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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1380%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 1036

## Text

(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.

lil

TABLE OF CONTENTS

Page
ee an kak baw ane 1
Statement Pursuant to Rule 29.6 ............ il
eet cakns cas ill
Table of Cited Authorities .................... iv
gs ke aN oak ecanecaceens Vil
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:
pit oe Be Ff Serpe ree re ee eee ro 2
J pik 8 xk pf rere rt wan rere reir Pere 1
PUSC, © 1GHIMAD oc cs. chi ss cesses oe
ro Bib Poe ej er ee ery ree l

vi
Cited Authorities

Page
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Bee OEM: vcs eae ee kc carne 2
ee eas On FON od ba ks vee AA Rees 2
Oe Ge. F Tare OE Oe i oo ed inane eke 2
42 U.S.C. § RGR Svs KES VEA yi ecns Sanh ee weds 7

vil

TABLE OF APPENDICES

Page
Appendix A — Opinion Of The United States Court
Of Appeals For The Second Circuit Dated And
RPO FEE LF, OO ous chav ccekics shonsws la

Appendix B — Memorandum And Order Of The
United States District Court For The District Of
New York Dated September 9, 1999 And Filed
NRE SU ROE ind kinkgtse babes ua ek 9a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1380%3A1. Public record. Not legal advice.