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Robert Reichner v. Mcafee

March 21, 2012


The opinion of the court was delivered by: Schiller, J.


Robert Reichner claims that his employer, McAfee, Inc., discriminated against him because of his age. When he accepted his offer of employment with Defendant, he agreed to arbitrate discrimination disputes. McAfee has moved to compel arbitration and to dismiss the Complaint. For the reasons that follow, the Court grants the motion.


On October 18, 1999, Reichner began working for Network Associates, Inc. ("NAI") as a sales engineer for the Mid-Atlantic region.*fn1 (Compl. ¶ 22.) His written offer of employment included a provision for resolving disputes:

In the event of any dispute or claim relating to or arising out of our employment relationship, this agreement, or the termination of our employment relationship (including, but not limited to, any claims of wrongful termination or age, sex, disability, race or other discrimination), you and NAI agree that all such disputes shall be fully, finally and exclusively resolved by binding arbitration conducted by the American Arbitration Association in California or the state you work in, and we waive our rights to have such disputes tried by a court or jury. However, we agree that this arbitration provision shall not apply to any disputes or claims relating to or arising out of the misuse or misappropriation of your or the Company's trade secrets or proprietary information. (Def.'s Mot. To Compel Arb. and to Dismiss the Compl. Ex. A [Employment Offer].)

Throughout the course of his employment, Reichner was a loyal and diligent employee who received numerous kudos regarding his job performance. (Compl. ¶¶ 23, 26-27, 29, 37, 41-42, 46.) As a result, he received raises and other benefits, and he received average or above average performance reviews. (Id. ¶ 23.) In 2007, Victor Lomet became Reichner's supervisor. (Id. ¶ 25.) Shortly thereafter, Lomet refused to permit Reichner to attend a necessary job training program, though Lomet allowed a younger sales engineer to attend the program. (Id.) Lomet also scolded Reichner for arriving late for a meeting although he did not reprimand younger employees who also arrived late. (Id. ¶ 30.) Lomet told Reichner that "this is a young man's game" and asked Reichner, "Are you getting too old for this job?" (Id. ¶ 31.) Lomet continued to deny Reichner training opportunities he offered to younger employees. (Id. ¶¶ 32-37.)

On November 21, 2008, McAfee placed Plaintiff on an unattainable performance improvement plan and threatened to fire him. (Id. ¶ 39.) Plaintiff never received a written warning about his performance, and younger employees who performed similarly to Plaintiff were not placed on any performance-correcting program. (Id.) Reichner voiced his concerns to human resources, stating that he believed Lomet placed him on a performance improvement plan due to his age. (Id. ¶ 45.) Human resources failed to properly investigate Reichner's charge. (Id.) Plaintiff disputes charges that his performance was lacking. (Id. ¶¶ 39-43.)

On January 13, 2009, human resources fired Reichner over the phone. (Id. ¶ 51.) Reichner argues that his termination violated the Age Discrimination in Employment Act ("ADEA") and the Pennsylvania Human Resources Act ("PHRA").

Reichner's response to McAfee's motion to compel arbitration includes an affidavit from Reichner. (Pl.'s Resp. Ex. 1 [Reichner Aff.].) According to Reichner, the employment offer he signed, which was drafted by NAI, was presented as a "take it or leave it" proposition; if he did not sign, he would not be hired. (Reichner Aff. ¶¶ 5, 7.) He was not offered a chance to negotiate the terms, seek legal counsel, or discuss the matter. (Id. ¶ 6.) After NAI changed its name to McAfee, he received a handbook from McAfee, which was silent on the issue of arbitration, and it stated, "The policies contained in this Handbook supersede all past manuals, procedures, understandings, standards or any verbal or written policies that have been distributed on behalf of McAfee Inc., any of it subsidiaries, or acquired companies." (Id. ¶¶ 10-12.)


The Federal Arbitration Act ("FAA") provides that arbitration agreements are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Any "party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement." Id. § 4. The FAA establishes the strong federal policy in favor of arbitration. Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 178 (3d Cir. 2010). The presumption in favor of arbitration, however, does not apply to the issue of whether a valid agreement to arbitrate exists. Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 160 (3d Cir. 2009).

A district court decides a motion to compel arbitration under a summary judgment standard and gives the party opposing the motion the benefit of all reasonable doubts and appropriate inferences. Kaneff v. Del. Title Loans, Inc., 587 F.3d 616, 620 (3d Cir. 2009). Before compelling arbitration, a court must determine that: (1) a valid agreement to arbitrate exists; and (2) the particular dispute falls within the scope of the agreement. Kirleis, 560 F.3d at 160. "Agreements to arbitrate in Pennsylvania are upheld only where it is clear that the parties have agreed to arbitrate their disputes-employment and otherwise-in a clear and unmistakable manner." Hudyka v. Sunoco, Inc., 474 F. Supp. 2d 712, 716 (E.D. Pa. 2007).


A. Valid Agreement to ...

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