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HERKO v. METROPOLITAN LIFE INS. CO.

January 29, 1997

DEBRA R. HERKO, Plaintiff,
v.
METROPOLITAN LIFE INSURANCE COMPANY, MICHAEL R. MAZZELLA, JR., Defendants.



The opinion of the court was delivered by: FOSCHIO

 JURISDICTION

 This matter was referred to the Hon. Hugh B. Scott by the Hon. Richard J. Arcara on October 12, 1995, for all pre-trial procedures. On October 4, 1996, Judge Scott recused himself from the case. The matter was then referred to the undersigned on October 10, 1996, and is presently before the court on Plaintiff's motion to compel discovery, filed on September 18, 1996, Defendants' motion to compel arbitration pursuant to the Federal Arbitration Act and to stay all federal proceedings, filed on October 17, 1996. *fn1"

 Plaintiff, Debra R. Herko, filed this action on September 20, 1995, claiming discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 ("Title VII"), and under the New York State Human Rights Law, N.Y.Exec.Law § 296. Specifically, Herko charges that while employed by Defendant Metropolitan Life Insurance Company ("MetLife"), she was subjected to sexual harassment, sexual discrimination, retaliation, and, eventually, constructively discharged by MetLife and her supervisor, Defendant Michael R. Mazzella, Jr. ("Mazzella") ("the Defendants"). Herko seeks injunctive and other equitable relief and compensatory and punitive damages for injuries she sustained as a result of alleged sexual harassment and other unlawful employment practices by the Defendants.

 Defendants' answer ("the Answer"), filed on October 16, 1995, denies these allegations and raises three affirmative defenses, including that (1) Herko's pending action in New York State Supreme Court, Erie County, bars Herko from seeking relief in this court, (2) Herko has failed to mitigate her damages, and (3) Herko failed to commence this action in accordance with the procedures prescribed by applicable statutes. *fn2"

 On October 19, 1995, Herko served Defendants with a Request for Production of Documents - First Set ("Discovery Request # 1"). On November 13, 1995, Defendants notified Herko of their objections to her requests for certain documents, particularly personnel files and job-related descriptions, claiming such requests were unreasonable, unduly burdensome, require the disclosure of confidential information, and protected by either the attorney-client or attorney work product privilege. Defendants responded to the balance of Discovery Request # 1 on December 1, 1995. Herko contends that the requested personnel files are highly relevant to this lawsuit as they may reasonably lead to the discovery of admissible evidence. As Defendants continue to refuse to provide Herko with responses to the disputed Discovery Requests, Herko moved, on August 19, 1996, to compel Defendants' to provided the requested information.

 On September 19, 1996, MetLife filed a Notice of Motion to compel arbitration and to stay the federal proceedings in this action pending the outcome of arbitration, claiming that Herko's execution of a Uniform Application for Securities Industry Registration with the National Association of Securities Dealers ("NASD") bound her to submit to arbitration any claim that could arise between Herko and her firm, including employment disputes. Herko filed, on October 10, 1996, an affidavit in opposition to the motion to compel arbitration, along with her attorney's affidavit and a memorandum of law, arguing that she was never provided with the rules of the NASD upon execting the registration form, and that Defendants have waived their right to compel arbitration because their delay in requesting has resulted in prejudice to Herko as she has already incurred substantial expenses in pursuing her claims in court. Herko claims, moreover, that she executed the registration form as a prerequsite to becoming a registered securities dealer with the NASD, but that as she subsequently failed the licensing test, Herko never became fully registered with NASD and was, therefore, not bound by the terms of the registration form and as such could not be required to arbitrate her claims in accordance with terms of the registration form. Mazzella joined in MetLife's motions to compel arbitration and to stay proceedings by submitting a letter to the court from his attorney, filed on October 31, 1996. Although Defendants did not respond to Herko's motion to compel discovery, on October 10, 1996, Herko filed a sur-reply in the form of a memorandum of law in support of her motion to compel discovery.

 Oral argument of these motions was deemed unnecessary.

 For the reasons as set forth below, Defendants' motion to compel arbitration and to stay the federal proceedings is GRANTED; Herko's motion to compel discovery is DISMISSED as moot.

 FACTS3

 Herko commenced employment with MetLife on November 22, 1993, as a temporary special agent and was assigned to MetLife's A37 University Branch Office ("the MetLife office"). At all times relevant to this matter Mazzella was the manager of the MetLife office and as such he possessed the actual or apparent authority to discipline, fire, or otherwise affect Herko's compensation, terms, conditions, or privileges of employment with MetLife.

 According to Herko, she quickly became a highly productive employee who generated much business for MetLife. On January 31, 1994, Herko was appointed as an Account Representative, the position which she held until March 13, 1995 when Herko alleges she was constructively discharged because of the alleged sexual harassment and retaliation. In conjunction with her position as an account representative Herko executed, on February 2, 1994, a Uniform Application for Securities Industry Registration ("Form U-4") as required of all NASD licensed security representatives prior to becoming registered with their respective firms. Herko does not dispute that it was a condition of her employment that she execute the form. The Form U-4 provides, in pertinent part, that the applicant, Herko, agrees to "arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer or any other person that is required to be arbitrated under the rules, constitution, or by-laws of the organizations indicated in item 10, as may be amended from time to time, and that any arbitration award rendered against me may be entered as a judgement in any court of competent jurisdiction."

 Although Herko executed the Form U-4, she subsequently failed the licensing test and never actually became registered with the NASD. Nevertheless, Herko continued to work in the MetLife office until March 1995 when she claims she was constructively discharged from MetLife. Herko contends that during that time period she was subjected to a sexually hostile and discriminatory work environment. Specifically, Herko alleges that beginning in February 1994, Mazzella made "unwelcome sexual advances and overtures" to her which included sexually suggestive behavior, requests for dates and the spreading of rumors that Mazzella and Herko were involved in an intimate relationship. Herko also claims that Mazzella withheld product support from her in an attempt to coerce her into acquiescing in Mazzella's demands and that the lack of product support adversely affected her compensation. Herko further claims that despite her repeated refusals to Mazzella's demands, Mazzella persisted in his solicitations toward her until November 1994 when Mazzella's wife confronted Herko at the MetLife office ...


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