiff contends that she signed a second policy without reading the contract. (ECF No. 14 at 5.) She was told to sign a "blank screen" or risk termination. (Id. at 5; ECF 18 at 1.)

The plaintiff alleges that she suffered repeated verbal, physical, and sexual harassment during her employment. (ECF No. 1 at 11-13.) One colleague called her the "hired help" and "aiy Bengali," a reference to her national origin. (Id. at 11.) Another colleague told her that she looked "so hot" and "ma[de him] want to hurt [his] wife." (Id. at 11, 43-45.) A third colleague told her that her dress excited him. (Id. at 11.) When the plaintiff reported the harassment to her "[c]oach," (Id. at 11), he allegedly said she was "trouble," and threatened to "tell HR [thatshe was] bothering" him.² (Id. at 11.) He delayed her performance review and refused to take calls from customers about her performance. (Id. at 12-13.)

According to the plaintiff, "[c]onsumers in 10 states must be made aware of their right[s] pertaining to protection plan [and] tech visits[,]" (Id. at 6), although the company encouraged employees to misrepresent the cost of a protection plan to customers, and to add programming to customers' plans without their consent. (Id. at 13.) The plaintiff claims that the fraud "could raise concerns" under the Sarbanes-Oxley Act. (Id. at 4.)

The plaintiff was terminated on March 3, 2018. (ECF No. 1 at 4.) She believes the company fired her because she refused to be part of the company's fraudulent practice, and as retaliation from her coach. (Id. at 13.) The plaintiff filed a complaint against the defendant with the Equal Employment Opportunity Commission. (ECF No. 11-1 at 8-12.) The EEOC granted the plaintiff a Right to Sue letter on June 8, 2018. (Id. at 8, 17.)

On June 29, 2018, the plaintiff filed a demand for arbitration with the American Arbitration Association, claiming "sexual harassment, retaliation, unlawful discharge, emotional torture, and more . . . ." (No. 11-1 at 19.) The parties began the arbitration process shortly thereafter. The plaintiff questioned the Association's pro se administrator about the process, (Id. at 88-89), and the parties mutually chose an arbiter. (Id. at 97-98, 111.)

The process broke down when the arbiter disclosed that he had previously worked with counsel for Dish Network on mediations. (Id. at 101.) The plaintiff argued that the arbiter had a conflict of interest and that his compensation rate was too high. (ECF No. 1 at 30-31.) She complained that his appointment demonstrated that the arbitration process would be unfair, and she withdrew her claims. (ECF No. 1 at 28, 31.)

The plaintiff subsequently filed this action on August 30, 2018. (ECF No. 1.) The plaintiff also claims to have reported the defendant to the Securities and Exchange Commission, the Federal Communications Commission, the Federal Trade Commission, and the Financial Industry Regulatory Authority. (Id. at 41.)

DISCUSSION

Allegations in a pro se complaint are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). The court must read a pro se complaint liberally and interpret it to raise the strongest arguments it suggests, especially when it alleges civil rights violations. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Weixel v. Bd. of Educ. Of City of New York, 289 F.3d 138, 146 (2d Cir. 2002) (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001)).

The Court liberally construes the complaint as asserting discrimination, hostile work environment, and retaliation based on the plaintiff's national origin³ and sex under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, the New York State Human Rights Law, § 290 et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. The complaint also claims that she is entitled to whistleblower protection under the Sarbanes-Oxley Act, 18 U.S.C.A. § 1514A.⁴

I. Motion to Compel Arbitration

The plaintiff's discrimination, hostile work environment, and retaliation claims are subject to arbitration. Motions to compel arbitration are evaluated under a standard similar to the standard for summary judgment motions. Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016) (quoting Bensadoun v. Jobe-Riat, 316 F.3d 171 at 175 (2d Cir. 2003)). The court must "consider all relevant admissible evidence" and "draw all reasonable inferences in favor of the non-moving party." Faggiano, 283 F.Supp.3d at 36. If a dispute's arbitrability can be decided as a matter of law based on undisputed facts in the record, the court "may rule on the basis of that legal issue and 'avoid the need for further court proceedings.'" Wachovia Bank, Nat'l Ass'n v. VCG Special Opp. Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011) (quoting Bensadoun, 316 F.3d at 175).

The Federal Arbitration Act⁵ provides that arbitration agreements "evidencing a transaction involving [interstate] commerce . . . 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 establishes a "liberal federal policy favoring arbitration agreements." CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012); see also Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006) (The FAA "embodies the national policy favoring arbitration and places arbitration agreements on equal footing with all other contracts").

The court should consider (1) whether the parties agreed to arbitrate, (2) the scope of the arbitration agreement, and (3) if federal statutory claims are asserted, whether Congress intended those claims to be nonarbitrable. JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 169 (2d Cir. 2004) (citation omitted). If some, but not all, of the claims in the case are arbitrable, the court must consider whether to stay the balance of the proceedings pending arbitration. Id. Arbitration clauses can be invalidated by "generally applicable contract defenses, such as fraud, duress, or unconscionability[.]" AT&T Mobility LLC, 563 U.S. 333, 339 (2011) (citations omitted).

A. The parties' arbitration agreement is enforceable.

The FAA requires only that an arbitration agreement be in writing, not that it be signed. Thomas v. Pub. Storage, Inc., 957 F. Supp. 2d 496, 499 (S.D.N.Y. 2013) (citing Gonzalez v. Toscorp Inc., No. 97-cv-8158 (LAP), 1999 WL 595632, at *2 (S.D.N.Y. Aug. 5, 1999)). A non-signatory "may be bound by an arbitration clause if its subsequent conduct indicates that it is assuming the obligation to arbitrate." Thomson-CSF, S.A. v. Am. Arbitration Ass'n, 64 F.3d 773, 777 (2d Cir. 1995); see also Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1105 (2d Cir. 1991).

The plaintiff admits that she signed an arbitration agreement with the defendant, thus indicating her consent to the process. (ECF No. 1 at 32.) See Schreiber v. Friedman, 2017 WL 5564114, at *6 (E.D.N.Y. Mar. 31, 2017) (citing Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 845 (2d Cir. 1987) ("[A] party is bound by the provisions of a contract that [s]he signs, unless [s]he can show special circumstances that would relieve h[er] of such an obligation")). Even if the plaintiff had not signed the arbitration agreement,⁶ her subsequent conduct manifestsa clear intent to arbitrate: she began the arbitration process, sent an arbitration demand letter with a copy of the arbitration agreement, inquired about the arbitration process, and chose an arbitrator before she prematurely withdrew her claims from arbitration. Thus, the parties' arbitration agreement is enforceable.

B. The plaintiff's discrimination claims are within the scope of the arbitration agreement.

The arbitration agreement mandates arbitration for "any...