United States District Court, N.D. California
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS.
MARIA-ELENA JAMES, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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
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.
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.
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. 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.
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).
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.
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.
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.”).
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.”).
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,
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).
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
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, ...