McAllister v. Smith Barney/Citigroup Global Markets Inc.

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 2 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 5