Sherman v. Travelers Indemnity Co

Filing 30

ORDER: Defendant's 24 Motion to Dismiss and Compel Arbitration is GRANTED. Plaintiff's 28 Motion to Amend her Complaint is DENIED. Signed by Judge Janet Bond Arterton on 4/28/2011.(Kretman, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Vickie Sherman,
Plaintiff,

Civil No. 3:10cv694 (JBA)

v.
Travelers Indemnity Co.,
Defendant.

April 28, 2011

RULING ON MOTIONS
Plaintiff Vickie Sherman, who represents herself, sued Defendant Travelers
Indemnity Co. (“Travelers”) for violations of the Age Discrimination in Employment Act
(“ADEA”), 28 U.S.C. §§ 621, et seq., claiming that in 2008, when she was 55 years old, her
management responsibilities were transferred to a 36 year–old individual. Plaintiff moves
to amend her complaint to request injunctive relief, and Defendant moves to dismiss and
compel arbitration of her claims.
I.

Background
Plaintiff began working for Aetna’s property/casualty businesses in 1975 and

continued after Aetna merged with Travelers in 1996 until 2008. Since the time of the
merger, Travelers has continually had an employment arbitration policy (“Arbitration
Policy”), which it identifies as one of the key obligations in its Code of Business Conduct and
Ethics, and which provides in its current form:
The Policy makes arbitration the required and exclusive forum for the
resolution of all employment–related and compensation related disputes
based on legally protected rights (i.e., statutory, contractual or common law
rights) that may arise between an employee or former employee and the
Company or its current and former parents, subsidiaries and affiliates and its
and their current and former officers, directors, employees, and agents (and
that are not resolved by the internal dispute resolution procedure), including

without limitation contractual claims and claims, demands or actions under
. . . the Age Discrimination in Employment Act of 1967 . . . and any other
federal, state or local statute, regulation or common law doctrine regarding
employment discrimination, conditions of employment or termination of
termination.
(Ex. B to Bernstein Aff. [Doc. # 9].) Any proceeding under the Arbitration Policy “must be
brought within the time period provided for within the statute(s) of limitations applicable
to the claims asserted by the claimant.” (Id.)
According to Diane Bengston, Travelers Senior Vice President for Human Resources
since 2002, the employment dispute arbitration policy was distributed to Travelers’
employees in its original or revised forms in 1996, 1998, 2001, 2002, 2003, 2004, 2005, 2007,
and 2008, and Travelers’ vendor records reflect that Plaintiff opened an email from John
Clifford, then the Executive Vice President of Human Resources on January 2, 2008 advising
of updates and clarifications about the arbitration policy. Plaintiff clicked the embedded link
in the email regarding the employment Arbitration Policy updates, thereby indicating that
she had read, understood, and agreed to abide by the policy. (Bengston Aff. [Doc. # 11]
¶ 19.)
The Arbitration Policy, a “key obligation” in the Travelers Code of Business Conduct
and Ethics, is specifically referenced in the “Employee Policies and Dispute Resolution”
section, which provides that “[a]dherence to these policies and procedures is required,” “all
employees are required to certify their agreement to this Code of Conduct and all policies
referenced herein,” and “[a] condition of continued employment is annual certification of
this Code of Conduct.” (Ex. A to Bernstein Aff.) Plaintiff certified her receipt and current
agreement with the Code in 2006 and 2007 through an on–line certification program
administered by a third party vendor. (Bernstein Aff. ¶ 13; Ex. D to Bernstein Aff.)
2

During 2007 and 2008, Travelers restructured itself, and during that period, Plaintiff
applied for two newly–available positions but was hired for neither. She alleges that during
this restructuring, her two “backup employees were taken away” and assigned to report to
a new manager, Carrie Unze, who was 36 or 37 years old. Plaintiff resigned in February
2008.
II.

Discussion
Defendant moves to dismiss and to compel arbitration under the Arbitration policy.

Under the FAA, written agreements to arbitrate “shall be valid, irrevocable and enforceable,
save upon such grounds as exist at law or in equity for the revocation of any contract.”
9 U.S.C. § 2. “A party aggrieved by the alleged failure, neglect, or refusal of another to
arbitrate under a written agreement for arbitration may petition . . . for an order directing
that such arbitration proceed in the manner provided for in such agreement.” Id. at § 4.
Plaintiff disputes neither the validity of the Arbitration Provision nor Bengston’s and
Bernstein’s averments that Plaintiff had electronically signed it and the Code of Conduct,
indicating that she read and understood their terms. Rather, Plaintiff argues that she “does
not recall or believe there is an on–line quiz regarding [a]rbitration procedures” and
“believed that [a]rbitration was an avenue for conflicts within the workplace when both
parties agreed.” (Mem. Opp’n [Doc. # 27] at 1.) Neither the language of the Arbitration
Policy nor the Code provides a basis for Plaintiff’s belief that conflicts were subject to the
Arbitration Policy only where both parties agreed to submit to arbitration, since the “Scope
of the [Arbitration] Policy” section expressly “makes arbitration the required and exclusive
forum for the resolution of all employment–related disputes,” with no qualification that
employees must consent to arbitration of individual employment disputes. (See Ex. B to
3

Bernstein Aff. ¶ 1.) By electronically signing the Arbitration Policy and Defendant’s Code
of Conduct, which incorporated the Arbitration Policy, Plaintiff contractually bound herself
to arbitrate all employment–related disputes, including this ADEA claim. See Morales v.
Rent–A–Center, 306 F. Supp.2d 175, 181 (D. Conn. 2003) (a party’s signature on an
arbitration agreement is presumptive evidence that an agreement was formed, given that “[a]
person who signs a contract is presumed to know its contents and assent to them” (internal
citations omitted)).1
Plaintiff also contends that the statute of limitations for initiating an arbitration by
either party has lapsed, referring to earlier versions of the Arbitration Policy, such as the
1996 version,2 which was superceded by amendment on January 2, 2008. The operative
Arbitration Policy provides that claims for arbitration “must be brought within the time
period provided for within the statute(s) of limitations applicable to the claims asserted by
the claimant.” Since it is undisputed that Plaintiff timely filed her EEOC charge and timely
commenced suit within the applicable ADEA limitations period, which had not lapsed at the
time Defendant filed its motion to compel arbitration in response to the Complaint,
arbitration of the parties’ disputes is not time barred.

1

That Plaintiff electronically signed the Arbitration Policy and Code of Conduct
rather than signing the contracts in ink is of no consequence, given that “a signature,
contract, or other record relating to such transaction may not be denied legal effect, validity,
or enforceability solely because it is in electronic form.” 15 U.S.C. § 7001(a)(1); see also
Specht v. Netscape Comm’n Corp., 306 F.3d 17, 26 & n.11 (2d Cir. 2002) (quoting id.).
2

Claims for arbitration “must be brought within one year of the act or omission
giving rise to the controversy. This time period may be extended, however, by any
circumstance that would otherwise toll the applicable statute of limitations, but in no event
shall the time for initiating an arbitration be extended beyond two years.” (1996 Employee
Handbook, Ex. A to Bengstom Aff. at 87 (emphasis added).)
4

Finally, Plaintiff maintains that as a general matter, “arbitration would NOT provide
a fair and reasonable solution to this lawsuit.” Notwithstanding her view, she agreed to
arbitrate all disputes that arise under the ADEA, and the Supreme Court has confirmed that
the “ADEA does not preclude arbitration of claims brought under the statute,” see 14 Penn
Plaza LLC v. Pyett, 129 S. Ct. 1456 at * 1465 (2009); Gilmer v. Interstate, 500 U.S. 20, 26–33
(1991), because “if Congress intended the substantive protection afforded by the ADEA to
include protection against waiver of the right to a judicial forum, that intention will be
deducible from text or legislative history,” and “nothing in the text of the ADEA or its
legislative history explicitly precludes arbitration.” Gilmer, 500 U.S. at 26-27.
Accordingly, Defendant’s motion to dismiss and compel arbitration will be granted.
See Lewis Tree Service, Inc. v. Lucent Technologies, Inc., 239 F. Supp. 2d 332, 340 (S.D.N.Y.
2002) (“Because all of Ironman’s claims are subject to arbitration, no useful purpose will be
served by granting a stay of Ironman’s claims and thus its action against the defendants is
dismissed.”) (citing Seus v. John Nuveen & Co, Inc., 146 F.3d 175, 178 (3d Cir. 1998) (“If all
the claims involved in an action are arbitrable, the court may dismiss the action instead of
staying it.”)).

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III.

Conclusion
For the foregoing reasons, Defendant’s [Doc. # 24] Motion to Dismiss and Compel

Arbitration is GRANTED. Because Plaintiff’s dispute with her former employer is subject
to arbitration, and her suit will be dismissed, Plaintiff’s [Doc. # 28] Motion to Amend her
Complaint to add claims for injunctive relief would be futile, and her Motion is DENIED.
The Clerk is directed to close this case.

IT IS SO ORDERED.

/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 28th day of April, 2011.

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