17-2219 Weiss v. Macy’s Retail Holdings, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 12 th day of July, two thousand eighteen. 3 4 PRESENT: 5 J ON O. N EWMAN , 6 P ETER W. H ALL , 7 S USAN L. C ARNEY , 8 Circuit Judges

. 9

_____________ _______________ _____________ 10 11 D AVID W EISS , 12 13 Plaintiff-Appellee
, 14 15 v. No. 17-2219 16 17 M ACY ’ S R ETAIL H OLDINGS , I NC ., AKA M ACY ’ S I NC ., 18 19 Defendant-Appellant

. 20

_____________ _______________ _____________ 21 22 FOR APPELLANT: B RIAN M. P ARSONS , Macy’s Law 23 Department, St. Louis, MO (Steven 24 Gerber, Schoeman Updike Kaufman & 25 Gerber LLP, New York, NY, on the brief ) 26 27 FOR APPELLEE: S COTT A. K ORENBAUM , New York, NY 28 (Colleen M. Meenan, Shelley Ann Quilty- 292 Lake, Meenan & Associates, LLC, New 1 York, NY on the brief ) 2 3 Appeal from an order of the United States District Court for the Southern District of 4 New York (Hellerstein, J. ). 5
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 6 ADJUDGED, AND DECREED that the order denying the motion to compel arbitration 7 entered on July 14, 2017, is VACATED and the case is REMANDED

. 8 Plaintiff-appellee David Weiss worked for defendant-appellant Macy’s Retail 9 Holdings, Inc. (“Macy’s”) from 1997 to 2015 at its store in Yonkers, New York. Weiss has a 10 learning disability that makes it difficult fo r him to “read and process information,” among 11 other tasks. App’x 142. According to Weiss, Macy’s was aware of Weiss’s disability and 12 accommodated him in various ways during most of his employment there, such as by giving 13 him additional time to pr ocess training materials. Id . Following his termination in 2015, 14
Weiss filed this suit in the United States Di strict Court for the Southern District of New 15 York. He brought claims against Macy’s unde r the Americans with Disabilities Act, 42 16 U.S.C § 12101 et seq. , alleging that his most recent manager had harassed him, refused to 17 accommodate his disability, and then terminated him because of his disability. On December 18 7, 2016, Macy’s moved to compel arbitration of Weiss’s claims. The District Court denied 19 the motion and Macy’s timely appealed. We assume the parties’ familiarity with the facts and 20 the record of the prior proceed ings, to which we refer here only as necessary to explain our 21
decision to vacate and remand. 22 At the core of Macy’s motion to compel arbitration lies the question whether Weiss 23 entered into an arbitration agreement with Macy’ s that governs this dispute. Declarations of 24 Macy’s employees showed the following circumst ances. In the fall of 2003, six years after 25 Weiss started working at Macy’ s, the company introduced a four-step employee dispute 26 resolution process purporting to cover all disp utes that might arise between Macy’s and its 27 employees. Under “Step 4” of that process, em ployees waived judicial remedies and agreed 28 to mandatory arbitration. Participation in that final step, however, was voluntary for current 293 employees like Weiss, who were given the choi ce of “opting out” by submitting a written 1
form. 2 According to Macy’s, the company explaine d the dispute resolution program to its 3 employees in 2003 by holding in-store trai nings and mailing info rmational packets to 4 employees’ homes. After the trainings and mailings, Macy’s sent an additional packet to each 5 employee’s home in September 2003. The mailed materials included a “Plan Document” and 6
an “Election Form.” The Election Form instru cted employees to complete and return the 7 form only if they intended to “d ecline the benefits of arbitration” by opting out of Step 4. 8 App’x 97. One year later, in the fall of 2004, Macy’s sent related materials and another 9 Election Form to its employees. On neither o ccasion did Weiss return a completed opt-out 10 form. For this reason, Macy’s enrolled him in the full employee dispute resolution program, 11 treating him as having agreed to mandatory arbitration. 12

Weiss does not contend that he ever return ed an opt-out form to Macy’s. He asserts, 13 however, that he never received any such maile d documents from Macy’s or attended any in14 store training about Macy’s new disput e resolution program or arbitration. He avers further 15 that, had he received the Election Form, he would have chosen to opt out of arbitration. He 16
also recalls at least one incident in which he did not receive a tax form that Macy’s asserted it 17
had mailed to him at his home. 18 According to his affidavit, during the period relevant to this suit, Weiss lived with his 19 family, including his brother, Joseph. Both We iss and Joseph state that, because of Weiss’s 20 learning disability, Joseph read s and explains to Weiss any mail addressed to him that is 21 “important or official,” including employme nt documents. App’x 142, 148. For example, 22 Joseph assists Weiss in reading and understa nding documents that relate to Weiss’s 23 retirement benefits and health insurance. Jo seph avers that Weiss never showed him any of 24 the arbitration-related documents that Macy’s pu rportedly mailed. He further declares that, 25 had he seen the documents, Joseph would have advised Weiss to sign and return the opt-out 26 form. A contemporaneous coworker of Weiss, Ja net Rios, also stated in a sworn affidavit 27 that she never received any written or verb al information from Macy’s about the employee 28 dispute resolution process or about the po ssibility of opting out of arbitration. 294 We review de novo the denial of a motion to compel arbitration; the factual findings 1 “upon which that conclusion is based, how ever, are reviewed for clear error.” Meyer v. Uber 2 Techs., Inc. , 868 F.3d 66, 72–73 (2d Cir. 2017). As with a motion for summary judgment, we 3
consider all relevant admissibl e evidence and draw all reasonabl e inferences in favor of the 4 non-moving party. Id . at 74. “If a factual issue exists regarding the formation of the 5 arbitration agreement, . . . remand to th e district court for a trial is necessary.” Id. We apply 6 state contract law when determining whether an agreement to arbitrate has been formed. Id

. 7 The parties here agree that New York law governs this dispute. 8 The District Court denied Macy’s motion to compel arbitration on the ground that 9 Macy’s had not established the formation of a c ontract to arbitrate. The Court based that 10 conclusion on two reasons. First, the Court rule d, the opt-out form was “counterintuitive, 11 ambiguous, and misleading” and therefore insufficient to constitute an offer. Weiss v. Macy’s 12 Retail Holdings Inc. , 265 F. Supp. 3d 358, 3 63 (S.D.N.Y. 2017). Second, the Court ruled that 13 there was no acceptance. Id . We disagree with both rulings. 14 The opt-out form instructs the employee to “Complete and return this form ONLY 15
IF YOU DO NOT WANT TO BE COVERED BY THE BENEFITS OF 16 ARBITRATION during your career with the company.” App’x 97. Within a box appears a 17 bracketed space for a check mark next to the words “ I Decline the Benefits of 18
Arbitration ”. Id . Although the somewhat disingenuous references to the “benefits” of 19 arbitration might better have been avoided, an d Macy’s would do well to remove the word 20 “benefits” in the future, neither this unfortun ate choice of words nor the remainder of the 21 form renders its meaning incapable of being readily understood. 22

The District Court also concluded that “W eiss’ silence and inaction upon receipt of 23 the Election Form did not operate as acceptance, ” and that nothing in Macy’s literature or 24 information sessions “stated or otherwise imp lied that agreeing to arbitrate employment25 related disputes was mandatory or a condition of continued employment.” Weiss, 265 F. 26 Supp. 3d at 360, 365. However, Weiss was an at-will employee, and, under New York law, 27 notifying an at-will employee of a change and informing him that the change applies to him 28 suffices to change the conditions of employment. See Gen. Elec. Tech. Servs. Co. v. Clinton , 577 295 N.Y.S.2d 719, 720–21 (App. Div. 1991) (holding at-wi ll employee subject to new 1 employment program even though “he was not told that the [program] was a condition of 2 employment”). We decided this very point on nearly identical facts in Manigault v. Macy’s 3 East, LLC , 318 F. App’x 6, 8 (2d Cir. 2009) (summary order). 4 Accordingly, we are satisfied that the docu ments, if received by Weiss, coupled with 5 his failure to send back the opt-out form an d his continued working for Macy’s, bound him 6 to arbitrate his dispute. There remains, how ever, the issue of whether Weiss received the 7
documents. 8 In Macy’s view, the existing record dem onstrates that Weiss received the 2003 and 9 2004 mailings and therefore that he agreed to arbitration. In support of its proposition, 10 Macy’s invokes the rule that when “there is proof of the office procedure followed in a 11 regular course of business, and these procedures establish that the required notice has been 12 properly addressed and mailed, a presumpt ion arises that notice was received.” Meckel v. 13
Cont’l Res. Co. , 758 F.2d 811, 817 (2d Cir. 1985) (citing Nassau Ins. Co. v. Murray , 46 N.Y.2d 14 828, 829–30 (1978)). We have recognized, ho wever, that New York law allows that 15 presumption to be “rebutted by admissible ev idence that the document was not mailed, was 16 received late, or was never received.” Isaacson v. N.Y. Organ Donor Network , 405 F. App’x 552, 17 553 (2d Cir. 2011) (summary order) (citing Sherlock v. Montefiore Med. Ctr. , 84 F.3d 522, 526 18 (2d Cir. 1996)); see also Vita v. Heller, 467 N.Y.S.2d 652, 653 (App. Div. 1983). 19 Here, Weiss offered more than a “mere denial of receipt.” Meckel , 758 F.2d at 817. He 20 provided evidence of his family’s regular pro cedure for reviewing wi th him the mail he 21 received and asserted, with sworn support, that the relevant mailings did not arrive and go 22 through that process. We conclude, therefor e, that Weiss has sufficiently rebutted New 23 York’s mailing presumption to create a disputed issue of material fact. 1 See D.M. Rothman & 24 Co. v. Korea Commer. Bank of N.Y. , 411 F.3d 90, 97 (2d Cir. 2005) (defendant rebutted mailing 25

1 On this point, that factual dispute distinguishes this case from Manigault v. Macy’s East, LLC , 318 F. App’x 6 (2d Cir. 2009) (summary order), in which we reversed a district court’s denial of a motion to compel arbitration under the same Macy’s dispu te resolution program at issue here. There, the employee denied receipt of the ar bitration documents, but offere d no supporting evidence sufficient to rebut the mailing presumption. See id. at 7.6 presumption by introducing certified mail receipt showing that delivery was late); Hogarth v. 1 N.Y.C. Health & Hosps. Corp. , No. 97 CIV. 0625 (DAB), 2000 WL 375242, at *4 (S.D.N.Y. 2 Apr. 12, 2000) (“For example, the presumption of delivery can be successfully rebutted with 3 a sworn affidavit giving a deta iled description of the mail pro cedures followed at a company 4 for all incoming mail supporting the conclu sion that the mail was never received.”); State v. 5
Int’l Fid. Ins. Co. , 708 N.Y.S.2d 504, 507 (App. Div. 2000) (concluding plaintiff “rebutted the 6 presumption of receipt” with “affidavits and deposition testimony desc ribing the extensive 7 search of the Department’s offices over a peri od of several days and the procedures it 8
followed for mail received an d improperly delivered”); De Leonardis v. Gaston Paving Co. , 706 9 N.Y.S.2d 254, 255 (App. Div. 2000) (“diary of in coming mail maintained in the usual course 10 of business and office practice” suff icient to rebut presumption). 11 The District Court, ruling only on the absen ce of contract formation, did not resolve 12 this contested factual issue regarding whether Weiss received the mailings that would have 13 allowed him to opt out of ma ndatory arbitration. Because We iss cannot be bound by an 14 offer to agree to arbitrate that he did not recei ve, we conclude that a remand is appropriate 15
to determine whether Weiss received the documents. 16

* * * 17 The order of the District Court denying th e motion to compel arbitration is therefore 18
VACATED and the case is REMANDED for further proceedings consistent with this 19
order. 20

FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk of Court 22