Petition for Writ of Certiorari — New York University v. Rogers

(LD Svereme Court, 0,5,

FILED

ae 90-540 oct 10 200

GFHICt Ut cnt CLERN

IN THE

Supreme Court of the United States

NEW YORK UNIVERSITY,

Petitioner,

v.

SUSAN ROGERS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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PETITION FOR A WRIT OF CERTIORARI

S. ANDREW SCHAFFER

Counsel of Record

TERRANCE J. NOLAN

Attorneys for Petitioner

70 Washington Square South

New York, NY 10012

(212) 998-2257

162467 @) Counsel Press LLC

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

Should an action under the Americans with Disabilities

Act and the Family and Medical Leave Act be stayed

because the issues are referable to arbitration under a

collective bargaining agreement, pursuant to the Federal

Arbitration Act?

it

STATEMENT PURSUANT TO RULE 29.6

Petitioner, New York University, is a not for profit

education corporation under the laws of the State of

New York. New York University has no parent corporation

and issues no stock.

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TABLE OF CONTENTS

Page

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Statement Pursuant to Rule 29.6 ............ il

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Table of Cited Authorities .................... iv

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eh ek ea wk 4 ca ka Od bees oe l

Statement of Jurisdiction ..................... l

Statutory Provision Involved .................. l

I gg aca nw acvecescace 2

Reasons for Granting the Writ ................. 3

I. The Decision Of The Court Of Appeals

Conflicts With The Decisions Of The

I fo ha iw kab on sans esaacss 3

J. The Circuits Are In Conflict And The

Question Is Important .................. 8

OI Se 9

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Alexander v. Gardner-Denver, 415 U.S. 36 (1974)

Joa eas ba Rae OER ROR ee Ree eae 4,5, 6,8

Asplundh Tree Expert Co. v. Bates, 71 F.3d 592

Se ay BOE vs cieengakesssaeeer a peehces 3

Austin v. Owens-Brockway Glass Container, Inc.,

0S Pues Oe COE Us CE A kd Ab cen seeuesk es 8

Bender v. A.G. Edwards & Sons, 971 F.2d 698

Eh fe ay: eee ee 3

Circuit City Stores v. Adams, 1208S. Ct. 2004 (May

ee 8 errr rere 2

Cole v. Burns International Security Services,

pGe Fe COGS CAA. Cas TS a evs cca wea ss 3

Craft v. Campbell Soup Co., 161 F.3d 1199 (9th Cir.

i nay Perr ern pare Fey ed Sk Bea 3

Dean Witter Reynolds v. Byrd, 470 U.S. 213 (1985)

Ee rE ee POT Ee we san eae ele 3

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

Be EEE 444s a ng anotehae eae 4

Koveleskie v. SBC Capital Markets, Inc., 167 F.3d

Fe Cte Gas SE. 4 6 4-0o 0 a ew kk d tee ke 3

Cited Authorities

Page

Maryland Casualty Co. v. Realty Advisory Board on

Labor Relations, 107 F.3d 979 (2d Cir. 1997) .. 3

Mitsubishi Motors Corp. v. Soler Chrysler -

Plymouth, Inc., 473 U.S. 614 (1985) .......... 4

Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 CU9GD) ow ccc ctw ce cscswes 4

Shearson/American Express, Inc. v. McMahon, 482

TE Ree So) eee ree Serre +

Southland Corp. v. Keating, 465 U.S. 1 (1984) ... 3

United Food & Commercial Workers, Local Union

No. 7R v. Safeway Stores, Inc., 889 F.2d 940

Se ROE 6 Sv aware dea ed wae ew enone 3

Wright v. Universal Maritime Service Corp.,

FED Wie TORO Ni inte 4 Seed eae kas 43,4, 7.3

Statutes:

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vi

Cited Authorities

Page

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42 U.S.C. § RGR Svs KES VEA yi ecns Sanh ee weds 7

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TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Second Circuit Dated And

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Appendix B — Memorandum And Order Of The

United States District Court For The District Of

New York Dated September 9, 1999 And Filed

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1

Petitioner respectfully petitions for a writ of certiorari

to review the order of the Second Circuit Court of Appeals

in this case.

OPINIONS BELOW

The Second Circuit opinion (App. A) is reported at

Rogers v. New York University, 220 F.3d 73, 164 LRRM

(BNA) 2854, 6 Wage & Hour Cas. 2d (BNA) 379 (2d Cir.

2000). The district court opinion (App. B) is reported at

Rogers v. New York University, 162 LRRM (BNA) 2294,

6 Wage & Hour Cas. 2d (BNA) 375 (S.D.N.Y. 1999).

STATEMENT OF JURISDICTION

The order of the Second Circuit Court of Appeals was

entered on July 17, 2000.

The jurisdiction of this Court is irivoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISION INVOLVED

This case involves the Federal Arbitration Act, 9 U.S.C.

§ 1 et seq., which provides, in section 3, 9 U.S.C. § 3:

If 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 in such suit or proceeding 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

2

had in accordance with the terms of the agreement,

providing the applicant for the stay is not in

default in proceeding with such arbitration.

STATEMENT OF THE CASE

The respondent Susan Rogers is a former employee of

the petitioner New York University who alleges causes of

action under the Americans with Disabilities Act (ADA),

42 U.S.C. § 12101 et seg., and the Family .nd Medical Leave

Act (FMLA), 29 U.S.C. § 2601 et seq. The jurisdiction of

the district court was invoked under 28 U.S.C. § 1331

(general federal question jurisdiction), 28 U.S.C.

§ 1343(a)(4) (civil rights), and 29 U.S.C. § 2617(a)(2)

(FMLA).

The University made a motion to stay the action and

refer the issues to arbitration in accordance with section 3

of the Federal Arbitration Act (FAA). The district court

denied the motion. The University appealed in accordance

with section 16(a)(1)(A) of the Federal Arbitration Act,

9 U.S.C. § 16(a)(1)(A). The court of appeals affirmed.

The FAA requires in mandatory terms that a district court

stay any action in which any issue in the suit is referable to

arbitration under a written agreement. The claims in this case

are referable to arbitration in the clearest of terms. Under

the applicable collective bargaining agreement, claims of

violations of federal laws against disability discrimination,

as well as alleged violations of the FMLA, are subject to

arbitration. '

1. There is presently pending before this Court the issue of the

applicability of the FAA to contracts of employment. Circuit City

Stores v. Adams, 120 S. Ct. 2004 (May 22, 2000) (No. 99-1379).

This was not an issue in the present case in the courts below.

(Cont'd)

3

REASONS FOR GRANTING THE WRIT

I.

THE DECISION OF THE COURT OF APPEALS

CONFLICTS WITH THE DECISIONS OF THE

SUPREME COURT

The decisions of this Court have strongly endorsed the

policies underlying the Federal Arbitration Act. This Court

has emphasized that parties to arbitration agreements are

encouraged by the FAA to have disputes removed from the

courts “and into arbitration as quickly and easily as possible”.

Southland Corp. v. Keating, 465 U.S. 1, 7 (1984). Congress’

“preeminent concern” in passing the FAA was to enforce

agreements to arbitrate. Dean Witter Reynolds v. Byrd, 470

U.S. 213, 221 (1985).

(Cont'd)

The FAA, in section 1 (9 U.S.C. § 1), provides in part,

“. . . nothing herein contained shall apply to contracts of employment

of seamen, railroad employees, or any other class of workers engaged

in foreign or interstate commerce.” Most Circuits, like the Second

Circuit, have held that this exclusion applies only to employees in

the transportation industries. Eg. Maryland Casualty Co. v. Realty

Advisory Board on Labor Relations, 107 F.3d 979 (2d Cir. 1997);

United Food & Commercial Workers, Local Union No. 7R v.

Safeway Stores, Inc., 889 F.2d 940 (10th Cir. 1989); Koveleskie v.

SBC Capital Markets, Inc., 167 F.3d 361 (7th Cir. 1999); Bender v.

A.G. Edwards & Sons, 971 F.2d 698 (1 1th Cir. 1992); Cole v. Burns

International Security Services, 105 F.3d 1465 (D.C. Cir. 1997);

Asplundh Tree Expert Co. v. Bates, 71 F.3d 592 (6th Cir. 1995).

The Ninth Circuit has held to the contrary. Craft v. Campbell Soup

Co., 161 F.3d 1199 (9th Cir. 1998).

4

The prior decisions of this Court under the FAA have

established that statutory claims, in general, are subject to

arbitration by written agreement. Mitsubishi Motors Corp.

v. Soler Chrysler - Plymouth, Inc., 473 U.S. 614 (1985)

[Sherman Act]; Shearson/American Express, Inc. v.

McMahon, 482 U.S. 220 (1987) [Securities Acts]; Rodriguez

de Quijas v. Shearson/American Express, Inc., 490 U.S. 477

(1989) [RICO]. This Court fully relied upon the principles

of these cases in deciding Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20 (1991). In Gilmer, this Court, in expansive

terms, held that, under a written agreement, claims under

the Age Discrimination in Employment Act (ADEA) were

required to be arbitrated. The Court in Gilmer found that the

substantive objections to the arbitration of statutory claims

were outdated and inconsistent with the statutory and policy

endorsement of arbitration as a preferred method of dispute

resolution. Jd. at 28-30.

Amidst the strong endorsement by this Court of

arbitration under the FAA, an anomaly, illustrated by the

opinions below, has developed in the lower courts concerning

the arbitration of statutory employment claims under

collective bargaining agreements. This Court recently has

recognized this anomaly and provided valuable direction on

its resolution in Wright v. Universal Maritime Service Corp.,

525 U.S. 70 (1998). In Wright, this Court considered “the

question whether a general arbitration clause in a collective

bargaining agreement (CBA) requires an employee to use

the arbitration procedure for an alleged violation of the

Americans with Disabilities Act. . .”. /d. at 72. In doing so,

this Court observed that this issue “brings into question two

lines of our case law”, represented by Gilmer, supra

and Alexander v. Gardner-Denver, 415 U.S. 36 (1974).

Id. at 75. In Gardner-Denver, this Court held that an

eer

5

arbitration award under a collective bargaining agreement’s

non-discrimination clause (which did not incorporate

statutory provisions) did not bar a subsequent suit under Title

VII of the Civil Rights Act of 1964. The Court acknowledged

in Wright that “[t]here is obviously some tension between

these two lines of cases.” Jd. at 76.

That “tension” could not be resolved definitively by the

Court in Wright — as it can be in this case — because the

CBA in Wright had no non-discrimination provision at all

and “contains no explicit incorporation of statutory

anti-discrimination requirements.” 520 U.S. at 80. The Court

in Wright recognized that Alexander v. Gardner-Denver had

lost at least some of its vitality and noted “whether or not

Gardner-Denver's seemingly absolute prohibition of union

waiver of employees’ federal forum rights survives Gilmer,

Gardner-Denver at least stands for the proposition that the

right to a federal judicial forum is of sufficient importance

to be protected against less-than-explicit union waiver in a

CBA.” Jd. The Court did not uphold the lower court’s

dismissal in Wright because the CBA did not contain “a clear

and unmistakable incorporation of employment-

discrimination laws.” /d. at 81. The employer’s argument in

Wright regarding the rather general provisions of the CBA

was found wanting by the Court because “that is not the same

as making compliance with the ADA a commitment that

would be subject to the arbitration clause.” /d. The Court

also noted that “[i]t may well be that ordinary textual analysis —

of the CBA will show that matters which go beyond the

interpretation and application of contract terms are subject

to arbitration”, but the Court would not presume that to be

the case. /d. at 79.

6

In this case, the CBA provisions at issue hardly could

be more explicit. Federal anti-discrimination statutory

provisions are clearly incorporated in the agreement and

alleged violations are subject to arbitration. The “ordinary

textual analysis” referred to by this Court in Wright compels

the conclusion that the issues are referable to arbitration.

Unlike Wright, the CBA here does contain the “explicit

incorporation of statutory anti-discrimination requirements.”

The CBA in this case provides that “There shall be no

discrimination as defined by applicable Federal, New York

State and New York City laws ...” (App. p. 2a), and that

“Employees are entitled to all provisions of the Family and

Medical Leave Act of 1993 that are not specifically provided

for in this Agreement” (App. p. 2a). The Court in Wright

gave valuable and explicit guidance on the question of what

type of contractual provisions would require arbitration.

Those are the provisions before this Court in this case, an

agreement with the “explicit incorporation of statutory anti-

discrimination requirements,” to which the Court in Wright

referred.

The uncertainty in the lower courts is reflected in the

Second Circuit’s opinion here. The Second Circuit’s “Reason

#1” for its opinion (App. p. 3a) relies exclusively upon

Gardner-Denver without reference to this Court’s guidance

in Wright.? The Court’s “Reason #2” constmes this Court’s

2. While the court below reads Gardner-Denver as a sweeping

prohibition on the arbitration of statutory claims under a collective

bargaining agreement, this Court in Gardner-Denver, while holding

that an arbitration award would not bar a subsequent action, clearly

recognized, and strongly endorsed, that arbitration under collective

bargaining agreements did and would continue to resolve many

claims of employment discrimination. 415 U.S. at 55.

7

guidance in Wright so narrowly as to make it virtually

indistinguishable from its “Reason #1”.

The Court below grafted on to this Court’s statement in

Wright that there be an “explicit incorporation of statutory

anti-discrimination requirements” the condition, not set forth

in Wright, that the collective bargaining agreement identify

“the anti-discrimination statutes by name or citation”

(App. p. 7a). The collective bargaining agreement provision

here (“There shall be no discrimination as defined by

applicable Federal . . . laws”) is more effective than the rote

recitation of statutory citations (which may have little

meaning to employees consulting the text) and has the further

advantage of incorporating anti-discrimination requirements

as they may be amended or as new statutory provisions are

adopted from time to time.

The provisions of the CBA in this case, clearly

incorporating statutory claims, provides this Court with the

opportunity, not present in Wright, to decide whether such

provisions in CBAs are effective, particularly in view of

Congress’ endorsement of the arbitration of ADA claims.’

3. The American with Disabilities Act, in 42 U.S.C. § 12212,

provides: “... where appropriate and to the extent authorized by

law, the use of alternative means of dispute resolution, including

. arbitration, is encouraged to resolve disputes arising under

this chapter.”

8

Il.

THE CIRCUITS ARE IN CONFLICT AND THE

QUESTION IS IMPORTANT

Collective bargaining agreements in the United States

customartly include non-discrimination clauses and

comprehensive arbitration provisions. As the court below

noted (App. p. 4a) the majority of Circuits appear to adhere

to an interpretation of this Court’s opinion in Gardner-

Denver which makes virtually any agreement to arbitrate

these claims not effective. Most of these Circuit decisions

came before this Court’s opinion in Wright. The Fourth

Circuit has held to the contrary, enforcing the agreements,

as would be the case with virtually any other subject matter

covered by the FAA. Austin v. Owens-Brockway Glass

Container, Inc., 78 F.3d 875 (4th Cir. 1996).

The petition here presents the Court with the important

opportunity to decide the question not presented squarely in

- Wright and to harmonize this area of the law with the Court’s

arbitration jurisprudence.

9

CONCLUSION

For the reasons set forth above, the petition for a writ

certiorari should be granted.

October, 2000

Respectfully submitted,

S. ANDREW SCHAFFER

Counsel of Record

TERRANCE J. NOLAN

Attorneys for Petitioner

70 Washington Square South

New York, NY 10012

(212) 998-2257