Yet if part I, section 1, is read as restrictively as in Farrand, so as to limit the scope of mandated arbitration, a curious internal inconsistency is created within the Code. This is because part II, section 8, specifically identifies "persons associated with members" as among those who can initiate the arbitration proceedings mandated by part I, section 1. However, such associated persons are not among the specific parties set forth in the earlier section. It makes no sense to include "associated persons" within the class of parties who can initiate arbitration proceedings if their disputes do not come within part I. This point is particularly relevant to the issue before this court, since plaintiff does not dispute that he is a "person associated with a member." See 15 U.S.C. § 78c(a) (21) (1994) (definitional provision of Securities Exchange Act of 1934) ("the term 'person associated with a member' . . . when used with respect to a . . . registered securities association means any partner, officer, director, or branch manager of such member . . . or any employee of such member.") (emphasis added); NASD By-Laws, Art. I, P 1101(q) ("person associated with a member" defined as "every sole proprietor, partner, officer, director, or branch manager of any member . . ., or any natural person engaged in the investment banking or securities business who is directly or indirectly controlling or controlled by such member. . . .") (emphasis added).
Plainly, then, grammatical analysis alone cannot define the scope of the arbitration mandate in the pre-amendment Code. What the cited excerpts from Farrand and Kidd reveal is ambiguity as to the pre-amendment Code's applicability to employment disputes. Indeed, plaintiff's counsel conceded as much at oral argument. (Tr. of Oral Argument, Oct. 14, 1994, at 3-4.)
Federal law dictates that in suits governed by the FAA, any ambiguities "concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983); accord Mastrobuono v. Shearson Lehman Hutton, Inc., 131 L. Ed. 2d 76, 115 S. Ct. 1212, 1218 (1995); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. at 626. The Eleventh Circuit relied on this body of law in further support of its holding that employment disputes were within the arbitration mandate of the pre-amendment NASD Code. See Kidd v. Equitable Life Assurance Soc'y, 32 F.3d at 519. The Seventh Circuit, in reaching the opposite conclusion, virtually ignored it. See Farrand v. Lutheran Bhd., 993 F.2d at 1255 (noting that Supreme Court holding in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. at 26, "did not establish a grand presumption in favor of arbitration," without discussing Moses H. Cone Memorial Hosp. or its progeny).
This court is, of course, bound by Supreme Court rulings requiring liberal construction of arbitration agreements. Although the law will not force parties into arbitration when such was clearly not their intent, see Chevron U.S.A., Inc. v. Consolidated Edison Co., 872 F.2d 534, 537-38 (2d Cir. 1989), "intentions are generously construed as to issues of arbitrability." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. at 626. Where, as here, the arbitration clause is a broad one, such construction is particularly appropriate. See AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986) (broad arbitration clause in collective bargaining agreement covered parties' dispute). Indeed, the Second Circuit has held that arbitration clauses should be construed "as broadly as possible," and arbitration ordered "unless it can be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute." McMahan Sec. Co. v. Forum Capital Markets, 35 F.3d at 88 (quoting S.A. Mineracao Da Trindade-Samitri v. Utah Int'l, Inc., 745 F.2d 190, 194-95 (2d Cir. 1984)).
Applying these principles to this case, the court is compelled to order arbitration of plaintiff's claims. Certainly, it cannot be said that the pre-amendment NASD Code cannot be interpreted to cover employment disputes. Indeed, even the Seventh Circuit conceded that such a construction "would not exceed the bounds of reason." Farrand v. Lutheran Bhd., 993 F.2d at 1255. The broad language in part I, section 1, referring to "any dispute" arising out of a member's business supports arbitration of employee disputes, as does the reference in part II, section 8, to persons associated with members as among those who can initiate arbitration proceedings. Basic contract construction principles make it appropriate to read part II, section 8, and part I, section 1, together to form a consistent whole. See Restatement (Second) of Contracts § 202(5) cmt. d (1979) ("where the whole can be read to give significance to each part, that reading is preferred."); id. at § 203(a) cmt. b (1979) (where possible, contract to be interpreted as a whole, with no part being superfluous).
This was the approach taken by the New York Court of Appeals in Singer v. Jefferies & Co., Inc., 78 N.Y.2d 76, 571 N.Y.S.2d 680, 575 N.E.2d 98 (1991). At issue in that case was whether the NASD Code required arbitration of a dispute between two persons associated with members for alleged injury to reputation. Plaintiff argued that it did not because, despite the reference in part II, section 8, to associated persons initiating arbitration proceedings, "the only disputes that 'shall be arbitrated,' even under section 8, are those 'eligible for submission under part I of the Code,' and those do not include disputes between associates of members." 78 N.Y.2d at 86, 571 N.Y.S.2d at 685 (quoting plaintiff's brief). The New York court rejected this argument:
In our view, a distinction must be drawn between a dispute eligible for arbitration under the section and the parties bound to arbitrate the dispute. In other words, section 1 of part I contains two components. First, it defines the substantive type of controversy which is within the scope of arbitration. Second, it defines the class of persons who may seek or be required to arbitrate such a controversy. Section 8 extends this class to include persons associated with a member who have an eligible dispute with other such associates.
78 N.Y.2d at 86, 571 N.Y.S.2d 685-86 (emphasis added); accord F.N. Wolf & Co., Inc. v. Bowles, 160 Misc. 2d at 757, 610 N.Y.S.2d at 760 (citing Singer in holding that employment disputes are subject to NASD arbitration).
Further supporting the inclusion of employment disputes within the scope of mandated arbitration under the Code is the NASD's own interpretation of its rules. See, e.g., Fogel v. Chestnutt, 533 F.2d 731, 753 (2d Cir. 1975) ("an exchange has a substantial degree of power to interpret its own rules"), cert. denied, 429 U.S. 824, 50 L. Ed. 2d 86, 97 S. Ct. 77 (1976); Castellano v. Prudential-Bache Sec., Inc., 1990 U.S. Dist. LEXIS 7352, at *4, No. 90 Civ. 1287, 1990 WL 87575, at *2 (S.D.N.Y. June 19, 1990) ("a Court should permit national securities exchanges to construe and apply their own rules."). In proposing the 1993 amendments, the NASD stated that it was simply endeavoring to clarify what had always been the case: employment disputes involving members and persons associated with them are arbitrable under the Code. See Order Approving Proposed Rule Change Relating to the Scope of the NASD Arbitration Code of Procedure, 58 Fed. Reg. 45,932 (1993). Although the Seventh Circuit was skeptical of this assertion, viewing it as belated, see Farrand v. Lutheran Bhd., 993 F.2d at 1255-56 (rejecting petition for rehearing), the statement is, in fact, consistent with a 1987 Securities and Exchange Commission ("SEC") release reporting the views of NASD Governors.
Of concern to the NASD in 1987 was the fact that some member firms were requiring registered representatives to sign employment agreements waiving their arbitration rights under the NASD Code. The NASD thought the widespread adoption of such provisions "would have the effect of denying registered representatives access to the NASD's arbitrations facilities in case of an employment dispute between them and a member firm, and forcing them to begin more costly and time-consuming litigation in the courts." Proposed Rule Change by National Association of Securities Dealers Relating to Amendments to Code of Arbitration Procedure, 52 Fed. Reg. 9232 (1987) (emphasis added). This statement, taken together with the NASD's concurrent proposal to amend its Code to prohibit members from requiring such waivers, id., demonstrates that the NASD viewed its Code of Arbitration as applying to employment disputes and was concerned that employee rights to arbitration not be infringed by member firms. That the NASD took this position outside the context of litigation focusing on the arbitrability of employment disputes under the Code, and long before the decisions in Farrand or Kidd, refutes any suggestion that the NASD's position in 1993 was self-serving. See also Association of Inv. Brokers v. Securities and Exch. Comm'n, 219 U.S. App. D.C. 259, 676 F.2d 857, 861 (D.C. Cir. 1982) (Ruth Bader Ginsberg, J.) ("NYSE and NASD rules mandate arbitration of employer-employee disputes, and did so, to the same extent as they do now, before the development of a uniform form under SEC auspices") (dicta).
Thus, whether the court applies the 1993 amendments to the NASD Code of Arbitration or the pre-amendment Code, it holds that the scope of mandated arbitration includes employment disputes between member firms and persons associated with them.
II. The Statutory Nature of Plaintiff's Claims
At oral argument, plaintiff's counsel suggested that the nature of Pitter's claims -- alleging discrimination in violation of Title VII and 42 U.S.C. § 1981 -- made them inappropriate for resolution through arbitration. This court disagrees.
The Supreme Court has made plain that the "duty to enforce arbitration agreements is not diminished" simply because the claims at issue are "founded on statutory rights." Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226, 96 L. Ed. 2d 185, 107 S. Ct. 2332 (1987). This is because a party that agrees to arbitration does not thereby "forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. at 628. Arbitral forums are recognized as "readily capable" of resolving disputes based even on complex federal statutes. Shearson/American Express, Inc. v. McMahon, 482 U.S. at 232. Thus, even in the case of statutory claims, if a party has agreed to arbitrate, it will be held to its agreement unless it can show that Congress specifically intended "to preclude a waiver of judicial remedies for the statutory rights at issue." Id. This burden can be met by reference to the text of the statute, its legislative history, or by demonstration of an "inherent conflict between arbitration and the statute's underlying purposes." Id. at 227.
The application of these principles to statutes that prohibit employment discrimination was made plain by the Supreme Court in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26, 111 S. Ct. 1647. In that case, plaintiff claimed that defendant terminated his employment at age 62 in violation of the Age Discrimination in Employment Act ("ADEA"). Gilmer had previously signed a U-4 form -- the same form signed by Pitter here -- to register as a securities representative with the New York Stock Exchange. Rule 347 of the NYSE required arbitration of "any controversy . . . arising out of the employment or termination of employment" of a registered representative. Id. at 23. The Supreme Court held that Gilmer was bound by his U-4 agreement to abide by Rule 347 and thus, that his lawsuit should be stayed pending arbitration. The Court found nothing in the text or history of the ADEA to preclude arbitration. Similarly, it found no inconsistency between the important social policy goals of the statute and the use of an arbitral forum. 500 U.S. at 26-34.
That same term, the Supreme Court remanded Dean Witter Reynolds, Inc. v. Alford, 500 U.S. 930, 114 L. Ed. 2d 456, 111 S. Ct. 2050 (1991), a Title VII case, to the Fifth Circuit for further consideration in light of Gilmer. Alford, a stockbroker with Dean Witter, had sued her employer for gender discrimination. On remand, the Fifth Circuit held that "the ADEA and Title VII are similar civil rights statutes," both of which were subject to arbitration under federal law. Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 229 (5th Cir. 1991).
Although the Second Circuit has not ruled on the question of whether civil rights claims under Title VII are subject to arbitration, virtually every other circuit court to consider the issue has reached the same result as the Fifth Circuit in Alford. Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d at 1487 (10th Cir. 1994); Bender v. A.G. Edwards, 971 F.2d 698, 699 (11th Cir. 1992); Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932, 935 (9th Cir. 1992); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 307 (6th Cir. 1991). The district courts in this circuit are similarly unanimous in holding that Title VII claims are arbitrable. Maye v. Smith Barney, Inc., 897 F. Supp. 100, 109 (S.D.N.Y. 1995), leave to appeal denied, Kelsey Maye v. Smith Barney, Inc., 903 F. Supp. 570, 1995 WL 656380 (S.D.N.Y. 1995); Gateson v. ASLK-Bank, N.V., 1995 U.S. Dist. LEXIS 9004, No. 94 Civ. 5849, 1995 WL 387720, at *2 (S.D.N.Y. June 29, 1995); Hall v. Metlife Resources, 1995 U.S. Dist. LEXIS 5812, 1995 WL 258061, at *3; Moore v. Interacciones Global, Inc., 1995 U.S. Dist. LEXIS 971, 1995 WL 33650, at *2; DiCrisci v. Lyndon Guar. Bank of New York, 807 F. Supp. 947, 952 (W.D.N.Y. 1992); Scott v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 1992 U.S. Dist. LEXIS 13749, No. 89 Civ. 3749, 1992 WL 245506, at *7 (S.D.N.Y. Sept. 14, 1992).
Indeed, any doubt as to Congress's willingness to allow arbitration to address statutory discrimination claims was put to rest by § 118 of the Civil Rights Act of 1991, which states: "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution including . . . arbitration, is encouraged . . . ." Civil Rights Act of 1991, Pub. L. No. 102-166, § 118, 1991 U.S. Code Cong. & Admin. News (105 Stat.) 1071, 1081 (codified at 42 U.S.C. 1981 note (1994) (Alternative Means of Dispute Resolution)).
There is only one case -- not cited by plaintiff -- that lends any support to his argument that he should not be ordered to arbitrate his Title VII and § 1981 claims: Prudential Ins. Co. v. Lai, 42 F.3d 1299. Therein, the Ninth Circuit held that "a Title VII plaintiff may only be forced to forego her statutory remedies and arbitrate her claims if she has knowingly agreed to submit such disputes to arbitration." Id. at 1305. The Lai plaintiffs alleged that they had been misled into thinking that the U-4 forms they signed to register with the NASD were only test applications. Thus, they argued, they had never entered into a knowing agreement to arbitrate. Id. at 1301. The Ninth Circuit agreed, but its broad ruling went beyond the discrete facts of the case. The court held that plaintiffs had not knowingly waived a judicial forum for their Title VII claims since (1) the U-4 forms -- even if they had been understood by the signatories -- did not specify the precise types of disputes subject to arbitration, and (2) the pre-amendment NASD Code -- even if it had been read by the registering parties -- did not apply to employment disputes. Id. (citing Farrand).
This court has already explained why it rejects Farrand's interpretation of the pre-amendment Code. But implicit in Lai's conclusions is a suggestion that goes beyond Farrand: that federal law favoring arbitration and requiring liberal construction of arbitration agreements is not applicable to statutory claims of discrimination. This is unsupported by any legal authority and, indeed, at odds with the Supreme Court's decision in Gilmer v. Interstate/Johnson Lane Corp.. In Gilmer, plaintiff had signed a broad U-4 application, and it was that document that was held to be the contract binding him to arbitrate his ADEA claim. 500 U.S. at 25 n.2 ("the arbitration clause at issue is in Gilmer's securities registration application, which is a contract with the securities exchanges . . . ."). Thus, the fact that a U-4 form does not specifically identify employment claims -- or any other types of claims -- as among those to be arbitrated does not mean that a registrant has failed knowingly to enter into an arbitration agreement. Indeed, the lack of specificity only highlights the breadth of the agreement: to arbitrate "any dispute, claim or controversy that may arise between me and my firm . . . that is required to be arbitrated under the rules . . . of the organizations with which I register . . . ." (emphasis added).
To support its holding, Lai points to a statement in a report by the House Education and Labor Committee made in connection with the Civil Rights Act of 1991. Therein, the Committee noted
that the use of alternative dispute resolution mechanisms is intended to supplement, not supplant, the remedies provided by Title VII. Thus, for example, the Committee believes that any agreement to submit disputed issues to arbitration, whether in the context of a collective bargaining agreement or in an employment contract, does not preclude the affected person from seeking relief under the enforcement provisions of Title VII . . . . The Committee does not intend for the inclusion of [§ 118] to be used to preclude rights and remedies that would otherwise be available.
H.R. Rep. No. 40(I), 102nd Cong. 1st Sess., reprinted in 1991 U.S. Code Cong. & Admin. News 549, 635.
In fact, the excerpt speaks not at all to what terms will or will not qualify as an agreement to arbitrate. It only expresses a concern that Congress's encouragement of arbitration not be understood to "supplant," but only to "supplement," otherwise available statutory remedies.
The excerpt may raise a question posed by this court to the parties: what level of judicial review is appropriate after a Title VII claim has been arbitrated? This issue, however, need not be resolved at this time. Indeed, it will be ripe for consideration only if either side seeks review of the arbitral decision.
The single issue before this court is whether these proceedings should be stayed while arbitration of plaintiff's claim is pursued. Because this court finds that Pitter did enter into a broad arbitration agreement, because it finds the scope of that agreement -- whether governed by the NASD Code before or after its amendment in 1993 -- to include employment disputes, and because there is no reason to think that Congress intended statutory discrimination claims not to be arbitrated, the court hereby grants the stay as requested by defendant.
Plaintiff having agreed to arbitrate any dispute arising between himself and Prudential in conformity with the rules of the NASD, and those rules requiring arbitration of employment disputes, this court hereby stays these proceedings while the parties pursue arbitration.
Dated: Brooklyn, New York
November 20, 1995
UNITED STATES DISTRICT JUDGE