United States District Court, D. Massachusetts
ORDER ON DEFENDANT’S MOTION TO COMPEL ARBITRATION
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Plaintiff Vincent Barrasso (“Mr. Barrasso”) filed this action against his former employer, Macy’s Retail Holdings, Inc. (“Macy’s”), alleging age discrimination, disability discrimination, and unlawful retaliation, all in violation of the Massachusetts Fair Employment Practices Act, Mass. Gen. Laws c. 151B. Mr. Barrasso initially filed his Complaint in Massachusetts Superior Court, and Macy’s removed the case to federal District Court on the grounds of diversity jurisdiction. After removal, Macy’s filed a Motion to Compel Arbitration under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. [ECF No. 10], arguing that all of Mr. Barrasso’s claims are subject to mandatory arbitration. For the reasons set forth in this Memorandum and Order, Macy’s Motion is ALLOWED, and this action is STAYED pending the completion of arbitration.
A. Mr. Barrasso’s hire and termination
On October 11, 2011, Mr. Barrasso began working as a Sales Manager in the men’s department of a Macy’s store in Burlington, Massachusetts. See Complaint [ECF No. 7] (hereinafter “Compl.”) ¶ 6. Mr. Barrasso, who was born in 1951, was approximately sixty years old when he began working for Macy’s. See id. ¶ 4.
Mr. Barrasso alleges that he received a great performance review in 2011 and achieved increased sales in all departments. Compl. ¶¶ 7, 9. In May of 2012, Macy’s appointed a new District Manager. Id. ¶ 13. Plaintiff alleges that the new District Manager instructed Macy’s sales managers to “get rid of” underperforming associates. Id. ¶¶ 18-19. Subsequently, the Assistant Store Manager in Burlington had a conversation with Mr. Barrasso, in which the manager identified several associates in Mr. Barrasso’s departments who should be “coached out” of their positions (i.e., dismissed). Id. ¶ 21. Those individuals included a 72-year-old sales associate, a 67 year old sales associate, and someone who had worked for Macy’s for 20 years. Id. ¶ 22. Mr. Barrasso alleges that he protested to the Human Resource Manager, telling her that it would be wrong to terminate these employees, and that he refused to do so. Id. ¶¶ 25-26. The Human Resource Manager allegedly “agreed and conceded that there were younger associates doing worse on their scorecards.” Id. ¶ 27.
On August 25, 2013, Mr. Barrasso allegedly injured his back while closing the store. Id. ¶¶ 28-29. He took two days off from work, but when he returned, the pain was intolerable. Id. ¶¶ 33-35. He later sought medical attention and was told he had a pinched nerve. Id. ¶ 36. Mr. Barrasso made an appointment to see a neurosurgeon two weeks later. Id. ¶ 38. In the meantime, he took two additional days off from work, “despite pressure that was being placed upon him by the Assistant Store Manager, ” who allegedly called Mr. Barrasso and sent at least three text messages instructing him to return to work immediately. Id. ¶ 39. Mr. Barrasso returned to work on August 30, 2013 and allegedly worked for two more weeks, despite his pain. Id. ¶ 40. On September 13, 2013, Mr. Barrasso saw a neurosurgeon, who prescribed medication, physical therapy, and a week’s rest from work. Id. ¶ 43. Mr. Barrasso returned to work at Macy’s one week later, but continued to experience pain. Id. ¶ 44. The doctor told Mr. Barrasso to take eight to nine days off work, and instructed that when he returned to work, he should not lift more than 15 pounds or perform any twisting maneuvers. Id. ¶¶ 46-49.
When Mr. Barrasso returned to work at Macy’s, he found that he had “a lot of catching up to do, ” and he alleges that the Assistant Store Manager put “considerable pressure” on him to address certain issues that had arisen during his absence. Id. ¶ 51. On October 25, 2013, Mr. Barrasso was called into a meeting with the Store Manager, Julie Emery. Id. ¶ 52. She informed him that his performance was “not up to company standards” and terminated his employment with Macy’s. Id. ¶ 54. Mr. Barrasso maintains that he never received any documentation stating the reason(s) he was fired. Id. ¶ 55. He also alleges that he was replaced by a “22-year-old college graduate.” Id. ¶ 57.
Mr. Barrasso further alleges that sometime prior to his termination, he had attended a sales meeting, during which Ms. Emery announced that Macy’s planned to recruit “millennial age” candidates for sales’ manager positions. Id. ¶ 59. She allegedly looked at Mr. Barrasso and stated “Vincent is not a millennial.” Id. ¶ 61.
B. The Solutions InSTORE Arbitration Program
Macy’s uses a comprehensive early dispute resolution program known as “Solutions InSTORE” to resolve employment disputes. See Declaration of Matthew Melody [ECF No. 13] (“Melody Decl.”) ¶ 4. Solutions InSTORE, which applies to all Macy’s employees, contains four separate steps for the resolution of disputes. Id. ¶¶ 4, 8. If a dispute is not resolved early in the process, the fourth and final step is to submit the claim to binding arbitration. Id. ¶ 8. All employees, however, are given the choice to opt out of the binding arbitration program by mailing back an “opt out” election form within 30 days from their date of hire. Id. ¶ 10.
Mr. Barrasso claims that at the time of his hiring in October 2011, Macy’s presented him with a “blizzard” of documents and forms that he was told to sign electronically. See Affidavit of V. Barrasso [ECF No. 14-1] (“Barrasso Aff.”) ¶ 4. Mr. Barrasso alleges that he signed the forms within the first hour or two of being hired because he “wanted to be cooperative, ” but he claims that he “did not fully understand the import” of some of the documents. Id. ¶ 6. He also alleges that Macy’s did not advise him to consult with counsel before signing the documents. Id. ¶ 7.
One of the documents Mr. Barrasso electronically was the Solutions InSTORE New Hire Acknowledgement. See Declaration of R. Veeraraghavan [ECF No. 12] (“Veeraraghavan Decl.”) ¶¶ 4, 14. By signing the New Hire Acknowledgement, Mr. Barrasso confirmed that he had received a copy of the “Solutions InSTORE brochure and Plan Document.” Id. Ex. H. He also confirmed that he understood he was “covered by” and “agreed to use all 4 steps of Solutions InSTORE automatically by taking or continuing a job in any part of Macy’s Inc.” Id. The New Hire Acknowledgement explained that “[t]his means that if at any time I have a dispute or claim relating to my employment, it will be resolved using the Solutions InSTORE process described in the brochure and Plan Document.” Id. The New Hire Acknowledgement further explained that the InSTORE process includes arbitration, where disputes are “resolved by a professional not affiliated with Macy’s, Inc. in an arbitration proceeding, instead of by a judge or jury in a court proceeding.” Id. Finally, by signing the New Hire Acknowledgement, Mr. Barrasso confirmed that he understood that he could opt out of the InSTORE arbitration procedure by mailing in an opt-out election form within 30 days of hire. See id. Mr. Barrasso, however, did not return the opt-out election form. Melody Decl. ¶ 29.
The operative arbitration agreement is found in the Solutions InSTORE brochure and Plan Document, which Macy’s claims it provided to Mr. Barrasso at the time of his hire. See Melody Decl. ¶ 21 & Ex. B.
Article 2 of the “Arbitration Rules and Procedures” provides in relevant part as follows:
Except as otherwise limited, all employment-related legal disputes, controversies or claims arising out of, or relating to, employment or cessation of employment, whether arising under federal, state or local decisional or statutory law (“Employment-Related Claims”), shall be settled exclusively by final and binding arbitration. Arbitration is administered by the American Arbitration Association (“AAA”) under these Solutions InSTORE Early Dispute Resolution Rules and Procedures and the employment arbitration portion of the AAA’s Employment Arbitration Rules and Mediation Procedures. Arbitration is held before a neutral, third-party Arbitrator.
. . .
All unasserted employment-related claims as of January 1, 2007 arising under federal, state or local statutory or common law, shall be subject to arbitration. Merely by way of example, Employment-Related Claims include, but are not limited to, claims arising under the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), 42 U.S.C. § 1981 . . . state discrimination statues, state statutes, and/or common law regulating employment termination, misappropriation, breach of the duty of loyalty, the law of contract or the law of tort; including, but ...