     09-0124-cv
     White v. Cantor Fitzgerald
 1                                 UNITED STATES COURT OF APPEALS
 2                                     FOR THE SECOND CIRCUIT
 3
 4                                               SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
 9   CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH TH IS COURT, A PARTY M UST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 22 nd day of September, two thousand ten.
17
18   PRESENT:         PIERRE N. LEVAL,
19                    REENA RAGGI,
20                                             Circuit Judges,
                                            *
21                    JOHN GLEESON,
22                                             District Judge.
23   --------------------------------------------------------------------------
24   A.J. WHITE,
25
26                                     Plaintiff-Appellant,
27
28                                v.                                               09-0124-cv
29
30   CANTOR FITZGERALD, L.P., BGC PARTNERS, L.P.,
31   BGC CAPITAL MARKETS, L.P., DANIEL M.
32   LaVECCHIA, KEVIN McNULTY,
33
34                                Defendants-Appellees.
35   ---------------------------------------------------------------------------
36
37
38
39

               *
 1            District Judge John Gleeson of the United States District Court for the Eastern
 2   District of New York, sitting by designation.
 1   APPEARING FOR APPELLANT:                                       M ICHAEL H. OCHS (Jason A.
 2                                                                  Stern, on the brief), Anderson &
 3                                                                  Ochs, LLP, New York, New York
 4
 5   APPEARING FOR APPELLEES:                                       W ILLIAM C. BATON, Saul
 6                                                                  Ewing LLP, Newark, New Jersey
 7
 8
 9         Appeal from the United States District Court for the Southern District of New
10   York (Batts, J.).
11
12          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

13   AND DECREED that the judgment of the district court is VACATED AND

14   REMANDED.

15          Plaintiff A.J. White appeals from a judgment dismissing her employment discrimination

16   claims brought pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2, et. seq.

17   (“Title VII”), and related state and city laws, and compelling her to arbitrate those claims. White

18   argues that the governing arbitration provision does not cover her claims of sex discrimination in

19   the workplace. For the most part, as discussed more fully below, we agree. Accordingly, we

20   vacate the judgment and remand so that White may pursue her claims of discrimination in the

21   district court to the extent she alleges violations of the anti-discrimination laws occurring after

22   January 1, 2005.

23          “The question of arbitrability is undeniably an issue for judicial determination . . . .” N.Y.

24   Health & Human Serv. Union v. NYU Hosps. Ctr., 343 F.3d 117, 119 (2d Cir. 2003). We review

25   a final district court order compelling arbitration de novo. Abram Landau Real Estate v. Bevona,

26   123 F.3d 69, 72 (2d Cir. 1997).


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 1          “There is a strong federal policy favoring arbitration as an alternative means of dispute

 2   resolution.” Oldroyd v. Elmira Sav. Bank, FSB, 134 F.3d 72, 76 (2d Cir. 1998). “Still, it

 3   remains the case that arbitration ‘is a matter of consent, not coercion.’” JLM Indus., Inc. v. Stolt-

 4   Nielsen SA, 387 F.3d 163, 171 (2d Cir. 2004) (quoting Volt Info. Scis. v. Bd. of Trs. of Leland

 5   Stanford Junior Univ., 489 U.S. 468, 479 (1989)). In determining whether the parties consented

 6   to arbitrate the claims of employment discrimination here at issue, we examine two arbitration

 7   provisions.

 8          White was first employed as a broker by Appellee BGC Partners, L.P. (“BGC”)1 in May

 9   2004, and she remained employed there until January 17, 2006, when, she claims, she was

10   constructively discharged. At the outset, White was an at-will employee who agreed to be bound

11   by BGC’s Employee Handbook (the “Handbook”). The Handbook mandates arbitration of

12                  any and all claims . . . of any kind involving [the employee] and any Cantor
13                  Fitzgerald Group Company . . . including . . . those related to . . . employment
14                  discrimination . . . [under] Title VII of the Civil Rights Act of 1964 . . . and any
15                  similar federal, state, or local statute, regulation, or ordinance and any and all
16                  claims under the common law of any state or otherwise.

17   Handbook Arbitration Agreement and Policy at 2. The Handbook’s arbitration provision further

18   states that if an at-will employee executes an employment agreement with BGC, “the arbitration

19   of any disputes shall be as set forth in your written employment agreement. If [the employee’s]

20   agreement makes no provision for the arbitration of disputes, then this Arbitration Agreement



            1
               BGC is one of five defendants, all of whom are appellees here. The others are Cantor
     Fitzgerald, L.P., BGC Captial Markets, L.P., Daniel M. LaVecchia and Kevin McNulty. Though this
     order refers only to BGC, all of the defendants-appellees jointly advance the same arguments on
     appeal.

                                                       3
 1   and Policy shall govern.” Id. at 6.

 2          After less than eight months on the job, White entered into an employment agreement

 3   with BGC. The agreement is dated January 1, 2004, but the parties agree it was actually

 4   executed in 2005, not 2004. Referred to here as the “Employment Agreement,” it contains an

 5   arbitration clause, which provides that “any disputes, differences or controversies arising under

 6   this Agreement shall be settled and finally determined by arbitration . . . . It is expressly agreed

 7   that arbitration as provided herein shall be the exclusive means for determination of all matters

 8   arising in connection with this Agreement . . . .” Employment Agreement at 7.

 9          BGC argues that both arbitration provisions currently bind White, and that the one in the

10   Employee Handbook requires arbitration of all claims in this case. Specifically, BGC contends

11   that the arbitration provisions serve separate purposes: the one in the Employee Handbook

12   “explicitly applies to Plaintiff’s discrimination claims,” Brief for Appellees at 13, whereas “[t]he

13   arbitration provision in the Employment Agreement was merely intended to account for disputes

14   that may arise out of the new written contract, which the Handbook Arbitration Agreement may

15   not encompass,” id. at 14 & n.6 (stating that the Employment Agreement arbitration clause, “read

16   as an entirety, refers to the arbitration of any disputes involving the terms of the written

17   contract”; only the “complementary” arbitration clause in the Employee Handbook includes the

18   “laundry list” of additional disputes, including employment discrimination, that are subject to

19   arbitration). Indeed, BGC argues that certain impermissible features of the Employment

20   Agreement arbitration provision – including a prohibition on the award of punitive damages or

21   attorneys’ fees to White – should not concern this Court because that arbitration provision


                                                       4
 1   governs only contract disputes, and is inapplicable to claims of discrimination in the workplace.

 2   Id. at 14 n.7.

 3           We reject this argument, and hold that the only arbitration provision to which White was

 4   bound once she entered into the Employment Agreement is the one in the Employment

 5   Agreement. The Handbook arbitration provision provides that if an at-will employee is offered

 6   employment pursuant to an employment agreement, “the arbitration of any disputes shall be as

 7   set forth in your written employment agreement. If [the employee’s] written agreement makes no

 8   provision for the arbitration of disputes, then this Arbitration Agreement and Policy shall

 9   govern.” Handbook Arbitration Agreement and Policy at 4. The Handbook thus contemplates

10   the continued application of its broad arbitration clause only if a later employment agreement

11   does not contain an arbitration provision. Since White’s Employment Agreement contains such a

12   provision, the express terms of the parties’ agreements require the conclusion that the Employee

13   Handbook’s arbitration provision ceased to apply once White and BGC entered into the

14   Employment Agreement.

15           BGC also advances a back-up argument: even if the only applicable arbitration provision

16   is the one in the Employment Agreement, White still must arbitrate all her claims of sex

17   discrimination. This is an aggressive argument. As discussed above, BGC’s principal argument

18   is that it did not intend the Employment Agreement’s arbitration provision to embrace

19   employment discrimination claims because the “complementary” arbitration provision in the

20   Handbook covers them. And it defends the no-punitive-damages and no-attorneys’-fees aspects

21   of the Employment Agreement’s arbitration provision by arguing that such limitations are


                                                      5
 1   unobjectionable in an arbitration provision intended only “to apply to contract disputes,” not

 2   employment discrimination claims. Brief for Appellees at 14 n.7 (emphasis in original).

 3   Nevertheless, BGC contends in the alternative that even if that argument fails, i.e., even if we

 4   hold that the Handbook arbitration provision is inapplicable, we should order arbitration anyway,

 5   pursuant to the very arbitration provision it concedes was neither intended nor worded to require

 6   it.

 7          We disagree. We acknowledge that the argument is made possible by the strong federal

 8   policy favoring arbitration, and in particular by our own precedents that accord a presumption of

 9   arbitrability when the plaintiff has agreed to arbitrate disputes “arising under” or “in connection

10   with” an employment agreement. Oldroyd, 134 F.3d at 76 (internal quotation marks omitted).

11   But that presumption is rebuttable, and we hold that it has been rebutted here. First, BGC itself

12   says the Employment Agreement’s arbitration provision was neither intended nor drafted to

13   include employment discrimination claims; indeed, it admits that the opposite is true. And

14   second, White’s history with her employer distinguishes this case from Oldroyd. When White

15   was first hired, she was subject to an expansive arbitration provision that required her to arbitrate

16   any dispute arising under or in connection with her employment, expressly including Title VII

17   and discrimination claims. But when she later became a contract employee, the arbitration

18   provision in the Employment Agreement abandoned this language and called for arbitration only

19   of “disputes, differences or controversies arising under this Agreement,” Employment Agreement

20   at 7 (emphasis added), which says nothing about claims of employment discrimination. White

21   therefore went from an at-will employee who was required to arbitrate any dispute, expressly


                                                       6
 1   including an employment discrimination claim, to a contract employee who was required to

 2   arbitrate only disputes arising out of her contract. Whatever might be said about the scope of the

 3   Employment Agreement’s arbitration provision if that were the only such provision White and

 4   BGC had agreed to, because White graduated from the Employee Handbook to the Employment

 5   Agreement, we can conclude “with positive assurance that the arbitration clause is not

 6   susceptible of an interpretation that it covers” claims of sex discrimination. Oldroyd, 134 F.3d at

 7   76 (internal quotation marks, brackets, and emphasis omitted) (describing when presumption of

 8   arbitrability is rebutted). Accordingly, we hold that the Employment Agreement’s arbitration

 9   provision does not cover White’s employment discrimination claims.

10          We reiterate that our holding is rooted in the particular facts of this case; we need not and

11   do not address whether White’s claims of employment discrimination would be arbitrable under

12   the terms of the Employment Agreement if that were the only agreement she had with her

13   employer.

14          Finally, we must address the possibility that White may be asserting both arbitrable and

15   nonarbitrable claims. White’s tenure at BGC began in May 2004 and extended to January 17,

16   2006, when she alleges she was constructively discharged. She was subject to the Handbook’s

17   arbitration provision until January 1, 2005, when she signed the Employment Agreement.

18   White’s claim that she was constructively discharged in January 2006 is plainly not arbitrable for

19   the reasons set forth above. Similarly, her claim that she was subjected to a hostile work

20   environment between January 1, 2005 and January 17, 2006, as well as most of the instances of

21   disparate treatment alleged in her complaint, are not arbitrable. However, the complaint alleges a

22   hostile work environment and acts of disparate treatment in 2004. To the extent that White seeks

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 1   a jury finding of liability based solely on acts that occurred in 2004, the Handbook

 2   unambiguously subjects such claims to arbitration.

 3          White suggests that any such claims are factually intertwined with the nonarbitrable

 4   claims and for that reason should not be relegated to arbitration. BGC contends that we not only

 5   must compel the arbitration of any 2004 claims, but also must direct the district court to stay all

 6   proceedings below pending the outcome of the arbitration. We think neither side is correct.

 7   White is wrong because the Supreme Court has made clear that the Arbitration Act requires

 8   district courts to compel arbitration of arbitrable claims even where doing so produces the

 9   inefficiencies associated with litigating similar claims in separate proceedings in different

10   forums. See 9 U.S.C. §§ 3, 4; Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (1985).

11   BGC is wrong because the district court is not required to stay the litigation of the nonarbitrable

12   claims before it on remand pending the outcome of any arbitrated claims. See Chang v. Lin, 824

13   F.2d 219, 222 (2d Cir. 1987) (stating that “we have previously allowed courts great discretion in

14   staying nonarbitrable state and federal claims pending arbitration of related claims” and citing

15   cases); Castro v. Marine Midland Bank, N.A., 695 F. Supp. 1548, 1552 (S.D.N.Y. 1988)

16   (declining to order stay of litigation of federal claims until completion of arbitration of related

17   claims). Our review of the complaint reveals that White is predominantly advancing

18   nonarbitrable claims, that is, claims based principally on events occurring in 2005 and 2006.

19   Indeed, on remand she may choose to abandon any claims based solely on 2004 events, and to

20   rely on such events solely to the extent they constitute evidence of the nonarbitrable claims.

21   Even if she does not abandon her arbitrable claims, the district court may conclude that it is

22   feasible to compel arbitration of those claims while allowing simultaneous litigation of the

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 1   nonarbitrable claims. See Chang, 824 F.2d at 222; see also Volkswagen of Am., Inc. v. Sud’s of

 2   Peoria, Inc., 474 F.3d 966, 971 (7th Cir. 2007); Klay v. All Defendants, 389 F.3d 1191, 1204

 3   (11th Cir. 2004). We leave that determination to the discretion of the district court.

 4          Accordingly, we vacate the judgment of the district court and remand for proceedings

 5   consistent with this opinion.

 6
 7                                         FOR THE COURT:

 8                                         CATHERINE O’HAGAN WOLFE, Clerk of Court

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