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MILDWORM v. ASHCROFT

March 29, 2002

KENNETH H. MILDWORM, PLAINTIFF,
V.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, JOSEPH GUCCIONE, IN HIS INDIVIDUAL CAPACITY, AKAL SECURITY, INC. AND RICHARD WIMBERLY, DEFENDANTS.



The opinion of the court was delivered by: Wexler, District Judge.

MEMORANDUM AND ORDER

Plaintiff Kenneth Mildworm ("Mildworm") brings this action against the above-named defendants asserting claims for employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; New York's Human Rights Law, N.Y.Exec.Law § 290 et seq.; and the New York City Administrative Code, as well as for violations of his rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution. Defendants Akal Security, Inc. ("Akal") and Richard Wimberly ("Wimberly") (collectively, "moving defendants") move pursuant to Rule 12(b)(1), (3), and (6) of the Federal Rules of Civil Procedure to dismiss the complaint or, alternatively, to compel arbitration. Mildworm opposes the motion.

I. BACKGROUND

For purposes of this motion, the relevant background can be summarized as follows. In 1985, Mildworm began working as a Court Security Officer ("CSO") in the Court Security Officer Program established by the United States Marshals Service. Complaint ¶ 17. On or about October 1, 1998, Akal hired Mildworm as a Contract Manager and Chief CSO in furtherance of Akal's contract with the Marshals Service as the new contractor responsible for overseeing security in the courthouses of the Second Circuit. Id. ¶¶ 16, 18. Wimberly, Akal's Director of Court Security, was Mildworm's direct supervisor. Id. ¶ 18.

On March 19, 1999, as a condition of employment, Mildworm signed an "Employment Agreement" with Akal. Affidavit of Margaret Armstrong Weiner, Esq. in Support of Defendants' Motion to Dismiss ("Weiner Aff.") ¶ 6 & Ex. B. The Employment Agreement contains an agreement to arbitrate. In this respect, section 4(f) of the Employment Agreement (the "Arbitration Provision") provides:

Employee agrees to submit any legal and/or equitable claims arising out of their employment or termination of employment to final and binding arbitration, in accordance with the Company's arbitration procedures. By agreeing to arbitrate, the employee understands that he/she is not giving up any substantive rights under either state or federal law. The American Arbitration Association will schedule the arbitration and appoint the arbitrator to settle any claims, pursuant to the Company's arbitration procedures. Costs for arbitration will be shared equally by the employee and the Company (although the employee will not be required to contribute more than $2,500 towards the cost of the arbitrator). By signing this Employment Agreement, Employee acknowledges that they are aware of the Company's arbitration policy as stated herein, and agrees to abide by its terms and conditions.

Id.

By letter dated June 11, 1999, Akal notified Mildworm that his employment was terminated at the end of that business day. Complaint ¶ 43.

Mildworm subsequently filed suit in this Court. Moving defendants move to dismiss or, alternatively, to compel arbitration based on the Arbitration Provision.

Moving defendants argue that all of Mildworm's claims in this action directly concern his employment and termination of employment, and that these claims fall within the Arbitration Provision's coverage of "all legal and/or equitable claims arising out of [Mildworm's] employment or termination of employment." Consequently, moving defendants request that this Court dismiss Mildworm's claims against them or, alternatively, compel Mildworm to submit these claims to arbitration.

In opposing the motion, Mildworm argues that the Arbitration Provision is unenforceable because it is vague, as it did not plainly place him on notice that he was waiving his right to bring federal and state employment discrimination claims in a judicial forum. According to Mildworm, the "'arbitration clause must contain language that reasonably notifies a plaintiff that he is waiving his right to litigate federal employment discrimination claims in federal court, or it will not be enforced." Memorandum of Law in Opposition to Motion to Dismiss the Complaint or, in the Alternative, to Compel Arbitration ("Pl. Mem."), at 3. In this respect, Mildworm asserts that the second sentence of the Arbitration Provision (i.e., "By agreeing to arbitrate, the employee understands that he/she is not giving up any substantive rights under either state or federal law."), did not clearly alert him that he would not be able to enforce his rights in state or federal court. Affidavit of Kenneth H. Mildworm in Opposition to Motion to Dismiss the Complaint or to Compel Arbitration ("Mildworm Aff.") § 28.

In addition, Mildworm argues, inter alia, that the cross-reference in the Arbitration Provision to Akal's "arbitration procedures" further contributes to the vagueness of the Arbitration Provision. The cross-referenced "Akal Arbitration Procedure" provides, in relevant part:

Grievances processed in accordance with the requirements that remain unsettled may be processed to arbitration, giving the Akal Director of Human Resources written notice of its desire to proceed to arbitration not later than fifteen (15) days after rejection of the grievance by the Office of the CEO. Grievances which have been processed in accordance with the requirements which remain unsettled shall be processed in accordance with the following procedures and limitations.

Mildworm Aff.Ex. C; see also Weiner Aff. Ex. C. The Akal Arbitration Procedure then identifies the "procedures and limitations" that are applicable to arbitration. Mildworm Aff.Ex. C. According to Mildworm, the Akal Arbitration Procedure refers only to "grievances," implying that it applies "to complaints falling well short of statutory discrimination claims," Pl.Mem. at 5-6, i.e., "to complaints about on-the-job issues," Mildworm Aff. ΒΆΒΆ 26-27. Moreover, Mildworm argues that the cross-reference to the Akal Arbitration Procedure causes further confusion because it provides that grievances "may" be processed to arbitration, indicating that arbitration is an optional procedure. Pl.Mem. at 6. According to Mildworm, "[t]o any reader, and certainly to ...


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