Dixon v. Nbcuniversal Media, LLC

Decision Date28 May 2013
Docket NumberNo. 12 Civ. 7646(PAE).,12 Civ. 7646(PAE).
PartiesNadgia DIXON, Plaintiff, v. NBCUNIVERSAL MEDIA, LLC and Oxygen Media, LLC, Defendants.
CourtU.S. District Court — Southern District of New York


Leonard Steven Surdyk, Surdyk & Baker, New York, NY, for Plaintiff.

Chelley Ernette Talbert, NBC Universal Talent Negotiations and Labor Relations, New York, NY, for Defendants.


PAUL A. ENGELMAYER, District Judge.

Plaintiff Nadgia Dixon brings this action on her own behalf and on behalf of a putative class of employees of defendants NBCUniversal Media, LLC (NBCU) and Oxygen Media, LLC (Oxygen), alleging that defendants failed to compensate her for overtime wages, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and New York Labor Law (“NYLL”), §§ 191 et seq. Defendants move to compel arbitration of Dixon's claims. Dixon, in turn, moves to strike certain exhibits filed by defendants in connection with the motion to compel arbitration. Dixon also moves for conditional collective action certification. For the reasons that follow, defendants' motion to compel arbitration is granted, and Dixon's motions are denied.

I. Background1A. Factual Background

Dixon has been employed by Oxygen since February 2006. Dixon Decl. ¶ 2; Talbert Decl. ¶ 3. Shortly after Dixon's employment began, she was promoted to her current position of production coordinator. Dixon Decl. ¶ 2. Dixon continued her employment with Oxygen after NBCU's predecessor entity 2 acquired Oxygen in fall 2007, see Talbert Decl. ¶ 3; Dixon Decl. ¶ 2, and she continues to be employed by Oxygen to this day, see Dixon Decl. ¶ 1.

NBCU utilizes an alternative dispute resolution procedure called Solutions. On April 29, 2009, Dixon received an email regarding Solutions that was sent to all NBCU employees. Dixon Decl. ¶ 4 & Ex. C; Talbert Decl. ¶ 6 & Ex. B. At the time the email was sent, General Electric Company (“GE”) owned a majority stake in NBCU (which in turn owned Oxygen). Talbert Decl. ¶¶ 3, 7; Talbert MTS Decl. ¶ 3. The email began:

I'm writing to let you know about a change to our existing alternative dispute resolution program, which is used to handle employee issues and concerns. This updated program is called Solutions. It is being adopted across GE as the standard method for resolving employment-related disputes.

Talbert Decl. Ex. B (emphasis in original). The email went on to explain that the program previously had been in place for GE's and NBCU's senior leadership teams, and that it would “now be rolled out to all non-union employees in the U.S....” Id. The email directed [a]ll NBCU employees who meet the above criteria” to ensure that they are familiar with the program and instructed them to, no later than June 30, 2009, access a PowerPoint presentation that served as a training course on the Solutions program. Id. The training course also included a link to the version of the Solutions manual current as of April 29, 2009. Talbert MTS Decl. ¶ 4 & Ex. A (the 2009 Manual”).

On May 11, 2009, Dixon received another email regarding Solutions, this time from Christina Guzzo, Oxygen's Human Resources Coordinator. Talbert Reply Decl. ¶ 9 & Ex. D. The email, which was addressed to “NBC Uni Oxygen All,” stated: “Hi Oxygen ... We will be holding a brief info Session regarding Solutions, the new alternative dispute resolution program at NBCU, this Wednesday (5/13) at 11 AM.... Please make every effort to attend, especially if you have questions.” Id. Ex. D. This email attached the April 29, 2009 email at the bottom. Id. On May 13, 2009, Guzzo sent another email reminder about the information session, attaching both the April 29 and May 11 emails and stating: “Reminder—if you are interested in attending, please join us at 11 AM EST today....” Id. ¶ 10 & Ex. E; Dixon Decl. ¶ 5 & Ex. D. Dixon did not attend the information session, because, she attests, she believed it to be optional. Dixon Decl. ¶ 5.

Dixon attests that she never accessed the link to the Solutions manual and therefore never saw the manual until this lawsuit was commenced. Dixon Decl. ¶¶ 4, 6. However, on July 1, 2009, Dixon did complete the PowerPoint training course on the Solutions program. Talbert Decl. ¶ 9 & Ex. D. That course gave an overview of Solutions terms and procedures, and included several slides particularly relevant here. One slide explained that although most GE employees had previously entered into agreements to submit their claims to binding arbitration, rather than going to court, [s]ome employees ... were previously exempted from this requirement.... Now those employees will also be required to bring claims to binding arbitration rather than to court.... With the introduction of Solutions, these distinctions between employees are being eliminated.” Id. Ex. C, at 4 (emphasis in original). Another slide explained that Solutions will apply to certain “employees working in the U.S. ... receiving this training who continue their employment with the Company after July 1, 2009. This means that by choosing to continue to work for the Company after July 1, 2009, you are agreeing to be covered by Solutions after July 1, 2009.” Id. at 6. Finally, another slide explained that “Covered Claims” are those “arising out of the employment relationship, asserted by or against the Company, that a court would have authority under applicable law to resolve.” Id. at 8. Among the listed examples are [w]age-hour claims.” Id. The presentation stated that Covered Claims “cannot be brought to court and will not be heard by a jury” and that they can “only be pursued on an individual basis through Solutions, meaning that no class or collective actions are permitted.” Id. at 7 (emphases in original).

Consistent with the summaries in the presentation that Dixon viewed on July 1, 2009, the 2009 Manual defines “Covered Employees” as “U.S.-based ... current ... employees ... not represented by a labor union who are or were employed by the Company (including any of its subsidiaries or affiliates that have adopted the procedure), as identified by your business or component in Appendix A.” 2009 Manual, at 4. Appendix A lists NBCU—although not Oxygen—as one such entity. Id. at 26. “The Company” is further defined in the 2009 Manual to include “GE, any subsidiaries, affiliates, joint ventures, and parents thereof that have adopted the procedure ....” Id. at 4. The 2009 Manual expressly exempts Universal Parks and Resorts and Universal Orlando—two wholly owned, indirect subsidiaries of NBCU, see Talbert Reply Decl. ¶ 3—from Solutions. 2009 Manual, at 4.3

In January 2011, Comcast acquired a controlling stake in NBCU from GE. Talbert MTS Decl. ¶ 5; see also Talbert Decl. ¶ 7. In late 2010, NBCU had begun drafting minor revisions to the 2009 Manual in response to recent legislation. Talbert MTS Decl. ¶ 5. Those changes culminated in the most current version of the Solutions manual, dated January 28, 2011. Id. ¶ 7; Talbert Reply Decl. ¶ 8 & Ex. C (the 2011 Manual”). The 2011 Manual contains only one change potentially material here: In defining Covered Employees as non-represented employees of “The Company,” the 2011 Manual defines “The Company” as NBCU and its subsidiaries, rather than GE and its subsidiaries. 2011 Manual, at 4.

In all other relevant respects, the 2009 and 2011 Manuals are identical. Both state that the Solutions procedure “creates a binding obligation on Covered Employees and the Company for the resolution of employment disputes.” 2011 Manual, at 2; 2009 Manual, at 2. Both state that:

Covered Employees and the Company are not allowed to litigate a Covered Claim in any court.... Covered Employees and the Company waive their right to bring any Covered Claims as, or against, a representative or member of a class or collective action ... unless all parties agree to do so in writing. All Covered Claims must be brought on an individual basis only in Solutions.

2011 Manual, at 7; 2009 Manual, at 7. Both define “Covered Claims” as “all claims that arise out of or are related to an employee's employment ... where a court in the jurisdiction in question would otherwise have the authority to hear and resolve the claim[,] including specific examples such as claims “relating to compensation.” 2011 Manual, at 5; 2009 Manual, at 5. Finally, although the two versions of the manual differ in their precise definition of “The Company” as related to Covered Employees, both specifically exempt two NBCU subsidiaries, but not Oxygen, from coverage. 2011 Manual, at 4 n. 2; 2009 Manual, at 4 n. 2.

On November 2, 2011, Dixon and other NBCU employees received an email notifying them of the changes to Solutions reflected in the 2011 Manual. Talbert Reply Decl. ¶ 5 & Ex. A. That email explained that [e]mployees who were previously covered by Solutions will continue to be covered by the procedure.” Id. The email attached the 2011 Manual, and a document summarizing the changes. Id. Exs. A–C.

At no point has Dixon attempted to resolve her claims pursuant to the Solutions procedure. Talbert Decl. ¶ 10. She attests that she understood Solutions to be optional to her, because an employee handbook that she received from NBCU states, under the heading “Dispute Resolution,” that [e]mployees are encouraged and may be required to resolve disputes with the Company by means of the procedures set forth in Solutions.” Dixon Decl. ¶ 3 & Ex. B (emphasis supplied by Dixon).

B. Procedural History

On October 12, 2012, Dixon filed her Complaint. Dkt. 1. On February 19, 2013, defendants moved to compel arbitration. Dkt. 8 (“Def. Arb. Br.”). On March 18, 2013, Dixon opposed that motion. Dkt. 16 (“Pl. Arb. Br.”). On April 8, 2013, defendants filed a reply. Dkt. 21 (“Def. Arb. Reply Br.”).

On April 12, 2013, Dixon filed a motion to strike the exhibits attached to the Reply Declaration of Chelley Talbert in Support of Defendants' Motion to Compel Arbitration (Dkt. 22), or, in the alternative, a ...

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