Bayer v. Neiman Marcus Grp., Inc.

• Citation: 861 F.3d 853
• Decision Date: 26 June 2017
• Docket Number: No. 15-15287,15-15287
• Parties: Tayler BAYER, Plaintiff-Appellant, v. NEIMAN MARCUS GROUP, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

861 F.3d 853

Tayler BAYER, Plaintiff-Appellant,
v.
NEIMAN MARCUS GROUP, INC., Defendant-Appellee.

No. 15-15287

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2017 San Francisco, California
Filed June 26, 2017

Cliff Palefsky (argued) and Keith Ehrman, McGuinn Hillsman & Palefsky, San Francisco, California; Michael Rubin, Altshuler Berzon LLP, San Francisco, California; for Plaintiff-Appellant.

Dylan B. Carp (argued), Conor Dale, and Mitchell Boomer, Jackson Lewis, San Francisco, California; Katrin U. Schatz, Jackson Lewis, Dallas, Texas; for Defendant-Appellee.

Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Robert W. Pratt,^** District Judge.

OPINION

PRATT, District Judge:

Plaintiff-Appellant Tayler Bayer appeals from a district court order granting summary judgment on mootness grounds to his former employer, Defendant-Appellee Neiman Marcus Group, Inc. (Neiman Marcus), in a suit alleging interference with the exercise of his rights under the Americans with Disabilities Act (ADA) in violation of 42 U.S.C. § 12203(b). For the reasons that follow, we reverse and remand for further proceedings.

I. Factual Background

Neiman Marcus owns and operates a chain of retail department stores that sell luxury goods. From March 2006 to January 2009, Bayer was employed by Neiman Marcus in the cosmetics department of its store in San Francisco, California. Bayer filed three charges with the Equal Employment Opportunity Commission (EEOC) stemming from events related to his employment with Neiman Marcus, each alleging a distinct violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Each of these charges eventually became the basis for a separate lawsuit. The present appeal concerns only one of these suits, but determining whether that action is moot requires an examination of the relationship among them.

Neiman Marcus hired Bayer in March 2006. At first, Bayer worked five days per week for six hours per day, and Neiman Marcus considered him to be a full-time employee entitled to certain benefits not

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available to employees working fewer than thirty hours per week. About one year after Bayer was hired, however, he took medical leave because he was suffering from emphysema. Months later, Bayer's physician authorized his return to work but restricted him to working no more than four days per week. Neiman Marcus provided a scheduling accommodation, but a dispute arose between the parties concerning its reasonableness, as it would have caused Bayer to lose his full-time employee status. In June 2007, Bayer filed a charge of discrimination with the EEOC alleging Neiman Marcus had failed to reasonably accommodate his disability in violation of the ADA.

Events that took place around the time Bayer filed his first charge with the EEOC formed the basis for his second one. In June 2007, Neiman Marcus mailed packages to its employees notifying them that it had adopted an alternative dispute resolution program. Each package included a memorandum indicating Neiman Marcus had implemented a "mandatory conflict resolution program" for all its employees and a booklet setting forth in detail the terms of its new "mandatory arbitration agreement." These documents expressly stated the new arbitration agreement was not optional but required as a condition of continued employment with Neiman Marcus after July 15, 2007. They further stated that any employee who continued employment with Neiman Marcus on or after July 15, 2007, would be deemed to have accepted the arbitration agreement.

Neiman Marcus provided employees with forms by which they were to acknowledge that the arbitration agreement was a mandatory condition of their continued employment. Bayer informed Neiman Marcus that he refused to sign an acknowledgment form or otherwise agree to be bound by the arbitration agreement. Bayer believed that being bound by the agreement would cause him to lose various rights afforded him under the ADA, including rights related to the then-pending reasonable-accommodation charge he had filed with the EEOC. He thus filed a second charge with the EEOC in July 2007, alleging that Neiman Marcus was unlawfully interfering with his ADA rights by requiring him to agree to be bound by the arbitration agreement as a condition of his continued employment. The date on which the arbitration agreement was to become a mandatory condition of employment with Neiman Marcus passed, and Bayer maintained his refusal to be bound by the arbitration agreement yet continued to work for Neiman Marcus.

Months later, in October 2007, the EEOC issued Bayer a right-to-sue letter regarding the discrimination charge alleging Neiman Marcus had failed to reasonably accommodate his disability in violation of the ADA. Thereafter, in January 2008, Bayer filed his first suit against Neiman Marcus. See Bayer v. Neiman Marcus Holdings, Inc. , No. 4:08-CV-00480-PJH (N.D. Cal. dismissed Apr. 9, 2008). The parties ultimately settled their underlying dispute, however, and the reasonable-accommodation suit was dismissed in April 2008.

Throughout the duration of the first suit Bayer filed against Neiman Marcus, the EEOC investigation into the second charge Bayer had filed alleging unlawful interference with his ADA rights continued. In January 2009, while that investigation was still ongoing, Neiman Marcus terminated Bayer. Bayer subsequently filed a third charge with the EEOC in August 2009, alleging Neiman Marcus had terminated him in retaliation for his opposition to its unlawful conduct in violation of the ADA. In April 2011, the EEOC issued Bayer a right-to-sue letter in connection

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with the retaliation charge, and Bayer filed his second suit alleging retaliatory discharge against Neiman Marcus in July 2011. See Bayer v. Neiman Marcus Group, Inc. , No. 3:11-CV-03705-MEJ (N.D. Cal. dismissed June 2, 2015). In November 2011, the district court denied a motion to compel arbitration filed in that suit by Neiman Marcus on the ground that Bayer had never consented to be bound by the arbitration agreement. Bayer v. Neiman Marcus Holdings, Inc. , No. 3:11-CV-03705-MEJ, 2011 WL 5416173, at *7 (N.D. Cal. Nov. 8, 2011). Neiman Marcus filed an interlocutory appeal of the district court ruling.

In July 2013, while the interlocutory appeal in the retaliatory-discharge suit was pending, the EEOC issued Bayer a right-to-sue letter in connection with his allegation that Neiman Marcus had unlawfully interfered with his ADA rights, more than six years after Bayer filed his second charge of discrimination.¹ Bayer then filed this suit alleging Neiman Marcus unlawfully interfered with his ADA rights by requiring him to consent to be bound by the arbitration agreement as a condition of his continued employment. Bayer v. Neiman Marcus Grp., Inc. , No. 3:13-CV-04487-MEJ (N.D. Cal. filed Sept. 27, 2013). In his complaint, Bayer sought damages, attorney fees and costs, an injunction prohibiting Neiman Marcus from attempting to intimidate employees and potential employees into waiving their ADA rights, a declaration that the mandatory arbitration agreement is unenforceable, and such other relief as the district court deemed proper.

In July 2014, this Court affirmed the district court ruling in the retaliatory-discharge suit that the arbitration agreement was not binding as to Bayer. See Bayer v. Neiman Marcus Holdings, Inc. , 582 Fed.Appx. 711, 714 (9th Cir. 2014). Thereafter, the district court hearing this action granted summary judgment in favor of Neiman Marcus and dismissed the action as moot, concluding "there no longer exists a present controversy between the parties as to which effective relief can be granted." Bayer timely appealed the final judgment of the district court.

II. Standard of Review

We review a district court grant of summary judgment de novo. Grand Canyon Trust v. U.S. Bureau of Reclamation , 691 F.3d 1008, 1016 (9th Cir. 2012). We likewise review a district court decision regarding subject matter jurisdiction de novo. Id. We therefore review de novo the district court decision granting summary judgment and dismissing this action for mootness. See Ruiz v. City of Santa Maria , 160 F.3d 543, 548 (9th Cir. 1998).

III. Discussion

Article III of the United States Constitution limits the jurisdiction of the federal courts to "Cases" and "Controversies." See U.S. Const. art. III, § 2, cl. 1.

The case or controversy requirement, which constitutes "the irreducible constitutional minimum of standing," requires that a plaintiff show "(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged

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action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."

Krottner v. Starbucks Corp. , 628 F.3d 1139, 1141 (9th Cir. 2010) (citation omitted) (first quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; then quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs...