United States District Court, D. New Hampshire
ORDER
Steven
J. McAuliffe, United States District Judge.
Plaintiff
Ketler Bossé filed suit against defendants, New York
Life Insurance Company, New York Life Insurance and Annuity
Corp., and New York Life Insurance Company of Arizona
(collectively, “New York Life”), asserting
various federal and state employment-related claims arising
out of Bossé's 14-year affiliation with New York
Life. New York Life demands that the claims be arbitrated,
based on an arbitration clause found in a 2004 employment
contract. Pending arbitration, New York Life seeks to have
this case dismissed or stayed. Failing that, New York Life
moves to dismiss Count III of Bossé's complaint
(conspiracy to interfere with Bossé's civil
rights) for failure to state a claim. Bossé objects.
BACKGROUND
Bossé
was affiliated with New York Life in a variety of capacities
for well over a decade. He began working as a soliciting
agent in the company's New Hampshire office in 2001. At
that time, Bossé signed an Agent's Contract, which
authorized him to “solicit applications for individual
life insurance policies, individual annuity policies,
individual health insurance policies, group insurance
policies, and group annuity policies” on the
company's behalf. Compl., Exh. C. As an “agent,
” Bossé was an independent contractor. He earned
commissions based on a percentage of first-year and renewal
premiums generated from his sales of New York Life insurance
products. The Agent's Contract did not include an
agreement to arbitrate any disputes that might arise out of
that contractual relationship.
In
2004, Bossé became an employee of the company,
entering into a “Partner's Employment
Agreement” with New York Life (“Partner's
Agreement”). Paragraph Five of the Partner's
Agreement is an arbitration clause that reads as follows:
The Partner and New York Life agree that any dispute, claim
or controversy arising between them, including those alleging
employment discrimination (including sexual harassment and
age and race discrimination) in violation of a statute
(hereinafter “the Claim”), as well as any dispute
as to whether such Claim is arbitrable, shall be resolved by
an arbitration proceeding administered by the NASD in
accordance with its arbitration rules.
Marquez Decl., Exh. A, at ¶ 5(a). The Partner's
Agreement also provides that the arbitration obligation
survives termination of the agreement itself. Id. at
¶ 10.
New
York Life says the arbitration provision was specifically
drafted to take into account the “history between New
York Life and its many employees and agents.”
Defs.' Mem. in Supp. of Mot. to Dismiss at 6. New York
Life explains that the company and its employees
“contemplate an ongoing relationship” at the
outset, that over the years “may take a variety of
forms: agent, district agent, sales manager, registered
representative, corporate employee.” Id. So,
say defendants, to avoid a “patchwork resolution
system, ” the Partner's Agreement provides for
arbitration of all claims, including those claims that may
arise in a later stage of the anticipated relationship. (It
is not clear why, given that explanation, the earlier 2001
Agent's Contract did not include an obligation to
arbitrate any disputes that may arise in later stages of an
anticipated ongoing relationship.)
In
2005, Bossé transitioned back to an Agent's
position (no arbitration agreement). In 2013, Bossé
became a District Agent and, again, his contract with New
York Life contained no arbitration agreement. As a District
Agent, Bossé could establish his own firm separate
from the New Hampshire New York Life office, and hire his own
agents. Whether the District Agent Agreement Bossé
signed was ever executed by New York Life is unclear at this
point.
As a
District Agent, Bossé opened his own office, at
significant personal cost, and hired several other agents.
Bossé was New York Life's first African-American
District Agent. The agents he hired were racially diverse.
According to Bossé, that racial diversity provoked a
strong reaction of racial animus and discrimination from some
New York Life associates. As a result, Bossé alleges
that the company: failed to process and underwrite insurance
applications submitted by Bossé and his agents;
engaged in back billing that undermined Bossé and his
agents; and “stole or drove away” agents
Bossé hired to work in his office. Compl. ¶ 41.
Bossé further alleges that the company treated him
differently than similarly situated New York Life District
Agents who were white, and failed to investigate the
disparate treatment complaints he made.
On
January 15, 2016, New York Life terminated Bossé's
District Agent Contract, purportedly based on inaccuracies
found in the electronic application process related to a
particular client. Bossé contends that the termination
was retaliatory, that the reasons given by New York Life for
termination were pretextual, and that his contract was
actually terminated based on racial discrimination. He
further contends that, following termination, New York Life
defamed him to his New York Life clients, many of whom then
ceased doing business with him.
Bossé
filed this suit, asserting claims for discrimination and
retaliation under 42 U.S.C. § 1981, conspiracy to
interfere with civil rights under 42 U.S.C. § 1985, and
breach of contract under 42 U.S.C. § 1981. He also
asserts a host of state law claims, including claims for
breach of the covenant of good faith and fair dealing, fraud,
wrongful termination, tortious interference with economic
advantage, violation of New Hampshire's Consumer
Protection Act (RSA 358-A), breach of fiduciary duty, unjust
enrichment, quantum meruit, conversion, defamation per quod,
and defamation per se.
I.
Motion to Compel Arbitration
Relying
on the 2004 Partner's Agreement, New York Life insists
that Bossé's current claims be dismissed in favor
of arbitration because, under the terms of that Agreement,
and provisions of the Federal Arbitration Act, he is
obligated to arbitrate all claims he might have against New
York Life before the Financial Industry Regulatory Authority
(“FINRA”).
A.
Discussion
The
Federal Arbitration Act “establishes ‘a liberal
federal policy favoring arbitration agreements.'”
Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1621
(2018) (quoting Moses H. Cone Memorial Hospital v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983)) (additional citations
omitted). Accordingly, the Act “requires courts to
enforce covered arbitration agreements according to their
terms.” Lamps Plus, Inc. v. Varela, 139 S.Ct.
1407, 1412 (2019) (citations omitted).
Because
arbitration “is a matter of contract, ” “a
party cannot be required to submit to arbitration any dispute
which [it] has not agreed so to submit.” Hogan v.
SPAR Grp., Inc.,914 F.3d 34, 38 (1st Cir. 2019)
(quoting McCarthy v. Azure,22 F.3d 351, 354 (1st
Cir. 1994)) (further quotations omitted). Thus, “[i]n
deciding a motion to compel arbitration, a court must
ascertain whether: ‘(i) there exists a written
agreement to arbitrate' . . .” Gove v. Career
Sys. Dev. Corp.,689 F.3d 1, 4 (1st Cir. 2012) (quoting
Combined Energies v. CCI, Inc.,514 F.3d 168, 171
(1st Cir. 2008)). Finally, “[w]hen deciding whether the
parties agreed to arbitrate a certain matter (including
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