Opinion
CV176079775S
04-11-2018
Rebecca GROSE v. DIDI, LLC dba Ashley Furniture Store
UNPUBLISHED OPINION
OPINION
PECK, JTR
The plaintiff, Rebecca Grose, in a one-count age discrimination complaint filed on June 26, 2017, alleges the following facts against the defendant, Didi, LLC. The plaintiff began working in the defendant’s store in March 2014. She was treated differently and paid less than her younger counterparts. The general manager and owner often commented about her age and referred to her as " the old crusty one" and " senile." In October 2016, the plaintiff resigned after a dispute arose about a missing deposit bag. Due to the defendant’s unlawful conduct, the plaintiff was denied the opportunity for gainful employment, and suffered substantial losses of income and benefits. The plaintiff filed an administrative complaint with the Commission on Human Rights and Opportunities, and received a release of jurisdiction prior to initiating this action.
On August 10, 2017, the defendant filed a motion to compel arbitration and stay proceedings. The motion was accompanied by a memorandum of law and an arbitration agreement signed by both the plaintiff and the defendant’s president. The plaintiff filed a memorandum of law in opposition on August 30, 2017. The court first heard oral argument on November 20, 2017. The parties filed supplemental briefs following a request from the court, and the matter was heard for a second time on December 18, 2017.
DISCUSSION
" Connecticut has adopted a clear public policy in favor of arbitrating disputes. The policy is expressed in General Statutes § 52-408, which provides in relevant part: An agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof ... shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally." (Internal quotation marks omitted.) Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 71, 856 A.2d 364 (2004). " Arbitration is a creature of contract ... It is designed to avoid litigation and secure prompt settlement of disputes and is favored by the law ... [A] person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed to do so ..." (Internal quotation marks omitted.) Stack v. Hartford Distributors, Inc., 179 Conn.App. 22, 28 (2017).
The defendant argues that the plaintiff is bound by an arbitration agreement that she signed approximately a year and a half after the start of her employment. Both parties agreed to arbitrate any claim that the arbitration agreement covered, including those for age discrimination. The defendant also contends that all of its employees were required to sign the arbitration agreement within thirty days as a condition of their continued at will employment. Any employee who did not agree to it would be terminated. The plaintiff counters that the arbitration agreement is unenforceable because her continued at will employment was insufficient consideration and because the arbitration agreement was procedurally unconscionable. In response, the defendant refutes these two arguments.
I. Sufficiency of Consideration
In Roessler v. Burwell, 119 Conn. 289, 293, 176 A. 126 (1934), the court examined whether continued employment was sufficient consideration for a modification to an employment agreement for an at will employee. In Roessler, the employer and employee entered into a written agreement concerning the employment relationship several years after the employee began working. Id., 290. The written agreement contained a covenant not to compete, which the employer sought to enforce upon the employee’s departure. Id., 291-92. The court stated that " [t]he underlying purpose of the defendant in entering into the agreement was to continue thereafter in the employment of the plaintiff at a mutually agreeable salary; the benefit offered him was such a continuance, in return for which the plaintiff was to receive his services and the benefit of the restrictive covenant in the agreement." Id., 293. The court, therefore, indicated that the employee’s continued at will employment was sufficient consideration for the covenant not to complete. See also Comfort v. Mariner Health Care, Inc., United States District Court, Docket No. 3:04CV2142 (JCH) (D.Conn. April 26, 2005) (noting that continued employment is sufficient consideration for arbitration agreement when employee is at will); Fahim v. CIGNA Investments, Inc., United States District Court, Docket No. 3:98CV232 (D.Conn. September 10, 1998) (finding at will employee’s continued employment sufficient consideration to support new arbitration policy).
Notwithstanding Roessler, other Connecticut decisions have found that continued employment was not sufficient consideration for covenants not to compete introduced after an employee had already started working. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 662 A.2d 89 (1995) is frequently cited for this proposition. In Torosyan, the court held that " [w]hen an employer issues an employment manual that substantially interferes with an employee’s legitimate expectations about the terms of employment, however, the employee’s continued work after notice of those terms cannot be taken as conclusive evidence of the employee’s consent to those terms." Id., 18. Torosyan also noted that " [t]he fact that an employee continues working, therefore, may be relevant to determining whether he or she consented to the new contract, but cannot itself mandate a finding of consent." Id., 19.
Torosyan, however, is distinguishable in several respects. First, in Torosyan, the plaintiff’s employment was terminable only for cause, Id., 20. In the present case, the plaintiff’s employment was undisputably at will. Second, in Torosyan, the employee did not manifest his consent to the terms of the new employee manual applied to him. Id., 10. In contrast, the plaintiff in the present case expressly consented to the arbitration agreement by signing it. While her continued employment would not by itself mandate a finding of consent under Torosyan, her signing of the arbitration agreement indicates that she consented to its terms. See also Pomposi v. GameStop, Inc., United States District Court, Docket No. 3:09CV340 (VLB) (D.Conn. January 11, 2010) (finding arbitration agreement enforceable when employee continued working and signed acknowledgment agreeing to arbitrate claims against employer). Regardless, under Roessler, the plaintiff’s continued employment alone was sufficient consideration for the arbitration agreement. Roessler v. Burwell, supra, 119 Conn. 293.
Even if the court were to hold that the plaintiff’s continued employment was insufficient consideration for the arbitration agreement, there are other forms of consideration present to support enforcing the agreement. Generally, " [m]utual promises qualify as sufficient consideration for a binding contract." Manzin v. United Bank & Trust Co., 6 Conn.App. 513, 516, 506 A.2d 169 (1986). " A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do." (Internal quotation marks omitted.) New England Rock Services, Inc. v. Empire Paving, Inc., 53 Conn.App. 771, 776, 731 A.2d 784, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999). Mutuality of the obligation to arbitrate can serve as consideration for an arbitration agreement. See Deleon v. Dollar Tree Stores, Inc., United States District Court, Docket. No. 3:16CV00767 (CSH) (D.Conn. January 30, 2017); Fahim v. CIGNA Investments, Inc., supra, United States District Court, Docket No. 3:98CV232.
In the present case, the arbitration agreement specifically provides that both the plaintiff and the defendant mutually consent to arbitrate any claims they have against each other. Neither party had agreed to arbitrate their claims before signing this agreement, so both were promising to do something different from that which they were already bound to do. See New England Rock Services, Inc. v. Empire Paving, Inc., supra, 53 Conn.App. 776. These mutual promises to arbitrate, therefore, provided sufficient consideration for the arbitration agreement. See Deleon v. Dollar Tree Stores, Inc., supra, United States District Court, Docket No. 3:16CV00767 (CSH); Manzin v. United Bank & Trust Co., supra, 6 Conn.App. 516.
The defendant’s promise to continue employing the plaintiff also serves as sufficient consideration. See Gibbs v. Connecticut General Life Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV-97-0567009 (March 3, 1998, Hennessy, J.) (21 Conn.L.Rptr. 533). " An employer’s specific promise to continue to employ an at-will employee may provide valid consideration for an employee’s promise to forgo certain rights." (Internal quotation marks omitted.) Id., 535. In Gibbs, the court found that the arbitration agreement was not supported by sufficient consideration. Id. In so holding, the court noted that the plaintiff had never assented to the arbitration policy’s terms, and that his employer never promised to continue his employment in exchange for his promise to submit claims to arbitration. Id. Neither of these considerations are applicable to the present case. Here, the plaintiff assented to the arbitration agreement by signing it. Moreover, the defendant specifically told its employees that their employment would be terminated if they did not sign the agreement. The defendant’s specific promise not to immediately terminate the plaintiff’s employment if she signed the arbitration agreement thus constitutes sufficient consideration. The arbitration agreement, therefore, is supported by adequate consideration.
II. Unconscionability
The court next considers the plaintiff’s argument that the arbitration agreement is unenforceable because of procedural unconscionability. " The doctrine of unconscionability, as a defense to contract enforcement, generally requires a showing that the contract was both procedurally and substantively unconscionable when made- i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party ..." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 379, 143 A.3d 638 (2016). " Substantive unconscionability focuses on the content of the contract, as distinguished from procedural unconscionability, which focuses on the process by which the allegedly offensive terms found their way into the agreement." (Internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 87 n.14, 612 A.2d 1130 (1992).
The plaintiff contends that she was forced to sign the arbitration agreement and that it was a contract of adhesion. " An adhesion contract with unequal bargaining power, by itself, is not sufficient to make an arbitration agreement unconscionable." Horrocks v. Keepers, Inc., Superior Court, judicial district of New Haven, Docket No. CV- 15-6054684 (January 4, 2016, Wilson, J.) (61 Conn.L.Rptr. 599, 603). Additionally, the arbitration agreement terms were not unfair to the plaintiff or unreasonably favorable to the defendant. The obligation to arbitrate was mutual, and the defendant could not unilaterally choose the arbitrator. The defendant also agreed to pay the arbitrator’s filing fees and costs, and the plaintiff was only obligated to pay an amount equal to the filing fee to initiate a claim in Superior Court. Therefore, the arbitration agreement is not unconscionable. See Bank of America, N.A. v. Aubut, supra, 167 Conn.App. 379.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendant’s motion to compel arbitration and stay the proceedings is hereby granted.