United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
M. FURMAN, United States District Judge
employment discrimination case, familiarity with which is
assumed, Defendant HCL America Inc. (“HCL”)
moves, pursuant to the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 4, to compel arbitration
and to stay the present action. In evaluating a motion to
compel arbitration, a district court must apply the summary
judgment standard, and thus may grant the motion only if
“the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine
issue as to any material fact and that movant is entitled to
judgment as a matter of law.” Cohen v. UBS Fin.
Servs., Inc., 12-CV-2147 (BSJ) (JLC), 2012 WL 6041634,
at *1 (S.D.N.Y. Dec. 4, 2012). To decide “whether the
parties agreed to arbitrate a certain matter” for
purposes of the FAA, a court must apply “ordinary
state-law principles that govern the formation of
contracts.” First Options of Chi., Inc. v.
Kaplan, 514 U.S. 938, 944 (1995). “Once a court is
satisfied that an arbitration agreement is valid and the
claim before it is arbitrable, it must stay or dismiss
further judicial proceedings and order the parties to
arbitrate.” Cohen, 2012 WL 6041634, at *2;
see also Katz v. Cellco P 'ship, 794 F.3d 341,
345 (2d Cir. 2015) (“We join those Circuits that
consider a stay of proceedings necessary after all claims
have been referred to arbitration and a stay
there is no dispute that Plaintiff Johanna Clearfield's
claims fall within the scope of HCL's Modified Dispute
Resolution Agreement (“MDRA”), which became
effective on December 1, 2015. (Docket No. 18
(“Pl.'s Mem.”), at 3-4). Instead, HCL's
motion turns exclusively on whether Clearfield agreed to the
MDRA under New York law. (See id.). Notably, the
facts relevant to that issue - drawn from the parties'
affidavits and exhibits - are undisputed. Clearfield was
employed by HCL from approximately May 2014 through September
28, 2016. (Docket No. 18-1 (“Pl.'s Decl.”),
¶ 1). On December 1, 2015, HCL sent an e-mail to all its
employees, including Clearfield, at their work addresses
titled “Dispute Resolution Agreement - Important
announcement.” (Docket No. 16-2). The e-mail advised
employees that HCL had “modified its Dispute Resolution
Agreement (also known as the Arbitration Agreement)”
and gave employees the opportunity to opt out of the
agreement by returning a form no later than January 5, 2016.
(Id.). Significantly, the e-mail further cautioned
as follows: “If you do not submit the [opt-out] form by
the end of the day on January 5, 2016 and if you accept or
continue employment with the Company after such date, you
will be deemed to have accepted and agreed to the
terms” of the modified Dispute Resolution Agreement.
(Id.; see also Id . (warning that
“[i]f employees do not opt out, the ‘Modified
Dispute Resolution Agreement' will be a binding contract
between each employee and the company that governs how the
parties will resolve certain legal disputes.”)).
Clearfield did not submit an opt-out form or otherwise notify
HCL of her intention to opt out of the MDRA by the January 5,
2016 deadline - or at any other point during her employment
at HCL. (Docket No. 16, ¶ 7).
those undisputed facts, several principles of New York law
compel the conclusion that Clearfield is bound by the MDRA.
First, “New York law has established a presumption that
a party has received documents when mailed to the party's
address in accordance with regular office procedures.”
Manigault v. Macy's E., LLC, 318 F.App'x 6,
7 (2d Cir. 2009) (citing Meckel v. Cont'l Res.
Co., 758 F.2d 811, 817 (2d Cir. 1985)); see also,
e.g., Abdullah v. Am. Express Co., No.
3:12-CV-1037-J-34 (MCR), 2012 WL 6867675, at *4-5 (M.D. Fla.
Dec. 19, 2012) (finding that the presumption of receipt
applicable to mail also applies to e-mail). Second, a
plaintiff's “denial of receipt of the mailing . . .
is insufficient to rebut the presumption that she received
the mailing.” Manigault, 318 F.App'x at 7.
And third, “[a]n employee may consent to a modification
to the terms of employment by continuing to work after
receiving notice of the modification.” Id. at
8. Indeed, “New York, unlike other jurisdictions, has
found that continued employment, without more, is sufficient
to manifest assent.” Id. (citation omitted);
see also DuBois v. Macy's E. Inc., 338
F.App'x 32, 33 (2d Cir. 2009) (“Under New York law,
where an at-will employee remains in a defendant's
employment after the employer has modified the terms of
employment, the employee is deemed to have assented to the
modification and, in effect, commenced employment under a new
contract.” (internal quotation marks omitted)).
Applying those principles here, Clearfield is plainly bound
by the MDRA. See, e.g., Manigault, 318
F.App'x at 7-8 (holding on almost identical facts that
the plaintiff was bound by an arbitration provision);
accord Couch v. AT & T Servs., Inc., No.
13-CV-2004 (DRH) (GRB), 2014 WL 7424093, at *4-8 (E.D.N.Y.
Dec. 31, 2014); Thomas v. Pub. Storage, Inc., 957
F.Supp.2d 496, 499-500 (S.D.N.Y. 2013); Raniere v.
Citigroup Inc., 827 F.Supp.2d 294, 306-08 (S.D.N.Y.
2011), rev'd on other grounds, 533 F.App'x
11 (2d Cir. 2013).
arguing otherwise, Clearfield relies on the fact that she was
on medical leave when HCL e-mailed the MDRA and, indeed, had
been advised by her supervisor “not to perform any work
during [her] leave.” (Pl.'s Decl. ¶¶ 2-4;
see Pl.'s Mem. 3-4). But those facts do not
mean, as Clearfield contends, that she “was essentially
not an employee of HCL” at the time of the email (a
contention for which Clearfield cites no legal authority).
(Pl.'s Mem. 3; see also Pl.'s Decl. ¶ 1
(“I was an employee of Defendant HCL America Inc. from
approximately May, 2014 through September 28, 2016”)).
And, in any event, she returned to work on January 4, 2016 -
prior to the deadline to opt out of the MDRA.
(Pl.'s Decl. ¶ 3). Granted, that gave her only one
day to act and she may have had other, time-sensitive tasks
to handle. (See Id . ¶ 7). But, given that
Clearfield had received only about 100 e-mails during her
leave (id.), and that the e-mail at issue was
prominently titled “Important announcement”
(Docket No. 16-2), that was sufficient time to opt out had
she wanted to do so. And furthermore, her failure to act by
the January 5, 2016 deadline does not excuse or explain the
fact that she never attempted to opt out of the MDRA
at any point between January 4, 2016, when she
returned to work, and September 28, 2016, when her employment
ended. Finally, although Clearfield denies having seen the
e-mail at issue (Pl.'s Decl. ¶ 8), the law is clear
that her denial is insufficient to rebut the presumption that
she received the e-mail. See Manigault, 318
F.App'x at 7 (citing Meckel, 758 F.2d at
817-18); accord Couch, 2014 WL 7424093, at *6. Thus,
by not opting out and continuing her employment at HCL, she
agreed to arbitration. See Manigault, 318
F.App'x at 8.
foregoing reasons, HCL's motion to compel arbitration is
GRANTED. Additionally, in light of the fact that all claims
are subject to arbitration, and HCL requests a stay, this
action is stayed pending resolution of the arbitration.
See Katz, 794 F.3d at 345-47; see also Salim
Oleochemicals v. M/V Shropshire, 278 F.3d 90, 92-93 (2d
Cir. 2002) (noting that district courts should be mindful of
the fact that a dismissal is appealable whereas a granting of
a stay is not and that “unnecessary delay of the
arbital process through appellate review is disfavored”
(internal quotation marks and brackets omitted)). That said,
the Court sees no reason to keep the case open pending
arbitration. Accordingly, the Clerk of Court is directed to