McCarey v. PWC Advisory Servs.

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PAMELA MCCAREY, Plaintiff, v. PWC ADVISORY SERVICES, LLC, PRICEWATERHOUSECOOPERS, LLP, Defendants.

No. 2:20cv1744

United States District Court, W.D. Pennsylvania

August 3, 2023

Electronic Filing

OPINION

David Stewart Cercone Senior United States District Judge

Pamela McCarey ("plaintiff"') commenced this action seeking redress for alleged discrimination in the terms and conditions of employment. Presently before the court is defendants' motion to compel arbitration. For the reasons set forth below, the motion will be granted and the case will be stayed pending the outcome of the arbitration proceeding.

Plaintiff's First Amended Complaint sets forth claims for age and gender discrimination in violation of the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621, et seq. (“ADEA”) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., the New York City Human Rights Law, N.Y.C. Admin Code § 8-107(1)(a) et seq., the Pennsylvania Human Relations Act, as amended, 43 P.S. § 951, et seq. ("PHRA"), and the City of Pittsburgh Fair Employment Ordinance, Chapter 659.02 ("PFEO"). Defendants responded to plaintiff's initial complaint by filing a motion to compel arbitration and thereafter the parties stipulated that defendants' motion applies to plaintiff's First Amended Complaint.

Defendants contend that the record as currently supplemented unequivocally demonstrates that the parties previously entered into a contractual agreement to arbitrate their current dispute. Plaintiff maintains that her claims are not covered by the arbitration agreement the agreement is unenforceable in any event, defendants have failed to show the Title VII claims are arbitrable, and New York law expressly prohibits the arbitration of plaintiffs employment-related claims brought pursuant to New York law.

Whether a dispute must be submitted to arbitration "is a matter of contract between the parties" and "a judicial mandate to arbitrate must be predicated upon the parties' consent." Guidotti v. Legal Helpers Debt Resolution L.L.C., 716 F.3d 764,771 (3d Cir. 2013) (quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir. 1980)). Enforcement of such contractual agreements is authorized by the Federal Arbitration Act (the “FAA”), 9 U.S.C. § 1, et seq., provided the court is "satisfied that the making of the agreement for arbitration . . . is not in issue." Id. at § 4. "In the event that the making of the arbitration agreement is in issue, then 'the court shall proceed summarily to the trial' of that issue.'" Guidotti, 716 F.3d at 771 (quoting Par-Knit Mills, 636 F.2d at 54 (quoting 9 U.S.C. § 4)). "[T]he party who is contesting the making of the agreement has the right to have the issue presented to a jury." Id.

Review of a motion to compel arbitration can be undertaken pursuant to either Rule 12(b)(6) or Rule 56 of the Federal Rules of Civil Procedure. Guidotti, 716 F.3d at 776. Which of these applies depends on the nature of the complaint and its supporting documents. On the one hand, "when it is apparent, based on 'the face of a complaint, and documents relied upon in the complaint,' that certain of a party's claims 'are subject to an enforceable arbitration clause, a motion to compel arbitration should be considered under a Rule 12(b)(6) standard without discovery's delay.'" Id. at 776 (quoting Somerset Consulting, LLC v. United Capital Lenders, LLC, 832 F.Supp.2d 474, 482 (E.D. Pa. 2011)). In contrast, "if the complaint and its supporting documents are unclear regarding the agreement to arbitrate, or if the plaintiff has responded to a motion to compel arbitration with additional facts sufficient to place the agreement to arbitrate in issue," then the parties are entitled to discovery on the issue of arbitrability and thereafter the issue is to be reevaluated under Rule 56 and/or summarily tried as appropriate. Id.

Here, plaintiff argues the record fails to provide the requisite clarity needed to compel arbitration. She does not identify any factual matters in dispute regarding the formation of the arbitration agreement. Instead, she highlights several legal arguments as to why the agreement does not apply or is unenforceable under the specific circumstances presented. Because defendants' rely on submissions beyond the face of the First Amended Complaint and there does not appear to be a factual dispute or the need for discovery to resolve the parties' disagreement about the enforceability of the arbitration agreement, the court will employ the Rule 56 summary judgement standard and resolve the pending motion based on the legal arguments of counsel.^[1]

Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(A). Rule 56 "'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986)). Deciding a summary judgment motion requires the court to view the facts, draw all reasonable inferences and resolve all doubts in favor of the nonmoving party. Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. Nat'l State Bank v. Fed. Reserve Bank of New York, 979 F.2d 1579, 1581-82 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(E)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion" . . . "and cannot simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); Sec. & Exch. Comm'n v. Bonastia, 614 F.2d 908, 914 (3d Cir. 1980) ("[L]egal conclusions, unsupported by documentation of specific facts, are insufficient to create issues of material fact that would preclude summary judgment."). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence is merely colorable or lacks sufficient probative force summary judgment may be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).

The record as read in the light most favorable to plaintiff establishes the background set forth below. Plaintiff was employed by Defendants from 1997 until June 28, 2019. First Amended Complaint (Doc. No. 29) at ¶ 17. Plaintiff was promoted to Managing Director in 2014. Id. at ¶ 18. In that role, Plaintiff consistently performed her job duties in a highly competent manner. Id. at ¶ 19.

In May of 2018, Defendants informed Plaintiff that she would not receive a salary increase, effective July 1, 2018. Id. at ¶ 20. Younger and/or male Managing Directors received salary increases. Id. at ¶ 21.

On July 1, 2018, Plaintiff began reporting to Nikki Parham, Partner. Id. at ¶ 22. Plaintiff was the oldest Managing Director reporting to Parham; the majority of the Managing Directors reporting to Parham were men. Id. at ¶ 23. Parham thereafter excluded Plaintiff from tasks, projects, meetings, and communications relevant to Plaintiff's job duties and responsibilities. Id. at ¶ 24.

On January 23, 2019, Plaintiff transferred to defendants' New York City office at defendants' direction. Id. at ¶ 26. While at the New York office plaintiff was informed that her employment would be terminated as of April 15, 2019. Id. at ¶ 27. The stated reason was position elimination, which was a pretext. Id. at ¶¶ 27-28. Parham told Plaintiff that her termination had nothing to do with her performance, and that it was based on changes in Defendants' business. Id. at ¶ 29. No other Managing Director reporting to Parham was terminated at the time. Id. at ¶ 31.

In March of 2019, Defendants extended Plaintiffs employment to June 28, 2019. Id. at ¶ 33. Defendants terminated Plaintiff on June 28, 2019. Id. at ¶34...