Perez v. Ruby Tuesday, Inc. et al

Filing 26

MEMORANDUM-DECISION and ORDER granting 21 Motion to Dismiss. ORDERED that 1. Defendants' motion to compel arbitration is GRANTED; and 2. Plaintiff's complaint is DISMISSED. IT IS SO ORDERED. Signed by Judge David N. Hurd on 1/28/2019. (Copy served via regular and certified mail)(khr )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------SYLVIA PEREZ,
Plaintiff,
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6:16-CV-795

RUBY TUESDAY, INC.,
ROBERTA BRIGGS,
General Manager, and
GARY COLE, Manager,
Defendants.
----------------------------------APPEARANCES:

OF COUNSEL:

SYLVIA PEREZ
Plaintiff, Pro Se
229 Grand Street
Amsterdam, NY 12010
LITTLER, MENDELSON LAW FIRM
Attorneys for Defendants
900 Third Avenue
New York, NY 10022

A. MICHAEL WEBER, ESQ.
SHAWN MATTHEW CLARK, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On July 1, 2016, pro se plaintiff Sylvia Perez ("Perez" or "plaintiff") filed this civil rights
action against defendants Ruby Tuesday, Inc. ("Ruby Tuesday"), General Manager Roberta
Briggs ("GM Briggs"), and Manager Gary Cole ("Manager Cole") (collectively "defendants").

Perez asserted claims for unlawful retaliation in violation of Title VII of the Civil Rights
Act of 1964 ("Title VII") and of the New York State Human Rights Law ("NYSHRL"). Along
with her complaint, plaintiff also filed an application for leave to proceed in forma pauperis
("IFP application") and a motion seeking the appointment of counsel.
On July 14, 2016, U.S. Magistrate Judge Therese Wiley Dancks issued an Order and
Report–Recommendation (the "July 14 R&R") granting Perez's IFP application and denying
without prejudice her request for counsel. In light of plaintiff's newly granted IFP status,
Judge Dancks also conducted an initial screening of the complaint in accordance with the
provisions set forth in 28 U.S.C. §§ 1915(e)(2)(B)(i)–(iii).
Based upon this initial review, Judge Dancks recommended that Perez's Title VII
retaliation claim be permitted to proceed against Ruby Tuesday. Judge Dancks also
recommended that plaintiff's NYSHRL retaliation claim be permitted to proceed against all
three named defendants.
However, Judge Dancks concluded that Perez's Title VII retaliation claims against GM
Briggs and Manager Cole should be dismissed with prejudice because Title VII did not
provide for individual liability. Over plaintiff's objection, this Court adopted in full the findings
of the July 14 R&R.
On May 14, 2018, defendants moved to compel arbitration of the remaining claims
and to dismiss Perez's complaint. The motion has been fully briefed and will be considered
on the basis of the submissions without oral argument.
II. BACKGROUND
During the time period relevant to her claims, Perez worked at the Ruby Tuesday
restaurant in Amsterdam, New York. Tillman Decl. ¶ 3. On July 15, 2015, plaintiff filed an
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administrative charge of discrimination against Ruby Tuesday alleging violations of Title VII
and the Equal Pay Act. Compl. ¶ 8. The parties settled these alleged violations in an
agreement executed on November 6, 2015. Id. The agreement included a "no retaliation"
provision. Id.; see also Dkt. No. 6.
Perez continued to work for Ruby Tuesday after this settlement. On March 13, 2016,
she was working her shift as a Host at Ruby Tuesday when Manager Cole "violently shoved"
her from behind. Compl. ¶ 8. Plaintiff immediately confronted him but received no response,
so she told Nicolle Bahruth, the other Manager on duty that day, about the incident. Id. She
too failed to respond. Id.
Fearing a further assault from Manager Cole, Perez informed Manager Bahruth that
she was leaving the restaurant due to "feeling Fight or Flight." Compl. ¶ 8. After she left,
plaintiff immediately contacted GM Briggs through the Ruby Tuesday "HotSchedules
Messaging" system. Id. GM Briggs did not respond. Id.
The next day, Perez filed a complaint with the Montgomery County Sheriff's
Department. Compl. ¶ 8. Thereafter, plaintiff "repeatedly contacted" the Ruby Tuesday
"Corporate Office Employee Complaint Hotline" and left messages asking for someone to
call her back about filing a complaint of assault. Id. Eventually, an unnamed Ruby Tuesday
employee called her back and took her complaint. Id. However, plaintiff never received a
response. Id.
On April 5, 2016, Perez filed a new administrative charge of discrimination against
Ruby Tuesday. Compl. ¶ 10. Plaintiff's new charge complained of two related acts of
retaliation that she alleged resulted from animosity about her earlier settlement: first, that
Manager Cole shoved her on March 13 and second, that GM Briggs and Ruby Tuesday
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failed to follow the company's employee complaint process in response to her report of
Manager Cole's attack. Compl. ¶ 10. The U.S. Equal Employment Opportunity Commission
("EEOC") dismissed plaintiff's complaint and sent her a right-to-sue letter, which she received
on April 20, 2016. Id. ¶ 11. This action followed.
III. LEGAL STANDARD
"A motion to compel arbitration is reviewed under a summary judgment standard, and
may be granted when the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that movant is
entitled to judgment as a matter of law." Thomas v. Public Storage, Inc., 957 F. Supp. 2d
496, 499 (S.D.N.Y. 2013) (citation and internal quotation marks omitted); see also
Bensadoun v. Jobe–Riat, 316 F.3d 171, 175 (2d Cir. 2003) (" In the context of motions to
compel arbitration . . . the court applies a standard sim ilar to that applicable for a motion for
summary judgment."). "In determining whether parties have agreed to arbitrate, courts apply
generally accepted principles of contract law." Thomas, 957 F. Supp. 2d at 499 (citation
omitted). "Once a court is satisfied that an arbitration agreement is valid and the claim
before it is arbitrable, it must stay or dismiss further judicial proceedings and order the parties
to arbitrate." Id.

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IV. DISCUSSION1
Defendants have moved to compel arbitration and to dismiss Perez's complaint based
on a "Fair and Impartial Resolution Policy Through Arbitration" (the "Agreement") they claim
plaintiff executed as a condition of her continued employment with Ruby Tuesday. Tillman
Decl., Dkt. No. 21-2, ¶¶ 7-9. According to defendants, beginning in early 2016 all employees
were asked to review and electronically sign the Agreement on a restaurant computer during
one of their shifts. Id. ¶ 8.
The two-page Agreement contains a short preamble followed by a list of six
conditions, first in English and then in Spanish. Ex. A to Tillman Decl. Among other things,
the Agreement provides that "[a]ny and all disputes or controversies arising out of or relating
to any aspect of your employment . . . shall be finally and exclusively resolved by confidential
arbitration." Id. It further provides that this arbitration "shall be subject to and governed by
the Federal Arbitration Act, 9 U.S.C. Section 1 et seq." Id. And it states that "[t]he
enforceability of this policy, the scope of arbitrability and all other questions shall be
determined by the arbitrator." Id.
The bottom of the final page of the Agreement contains a bolded and underlined
subsection entitled "Employee Acknowledgment," again in both English and Spanish. Ex. A
to Tillman Decl. There, the Agreement states that "[m]y electronic signature below confirms
that (a) I have received, read, and understand the Ruby Tuesday Arbitration Policy; and

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After Judge Dancks issued the July 14 R&R, this action languished for approximately a year before
defendants made the instant motion to compel arbitration. According to their filings, plaintiff failed to perfect
service on any of the named defendants until some time after a phone conversation that took place with one
of defendants' attorneys, either on July 7, 2017 or possibly April 9, 2018. Dkt. No. 16. Those issues have
since been resolved, either through procedurally adequate service or waiver. See Defs.' Mem. at 7
(discussing procedural history); see also Clark Decl. ¶ 2 & n.1.
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(b) I understand and agree to be bound by same as it relates to my employment with Ruby
Tuesday." Id. Defendants have included with their motion a version of the Agreement
bearing plaintiff's electronic signature. Ex. B to Clark Decl. According to defendants, plaintiff
signed the Agreement during her shift on February 29, 2016. Tillman Decl. ¶ 9; Clark
Decl. ¶ 5.
Perez argues otherwise. Her one-page responsive submission denies any knowledge
of the Agreement and asserts that she did not accept its term s. According to plaintiff, she
could not have electronically signed the Agreement on February 29, 2016 "at 11:56 p.m."
because she would not have been at the restaurant then. Pl.'s Opp'n ¶¶ 1 -3.
In reply, defendants note that Perez does not deny that her employment claims would
fall within the scope of the Agreement (if it applied) or that her claims would be arbitrable in
accordance with its provisions (if she had signed it). As to plaintiff's apparent attempt to
advance a complete denial of knowledge, acceptance, or receipt of the Agreement,
defendants have two responses.
First, they offer a timecard record to buttress their claim that Perez did in fact sign the
Agreement on the date and time identified in their initial moving papers. Ex. A to Tillman
Reply Decl.2 Second, defendants contend that plaintiff's claims would be subject to
arbitration even if she failed to sign the Agreement. According to them, plaintiff's decision to

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As defendants explain, the electronic signature at issue uses Greenwich Mean Time in a 24-hour
format. Tillman Reply Decl. ¶ 11. Thus, plaintiff's electronic signature on the document, which shows as
being signed on "23:56:59 + 00:00," is actually equivalent to 6:56:59 p.m. Eastern Time in Amsterdam, New
York, where the restaurant is located. Id. ¶ 12. Properly understood, then, the signature occurred at a time
of the day that falls squarely within plaintiff's roughly three-hour shift at the restaurant that
evening. Id. ¶¶ 12-13.
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continue working at Ruby Tuesday even after the arbitration policy took effect company-wide
amounts to a legally sufficient manifestation of assent under New York law.
The legal backdrop to the parties' dispute is the Federal Arbitration Act (" FAA"), which
"creates a body of federal substantive law establishing and regulating the duty to honor an
agreement to arbitrate disputes." Begonja v. Vornado Realty Trust, 159 F. Supp. 3d 402,
408 (S.D.N.Y. 2016) (quoting Mitsubishi Motor Corp. v. Soler Chrysler–Plymouth, Inc., 473
U.S. 614, 625 (1985)); see also 9 U.S.C. § 2 (providing that arbitration agreements "shall be
valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for
the revocation of any contract").
Where, as here, a party seeks to compel another to arbitrate their dispute, a court
must examine: "(1) whether the parties entered into an agreement to arbitrate; (2) if so, the
scope of that agreement; (3) if federal statutory claims are asserted, whether Congress
intended those claims to be nonarbitrable; and (4) if some, but not all, claims are subject to
arbitration, whether to stay the balance of the proceedings pending arbitration." Begonja,
159 F. Supp. 3d at 408-09.
The principal element at issue in this case is the first one: did the parties actually
agree to arbitrate? That question is answered by examining state contract law. Schnabel v.
Trilegiant Corp., 697 F.3d 110, 119 (2d Cir. 2012) ("Whether or not the parties have agreed
to arbitrate is a question of state contract law.").
"To form a valid contract under New York law, there must be an offer, acceptance,
consideration, mutual assent and intent to be bound." Register.com, Inc. v. Verio, Inc., 356
F.3d 393, 427 (2d Cir. 2004) (citation omitted). "A contract may be formed by words or by
conduct that demonstrates the parties' mutual assent." Manigault v. Macy's East, LLC, 318
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F. App'x 6, 8 (2d Cir. 2009) (summary order). For instance, "[a]n employee may consent to a
modification to the terms of employment by continuing to work after receiving notice of the
modification." Id.
Upon review of the submissions, defendants have carried their burden of
demonstrating that the parties agreed to arbitrate pursuant to the Agreement, a copy of
which was electronically signed by Perez. Begonja, 159 F. Supp. 3d at 409 ("The party
moving to compel arbitration must make a prima facie initial showing that an agreement to
arbitrate existed before the burden shifts to the party opposing arbitration to put the making
of that agreement 'in issue.'").3
This is because Perez's refusal is made without the support of a shred of evidence
that might cast doubt on the authenticity of the various exhibits marshaled by defendants in
support of their contrary position. See, e.g., Gonder v. Dollar Tree Stores, Inc., 144 F. Supp.
3d 522, 529 (S.D.N.Y. 2015) (rejecting similar refusal to acknowledge electronic signature
where "[n]othing in the record (other than [plaintiff's] bald assertion to the contrary in his
opposition)" suggested it was invalid).
Accordingly, Perez's self-serving refusal to acknowledge the fact of her signature on
the document is insufficient to raise a genuine dispute of fact about this all-important
threshold question. Begonja, 159 F. Supp. 3d at 409 ("Subsequently, the party 'seeking to
avoid arbitration generally bears the burden of showing the agreement to be inapplicable or
invalid.'").

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Importantly, "[t]he moving party need not 'show initially that the agreement would be enforceable,
merely that one existed.'" Begonja, 159 F. Supp. 3d at 409 (emphasis in original).
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The remaining elements necessary to trigger arbitration have also been satisfied. The
plain language of the Agreement indicates that it reaches "any and all disputes or
controversies arising out of or relating to any aspect of [plaintiff's] employment with [ ] Ruby
Tuesday."
This kind of broad language has been held to cover claims arising from Title VII and
the NYSHRL. See, e.g., Wenchun Zheng, Ph.D v. Gen. Elec. Co., 2016 WL 3212092, at *3
(N.D.N.Y. June 9, 2016) (McAvoy, J.) (collecting cases establishing arbitrability of federal and
state discrimination claims). Accordingly, defendants' motion to compel arbitration will be
granted.
V. CONCLUSION
Having determined that defendants are entitled to compel arbitration, the remaining
question is whether to dismiss the action or enter a stay. Where, as here, "a stay is not
requested, a district court has discretion in determining whether to stay or dismiss the case
pending arbitration." Castellanos v. Raymours Furniture Co., Inc., 291 F. Supp. 3d 294, 302
(E.D.N.Y. 2018); see also Benzemann v. Citibank N.A., 622 F. App'x 16, 18 (2d Cir. 2015)
(summary order) (affirming propriety of dismissal where plaintiff did not request a stay).
Under the particular circumstances of this case, a dismissal is the appropriate course
of action here.
Therefore, it is
ORDERED that
1. Defendants' motion to compel arbitration is GRANTED; and
2. Plaintiff's complaint is DISMISSED.
The Clerk of the Court is directed to terminate the pending motion and to close the file.
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IT IS SO ORDERED.

Dated: January 28, 2019
Utica, New York.

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