Clinton v. Oppenheimer & Co.

• Citation: 824 F.Supp.2d 476
• Decision Date: 19 April 2011
• Docket Number: No. 10 Civ. 3286(JSR).,10 Civ. 3286(JSR).
• Parties: Marisha CLINTON, Plaintiff, v. OPPENHEIMER & CO. INC., Defendant.
• Court: U.S. District Court — Southern District of New York

824 F.Supp.2d 476

Marisha CLINTON, Plaintiff,

v.OPPENHEIMER & CO. INC., Defendant.

No. 10 Civ. 3286(JSR).

United States District Court, S.D. New York.

April 19, 2011.

Marisha Clinton, Brooklyn, NY, pro se.

Barry S. Gold, Krebsbach & Snyder, P.C., New York, NY, for Defendant.

ORDER

JED S. RAKOFF, District Judge.

On March 14, 2011, the Honorable Michael H. Dolinger, United States Magistrate Judge, issued a Report and Recommendation (“Report”) in the above-captioned matter recommending that the Court grant the motion of defendant Oppenheimer & Co., Inc. (“Oppenheimer”) to compel arbitration of plaintiff's claims for employment discrimination, and deny the motion of plaintiff Marisha Clinton for default judgment. On March 31, 2011, Clinton filed objections to the Report. Accordingly, the Court reviewed the Report, Clinton's objections thereto, and the underlying record de novo. Having done so, the Court finds itself in complete agreement with the well-reasoned Report, which the Court hereby adopts by reference. Thus, for the reasons stated in the Report, the Court (a) grants Oppenheimer's motion, and thereby directs that this action is stayed, pending the parties' arbitration of Clinton's claims, and (b) denies Clinton's motion.

SO ORDERED.

REPORT & RECOMMENDATION

MICHAEL H. DOLINGER, United States Magistrate Judge.

Pro se plaintiff Marisha Clinton (“Clinton”) commenced this action on April 19, 2010 against defendant Oppenheimer & Co., Inc. (“Oppenheimer”), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e17, and the Equal Pay Act, 29 U.S.C. § 206. Plaintiff alleges that defendant discriminated against her and discharged her from her employment based upon her race and her gender. She seeks damages and injunctive relief.

In response, Oppenheimer has moved to compel arbitration and to stay the case during its pendency. Clinton opposes the motion and further requests that the court enter a default judgment based on her contention that defendant failed to respond timely to the complaint. For the reasons that follow, we recommend that defendant's motion to compel arbitration be granted and plaintiff's motion for a default judgment be denied.

I. Background

Clinton began working for Oppenheimer on or about July 8, 2008 as a Director of Equity Research. (Pl.'s Cmplt., Particulars in Support of EEOC Charge (“Particulars in Support”) ¶ 2, Mar. 15, 2010). When commencing her employment, she signed an arbitration agreement dated July 3, 2008. (Decl. of Barry S. Gold, Esq. ¶ 2 & Ex. B, Oct. 27, 2010). The pertinent portion of the arbitration agreement reads:

I agree that any dispute, controversy or claim which I have arising out of or relating to my employment or separation of employment, including alleged violation of state or federal civil rights acts (including but not limited to all claims of discrimination, harassment and/or retaliation under such statutes as ... Title VII of the Civil Rights Act of 1964) ... shall be arbitrated before the National Association of Securities Dealers (NASD).

( Id. at Ex. B).¹

On December 22, 2008, plaintiff received a formal written reprimand which listed seven areas for improvement and warned her that she could be terminated if she failed to demonstrate improvement. (Cmplt., Ex. A). One month later, plaintiff underwent an annual performance review and received another written reprimand, which repeated the seven areas for improvement and the warning regarding termination. (Cmplt., Ex. B). On March 3, 2009, plaintiff was terminated from her employment. (Particulars in Support, ¶ 33).

Plaintiff filed a complaint with the Equal Employment Opportunity Commission on May 25, 2009, alleging discrimination by Oppenheimer on the bases of race and gender. On December 16, 2009, the EEOC notified plaintiff that it was unable to conclude that Oppenheimer had engaged in illegal discrimination, and it provided her with right-to-sue materials.

II. DiscussionA. Standard of Review for Motion to Compel Arbitration

Before addressing defendant's motion to compel, we summarize the pertinent standards for assessing such a motion. The Second Circuit has held that “[i]n the context of motions to compel arbitration brought under the Federal Arbitration Act ... the court applies a standard similar to that applicable for a motion for summary judgment.” Bensadoun v. Jobe–Riat, 316 F.3d 171, 175 (2d Cir.2003) (citing cases). See, e.g., DuBois v. Macy's East, Inc., 338 Fed.Appx. 32, 33 (2d Cir.2009) (applying summary-judgment standards to a motion to compel arbitration, and noting that to defeat such a motion, the party opposing arbitration must show a genuine factual dispute about the validity of an arbitration agreement); Opals on Ice Lingerie v. Bodylines, Inc., 320 F.3d 362, 368 (2d Cir.2003).

The court may enter summary judgment only if it concludes that there is no genuine dispute as to the material facts and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (formerly Rule 56(c)); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir.2004). “An issue of fact is ‘material’ for these purposes if it ‘might affect the outcome of the suit under the governing law’ [while] [a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Shade v. Hous. Auth. of the City of New Haven, 251 F.3d 307, 314 (2d Cir.2001) (quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). It is axiomatic that the responsibility of the court in deciding a summary-judgment motion “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986); see, e.g., Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Howley v. Town of Stratford, 217 F.3d 141, 150–51 (2d Cir.2000).

The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the “materials in the record, including depositions, documents, electronically stored information, affidavits, stipulations ... or other materials” that demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); see, e.g., Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir.2002). If the non-moving party has the burden of proof on a specific issue, the movant may satisfy its initial burden by demonstrating the absence of evidence in support of an essential element of the non-moving party's claim. See, e.g., Celotex, 477 U.S. at 322–23, 325, 106 S.Ct. 2548; PepsiCo, Inc. v. CocaCola Co., 315 F.3d 101, 105 (2d Cir.2002); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). If the movant fails to meet its initial burden, however, the motion will fail even if the opponent does not submit any evidentiary materials to establish a genuine factual issue for trial. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Giannullo v. City of New York, 322 F.3d 139, 140–41 (2d Cir.2003).

If the moving party carries its initial burden, the opposing party must then shoulder the burden of demonstrating a genuine issue of material fact. See, e.g., Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006); Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548; Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.2001). In doing so, the opposing party cannot rest merely on allegations or denials of the factual assertions of the movant, Fed.R.Civ.P. 56(e), nor can she rely on her pleadings or on merely conclusory factual allegations. Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 59–60 (2d Cir.2004), See, e.g., Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 59–60 (2d Cir.2004); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000). She must also “do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Woodman v. WWOR–TV, Inc., 411 F.3d 69, 75 (2d Cir.2005). Rather, she must present specific evidence in support of her contention that there is a genuine dispute as to the material facts. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525–26 (2d Cir.1994). In other words, she must demonstrate that there is sufficient evidence for a reasonable jury to find in her favor. Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 455–56 (2d Cir.2007) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505). See also DuBois, 338 Fed.Appx. at 33 (explaining that once the party seeking arbitration has submitted the required evidentiary facts proving the existence of the arbitration agreement, the opposing party must show “that there is a dispute of face to be tried”) (quoting Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d 352, 358 (2d Cir.1995)).

We note that, as a general matter, we must take care to construe a pro se litigant's papers liberally, in deference to her pro se status. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988) (affording “special solicitude” to pro se litigants “confronted with motions for summary judgment”); Salahuddin v. Coughlin, 999 F.Supp. 526, 535 (S.D.N.Y.1998) (noting that pro se litigants are to be given “special latitude on summary judgment motions”) (internal quotation marks omitted) (quoting Reyes v. Koehler, 815 F.Supp. 109, 112 (S.D.N.Y.1993)). Accordingly, we interpret a...