Martin v. NTT Data, Inc.

• Decision Date: 23 June 2020
• Docket Number: CIVIL ACTION NO. 20-CV-0686
• Parties: SARAH MARTIN, Petitioner v. NTT DATA, INC., Respondent
• Court: U.S. District Court — Eastern District of Pennsylvania

SARAH MARTIN, Petitioner v. NTT DATA, INC., Respondent

CIVIL ACTION NO. 20-CV-0686

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

June 23, 2020

MEMORANDUM AND ORDER

JOYNER, J.

The instant case has been brought before the Court on Petition of Sarah Martin to Vacate an Arbitration Award issued on January 6, 2020 by an independent arbitrator and the Cross-Petition of NTT Data, Inc. to Confirm that award. For the reasons which follow, the Petition to Vacate shall be denied and the Cross-Petition to Confirm granted.

Factual Background

Petitioner, Sarah Martin, commenced this employment discrimination action against NTT Data, Inc. by first filing a Complaint of Discrimination with the EEOC¹ on April 7, 2017. Ms. Martin had been employed by NTT Data and/or its predecessors for 32 years before her termination on March 9, 2017, ostensibly forthe reason that her position as an executive was being eliminated. According to Petitioner, however, there had long existed at NTT Data a culture of discrimination against women in favor of men about which she had complained numerous times over the years. Petitioner further avers that immediately following her termination, all of her job responsibilities were transferred to a male executive, Ande Lake, who kept the same title as that which Plaintiff had held.

Following receipt of a "right-to-sue" letter on September 29, 2017, Petitioner filed a Demand for Arbitration with JAMS, a private arbitration company, on December 27, 2017 pursuant to an Arbitration Agreement which she had entered into with NTT Data. That agreement provided in pertinent part:

"[a]s a condition for participation in the Company's Long Term Incentive Plan and not in reliance on any promises or representations by the Company other than those, if any, contained in the Agreement itself," "[a]ny dispute or controversy justiciable under federal, state or local law between Employee and the Company ...including but not limited to, a dispute or controversy arising out of or relating to Employee's employment with Company ... or involving claims of discrimination..." would be submitted to JAMS or its successor "for final and binding arbitration."

In her initial Arbitration Demand, Ms. Martin asserted a single count under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et. seq. ("Title VII") for discrimination based on her sex and retaliation for her "complaints about the same." On January 12, 2018, Respondent employer filed its Answer,Affirmative Defenses and Counterclaim in which it raised a claim for breach of contract against Petitioner based upon her alleged failure to comply with the terms of her Confidentiality Agreement with the company by copying purportedly confidential and proprietary business information and not returning it for several months. Some two weeks later, Petitioner responded by filing an Amended Demand for Arbitration claiming that the counterclaim was made in retaliation for her initial Demand for Arbitration. Subsequently, after arbitration proceedings had formally commenced, a Second Amended Demand for Arbitration was submitted adding a claim for discrimination and retaliation under the Pennsylvania Human Relations Act, 43 P.S. §951, et. seq. on April 9, 2018.

In its January 26, 2018 formal notice to all parties of Commencement of Arbitration, JAMS provided a list of five available arbitrators with their hourly rates, locations, curriculum vitaes and individual procedures, together with copies of JAMS Arbitration Policies and Rules & Procedures. The Notice included the following:

...The parties are encouraged to mutually agree to an arbitrator. If the parties are unable to mutually agree to an arbitrator, then using the following list of arbitrator candidates each party may strike two (2) names and rank the remaining candidates in order of preference. The deadline for return of your strike list is on Monday, February 5, 2018. [Note: Strike lists should not be exchanged amongst the parties.] ...If a party fails to respond to the list of arbitrator candidates in a timely manner, that party shall be deemed agreeable to all the proposed candidates. JAMS will then confirm the appointment of the arbitrator and begin scheduling. If the parties are unable to agree on a date and time, the arbitrator shall determine those issues.

It is unclear from the existing record whether the parties here were able to mutually agree or what strikes, if any, were registered to any of the arbitrators listed. In any event, on February 7, 2018, Vivien B. Shelanski, Esquire was appointed to serve as the arbitrator in the case. As noted in the Demand for Arbitration form, "[f]or matters based on a clause of agreement that is required as a condition of employment, the employee is only required to pay $400." The filing fee alone to initiate the arbitration process in two-party matters is $1,200.00. The Appointment of Arbitrator notice further stated:

The Arbitrator will bill in accordance with the enclosed Fee Schedule. The arbitration will be administered consistent with the enclosed JAMS Policy on Employment Arbitration, Minimum Standards of Procedural Fairness. According to this Policy, the only fee a consumer employee may be required to pay is $400 of the Filing Fee. All other costs, including the remainder of the Filing Fee, must be borne by the Company. JAMS will also administer the case consistent with the JAMS Cancellation/Continuance Policy. Any party who cancels or continues a hearing after the deadline will be responsible for 100% of the professional fees unless we can fill the reserved but unused time with another matter.

Concurrent with the appointment notice of Ms. Shelanski, the parties received a copy of the "Disclosure Checklist for All Arbitrations," which Ms. Shelanski had signed on February 6,2018. In response to question 4(d) of the checklist, Shelanski checked the "yes" box indicating that within the preceding five years, she had served "[a]s dispute resolution neutral other than an arbitrator in another prior or pending case involving a party, lawyer for a party, or law firm in the current arbitration." She went on to explain:

I have not met or worked with any of the attorneys in this matter. I was the mediator in one closed matter in which the Foley & Lardner firm (not Donald W. Schroeder, Esq. or Jillian M. Collins, Esq.) appeared. Nothing in the above alters my ability to be fair, impartial, and independent in this arbitration.

Additionally, at the bottom of the Disclosure Checklist, the following "Declarations" appear directly above the signature of the appointed arbitrator:

1. Having been nominated or appointed as an arbitrator, I have made a reasonable effort to inform myself of any matters that could cause a person aware of the facts to reasonably entertain a doubt that as the proposed arbitrator I would be able to be impartial. In addition, I have disclosed all such matters to the parties.

2. I practice in association with JAMS. I and each other JAMS neutral have an economic interest in the overall financial success of JAMS. In addition, because of the nature and size of JAMS, the parties should assume that one or more of the other neutrals who practice with JAMS has participated in an arbitration, mediation or other dispute resolution proceeding with the parties, counsel or insurers in this case and may do so in the future.

3. My responses to the questions above are true and correct to the best of my knowledge.

4. Please note JAMS neutrals regularly engage in speaking engagements, CLEs, discussion groups and other professional activities, and it is possible that a lawyeror law firm connected with this proceeding either attended, participated or was on a panel with the Arbitrator.

Subsequent to the appointment of Arbitrator Shelanski, the parties proceeded to engage in discovery which appears to have been limited under JAMS' Rules with regard to, inter alia, the number of depositions which could be taken by the parties. The Arbitration Hearings at which the evidence was presented commenced on September 5, 2019 and continued over six days, concluding on September 12, 2019. On October 21, 2019, the parties submitted post-hearing briefs and then presented closing arguments on November 13, 2019. Roughly one week prior to the presentation of closing argument, via Notice dated November 5, 2019, JAMS forwarded a supplemental "Notice to All Parties" together with a document entitled "JAMS Commencement Disclosure (MKT0161)." Those documents reflected that Ms. Shelanski in fact had a greater financial interest in JAMS than had previously been revealed and that JAMS had had far greater contacts with the law firm representing the Defendant than had been disclosed at the outset of the matter. Despite these revelations, no objections were registered by either party at or contemporaneous to the mailing of the November 5^th notices.

On January 6, 2020, Arbitrator Shelanski issued her decision ruling in favor of Respondent and dismissing Petitioner's claims in their entirety. Two days later,Petitioner's counsel sent an email to Arbitrator Shelanski and Case Manager Douglas Duzant asking two questions: "(1) In how many matters has JAMS had the respondent in this case, NTT Data, and its parent and subsidiary companies, as a party in Arbitration or Mediation? [and] (2) Does Arbitrator Shelanski have an ownership interest in JAMS?" A short time later, Mr. Duzant replied, noting that the information requested had been previously supplied on November 5^th. One month later, Petitioner filed the instant Petition to Vacate the Award on the grounds of evident partiality or corruption on the part of the arbitrator, misconduct in refusing to postpone the hearings and in refusing to hear evidence pertinent and material to the controversy pursuant to 9 U.S.C. §10(a)(2) - (3). Respondent filed its Response in opposition and Cross-Petition to Confirm the Award on March 9, 2020.

Discussion

1. Principles...