United States District Court, S.D. New York
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
K. HELLERSTEIN United States District Judge.
David Weiss ("Weiss") brought this action under the
Americans with Disabilities Act of 1990, 42 U.S.C. §
12191, et seq, against his employer, defendant
Macy's Retail Holdings Inc. ("Macy's").
Weiss alleges that his employer harassed him because of his
learning disability, failed to accommodate him, and
terminated his employment because of his disability.
Macy's has moved to stay this action and compel
arbitration of Weiss' claims. Macy's contends that
Weiss agreed to resolve all employment-related legal disputes
with Macy's through binding arbitration because Weiss did
not affirmatively agree to "decline the benefits of
arbitration" in a form that Macy's mailed to him. I
hold that Weiss did not enter into an agreement with
Macy's to arbitrate employment-related legal disputes
because the essential elements of contract formation have not
been met. The form that Macy's sent to Weiss did not
constitute an offer, and Weiss's silence upon receipt of
that form did not constitute acceptance. Macy's motion is
1997 to 2015, Weiss was an employee at a Macy's store
located in Yonkers, New York. In 2003, Macy's instituted
a company-wide employee dispute resolution program called
"Solutions InSTORE." The first three steps of the
InSTORE program were internal to Macy's. The fourth step
of the program, however, consisted of binding arbitration.
Declaration of Matthew Melody, ¶¶ 11-14. Weiss
categorically denies ever receiving any information about the
arbitration component of Macy's dispute resolution
program. Weiss states: "I worked at Macy's for
approximately 18 years and I was never advised either in
writing or in-store training or meetings that Macy's was
offering me the right to enter an agreement to arbitrate.
That never happened." Declaration of David Weiss, ¶
connection with the rollout of the InSTORE program,
Macy's held informational meetings for its employees at
each of its stores. At the meetings, Macy's showed
employees an informational video, and distributed a letter
from Macy's CEO and a brochure containing information
about the InSTORE program, including the arbitration
component. Melody Decl. *|¶ 20-23; Exs. B, C and D. The
brochure, in a section entitled "The Decision is Yours,
" stated that if "you decide you would like to be
excluded from participating in and receiving the benefits of
Step 4 [arbitration], we will ask you to tell us in writing
by completing a form that will be mailed to all
employees' homes this Fall." Melody Decl. Ex. B at
10. Nothing in the brochure stated or otherwise implied that
agreeing to arbitrate employment-related disputes was
mandatory or a condition of continued employment.
Ashmore, the director of Macy's Associate and Labor
Relations department, has submitted a declaration stating
that she was directly responsible for the rollout and
implementation of the InSTORES program in 2003 and 2004, and
that her office, "in conjunction with other management
representatives, conducted information sessions with
employees at the Cross Country Shopping Center Macy's
store, " the location where Weiss worked. Declaration of
Rose Ashmore, ¶ 7. During those information sessions,
Ashmore's office "addressed the benefits of
arbitration, " and "expressly conveyed" that
if employees did not want to arbitrate disputes, they would
need to complete and return a form that would be sent to each
employee's home address. Id. Weiss, however,
states that he was never shown an informational video and did
not receive any materials regarding arbitration at an
employee meeting at the Yonkers store. Weiss Decl.
September 2003, Macy's mailed a packet to each
employee's home address, including Weiss. Melody Decl.
¶¶ 34-37. The September 2003 packet included the
"Solutions InSTORE Program Plan Document, " as well
as an "Election Form." Melody Decl. Exs. A and F.
The Plan Document stated that the following category of
employees would be "covered" by binding
arbitration: "All newly hired Associates and existing
Associates ... who have voluntarily elected the benefits of
arbitration by not returning an 'Arbitration Election
Form' within the prescribed time limits, removing them
from coverage." Melody Decl. Ex. A at 5. Nothing in the
Plan Document stated or otherwise implied that agreeing to
arbitrate employment-related disputes was mandatory or a
condition of continued employment.
Election Form included in the September 2003 packet was the
mechanism by which Macy's employees could decline to
arbitrate employment-related claims, thus maintaining their
access to public courts and the status quo. The Election Form
states that "this form serves as an election form only
if you choose not to be covered by the benefits of
Arbitration, " and instructs the recipient to
"complete and return this form ONLY IF YOU DO
NOT WANT TO BE COVERED BY THE BENEFITS OF ARBITRATION
during your career with the company." Below that, the
recipient is given the option of checking a box next to the
following sentence: "I Decline the Benefits of
Arbitration. I have read all the information about Solutions
InSTORE and I elect NOT to be covered by the benefits of
Arbitration." A signature line appears next, accompanied
by the following sentence: "AUTHORIZATION. I have
received, read, and understand the Plan Document, and
voluntarily agree that I am waiving the ability to
participate in Step 4 of the Solutions InSTORE
program" Finally, the very bottom of the form
states: "RETURN THIS FORM ONLY IF DECLINING THE BENEFITS
OF ARBITRATION." Melody Decl. Ex. F.
Macy's never received an Election Form from Weiss, it
never sent Weiss a letter confirming that he had opted out of
arbitration. Melody Decl. ¶¶ 47-49; Ex. J. Instead,
Macy's sent Weiss a brochure entitled "You're in
Good Company, " which confirmed that he had declined
Macy's offer to arbitrate future disputes. Melody Decl.
¶¶ 50-52; Exs. K and L. In the fall of 2004,
Macy's sent each employee a second packet containing
another brochure, letter, and the same Election Form. Melody
Decl. ¶¶ 53-59; Exs. M, N and O. Macy's never
received an Election Form from Weiss following the 2004
mailing. Melody Decl. ¶ 62.
states that it mailed both the 2003 and 2004 packets to
Weiss' home address. Weiss' name and address appear
on the list of recipients maintained by Macy's for both
mailings. Melody Decl. ¶ 35-36; Exs. H and P. Both
mailings were sent to the same address that Macy's used
to send Weiss other documents, such as benefits information
and tax documents. Declaration of Tracy Deel, ¶ 4;
Declaration of Alex Bleckert, ¶ 17. No document sent to
Weiss' address was ever returned as undeliverable. Melody
Decl. ¶ 40; Deel Decl. ¶ 6; Bleckert Decl. ¶
16. In support of these facts, Macy's has submitted
several declarations from the individuals who were personally
responsible for executing these mailings. See
generally, Declaration of Tracy Deel, Declaration of
Rose Ashmore, Declaration of Owen Lewis, and Declaration of
Alex Bleckert. These declarations demonstrate that Macy's
sent both the 2003 and 2004 packets to Weiss in accordance
with Macy's standard mailing procedures.
however, states that he never received the 2003 or 2004
packets, and that if he had received them, he would have
opted out of arbitration. Weiss Decl. ¶¶ 10, 14-15.
Weiss' brother, who lives with Weiss, also submitted a
declaration stating that Weiss never received the documents.
Declaration of Joseph Weiss, ¶¶ 12-15.
Macy's is Entitled to a Rebuttable Presumption that Weiss
Received the Mailings Containing the Arbitration Election
support of its motion, Macy's has submitted declarations
from the Macy's employees that were directly responsible
for the rollout of the InSTORES program, including the 2003
and 2004 mailings that Weiss contends he never received.
See generally, Declaration of Rose Ashmore,
Declaration of Owen Lewis, Declaration of Tracy Deel, and
Declaration of Alex Bleckert. This evidence amply
demonstrates that Macy's sent Weiss the 2003 and 2004
packets containing the Election Form in accordance with
Macy's standard mailing procedures, which gives rise to a
rebuttable presumption that Weiss received the mailings.
See Manigault v. Macy 's E, LLC, 318 F.App'x
6, 7 (2d Cir. 2009) (noting that "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" and holding that "the
affidavits of Macy's personnel created a rebuttable
presumption that [plaintiff] received the program
information."). I need not resolve ...