White v. Four Seasons Hotels & Resorts

Decision Date26 November 2013
Docket NumberCivil Action No. 13–1399 JEB
Citation999 F.Supp.2d 250
CourtU.S. District Court — District of Columbia
PartiesLisa White, Plaintiff, v. Four Seasons Hotels and Resorts, Defendant.

David W. Sanford, Sanford Heisler, LLP, Washington, DC, for Plaintiff.

Anne M. Mizel, Paul E. Wagner, Stokes, Wagner, Hunt, Maretz & Terrell, Ithaca, NY, Dawn E. Boyce, Bancroft, McGavin, Horvath & Judkins, P.C., Fairfax, VA, for Defendant.


JAMES E. BOASBERG, United States District Judge

Plaintiff Lisa White is a black woman who works as an esthetician at the Four Seasons Hotel here in Washington. Alleging retaliation, discrimination on the basis of her race and pregnancy status, and a hostile work environment, White brought this suit under the District of Columbia Human Rights Act, D.C.Code § 2–1401.01 et seq. , Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. Having removed her action from the District of Columbia Superior Court to this Court, Defendant Four Seasons now moves to compel arbitration pursuant to the terms of the hiring agreement Plaintiff signed in September 2007 and again in February 2009. White does not dispute the existence of an arbitration provision, but argues both that she was improperly pressured to sign the agreement and that the provision is patently unfair; as a result, she contends the Court should not enforce it. Disagreeing with her arguments as to both procedural and substantive unconscionability, the Court will grant the Motion to Compel Arbitration and stay the case pending completion of those proceedings.

I. Background

Given the involved factual history of this case, an overview of events will be useful in understanding how the parties arrived at the present dispute. In its explication, the Court recounts the facts in the light most favorable to Plaintiff, as is required in a Motion to Compel Arbitration. See Aliron Intern., Inc. v. Cherokee Nation Indus., Inc., 531 F.3d 863, 865 (D.C.Cir.2008).

In September of 2007, White was hired by the Four Seasons as an esthetician at its Spa here in the District of Columbia. See Compl., ¶ 1. During the hiring process, White was given a presentation on, and encouraged to sign, the Four Seasons' employee contract, known as “EmPact.” See Mot., Declaration of Stacey Coppel, ¶ 6. The contract is a document of over 60 pages, including a section referred to as “C.A.R.E.,” which stands for Complaint, Arbitration & Review for Employees. See Coppel Decl., Exh. A (C.A.R.E. Agreement).

The C.A.R.E. agreement lists five steps that an employee agrees to follow prior to the sixth step of “Mediation/Arbitration”: 1) an informal discussion with the immediate supervisor; 2) the filing of a “written complaint with the Human Resources office within 14 days” of an incident; 3 & 4) a formal investigation and written report by the Director of Human Resources; and 5) an appeal to the General Manager if the employee is not satisfied. Id. This C.A.R.E. agreement, unlike most employee contracts containing arbitration provisions, also provides an opt-out clause, allowing the employee to opt out of the mediation/arbitration step within 30 days of being presented with the agreement or after having “successfully completed” a 90–day probationary period. See Coppel Decl., Exh. B (Opt–Out Verification). This arbitration agreement does not permit the employee to opt out while any legal claim that arose prior to signing the opt-out form is pending. See id.

On the signature page of the EmPact agreement are the employee's and the employer's basic promises, outlined in bulleted plain English. See Coppel Decl., Exh. C (EmPact Signature Page). The employee's promises include a commitment to “Use C.A.R.E. first for all complaints even if [the employee has] exercised [her] right to opt out of the mediation/arbitration provision of C.A.R.E.” and to “use the mediation/arbitration procedure” in C.A.R.E. to resolve any termination, discrimination, or harassment disputes unless the employee has exercised the right to opt out. Id.

White avers that, although the Four Seasons conducted a 30–minute presentation covering the EmPact, it hid the existence of the agreement's arbitration provisions and the ability to opt out of those provisions. See Opp., Declaration of Lisa White, ¶ 5. According to White, upon the conclusion of this presentation, Defendant requested that she and her colleagues “immediately sign the EmPact agreement” without giving employees the opportunity to read the agreement or consult with a third party regarding its contents. Id. White signed the agreement, purportedly without realizing the commitment she was making. See id.

In February 2009, White was approached by Assistant Supervisor Steve Ellis, who directed her to again sign the signature page of the EmPact agreement, which he stated was “for [her] benefit” because “ it would help to secure [her] employment with Four Seasons.” Id. , ¶ 6. White states that the EmPact agreement and its arbitration provisions were not included with the document that was presented to her, and that Ellis never informed her of her ability to opt out of the arbitration agreement.See id. White nevertheless again signed this signature page. See Coppel Decl., Exh. D (2009 EmPact Signature Page).

White's employment with the Four Seasons, meanwhile, was hardly proceeding smoothly. In 2008 and continuing through to the filing of this action, she made nearly 30 formal and informal complaints to her supervisors, managers, and Director of Human Resources Stacey Coppel concerning various incidents that she perceived to be harassment, discrimination, or the creation of a hostile work environment. See generally Compl.; see Mot. at 6. These complaints ranged from disputes over client-booking and sales-crediting practices to sabotage by co-workers, and she sometimes made specific reference to the EmPact guide. See Coppel Decl. at 6–11; Coppel Decl., Exh. J (May 10, 2010 Complaint) at 1, 6 (“I felt retaliated against for merely exercising my rights as it is outlined in our Employee Empact Guide,” and “It is clearly outlined in the Employee Empact on page 33 that, ‘the Four Seasons ... strongly believes in a [sic ] open door communication....[’]). The reply to these allegations by Defendant, in at least one instance, also made mention of the C.A.R.E. process. See Coppel Decl., Exh. K (May 25, 2010, Reply) at 1 (“I am writing to provide you with the findings of my investigation based on your CARE complaint.”).

White eventually signed the opt-out agreement on August 7, 2012. See Coppel Decl., ¶ 13; White Decl., ¶ 9. This is relevant because one further incident occurred five days later on August 12, during which White claims to have been “interrogated” by two managers regarding a complaint against her from a fellow employee. No disciplinary action was ultimately taken against White with regard to this incident. See Compl., ¶ 51; Reply, Supplemental Declaration of Stacey Coppel, ¶ 10. Finally, in January of 2013, the parties attempted to mediate all claims occurring prior to her August 7, 2012, opt-out under the C.A.R.E. provisions for mediation. See Mot. at 12. That mediation was unsuccessful. See id. White then filed this suit, and Defendant now moves to compel arbitration.

II. Legal Standard

The Federal Arbitration Act “is a congressional declaration of a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (referencing 9 U.S.C. § 2 ). Suits brought “upon any issue referable to arbitration under an agreement in writing for such arbitration” must be stayed “until such arbitration has been had ..., providing the applicant for the stay is not in default in proceeding with such arbitration” and that the court has been “satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement.” 9 U.S.C. § 3.

When considering a motion to compel arbitration, “the appropriate standard of review for the district court is the same standard used in resolving summary judgment motions pursuant to Fed.R.Civ.P. 56(c).” Brown v. Dorsey & Whitney, LLP, 267 F.Supp.2d 61, 67 (D.D.C.2003) (internal quotation marks and citation omitted); see Hughes v. CACI, Inc., 384 F.Supp.2d 89, 92–93 (D.D.C.2005). “As the party seeking to compel arbitration, Defendant[ ] must first come forward with evidence sufficient to demonstrate an enforceable agreement to arbitrate.” Hill v. Wackenhut Services Int'l, 865 F.Supp.2d 84, 89 (D.D.C.2012) (citation omitted). The burden then shifts to Plaintiff “to raise a genuine issue of material fact as to the making of the agreement, using evidence comparable to that identified in Fed.R.Civ.P. 56.” Grosvenor v. Qwest Communications Intern., Inc., 2010 WL 3906253, at *5 (D.Colo.2010). Arbitration should be compelled if “there is ‘no genuine issue of fact concerning the formation of the agreement’ to arbitrate.' ” Kirleis v. Dicki e , McCamey & Chilcote, PC, 560 F.3d 156, 159 (3d Cir.2009) (quoting Par–Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir.1980) ).

To review the Rule 56 standard, a fact is “material” if it is capable of affecting the substantive outcome of the litigation. Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A).

The party seeking summary judgment “bears the heavy burden...

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