Hernandez v. RNC Industries LLC.

UNITED STATES DISTRICT COURT 1:00 pm, Mar  06, 2024

EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT

--------------------------------X EASTERN DISTRICT OF NEW YORK

ALEX HERNANDEZ, individually and LONG ISLAND OFFICE

on behalf of all others similarly

situated, MEMORANDUM & ORDER

21-CV-04518 (JS)(ST)

Plaintiff,

-against-

RNC INDUSTRIES, LLC; ROBERT

DUGAN; and RICHARD TONYES,

Defendants.

--------------------------------X

APPEARANCES

For Plaintiff Alex Avraham Y. Scher, Esq.

Hernandez: James Patrick Peter O’Donnell, Esq.

Roman M. Avshalumov, Esq.

Helen F. Dalton & Associates, P.C.

80-02 Kew Gardens Road, Suite 601

Kew Gardens, New York 11415

For Defendants RNC Christopher A. Smith, Esq.

Industries, LLC; Robert Trivella & Forte, LLP

Dugan; and Richard 1311 Mamaroneck Avenue, Suite 170

Tonyes: White Plains, New York 10605

SEYBERT, District Judge:

Plaintiff Alex Hernandez (hereafter, “Plaintiff”) brings

this putative class action against Defendants RNC Industries, LLC,

Robert Dugan, and Richard Tonyes1 (hereafter, “RNC,” “Dugan,” and

“Tonyes” respectively; collectively “Defendants”) alleging:

1 Robert Dugan and Richard Tonyes are sued in their “individual capacities.”

(See Compl., ECF No. 1.)

(1) failure to pay overtime wages in violation of the Fair Labor

Standards Act (hereafter, “FLSA”) and New York Labor Law

(hereafter, “NYLL”); and (2) failure to provide written notice of

payrates, wage statements, and “other information” as required by

NYLL. (Compl. ¶¶ 48-64.) On February 4, 2022, Defendant moved to

compel arbitration and stay or dismiss the complaint (hereafter

“Motion to Compel”). (See Motion to Compel, ECF No. 16.) For the

reasons that follow, Defendants’ Motion to Compel is GRANTED and

this case is hereby STAYED. To the extent Plaintiff has any

plausible claims against Defendants, those claims are to be brought

properly before an arbitrator.

BACKGROUND

The Court presumes the parties’ familiarity with the

factual and procedural background of the case and recites the facts

only as necessary to adjudicate the pending motion.

The parties dispute when Plaintiff began working for

RNC. Plaintiff alleges he began working for RNC “from in or around

March 2018 until in or around September 2020.” (Compl. ¶ 8; Pl’s

Decl., ECF No. 22-1, ¶ 3.) Defendants contend Plaintiff did not

begin working at RNC until one year later, in May 2019, as

evidenced by the I-9 and pay rate notice forms executed on May 22,

2019. (Reply, ECF No. 28, at 8; Exhibit A, ECF No. 28-1 attached

to Arguetta Decl.) On May 22, 2019, the same date Plaintiff

executed his I-9 and pay rate notice forms, Plaintiff executed a

“Receipt of Employee Handbook Form” which stated, both in English

and in Spanish, in pertinent part:

I received and read a copy of the Employee

Handbook. I understand that the rules,

policies, and benefits contained in the

Employee Handbook may be updated, modified, or

deleted at any time and that it is my

responsibility to keep myself appraised of any

changes. I also understand that this handbook

contains a mandatory arbitration provision

with a class action waiver and that by

accepting and/or continuing my at-will

employment I agree to the binding arbitration

provisions set forth in this handbook.

(Receipt of Employee Handbook Form, ECF No. 18-1, at 74, attached

to Tonyes Decl. (emphasis added).) The Receipt of Employee

Handbook Form contained no other information except date and

signature blocks where Plaintiff was to, and did, confirm his

assent to the contract’s terms. (Id.)

The arbitration provision in the Employee Handbook

states:

ARBITRATION OF EMPLOYMENT DISPUTES

All claims from potential, current or former

employees of RNC accruing at any time pursuant

to all Federal, State and Local statutory

employment statutes including, but not limited

to, any claims for monies that may have been

owed for back wages, vacation, overtime,

prevailing wage or minimum wage claims,

including claims under the Fair Labor

Standards Act, the New York State Labor Law or

similar law, claims under Title VII of the

Civil Rights Act of 1964, the Americans with

Disabilities Act, the ADA Amendments Act of

2008, the Family and Medical Leave Act, the

Age Discrimination in Employment Act of 1967,

the Older Workers Benefit Protection Act, the

Genetic Information Nondiscrimination Act,

the Equal Pay Act, the Worker Adjustment

Retraining and Notification Act, and any

claims alleging violations of any state or

local law, statute, regulation, executive

order, or ordinance, including, but not

limited to, the constitution and laws of the

State of New York, the New York State Human

Rights Law and the New York Executive Law

(collectively “Covered Claims”) must be

submitted to binding arbitration before the

American Arbitration Association pursuant to

the AAA Employment Arbitration Rules and

Mediation Procedures then in effect. The costs

charged by the arbitrator shall be borne by

the Company and not the employee. No party

shall have the right to bring or participate

in a class, collective or other representative

proceeding concerning any Covered Claim in any

forum including any court of law or

arbitration. To be clear all Covered Claims

submitted to arbitration must be handled on a

singular individual basis.

(Employee Handbook, ECF No. 18-1, at 20-21, attached to Tonyes

Decl.)

Plaintiff maintains he was never provided with the RNC

Employee Handbook and he did not know “that such a handbook even

existed.” (Pl’s Decl. ¶¶ 13-14.) Rather, Plaintiff recalls

signing three documents in May 2019, which RNC personnel told him

were “registration-related OSHA documents.” (Id. ¶ 11, 26.) He

further recalls that two of those documents “contained [his]

contact information, and a spot for [him] to write down the

individual who had referred [him] to work for RNC” and a third

document which “contained a list of all the work and tasks that

RNC does.” (Id.) Plaintiff also avers “[n]o one told [him] that

by signing any of [these] documents . . . [he] would not be able

to bring a future lawsuit against RNC,” and he was unable to

understand the documents he signed because he could not “speak,

read, or write in English.” (Id. ¶¶ 10, 27; Opp’n, ECF No. 23, at

16.)

DISCUSSION

I. Legal Standard

The Federal Arbitration Act mandates courts to “direct

the parties to proceed to arbitration on issues to which an

arbitration agreement has been signed.” Daly v. Citigroup Inc.,

939 F.3d 415, 421 (2d Cir. 2019) (citing Dean Witter Reynolds,

Inc. v. Byrd, 470 U.S. 213 (1985)). “Where a party to an

arbitration agreement refuses to comply with that agreement, and

instead attempts to proceed in litigation, the other party may

move to stay the litigation . . . and compel arbitration.” Chen-

Oster v. Goldman, Sachs & Co., 449 F. Supp. 3d 216, 240 (S.D.N.Y.

2020), aff’d, No. 10-CV-6950, 2021 WL 4199912 (S.D.N.Y. Sept. 15,

2021). “The threshold question of whether the parties indeed

agreed to arbitrate is determined by state contract law

principles.” Nicosia v. Amazon.com, Inc. 834 F.3d 220, 229 (2d

Cir. 2016). In determining whether to compel arbitration, a court

must determine: (1) whether the parties agreed to arbitrate; (2)

the scope of the agreement; and (3) if federal statutory claims

are asserted, whether Congress intended those claims to be non-

arbitrable.” Daly, 939 F.3d at 421 (citations omitted).

“[M]otions to compel arbitration are governed by a

standard ‘similar to that applicable for a motion for summary

judgment’ [such that] a court must ‘draw all reasonable inferences

in favor of non-moving party.’” Barrows v. Brinker Rest. Corp.,

36 F.4th 45, 49 (2d Cir. 2022) (quoting Nicosia, 834 F.3d at 229).

Thus, “if there is a disputed question of material fact such that

the making of an arbitration agreement is in issue,” the Court

“shall proceed summarily to the trial thereof.” Id. (citing 9

U.S.C. § 4) (quotation alterations omitted). In addition, if an

alleged party to an arbitration agreement “categorically and

specifically” denies signing such an agreement, that evidence is

sufficient to create an issue of triable fact as to whether the

arbitration agreement is enforceable. Id. However, where no

specific denial is made, no issue of triable fact exists. Id.

(“When a party merely states that she cannot recall signing an

agreement (as opposed to denying that she has done so), such a

declaration ordinarily fails to create a triable issue of fact.

Likewise, where the facts alleged in a nonmovant’s declaration are

so contradictory that doubt is cast upon their plausibility, then

absent other evidence, granting the motion to compel may be

appropriate. Further, a party normally does not show the existence

of a genuine issue of fact merely by making assertions that are

based on speculation or are conclusory.”) (citations and

alterations omitted).

II. Analysis

A. The Arbitration Agreement Is Valid

The critical question before the Court is whether a valid

agreement to arbitrate was executed among the parties. Plaintiff

contends he cannot be bound by the arbitration agreement in the

employee handbook because: (1) he did not know the arbitration

agreement existed so he could not be bound by its terms; (2) he

believed the forms he signed were “registration” documents and did

not know they would prevent him from bringing claims against

Defendants in Court; and (3) he could not speak, read, or write in

English. (Opp’n at 14-16.) Defendants argue, in contrast:

(1) Plaintiff’s signing of an agreement acknowledging he received

the Employee Handbook containing a binding arbitration provision

gives rise, as a matter of law, to the “conclusive[] presump[tion]”

that Plaintiff knew the handbook’s “contents and assent[ed] to

them”; (2) the arbitration agreement was explicit and contained no

temporal limitation; and (3) Plaintiff’s claims that he was not

aware of the contents of the agreement or was misled as to the

contents have no merit because the Receipt of Employee Handbook

Form was provided in Plaintiff’s native language, Spanish, and

Plaintiff has failed to plead with particularity his claims of

fraudulent inducement. (Support Memo, ECF No. 19, at 7-10; Reply

at 4, 7-10.)

Here, Plaintiff’s claims that “to [his] knowledge, none

of the documents [he] signed had anything to do with not being

able to bring a future lawsuit against RNC” and that Defendants

misrepresented the Receipt of Employee Handbook Form to him as

“registration-related” documents, are not enough to create a

“disputed question of material fact” as to whether the arbitration

agreement is enforceable. (Pl’s Decl. ¶¶ 26-28); Barrows, 36 F.4th

at 49 (quoting Nicosia, 834 F.3d at 229). This is especially true

in light of the following circumstances: (1) Plaintiff does not

deny signing the Receipt of Employee Handbook Form; (2) the Receipt

of Employee Handbook Form clearly and unequivocally states:

I also understand that this handbook contains

a mandatory arbitration provision with a class

action waiver and that by accepting and/or

continuing my at-will employment I agree to

the binding arbitration provisions set forth

in this handbook;

(3) the Receipt of Employee Handbook Form was provided to Plaintiff

in Spanish, which Plaintiff admits is his primary language; and

(4) none of the “registration documents” which Plaintiff signed,

and which Plaintiff claims he was misled into signing, fit the

description of the Receipt of Employee Handbook Form. (See Opp’n,

in toto, and at 8 (lack of denial regarding signing the Receipt of

Employee Handbook Form and admitting Spanish is Plaintiff’s

“primary language”); compare Pl’s Decl. at ¶ 11 (describing the

forms Plaintiff was allegedly misled into signing as “contain[ing]

[his] contact information, and a spot for [him] to write down the

individual who referred [him] to work at RNC” and “contain[ing] a

list of all the work and tasks that RNC does”), with Receipt of

Employee Handbook Form (exclusively containing contract terms in

English and Spanish and signature blocks for Plaintiff’s name and

the date).)

As the Second Circuit instructed, where Plaintiff merely

states he “cannot recall” signing an agreement, as “opposed to

denying” he has done so, “such declaration ordinarily fails to

create a triable issue of fact” as to the enforceability of an

arbitration agreement. Barrows 36 F.4th at 51 (emphasis in

original). Plaintiff’s statement here that, “to his knowledge,”

he did not sign documents having “anything to do with not being

able to bring a future lawsuit against RNC,” does not amount to an

“unequivocal denial” that any such contract was made; thus it does

not create a triable issue of fact as to whether the arbitration

provision is enforceable. Id. (citing Interocean Shipping Co. v.

Nat’l Shipping & Trading Corp., 462 F.2d 673, 676 (2d Cir. 1972)

(“To make a genuine issue entitling the plaintiff to a trial by

jury, an unequivocal denial that the agreement had been made was

needed, and some evidence should have been produced to substantiate

the denial.”)).

Moreover, Plaintiff’s claim that he did not receive the

Employee Handbook referenced in the Receipt of Employee Handbook

Form does not create a triable issue of fact as to the

enforceability of the arbitration provision because “under New

York contract law,” Plaintiff “is deemed to have accepted the

arbitration policy by continuing to work after being advised” it

was his responsibility to “read and understand all of the company

policies including the arbitration policy.” Brown v. St. Paul

Travelers Cos., Inc., 331 F. App’x 68, 69 (2d Cir. 2009); see also

Gil v. Bensusan, No. 18-CV-10657, 2019 WL 12334706, at *3 (S.D.N.Y.

Oct. 30, 2019) (“[B]ecause [plaintiff] signed an Acknowledgment

form stating not only that he received the employee h[a]ndbook,

but also that he ‘received and read’ the Consent to Arbitration

policy found within it, [plaintiff’s] argument that he did not

receive either the handbook or the arbitration policy fails”).

Here, as in Brown and Gil, Plaintiff agreed via the

Receipt of Employee Handbook Form, that he “received and read a

copy of the Employee Handbook” and that “it is [his] responsibility

to keep [himself] appraised of any changes [to the policy].” Id.;

(Receipt of Employee Handbook Form). Plaintiff further agreed

“that by accepting and/or continuing [his] at-will employment [he]

agree[s] to the binding arbitration provisions set forth in [the

Employee] [H]andbook.” (Receipt of Employee Handbook Form.)

Plaintiff does not dispute he signed this Agreement, thereby making

him responsible for reading, obtaining, and understanding the

terms to which he agreed. (See Opp’n, in toto; Pl’s Decl., in

toto.) Therefore, Plaintiff’s argument that his non-receipt of

the Employee Handbook somehow invalidates his agreement to

arbitrate fails.

Plaintiff’s claim that he did not understand the terms

of the arbitration provision, specifically, that he did not know

he would be giving up his right to sue his employer in Court, is

similarly without merit. “Under New York Law, a party will not be

excused from his failure to read and understand the contents of a

document.” Gil, 2019 WL 12334706, at *3 (citing Victorio v. Sammy’s

Fishbox Realty Co., LLC, 2015 WL 2152703, at *11 (S.D.N.Y. 2014)).

Thus, Plaintiff cannot avoid the effect of his agreement to

arbitrate by now claiming he did not read or understand the

contents of his agreement. Id.

Finally, Plaintiff’s claim that he could not have agreed

to arbitrate his claims because he “cannot speak, read, or write

in English” is unavailing. (Opp’n at 14-16.) It is undisputed

that the Receipt of Employee Handbook Form was provided to

Plaintiff in both English, and Plaintiff’s “primary language,”

Spanish. (Id. at 8.) It is incomprehensible how Plaintiff,

provided with an agreement in his primary language, could somehow

avoid the consequences of the agreement by claiming he could not

speak a language different than the one utilized in the contract.

Indeed, even if, for some reason unbeknownst to the Court,

Plaintiff did not understand the terms of the agreement provided

in both English and Spanish due to a language barrier, the Second

Circuit has explicitly rejected the notion that a language barrier

could prevent the enforcement of contractual obligations. See

Rodriguez-Depena v. Parts Auth., Inc., 877 F.3d 122, 124 (2d Cir.

2017) (affirming district court order compelling arbitration in

FLSA action despite plaintiff’s claim that “his ability to read

English is limited” because “a language barrier does not prevent

the enforcement of contractual obligations”); see also Myskina v.

Conde Nast Publ’ns, Inc, 386 F. Supp. 2d 409, 415 (S.D.N.Y. 2005)

(“[Plaintiff cannot] avoid her obligations under the [contract]

because of her purported failure to read its contents, . . . or

because of a language barrier.”). Plaintiff’s attempt to avoid

the application of the arbitration provision based on the purported

language barrier thus fails.

B. The Claims at Issue are Arbitrable

Having found the parties agreed to arbitrate, the Court

next determines whether the scope of the agreement at issue covers

the claims alleged and considers whether Congress intended such

claims be arbitrable. Daly, 939 F.3d at 421. Here, the

arbitration provision contained in the Employee Handbook states,

in pertinent part:

All claims from potential, current or former

employees of RNC accruing at any time pursuant

to all Federal, State and Local statutory

employment statutes including, but not limited

to, any claims for monies that may have been

owed for back wages, vacation, overtime,

prevailing wage or minimum wage claims,

including claims under the Fair Labor

Standards Act, the New York State Labor Law or

similar law . . . must be submitted to binding

arbitration.

(Employee Handbook at 21.) Considering the explicit language of

the arbitration provision in the Employee Handbook, it cannot be

credibly disputed that Plaintiff’s FLSA and NYLL claims fall within

the scope of the arbitration provision. See Best Concrete Mix

Corp. v. Lloyd’s of London Underwriters, 413 F. Supp. 2d 182, 188

(E.D.N.Y. 2006) (“In light of the strong federal policy in favor

of arbitration, the existence of a broad agreement to arbitrate

creates a presumption of arbitrability which is only overcome if

it may be said with positive assurance that the arbitration clause

is not susceptible of an interpretation that covers the dispute.

Doubts should be resolved in favor of coverage.”) (citation

omitted). Accordingly, the Court finds the claims alleged by

Plaintiff are subject to arbitration under the terms outlined in

the Employee Handbook.

Finally, it is well-settled that FLSA and NYLL claims

are arbitrable. See Arrigo v. Blue Fish Commodities, Inc., 704 F.

Supp. 2d 299, 304 (S.D.N.Y. 2010), aff’d, 408 F. App’x 480 (2d

Cir. 2011) (“The Court therefore concludes that Congress did not

intend FLSA claims to be non-arbitrable.”); Sutherland v. Ernst &

Young LLP, 726 F.3d 290, 297 (2d Cir. 2013) (holding “the FLSA

does not include a ‘contrary congressional command’ that prevents

the underlying arbitration agreement from being enforced by its

terms”; and noting that, because “[plaintiff’s] FLSA claim must

proceed individually in arbitration pursuant to the Federal

Arbitration Act, so too must her NYLL claim”); see also Torres v.

United Healthcare Servs., Inc., 920 F. Supp. 2d 368, 376 (E.D.N.Y.

2013) (concluding “neither the plain language of the FLSA nor its

relevant legislative history evidence a congressional intent to

preclude employees from waiving their right to bring their FLSA

claims as part of a collective action”).

Having found there is valid, enforceable arbitration

agreement among the parties governing arbitrable FLSA and NYLL

claims, Defendants’ Motion to Compel is GRANTED insofar as it seeks

to compel arbitration of Plaintiff’s claims and stay the instant

litigation pending the completion of arbitration proceedings.

CONCLUSION

For the stated reasons,2 Defendants’ Motion to Compel is

GRANTED and this case is hereby STAYED. To the extent Plaintiff

has any plausible claims against Defendants, those claims are to

be brought properly before an arbitrator. The parties are directed

to inform the Court of any resolution of the arbitration

proceedings, or any other event that would affect the stay of this

matter, within 30 days of such resolution or event.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: March 6, 2024

Central Islip, New York

2 To the extent the parties raise any additional discernable arguments not

expressly discussed herein, the Court finds them to be without merit.