Accordingly, on the present record, I hold that the handbook did not supersede plaintiff's original employment contract.
2. Scope of the Agreement
Plaintiff contends that the arbitration clause does not extend to his claims under the ADA and the FMLA. I agree that this arbitration agreement is not sufficiently broad to encompass plaintiff's federal statutory claims.
While the scope of an arbitration agreement must be read in light of Congress's policy favoring arbitration, the reviewing court must decide whether a party's claims are within the scope of the agreement. Progressive, 991 F.2d at 45 (citing David L. Threlkeld & Co. v. Metallgesellschaft, Ltd., 923 F.2d 245, 249 (2d Cir.), cert. dismissed, 112 S. Ct. 17 (1991)). Generally, the court must broadly construe an arbitration agreement and resolve any doubts concerning its scope 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); Mitsubishi Motors, 473 U.S. at 626. The Second Circuit has interpreted this mandate to require arbitration "unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute." Roby, 996 F.2d at 1361; Progressive, 991 F.2d at 48.
A party cannot be bound to an arbitration agreement, however, if he or she did not actually agree to submit his or her specific claim to arbitration. AT & T Technologies v. Communications Workers of Am., 475 U.S. 643, 648, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986). The issue before this Court, then, is not whether an employee may agree to arbitrate employment discrimination claims.
Rather, the issue presented is whether this particular employee, by signing Turn On's employment contract, waived his statutory remedies under the ADA and FMLA.
The Ninth Circuit has held that "Congress intended there to be at least a knowing agreement to arbitrate employment disputes before an employee may be deemed to have waived the comprehensive rights, remedies, and procedural protections prescribed" in the civil rights statutes. Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1305 (9th Cir. 1994); see also Block v. Art Iron, Inc., 866 F. Supp. 380, 386 (N.D. Ind. 1994) ("ADA's legislative history very strongly suggests that ADA claims may not be arbitrated in the absence of an express, voluntary waiver of the right to assert the claim in the courts").
In this District, those judges who have had the opportunity to confront this issue have ordered arbitration where language in the arbitration agreement placed the employee plaintiff on notice that he or she was waiving his or her right to bring employment discrimination claims in the federal courts. See Maye, 897 F. Supp. at 107 (arbitration agreement referred to "employment disputes," which was specifically defined to include claims under Title VII and other employment statutes; court held that the agreement signed "could not have done more to put [plaintiffs] on notice" that they were waiving their right to bring employment discrimination claims in federal court); DeGaetano v. Smith Barney, Inc., No. 95 Civ. 1613, 1996 U.S. Dist. LEXIS 1140, 1996 WL 44226, at *5 (S.D.N.Y. Feb. 5, 1996) (arbitration agreement referred to "employment disputes," which was defined specifically to include claims under Title VII and other employment statutes); cf. Hall v. MetLife Resources, 1995 U.S. Dist. LEXIS 5812, at *3, No. 94 Civ. 0358, 1995 WL 258061, at *3-4 (S.D.N.Y. May 3, 1995) (holding that the Supreme Court in Gilmer unambiguously held that an employee who executes a Form U-4, which states that "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm," is bound to arbitrate statutory discrimination claims).
In the present case, the arbitration clause did not put plaintiff on notice that he was waiving his right to pursue claims of employment discrimination in federal court. Indeed, the arbitration clause is poorly worded and ambiguously phrased. It states that "any claim or controversy among or between the parties hereto pertaining to the Corporations. . . or respecting any matter contained in this Agreement of any difference as to the interpretation of any of the provisions of this Agreement " is subject to binding arbitration. (Emphasis added). Hence, the agreement does not provide for the arbitration of any and all disputes arising from the agreement, but only disputes "pertaining to the Corporations" or "respecting . . . the interpretation of any of the provisions" of the Agreement. The phrase "pertaining to the Corporations" is unclear and none of the provisions of the agreement makes reference to the civil rights statutes or to discrimination claims generally. Nor does the agreement make any reference to termination other than to provide that it may be terminated on two weeks notice. Accordingly, the clause contains no language that would have reasonably notified plaintiff that he was waiving his right to litigate federal employment discrimination claims in federal court.
Finally, when plaintiff entered into the agreement in 1986, almost eight years before his claims arose, the ADA and the FMLA did not even exist. Given the absence of any language referring to employment discrimination claims generally, it cannot be said that the parties intended the arbitration clause to encompass plaintiff's claims under the ADA or the FMLA. Accordingly, I find that Turn On's arbitration clause is not susceptible to an interpretation that would include these claims.
Defendant's motion to compel arbitration of plaintiff's claims under the ADA and the FMLA is denied.
Dated: New York, New York
March 22, 1996
United States District Judge