This case involves a race discrimination claim brought by the plaintiff, Patricia Russell Brown, against her former employer, Dorsey & Whitney, LLP ("Dorsey"). Currently before the Court is the defendant's Motion to Dismiss and Compel Arbitration [#8, #12], which is opposed by the plaintiff.*fn1 For the reasons set forth below, the Court concludes that plaintiff must submit her claims to binding arbitration in accordance with the Employment Agreement she signed.
Patricia Russell Brown is an attorney who was formerly employed by the defendant law firm. Plaintiff is a graduate of Princeton University, where she received a Bachelor of Science in Chemical Engineering, and Harvard University, where she obtained her law degree. Compl. ¶ 4.*fn2 Prior to joining Dorsey, plaintiff was employed by two separate law firms; she worked at the first firm for a period of approximately five years and at the second firm for approximately two years. Defendant's Reply Memorandum in Support of Defendant's Motion to Dismiss and Compel Arbitration ("Def.'s Reply"), Exhibit ("Ex.") A (Resume of Patricia Russell Brown). Plaintiff was hired by Dorsey"[o]n or about October 16, 2000... as an associate attorney to manage the trademark prosecution practice in [Dorsey's] Washington, D.C. office." Compl. ¶ 8. Plaintiff has filed this lawsuit against Dorsey for alleged racial discrimination in violation of 42 U.S.C. § 1981 (2000) and the D.C. Human Rights Act ("DCHRA"), D.C. Code §§ 2-1401.01 - 2-1411.06 (2001). She alleges that she was the victim of racial discrimination as"the only African-American female manager in the [defendant's] trademark group" and she contends that she was made"responsible for performing the duties of a legal assistant" in addition to the duties of an associate without receiving"any additional compensation." Id. ¶¶ 11, 13. Plaintiff seeks to recover compensatory damages, punitive damages, as well as damages for lost income, pre- and post-judgment interest, and attorney's fees. Id. ¶¶ 51-55.
A. The Parties' Arguments
Defendant contends that this case should be dismissed because plaintiff is required to submit her claims to arbitration. Defendant does not challenge in its dismissal motion the validity of Brown's allegations of discrimination; it simply argues that any dispute that Brown has with Dorsey must be submitted to binding arbitration. This, it argues, is the result called for by the Employment Agreement*fn3 that Brown signed when she joined the firm. Specifically, the Employment Agreement provides, in part:
11. You agree to be bound by the policies of the Firm, as adopted from time to time, including our dispute resolution policy. Additional information concerning these policies will be provided when you begin employment. In the meantime, if you wish to receive a copy of the dispute resolution policy, let me know.
Defendant's Memorandum in Support of Defendant's Motion to Dismiss and Compel Arbitration ("Def.'s Mem."), Ex. A (Declaration of Joan Oyaas, Chief Organization Development Officer for Dorsey & Whitney dated January 28, 2003) ("Oyaas Decl."), Ex. 2 (Employment Agreement signed by Patricia Brown on September 26, 2002). The part of Dorsey's dispute resolution policy that Dorsey claims is applicable to Brown is entitled"Dispute Resolution Policy for Support Staff and Non-Partner Lawyers." It provides, in pertinent part:
As a condition of employment, any claims or disputes of any nature between an employee and the firm or any of its partners or employees shall be resolved exclusively by arbitration before the American Arbitration Association in Minneapolis, Minnesota pursuant to the Association's rules for commercial arbitration, but only after all internal resolution efforts have been exhausted. Minnesota law shall be the substantive law applied in any dispute. The venue for any dispute resolution shall be Minneapolis, Minnesota, in the case of lawyers and other exempt employees... The decision of the Arbitrator(s) shall be final and binding upon both parties. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. Regardless of whether a claim is arbitrated, any claim by either party for punitive damages is hereby waived.**... To the extent any clause or provision of this paragraph shall be determined to be invalid or unenforceable, or shall be determined to be invalid or unenforceable as applied to certain claims or issues, such determination shall not in any manner alter or affect either the validity and enforceability of the remainder of the paragraph or the validity and enforceability of the clause or provision in question as applied to any other claim or issue.
Oyaas Decl., Ex. 1 (Dorsey & Whitney Conflict Resolution Policy) at 1-2. This document was not given to Brown at the time she signed her employment agreement, although she was advised earlier that she could receive a copy upon her request. The Employment Agreement also provided:
We hope we have answered your questions about Dorsey & Whitney LLP. If you need answers to any outstanding questions or clarification of any of the terms and conditions set forth in this letter, please feel free to call me at [telephone number omitted]. We ask that you get back to us with your decision within two weeks since we are holding this position open for you. If you need some additional time, please let us know as we would be happy to review your request. We also hope you find our offer of employment acceptable and to your satisfaction.
Oyaas Decl. Ex. 2 (Employment Agreement). Brown signed and dated the Employment Agreement on September 26, 2000.
Defendant argues that the language of the Employment Agreement, which stated that plaintiff agreed to be bound to the firm's"dispute resolution policy," mandates that plaintiff's claims of racial discrimination be submitted to arbitration, in accordance with the agreement plaintiff signed. Def.'s Mem. at 2. In addition, in anticipation of plaintiff's arguments in opposition to its position, defendant states that it will waive the"two provisions that Brown may contend prejudice her rights or otherwise inconvenience her: the provision precluding recovery of punitive damages and the provision requiring arbitration to take place in Minneapolis, Minnesota." Id. at 5.*fn4
In opposition, plaintiff argues that the defendant's employment agreement is unconscionable, and hence unenforceable. Memorandum of Points and Authorities in Support of Plaintiff Patricia Russell Brown's Opposition to Defendant's Motion to Dismiss and Compel Arbitration ("Pl.'s Opp'n") at 5. The agreement is unenforceable, plaintiff argues, because (1) plaintiff"was denied meaningful choice in deciding whether or not to sign the provision due to the fact that the [d]efendant intentionally failed to disclose [to her the] binding arbitration provision[,]" id. at 6; (2) the terms of the agreement"unreasonably favor[ed] the [d]efendant[,]" id. at 8; and (3) the arbitration provision does not provide plaintiff with the full array of relief that she is entitled to under 42 U.S.C. § 1981 and the D.C. Human Rights Act, particularly in light of the waiver of punitive damages and the choice of law and forum selection clauses. Id. at 12, 18. For these reasons, plaintiff argues that the Court should conduct a summary trial, pursuant to 9 U.S.C. § 4 (2000), because the facts suggest that plaintiff was fraudulently induced into signing the agreement, defendant misrepresented or failed to represent the material terms of the agreement, defendant had the intent to deceive plaintiff to induce her to sign the agreement, and plaintiff relied upon a reasonable interpretation of the term"dispute resolution policy" as not encompassing binding arbitration and the waiver of her rights to a trial by jury and punitive damages. Id. at 16-26. Finally, plaintiff argues that arbitration should not be required in this case because it is not clear that the parties agreed to arbitrate and, in the absence of clear evidence supporting a finding that both parties so agreed, a trial should be had to determine whether there was an"unequivocal agreement to that effect." Id. at 28 (citing 9 U.S.C. § 4; Smith Wilson Co. v. Trading & Dev. Establishment, 744 F. Supp. 14, 17 (D.C. Cir. 1990) (quoting Par-Knit Mills v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980)).
Defendant has filed a motion to dismiss"[p]ursuant to Federal Rule of Civil Procedure 12..." Def.'s Mem. at 1. Defendant does not state under which subsection of Rule 12 it seeks dismissal. Plaintiff does not address the applicable standard of review either, although she does cite cases in her opposition regarding the standard of review that applies when the Court considers a motion to dismiss for failure to state a claim. See Pl.'s Opp'n at 4. Both parties have attached documents to their pleadings, including declarations and affidavits, as well as the Employment Agreement at issue and the defendant's dispute resolution policy.
Technically, the defendant's motion does not"come within the ambit of Rule 12(b) of the Federal Rules of Civil Procedure, which allows a defendant to move to dismiss on, among other things, grounds that the court lacks subject matter jurisdiction or that the plaintiff's claim fails to state a claim upon which relief can be granted." Raasch v. NCR Corp., No. CIV.A. 3-02-272, 2003 WL 1790748, at *1 (S.D. Ohio 2003). Pursuant to § 4 of the Federal Arbitration Act ("FAA" or"Act"), 9 U.S.C. § 1, et seq. (2000), the defendant is entitled to"petition... [the] district court which, save for such agreement, would have jurisdiction... for an order directing that such arbitration proceed in the manner provided for in such agreement." However,"the Act itself does not state that a document entitled'motion to compel' must be filed to trigger the protections of the Act, but states that the party must'petition' the court for an order directing arbitration to proceed. Courts, therefore, have allowed the party to'petition' the court through the use of a motion to dismiss for lack of subject matter jurisdiction." Thompson v. Nienaber, 239 F. Supp. 2d 478, 483 (D.N.J. 2002). Because strict nomenclature regarding how a motion is titled is not required,"[t]he district court, when considering a motion to compel arbitration which is opposed on the ground that no agreement to arbitrate has been made between the parties, should give to the opposing party the benefit of all reasonable doubts and inferences that may arise.... [I]nasmuch as the district court's order to arbitrate is in effect a summary disposition of the issue of whether or not there had been a meeting of the minds on the agreement to arbitrate[,]" consideration of the motion according to the"standard used by district courts in resolving summary judgment motions pursuant to Fed. R. Civ. P. 56(c)... is appropriate." Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54 & n.9 (3d Cir. 1980). Thus,"[a]lthough styled as a motion to dismiss, in a motion to stay proceedings and/or compel arbitration, the appropriate standard of review for the district court is the same standard used in resolving summary judgment motions pursuant to Fed. R. Civ. P. 56(c)." Technetronics v. Leybold-Geaeus GMBH, No. CIV.A. 93-1254, 1993 WL 197028, at *2 (E.D. Pa. 1993) (citations omitted); see also Nelson v. Insignia ESG, Inc., 215 F. Supp. 2d 143, 147 (D.D.C. 2002) (Walton, J.) (holding that"summary judgment [was] the proper procedural mechanism to use in evaluating whether the plaintiff must submit her claims to arbitration.").
Consistent with the above case authority, the Court concludes that the proper approach to employ in reviewing the defendant's motion to dismiss and compel arbitration is to apply the same standard of review that governs Rule 56 motions. Both parties have submitted to the Court with their pleadings documents that were not part of the complaint – namely, the parties' Employment Agreement, the defendant's dispute resolution policy, the plaintiff's affidavit, the declaration submitted by the defendant, and the plaintiff's resume – for the Court's consideration in addressing defendant's motion. Normally when a district court decides to convert a motion to dismiss under Rule 12 to one for summary judgment pursuant to Rule 56 because it has decided to consider matters outside of the complaint and answer in addressing the motion, notice and the opportunity to supplement the record must be afforded. See Gordon v. Nat'l Youth Work Alliance, 675 F.2d 356, 361 (D.C. Cir. 1982) ("Under either Rule 12(b)(1) or Rule 12(b)(6), a court need not consider matters outside the pleadings at all. But once it decides to consult such matters it should so inform the parties and set a schedule for submitting additional affidavits and documents if the parties wish."). Neither is necessary here, however, for several reasons. First, the Court is not actually affecting a conversion for review under Rule 56, but is rather construing the motion for what it really is – a motion to compel arbitration pursuant to 9 U.S.C. § 4 – and applying the Rule 56 standard of review in addressing the merits of the motion. A similar situation was faced by the court in Thompson, where the defendants filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) in lieu of a motion to compel arbitration pursuant to 9 U.S.C. § 4. 239 F. Supp. 2d at 483. However, the Thompson court did not"dismiss the action because the wrong document was filed [since] the defendants would undoubtedly file a motion to compel arbitration and the parties would present the same arguments as presented here." Id. at 484. The court stated that it would therefore"avoid such a'hypertechnical' ruling that would inevitably lead to duplicative litigation..." Id. Thus, the Thompson court considered whether the defendants were entitled to the relief they actually had requested despite how the motion had been titled, namely, whether the parties' dispute should be submitted to arbitration. The court did so in light of the fact that
all parties to the... dispute were fully aware that [the defendants'] motion dealt with the arbitrability of their dispute and had the opportunity to respond appropriately. Defendants clearly argued that'[g]iven the broad arbitration clause in the Agreement... there is no doubt that the arbitration clause governs this dispute and this Court lacks jurisdiction over this matter.'... Counsel for plaintiffs responded that this Court should handle the matter'regardless of whether an alternative dispute process has been initiated....
Similarly, in the case before this Court, plaintiff was fully aware that the defendant was seeking to have the Court compel arbitration and both parties have submitted documentary evidence along with their pleadings that were submitted in support of their respective positions. It is inconceivable that the parties did not submit everything relevant to the subject, and accordingly there is no reason to delay issuing a decision on the arbitration question to afford the parties further opportunity to supplement the record. See Hollis v. United States Dep't of Army, 856 F.2d 1541, 1544 (D.C. Cir. 1988) (holding that district court did not err in converting defendant's motion to dismiss into one for summary judgment without providing notice to the parties and the opportunity to submit additional materials."Since Rule 12(b)'s notice-and-opportunity requirement is designed to'insure [ ] that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proof to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment,'... no useful purpose can be served by its application where it is clear that the dispositive facts will remain undisputed and unchanged. By the same token, no prejudice can result from its nonobservance in any situation of that sort.") (internal footnotes omitted); see also Snow v. BE & K Construction Co., 126 F. Supp. 2d 5, 7 (D. Me. 2001) (converting defendant's motion to dismiss or, alternatively, to compel arbitration, into one for summary judgment because"[i]t is within the [c]court's discretion to convert the 12(b)(6) motion to a summary judgment motion because [p]laintiff has had an opportunity to respond to the relevant factual allegations raised by [d]efendant.") (citing Whiting v. Maiolini, 921 F.2d 5, 6 (1st Cir. 1990)). Therefore, because the parties will not be prejudiced by the Court's consideration of matters outside the pleadings, all which were submitted by the parties, the Court will treat defendant's motion as a request to compel the parties to arbitrate their dispute. And, in conducting this analysis, the Court will employ the standard of review applicable to the resolution of summary judgment motions.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure"[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but... by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must grant the motion for summary judgment"forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When reviewing the defendant's motion to compel arbitration, the court must"give... the [plaintiff] the benefit of all reasonable doubts and inferences that may arise." Par-Knit ...