United States District Court, S.D. New York
JANICE NADEAU, Individually and on behalf of all others similarly situated, Plaintiff,
EQUITY RESIDENTIAL PROPERTIES MANAGEMENT CORPORATION, Defendant.
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.
Janice Nadeau brings this action, individually and on behalf
of all others similarly situated, against defendant Equity
Residential Properties Management Corporation, claiming
violations of the Fair Labor Standards Act, 29 U.S.C. §
201 et seq., New York Labor Law, Art. 19 § 650
et seq., and the New York Codes, Rules and
Regulations § 142-2.
the Court is defendant's motion to compel arbitration and
stay this action pending arbitration, pursuant to the Federal
Arbitration Act (“FAA”), 9 U.S.C. § 1 et
seq. (Doc. #16).
following reasons, the motion is DENIED.
Court has jurisdiction under 28 U.S.C. §§ 1331,
purpose of ruling on this motion, the Court considers only
the pleadings and evidence relevant to defendant's motion
to compel arbitration and stay this action.
worked full-time as a customer support assistant for
defendant from February 24, 2015, to June 10, 2016. Defendant
required plaintiff sign an arbitration agreement (the
“Agreement” or the “Arbitration
Agreement”) prior to her employment, which states in
Any claim, controversy, or dispute you may have with Equity
or any of its past, present or future employees, agents,
directors, trustees or shareholders, or which Equity may have
with you, arising from or relating to your application for
employment, employment, the termination of your employment,
or any post-employment conduct or events, excluding claims
for workers' compensation benefits, unemployment
compensation benefits, and claims, controversies, or disputes
arising out of job elimination or in which Equity seeks
temporary or permanent injunctive relief relating to theft or
misuse of trade secrets, confidential or proprietary
information or violation of a non-compete or non-solicitation
agreement, will be finally settled by binding
arbitration. Claims which must be settled by binding
arbitration include, but are not limited to, claims arising
under . . . the Family And Medical Leave Act, . . . any
amendments to these acts, and any state or local employment
related statute or ordinance, and any future federal, state
or local employment related statutes or ordinances.
(Pawlisa Decl. Ex. B) (emphasis added). The Agreement further
provides: “Filing and administrative fees of the
arbitration will be paid by Equity, as will the fees and
other expenses of the arbitrator.” (Id.).
avers defendant regularly required her “to read and
respond to text messages and phone calls before and after . .
. scheduled work hours” (Nadeau Decl. ¶ 6) without
properly recording this time or compensating her for this
2016, plaintiff received a text message from her supervisor
“instructing [her] to attend a company event
off-the-clock.” (Nadeau Decl. ¶ 11). Plaintiff
responded to this text message using vulgar language to
express her displeasure about defendant requiring her to work
off-the-clock without compensation. In response, defendant
“issued an Employee Counseling Summary Report alleging
that [plaintiff] had violated company policy by communicating
with her supervisor by text message . . . and using
inappropriate language.” (Id. ¶ 12).
plaintiff filed an arbitration demand (the
“Demand”) with the American Arbitration
Association (“AAA”), the designated arbitrator
under the Agreement. In the Demand, plaintiff described the
nature of her claim, stating: “Received a formal
‘write up;' (co[u]nseling) because my language used
in a text after my manager while I was off texted me first
to explain I had to go to what she said was a mandatory
outing.” (Traub Affirm. Ex. A). Plaintiff requested an
arbitrator “sa[v]vy with labor laws, in NYC.”
3, 2016, the AAA informed plaintiff it had not yet received
defendant's filing fees for the arbitration, but that it
had requested payment from defendant by June 6, 2016. (Nadeau
Decl. ¶ 16).
10, 2016, defendant terminated plaintiff's employment.
Plaintiff avers she believes she “was fired in
retaliation for complaining about Equity's unlawful wage
policies and for initiating arbitration before the
AAA.” (Nadeau Decl. ¶ 17).
13, 2016, plaintiff and Lisa Leib, a vice president in
defendant's legal department, spoke via telephone and
discussed the Demand. (Nadeau Decl. ¶ 18). On June 22,
2016, Leib emailed plaintiff, offering to settle the case by
paying to plaintiff the AAA fees in exchange for a release of
all plaintiff's claims. (Id. ¶ 20).
Plaintiff rejected this offer, insisted on arbitration, and
requested defendant pay the AAA fees. (Id. ¶
23, 2016, Leib emailed plaintiff, asking “what is your
counter offer?” Plaintiff responded that she
“prefer[s] to have everything documented and addressed
through AAA.” Leib then asked, “Are you saying
you do not have any number that you would settle this case
before we go forward in the AAA? I just want to make sure I
understand your position.” Plaintiff responded,
“I'm saying that under the circumstances, I
don't feel comfortable agreeing to a number without
representation.” Leib replied, “The AAA does not
represent you. They are a neutral third-party that will
adjudicate this case. You should talk to them to make sure
you understand their role. If you want representation for
this case you will have to find your own attorney.”
Plaintiff insisted on arbitration and responded, “I am
very aware what the AAA role will be and I want to resolve
with a mediation and . . . unbiased third party case manager
there to reach a sound agreement.” (Nadeau Decl. Ex.
18, 2016, plaintiff received a letter from the AAA stating
that because defendant had “failed to submit payment as
requested in accordance with our Employment Arbitration Rules
. . ., we have ...