ANN M. DONNELLY, District Judge.
On August 30, 2018, the pro se plaintiff, Geeta Bugtani, brought this action alleging discrimination, hostile work environment, and retaliation against her former employer, Dish Network. The plaintiff also claims whistleblower protection under the Sarbanes-Oxley Act, 18 U.S.C.A. § 1514A. On November 5, 2018, the defendant moved to compel arbitration and dismiss the complaint. For the reasons that follow, the defendant's motion to compel arbitration of the plaintiffs discrimination, hostile work environment, and retaliation claims is granted. The plaintiffs whistleblower claim is dismissed. The action is stayed pending arbitration.
The plaintiff was employed as a customer experience representative at DISH Network from sometime in January of 2017 until March 3, 2018. (ECF No. 1 at 4, 11; ECF No 15-1 at 32.) During her employment orientation, she signed an arbitration agreement with the company, (ECF No. 1 at 32; ECF No. 11 ¶ 2; ECF No. 11-1 at 2-4), which reads, in relevant part:
(ECF No. 1 at 49; ECF No. 11-1 at 2-4.) The plaintiff contends that she signed a second policy without reading the contract. (ECF No. 14 at 5.) She was told to sign a "blank screen" or risk termination. (Id. at 5; ECF 18 at 1.)
The plaintiff alleges that she suffered repeated verbal, physical, and sexual harassment during her employment. (ECF No. 1 at 11-13.) One colleague called her the "hired help" and "aiy Bengali," a reference to her national origin. (Id at 11.) Another colleague told her that she looked "so hot" and "ma[de him] want to hurt [his] wife." (Id at 11, 43-45.) A third colleague told her that her dress excited him. (Id. at 11.) When the plaintiff reported the harassment to her "[c]oach," (Id. at 11), he allegedly said she was "trouble," and threatened to "tell HR [that she was] bothering" him.
According to the plaintiff, "[c]onsumers in 10 states must be made aware of their right[s] pertaining to protection plan [and] tech visits[,]" (Id. at 6), although the company encouraged employees to misrepresent the cost of a protection plan to customers, and to add programming to customers' plans without their consent. (Id. at 13.) The plaintiff claims that the fraud "could raise concerns" under the Sarbanes-Oxley Act. (Id. at 4.)
The plaintiff was terminated on March 3, 2018. (ECF No. 1 at 4.) She believes the company fired her because she refused to be part of the company's fraudulent practice, and as retaliation from her coach. (Id. at 13.) The plaintiff filed a complaint against the defendant with the Equal Employment Opportunity Commission. (ECF No. 11-1 at 8-12.) The EEOC granted the plaintiff a Right to Sue letter on June 8, 2018. (Id. at 8, 17.)
On June 29, 2018, the plaintiff filed a demand for arbitration with the American Arbitration Association, claiming "sexual harassment, retaliation, unlawful discharge, emotional torture, and more . . . ." (No. 11-1 at 19.) The parties began the arbitration process shortly thereafter. The plaintiff questioned the Association's pro se administrator about the process, (Id. at 88-89), and the parties mutually chose an arbiter. (Id at 97-98, 111.)
The process broke down when the arbiter disclosed that he had previously worked with counsel for Dish Network on mediations. (Id. at 101.) The plaintiff argued that the arbiter had a conflict of interest and that his compensation rate was too high. (ECF No. 1 at 30-31.) She complained that his appointment demonstrated that the arbitration process would be unfair, and she withdrew her claims. (ECF No. 1 at 28, 31.)
The plaintiff subsequently filed this action on August 30, 2018. (ECF No. 1.) The plaintiff also claims to have reported the defendant to the Securities and Exchange Commission, the Federal Communications Commission, the Federal Trade Commission, and the Financial Industry Regulatory Authority. (Id. at 41.)
Allegations in a pro se complaint are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). The court must read a pro se complaint liberally and interpret it to raise the strongest arguments it suggests, especially when it alleges civil rights violations. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Weixel v. Bd. of Educ. Of City of New York, 289 F.3d 138, 146 (2d Cir. 2002) (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001)).
The Court liberally construes the complaint as asserting discrimination, hostile work environment, and retaliation based on the plaintiff's national origin
The plaintiff's discrimination, hostile work environment, and retaliation claims are subject to arbitration. Motions to compel arbitration are evaluated under a standard similar to the standard for summary judgment motions. Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016) (quoting Bensadoun v. Jobe-Riat, 316 F.3d 171 at 175 (2d Cir. 2003)). The court must "consider all relevant admissible evidence" and "draw all reasonable inferences in favor of the non-moving party." Faggiano, 283 F.Supp.3d at 36. If a dispute's arbitrability can be decided as a matter of law based on undisputed facts in the record, the court "may rule on the basis of that legal issue and `avoid the need for further court proceedings.'" Wachovia Bank, Nat'l Ass'n v. VCG Special Opp. Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011) (quoting Bensadoun, 316 F.3d at 175).
The Federal Arbitration Act
The court should consider (1) whether the parties agreed to arbitrate, (2) the scope of the arbitration agreement, and (3) if federal statutory claims are asserted, whether Congress intended those claims to be nonarbitrable. JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 169 (2d Cir. 2004) (citation omitted). If some, but not all, of the claims in the case are arbitrable, the court must consider whether to stay the balance of the proceedings pending arbitration. Id. Arbitration clauses can be invalidated by "generally applicable contract defenses, such as fraud, duress, or unconscionability[.]" AT&T Mobility LLC, 563 U.S. 333, 339 (2011) (citations omitted).
The FAA requires only that an arbitration agreement be in writing, not that it be signed. Thomas v. Pub. Storage, Inc., 957 F.Supp.2d 496, 499 (S.D.N.Y. 2013) (citing Gonzalez v. Toscorp Inc., No. 97-cv-8158 (LAP), 1999 WL 595632, at *2 (S.D.N.Y. Aug. 5, 1999)). A non-signatory "may be bound by an arbitration clause if its subsequent conduct indicates that it is assuming the obligation to arbitrate." Thomson-CSF, S.A. v. Am. Arbitration Ass'n, 64 F.3d 773, 777 (2d Cir. 1995); see also Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1105 (2d Cir. 1991).
The plaintiff admits that she signed an arbitration agreement with the defendant, thus indicating her consent to the process. (ECF No. 1 at 32.) See Schreiber v. Friedman, 2017 WL 5564114, at *6 (E.D.N.Y. Mar. 31, 2017) (citing Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 845 (2d Cir. 1987) ("[A] party is bound by the provisions of a contract that [s]he signs, unless [s]he can show special circumstances that would relieve h[er] of such an obligation")). Even if the plaintiff had not signed the arbitration agreement,
The arbitration agreement mandates arbitration for "any claim or dispute arising out of or related to Employee's . . . employment, and/or termination of employment." (ECF No. 1 at 49; ECF No. 11-1 at 2-4.) A presumption of arbitration arises, even over collateral matters, when an arbitration clause is broad. JLM Indus., Inc., 387 F.3d at 172 (citing Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218, 224 (2d Cir. 2001) (internal quotation marks and citations omitted). "[D]oubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." E.E.O.C. v. Rappaport, Hertz, Cherson & Rosenthal, P.C., 448 F.Supp.2d 458, 461 (E.D.N.Y. 2006) (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991)).
The arbitration agreement that the plaintiff signed is broad, see Johnston v. Electrum Partners LLC, 2018 WL 3094918, at *10 (S.D.N.Y. June 21, 2018) (citing Mehler v. Terminix Int 1 Co. L.P., 205 F.3d 44, 49 (2d Cir. 2000) (clause providing arbitration for "any controversy or claim between [the parties] arising out of or relating to" a contract is "classically broad")), and the plaintiffs various discrimination claims relate to her employment and termination.
Neither Congress nor the state and city legislatures have precluded Title VII, NYSHRL, and NYCHRL claims from arbitration. See, e.g., Thomas, 957 F. Supp. 2d at 496 (compelling arbitration of an employee's Title VII, NYSHRL, NYCHRL sex discrimination and retaliation claims); see also Desiderio v. Nat'l Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 206 (2d Cir. 1999) (concluding that the plaintiff failed to show that Congress intended to preclude the waiver of judicial remedies for Title VII claims). Thus, the plaintiffs discrimination claims are not precluded from arbitration.
The plaintiff's whistleblower claim, however, is not subject to arbitration. See Wong v. CKX, Inc., 890 F.Supp.3d 411, 421 (S.D.N.Y. 2012) ("In 2010, Congress passed the Dodd-Frank Act. Section 922 of that Act amended the Sarbanes-Oxley Act to bar the arbitration of whistleblower claims").
When some, but not all, of a lawsuit's claims are arbitrable, the court must consider whether to stay the balance
The plaintiff's sole claim that is not subject to arbitration
An employee must file a complaint with the Occupational Safety and Health Administration before asserting a claim under the Sarbanes-Oxley Act in federal court. Fraser v. Fid. Trust Co., Intern., No. 04-CV-6958 (RMG) (GWG), 2005 WL 6328596, at *6 (S.D.N.Y. June 23, 2005) (citing Willis v. Vie Fin. Group, Inc., No. 04-CV-435, 2004 WL 1774575, at *6 (E.D. Pa. Aug. 6, 2004)). "A person who alleges discharge or other discrimination by any person in violation of [Section 806] may seek relief . . . if [OSHA] has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, [by] bringing an action at law or equity for de novo review in the appropriate district court of the United States . . . ." 18 U.S.C. § 1514A(b)(1)(B).
The plaintiff never filed a complaint with OSHA, (ECF No. 14 at 9), and thus failed to exhaust her administrative remedies before filing this complaint.
For the reasons stated above, the plaintiff's claim under the Sarbanes-Oxley Act is dismissed with prejudice. The Court grants the defendant's motion to compel arbitration and stays the action pending the outcoming of that proceeding.