The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
Plaintiff, Miriam Sapiro, brings this action against her former
employer, VeriSign. Plaintiff alleges that defendant discriminated
against her because of her family responsibilities and retaliated against
her in violation of the District of Columbia Human Rights Act, D.C. Code
§ 2-1402.11 et. seq. (2001) Defendant VeriSign filed this Motion to
Compel Arbitration alleging that plaintiff executed an Arbitration
Agreement with defendant and that this litigation is in violation of that
Agreement. Thus, defendant requests that this Court compel arbitration
and dismiss this case or, alternatively, stay this litigation while the
arbitration is pending.
Plaintiff was hired in November 2000 to serve as VeriSign's Director of
International Policy. Plaintiff's employment offer letter was made on
Network Solutions Inc. ("NSI") letterhead and stated that NSI was a
wholly-owned subsidiary of VeriSign.
From 1995 to June 2000, Science Applications International Corporation
("SAIC") either owned or was a significant shareholder in NSI. As part of
that arrangement, SAIC supported NSI's human resource function and NSI
used many of SAIC's forms, including the Dispute Resolution Guide and the
Arbitration Agreement. In June 2000, VeriSign acquired NSI. Rather than
create new forms, VeriSign continued to use the forms bearing the SAIC
insignia and continued to distribute SAIC's Dispute Resolution Guide.
When plaintiff attended the New Employee Orientation, plaintiff was
presented with several documents some bearing the name of SAIC
and some bearing the name of NSI. One of those documents was a seventeen
page Dispute Resolution Guide. The Dispute Resolution Guide describes a
comprehensive program for challenging disputes with management, which
included multiple internal appeals, investigations, mediation, and
accordance with the Dispute Resolution Program, and as a condition
of employment, plaintiff was required to sign a "Mutual Agreement to
Arbitrate Claims," whereby plaintiff agreed to arbitrate any claims or
controversies including claims for discrimination or retaliation. This
Agreement was signed on November 27, 2000. Plaintiff concedes that she
signed this Agreement but argues that VeriSign, her current employer, was
not a party to the Agreement. Rather, the employer listed on the Mutual
Agreement to Arbitrate Claims and the author of the seventeen page
Dispute Resolution was SAIC.
Six months after plaintiff began working for VeriSign, VeriSign issued
its own employee handbook making clear that it no longer had a
relationship with SAIC. The new employee handbook, called the Navigator,
contains no dispute resolution program, no agreement to arbitrate, and no
mechanism for challenging decisions made by management. Instead, the
Navigator emphasized that management decisions were "final and binding on
all concerned." The Navigator also stated that it "supersedes" other
inconsistent employment manuals.
On April 24, 2002, defendant eliminated plaintiff's position. Plaintiff
claims that her position was eliminated in retaliation for her request
for a flexible working arrangement.
Plaintiff brings this lawsuit to enforce her rights under the B.C. Human
Rights Act. Defendant maintains that plaintiff has brought her claims in
the wrong forum. Defendant contends that complaints of discrimination and
retaliation are covered by the Arbitration Agreement and must be
arbitrated. Plaintiff submits that there is no arbitration agreement to
enforce because VeriSign was not a party to the Agreement plaintiff
signed and, regardless, VeriSign could not perform its requirements under
the Agreement. Defendant alleges that plaintiff knew that she was signing
an agreement with NSI/VeriSign and that VeriSign can perform under the
A. The decision-maker on the issue of arbitrability
The question of whether or not the claim should be arbitrated is a
matter of contract between the parties. First Options of Chicago, Inc.
v. Kaplan, 514 U.S. 938, 943-44 (1995). Defendant claims that the parties
agreed to submit questions of arbitrability to the arbitrator. In support
of its argument, defendant submits that the SAIC Employment Arbitration
Rules & Procedures Section M notes, "[t]he arbitrator has the
to resolve any dispute relating to the formation, interpretation,
applicability or enforceability of the Arbitration Agreement." Def.'s
Mot. Attach. 4, Ex. 1 at C-4. Thus, defendant claims that this case
should be dismissed so that an arbitrator can decide if plaintiff's
claims are subject to the Arbitration Agreement.
It is well settled, however, that "a gateway dispute about whether the
parties are bound by a given arbitration clause raises a `question of
arbitrability' for a court to decide" based on state contract law. Howsam
v. Dean Witter Reynolds, Inc., 123 S.Ct. 588, 592 (2002). District of
Columbia contract law has stated that "the determination of whether the
parties have consented to arbitrate is a matter to be determined by the
courts on the basis of the contract between the parties." Bailey v.
Federal Nat. Morg. Ass'n., 209 F.3d 740, 746 (D.C. Cir. 2000).
Here, because there needs to be a determination as to whether the
Arbitration Agreement establishes a valid contract between the parties at
issue, this Court, rather than an arbitrator, ...