1In support of her claim, Lencki does not rely on the third

agreement, dubbed the “Contingent Compensation Agreement.”

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

CIGNA Health Corporation

v. Civil No. 06-cv-116-JD

Donna K. Lencki

O R D E R

CIGNA Health Corporation moves for an order under the

Federal Arbitration Act, 9 U.S.C. § 4 (the “FAA”), compelling its

former employee, Donna K. Lencki, to arbitrate the claim she

filed with the New Hampshire Department of Labor pursuant to

Revised Statutes Annotated (“RSA”) 275:51. Lencki objects.

Background

The parties have agreed to the following background facts. 

Compare Compl. ¶¶ 6-14 with Ans. ¶¶ 6-14. Lencki worked as the

chief executive officer of Choicelinx, a New Hampshire

corporation acquired by CIGNA on August 1, 2005. Prior to the

acquisition, Lencki and CIGNA entered into three separate letter

agreements, including what the parties now describe as an

“Employment Agreement” and a “Retention Bonus Agreement.”1 The

Employment Agreement provided that, if CIGNA terminated Lencki

other than for cause before she became “eligible to participate

Case 1:06-cv-00116-JD Document 10 Filed 05/18/06 Page 1 of 10
2

in CIGNA’s benefits programs,” she would receive severance pay

and certain other “post-termination benefits,” including

continued participation in certain insurance programs. Compl. 

¶ 9, Ex. B, at 2. The Employment Agreement fixed Lencki’s

severance pay at $115,625, or 62.5% of her annual base salary,

which was $185,000 before taxes. Id., Ex. A, ¶ 7. 

The Retention Bonus Agreement provided that CIGNA would pay

Lencki the pre-tax sum of $63,750, with half of that payment due

nine months after CIGNA’s acquisition of Choicelinx or within ten

days of her termination if Lencki’s “job [were] eliminated and

[her] employment [were] terminated” before then. Compl. ¶ 9, Ex.

C, at 2. Lencki claims that CIGNA terminated her for a reason

other than cause on December 30, 2005, a date before she became

eligible to participate in CIGNA’s benefits programs and less

than nine months subsequent to the acquisition.

Lencki alleges that CIGNA initially refused to provide the

severance pay and other benefits due under the Employment

Agreement, or the balance of the bonus due under the Retention

Bonus Agreement, “unless she first executed a general release of

claims,” although neither agreement held her to such a

requirement. Id. ¶ 3, Ex. A, ¶¶ 10, 12. According to Lencki,

CIGNA ultimately gave her the severance pay and the balance of

the bonus, but has persisted in its refusal to confer the

insurance benefits described in the Employment Agreement.

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3

Lencki filed a wage claim with the New Hampshire Department

of Labor on March 20, 2006, alleging that CIGNA violated various

provisions of RSA 275:44 by demanding the release, failing to

make prompt payment of the sums allegedly owed her under the

agreements, and refusing to provide the insurance benefits. She

has requested $147,500 in damages, as well as an order requiring

CIGNA to enroll her in the benefit programs for twice their

promised duration, or, alternatively, to pay twice the cost of

enrolling herself in comparable programs, as well as attorneys’

fees and costs. See RSA 275:44, I. CIGNA responded to Lencki’s

wage claim by commencing the present action, invoking this

court’s diversity jurisdiction. CIGNA seeks an order compelling

Lencki to submit the claim to arbitration, to abandon the

proceedings before the Department of Labor, and to pay its

attorneys’ fees and costs incurred in bringing this action.

Both the Employment Agreement and the Retention Bonus

Agreement contain arbitration clauses. The Employment Agreement

states that Lencki is “subject to CIGNA’s internal and external

employment dispute resolution policies. This means that as a

final and mandatory step to resolution of any dispute regarding

your employment, or cessation of employment, with CIGNA you agree

to submit to binding arbitration instead of going to court.” 

Compl. ¶ 9, Ex. B, at 2. Similarly, the Retention Bonus

Agreement provides that “[i]f you have a dispute regarding the

Case 1:06-cv-00116-JD Document 10 Filed 05/18/06 Page 3 of 10
4

terms of this letter, you agree that it will be resolved through

the Company’s internal dispute resolution program. If the

dispute is not resolved through the internal processes, you agree

that your sole remedy is arbitration under the CIGNA’s

arbitration policy.” Id. ¶ 9, Ex. C, at 2.

CIGNA’s “Employment Dispute Arbitration Policy,” in turn,

makes arbitration “the required and final means for the

resolution of any employment related legal claim not resolved by

[CIGNA’s] internal dispute resolution processes.” Compl. ¶ 13,

Ex. E, at 1 (footnote omitted). By its terms, however, the

policy covers only serious employment-related

disagreements and problems, which are those that

concern a right, privilege or interest recognized by

applicable law. Such serious disputes include claims,

demands, disputes, controversies, or actions under

Title VII of the Civil Rights Act of 1964, the Civil

Rights Act of 1866, the Civil Rights Act of 1991, the

Equal Pay Act, the Age Discrimination in Employment

Act, the Employee Retirement Income Security Act of

1974, the Fair Labor Standards Act, the Rehabilitation

Act of 1973, the Americans with Disabilities Act, the

Family and Medical Leave Act, theft of trade secrets,

unfair competition and any other federal, state or

local statute, regulation, ordinance, or common law

doctrine, regarding employment discrimination,

retaliation, whistle blowing, conditions of employment,

trade secrets, unfair competition, or termination of

employment.

Id., Ex. E, at 2.

Case 1:06-cv-00116-JD Document 10 Filed 05/18/06 Page 4 of 10
5

Discussion

To compel arbitration under section 4 of the FAA, a party

“must demonstrate ‘that a valid agreement to arbitrate exists,

that the movant is entitled to invoke the arbitration clause,

that the other party is bound by the clause, and that the claim

asserted comes within the clause’s scope.’” Campbell v. Gen.

Dynamics Gov’t Sys. Corp., 407 F.3d 546, 552 (1st Cir. 2005)

(quoting InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir.

2003)). Although Lencki’s filing with the Department of Labor

assailed the validity of the arbitration clauses found in her

agreements with CIGNA, she does not press that contention here. 

See Mem. Supp. Obj. Mot. Compel Arb. at 5. Instead, she contends

that her wage claim falls outside the scope of those clauses.

“As with other issues involving the construction of

individual employment contracts, in determining whether a

contract requires arbitration, courts generally . . . should

apply ordinary state-law principles that govern the formation of

contracts.’” Brennan v. King, 139 F.3d 258, 264-65 (1st Cir.

1998) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S.

938, 944 (1995)). Here, the parties agree that New Hampshire law

controls the interpretation of the arbitration clauses, though

CIGNA points out that, notwithstanding such interpretive

principles, “‘due regard must be given to the federal policy

favoring arbitration, and ambiguities as to the scope of the

Case 1:06-cv-00116-JD Document 10 Filed 05/18/06 Page 5 of 10
2This point is largely academic, since New Hampshire

recognizes the same presumption. See John A. Cookson Co. v. N.H.

Ball Bearings, Inc., 147 N.H. 352, 355 (2001). 

6

arbitration clause[s] [themselves] resolved in favor of

arbitration.’”2 Id. at 264 (quoting Volt Info. Scis., Inc. v.

Leland Stanford Jr. Univ., 489 U.S. 468, 475-76 (1989)).

Under New Hampshire law, an arbitration clause “‘is to be

interpreted so as to make it speak the intention of the parties

at the time it was made bearing in mind its purpose and policy.’” 

John A. Cookson Co., 147 N.H. at 355 (quoting Dunn & Sons, Inc.

v. Paragon Homes of New Eng., Inc., 110 N.H. 215, 217 (1970)). 

Where, as here, the parties have submitted no additional evidence

of their intentions, the court considers the face of the claim at

issue and the terms of the arbitration clauses themselves. Id.

Lencki argues that the claim she filed with the Department

of Labor does not constitute a “serious employment-related

disagreement[] [or] problem[].” She posits, and CIGNA does not

dispute, that this language from the arbitration policy serves to

limit the arguably broader terms of either the Employment

Agreement or the Retention Bonus Agreement. Her argument

ultimately falters, however, because it ignores the definition of

“serious employment-related disagreements and problems” found in

the policy itself, i.e., “those that concern a right, privilege

or interest recognized by applicable law.” This phrase is

plainly broad enough to encompass Lencki’s claim that CIGNA

Case 1:06-cv-00116-JD Document 10 Filed 05/18/06 Page 6 of 10
3Lencki does not argue that her claim is not “serious”;

indeed, she has requested $147,500 in damages, as well as

additional compensation for CIGNA’s alleged refusal to provide

the insurance benefits contemplated by the Employment Agreement.

7

violated RSA 275:44 by failing to provide her the benefits owed

under the agreements promptly following the termination of her

employment or at all (in the case of continued participation in

CIGNA’s insurance programs). See John A. Cookson Co., 147 N.H.

at 355-56 (ruling that agreement in parties’ contract to

arbitrate “any dispute” extended beyond contract disputes to tort

and statutory claims arising out of business relationship).

In an attempt to restrict the scope of this language, Lencki

argues that the policy limits “serious employment-related

disagreements and problems” to the types of “serious disputes”

listed, e.g., employment discrimination claims and the like.3

But the policy says only that serious disagreements and problems

“include” such claims; as the Supreme Court has noted, “the term

‘includ[e]’ is not one of all-embracing definition, but connotes

simply an illustrative application of the general principle.” 

Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95,

100 (1941). In any event, even if the list could be read as an

exhaustive compilation of the kinds of “employment-related

disagreements and problems” covered by the arbitration policy,

the list includes claims under “any other . . . state . . .

statute . . . regarding . . . termination of employment.”

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4The court notes that the agreements appear to contemplate

that CIGNA’s “internal dispute resolution policies” serve as a

precursor to arbitration. Neither party, however, addresses

whether they resorted to those policies here or, if they did not,

what the court should nevertheless force the parties to

arbitrate. The court has therefore not considered the effect, if

any, of the “internal dispute resolution policies” on the

arbitration clauses. Cf. HIM Portland Builders, LLC v. DeVito

Builders, Inc., 317 F.3d 41, 43 (1st Cir. 2003) (upholding

refusal to compel arbitration where “arbitration provision of the

agreement [was] not triggered until one of the parties

request[ed] mediation”). 

8

RSA 275:44--which requires the prompt payment of an employee

who is discharged, quits, resigns, or is laid off--is precisely

such a statute. Lencki provides no authority or developed

argument to the contrary. Her claim under RSA 275:44 therefore

fits comfortably within the scope of CIGNA’s arbitration policy

and, in turn, within the scope of the agreements to arbitrate she

made in the Employment Agreement and Retention Bonus Agreement.4

See Maroney v. Triple “R” Steel, Inc., 2005 WL 1950404, at *4

(N.D. Ill. Aug. 11, 2005) (ruling that arbitration clause

covering claims “out of or connected with” employment agreement

extended to ERISA claim although it “vested post-termination”). 

Lencki must therefore submit the claim to arbitration in

accordance with the “Arbitration Rules and Procedures” referred

to in CIGNA’s arbitration policy. 9 U.S.C. § 4. 

In addition to compelling Lencki to arbitrate her claim,

CIGNA also seeks to enjoin her from further pursuing the claim

before the Department of Labor. Although the FAA authorizes a

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9

federal court to stay its own proceedings if they involve an

issue subject to an arbitration agreement, 9 U.S.C. § 3, it does

not provide for the stay of proceedings in other fora. Great

Earth Cos. v. Simons, 288 F.3d 878, 893-94 (6th Cir. 2002). 

Neither CIGNA’s moving papers nor its complaint cites any

authority in support of its request to enjoin Lencki from

prosecuting the claim she has filed with the Department. The

same is true of CIGNA’s request for attorneys’ fees and costs,

which the FAA itself also does not appear to authorize.

Thus, if CIGNA wishes to pursue either of these additional

forms of relief, it shall file a memorandum of law to that effect

by May 29, 2006. If Lencki wishes to file a response, she shall

do so by June 8, 2006. For the moment, however, CIGNA’s requests

for an order preventing Lencki from pursuing her claim before the

Department of Labor and for attorneys’ fees and costs are denied

without prejudice.

Conclusion

For the foregoing reasons, CIGNA’s motion to compel

arbitration (document no. 3) is GRANTED in part and DENIED in

part. Lencki shall submit the claim she filed with the

Department of Labor under RSA 275:51 to arbitration in accordance

with the “Arbitration Rules and Procedures” referred to in

CIGNA’s arbitration policy. Should CIGNA wishes to pursue its

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requests for an order preventing Lencki from prosecuting her

claim before the Department of Labor and for attorneys’ fees and

costs, it shall file a memorandum of law to that effect by May

29, 2006. If Lencki wishes to file a response, she shall do so

by June 8, 2006.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 18, 2006

cc: Mark T. Broth, Esquire

William D. Pandolph, Esquire

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