Smith v. Equitable

27 F. Supp. 2d 565, 1998 U.S. Dist. LEXIS 19171, 78 Fair Empl. Prac. Cas. (BNA) 1817, 1998 WL 855500
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 8, 1998
DocketNo. CIV.A. 98-1264
StatusPublished
Cited by4 cases

This text of 27 F. Supp. 2d 565 (Smith v. Equitable) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Equitable, 27 F. Supp. 2d 565, 1998 U.S. Dist. LEXIS 19171, 78 Fair Empl. Prac. Cas. (BNA) 1817, 1998 WL 855500 (E.D. Pa. 1998).

Opinion

MEMORANDUM AND ORDER

JOYNER, District Judge.

Presently before the Court is Defendant, The Equitable’s (“Equitable” or “Defendant”), Motion to Compel Arbitration of Plaintiffs claims and to Dismiss Plaintiffs complaint. Plaintiff, C. Leon Smith’s (“Smith” or “Plaintiff’), complaint alleges claims for employment discrimination under 42 U.S.C. § 2000e et. seq. (Title VII), 42 [567]*567U.S.C. § 1981, and the Pennsylvania Human Relations Act (the “PHRA”) as well as Pennsylvania state law claims for defamation, promissory estoppel, and intentional infliction of emotional distress. For the following reasons, Defendant’s Motion to Compel Arbitration is granted and Plaintiffs complaint is dismissed without prejudice.

BACKGROUND

Plaintiffs claims arise out of a pre-employment agreement he entered into with Defendant. At the end of 1996, Plaintiff applied to Defendant for a position selling “Series 6” annuities. Joseph McDonough (“McDon-ough”), a District Manager for Defendant, interviewed Plaintiff and forwarded Plaintiffs resume to Joel Albert (“Albert”), an Agency Manager for Defendant. McDon-ough informed Albert he was interested in hiring Plaintiff, but Albert allegedly was not interested in hiring Plaintiff because Plaintiff was African-American.

Nonetheless, in mid-January 1997, McDon-ough offered Plaintiff a pre-employment contract to sell securities. Under this contract, Plaintiff was a “Prospective Agent” and was attempting to “qualify for employment” with Defendant. The terms of the pre-employment agreement also provided that Plaintiff would secure registration with the National Association of Securities Dealers (“NASD”) during the pre-contract training period.

Plaintiff alleges that from January through June of 1997, while he was under the pre-employment agreement, he was prevented from selling securities by Albert. In June of 1997, Plaintiff allegedly received a letter from Albert withdrawing the pre-employment agreement. Plaintiff then filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and received a right to sue letter on December 10, 1997. Plaintiff filed his complaint in this Court on March 10,1998.

DISCUSSION

7. Motion to Compel Arbitration

Defendant argues that Plaintiff should be compelled to arbitrate his claims because Plaintiff agreed to arbitrate these claims in the NASD registration form. Defendant’s pre-employment agreement required Plaintiff to secure NASD registration. In order to do so, Plaintiff had to execute and file a Uniform Application for Securities Industry Registration or Transfer (the “U-4 Application”) with NASD. Plaintiff executed the U-4 Application on January 9,1997.

The U-4 Application provides that Smith agrees “to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations indicated in Item 10.... ” (U-A Application at ¶ 5). Item 10 of Plaintiffs U-4 Application indicates that he registered with NASD. The NASD Code of Arbitration Procedure requires arbitration of “any dispute, claim or controversy arising out of or in connection with the business of any members of the [NASD], or arising out of the employment or termination of employment of associated person(s) with any member ... (a) between or among members [and] (b) between or among members and associated persons.” NASD Manual — Code of Arbitration Procedure Rule 10101 (1997).

Defendant argues that Plaintiffs claims in the instant case all arise out of Smith’s potential employment with Defendant and, thus, they must be arbitrated. Plaintiff responds that the current claims are not subject to arbitration because he was never an employee of Defendant and because he was fraudulently induced to sign the U-4 Application.1

A. Legal Standard Governing Arbitration

There is a strong federal policy “ ‘favoring arbitration.’ ” Seus v. John Nu-[568]*568veen & Co., Inc., 146 F.3d 175, 178 (3d Cir.1998)(quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991)). When interpreting an agreement to arbitrate, “ ‘all ambiguities must be resolved in favor of arbi-trability.’” Id. at 186 (quoting Armijo v. Prudential Ins. Co. of Am., 72 F.3d 793, 798 (10th Cir.1995)). “Motions to compel arbitration under an arbitration clause should not be denied ‘unless it can be said with positive assurance that the arbitration clause is not susceptible [to] an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ ” Zandford v. Prudential-Bache Securities, Inc., 112 F.3d 723, 727 (4th Cir.l997)(internal citations and quotation marks omitted). In determining whether to require arbitration in this case, we must determine whether there “is a binding agreement to arbitrate between the parties and, if so, whether this dispute is within the scope of that agreement.” Seus, 146 F.3d at 178.

B. Plaintiffs Claims That He Was Not An Employee

Plaintiff argues that there was not a binding agreement to arbitrate between the parties because he was not an employee of Equitable. Plaintiff argues that he was only engaged in a pre-employment contract with Defendant and that he had not actively sold anything for Defendant. Therefore, Plaintiff argues that the NASD requirement that employment-related disputes be arbitrated does not apply to him.

NASD requires arbitration of all suits “arising out of or in connection with the business of any members of the [NASD], or arising out of the employment or termination of employment of associated person(s)2 with any member....” NASD Manual — Code of Arbitration Procedure Rule 10101 (1997). Plaintiffs current “failure to hire” and related state law claims arise out of the pre-employment contract entered into between Plaintiff and Defendant. Accordingly, we find that Plaintiffs current claims either arise out of or in connection with the business of a NASD member or arise out the employment or termination of employment of an associated person with any member. Therefore, Plaintiffs claims constitute the type of claims anticipated by the language of the U-4 Application and the NASD Code of Arbitration Procedure. See generally Seus, 146 F.3d at 186; Thomas James Associates, Inc. v. Jameson, 102 F.3d 60, 65-66 (2d Cir.1996)(stating that NASD Arbitration Procedure applies to “employment-related disputes”); Francis v. Marshall, 661 F.Supp. 773, 775 (D.Mass.1987)(reeognizing broad scope of NASD arbitration clause).

C. Plaintiffs Claims That He Was Fraudulently Induced to Sign U-f Application

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Bluebook (online)
27 F. Supp. 2d 565, 1998 U.S. Dist. LEXIS 19171, 78 Fair Empl. Prac. Cas. (BNA) 1817, 1998 WL 855500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-equitable-paed-1998.