     11-4696-cv
     McAllister v. Smith Barney/Citigroup Global
 1
 2                                    UNITED STATES COURT OF APPEALS
 3                                        FOR THE SECOND CIRCUIT
 4
 5                                                 SUMMARY ORDER
 6
 7   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 8   A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
 9   GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
10   LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
11   THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
12   DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
13   ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
14
15          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
16   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 7th day
17   of December, two thousand twelve.
18
19   Present:    PIERRE N. LEVAL,
20               ROSEMARY S. POOLER,
21               BARRINGTON D. PARKER,
22                           Circuit Judges,
23
24   ________________________________________________
25
26   Angela D. McAllister,
27             Plaintiff-Appellee,
28
29                         v.                                        No. 11-4696-cv
30
31   Smith Barney/Citigroup Global Markets Inc.,
32   Citigroup Inc., Patricia Balenzentis, Kristen
33   King, Michelle Green, Andrew Smith,
34   Andrew Grillo, Brad Barber, and Citigroup
35   Global Markets Inc.,
36              Defendants-Appellants,
37
38   Robert East,
39             Defendant.
40   ________________________________________________
41
42
43
 1   For Plaintiff-Appellee:           Angela D. McAllister, pro se, Bridgeport, CT.
 2
 3   For Defendants-Appellants: Ira G. Rosenstein, Morgan, Lewis & Bockius LLP, New York,
 4                              NY.
 5   ________________________________________________
 6
 7          Appeal from the order of the United States District Court for the District of Connecticut
 8   (Bryant, J.).
 9
10          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

11   DECREED that the matter is REMANDED to the district court for further proceedings.

12          Defendants appeal from the district court’s denial of their motion to stay litigation and to

13   compel arbitration of pro se Plaintiff Angela D. McAllister’s employment discrimination action.

14   Her suit alleges violations of Title VII of the Civil Rights Act of 1964 and the Age Discrimination

15   in Employment Act of 1967. We assume the parties’ familiarity with the underlying facts and

16   procedural history.

17          We have jurisdiction over defendants’ appeal pursuant to the Federal Arbitration Act,

18   which allows interlocutory appeal from a district court’s denial of a motion to compel arbitration.

19   JLM Indus. v. Stolt-Nielsen SA, 387 F.3d 163, 169 (2d Cir. 2004).

20          Defendants contend the district court erred in concluding that they had failed to show

21   sufficiently that, when the defendants introduced the arbitration requirement through the

22   employee handbook in 1993, McAllister was an at-will employee. If McAllister had contract

23   rights that were not compatible with the employer’s general arbitration requirement, then the

24   defendants’ efforts to impose the arbitration requirement was not enforceable under Connecticut

25   law.

26

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1           In support of the motion to compel arbitration, defendants proffered the affidavit of

2    Eugene Clark, an attorney in defendants’ employment office, stating that McAllister had been an

3    at-will employee since she was hired in 1991. In opposition, McAllister stated that she had never

4    been an at-will employee. Neither side offered any further evidence on the question.

5           While whether the parties have reached a contractual agreement is a question of fact,

6    whether a person is an at-will employee is a conclusion of law and, therefore, not within the

 7   competence of a fact witness. See Stevenson Lumber Co.-Suffield, Inc. v. Chase Assocs., Inc., 932

 8   A..2d 401, 408-09 (Conn. 2007). The conflicting statements by McAllister and the defendants’

 9   witness on whether McAllister was an at-will employee had no evidentiary value. The question

10   whether McAllister had contractual rights could have been established by various forms of

11   evidence, including, for example, by testimony or documentary evidence establishing whether the

12   employer made promises or representations in connection with McAllister’s employment. But

13   neither party provided any such evidence.

14          We think it best to remand to the district court, pursuant to United States v. Jacobson, 15

15   F.3d 19 (2d Cir. 1994), for the district court to solicit competent evidence on whether McAllister

16   had an employment contract, either express or implied, and, if so, what its terms were, when

17   defendants instituted the arbitration requirement, and for the district court to make findings based

18   on such competent evidence. On that basis, the district court should either reissue its order

19   denying arbitration, or compel arbitration, depending whether it finds that McAllister had

20   contractual rights that were contravened by the imposition of the arbitration requirement.

21



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 1

 2          Any party aggrieved by a future order either compelling or denying arbitration may

 3   restore this appeal before this panel by a letter to the Clerk of Court, within 10 days of the date of

 4   the order appealed from.

 5

 6                                                     FOR THE COURT:
 7                                                     CATHERINE O’HAGAN WOLFE, CLERK
 8
 9
10




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