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Adelheid "Heidi" Waumboldt v. Gregory Callimanopulos

August 20, 2012

ADELHEID "HEIDI" WAUMBOLDT,
PLAINTIFF,
v.
GREGORY CALLIMANOPULOS,
BROKERAGE & MANAGEMENT CORP., MARINE MANAGEMENT SERVICES, M.C.,
DEFENDANTS.



OPINION

Plaintiff Adelheid Waumboldt brings this action against defendants Gergory Callimanopulos, Brokerage & Management Corporation ("B&M"), and Marine Management Services, M.C. ("MMS"). She alleges several violations of federal, state, and local law stemming from purported sexual harassment and inappropriate sexual conduct on the part of Callimanopulos. B&M and Callimanopulos (collectively referred to as "defendants"*fn1 ) move to compel arbitration of plaintiff's claims and to dismiss the complaint.

Defendants' motion is granted, but the action will be stayed pending arbitration rather than dismissed.

Facts

In August of 2008, plaintiff began to work for B&M as the personal and executive assistant to Callimanopulos, the chairman and owner of B&M. She was employed in this capacity until June 2011. During the course of her employment, plaintiff alleges that Callimanopulos plied her with sexually suggestive language and requests for sex, compelled her to assist him in arranging sexual rendezvous with other women, touched her in an unwanted manner, and engaged in other such sordid behavior. Plaintiff alleges that she was terminated because she refused to reciprocate Callimanopulos' advances.

She now asserts two federal claims under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., three state statutory claims under New York State Human Rights law, N.Y. Exec. Law § 296, five claims under New York City Administrative Code Title 8-107, and two tort claims of assault and battery and intentional infliction of emotional distress.

As part of the hiring process at B&M, plaintiff signed various documents and agreements concerning her position. On her first day at work in August 2008, she signed a letter of employment, which contained the company policies that governed plaintiff's employment. This document contained a provision regarding the resolution of disputes by arbitration. Plaintiff alleges that when she received the letter of employment, she asked whether she should consult a lawyer regarding its terms, and she was told by the president of B&M that that would not be necessary. She then signed the letter of employment on the spot.

The provision concerning arbitration in the letter of employment was subsequently superseded by a new arbitration provision (the Dispute Resolution Agreement or "DRA") contained within a revision to the B&M Personnel Policies Handbook.*fn2 Plaintiff received the DRA in October of 2008. The complaint contains no allegations that plaintiff was pressured to assent to the DRA, nor any allegations of any kind concerning the DRA. Indeed, it explicitly provided for a period of ten days between receipt and acknowledgment. Plaintiff signed the DRA on October 7, 2008.

The DRA provides that:

I agree that any controversy, dispute or claim arising out of or relating to my employment with the Brokerage & Management Corporation ("B&M") shall first be attempted to be settled through good faith negotiation. If a settlement is not reached, any dispute with regard to any matter relating to my employment with or rendering services to B&M shall be resolved exclusively by one arbitrator selected in accordance with the JAMS Employment Arbitration Rules & Procedures then in effect (the "JAMS Rules"). The arbitration shall be conducted in New York City pursuant to the JAMS rules with the arbitrator applying the substantive law of the State of New York. The determination of the arbitrator, which shall be by reasoned award, shall be final and binding on the parties hereto and judgment therein may be entered in any court of competent jurisdiction sitting in New York County. Each party shall pay its own attorneys' fees and disbursements and other costs of the arbitration, which shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. The proceeding hereunder shall be treated by the parties and the arbitrator as strictly confidential, to the full extent permitted by the JAMS Rules.

I acknowledge that, notwithstanding the provisions in the paragraph above, B&M may bring an action or special proceeding in any court of competent jurisdiction for the purpose of compelling me to arbitrate, seeking temporary or preliminary relief in aid of an arbitration hereunder and/or enforcing an arbitration award. I further submit to the jurisdiction of the courts located in New York, New York, for the purposes of any judicial proceeding brought in accordance with this Dispute Resolution Agreement.

The Motion

Defendants now move to dismiss this action and compel arbitration pursuant to the DRA. Plaintiff resists, alleging that the DRA is procedurally and substantively unconscionable. Plaintiff also argues that, even assuming the validity of the DRA as to her claims against B&M, her claims against individual defendant Callimanopulos should proceed in this court action.

Discussion

Under the Federal Arbitration Act ("FAA"), "an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. ยง 2. If the FAA applies to a controversy at bar, the court must "direct the parties to proceed to arbitration on issues as ...


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