11-4696
McAllister v. Smith Barney/Citigroup Global Markets Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 5th day of May, two thousand fifteen.
4
5 PRESENT:
6 PIERRE N. LEVAL,
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 Circuit Judges.
10 _____________________________________
11
12 Angela D. McAllister,
13
14 Plaintiff-Appellee,
15 v. 11-4696
16
17 Robert East,
18
19 Defendant,
20
21 Smith Barney/ Citigroup Global Markets Inc.,
22 Citigroup Inc, Patricia Balenzentis, Kristen King,
23 Michelle Green, Andrew Smith, Andrew Grillo,
24 Brad Barber, Citigroup Global Markets Inc.
25
26 Defendants-Appellants.
27 _____________________________________
28
29 FOR PLAINTIFF-APPELLEE: Angela D. McAllister, pro se, Bridgeport, CT.
30
31 FOR DEFENDANT-APPELLANTS: Ira G. Rosenstein, Morgan, Lewis & Bockius LLP,
32 New York, NY.
1 Appeal from a judgment of the United States District Court for the District of Connecticut
2 (Bryant, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 This case returns to us following a remand pursuant to United States v. Jacobson, 15 F.3d
6 19 (2d Cir. 1994), in which we instructed the district court to solicit competent evidence as to
7 whether Plaintiff Angela McAllister, pro se, had an employment contract with the Defendants and,
8 if so, what the terms of that contract were when the Defendants instituted a mandatory arbitration
9 requirement. See McAllister v. Smith Barney/Citigroup Global Mkts. Inc., 504 F. App’x 55, 56 (2d
10 Cir. 2012). On remand, the district court found, based on McAllister’s 1991 employment
11 application, that her employment had always been at-will. The court further held that, as an at-will
12 employee, McAllister’s continued employment after the amendment of the Defendants’ employee
13 handbook constituted her acceptance to the new terms in the handbook, including a mandatory
14 arbitration provision. On that basis, the district court granted the Defendants’ motion to compel
15 arbitration. We assume the parties’ familiarity with the underlying facts, the procedural history of
16 the case, and the issues on appeal.
17 Under the framework established by the Federal Arbitration Act, a district court generally
18 must compel arbitration upon determining that a contractually valid arbitration agreement exists
19 under the relevant state law and that the parties’ dispute falls within the scope of that agreement.
20 See Cap Gemini Ernst & Young, U.S., LLP v. Nackel, 346 F.3d 360, 364−65 (2d Cir. 2003). We
21 review de novo the district court’s decision to compel arbitration. Id. at 65. “The determination of
22 whether parties have contractually bound themselves to arbitrate a dispute—a determination
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23 involving interpretation of state law—is a legal conclusion also subject to de novo review.” Specht
24 v. Netscape Commc’ns Corp., 306 F.3d 17, 26 (2d Cir. 2002).
25 McAllister first argues that the district court on remand improperly limited her discovery
26 by preventing her from obtaining from the Defendants documents consisting of a signed
27 arbitration agreement or an employment contract. It has always been the Defendants’ position that
28 no such documents existed. McAllister herself conceded that no written employment contract
29 existed when she represented to the district court that there was “no factual evidence of any kind
30 linking her to a contractual employment agreement.” Moreover, although the Federal Arbitration
31 Act requires an arbitration clause to be set forth in writing, it does not require that writing to be
32 signed. See 9 U.S.C. § 2; Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 846 (2d Cir.
33 1987) (“[I]t is well-established that a party may be bound by an agreement to arbitrate even absent
34 a signature.”). In addition, in Connecticut, the terms of employment also may be determined even
35 in the absence of an express written agreement. See Torosyan v. Boehringer Ingelheim
36 Pharmaceuticals, 234 Conn. 1, 13 (1995). Thus, because neither a signed arbitration agreement
37 nor a written employment contract was necessary to reach a conclusion that a contractual
38 relationship existed or that the arbitration agreement was binding, the district court did not abuse
39 its discretion when it did not require Defendants to disclose nonexistent evidence. See S. New
40 England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 147 (2d Cir. 2010) (district court decision to
41 impose default as a discovery sanction reviewed for abuse of discretion).
42 Under Connecticut law “all employer-employee relationships not governed by express
43 contracts involve some type of implied ‘contract’ of employment,” the contents of which are
44 determined by an examination of “the factual circumstances of the parties’ relationship . . . in light
3
45 of legal rules governing unilateral contracts.” Torosyan, 234 Conn. at 13. Here, as the district court
46 found, the factual circumstances demonstrate that McAllister’s employment was at-will since its
47 inception, as shown by her 1991 employment application and her failure to introduce evidence
48 suggesting that her employment status changed between her 1991 hiring and the time the
49 Defendants instituted the arbitration requirement in 1993 by including it in a revised employee
50 handbook. The only remaining issue, therefore, is whether McAllister validly accepted the
51 modification to her original unilateral contract, which, at the time she was hired in 1991, did not
52 include a mandatory arbitration requirement. In Connecticut, the issuance of an employee
53 handbook containing terms different from the original implied unilateral contract “constitute[s] an
54 offer to modify the preexisting terms of employment by substituting a new implied contract for the
55 old.” Torosyan, 234 Conn. at 14. To become enforceable, the proposed modifications, “like the
56 original offers, must be accepted.” Id.
57 We conclude that the arbitration provision in this case is enforceable against McAllister.
58 First, the fact that McAllister continued to work for the Defendants or their predecessor entities for
59 approximately fifteen years following the first promulgation of the new employee handbook
60 containing the arbitration clause is undoubtedly “relevant to determining whether . . . she
61 consented” to the modification of her original contract. Id. at 19. Second, the Defendants
62 introduced two computer screenshots which state that McAllister electronically “accepted the
63 Employee Handbook” in 2006, 2007, and 2008. This additional evidence, coupled with the fact
64 that McAllister continued to work after receiving the handbooks, is sufficient to demonstrate her
65 consent to the terms of the new handbook and its arbitration requirement. See Torosyan, 234 Conn.
66 at 19–20; see also Conn. Gen. Stat. §1-272(b) (“A contract may not be denied legal effect or
4
67 enforceability solely because an electronic record was used in the formation of the contract.”);
68 Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 453 (2d Cir. 1995) (concluding, in light of
69 “Connecticut’s strong policies favoring arbitration,” that Connecticut courts would find that
70 “where the agreement to arbitrate is integrated into a larger unitary contract, the consideration for
71 the contract as a whole covers the arbitration clause as well.” (internal quotation omitted)).
72 Although McAllister contends that she has no knowledge of receiving or opening the emails
73 containing the employee handbook, that assertion is belied by the screenshots, which state that she
74 received and read at least one of the emails in March 2006. Moreover, given the Defendants’
75 evidence that McAllister received and accepted the employee handbooks, she may not defeat the
76 motion to compel arbitration by resting on her bare denials that she did not receive the handbooks,
77 but instead “must submit evidentiary facts showing that there is a dispute of fact to be tried.”
78 Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995). This she has not done.
79 We have considered all of McAllister’s remaining arguments and find them to be without
80 merit. Accordingly, we AFFIRM the judgment of the district court.
81 FOR THE COURT:
82 Catherine O=Hagan Wolfe, Clerk
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