Virk v. Maple-Gate Anesthesiologists, P.C.

• Decision Date: 19 January 2015
• Docket Number: No. 14–CV–381S.,14–CV–381S.
• Citation: 80 F.Supp.3d 469
• Parties: Amarjit S. VIRK, M.D., Plaintiff, v. MAPLE–GATE ANESTHESIOLOGISTS, P.C., and Jon Grande, M.D., Defendants.
• Court: U.S. District Court — Western District of New York

80 F.Supp.3d 469

Amarjit S. VIRK, M.D., Plaintiff

v.MAPLE–GATE ANESTHESIOLOGISTS, P.C., and Jon Grande, M.D., Defendants.

No. 14–CV–381S.

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

Signed Jan. 19, 2015.

Filed Jan. 21, 2015.

Gerald T. Walsh, Zdarsky, Sawicki & Agostinelli, Buffalo, NY, Surinder K. Virk, Ghuman Virk & Virk, P.C., Williamsville, NY, for Plaintiff.

Robert C. Weissflach, Harter, Secrest and Emery, LLP, Buffalo, NY, for Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief Judge.

I. INTRODUCTION

Plaintiff Amarjit S. Virk, M.D., commenced this action in February 2014 in New York State Supreme Court, Erie County, alleging state law breach of contract and discrimination claims, as well as employment discrimination under federal law. Defendants removed the action to this Court shortly after being served with the summons and complaint in May 2014. Presently before this Court is Defendants' motion for an order pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and Rule 12(b) of the Federal Rules of Civil Procedure to compel arbitration in this matter. For the reasons that follow, Defendants' motion is granted.

II. BACKGROUND

On May 8, 2000, Plaintiff entered into an employment agreement with Defendant Maple–Gate Anesthesiologists, P.C. (“MGAPC”). (Am. Compl. ¶¶ 23–24, Docket No. 7¹ ; Chen Decl. ¶ 11 Ex. A, Docket No. 5–1.) Pursuant to its terms, the 2000 Employment Agreement was to remain effective until termination in accordance with Article 9, which provides:

This Agreement shall be terminated upon the occurrence of any of the following events:

(a) Disqualification of the Employee, whether temporarily or permanently, by the appropriate licensing authority, to practice his profession within the State of New York; or revocation, suspension or modification of medical privileges limiting Employee's ability to provide services pursuant to this Contract. In such event, Employee shall receive only such compensation as accrued, and nothing further[;](b) The death of the Employee;

(c) The permanent disability of the Employee that renders him unable to perform his duties;

(d) Whenever the Employer, acting upon a majority vote of its Board of Directors, and the Employee shall mutually agree to terminate this Agreement in writing[;]

(e) Upon sixty (60) days prior written notice of termination to the other by either the Employer, or the Employee.

(Chen Decl. Ex. A.) The employment agreement could also only be amended in a writing signed by both parties. (Id. (Article 12).)

Article 16 contains an arbitration clause:

Any controversies or claims arising out of or relating to this Agreement or the breach thereof, with the exception of the Non–Competition During Employment Clause contained in Paragraph 4 and the Covenant Not to Compete contained in Paragraph 9 and the enforcement of those provisions by Court Order, Judgment, Temporary Restraining Order or Injunction, shall be settled by arbitration in accordance with the then current rules of the American Arbitration Association, and judgment upon the award rendered may be entered in a Court having jurisdiction thereof. Any and all arbitration proceedings must be commenced with[in] six (6) months of the date of any alleged controversy or claim and if not so commenced shall be permanently barred.

(Id. ) Rule 6 of the American Arbitration Association's Employment Arbitration Rules and Mediation Procedures provides as relevant:

a. The 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.

b. The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause.

(Weissflach Decl. Ex. B, Docket No. 5–2.)

Finally, as relevant here, the 2000 Employment Agreement also provided for Plaintiff's attainment of shareholder status in MGAPC after one year:

Upon the faithful performance and completion of the terms of this Agreement the Employee shall be entitled after one (1) year of full-time employment to membership in the corporation of the Employer together with all the rights and privileges attendant to a full shareholder and member of the Board of Directors and an employment contract under the same conditions and terms as then existing for other equally qualified full-time physician employees of the Employer. Provided, however, that should this Agreement be terminated pursuant to Paragraph 9 herein for whatever reason prior to the completion of one year of full-time employment, the Employee shall not be entitled to any rights or benefits under this Paragraph ...

(Id. (Article 18).)

Plaintiff successfully completed his first year of employment and became a member/shareholder/director of MGAPC in 2001. (Pl's Aff. ¶¶ 13, 15, Docket No. 8.) MGAPC terminated the parties' relationship in 2013. (Am. Compl. ¶¶ 27–28.) The notification letter, dated May 17, 2013, states as relevant:

Today Maple–Gate Anesthesiologists, P.C. received a letter from Kaleida Health stating that effective May 15, 2013, Kaleida suspended your clinical privileges.

As you know, your contract with Maple–Gate Anesthesiologists, P.C., Section 9(a) states: “This Agreement shall be terminated upon the occurrence of any of the following events: (a) ... revocation, suspension, or modification of medical privileges limiting Employee's ability to provide services pursuant to this cont[r]act.”

Because you are unable to serve as a physician in Kaleida Health's facilities, your contract with Maple–Gate Anesthesiolgists, P.C. was terminated effective May 15, 2013.

(Chen Aff. Ex. B, Docket No. 10–3.)

Plaintiff obtained an order from New York State Supreme Court, Erie County, in February 2014 annulling Kaleida Health's “precautionary suspension” of Plaintiff's privileges and directing Kaleida Health to expunge any reference to that suspension from Plaintiff's personnel file. (Pl's Aff. ¶ 26 Ex. 3, Docket No. 8.) Although Plaintiff informed MGAPC that the suspension had been expunged, he was never reinstated. (Id. ¶ 29.)

Plaintiff commenced the instant action in February 2014. His Amended Complaint asserts, in addition to a breach of contract claim, employment discrimination and retaliation in violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 –34 ; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 ; the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12117 et seq. and 12131 et seq. (“ADA”), as amended by the Americans with Disabilities Amendments Act of 2008; and the New York State Human Rights Law, Executive Law § 296. (Am. Compl. ¶ 1.) Following removal to this Court, Defendants filed the instant motion to compel arbitration.

III. DISCUSSION

Defendants seek to enforce the arbitration provision contained in the 2000 Employment Agreement pursuant to the Federal Arbitration Act, the principal purposes of which are to promote arbitration and ensure that arbitration agreements are enforced according to their terms. AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 131 S.Ct. 1740, 1745, 1748, 179 L.Ed.2d 742 (2011). Plaintiff does not dispute Defendants' assertion that the FAA governs resolution of the present motion. (Defs' Mem. of Law at 4–5; Pl's Mem. in Opp'n at 7). In resolving a motion to compel arbitration brought under the FAA, a court applies a standard similar to that applicable on a summary judgment motion. Bensadoun v. Jobe–Riat, 316 F.3d 171, 175 (2d Cir.2003) (citing Par–Knit Mills v. Stockbridge Fabrics Co., 636 F.2d 51, 54 n. 9 (3d Cir.1980) ). “If the party seeking arbitration has substantiated the entitlement by a showing of evidentiary facts, the party opposing may not rest on a denial but must submit evidentiary facts showing that there is a dispute of fact to be tried.” Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d 352, 358 (2d Cir.1995) ; see Schnabel v. Trilegiant Corp., 697 F.3d 110, 118 (2d Cir.2012). Documents outside the pleadings may properly be considered in deciding a motion to compel arbitration. Molina v. Coca–Cola Enterprises, No. 08–CV–6370, 2009 WL 1606433, *1 n. 1 (W.D.N.Y. June 8, 2009).

“[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.”

AT & T Technologies, Inc. v. Comm'ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). “While the interpretation of an arbitration agreement is generally a matter of state law, the FAA imposes certain rules of fundamental importance, including the basic precept that arbitration is a matter of consent, not coercion.” Stolt–Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 681, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (internal citations and quotation marks omitted); Schnabel, 697 F.3d at 119 (FAA preserves state law principles of contract). Thus, a party may not be compelled under the FAA to submit to arbitration “unless there is a contractual basis for concluding that the party agreed to do so.” Stolt–Nielsen S.A., 559 U.S. at 684, 130 S.Ct. 1758 (emphasis removed); Ross v. American Exp. Co., 547 F.3d 137, 143 (2d Cir.2008). “Whether a dispute is arbitrable comprises two questions: ‘(1) whether there exists a valid agreement to arbitrate at all under the contract in question ... and if so, (2) whether the particular dispute sought to be arbitrated falls within the scope of the arbitration agreement.’ ” Hartford Acc. & Indem. Co. v. Swiss Reinsurance Am. Corp., 246 F.3d 219, 226 (2d Cir.2001) (quoting Nat'l Union Fire Ins. Co. v. Belco Petroleum Corp., 88 F.3d 129, 135 (2d Cir.1996) ).

A. Who Determines...