Bayer v. Neiman Marcus Grp., Inc.
Decision Date | 30 May 2018 |
Docket Number | Case No. 13-cv-04487-MEJ |
Court | U.S. District Court — Northern District of California |
Parties | TAYLER BAYER, Plaintiff, v. NEIMAN MARCUS GROUP, INC., Defendant. |
Re: Dkt. Nos. 28, 34
In this action, Plaintiff Tayler Bayer, a former employee of Defendant Neiman Marcus Group, Inc. (NMG), brings a single claim for wrongful interference of his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12203. Pending before the Court are the parties' cross-motions for summary judgment. Pl.'s Mot. for Summ. J. (PMSJ), Dkt. No. 28; Def.'s Mot. for Summ. J. (DMSJ), Dkt. No. 34. The Court finds this matter suitable for disposition without oral argument. Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b). Having considered the parties' positions, the relevant legal authority, and the record in this case, the Court DENIES Defendant's Motion and DENIES Plaintiff's Motion for the reasons set forth below.
NMG is a national retailer of luxury goods and operates a chain of high-end retail department stores. Joint Statement of Undisputed Facts (JSUF) ¶ 44, Dkt. No. 74. Bayer joined NMG in March 2006; he regularly worked five six-hour shifts in the Cosmetics Department of the San Francisco store as a Product Specialist. JSUF ¶¶ 5, 45.
In March 2007, Bayer was placed on medical leave by his doctor due to respiratory problems, and remained on FMLA leave for a medical condition through May 2007. JSUF ¶¶ 6, 46. Bayer's physician released him to return to work at the start of June 2007, subject to certain restrictions, including that he work no more than four days per week. JSUF ¶¶ 7-8, 47. Bayer asked NMG to modify his existing 30-hour schedule from five six-hour shifts to four seven-and-a-half hour shifts, which would enable him to continue working 30 hours a week. JSUF ¶ 10. NMG employees who worked an average of at least 30 hours a week were considered full time and eligible to receive certain medical benefits, including medical insurance. JSUF ¶ 4. On or about June 8, 2007, NMG declined to modify Bayer's schedule in the manner requested. JSUF ¶ 11. Instead, NMG allowed Bayer to reduce his days of work from five to four, with intermittent FMLA leave on the fifth day. JSUF ¶ 48. This proposed accommodation would reduce Bayer's weekly hours below 30 per week. JSUF ¶ 49.
Bayer filed an administrative complaint with the EEOC for his reasonable accommodation charge on June 20, 2007. JSUF ¶¶ 13, 53 (EEOC Charge #1). In October 2007, the EEOC issued a right-to-sue letter for Bayer's EEOC Charge #1 (JSUF ¶ 31), and Bayer brought suit against Neiman Marcus in January 2008 (Tayler Bayer v. Neiman Marcus Holdings, Inc., N.D. Cal. Case No. CV-08-0480-PJH) (Lawsuit #1) (JSUF ¶ 32). The parties settled Lawsuit #1. JSUF ¶ 69.
NMG terminated Bayer's employer in January 2009, after which Bayer filed another EEOC charge, alleging that NMG's termination was in retaliation for his previous EEOC charges. JSUF ¶ 66; Bayer Decl., Ex. O (EEOC Charge #3), Dkt. No. 31.1 After the EEOC issued a right-to-sue letter with respect to EEOC Charge #3, Bayer filed another federal court lawsuit alleging that Neiman Marcus had wrongfully terminated him in violation of the ADA's anti-retaliation provisions. Tayler Bayer v. Neiman Marcus Gp., Inc., N.D. Cal. Case No. CV-11-03705-MEJ (Lawsuit #2); JSUF ¶ 66.
In Lawsuit #2, Neiman Marcus filed a Motion to Compel Arbitration. JSUF ¶ 67. InNovember 2011, this Court denied Neiman Marcus's motion to compel arbitration on the ground that Bayer had never consented to be bound. JSUF ¶ II.100.2 Neiman Marcus appealed that order; on July 3, 2014, the Ninth Circuit affirmed the Court's refusal to compel arbitration, holding that Bayer had never consented to be bound by Neiman Marcus's Arbitration Agreement and therefore was not required to arbitrate his claims of unlawful retaliation. Bayer v. Neiman Marcus Grp., Inc., 2014 U.S. App. LEXIS 12645, Ninth Circuit No. 11-17920 (July 3, 2014) (Thomas, McKeown, Kendall, JJ.) (unpub.); JSUF ¶¶ 68, II.100. Lawsuit #2 settled after remand. Lawsuit #2, Dkt. Nos. 54, 56.
JSUF ¶ 17 (emphases in original); see also Bayer Decl., Ex. F (the "Arbitration Agreement Acknowledgment Form"). The Arbitration Agreement reflected the same provisions (without emphases), and also stated: "Each covered employee's employment or continued employment with the Company after the Effective Date constitutes assent, acceptance, consent and consideration for this Agreement to arbitrate, both during the time of employment and after termination of employment." JSUF ¶ 18; see also Bayer Decl., Ex. H (Frequently Asked Questions (FAQs) relating to the Arbitration Agreement); JSUF ¶ 19 ( ).
Bayer understood the Arbitration Agreement required him and NMG to submit to binding arbitration and to waive the right to a jury trial; he also understood that if he continued to work after July 15, 2007, NMG would consider him subject to the Arbitration Agreement. JSUF ¶ 58.
By July 9, 2007, Bayer had retained an attorney to assist him in responding to NMG's arbitration program; he filed a second EEOC charge against NMG on July 9, 2007 (EEOC Charge #2). JSUF ¶¶ 25-27, II.40; see also Bayer Decl., Ex. K (EEOC Charge #2). This second EEOC charge, which gives rise to this lawsuit, alleges that NMG unlawfully limited Bayer's civil rights by requiring him to sign the Arbitration Agreement which contained several illegal provisions, including a prohibition on class actions, a one-year statute of limitations, a limit of three depositions, a requirement that all arbitrators be members of the Texas Bar, and that federal claims be governed by Fifth Circuit law. EEOC Charge #2 further alleges that being required to sign the Arbitration Agreement violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, and the Americans with Disabilities Act of 1990. See Bayer Decl., Ex. K. Bayer informed NMG during the first half of July 2007 that he would not sign the Acknowledgment Form, would not agree or consent to the Arbitration Agreement, and refused to be bound by the Arbitration Agreement. JSUF ¶¶ 27, 59-62; see also Bayer Decl. ¶ 13 & Ex. L ) .
Bayer testified that two NMG managers, Liza Clay and Lily Tang Lamb, told him that if he did not sign, he could be terminated. Bayer Dep. at 56:8-58:24, 83:1-5, Dkt. No. 35-3; see also Bayer Aff. at 2, Dkt. No. 34-6. On June 29th, Clay asked Bayer if he had read the Arbitration Agreement and if he was going to turn in the Acknowledgment Form, then said: Bayer Dep. at 57:10-25. Clay then stated she would make an appointment for Bayer to meet with Greg Carlson in HR to discuss the Arbitration Agreement; Bayer followed up with Carlson, but the meeting never took place. Id. at 57:25-58:5. Clay told Bayer once more in July that he was choosing to not be an employee if he did not sign the forms. Id. at 58:6-21. He had a similar conversation with Tang Lamb in July. Id. at 60:1-19 ( ), id. at 66:3-22. In addition to the conversations with Clay and Tang Lamb, Bayer testified that HR personnel at NMG asked him where the completed form was "a couple more times." Id. at 86:22-87:20. These were the only verbal statements anyone...
To continue reading
Request your trial