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March 26, 2004.

VERISIGN, Defendant

The opinion of the court was delivered by: EMMET SULLIVAN, District Judge


I. Introduction

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. Page 2

  II. Factual Background

  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 arbitration. In Page 3 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. Page 4 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 signed Agreement.

  III. Discussion

  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 authority Page 5 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, ...

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