The opinion of the court was delivered by: Chief Judge Royce C. Lamberth
This matter comes before the Court on the defendant's Motion  to Dismiss and to Compel Arbitration. Upon consideration of defendant's motion, plaintiff's opposition  thereto, defendant's reply  brief, the applicable law, and the entire record herein, the Court finds that the motion will be GRANTED. The Court's reasoning is set forth below.
Defendant, Citibank, comes before this Court seeking an Order to Dismiss and to Compel Arbitration. In the underlying case before the Court, plaintiff alleges violations of the District of Columbia Human Rights Act (DCHRA) and Title VII of the Civil Rights Act of 1964 for sex discrimination, sexual harassment, retaliation, and negligent supervision by defendant and defendant's employee. Plaintiff, an employee of defendant Citibank's Adams Morgan Financial Center, alleges that she "was subjected to a campaign of sexual harassment leveled against her by [defendant's employee] . . . in the form of sexually offensive comments and unwelcome touching" over the course of seven (7) months. (Compl. ¶ 10.) Plaintiff further asserts that defendant's response to plaintiff's frequent complaints was inadequate and retaliatory.
Plaintiff filed her complaint with the Superior Court of the District of Columbia, and defendant subsequently removed the action to this Court. Defendant filed its Motion to Dismiss and to Compel Arbitration on December 27, 2007, seeking an order from this Court: (1) dismissing plaintiff's complaint and (2) compelling plaintiff to arbitrate the claims contained in her complaint, pursuant to defendant's employment agreement signed by plaintiff. (Def.'s Mot. to Dismiss and to Compel Arbitration at 1.)
The Federal Arbitration Act ("FAA") provides that "a written provision in . . . a contract to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable save upon any grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The FAA creates a strong presumption favoring the enforcement of arbitration agreements, and doubts regarding the scope of an arbitration agreement must be resolved in favor of arbitration. See Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226--27 (1987) (arbitration agreements must be rigorously enforced); Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 482 U.S. 1, 24--25 (1983). Arbitration should be ordered unless it can be said with certainty that the arbitration provision cannot be interpreted to cover the dispute. AT & T Tech., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650 (1986). This "liberal federal policy favoring arbitration agreements, manifested by . . . the Act as a whole, is as bottom a policy guaranteeing the enforcement of private contractual arrangements." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985).
However, because arbitration is a matter of contract, "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Tech., 475 U.S. at 648. Thus, whether or not the dispute must be arbitrated is a matter of contract between the parties. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943--44 (1995). Parties cannot be required to arbitrate unless they have agreed to do so, and the authority of arbitrators to resolve disputes is derived from the agreement of parties to engage in arbitration. See EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002); Mastrobuono v. Shearson Lehman Hutton, Inc, 514 U.S. 52, 57 (1995); Nat'l R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 759 (D.C. Cir. 1988). It is the Court, not the arbitrator, that must decide whether a dispute is subject to arbitration: "a gateway dispute about whether the parties are bound by a given arbitration clause raises 'a question of arbitrability' for a Court to decide." Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002).
State contract law governs whether there is an enforceable agreement to arbitrate. First Options of Chicago, 514 U.S. at 943--44. Under District of Columbia contract law, "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 parties." Bailey v. Fed. Nat'l Mortgage Ass'n, 209 F.3d 740, 746 (D.C. Cir. 2000). "The party asserting the existence of a contract [i.e. defendant] has the burden of proving its existence." Id. at 746. However, "[t]he party resisting arbitration [i.e. plaintiff] bears the burden of proving that the claims at issue are unsuitable for arbitration." Nelson, 215 F. Supp. 2d at 150; see Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 91--92 (2000) (party resisting arbitration has initial burden of proof regarding issue of unenforceability of arbitration agreement).
If an arbitration agreement is valid and enforceable, the Court "shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." 9 U.S.C. § 4. "[T]he 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." Brown v. Dorsey & Whitney, LLP, 267 F. Supp. 2d 61, 67 (D.D.C. 2003). Thus, it is appropriate to grant a party's motion to compel arbitration when the pleadings and the evidence demonstrate 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). The party seeking to compel arbitration bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether there is a genuine issue of material fact sufficient to preclude summary judgment, the non-movant's statements should be accepted as true and all inferences should be drawn in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249--50 (internal citations omitted).
B. Plaintiff's Objection that Defendant has Waived Any Right to Arbitration
Defendant issued its notice of removal from the Superior Court of the District of Columbia to this Court, and only after successful removal did defendant move to dismiss and to compel arbitration. Plaintiff objects on the basis that defendant waived his right to arbitration by removing the case to a federal forum and by failing "to comply timely with its contractual obligation to seek arbitration within the statute of limitations for [p]laintiff's Title VII and DCHRA claims." (Pl.'s Opp. to Def.'s Mot. to Dismiss and to Compel Arbitration at 1.) Plaintiff fails to raise a genuine issue of material fact or provide anything ...