The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:
Kathryn Brennan brings this civil rights action against her former
employer, Bally Total Fitness Corp. ("Bally"), pursuant to Title VII of
the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. § 2000e et
seq., and the Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C. § 1201 et seq., alleging that she was the victim of sexual
harassment and disability discrimination. Bally now moves to dismiss the
Complaint and to compel arbitration in accordance with the provisions of
its arbitration agreement, the Employee Dispute Resolution Procedure
("EDRP"), and Sections 3 and 4 of the Federal Arbitration Act ("FAA"),
9 U.S.C. § 3 and 4. Bally also argues that the Title VII action is
untimely. For the reasons set forth below, Bally's motion is denied
pending further discovery.
Brennan began working for Bally in January 1996. See Complaint
("Compl.") ¶ 8. Due to a pattern of harassment and discrimination,
Brennan was forced to quit her job in August 2000. See id. ¶ 32. On
August 19, 2000, Brennan filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC"). See id. ¶ 33. On January
8, 2001, the EEOC issued Brennan a Right-to-Sue Letter. See id. This
action was commenced two weeks later.
In December 1998, while employed at Bally, Brennan received a fax
requesting that she and her co-workers attend an educational meeting
about sexual harassment. See Affidavit of Kathryn Brennan ("Brennan
Aff.") ¶ 8. The meeting was run by Fred Infante, the head of Bally's
Human Resources Department for the New York Region. See id. On December
17, 1998, Brennan attended this "training session", id. ¶ 9, where
the employees were shown a video depicting incidents of sexual
harassment. See id.
As soon as the video ended, Infante distributed a lengthy document, the
EDRP, which he described as containing procedures for bringing employment
discrimination claims.*fn1 See id. Infante told the employees to quickly
review the EDRP, sign it and return it. See id. When someone asked what
would happen if the EDRP were not signed and returned, Infante responded
that anyone who did not sign the EDRP would not be considered for
promotions. See id. ¶ 10.
At that time, Infante left the room for several minutes to make a
telephone call. See id. ¶ 11. After Infante returned, he collected
the EDRPs, checking aloud that each one was signed before accepting it.
See id. Infante never discussed the contents of the EDRP or indicated why
the employees had to sign it. See id. ¶ 12. Further, Infante neither
offered the employees a sufficient opportunity to review the EDRP, nor
recommended that the employees show the document to an attorney before
signing it. See id. ¶ 11. Worried about losing her job, Brennan
promptly signed and returned the EDRP. See id. Brennan maintains that she
did not understand the legal significance of the document, nor was she
told that the EDRP would effect her pending complaint against her
previous supervisor.*fn2 See id. ¶¶ 15-16. Brennan claims that had she
the EDRP would effect her pending complaint, she would not
have signed it. See id. ¶ 16.
Since the time Brennan signed the EDRP, Bally has twice unilaterally
modified it. See Infante Cert. ¶ 10. The first modification, EDRP I,
occurred in March 1999, and the second, EDRP II, occurred in December
1999. See id. The essential differences between EDRP I and the original
EDRP are that Section 16.1*fn3 was modified, a new clause, Section 6.6,
*fn4 was added and Section 1.4*fn5 was deleted from the original EDRP.
The essential differences between EDRP I and EDRP II are that Sections
3.1,*fn6 16.1,*fn7 and 24.3*fn8 in EDRP II were modified and new
Sections 6.8*fn9 and 8.6*fn10 of EDRP II were added. Brennan has no
recollection of ever being notified of
or receiving copies of these
modifications. See Brennan Aff. ¶ 14.
Dismissal of a complaint for failure to state a claim pursuant to Rule
12(b)(6) is proper only where "`it appears beyond doubt that the
plaintiff can prove no set of facts in support of [her] claim that would
entitle [her] to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., No.
00-7660, 2001 WL 46675, at *1 (2d Cir. Jan. 22, 2001) (quoting Harris v.
City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). To properly rule on
a 12(b)(6) motion, the court must accept as true all material facts
alleged in the complaint and draw all reasonable inferences in the
nonmoving party's favor. See ICOM Holding, 2001 WL 46675, at *1.
B. Jurisdictional Challenge
A plaintiff's initial burden in defeating a jurisdictional challenge
"is dependent upon the procedural posture of the litigation." Orobia
Eng. S.R.L. v. Sorin Nacht, No. 97 Civ. 4912, 1998 WL 730562, at *2
(S.D.N.Y. Oct. 19, 1998). Although "a plaintiff bears the burden of
establishing jurisdiction over the defendant by a preponderance of the
evidence, the plaintiff need make only a prima facie showing that
jurisdiction exists prior to the holding of an evidentiary hearing." Ball
v. Metallurgie Hoboken-Overpelt. S.A., 902 F.2d 194, 196 (2d Cir. 1990).
In determining whether such a showing is satisfied, a district court
may look at materials other than those contained within the complaint.
See LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999) ("[W]here
jurisdictional facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence outside the
pleadings, such as affidavits."). Appropriate circumstances for holding a
hearing exist when the "proffered evidence is so conflicting and the
record is rife with contradictions." Foster-Miller Inc. v. Babcock &
Wilcox Cananda, 46 F.3d 138, 145 (1StCir. 1995); see also Cheyenne
Autumn Inc. v. Mine and Bill's, No. 94 Civ. 4011, 1995 WL 366388, at *2-4
(S.D.N.Y. June 19, 1995) (evidentiary hearing warranted where the
jurisdictional issue turned on which version of the facts the court
should accept). Although a court must dismiss a case if it does not have
jurisdiction, See RuhrgasA.G. v. ...