Boss v. N.Y. Life Ins. Co.

• Decision Date: 30 March 2021
• Docket Number: No. 19-2240,19-2240
• Citation: 992 F.3d 20
• Parties: Ketler BOSSÉ, Plaintiff, Appellee, v. NEW YORK LIFE INSURANCE COMPANY; New York Life Insurance and Annuity Corporation; New York Life Insurance Company of Arizona, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

992 F.3d 20

Ketler BOSSÉ, Plaintiff, Appellee,

v.NEW YORK LIFE INSURANCE COMPANY; New York Life Insurance and Annuity Corporation; New York Life Insurance Company of Arizona, Defendants, Appellants.

No. 19-2240

United States Court of Appeals, First Circuit.

March 30, 2021

Michael L. Banks, with whom David C. Dziengowski and Morgan, Lewis & Bockius LLP were on brief, for appellants.

Robert M. Fojo, with whom Fojo Law, P.L.L.C. was on brief, for appellee.

Before^* Howard, Chief Judge, Lynch and Barron, Circuit Judges.

LYNCH, Circuit Judge.

The district court refused to enforce arbitration clauses in the Employment Agreement between Ketler Bossé and New York Life, which expressly require that any disputes about arbitrability be referred to the arbitrator to decide. The Supreme Court decisions in Henry Schein, Inc. v. Archer & White Sales, Inc., ––– U.S. ––––, 139 S. Ct. 524, 202 L.Ed.2d 480 (2019), First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), and other cases result in our reversing that decision because the decision on whether the dispute is arbitrable belongs to the arbitrator and not to the court.

Bossé had a continuous business relationship with New York Life for about fifteen years, during which time he worked both as an independent contractor and, from 2004 to 2005, as an employee. In 2016, New York Life terminated its business relationship with Bossé.

Bossé brought this action in federal court alleging race discrimination by New York Life in violation of 42 U.S.C. §§ 1981 and 1985 and other claims under state law. In response, New York Life invoked the arbitration clauses contained in Bossé's Employment Agreement, which state "[t]he Partner and New York Life agree that any dispute, claim or controversy arising between them, including those alleging employment discrimination (including sexual harassment and age and race discrimination) in violation of a statute (hereinafter ‘the Claim’), as well as any dispute as to whether such Claim is arbitrable, shall be resolved by [ ] arbitration." New York Life said the arbitration clauses survived under an explicit "Survival" clause in the parties' Employment Agreement and asked the court to compel arbitration and stay or dismiss the lawsuit.

The district court refused to do either. We hold that the district court's reasoning contravened the holdings in Supreme Court decisions. The clause delegating all disputes about arbitrability is clear, unmistakable, and unambiguous. It should have been enforced on those terms. And even if there were any ambiguity, and we see none, the presumption in favor of arbitrability would lead to the same result. Reversal is required under the Federal Arbitration Act ("FAA") and Supreme Court opinions interpreting the FAA, and none of Bossé's other arguments would permit affirmance.

I.

A. Facts

Because this appeal arises from an order on a motion to stay proceedings and to compel arbitration in connection with a motion to dismiss, "we draw the relevant facts from the complaint and the parties' submissions to the district court on the motion." Biller v. S-H OpCo Greenwich Bay Manor, LLC, 961 F.3d 502, 505 n.2 (1st Cir. 2020) (internal quotation marks omitted) (quoting Bekele v. Lyft, Inc., 918 F.3d 181, 184 (1st Cir. 2019) ).

1. Bossé Is Hired as an Agent

Bossé began his business relationship with New York Life in 2001 when he was hired as an agent. Bossé believes he was the first black agent hired by New York Life in New Hampshire and remained the only black agent working in New Hampshire as late as 2012.

Under the terms of the Agent's Contract, which he executed with New York Life on November 15, 2001, Bossé was authorized to solicit applications for various life and health insurance and annuity policies, for which he earned commissions. He, however, did not remain an agent but was promoted.

2. The Partner's Employment Agreement

On March 25, 2004, Bossé entered into a Partner's Employment Agreement ("the Employment Agreement" or "the Agreement") with New York Life.¹ It is the terms of this Employment Agreement that are at issue. The first line in the Employment Agreement specifically identifies "KETLER BOSSE" as "PARTNER," and below that the Agreement states "NEW YORK LIFE INSURANCE COMPANY hereby authorizes the employment of the person named above as Partner." The signature line at the end of the Agreement, on which Bossé signed, is designated as "Partner Signature." It is undisputed that when Bossé entered the Employment Agreement, he was a Partner. Under that Agreement, Bossé was paid a salary and given the responsibility to recruit, to train, and to supervise agents under the direction of a Managing Partner.

The Employment Agreement included an arbitration clause, which specifies that

[t]he Partner and New York Life agree that any dispute, claim or controversy arising between them, including those alleging employment discrimination (including sexual harassment and age and race discrimination) in violation of a statute (hereinafter "the Claim"), as well as any dispute as to whether such Claim is arbitrable, shall be resolved by an arbitration proceeding administered by the [National Association of Securities Dealers ("NASD")] in accordance with its arbitration rules.

The arbitration clause also provides that

[i]n the event that the NASD refuses to arbitrate the Claim, the Partner and New York Life agree that the Claim, as well as any dispute as to whether such Claim is arbitrable, shall be resolved by an arbitration proceeding administered by the American Arbitration Association [("AAA")] in accordance with its National Rules for the Resolution of Employment Disputes [("NRRED")].

As specified in the text, such disputes must be resolved under certain specified rules. We highlight those rules. The NASD referenced in the arbitration clause has been succeeded by the Financial Industry Regulatory Authority ("FINRA") and it is undisputed that the reference to the NASD rules should be read as incorporating the FINRA rules. FINRA Rule 13413 provides that "[t]he panel has the authority to interpret and determine the applicability of all provisions under the Code [of Arbitration Procedure for Industry Disputes]."² Rule 6 of the AAA Employment Arbitration Rules and Mediation Procedures (formally named the NRRED) states that "[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement" and shall also "have the power to determine the existence or validity of a contract of which an arbitration clause forms a part."³

Finally, the Agreement contains a "Survival" clause, which provides that various provisions of the contract "shall survive termination of this ... Employment Agreement by either party for any reason." The arbitration clause is one of those provisions the parties expressly provided would survive termination of the Agreement.

3. Bossé's Subsequent Work as an Agent and District Agent and the Alleged Race Discrimination

At some point in 2005, Bossé transitioned back to working as a contractor with New York Life under the Agent's Contract. That contract did not contain an arbitration clause. He worked with New York Life in that capacity until 2013, when he became a District Agent.

Under the District Agent Agreement, Bossé was authorized to establish his own firm separate from New York Life's general office, at his own expense, and to hire his own agents, and he had other responsibilities in addition to his normal duties as an agent. The District Agent Agreement explicitly stated that District Agents are "independent contractor[s] for all purposes" and that it "does not and will not be construed to create the relationship of employer and employee between New York Life and [the] District Agent." The District Agent Agreement did not contain an arbitration clause.

On January 15, 2016, Bossé was terminated from his business relationship with New York Life pursuant to the at-will employment provision in his Agent's Contract. He alleges he was told he was being terminated because he had provided false or inaccurate information in processing an electronic life insurance application for his ex-wife. Bossé denies any such misconduct and asserts that the purported reason for his termination was pretextual and that the real reason for his termination was his race.

Generally, Bossé contends that New York Life and specific employees undermined his relationships with his customers and his agents in various ways. Bossé claims that he complained of this misconduct to New York Life employees on several occasions from 2013 to 2015, but that no action was taken to address it. He asserts that white agents were not subject to this mistreatment and that it constituted a pattern and practice of discrimination because of his race and because he had recruited many minority agents to his unit.

Bossé alleges that he was the first and only black District Agent hired by New York Life at the time his business relationship with the defendants ended and that New York Life generally failed to hire black agents.

B. Procedural History

On February 12, 2016, Bossé filed a charge of racial discrimination and retaliation with the New Hampshire Commission for Human Rights ("the Commission"). New York Life defended that charge by producing to the Commission a copy of the Agent's Contract, which established that Bossé was an independent contractor, rather than an employee, at the time of the alleged misconduct. The Commission thus dismissed the charge for lack of jurisdiction. New York Life did not argue to the Commission that the charge of discrimination was subject to binding arbitration and should have been dismissed on that basis.

On January 7, 2019, Bossé filed a complaint against New York Life Insurance Company, New York Life Insurance and Annuity Corporation, and New York Life Insurance Company of Arizona (collectively "New...