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Feroce v. Bloomingdale's Inc.

United States District Court, E.D. New York

January 23, 2014

VICTORIA FEROCE, Plaintiff,
v.
BLOOMINGDALE'S INC., as a Division of Macy's Inc., Defendants.

ORDER

SANDRA J. FEUERSTEIN, District Judge.

On October 5, 2012, plaintiff Victoria Feroce ("plaintiff") commenced this action against defendant Bloomingdale's Inc. ("Bloomingdale's" or "defendant"), alleging that Bloomingdale's discriminated against her on the basis of religion in violation of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, and on the basis of gender in violation of the New York State Human Rights Law. [Docket Entry No. 1], Bloomingdale's is a wholly-owned subsidiary of Macy's Retail Holdings, Inc., which is a wholly-owned subsidiary of parent company Macy's, Inc ("Macy's"). Declaration of Robert Noeth in Support of Defendant's Motion to Compel Arbitration and Dismiss the Complaint ("Noeth Decl."), ¶ 2.[1] Now before the Court is defendant's motion to compel arbitration and dismiss the complaint. [Docket Entry No. 16]. For the reasons that follow, defendant's motion is granted in part and denied in part, insofar as plaintiffs claims are referred to arbitration and the instant case is stayed pending arbitration.

I. Background

Plaintiff began working at the Bloomingdale's store located at 630 Old Country Road, Garden City, New York 11530 (the "Roosevelt Field Store") in December 1991. Declaration of Victoria Feroce in Support of Plaintiff's Memorandum in Opposition to Defendant's Motion to Compel Arbitration and Dismiss the Complaint ("Feroce Decl."), ¶ 2; Declaration of Beth Fallacaro in Support of Defendant's Motion to Compel Arbitration and Dismiss the Complaint ("Fallarco Decl"), ¶ 2. Plaintiff has taken two (2) maternity leaves of absence, the first of which began on April 16, 2003 and ended on June 22, 2003. Id. ¶ 3. Plaintiff's second maternity leave began on December 8, 2004 and ended forty-two (42) days later, on January 19, 2005. Id.

A. Solutions InSTORE Early Dispute Resolution Program

In the fall of 2003, Macy's developed and implemented the Solutions InSTORE Early Dispute Resolution Program (the "Program"), which became effective on January 1, 2004 for all then-current employees of Macy's-related companies, including Bloomingdale's. Noeth Decl. ¶¶ 4, 14. The Program is a comprehensive early dispute resolution that aims to "surface and resolve disputes as early and fairly as possible." Id. The Program consists of four (4) separate steps for the resolution of work-related problems. Id. ¶ 7. While Macy's is bound by the decision made at each of the four (4) steps, the employee may appeal each decision and advance to the next level of the Program, including Step Four Arbitration, if elected. Id. ¶ 8.

The first step encourages employees to bring any complaints or concerns to a supervisor or a local management team member. Id. ¶ 9. If the employee is not satisfied with the outcome of step one, that employee may submit a written complaint to a senior human resources executive for investigation. Id. If the employee is not satisfied with the decision of the senior human resources executive in step two, and the grievance involves legally protected rights, the employee may proceed to step three. Id. The third step permits an employee to submit a written request for reconsideration to the Office of Solutions InSTORE. Id. This complaint will then be decided by either a volunteer Peer Review Panel or by the Office of Solutions InSTORE Program Manager. Id. Claims involving harassment, discrimination, a reduction in force, layoff, or alleged statutory violations are not eligible for Peer Review and are handled by the Office of Solutions InSTORE Program Manager. Id ; Noeth Decl., Ex. A at 4.[2] If the employee is not satisfied with the outcome of step three, the employee may proceed to binding arbitration before an outside neutral arbitrator, the fourth and final step ("Step Four Arbitration"). Noeth Decl. ¶ 9.

Employees are not required to participate in Step Four Arbitration. Id. Employees may decline Step Four Arbitration by completing and returning a written form to the Office of InSTORE Solutions within a prescribed time period. Declaration of Lloyd Dalzell in Support of Defendant's Motion to Compel Arbitration and Dismiss the Complaint ("Dalzell Decl."), ¶ 6. If an employee does not opt out of Step Four Arbitration within the required time, the employee agrees to be contractually bound by Step Four Arbitration. Noeth Decl. ¶ 12. An employee's decision to opt out of Step Four Arbitration is confidential and local management remains unaware of the employee's election. Id. ¶ 10.

Step Four Arbitration, as set forth in Article 2 of the Solutions InSTORE Plan Document ("Plan Document"), provides that "all employment-related legal disputes, controversies or claims arising out of, or relating to, employment or cessation of employment shall be settled exclusively by final and binding arbitration by the American Arbitration Association." Ex. A at 5. "[T]hese claims include, but are not limited to, claims arising under... Title VII of the Civil Rights Act of 1964, as amended, including the amendments of the Civil Rights Act of 1991, ... state discrimination statutes, state statutes, and/or common law regulating employment termination." Id. at 6.[3]

If an employee has agreed to arbitration, the employee's claims must be resolved through arbitration and may not be pursued in court. As the Plan Document explains, "[b]y agreeing to arbitration, " "neither the Associate nor the Company can file a civil lawsuit in court against the other party." Id. at 7. "If a party files a lawsuit in court to resolve claims subject to arbitration, both agree that the court shall dismiss the lawsuit and require the claim to be resolved through the Solutions InSTORE program." Id.

B. Implementation of the Program

The Office of Solutions InSTORE worked with each Macy's-related company, including Bloomingdale's, "to ensure that all employees were educated about the Program, including the employees' right to opt out of binding arbitration." Noeth Decl. ¶ 15. Each Bloomingdale's location, including the Roosevelt Field Store, held informational sessions designed to "educate the employees about the Program and inform them about the future mailing they would be receiving from the Office of Solutions InSTORE." Id. ¶ 16. The informational sessions explained "how employees could choose to accept or decline to participate in [Step Four Arbitration]" and detailed the opt-out procedure. Dalzell Decl. ¶¶ 5-6. All employees were required to attend one of the informational sessions. Noeth Decl. ¶ 17. As a Bloomingdale's employee at the Roosevelt Field Store during the time these informational sessions were held, plaintiff was required to attend one of the informational sessions. Dalzell Decl. ¶ 7.

During the informational sessions, the Roosevelt Field Store distributed materials from the Office of Solutions InSTORE to each employee, including a detailed informational brochure entitled "Early Dispute Resolution, " a letter from Macy's President and Chief Executive Officer, and an arbitration fact sheet. Dalzell Decl. ¶¶ 3-4; see Exs. B, C. The "Early Dispute Resolution" brochure advised employees that "[i]f, however, you decide you would like to be excluded from participating in and receiving the benefits of Step 4, we will ask you to tell us in writing by completing a form that will be mailed to all employees' homes this Fall." Ex B at 10. Employees at the informational sessions were also shown a video about the Program. ...


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