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Tomcykoski v. Continuing Care Rx

June 24, 2009

LISA TOMCYKOSKI, PLAINTIFF
v.
CONTINUING CARE RX, INC., DEFENDANT



The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court is defendant's motion to dismiss and compel arbitration (Doc. 14). Having been fully briefed, the matter is ripe for disposition.

Background

This case arises out of plaintiff's employment with the defendant. According to the plaintiff's complaint, she began working for the defendant in October 2007. (Complaint (hereinafter "Complt.") (Doc. 1) at ¶ 13). On November 1, 2007, defendant promoted plaintiff to Director of Pharmacy. (Id. at ¶ 16). On March 7, 2008, plaintiff's fiancé, Dr. Sajal Roy, informed Defendant's CEO, Thomas Trite, that he and plaintiff were engaged. (Id. at ¶ 17). Dr. Roy is of Indian descent. (Id.). Plaintiff's supervisor, Richard Lescavage, told plaintiff that "I would not have told them that." (Id. at 18). Defendant summarily terminated plaintiff six days later. (Id.).

Plaintiff filed her complaint in this court on November 6, 2008. The complaint contains three counts. Count I alleges a violation of Title VII of the Civil Rights Act of 1964. Plaintiff contends that she was terminated on account of her engagement to a man of Indian descent, a violation of that statute's prohibition on race discrimination. Count II alleges that defendant violated the race-discrimination in contracting prohibitions of 42 U.S.C. § 1981. Count III raises a claim of gender discrimination pursuant to Title VII of the Civil Rights Act of 1964.

The plaintiff served the complaint on the defendant. (Doc. 3). Defendant filed an answer to the complaint on December 8, 2008. (Doc. 4). In its answer, defendant did not raise the arbitration provision contained in plaintiff's contract as a defense. (See Id.). The court held a case management conference on February 6, 2009. (See Doc. 8). The case management plan likewise did not address the issue of arbitration raised in the instant motion. (See Doc. 10). The court set case management deadlines, establishing June 1, 2009 as the date for discovery to close. (See Doc. 12).

On April 7, 2009, defendant filed the instant motion to dismiss and compel arbitration. (See Doc. 14). The motion relates that plaintiff's employment contract with the defendant contained an arbitration provision in which the employee agreed that:

I will submit any dispute--including but not limited to my termination--arising under or involving my employment with Continuing Care Rx to binding arbitration within 3 months from the date the dispute first arose. I agree that arbitration shall be the exclusive forum for resolving all disputes arising out of or involving my employment. I agree that I will be entitled to legal representation, at my own cost, during arbitration. I further understand that I will be responsible for half the cost of the arbitrator and incidental costs of arbitration.

Arbitration Agreement, Exh. B to Defendant's Motion to Dismiss (Doc. 14-3) ("Agreement"). Plaintiff signed an "Acknowledgement [sic] of Agreement with Continuing Care Rx Arbitration Policy" on October 17, 2007. (Id.). Defendant contends that this arbitration agreement is binding, and that the Federal Arbitration Act ("FAA"), 9 U.S.C. § 2, requires that the court dismiss the case, which arises from plaintiff's termination and is covered by the arbitration agreement.

The parties then briefed the issue, bringing the case to its present posture.

Jurisdiction

As this case is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981, the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions ...


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