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Nadeau v. Equity Residential Properties Management Corp.

United States District Court, S.D. New York

May 4, 2017

JANICE NADEAU, Individually and on behalf of all others similarly situated, Plaintiff,



         Plaintiff 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.

         Before 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).

         For the following reasons, the motion is DENIED.

         The Court has jurisdiction under 28 U.S.C. §§ 1331, 1367.


         For the 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.

         Plaintiff 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 relevant part:

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.).

         Plaintiff 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 work.

         In May 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).

         Subsequently, 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 tex[]ted 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.” (Id.).

         On June 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).

         On June 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).

         On June 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. ¶ 21).

         On June 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. 4).

         On July 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 ...

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