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Bayer v. Neiman Marcus Group, Inc.

United States District Court, N.D. California

May 30, 2018

TAYLER BAYER, Plaintiff,
v.
NEIMAN MARCUS GROUP, INC., Defendant.

          ORDER RE: MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 28, 34

          MARIA-ELENA JAMES, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         In this action, Plaintiff Tayler Bayer, a former employee of Defendant Neiman Marcus Group, Inc. (NMG), brings a single claim for wrongful interference of his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12203. Pending before the Court are the parties' cross-motions for summary judgment. Pl.'s Mot. for Summ. J. (PMSJ), Dkt. No. 28; Def.'s Mot. for Summ. J. (DMSJ), Dkt. No. 34. The Court finds this matter suitable for disposition without oral argument. Fed.R.Civ.P. 78(b); Civ. L.R. 7-1(b). Having considered the parties' positions, the relevant legal authority, and the record in this case, the Court DENIES Defendant's Motion and DENIES Plaintiff's Motion for the reasons set forth below.

         BACKGROUND

         A. Lawsuit #1

         NMG is a national retailer of luxury goods and operates a chain of high-end retail department stores. Joint Statement of Undisputed Facts (JSUF) ¶ 44, Dkt. No. 74. Bayer joined NMG in March 2006; he regularly worked five six-hour shifts in the Cosmetics Department of the San Francisco store as a Product Specialist. JSUF ¶¶ 5, 45.

         In March 2007, Bayer was placed on medical leave by his doctor due to respiratory problems, and remained on FMLA leave for a medical condition through May 2007. JSUF ¶¶ 6, 46. Bayer's physician released him to return to work at the start of June 2007, subject to certain restrictions, including that he work no more than four days per week. JSUF ¶¶ 7-8, 47. Bayer asked NMG to modify his existing 30-hour schedule from five six-hour shifts to four seven-and-a-half hour shifts, which would enable him to continue working 30 hours a week. JSUF ¶ 10. NMG employees who worked an average of at least 30 hours a week were considered full time and eligible to receive certain medical benefits, including medical insurance. JSUF ¶ 4. On or about June 8, 2007, NMG declined to modify Bayer's schedule in the manner requested. JSUF ¶ 11. Instead, NMG allowed Bayer to reduce his days of work from five to four, with intermittent FMLA leave on the fifth day. JSUF ¶ 48. This proposed accommodation would reduce Bayer's weekly hours below 30 per week. JSUF ¶ 49.

         Bayer filed an administrative complaint with the EEOC for his reasonable accommodation charge on June 20, 2007. JSUF ¶¶ 13, 53 (EEOC Charge #1). In October 2007, the EEOC issued a right-to-sue letter for Bayer's EEOC Charge #1 (JSUF ¶ 31), and Bayer brought suit against Neiman Marcus in January 2008 (Tayler Bayer v. Neiman Marcus Holdings, Inc., N.D. Cal. No. CV-08-0480-PJH) (Lawsuit #1) (JSUF ¶ 32). The parties settled Lawsuit #1. JSUF ¶ 69.

         B. Lawsuit #2

         NMG terminated Bayer's employer in January 2009, after which Bayer filed another EEOC charge, alleging that NMG's termination was in retaliation for his previous EEOC charges. JSUF ¶ 66; Bayer Decl., Ex. O (EEOC Charge #3), Dkt. No. 31.[1] After the EEOC issued a right-to-sue letter with respect to EEOC Charge #3, Bayer filed another federal court lawsuit alleging that Neiman Marcus had wrongfully terminated him in violation of the ADA's anti-retaliation provisions. Tayler Bayer v. Neiman Marcus Gp., Inc., N.D. Cal. No. CV-11-03705-MEJ (Lawsuit #2); JSUF ¶ 66.

         In Lawsuit #2, Neiman Marcus filed a Motion to Compel Arbitration. JSUF ¶ 67. In November 2011, this Court denied Neiman Marcus's motion to compel arbitration on the ground that Bayer had never consented to be bound. JSUF ¶ II.100.[2] Neiman Marcus appealed that order; on July 3, 2014, the Ninth Circuit affirmed the Court's refusal to compel arbitration, holding that Bayer had never consented to be bound by Neiman Marcus's Arbitration Agreement and therefore was not required to arbitrate his claims of unlawful retaliation. Bayer v. Neiman Marcus Grp., Inc., 2014 U.S. App. LEXIS 12645, Ninth Circuit No. 11-17920 (July 3, 2014) (Thomas, McKeown, Kendall, JJ.) (unpub.); JSUF ¶¶ 68, II.100. Lawsuit #2 settled after remand. Lawsuit #2, Dkt. Nos. 54, 56.

         C. Lawsuit #3

         The events giving rise to this case occurred around the time Bayer filed his administrative complaint on EEOC Charge #1 for failure to accommodate. On June 11, 2007, NMG mailed a notice informing its employees that it was adopting an alternative dispute resolution (ADR) program called “NMG Resolutions.” JSUF ¶ II.7; see also Bayer Decl., Ex. I (June 11, 2007 Memorandum “explain[ing] a new program for resolving all workplace disputes”). NMG Resolutions established a dispute resolution process, under which a dispute would proceed to arbitration if it could not be resolved informally. JSUF II.8; June 11, 2007 Memorandum. Bayer received the June 11, 2007 Memorandum; subsequently, on June 20, 2007, he received in the mail a package from NMG explaining that it was adopting a multi-faceted alternative dispute resolution (ADR) program. JSUF ¶¶ 15, 50-52, 54-55, II.10. The NMG package included information on NMG Resolutions. JSUF ¶ 15; see also Bayer Decl., Ex. G (NMG Resolutions: A 4-Step Process “NMG 4-Step”). The NMG package also included a Mandatory Arbitration Agreement, which described the terms of the arbitration process. Bayer Decl., Ex. E (the “Arbitration Agreement”). The Acknowledgment Form that accompanied the Arbitration Agreement stated that employees, by signing the form, acknowledged they understood the Arbitration Agreement

requires me to submit all complaints, disputes, and legal claims (“Disputes”) I have against the Company, and the Company to submit all Disputes it has against me, to binding arbitration. . . both I and the Company are waiving the right to a trial by jury or to a trial before a judge in a court of law on all Disputes. Instead, all Disputes must be submitted to final and binding arbitration. . . . [T]he Arbitration Agreement is not optional. Rather, it is mandatory and a condition and term of my employment if I am employed or continue employment on or after July 15, 2007.

JSUF ¶ 17 (emphases in original); see also Bayer Decl., Ex. F (the “Arbitration Agreement Acknowledgment Form”). The Arbitration Agreement reflected the same provisions (without emphases), and also stated: “Each covered employee's employment or continued employment with the Company after the Effective Date constitutes assent, acceptance, consent and consideration for this Agreement to arbitrate, both during the time of employment and after termination of employment.” JSUF ¶ 18; see also Bayer Decl., Ex. H (Frequently Asked Questions (FAQs) relating to the Arbitration Agreement); JSUF ¶ 19 (FAQs in package reiterated that employees would be deemed to have accepted the terms of the Arbitration Agreement if they continued employment with NMG after July 15, 2007).

         Bayer understood the Arbitration Agreement required him and NMG to submit to binding arbitration and to waive the right to a jury trial; he also understood that if he continued to work after July 15, 2007, NMG would consider him subject to the Arbitration Agreement. JSUF ¶ 58.

         By July 9, 2007, Bayer had retained an attorney to assist him in responding to NMG's arbitration program; he filed a second EEOC charge against NMG on July 9, 2007 (EEOC Charge #2). JSUF ¶¶ 25-27, II.40; see also Bayer Decl., Ex. K (EEOC Charge #2). This second EEOC charge, which gives rise to this lawsuit, alleges that NMG unlawfully limited Bayer's civil rights by requiring him to sign the Arbitration Agreement which contained several illegal provisions, including a prohibition on class actions, a one-year statute of limitations, a limit of three depositions, a requirement that all arbitrators be members of the Texas Bar, and that federal claims be governed by Fifth Circuit law. EEOC Charge #2 further alleges that being required to sign the Arbitration Agreement violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, and the Americans with Disabilities Act of 1990. See Bayer Decl., Ex. K.

         Bayer informed NMG during the first half of July 2007 that he would not sign the Acknowledgment Form, would not agree or consent to the Arbitration Agreement, and refused to be bound by the Arbitration Agreement. JSUF ¶¶ 27, 59-62; see also Bayer Decl. ¶ 13 & Ex. L (July 10, 2007 letter to NMG expressing Bayer declines to sign or be bound by Arbitration Agreement based on its illegality, and stating: “As you know I have already filed a charge of discrimination with the EEOC which is presently pending. I have also filed a second charge relating to the imposition of this arbitration agreement.”).

         Bayer testified that two NMG managers, Liza Clay and Lily Tang Lamb, told him that if he did not sign, he could be terminated. Bayer Dep. at 56:8-58:24, 83:1-5, Dkt. No. 35-3; see also Bayer Aff. at 2, Dkt. No. 34-6. On June 29th, Clay asked Bayer if he had read the Arbitration Agreement and if he was going to turn in the Acknowledgment Form, then said: “You realize you can be terminated and you are choosing not to be a Neman Marcus employee? Your last day can be July 14.” Bayer Dep. at 57:10-25. Clay then stated she would make an appointment for Bayer to meet with Greg Carlson in HR to discuss the Arbitration Agreement; Bayer followed up with Carlson, but the meeting never took place. Id. at 57:25-58:5. Clay told Bayer once more in July that he was choosing to not be an employee if he did not sign the forms. Id. at 58:6-21. He had a similar conversation with Tang Lamb in July. Id. at 60:1-19 (Tang Lamb asked Bayer whether he had signed the form yet, and told him “this is the deadline and you can be terminated”), id. at 66:3-22. In addition to the conversations with Clay and Tang Lamb, Bayer testified that HR personnel at NMG asked him where the completed form was “a couple more times.” Id. at 86:22-87:20. These were the only verbal statements anyone at NMG made to Bayer that he believes were coercive in an attempt to get him to sign the Acknowledgment Form. Id. at 87:4-9. Clay and Tang Lamb deny they ever made such representations to Bayer. Clay Decl. ¶ 12, Dkt. No. 34-2; Tang Decl. ¶¶ 9-10, Dkt. No. 34-4; see also Hale Decl. ¶¶ 6-9, Dkt. No. 34-3 (describing process NMG HR followed when employees refused to sign Acknowledgment Form, and declaring she “would not have told any employee that they could be terminated if they did not sign the acknowledgement form and do not believe Mr. Carlson would have done so, either.”).

         No one ordered Bayer to sign the Acknowledgment Form or disciplined him when he refused. JSUF ¶¶ II.29. Bayer reported to work on July 15, 2007; despite his refusal to sign the Acknowledgment Form and his refusal to be bound by the Arbitration Agreement, Bayer continued to work at NMG until he was terminated in January 2009. JSUF ¶¶ 29, 64, II.99.

         Bayer declares his managers never said anything further to him about the Arbitration Agreement after July 15, 2007. Bayer Decl. ¶ 16. On several occasions, however, NMG sent him new forms that referred to the arbitration program, and Bayer refused to sign those forms, too. Id.; see also id., Ex. M (Nov. 28, 2007 letter to NMG reiterating refusal and reasons therefore).

         The EEOC's investigation into Bayer's EEOC Charge #2 continued for several years. It was not until July 2013, six years after Bayer filed EEOC Charge #2, that the EEOC issued a right-to-sue letter with respect to EEOC Charge #2. JSUF ¶ II.90; Bayer Decl., Ex. Q (the EEOC found reasonable cause to believe that violations of the statute(s) occurred with respect to some or all of the matters alleged in the charge).

         Bayer filed the present lawsuit, based on EEOC Charge #2, in September 2013 (Lawsuit #3). Lawsuit #3 alleges that Neiman Marcus's insistence in June and July 2007 that he choose between quitting his job and being bound by its Arbitration Agreement violated Section 503(b) of the ADA. JSUF ¶ II.91; see also Compl. ¶¶ 28-44, Dkt. No. 1. In addition to damages, Plaintiff sought a declaration that the Arbitration Agreement is “unlawful, ...


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