Opinion
No. 69522/13.
09-29-2014
Richard GRAHAM, on behalf of himself and all other security guards similarly situated, Plaintiff, v. COMMAND SECURITY CORPORATION, Defendant.
Lila Ayers, Esq., Mt. Vernon, Attorney for Plaintiff. Winstron & Strawn LLP By: Erin L. Dittus, Esq., New York, Attorneys for Defendant.
Lila Ayers, Esq., Mt. Vernon, Attorney for Plaintiff.
Winstron & Strawn LLP By: Erin L. Dittus, Esq., New York, Attorneys for Defendant.
Opinion
ALAN D. SCHEINKMAN, J.
Defendant Command Security Corporation (“Defendant” or “Command Security”) moves to stay this action and compel arbitration of the claims presented by Plaintiff Richard Graham on behalf of himself and all other security guards similarly situated. Plaintiff opposes the motion.
FACTUAL AND PROCEDURAL HISTORY
This putative class action was initiated by Plaintiff's filing of the Verified Complaint on December 2, 2013. Defendant is in the business of providing security services to numerous industries. Plaintiff's action is based on claims that, inter alia, Defendant violated various wage and hour laws in the salary and overtime Defendant paid him and other similarly situated security guards. After various extensions, on June 25, 2014, Defendant filed its answer denying the material allegations of the Complaint and asserting various affirmative defenses. At the same time Defendant filed its answer, Defendant filed this motion. The crux of the motion is Defendant's claim that Plaintiff agreed to submit all disputes arising from Plaintiff's employment to arbitration. Plaintiff disputes that he made an agreement to arbitrate.
DEFENDANT'S CONTENTIONS IN SUPPORT OF ITS MOTION
In support of its motion, Defendant submits an affidavit from its counsel, William G. Miossi, Esq. (Winston & Strawn, LLP), an affidavit from Curtis Scott, and a Memorandum of Law.
Mr. Miossi submits emails showing that Plaintiff's counsel would not agree to arbitration and also submits an except from the American Arbitration Association's Employment Arbitration Rules and Mediation Procedures.
Curtis Scott, Command Security's Vice President of Human Resources, submits the documentary evidence upon which Defendant relies to support its position that Plaintiff agreed to submit all disputes arising from his employment to arbitration. He also attests to Command Security's practices with new hires as well as to what it did prior to hiring Plaintiff.
Specifically, Scott avers that prior to hiring an employee, Command Security provides the prospective hire with the Employee Handbook, which includes the personnel policies in effect at that time (Affidavit of Curtis Scott, sworn to June 25, 2014 [“Scott Aff .”] at ¶ 7). Scott asserts that in December 2010, Defendant offered Plaintiff a position as a security officer in Westchester County and that at that time, Defendant provided Plaintiff with a copy of Command Security's Employee Handbook dated January 2007 (which Handbook Scott contends remains in force to date) as part of the job offer (Scott Aff. at ¶¶ 8, 11). Scott avers that “[o]n December 15, 2010, Plaintiff accepted the job offer, signed and acknowledged the Receipt of Personnel Policies in the Employee Handbook, including the Pre–Dispute Resolution Agreement, and returned the Receipt of Personnel Policies and the Receipt of the Pre–Dispute Resolution Procedure Employee Acknowledgment Form to Command Security” (id. at ¶ 9). According to Scott, “Plaintiff began his employment with Command Security on January 25, 2011, and he terminated employment September 2, 2013” (id. at ¶ 10).
In its memorandum of law, Defendant argues that Defendant's Pre–Dispute Resolution Agreement, “cover[s] all matters directly or indirectly related to [an employee's] recruitment, hire, employment or separation,' with very limited exceptions that do not apply here” (Def's Mem. at 2, quoting Scott, Ex. A at 40). In particular, the Agreement states:
[I]n the event that [the employee] seek[s] relief in a court for a dispute covered by this Agreement, or have claims asserted against [the employee] that arose out o[f] your employment with the Company, the Company may, at any time within 60 days of service of such complaint upon the Company, at its sole option, require all or part of the dispute to be arbitrated by one arbitrator in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“AAA”), or a comparable arbitrator, arbitration forum and/or arbitration procedure.
Defendant further recites various provisions found in the Agreement, including that the costs of arbitration would be shared equally unless the arbitrator determines that the costs would cause an undue hardship, in which case the arbitrator could allocate all or a portion of the fees payable by Plaintiff to Defendant. Also, that the parties agreed that the arbitrator would decide “questions of scope or arbitrability” and that the Agreement would be governed by the Federal Arbitration Act (“FAA”) (id. ).
Defendant asserts it timely requested arbitration but Plaintiff's counsel declined, leading to this motion.
Defendant argues that, based on Section 3 of the FAA, “a party to an arbitration agreement may petition the court for an order that arbitration proceed in the manner provided for in such an agreement, and Section 3 allows this Court to stay the proceedings pending arbitration” (id. at 5). Defendant asserts that the FAA “embodies a strong federal policy favoring arbitration” and that in deciding whether to compel arbitration the Court must decide “(1) whether a valid agreement to arbitrate exists and, if so, (2) whether the dispute falls within the clause of the arbitration clause” (id. at 5).
Defendant argues that if the Court decides to apply New York law, which would govern the Agreement since Plaintiff is a resident of New York and the Agreement was signed in New York (id. at 6, n. 1), the Court must decide “whether the parties made a valid agreement to arbitrate” (id. at 6). Assuming that there is an agreement to arbitrate, Defendant argues that while the decision over whether the parties' dispute is subject to the arbitration clause is usually a decision left for a court, courts will enforce an agreement by the parties to allow the arbitrator to decide this threshold issue when the parties “clearly and unmistakably [so] provide ' “ (id. at 7, quoting Smith Barney Shearson, Inc. v. Sacharow, 91 N.Y.2d 39, 46 [1997], quoting AT & T Techs., Inc. v. Communication Workers of Am., 475 U.S. 643, 649 [1986] (emphasis in original).
According to Defendant, in deciding whether the parties agreed to arbitrate, New York courts “apply generally accepted principles of contract law” (id. at 8) and arbitration agreements contained within an employee handbook are enforceable in situations such as this where an employee has signed an acknowledgment form and the employee is bound by such an agreement unless he or she can “show special circumstances, such as duress or coercion, which would justify non-enforcement of the contract” (id. at 8).
Defendant contends that, based on the clear language of the Pre–Dispute Resolution Procedure and the Pre–Dispute Resolution Procedure Employee Acknowledgment Form (“PDRP Acknowledgment”) (which was signed by Plaintiff), which reflects that accepting the arbitration agreement was a condition of Plaintiff's employment, Plaintiff agreed to arbitrate his claims relating to his employment with Defendant.
Defendant, anticipating an argument from Plaintiff that there was no agreement to arbitrate since the Employee Handbook contains language that “it does not create a contract with the Company,” asserts that “the Pre–Dispute Resolution Agreement is enforceable because the language of the arbitration agreement is distinct and mandatory and Plaintiff was advised that compliance is a condition of employment” (id. at 9, citing Brown v. St. Paul Travelers Companies, Inc. 559 F Supp 2d 288, 292 [WD N.Y.2008], affd 331 Fed Appx 69 [2d Cir2009] ).
In support of its position that the parties agreed that the arbitrator would have the authority to decide the scope of the arbitration clause (i.e., whether this dispute falls within the scope of the arbitration agreement), Defendant relies on the language of the Agreement itself which provides that “[t]he arbitrator shall resolve questions regarding the scope of this Agreement or arbitrability” as well as the fact that the Agreement incorporated by reference the AAA rules which expressly provide that “the arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement” (id. at 10). To this second point, Defendant asserts that it is well settled that “incorporation of the AAA Rules into an agreement constitutes clear and unmistakable intent of the parties to arbitrate the issue of arbitrability” (id. ). Defendant argues that even if the Court decides to address the issue of whether this dispute falls within the arbitration agreement, the Court should find this dispute arbitrable since “a dispute is encompassed within an arbitration clause where there is a reasonable relationship' between the subject matter of the dispute and the general subject matter of the contract” (id. at 10–11). According to Defendant, “Plaintiff's claims relate directly to his employment (wages) and fall squarely within the valid, Pre–Dispute Resolution Agreement. Accordingly, Plaintiff's claims must be submitted to arbitration” (id. at 11).
PLAINTIFF'S CONTENTIONS IN OPPOSITION
Plaintiff opposes Defendant's motion by submitting an affidavit and a memorandum of law. In his affidavit, Plaintiff avers that this action, which Plaintiff is seeking to bring as a class action, was brought because Defendant failed to pay Plaintiff and his fellow security guards working under a contract at the Westchester Medical Center, “the prevailing wage under Labor Law §§ 231, 232, and/or Westchester County Living Wage Initiative, and failed to compensate plaintiff for defendant's mandatory training” (Affidavit in Opposition of Richard Graham, sworn to July 5, 2014 [“Graham Opp. Aff.”] at ¶ 2). He avers that while he does not recall signing the acknowledge forms attached as Exhibits B and C to Defendant's moving papers, they appear to contain his signature and he recalls having interviewed with Defendant a month before his start date. He asserts that there is no binding contract to arbitrate between himself and Defendant (Graham Opp. Aff. at ¶ 5).
In his memorandum of law, Plaintiff agrees with Defendant that it is this Court's responsibility to determine whether the parties made a valid agreement to arbitrate. While Plaintiff cites both federal and state cases, Plaintiff does not take a clear position as to whether the issue is controlled by the FAA or by New York law.
In support of his position that there is no agreement to arbitrate, Plaintiff relies on the language of the second acknowledgment form signed by Plaintiff (Scott Aff., Ex. C) wherein Plaintiff acknowledged receipt of the Manual and that Plaintiff was responsible for reading and understanding its contents, but which further specifically provides that Plaintiff “Understand[s] that [his] employment is at will and that this Manual does not create a contract with the Company for any purpose and that the provisions of this Manual may be modified or eliminated at any time” (Pltf's Opp. Mem. at 3, quoting Scott Aff., Ex. C). Plaintiff further relies on the fact that the obligation to arbitrate was entirely unilateral in that Defendant had no similar obligation to arbitrate. According to Plaintiff, this unilateral obligation with no corresponding obligation from Defendant coupled with the language of acknowledgment form quoted above created an illusory promise—not a binding contract.
Plaintiff distinguishes the case relied upon by Defendant (Brown, supra ) and argues based on U.S. ex rel. Harris v. EPS, Inc. (2006 WL 1348173 [D Vt 2006] ) and the cases cited therein, courts have found no agreement to arbitrate where the employee handbooks contain disclaimer language. In Harris, the handbook disclaimed that it “constitute[d] an employment contract and is not intended to create contractual obligations of any kind” and the acknowledgment form signed by the employee similarly stated that the Handbook “is neither a contract of employment nor a legal document.” The Handbook also reserved the right to change, revise or eliminate any of the policies or benefits described in it at any time.
Plaintiff contends that this Court should hold that disclaiming language present here precludes the finding that there was an agreement to arbitrate (id. at 5–6). Plaintiff further points out that “the arbitration agreement is not distinct and mandatory.' It is within the Employee Handbook, the same Handbook that does not create a contract with the Company for any purpose and that the provisions of this Manual may be modified or eliminated at any time' ... The PDRA could have been separately printed from the Handbook. However, defendant deliberately placed it within the Handbook so it could be subject to defendant's disclaimers” (id. at 6).
DEFENDANTS' REPLY
In its reply memorandum, Defendant argues that the entire premise of Plaintiff's position is faulty since it is based on Plaintiff having signed a second acknowledgment form nine days after he signed the PDRP Acknowledgment. According to Defendant, faced with nearly identical facts, the court in Brown held that such an argument was without merit. In this regard, Defendant argues that the court in Brown held that “language in an employee handbook to the effect that it does not create a contract of employment does not render the arbitration policy unenforceable' “ (id. at 3–4, quoting Brown, 559 F Supp 2d at 292 ). Defendant again argues that despite, the disclaimer language found in the Handbook and the second acknowledgment form signed by Plaintiff, “the Pre–Dispute Resolution Agreement is enforceable because the language of the arbitration agreement is distinct and mandatory, and Plaintiff was forewarned that compliance is a condition of employment” (id. at 4). Defendant distinguishes the Harris case on which Plaintiff relies both because it was decided under Vermont law and because the language in the disclaimer was different from the language in this case since it stated that “this Handbook is neither a contract of employment nor a legal document ' “ (id. at 4, quoting U.S. ex rel. Harris, supra, 2006 WL 1348173 at *1 [emphasis added] ).
Relying on several cases from New York including the New York Court of Appeals' decision in Sablosky v. Edward S. Gordon Co. (73 N.Y.2d 133 [1989] ), Defendant reiterates its position that non-mutual arbitration agreements are enforceable in New York and, therefore, the fact that Command Security can unilaterally decide whether or not it wishes to arbitrate is of no consequence. According to Defendant, the consideration for the agreement to arbitrate was Command Security's agreement to employ him as a security guard.
LEGAL DISCUSSION
The FAA provides that “[a] written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contraction” (9 U.S.C. § 2 ). The FAA states that “[i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved ... is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement....” (9 U.S.C. § 3 ).
The FAA “does not require parties to arbitrate when they have not agreed to do ... It simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms” (Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 [1989] ). Although arbitration is favored, as a matter of policy, both under the FAA and New York's public policy, as a method of resolving disputes (Stark v. Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59, 66 [2007] ), because arbitration is contractual by nature insofar as “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit' “ (Thomson–CSF, S.A. v. American Arbitration Assn., 64 F3d 773 [2d Cir1995], quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co. 363 U.S. 574 [1960] ), “such agreements must not be so broadly construed as to encompass claims and parties that were not intended by the original contract” (Thomson–CSF, S.A., 64 F3d at 776 ).
While the cited case is based on federal principles, the view in New York is essentially the same. Our Court of Appeals has stated that “equally important [as the policy favoring arbitration] is the policy that seeks to avoid the unintentional waiver of the benefits and safeguards which a court of law may provide in resolving disputes. Indeed, unless the parties have subscribed to an arbitration agreement it would be unfair to infer such a significant waiver on the basis of anything less than a clear indication of intent' “ (TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339 [1998], quoting Matter of Marlene Indus. Corp. v. Carnac Textiles, Inc., 45 N.Y.2d 327, 333–334 [1978] ). Thus, “[i]t is settled that a party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes' ... The agreement must be clear, explicit and unequivocal ... and must not depend upon implication or subtlety” (Matter of Waldron v. Goddess, 61 N.Y.2d 181, 183–184 [1984], quoting Schubtex, Inc. v. Allen Synder, Inc., 49 N.Y.2d 1, 6 [1979] ; see also God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Assoc., LLP, 6 NY3d 371, 374 [2006] ; Matter of Estate of Arthur Miller, 40 AD3d 861, 861–862 [2d Dept 2007] ).
On a motion to compel arbitration, and absent an agreement to the contrary, and under both the FAA and New York law, the court must determine whether the parties made a valid agreement to arbitrate and if so, whether the issue sought to be submitted to arbitration falls within the scope of that agreement (In re Am. Express Fin. Advisors Sec. Litig., 672 F3d 113, 128 [2d Cir2011] ; Cap Gemini Ernst & Young, L.L.C. v. Nackel, 346 F3d 360, 365 [2d Cir2003] ; Matter of Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d 39, 45 [1997] ; Matter of County of Rockland v. Primiano Constr. Co., 51 N.Y.2d 1, 7 [1980] ).
Here, Plaintiff's opposition is addressed solely to the first issue—whether the parties made a valid agreement to arbitrate.
Pursuant to the FAA, the construction of the arbitration agreement (i.e., whether there is an agreement to arbitrate) is governed by New York's substantive law—i.e., whether the parties agreed to arbitrate a certain matter is governed by state-law principles regarding contract formation (First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 [1995] ; Mehler v. Terminix Intl. Co., 205 F3d 44, 48 [2d Cir2000] ).
The movant has the burden to show a “clear and unequivocal” agreement to arbitrate the claim (Fiveco, Inc. v. Haber, 11 NY3d 140, 144 [2008] ; Gerling Global Reins. Corp. v. Home Ins. Co., 302 A.D.2d 118, 123 [1st Dept 2002), lv denied 99 N.Y.2d 511 [2003] ; see also Bar–Ayal v. Time Warner Cable Inc., 2006 WL 2990032 at *8 [SD N.Y.2006] ; Allstate Ins. Co. v. Roseboro, 247 A.D.2d 379 [2d Dept 1998] ; Manigault v. Macy's East, LLC, 318 Fed Appx 6 [2d Cir2009] ). It is a general principle that “the threshold for clarity of agreement to arbitrate is greater than with respect to other contractual terms' “ (Matter of Waldron, supra, 61 N.Y.2d at 185 ; quoting Application of Doughboy Indus., Inc., 17 A.D.2d 216, 219 [1st Dept 1963] ).,
Having reviewed the relevant documents, the Court concludes that Plaintiff did agree to submit his employment-related disputes to arbitration.
When he was hired by Defendant on December 4, 2010, Defendant has shown prima facie that Plaintiff signed the Pre–Dispute Resolution Procedure Employee Acknowledgment Form. Plaintiff's claim that he does not “recall” signing the Pre–Dispute Resolution Procedure Employee Acknowledgment Form is insufficient to raise a question of fact as to whether he signed it, particularly since Plaintiff candidly acknowledges the signature on the Form appears to be his.
Since Plaintiff has not effectively contested the authenticity of his signature and has not asserted that Defendant engaged in fraud or other wrongful conduct, Plaintiff is bound by what he signed.
In his affidavit, Plaintiff does not deny reading the Form. However, even if he did not read the Form, his failure to do so would not vitiate its legal effect. It is well settled that the failure to read a document is generally not a defense since “[i]n the absence of fraud or other wrongful acts, a party who signs or accepts a written contract is conclusively presumed to know its contents and to assent to them” (Baldeo v. Darden Rest., Inc., 2005 WL 44703 at *4 [ED N.Y.2005], cert denied 543 U.S. 874 [2004], citing Gold v. Deutsche Aktiengesellschaft, 365 F3d 144, 149 [2d Cir2004] ; see also Brandywine Pavers, LLC v. Bombard, 108 AD3d 1209 [4th Dept 2013] ).
By signing the Pre–Dispute Resolution Employee Acknowledgment Form, Plaintiff acknowledged that he had read and understood the Command Security Corporation Pre Dispute Policy and that he agreed to abide by its provisions. This policy is set forth in the Defendant's Employee Handbook (January 2007) which contains a “Pre–Dispute Resolution Procedure,” which states:
In consideration of the Company's offering and providing you with employment, you agree that, in the event you seek relief in a court covered by this Agreement, or have claims asserted against you that arose out of your employment with the Company, the Company may, at any time within 60 days of the service of such complaint upon the Company, at its sole option, require all or part of the dispute to be arbitrated by one arbitrator in accordance with the National Rules for the Resolution of Employment Disputes at the American Arbitration Association (“AAA”), or a comparable arbitrator, arbitration forum, and/or arbitration procedure. You agree that the Company's option to require arbitration is governed by the Federal Arbitration Act and is fully enforceable ... If you refuse to arbitrate after the Company has demanded that you do so, and if a court orders arbitration, you agree to pay the Company's legal costs, including attorneys' fees, incurred in enforcing this Agreement to arbitrate.
Consequently, Plaintiff agreed to be bound by the Pre–Dispute Resolution Procedure.
Since the Court is concluding that Plaintiff is bound to the Pre–Dispute Resolution Procedure, the Court also concludes that Defendant's option to arbitrate is governed by the FAA, as that is what the Procedure provides.
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Several days later, Plaintiff signed a separate form—headed “Personnel Policies”—in which he acknowledged receipt of the Handbook and that his employment was at will and that the Handbook “did not create a contract with the Company for any purpose and the provisions of this Manual may be modified or eliminated at any time.”
It is undisputed that the Pre–Dispute Resolution Procedure is set forth in the Handbook. Plaintiff would have the Court conclude that his general acknowledgment that the Handbook did not create a contract and could be changed at any time somehow eradicates his prior, specific agreement to the Pre–Dispute Resolution Procedure. The Court cannot so conclude.
The Court has no difficulty concluding, in the first instance, that a valid agreement to arbitrate dispute was formed when Plaintiff signed the Pre–Dispute Resolution Employee Acknowledgment Form. In exchange for the offer of employment, and employment, by Defendant, Plaintiff agreed to arbitrate covered disputes. This arbitration agreement was binding as soon as Plaintiff signed it. For example, had Defendant not hired Plaintiff at all, and Plaintiff sued, it would seem apparent that Plaintiff would have been required to arbitrate. That Plaintiff later signed the “Personnel Policies” acknowledgment form does not change the result since there is nothing in the “Personnel Policies” acknowledgment form which expressly, or impliedly, rescinds the arbitration agreement formed by Plaintiff's consent indicated on the earlier Pre–Dispute Resolution Employee Acknowledgment Form.
But even if both forms had been signed simultaneously, the result would be the same.
Plaintiff contends that there can be no agreement to arbitrate since, under the Pre–Dispute Resolution Procedures Plaintiff must arbitrate, while Defendant has the option, if sued by Plaintiff, to arbitrate or litigate.
This issue was addressed by the New York Court of Appeals in Sablosky v. Edward S. Gordon Co. (73 N.Y.2d 133 [1989] ), wherein the Court rejected plaintiff's argument that the employment agreement, “which contains an arbitration clause compelling one party to submit all disputes to arbitration but allows the other party the choice of pursuing arbitration or litigation is invalid for lack of mutuality of remedy or obligation” (Sablosky, 73 N.Y.2d at 135–136 ). The arbitration clause was virtually identical to the clause in this case since it required the employee to submit to arbitration but gave the employer the right to elect, in the event the employee sued in court, to require the employee to submit the dispute to arbitration. The Court held that “[m]utuality of remedy is not required in arbitration contracts. If there is consideration for the entire agreement that is sufficient, the consideration supports the arbitration option, as it does every other obligation in the agreement” (id. at 137 ).
Plaintiff also contends that the disclaimer language found in the “Personnel Policies” acknowlegment form vitiates the parties' agreement to arbitrate. Again, the Court does not agree.
In Brown v. St. Paul Travelers Companies, Inc., supra, plaintiff began her employment with Aetna Life and Casualty Company in 1966. After Travelers purchased Aetna in 1996, Travelers issued a revised employee handbook which contained a “Employment Arbitration Policy.” The handbook was subsequently revised in 1998, 2001, 2002, 2003 and 2004. In support of its motion to stay the action and compel arbitration, Travelers' Senior Vice President for Human Resources attested that the updated versions of the handbook were distributed to all employees via the internet office mail each time they were revised. In addition, on April 5, 2004, all employees received an email concerning various policies, including the arbitration policy and the email advised all employees that “it was their responsibility to read and understand all of the company employment policies” and that their agreement to abide “was an express condition' of continuing employment” (Brown, supra, 559 F Supp 2d at 290 ). After plaintiff's employment was terminated, plaintiff initiated an age discrimination claim. In response to defendant's motion to stay the action and compel arbitration, she submitted an affidavit saying that she had no recollection of receiving the employee handbook or arbitration policy (id. ).
The court noted that if plaintiff had signed an acknowledgment of receipt of the handbook and arbitration policy, “she clearly would have evinced an intention to be bound by the agreement” (id. at 291 ). Nevertheless, the court found plaintiff was bound by it because the arbitration policy was a written policy and plaintiff was advised that her compliance with it was a condition of her continued employment. Therefore, the court held that she was “deemed to have accepted' an arbitration agreement when she continue[d] to work after the promulgation of the policy' “ (id., quoting Beletsis v. Credit Suisse First Boston Corp., 2002 WL 2031610 at *3 [SD N.Y.2002] ) and plaintiff's claim that she never received it was insufficient to raise a genuine issue of material fact.
The court further rejected plaintiff's claim that the arbitration agreement was unenforceable because the handbook provided that it did not “constitute an express or implied contract of employment or that the arbitration policy may be amended” since the language of the arbitration policy was distinct and mandatory and plaintiff was advised that her compliance with it was a condition of her employment. The court distinguished the disclaimer language found by the court in Harris, supra, to be entirely distinguishable from the disclaimer language in that case.
The Brown case has been cited with approval in a number of federal district court decisions in which the courts enforced such arbitration policies embodied in similar types of agreements such as the one found here, some of which even involved non-mutual promises to arbitrate or mediate (see Manigault, supra; Marciano v. DCH Auto Group, 2014 WL 1612976 [SD N.Y.2014] ; Isaacs v. OCE Bus. Serv., Inc., 968 F Supp 2d 564 [SD N.Y.2013] ; Penders v. Rigaku MSC, 2010 WL 2775846 [WD N.Y.2010] ; Baldeo v. Darden Rest., Inc., 2005 WL 44703 [ED N.Y.2005] ; Arakawa v. Japan Network Group, 56 F Supp 2d 349 [SD N.Y.1999] ; Gonzalez v. Toscorp Inc., 1999 WL 595632 [SD N.Y.1999] ; DeGetano v. Smith Barney, Inc ., 1996 WL 44226 [SD N.Y.1996] ; see also Matter of Ball (SFX Broadcasting Inc.), 236 A.D.2d 158 [3d Dept 1997], lv dismissed 91 N.Y.2d 921 [1998], lv denied 92 N.Y.2d 803 [1998] ; Kopple v. Stonebrook Fund Mgmt., LLC, 2004 N.Y. Slip Op 51948[U], 21 Misc.3d 1144[A] [Sup Ct, N.Y. County 2004], affd 18 AD3d 329 [1st Dept 2005], lv denied 5 NY3d 708 [2005] ; Nardi v. Povich, 2006 N.Y. Slip Op 51487[U], 12 Misc.3d 1188[A] [Sup Ct, N.Y. County 2006] ; Res v. Masterworks Dev. Corp., 2004 N.Y. Slip Op 51169[U], 5 Misc.3d 1003[A] [Sup Ct, N.Y. County 2004] ).
Thus, even though Command Security is not bound by an agreement to arbitrate, courts have held that there is consideration for the arbitration agreement in the at-will employment context as follows. First, if it is presented at the time of hire, courts hold that there is consideration for the arbitration agreement since it was a condition of hire (Matter of Ball, supra ). Second, if it is presented after hire, courts find that the employer's agreement to continue to employ the employee is deemed “ sufficient consideration to render an arbitration agreement binding' “ (Pomposi v. GameStop, Inc., 2010 WL 147196 at * 6 [D Conn 2010], quoting Capone v. Electric Boat Corp., 2007 WL 1520112 at *6 [D Conn 2007] ).
This Court perceives the Harris case, relied upon by Plaintiff, to be inapposite. In Harris, the acknowledgment form did more than just deny that the handbook was an employment contract. The form specifically recited that the handbook was not even “a legal document.” The thrust of the rationale of Harris was that, having inserted disclaimers in an effort to prevent the employee from being vested with any contractual rights, the employer could not be heard to turn around and claim that the handbook imposed rights on the employee. This case is entirely different. Plaintiff signed a form in which he specifically agreed to give the employer the option of arbitration in exchange for being offered and given employment. Far from being a case in which a right is being imposed upon Plaintiff against his will, this is case in which Plaintiff is seeking to avoid the consequences of his own agreement to give Defendant the right to elect arbitration if it so chooses.
Accordingly, the Court shall grant Defendant's motion, stay this proceeding, and compel Plaintiff to submit to arbitration in accordance with the Pre–Dispute Resolution Procedure set forth in the Employee Handbook.
CONCLUSION
The Court has considered the following papers in connection with these motions:
1)Notice of Motion to Stay the Proceedings and Compel Arbitration dated June 25, 2014;
2)Affidavit of Curtis Scott, sworn to June 25, 2014, Affidavit of William G. Miossi, Esq. dated June 25, 2014, together with the exhibits annexed thereto;
3)Memorandum of Law in Support dated June 25, 2014;
4)Affidavit in Opposition of Richard Graham, sworn to July 5, 2014;
5)Plaintiff's Memorandum of Law in Opposition dated July 5, 2014; and
6)Reply in Support of Defendant's Motion to Stay the Proceedings and Compel Arbitration dated July 10, 2014.
Based upon the foregoing papers, and for the reasons set forth above, it is hereby
ORDERED that the motion by Defendant Command Security Corporation to stay this proceeding and compel arbitration is granted; and it is further
ORDERED that Plaintiff Richard Graham and Defendant Command Security Corporation are directed to proceed to arbitration in accordance with the provisions found in the Pre–Dispute Resolution Procedure set forth in the Employee Handbook; and it is further
ORDERED that all further proceedings in this action as against Defendant Command Security Corporation are stayed pending the determination of the arbitration, subject to further Order of the Court.
The foregoing constitutes the Decision and Order of this Court.