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Bezek v. NBC Universal

United States District Court, D. Connecticut

May 23, 2018

PAOLA BEZEK, Plaintiff,
v.
NBC UNIVERSAL ET AL., Defendants.

          RULING ON MOTION TO DISMISS OR COMPEL ARBITRATION (DOC. NO. 20), CROSS-MOTIONS TO CONFIRM AND VACATE FINAL ARBITRATION AWARD (DOC. NOS. 34 & 36), AND MOTION TO AMEND COMPLAINT (DOC. NO. 25)

          Janet C. Hall United States District Judge.

         This case comes before the court pursuant to a Complaint filed by the plaintiff, Paola Bezek (“Bezek”), against the defendants, NBC Universal and NBC Sports Group (collectively “NBC”). See Complaint (“Compl.”) (Doc. No. 1). Bezek, proceeding pro se, asserts state and federal discrimination claims arising out of her employment with NBC. See id.

         NBC was served with the Complaint on November 6, 2017. See Acknowledgement of Service (Doc. No. 16). On January 5, 2018, NBC filed a Motion to Compel Arbitration and Dismiss, asserting that the claims raised in Bezek's Complaint were subject to a valid and enforceable arbitration agreement. See Motion to Compel (Doc. No. 20) at 1. Bezek objected to NBC's Motion to Compel on February 26, 2018, denying NBC's allegations that she had agreed to arbitrate claims arising out of her employment. See Memorandum in Opposition re Motion to Compel (“Pl.'s Opp.”) (Doc. No. 28) at 11-12. On March 19, 2018, NBC filed both a Reply to Bezek's Opposition to their Motion to Compel, see Reply Memorandum in Support of Motion to Compel (“NBC's Reply”) (Doc. No. 31), and a Motion for Confirmation of Final Arbitration Award (“Mot. to Confirm”) (Doc. No. 34). Bezek filed a Motion to Vacate the Final Arbitration Award on April 10, 2018. See Motion to Vacate Final Arbitration Award (“Mot. to Vacate”) (Doc. No. 36). In other words, before the parties finished briefing the Motion to Compel, a final arbitration award issued in an arbitration underlying the above-captioned case, which award the parties have cross-moved to confirm or to vacate.

         During the same time period, on February 11, 2018, Bezek moved to amend her Complaint to add claims of libel and slander. See Motion to Amend (“Mot. to Am.”) (Doc. No. 25) at 1. NBC filed an opposition to the Motion to Amend on March 5, 2018. See generally Memorandum in Opposition (“Opp. to Am.”) (Doc. No. 28).

         I. FACTS

         The plaintiff, Paola Bezek, was initially hired by NBC as a Manager of Shipping and Export Controls in the News Field Operations Group on October 25, 2010. See Exh. E, Motion to Compel (“2010 Offer Letter”) (Doc. No. 20-2) at 70-72. From 2010 to 2013, Bezek worked in that position at an NBC facility in New York City. See Memorandum in Support of Motion to Compel (“NBC's Mem.”) at 2. In 2013, Bezek applied for a position with the NBC Olympics team and was offered the position of Manager Technical Logistics in the NBC Olympics Production Logistics Department on June 4, 2013. See Exh. H, Mot. to Compel (“2013 Offer Letter”) (Doc. No. 20-2) at 77- 78. That division is located in Stamford, Connecticut. See NBC's Mem. at 2.

         Both the 2010 and 2013 Offer Letters expressly conditioned Bezek's employment with NBC on her agreeing to be bound by NBC's alternative dispute resolution program, “Solutions.” See 2010 Offer Letter (“This offer is made expressly contingent on your . . . agreement to be bound by Solutions -- An Alternative Dispute Resolution Program as evidenced by your signing the Solutions Agreement Form.”); 2013 Offer Letter (“The agreements you previously signed regarding Solutions: An Alternative Dispute Resolution Program . . . shall remain in full force and effect. . . . If all of the above contingencies are satisfied, which constitutes your acceptance of this offer, you will begin your employment on June 24, 2013.”).

         NBC asserts that, in order to accept her new position in 2013, Bezek was required to open an offer letter email, click on an acceptance link, and accept three acknowledgements. See Declaration of Jennifer Rubin, NBC's Reply (“Rubin Decl.”) (Doc. No. 31) at 18-19. The second of the three acknowledgements states as follows:

I acknowledge that I have received and reviewed a copy of “Solutions: an Alternative Dispute Resolution Procedure” (“Solutions”). I agree to resolve disputes in accordance with the terms of Solutions and, accordingly, I waive the right to pursue any Covered Claims (as defined in Solutions) against the Company (1) in court or (2) on a class action basis either in court or through Solutions.

Exh. H, Mot. to Compel (“2013 Acceptance”) (Doc. No. 20-2) at 77-78. NBC further asserts that Bezek would have had to electronically sign the form by typing her full name and creating a unique pin with the last four digits of her Social Security Number and the month and day of her birth. See Rubin Decl. at 19. Finally, NBC asserts that Bezek had to click a button on the acceptance form in order to submit it to human resources. Id. In support of its position, NBC submits a Declaration of Jennifer Rubin, Director of Human Resources for the NBC Sports Group, and a print-out of the acceptance form. See Rubin Decl. at 16; 2013 Acceptance.

         Bezek states that she does not recall seeing or completing the 2013 Acceptance form, and argues that NBC must have forged the document attached to their Motion to Compel as Exhibit H, what the court refers to as the “2013 Acceptance.” See Exh. J, Pl.'s Opp. (Doc. No. 27) at 51-52. Bezek generally argues that her employment with NBC was not contingent upon her agreeing to be bound by Solutions.[1] See Pl.'s Opp. at 11.

         NBC further asserts that Bezek completed a mandatory e-learning training on an updated version of Solutions in January 2011. In support of that assertion, NBC attaches a print-out of Ms. Bezek's training history at NBC, which includes a record that Ms. Bezek completed a course entitled “Solutions for New Hires, Rehires, and Transfers” on January 10, 2011. Exh. D, Motion to Compel (Doc. No. 20-2) at 39.

         In her Opposition, Bezek states that she “did not train” and has not seen “any online ‘Solutions Levels by mediation or Arbitration packet.'” Pl.'s Opp. at 11. However, in the same paragraph she states, “In January 2011 [she] took an online HR solutions video.” Id.

         NBC attaches a copy of the Solutions manual, dated January 28, 2011, to its Motion to Compel. See Exh. D, Mot. to Compel (“Solutions Manual”) (Doc. No. 20-2) at 38-68. The Solutions Manual describes the Solutions process as “a structured dispute resolution procedure that consists of two internal levels of review followed by, if necessary and applicable, outside mediation (Level III) and arbitration (Level IV).” See Solutions Manual at 40. The Solutions Manual details procedures for all four levels of dispute resolution, including Level IV, arbitration. See id. at 54-61. The Solutions Manual defines “Covered Claims” as “all claims that arise out of or are related to an employee's employment or cessation of employment . . ., where a court in the jurisdiction in question would otherwise have the authority to hear and resolve the claim under any federal, state or local . . . statute, regulation or common law, ” including “[c]laims relating to compensation, promotion, demotion or other employment actions, ” “[c]laims relating to involuntary terminations, such as layoffs and discharges, ” and “[e]mployment discrimination and harassment claims, based on, for example, age, race, sex, religion, national origin, veteran status, citizenship, handicap/disability, or other characteristic protected by law.” Id. at 43.

         The Solutions Manual also contains a section entitled “Exclusivity of Arbitration for Covered Claims; Injunctive Relief; Individual Nature of Covered Claims, ” which section states, “Covered Employees and the Company are not allowed to litigate a Covered Claim in any court.” Id. at 45.

         In addition, the Solutions Manual contains a provision selecting New York law as governing law. Id. at 48 (“This Agreement shall be construed, interpreted and applied in accordance with the law of the State of New York, without regard to choice of law principles.”).

         Bezek's employment with NBC was terminated on October 30, 2015. See Mot. to Compel at 4; Pl.'s Opp. at 13. On November 2, 2015, Bezek filed a complaint through then-counsel at the Boyd Law Group with the Connecticut Human Rights Office (“CHRO”) and the Equal Employment Opportunity Commission (“EEOC”). See Pl.'s Opp. at 13; Mot. to Compel at 5; CHRO-EEOC Complaint, Compl. (“CHRO Complaint”) (Doc. No. 1) at 12-25.

         In the CHRO Complaint, Bezek alleges that, from December 2012 to December 2014, she had an “intermittent and tumultuous” relationship with a man named Fred Espinosa (“Espinosa”), which involved physical and emotional abuse and stalking. CHRO Complaint at 18. Bezek further alleges that, beginning in March 2015 and continuing through August 2015, Espinosa learned that Bezek had commenced a relationship with another man, which led him to start contacting Bezek again, including calling, texting, and showing up at both her house and her place of employment in Stamford, Connecticut. Id. Bezek further states in the CHRO Complaint that, in August 2015, she saw Espinosa at the security office in the NBC Stamford location and learned that Espinosa had obtained freelance employment from NBC. Id. at 18-19. Bezek informed her supervisor and human resources staff that she was concerned for her safety and well-being in light of Espinosa's recent conduct and history. Id. at 19. She was advised to obtain a restraining order against Espinosa, which she applied for in Connecticut Superior Court and which application was granted. Id. NBC then undertook an “investigation” of the nature and history of the relationship between Bezek and Espinosa, including requesting documentation of all communication between Bezek and Espinosa from Bezek. Id. at 20. Finally, Bezek states in the CHRO Complaint that her employment was suspended on October 9, 2015, and ultimately terminated on October 30, 2015. Id. at 21. Bezek alleges that NBC discriminated against her on the basis of sex and her status as a victim of domestic violence and retaliated against her. Id. at 17.

         In June 2016, counsel from the Boyd Law Group withdrew from representing Bezek. See Mot. to Compel at 5. On November 6, 2016, new counsel for Bezek-- Axelrod and Associates--sent counsel for NBC a form entitled “Solutions Issue Resolution Procedure Level I - Submission Form.” See Exh. K, Mot. to Compel (“Mediation Request”) (Doc. No. 20-2) at 88-89. The Mediation Request form is signed by Bezek under date of October 28, 2016, and requests to “skip Level I and submit concern(s)/claim(s) initially at Level II.” Id. at 89. In the cover letter attached to the Mediation Request form, counsel for Bezek states, “Please note, we have opted to skip Level I and proceed to Level II. It would be our preference to skip directly to Level III (Mediation), if possible.” Id. at 88.

         A mediation took place pursuant to Solutions Level III on February 24, 2017, in Connecticut. See Pl.'s Opp. at 6. Bezek, who relocated to Florida in 2016, appeared by telephone. See id. at 5-6. That mediation was not successful. Id. at 7.

         On May 22, 2017, counsel for Bezek and NBC sent a letter via email to the JAMS Resolution Center, which letter stated:

Enclosed please find the employment arbitration demand served by claimant Paola Bezek on respondent NBC Universal Media, LLC. The parties are commencing the arbitration pursuant to Solutions, the alternative dispute resolution procedure to which the parties agreed during Ms. Bezek's employment with NBC Universal. A copy of the employment document in which the parties agreed to resolve dispute via Solutions is enclosed, as is a copy of the Solutions Procedure.

Exh. M, Mot. to Compel (Doc. No. 20-2) at 98.

         Bezek asserts that her former counsel at Axelrod and Associates was not authorized to initiate arbitration with NBC. See Pl.'s Opp. at 7-8. In support of that argument, Bezek attaches email correspondence from former counsel at Axelrod and Associates dated March 30, 3017, which correspondence states, “I have been tied up all afternoon. I would like to talk tomorrow early afternoon. Your arbitration notice is filed. Remember that we have not committed to future representation at this point.” Exh. C, Pl.'s Opp. (Doc. No. 27-1) at 7. Based on this correspondence, Bezek asserts, “It is clear that former counsel made an error as there was not a valid retainer in place between plaintiff and his law firm to move forward with Arbitration.” Pl.'s Opp. at 7-8.

         On June 1, 2017, an attorney from Axelrod and Associates sent an email to JAMS and counsel for NBC notifying them that Axelrod and Associates was no longer representing Bezek in the matter. See Exh. N, Mot. to Compel (Doc. No. 20-2) at 100.

         On August 9, 2017, a JAMS case manager sent Bezek and counsel for NBC a notice entitled “Commencement of Employment Arbitration.” Exh. E, Pl.'s Opp. (Doc. No. 27-1) at 14-15. That document included a list of proposed arbitrators. See id. Counsel for NBC reached out to Bezek suggesting retired judge Anthony J. Carpinello for the matter. See id. at 13. On August 16, 2017, Bezek emailed the JAMS case manager, stating as follows:

I had emailed [counsel for NBC] ¶ 8/14 to pause this commencement . . . as this is something they have chosen to [sic] forward with not me. I have not consent any commencement, sign any sort of documentation to move forward, therefore NBC Universal/Sports should not assume any commencement or process regarding my complaint.
. . . . As I mentioned before, I have [sic] given [sic] the right to sue therefore I have submitted my complaint to the CT Federal Court.

Exh. F, Pl.'s Opp. (Doc. No. 27-1) at 17.

         A preliminary hearing, by conference call, was scheduled for November 20, 2017. Bezek emailed a JAMS employee on November 16, 2017, to inform JAMS that she did not consent to arbitration and did not intend to participate in the conference call. See Exh. I, Pl.'s Opp. (Doc. No. 27-1) at 28. The preliminary hearing went forward on November 20, 2017. See Exh. H, Pl.'s Opp. (Doc. No. 27-1) at 23-26. Counsel for NBC was present, but Bezek was not. See id.

         No additional hearings were held in the arbitration. On November 20, 2017, NBC filed a Motion for Summary Disposition, to which Bezek did not respond. See Final Arbitration Award, Mot. to Compel (Doc. No. 34) at 4-10. On February 8, 2018, Arbitrator Mark Segall (“Arbitrator Segall”) issued a final arbitration award (the “Award”) granting the Motion for Summary Disposition filed by NBC and dismissing all claims in the arbitration. See id. at 8.

         On June 30, 2017, Bezek filed a Complaint in the above-captioned case. See Compl. (Doc. No. 1). The Complaint is identical to the Specification of Claims submitted in the underlying arbitration, except that the date of submission is different and the damages analyses differ slightly. Compare Compl. with Exh. B, Mot. to Compel (Doc. No. 20-2) at 16-26. Like the CHRO Complaint described above, Bezek alleges state and federal claims of discrimination on the basis of sex and her status as a victim of domestic violence as well as retaliation.

         II. MOTIONS TO CONFIRM AND VACATE ARBITRATION AWARD (DOC. NOS. 34 & 36)

         NBC moves to confirm the Award issued by Arbitrator Segall on February 8, 2018, and Bezek moves to vacate that Award. See Mot. to Confirm (Doc. No. 34); Mot. to Vacate (Doc. No. 36). NBC moves pursuant to section 9 of the FAA, title 9 section 9 of the United States Code, which provides that, within one year of the issuance of an arbitration award, “any party to the arbitration” may apply for confirmation of that award and the court “must grant such an order unless the award is vacated, modified, or corrected as prescribed in section 10 and 11 of [the FAA].”[2] 9 U.S.C. § 9 (emphasis added). As this language reflects, the court must grant NBC's Motion to Confirm unless it grants Bezek's Motion to Vacate.

         Bezek moves to vacate the Award pursuant to section 10 of the FAA, title 9 section 10 of the United States Code. See generally Mot. to Vacate. Section 10 of the FAA provides that awards may be vacated under the following circumstances:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, ...

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