     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


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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


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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


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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




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