Meeg v. The Heights Casino

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

BONITA MEEG,

Plaintiff, MEMORANDUM & ORDER

17-CV-4059 (NGG) (CLP)

-against-

THE HEIGHTS CASINO and CHRISTIAN

PETRINA,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Bonita Meeg brings this employment discrimination lawsuit

against her former employer, the Heights Casino, and the Heights

Casino’s general manager, Christian Petrina. (Compl. (Dkt. 1).)

Meeg alleges that Defendants unlawfully discriminated against

her because of her age, gender, and disability, in violation of the

New York City Human Rights Law and the Age Discrimination in

Employment Act.

Defendants move to compel arbitration of Plaintiff’s claims. For

the reasons explained below, Defendants’ motion is DENIED.

BACKGROUND

Unless otherwise noted, the following facts are undisputed.1

Where the facts are disputed, the court notes the dispute and

credits Plaintiff’s version of the facts. See Meyer v. Uber Techs.,

Inc., 868 F.3d 66, 74 (2d Cir. 2017) (“Courts deciding motions

1 Defendants accept the factual allegations in the complaint for the pur-

poses of this motion. (See Mem. in Supp. of Mot. to Compel (“Mem.”) (Dkt.

48) at 2 n.1.)

to compel . . . draw[] all reasonable inferences in favor of the

non-moving party.”).2

Plaintiff began working for the Heights Casino in 1998. (Compl.

¶ 19.) She was terminated on or around June 30, 2016. (Id.

¶ 128.) Plaintiff alleges that in both 2014 and 2015, she was ter-

minated for the summer and subsequently rehired in the fall. (Id.

¶¶ 73, 80.) Documents produced by Defendants in discovery in-

dicate that, at the very least, Plaintiff retained her health

coverage during the periods she claims to have been terminated.

(See Health Care Documentation (Dkt. 49-1) at ECF 90-103.)

In September 2013, Defendants presented Plaintiff with an Em-

ployee Handbook. (2013 Casino Heights Employee Handbook

(“2013 Handbook”) (Dkt. 49-1) at ECF 34.) Plaintiff signed a

form acknowledging receipt of the 2013 Handbook on Septem-

ber 20, 2013. (Receipt of 2013 Employee Handbook (“2013

Handbook Receipt”) (Dkt. 49-1) at ECF 32.) The front page of

the 2013 Handbook, which does not include a table of contents,

states that the purpose of the handbook is “informational only”

and that it “is not intended to create any contractual rights or

obligations regarding employment with the Heights Casino.”

(2013 Handbook at ECF 34.) The 2013 Handbook Receipt in-

cludes a certification that Plaintiff understood that “that

nothing in the Employment Handbook is to be interpreted . . . as

conferring any contractual rights upon me.” (2013 Handbook Re-

ceipt at ECF 32.) Notwithstanding these disclaimers of

contractual rights, the 2013 Handbook contained an arbitration

provision nested under the “Termination of Employment” head-

ing. (2013 Handbook at ECF 49.) The provision reads, in full:

2 When quoting cases, unless otherwise noted, all citations and quotation

marks are omitted and all alterations are adopted.

If a dispute between an employee and The Casino cannot be

settled by negotiation, the parties agree to proceed to bind-

ing arbitration administered under the Employment

Arbitration Rules of the American Arbitration Association.

Judgment on the award may be entered in any court having

jurisdiction.

(Id.)

In June 2015, Defendants issued Plaintiff a revised Employee

Handbook. (2015 Casino Heights Employee Handbook (“2015

Handbook”) (Dkt. 49-1) at ECF 53.) Plaintiff signed a form ac-

knowledging receipt of the 2015 Handbook on July 1, 2015.

(Receipt of 2015 Employee Handbook (“2015 Handbook Re-

ceipt”) (Dkt. 49-1) at ECF 88.) The 2015 Handbook includes a

table of contents (2015 Handbook at ECF 54-55) and a distinct

section titled “Compulsory Arbitration” (id. at ECF 84). It also

contains a disclaimer of contractual rights similar to the 2013

Handbook. The 2015 Handbook states: “This Handbook is infor-

mational only . . . . The polices and provisions contained in this

Handbook do not create express or implied contractual rights or

obligations with respect to any matters contained herein.” (Id. at

ECF 56.) The arbitration provision in the 2015 Handbook is more

extensive than that in the 2013 Handbook, but neither the arbi-

tration provision nor the remainder of the handbook states that

an employee’s acceptance of arbitration is a condition of contin-

ued employment. (Id. at ECF 84.)

Plaintiff modified the 2015 Handbook Receipt before signing it.

(2015 Handbook Receipt at ECF 84.) Specifically, Plaintiff struck

through the reference to compulsory arbitration, so that the cer-

tification on her 2015 Handbook Receipt read: “I acknowledge

that, except for the policy of at will employment and compul-

sory arbitration over disputes, the terms and conditions of my

employment . . . may be modified . . . at any time.” (2015

Handbook Receipt at ECF 88.) Below the certification, Plaintiff

wrote “Being that I have an EEOC Complaint filed in 2014, I

am not able . . . to sign the compulsory arbitration.” (Id.)

Plaintiff filed her complaint on July 7, 2017. (Compl.) After lim-

ited discovery, Defendants filed the fully briefed motion to

compel on April 19, 2019. (See Mot. to Compel Arbitration (Dkt.

47); Mem.; Pl. Mem. in Opp. to Mot. to Compel (“Opp.) (Dkt.

50); Reply in Supp. of Mot. to Compel (“Reply”) (Dkt. 52).)

LEGAL STANDARD

The Federal Arbitration Act (“FAA”) provides that written agree-

ments to arbitrate are “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 “is a congressional decla-

ration of a liberal federal policy favoring arbitration agreements,

notwithstanding any state substantive or procedural policies to

the contrary.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 24 (1983). “This policy is founded upon a de-

sire to preserve parties’ ability to agree to arbitrate, rather than

litigate, their disputes.” Starke v. SquareTrade, Inc., 913 F.3d 279,

288 (2d Cir. 2019). Under Section 4 of the FAA, a party “ag-

grieved by the alleged failure, neglect, or refusal of another to

arbitrate under a written agreement for arbitration” may file a

motion to compel, which a court must grant “upon being satisfied

that the making of the agreement for arbitration or the failure to

comply therewith is not in issue.” 9 U.S.C. § 4; see also AT&T Mo-

bility LLC v. Concepcion, 563 U.S. 333, 354-55 (2011). Despite

the FAA’s “liberal federal policy favoring arbitration agreements,”

CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012), “arbi-

tration is a matter of contract and a party cannot be required to

submit to arbitration any dispute which he has not agreed so to

submit,” In re Am. Express Fin. Advisors Sec. Litig., 672 F.3d 113,

127 (2d Cir. 2011) (quoting Howsam v. Dean Witter Reynolds,

Inc., 537 U.S. 79, 83 (2002)).

A motion to compel arbitration requires the court to address two

issues: (1) whether the parties have entered into a valid agree-

ment to arbitrate; and (2) if so, whether the dispute at issue falls

within the scope of the parties’ agreement to arbitrate. See In re

Am. Express Fin. Advisors Sec. Litig., 672 F.3d at 128; see also

Granite Rock Co. v. Int’l Brotherhood of Teamsters, 561 U.S. 287,

299 (2010) (“[C]ourts should order arbitration of a dispute only

where the court is satisfied that neither the formation of the par-

ties’ arbitration agreement nor (absent a valid provision

specifically committing such disputes to an arbitrator) its en-

forceability or applicability to the dispute is in issue.”). The first

question—whether the parties have agreed to arbitrate in the

first place—“is one only a court can answer, since in the absence

of any arbitration agreement at all, questions of arbitrability

could hardly have been clearly and unmistakably given over to

an arbitrator.” VRG Linhas Aereas S.A. v. Matlin Patterson Global

Opportunities Partners II L.P., 717 F.3d 322, 325 n.2 (2d Cir.

2013) (quotation marks omitted). In evaluating the second ques-

tion—whether the scope of the agreement to arbitrate covers the

dispute at issue—“courts presume that the parties intend courts,

not arbitrators, to decide . . . disputes about arbitrability.” BG

Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34 (2014). The

question of whether an agreement to arbitrate exists between the

parties is governed by state contract law. Meyer, 868 F.3d at 73-

74.

In deciding a motion to compel arbitration, “the court applies a

standard similar to that applicable to a motion for summary judg-

ment.” Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003);

see also Wachovia Bank, Nat’l Ass’n v. VCG Special Opportunities

Master Fund, Ltd., 661 F.3d 164, 172 (2d Cir. 2011) (“If there is

a genuinely disputed factual issue whose resolution is essential

to the determination of the applicability of an arbitration provi-

sion, a trial as to that issue will be necessary; but where the

undisputed facts in the record require the matter of arbitrability

to be decided against one side or the other as a matter of law, we

may rule on the basis of that legal issue and ‘avoid the need for

further court proceedings.’” (quoting Bensadoun, 316 F.3d at

175)). As a result, allegations related to arbitrability are evalu-

ated to determine “whether they raise a genuine issue of material

fact that must be resolved by a fact-finder at trial.” Schnabel, 697

F.3d at 113. In addition, “the party resisting arbitration bears the

burden of proving that the claims at issue are unsuitable for ar-

bitration.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91

(2000); see also Whitehaven S.F., LLC v. Spangler, 45 F. Supp. 3d

333, 342 (S.D.N.Y. 2014) (“Whether it argues that arbitration is

improper because the arbitration agreement is invalid under a

defense to contract formation, or asserts that the arbitration con-

tract does not encompass the claims at issue, either way, the

resisting party shoulders the burden of proving its defense.”). In

evaluating a motion to compel arbitration, the court may con-

sider “all relevant, admissible evidence submitted by the parties

and contained in pleadings, depositions, answers to interrogato-

ries, and admissions on file, together with affidavits.” Meyer, 868

F.3d at 74.

DISCUSSION

Under New York law, a court may only compel arbitration when

“the evidence establishes . . . [a] clear, explicit and unequivocal

agreement to arbitrate.” Fiveco, Inc. v. Haber, 11 N.Y.3d 140, 144

(2008). “Arbitration agreements are considered contracts,”

Nat’l Credit Union Admin. Bd. v. Goldman, Sachs & Co., 775

F.3d 145, 148 (2d Cir. 2014), and under New York law, “[t]o

create a binding contract, there must be a manifestation of mu-

tual assent sufficiently definite to assure that the parties are

truly in agreement with respect to all material terms.” Express

Indus. & Terminal Corp. v. New York State Dep’t of Transp., 93

N.Y.2d 584, 589 (1999). “In determining whether the parties

entered into a contractual agreement . . . it is necessary to look

. . . to the objective manifestations of the intent of the parties

as gathered by their expressed words and deeds.” Brown Bros.

Elec. Contractors v. Beam Const. Corp., 41 N.Y.2d 397, 399

(1977).

Defendants assert that the Parties entered into a binding arbi-

tration agreement in both the 2013 Handbook and the 2015

Handbook. Each is considered in turn.

A. The 2013 Handbook

The “objective manifestations” of Defendants’ intent with re-

gard to the 2013 Handbook are explicit. Defendants meant for

the 2013 Handbook to be “informational only;” it was “not in-

tended to create any contractual rights or obligations

regarding employment with the Heights Casino.” (2013 Hand-

book at ECF 34 (emphasis supplied).) As another court in this

circuit has explained, “[h]aving inserted these disclaimers in

an apparent effort to avoid vesting [Plaintiff] with contractual

rights, [Defendants] cannot conveniently choose to ignore

them and argue that the Handbook imposed contractual obli-

gations on [Plaintiff].” U.S. ex rel. Harris v. EPS, Inc., No. 05-

CV-212, 2006 WL 1348173, at *5 (D. Vt. May 16, 2006) (ap-

plying Vermont law).

Defendants’ initial brief entirely ignores the disclaimer of

rights and obligations in the 2013 Handbook and focuses in-

stead on the general enforceability of arbitration agreements

within employee handbooks. (See Mem. at 7-11; Reply at 2-3);

see also, e.g., Arakawa v. Japan Network Grp., 56 F. Supp. 2d

349, 352 (S.D.N.Y. 1999). This misses the forest for the trees.

Defendants do address the issue in their reply, but rely on two

factually distinct cases—Brown v. St. Paul Travelers Co., 559 F.

Supp. 2d 288, 292 (W.D.N.Y.2008), aff’d, 331 F. App’x 68 (2d

Cir. 2009) and Isaacs v. OCE Bus. Servs., Inc., 968 F. Supp. 2d

564, 571 (S.D.N.Y. 2013)—while omitting the case that pre-

sents the closest factual analogue.

In each Brown and Issacs, the court considered a situation

where the employee was “advised of the policy and that com-

pliance with it [was] a condition of employment.” Isaacs, 968

F. Supp. 2d at 571 (citing Brown, 559 F. Supp. 2d at 292). In

Brown, for example, the employee was informed via email that

her “agreement to abide by [the arbitration agreement] was ‘an

express condition’ of continuing employment.” Brown, 559 F.

Supp. 2d at 290.3 Here, nothing in the arbitration provision,

the remainder of 2013 Handbook, or the record indicates that

acceptance of the arbitration provision was a condition of em-

ployment. (See generally 2013 Handbook at ECF 34.) Instead,

the 2013 Handbook was explicitly “informational.”

More similar to this case is Ex rel. Harris, which held that an

arbitration provision contained within a handbook that in-

cluded a disclaimer that the “[h]andbook does not constitute

an employment contract and is not intended to create contrac-

tual obligations of any kind” was unenforceable because the

disclaimer precluded a finding that the parties intended to en-

ter into an arbitration agreement.4 2006 WL 1348173, at *1;

3 Also, the 2013 Handbook does not have a table of contents and the arbi-

tration provision is nested under the “Termination of Employment”

heading. (See 2013 Handbook at ECF 34, 49.) While this may not rise to

the level of the provision being “a hidden clause intended to bind employ-

ees to arbitration without adequate notice,” Isaacs, 968 F. Supp. 2d at 571,

it is factually distinct from Isaacs, where the arbitration policy was “found

under a separate and bolded ‘Dispute Resolution Policy’ heading.” Isaacs,

968 F. Supp. 2d at 571.

4 Although Harris applied Vermont law, it here relies on a basic principle

of contract law that is followed in New York: Compelling arbitration re-

quires a “clear, explicit and unequivocal agreement to arbitrate.” Fiveco, 11

N.Y.3d at 144. This is evidenced by the fact that Brown applied New York

law and distinguished Harris not based on choice of law, but because the

employee handbook in that case did “not contain the same disclaiming lan-

guage as was present in Harris and which led that court to conclude that

the arbitration agreement had no legal effect.” Brown, 559 F. Supp. 2d at

292.

see also Sherry v. Sisters of Charity Med. Ctr., No. 98-CV-6151

(JG), 1999 WL 287738, at *5 (E.D.N.Y. May 4, 1999) (“[C]on-

sidering that the handbook’s introduction states, ‘This booklet

is not a contract,’ an employee would have no reason to view

. . . the handbook’s grievance procedure any differently than

the other non-contractual provisions in the handbook.”).

That the 2013 Handbook was not intended by the parties to cre-

ate a binding agreement to arbitrate disputes is further supported

by the 2013 Handbook Receipt signed by Plaintiff. By signing the

receipt, the Plaintiff “certif[ied]” that she “under[stood] . . . that

nothing in the Employment Handbook is to be interpreted . . . as

conferring any contractual rights upon me.” (2013 Handbook Re-

ceipt at ECF 32.) While Defendants rely on the 2013 Handbook

Receipt as evidence that the Parties mutually agreed to enter into

a binding contract to arbitrate their disputes (see Mem. at 8-9),

the wording of the receipt invalidates their argument.5 A binding

arbitration agreement confers contractual rights on, and creates

contractual obligations for, all parties involved. See, e.g., Meyer v.

Starwood Hotels & Resorts Worldwide, Inc., No. 00-CV-8339

(JSR), 2001 WL 396447, at *1 (S.D.N.Y. Apr. 18, 2001) (“[In] a

contract to arbitrate disputes respecting employment, . . . the mu-

tually binding nature of the arbitration clause constitutes valid

consideration.”). Here, Defendants’ “expressed words and

deeds,” Brown Bros. Elec., 41 N.Y.2d at 399, reveal that Defend-

ants intended the 2013 Handbook to confer no contractual

rights upon Plaintiff and to ensure that Plaintiff certified her

understanding of the same. Because the contractual right to

arbitrate disputes inheres in both Parties (see 2013 Handbook

5 The wording of the 2013 Handbook Receipt also distinguishes this case

from cases such as Arakawa. There, the court enforced an arbitration pro-

vision in part because the acknowledgement form signed by the employee

“reiterated the language [of the arbitration policy] and stated that [the

employee] understood and agreed to this arbitration policy.” Arakawa, 56

F. Supp. 2d at 351.

at ECF 49 (“If a dispute between an employee and The Casino

cannot be settled by negotiation, the parties agree to proceed to

binding arbitration . . . .”)), the plain language of the 2013

Handbook Receipt precludes the formation of a valid arbitra-

tion agreement.

Finally, even if the handbook were ambiguous as to whether

the disclaimers against contractual rights and obligations apply

to the arbitration provision, Defendants would still come up

short. Because New York contract law requires that “ambiguous

language should be construed against the interest of the drafting

party,” Shaw Grp. Inc. v. Triplefine Int’l Corp., 322 F.3d 115, 121

(2d Cir. 2003), any ambiguity must be resolved to find that the

disclaimers apply to the arbitration provision.

For the foregoing reasons, the 2013 Handbook is not a binding

agreement to arbitrate between the parties.

B. The 2015 Handbook

The Parties also did not enter into a binding agreement to arbi-

trate in the 2015 Handbook. As an initial matter, the 2015

Handbook suffers from many of the same issues that plague the

2013 Handbook. The 2015 Handbook also expressly states that

the “policies and provisions contained in this Handbook do not

create express or implied contractual rights or obligations with

respect to any matters contained herein.” (2015 Handbook at

ECF 56.) As the purported arbitration agreement is “contained

[t]herein,” Defendants again “objective[ly] manifest[ed]” their

intent to not oblige Plaintiff to arbitrate disputes. See Brown

Bros. Elec., 41 N.Y.2d at 399.

Here, however, Plaintiff also expressed her own intent to not

be bound by the arbitration provision through her alterations

to the 2015 Handbook Receipt. Defendants acknowledge that

“Plaintiff wrote on the July 2015 Handbook Receipt that she

could not sign the compulsory arbitration policy in light of her

pending EEOC charge” (Mem. at 11; see also 2015 Handbook Re-

ceipt at ECF 88), but argue that she indicated her acceptance of

the arbitration provision by continuing to work for Defendants.

Defendants are half right. They are correct to point out that

conduct can create a contract between parties, but they mis-

step when they assert that Plaintiff’s continued employment

indicated her assent to the handbook’s arbitration provision.

In fact, Plaintiff’s continued employment is evidence that De-

fendants accepted her modifications to the 2015 Handbook

Receipt. In Brown v. St. Paul Travelers Companies, Inc., the Sec-

ond Circuit explained:

Under New York law, the conduct of the parties may lead to

the inference of a binding agreement: A contract implied in

fact may result as an inference from the facts and circum-

stances of the case, although not formally stated in words,

and is derived from the presumed intention of the parties as

indicated by their conduct. It is just as binding as an express

contract arising from declared intention, since in the law

there is no distinction between agreements made by words

and those made by conduct.

331 F. App’x 68, 70 (2d Cir. 2009) (summary order). However,

“[i]t is a fundamental principle of contract law that a valid ac-

ceptance must comply with the terms of the offer and, if

qualified with conditions[,] it is equivalent to a rejection and

counteroffer.” Woodward v. Tan Holding Corp., 820 N.Y.S.2d

126, 128 (2d Dep’t 2006); see also Krumme v. WestPoint Ste-

vens Inc., 143 F.3d 71, 83 (2d Cir. 1998) (“A proposal to accept

[an] offer if modified or an acceptance subject to other terms

and conditions is equivalent to an absolute rejection of the of-

fer.”); Thor Properties, LLC v. Willspring Holdings LLC, 988

N.Y.S.2d 47, 49 (1st Dep’t 2014) (“If . . . the offeree responds

by conditioning acceptance on new or modified terms, that re-

sponse constitutes both a rejection and a counteroffer which

extinguishes the initial offer.”).

Here, Plaintiff did not accept the terms of the compulsory ar-

bitration provision in the 2015 Handbook. The 2015

Handbook Receipt, as modified by Plaintiff, reads: “I

acknowledge that, except for the policy of at will employment

and compulsory arbitration over disputes, the terms and con-

ditions of my employment . . . may be modified . . . at any

time.” (2015 Handbook Receipt at ECF 88.) Below the certifica-

tion, Plaintiff wrote “[b]eing that I have an EEOC Complaint

filed in 2014, I am not able . . . to sign the compulsory arbitra-

tion.” (Id.) Plaintiff’s conditions on her certification in the

2015 Handbook Receipt amounted to a rejection of Defend-

ants’ offer to agree to arbitrate disputes and a counteroffer to

work for Defendants without entering into an arbitration

agreement. Defendants had the option of rejecting Plaintiff’s

counteroffer. They could have terminated her employment

upon receipt of the modified certification or they could have

directed Plaintiff to sign an unmodified certification upon pain

of termination. They did neither. Therefore, Defendants’ ac-

ceptance of Plaintiff’s counteroffer is “derived from the

presumed intention of the [Defendants] as indicated by their

conduct” in continuing to employ Plaintiff. See Brown, 331 F.

App’x at 70.

Because neither the 2013 Handbook nor the 2015 Handbook

creates a binding agreement to arbitrate between the Parties,

Defendants motion to compel arbitration is DENIED.

CONCLUSION

For the foregoing reasons, Defendants’ (Dkt. 47) motion to com-

pel arbitration is DENIED. The parties are DIRECTED to contact

the chambers of Chief Magistrate Judge Cheryl L. Pollak regard-

ing next steps in the case.

SO ORDERED.

Dated: Brooklyn, New York

March 27, 2020

_/s/ Nicholas G. Garaufis__

NICHOLAS G. GARAUFIS

United States District Judge