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By August 24, 2021No Comments



Congratulations to Bennett & Belfort attorneys Craig Levey, Jillian Guilfoyle and Todd Bennett who defeated a Motion To Dismiss and Motion To Compel Arbitration that was filed by a Defendant based on an Arbitration agreement that was not produced in response to a personnel file request under MGL c. 149 s. 52C.  Months later, after removal to Superior Court, the employer/Defendant claimed that the Arbitration agreement indeed governed the parties’ dispute and, they argued, the matter should be referred to Arbitration and dismissed from Court. The Superior Court Judge,  Hon J. Shannon Frison, disagreed and found that the arbitration agreement was not enforceable under the concept of waiver.  Pasted below and attached is Justice Frison’s order/decision that articulates her reasoning in detail:

Endorsement on Motion to dismiss OR Alternatively Stay Action and Compel Arbitration (#7.0): DENIED
After hearing Denied. Though the defendant appears to possess an electronically signed copy of an arbitration agreement between it and the plaintiff, defendant’s conducts acts a waiver. First, this agreement should have been maintained in and a part of the plaintiffs personnel file. The agreement was not produced in response to the request for her personnel file even though the document is itself a “waiver signed by the employee” per M.G.L.c.149, section 52C. More importantly, defendant failed to disclose the existence of or its intent to enforce an arbitration agreement when the plaintiff(1) first alerted the company to the alleged harassment, (2) requested her personnel file, (3) filed a
complaint with the MCAD, (4) when the defendant submitted its position statement to the MCAD, or (5) any time before the plaintiff removed the complaint to Superior Court. 11 months into the litigation, the defendant produced the arbitration agreement and demanded compliance with it. The plaintiff relied upon what was either a failure by the defendant itself to realize that there was an agreement, or by an abrupt change in strategy by the defendant either way, her removal of the matter from the MCAD is not reversible and was at her own cost. Since MCAD can investigate the alleged harassment at the same time that arbitration is taking place, the removal of the case from the MCAD is a prejudice to the plaintiff. As such the court will not dismiss the case nor compel arbitration .. Dated:
August 20 2021 and notices mailed 8/23/21
Judge: Frison, Hon. Shannon

Motion to Compel