Gilbert v. Dell Techs., Inc.

415 F.Supp.3d 389

Cicilia GILBERT, Plaintiff,

v.DELL TECHNOLOGIES, INC., Defendant.

19-cv-1938 (JGK)

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

Signed November 11, 2019

Jillian Todd Weiss, Jillian T. Weiss, Esq., New York, NY, for Plaintiff.

Michael S. Burkhardt, Morgan, Lewis & Bockius LLP, Philadelphia, PA, Jonathan Michael Weinberg, Morgan Lewis & Bockius, LLP, New York, NY, for Defendant.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, Cicilia Gilbert, brings this action against the defendant, Dell Technologies, Inc. ("Dell"), alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"); the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 290 et seq. ; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. The plaintiff alleges that she was employed as the "Director, Systems Engineer, at EMC Virtustream, a business unit of Dell." Complaint ¶ 2. Under each statute, the plaintiff brings claims alleging retaliation, wrongful termination, and hostile work environment. The plaintiff seeks (1) a declaratory judgment that Dell's acts violated Title VII, the NYSHRL, and the NYCHRL, (2) a permanent injunction enjoining Dell from engaging in discrimination against employees who are transgender or undergoing gender transition, or those associated with such employees, (3) an order for Dell to carry out training to provide equal employment opportunities, (4) various types of damages, and (5) reinstatement.¹ The defendant has moved to compel the plaintiff to arbitrate her claims and to dismiss, or in the alternative, to stay the proceedings. At issue in this motion is whether the parties entered into a validly formed and enforceable arbitration agreement and whether the plaintiff's claims are arbitrable. For the reasons explained below, the defendant's motion to compel arbitration and stay the case is granted .

I.

The following facts are taken from the parties' submissions and are undisputed unless otherwise noted.

A.

The plaintiff began working at Virtustream, Inc. ("Virtustream") on or about October 15, 2015, as a full-time Project Manager. Wright Decl. ¶ 6. Virtustream is a wholly-owned subsidiary of EMC Corporation ("EMC"), which is itself a wholly-owned subsidiary of Dell. Id. at ¶ 4. EMC acquired Virtustream in 2015 and Dell acquired EMC in September 2016. Compl. ¶ 37; First Burkhardt Decl. Ex. B. The plaintiff contends that the corporate relationship between Virtustream, EMC, and Dell is unclear.

When the plaintiff began working at Virtustream, the plaintiff earned an annual salary of $160,000 and was eligible for a discretionary bonus. Wright Decl. ¶ 7. On or about August 15, 2016, the plaintiff received a promotion to Director, Systems Engineer. Id. at ¶ 8. In this new position, the plaintiff earned an annual salary of $175,000 and was eligible for a bonus of up to $15,000 a year. Id. at ¶ 12. As a Director, Systems Engineer, the plaintiff remained an at-will employee. Wright Decl. Ex. A.

The plaintiff alleges that she was subjected to a hostile work environment because of her sex or sex stereotyping, including gender, gender expression, gender identity, and gender transition in that she is a transgender woman. Compl. ¶ 185. The plaintiff alleges that she was subjected to retaliation because of her complaints about her treatment and was eventually terminated in September, 2018. Id. at ¶¶ 167, 191, 198.

B.

On the day of her promotion in 2016, the plaintiff received and accessed an email containing a link to a DocuSign envelope with three documents: the offer letter, the Key Employment Agreement ("KEA") and the EMC Arbitration Policy. Wright Decl. ¶¶ 13-15. The offer letter offered the plaintiff the position of Director, Systems Engineer, with "Virtustream, Inc., an EMC Company." Wright Decl. Ex. A. The KEA applies to senior level employees of EMC Corporation. Wright Decl. Ex. B. The plaintiff executed the offer letter and KEA on that same day and selected a button marked "FINISH" after reviewing the entirety of the DocuSign envelope. Wright Decl. ¶¶ 16-18. Directly above the signature line on the KEA was the KEA's arbitration provision. Wright Decl. Ex. B. This arbitration provision states, "[y]ou agree to binding arbitration of Legal Disputes as defined in, and pursuant to the terms of, the EMC Arbitration Policy, the current version of which is attached to this Key Employee Agreement and incorporated herein by reference." Id. Section 6(g) of the KEA states that the agreement "may be amended or modified only by written agreement between [the plaintiff] and the Office of the General Counsel." Id. Section 6(f) of the KEA provides as follows:

You acknowledge that you have received and reviewed the attached Business Conduct Guidelines, and the Arbitration, Insider Trading, Anti-Harassment and Information Security policies. You agree that you will be bound and will abide by such Guidelines and policies and all other Company policies, as they are amended from time to time by the Company in its discretion.

Id. The EMC Arbitration Policy has not been amended since the plaintiff agreed to it and the defendant represents that it seeks only to enforce the EMC Arbitration Policy as it was agreed to by the plaintiff. Section 6(j) of the KEA states that it "shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the doctrine of conflicts of law." Id. Section 6(m) of the KEA provides as follows:

You understand and acknowledge that, unless and until you execute another Key Employee Agreement that supersedes this Agreement, this Agreement is applicable even if you change positions within the Company. The terms of this Agreement ... shall continue to apply with full force and effect in the event that you ... are transferred or assigned to, or otherwise work for, any affiliate, subsidiary or other division or business unit of the Company.

Id.

The EMC Arbitration Policy covers "Legal Disputes" initiated either:

(a) By EMC Corporation or any of its wholly owned subsidiaries (collectively "EMC" or the "Company") against a current or former Employee of EMC ("Employee"); or

(b) by an Employee against any of the following:

(i) the Company, (ii) its current or former officers, directors, employees or agents in their capacity as such, and/or (iii) predecessors, successors and assigns of (i) and (ii).

Wright Decl. Ex. C. Legal Disputes are defined in relevant part to include "any claim relating to (a) compensation, (b) terms and conditions of employment, (c) termination of employment, (d) discrimination, harassment or retaliation, including under Title VII of the Civil Rights Act ... and any other federal, state, or local anti-discrimination laws, and (e) any other employment-related legal claim." Id. However, under Section 1.1(C)(i) of the policy, the agreement to arbitrate Legal Disputes does not apply to any action "seeking temporary, preliminary or permanent injunctive relief, or declaratory relief or declaratory judgment." Id. But, "[i]f the subject matter of such an action otherwise satisfies the definition of a Legal Dispute ..., claims for money damages arising from the same subject matter will be submitted to arbitration." Id. In addition, Section O states:

Jurisdictional and arbitrability disputes that arise in connection with Legal Disputes shall be submitted to and ruled upon by the arbitrator and not by a court. The arbitrator shall, however, have no authority to make rulings on matters arising in connection with ... (ii) claims excluded from this policy under Section C. above, including but not limited to claims seeking temporary, preliminary or permanent injunctive relief or declaratory relief in court, which matters shall be exclusively determined by a court.

Id.

II.

Under 9 U.S.C. § 4, "a district court must enter an order to arbitrate upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 n.27, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (internal quotation marks omitted).

[A] court asked to stay proceedings pending arbitration in a case covered by the [Federal Arbitration] Act has essentially four tasks: first, it must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it must then decide whether to stay the balance of the proceedings pending arbitration.

Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir. 1987) (citations omitted).

A.

Arbitration is a matter of contract and a party cannot be required to arbitrate if there is no binding arbitration agreement. A court, rather than an arbitrator, should decide whether a valid agreement to arbitrate exists. See Republic of Ecuador v. Chevron Corp., 638 F.3d 384, 392 (2d Cir. 2011).

"The determination of whether parties have contractually bound themselves to arbitrate a dispute – a determination involving interpretation of state law – is a legal conclusion ...." Specht v. Netscape Commc'ns Corp., 306 F.3d 17, 26 (2d Cir. 2002). More specifically, "[a]rbitration clauses are a matter of contract law and, if valid, should be enforced." DuBois v. Macy's E. Inc., 338 F. App'x 32, 33 (2d Cir. 2009) (summary order). Thus, "[w]hen deciding whether the parties agreed to arbitrate a certain matter," courts generally "should apply ordinary state-law principles that govern the formation of contracts." First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) ; accord Rightnour v. Tiffany & Co., 239 F. Supp. 3d 744, 749-50 (S.D.N.Y. 2017).

The KEA states that it...