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Weiss v. Macy's Retail Holdings Inc.

United States District Court, S.D. New York

July 14, 2017

DAVID WEISS, Plaintiff,
v.
MACY'S RETAIL HOLDINGS INC., a/k/a MACY'S INC., Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO COMPEL ARBITRATION

          ALVIN K. HELLERSTEIN United States District Judge.

         Plaintiff 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 denied.

         STATEMENT OF FACTS

         From 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, ¶ 20.

         In 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.

         Rose 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. ¶¶ 10-13.

         In 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.

         The 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.

         Because 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.

         Macy's 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.

         Weiss, 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.

         DISCUSSION

         I. Macy's is Entitled to a Rebuttable Presumption that Weiss Received the Mailings Containing the Arbitration Election Form

         In 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 ...


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