United States District Court, M.D. Pennsylvania
ANDREA L. BRIGGS and ROBERT C. BRIGGS, Plaintiffs
MACY'S INC., MACY'S RETAIL HOLDING, INC., and JAY REESE, Defendants
Malachy E. Mannion United States District Judge
the court is a motion to compel arbitration, (Doc.
5), filed by defendants Macy's, Inc., Macy's
Retail Holdings, Inc. (collectively, “Macy's
”), and Jay Reese. The defendants' motion was filed
in response to the complaint filed by plaintiffs Andrea L.
Briggs and her husband, Robert C. Briggs. (Doc. 1).
The defendants' motion to compel arbitration is
DENIED at this time to allow the parties to
engage in limited discovery. The defendants may file a
renewed motion pursuant to Federal Rule of Civil
Procedure 56 after the completion of discovery.
Briggs was employed by Macy's from March 6, 2000 until
July 29, 2014 as a visual manager. She was employed at the
company's Wyoming Valley Mall store in Wilkes-Barre
Township, Pennsylvania. Defendant Jay Reese was a store
manager at that location. While employed by Macy's, Mrs.
Briggs was subjected to sexually inappropriate comments and
actions by Mr. Reese, including, but not limited to, Mr.
Reese stalking Mrs. Briggs, following her around the
workplace, staring at Mrs. Briggs, and taking pictures of
her. All of these actions were unwelcome by Mrs. Briggs.
Briggs complained about Mr. Reese's comments and actions
to Macy's. Macy's did not investigate or take any
corrective action and Mrs. Briggs continued to be subjected
to Mr. Reese's conduct. Other employees at Macy's
witnessed this conduct, including other superiors.
Ultimately, Mrs. Briggs was fired due to alleged violations
of the company's policies. She alleges that the
justification for her firing was pretext and that she was
fired in retaliation due to her complaints against Mr. Reese.
January 26, 2015, Mrs. Briggs filed charges of sexual
harassment, hostile work environment, employment
discrimination, and retaliation with the Pennsylvania Human
Relations Commission (“PHRC”). She dual filed her
charges with the Equal Employment Opportunity Commission
(“EEOC”). On February 18, 2016, she received a
notice of right to sue from the PHRC. On April 25, 2016, she
received a notice of right to sue from the EEOC. Having
exhausted administrative remedies, on May 17, 2016, Mrs.
Briggs filed a complaint in this court. (Doc. 1).
Briggs' complaint contains eight (8) counts against all
of the defendants collectively. Counts I through III allege
violations of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §2000e et seq. Count I is a
sexual harassment claim. Count II is a hostile work
environment claim. Count III is a retaliation claim. These
counts are brought on behalf of Mrs. Briggs alone. Counts IV
and V allege violations of the Pennsylvania Human Relations
Act (“PHRC”), 43 Pa. Stat. §951
et seq., and are also brought on behalf of Mrs.
Briggs alone. Count IV alleges violations of Section 5(a) of
the PHRA due to Mrs. Briggs' hostile work environment and
the defendants' harassment and discrimination. Count V is
a retaliation claim under the PHRA.
VI is a civil rights conspiracy claim under 42 U.S.C.
§1985(3) brought on behalf of Mrs. Briggs. Count
VII is a wrongful termination claim under Pennsylvania common
law brought on behalf of Mrs. Briggs . Count VIII is loss of
consortium claim under Pennsylvania common law brought on
behalf of Mr. Briggs.
response to the complaint, on July 15, 2016, the defendants
filed a motion to compel arbitration. (Doc. 5). The
defendants attached various exhibits and declarations from
other Macy's employees to their motion. On July 19, 2016,
the defendants filed a separate brief in support as required
by Local Rule 7.5. (Doc. 8). On August 1, 2016, the
plaintiffs filed a brief in opposition. (Doc. 9).
The defendants filed a reply brief on August 15, 2016. (Doc.
12). The defendants' motion is now ripe for
defendants' motion is premised on an agreement that
Macy's enters into with all of its employees, including
Mrs. Briggs, which includes an agreement to arbitrate unless
the employee explicitly opts-out of arbitration within thirty
(30) days from the date of hiring. Based on this agreement,
the defendants request that the court compel arbitration and
dismiss the plaintiff's action. In the alternative, the
defendants' request that the court compel arbitration and
stay the action until arbitration is completed. The
defendants then request that, after arbitration, the court
lift the stay and decide the sole count brought on behalf of
Mr. Briggs. The defendants concede that the loss of
consortium claim is not subject to the arbitration clause.
Based on the appropriate standard of review to be applied to
the defendants' request, the defendants' motion will
be denied at this time in order to allow the plaintiffs to
engage in limited discovery.
initial question of arbitrability-i.e., whether or
not the parties validly agreed to arbitrate-is presumed to be
a question for the court unless the parties clearly and
unmistakably indicate otherwise. Guidotti v. Legal
Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d
Cir. 2013). In Guidotti, the Third Circuit Court of
Appeals clarified the appropriate standard of review to be
applied to a motion to compel arbitration filed before the
completion of discovery. This clarification was needed due to
conflicting precedent using the standard under Federal
Rule of Civil Procedure 12(b)(6) applied to motions to
dismiss as compared to precedent using the standard under
Federal Rule of Civil Procedure 56 applied to
motions for summary judgment. Guidotti, 716 F.3d at
771. The Third Circuit determined that this conflict was
premised on the competing purposes of the Federal Arbitration
Act (“FAA”), 9 U.S.C. §1 et seq., governing
arbitration versus the values underlying contract
interpretation more generally. Id. at 773. While the
FAA “calls for a summary and speedy resolution of
motions or petitions to enforce arbitration clauses, ”
enforcement of the private agreement between the parties is
also an important consideration. Id. (quoting
Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 29 (1983)). “Accordingly,
‘[b]efore a party to a lawsuit can be ordered to
arbitrate and thus be deprived of a day in court, there
should be express, unequivocal agreement to that
effect.'” Id. at 773 (quoting Par-Knit
Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d
51, 54 (3d Cir. 1980)) (alteration in original).
Third Circuit in Guidotti held that where the
affirmative defense of arbitrability is apparent on the face
of the complaint or those documents relied upon in the
complaint, the standard under Rule 12(b)(6) should be
applied. Id. at 773-74. In those cases, the FAA
would favor speedy resolution without the delay of discovery.
Id. “[A] more deliberate pace is
required” when either (1) the complaint and documents
referenced therein do not establish with “requisite
clarity” that the parties agreed to arbitrate or (2)
“the opposing party has come forth with reliable
evidence that is more than a ‘naked assertion . . .
that it did not intend to be bound, ' even though on the
face of the pleadings it appears that it did.”
Id. at 774 (quoting Somerset Consulting, LLC v.
United Capital Lenders, LLC, 832 F.Supp.2d 474, 479
(E.D. Pa. 2011) and Par-Knit Mills, 636 F.2d at 55).
the issue of arbitrability is not apparent on the fact of the
complaint, “the motion to compel arbitration
must be denied pending further development of the
factual record.” Id. (emphasis added). When
the issue of arbitrability is apparent on the fact of the
complaint but the non-moving party has come forward with
evidence to place the question in issue, the motion should be
resolved according to the standard provided in Rule 56.
Id. “Under either of those scenarios, a
restricted inquiry into the factual issues will be necessary
to properly evaluate whether there was a meeting of the minds
on the agreement to arbitrate, and the non-movant
must be given the opportunity to conduct limited
discovery on the narrow issue concerning the validity of the
arbitration agreement.” Id. (emphasis added)
(internal citations and quotations omitted). “After
limited discovery, the court may entertain a renewed motion
to compel arbitration, this time judging the motion under a
summary judgment standard.” Id. at
issue of arbitrability is not apparent on the face of the
plaintiffs' complaint or any documents cited within the
complaint. The defendants' arguments are entirely
premised on documents and declarations attached to the motion
to compel arbitration. None of these documents are attached
to or referenced in the complaint. The plaintiffs have not
conceded to the authenticity of these attached documents.
Instead, the plaintiffs contest the applicability and
validity of the arbitration clause, including an argument
that the arbitration clause is unconscionable under
Pennsylvania law. See id. at 774 n. 5 (collecting
cases and listing various contexts where pre-arbitration
discovery has been held necessary, including where the
arbitration clause is argued to be unconscionable). The
plaintiffs specifically request discovery on these issues.
(See Doc. 9, at 3). The plaintiffs are
“entitled to discovery on the question of arbitrability
before [this] court entertains further briefing” on the
issue. Guidotti, 716 F.3d at 776 (quoting
Somerset, 832 F.Supp.2d at 482). As such, the
defendants' motion will be denied at this time and the
defendants will be granted an opportunity to file a renewed
motion after limited discovery is completed.
reasons stated above, the defendants' motion to compel
arbitration, (Doc. 5), is DENIED and the court will
order limited discovery on the issue of arbitrability. After
such time has passed, the defendants shall file a renewed
motion to compel arbitration or, in the alternative, some
other dispositive motion or a responsive pleading. If the
defendants file a renewed motion to compel arbitration, the