for Suffolk County - Mass Cases
for Suffolk County - Mass Cases for Suffolk County - Mass Cases
coerced"). It is up to state law to define what improper coercion is. 9 W.S.C. § 2. Under the FAA, where the voluntariness of the agreement is at issue, there is no presumption favoring arbitration. - McCarthy -_. v. Azure, 1- 22 F.3d 351, 355 (1st Cir. 1994) (presumption of arbitrability does not apply when Court is considering whether "arbitration rest [SI on a consensual foundation"). Thus, neither the FAA or MAA, or the presumption of arbitrability that they may imply, bear upon the enforceability of this agreement. Moreover, as shown above, the FAA and MAA are inapplicable, because the MCAD never signed the arbitration agreement at issue. Maria, 402 F.3d at 16 ("The EEOC is a nonparty to the arbitration agreement and therefore cannot be bound by it"). Thus, Massachusetts law, and public policy controls here, and clearly invalidates the agreement, as the product of unlawful threats. CONLWSICW For tho foregoing reasons, the JoulG complaint should be dismissed, and the MCAD proceedings should be permitted to continue. 47
,- Respectfully submitted, The Massachusetts Employment Lawyers Association, By its Attorney Robert S. Mantell BBO# 559715 Rodgess, Powers & Schwartz LLP 18 Tremont Street Suite 500 Boston, MA 02108 (617) 742-7010 RULE 16 (k) CERTIFICATION I hereby certify that the foregoing brief complies with all rules pertai.ning to the filing of briefs with this court.. *- CERTIFICATE OF SERVICE I hereby certify that on August 13, 2010, I served two copies of this brief on counsel of record for all parties, including Barbara A. Robb, Esq., Shilepsky O'Connell Hartley Casey Michon Yden Robb LLP, One Financial Center, 15th Floor, Boston, MA 02111-2688, Herbert L. Holtz, Esq., Holtz & Reed, LLP, One Bowdoin Square, Boston, MA 02114, and Beverly I. Ward, Esq., Massachusetts Commission Against Discrimination, One Asburton Place, Room 601, Boston, MA 02108, by First Class Mail. 48
- Page 6 and 7: EEOC V. Waffle House, InC., 122 s.
- Page 8 and 9: Wal.ker v. Lakewood, 272 F.3d 1114
- Page 10 and 11: 1. STATEMENT OF ISSUES siyned by th
- Page 12 and 13: STATEMENT OF TAE CASE MELA adopts D
- Page 14 and 15: undermining the many cases pursued
- Page 16 and 17: ARmJmwr The Massachusetts Employmen
- Page 18 and 19: MCAD to enforce the law and rectify
- Page 20 and 21: Labor Comissioner serves simply as
- Page 22 and 23: The Supreme Court held that the arb
- Page 24 and 25: The MUD was established to enforce
- Page 26 and 27: If the private parties agree to res
- Page 28 and 29: case in suppori of the Complainant,
- Page 30 and 31: Stonehill College, 141 Mass. at. 56
- Page 32 and 33: comprehensive scheme to combat disc
- Page 34 and 35: een imposed? Or otherwise assure th
- Page 36 and 37: G. JOULE'S OTHER ARGUMENTS ARE OFF-
- Page 38 and 39: to create a stumbling block. The tr
- Page 40 and 41: Moreover, the MCAD wrote in its ami
- Page 42 and 43: and remedy violations of the statut
- Page 44 and 45: up the substantial right to seek ad
- Page 46 and 47: 2. The Threat To Reject. Simmons' F
- Page 48 and 49: Components, Inc., 548 F.2d 24, 26 (
- Page 50 and 51: nursing home contract was ruled enf
- Page 52 and 53: When an employer says, "waive your
- Page 54 and 55: Vokovich, 720 F.2d 909, 925 (8th Ci
coerced"). It is up to state law to define what improper<br />
coercion is. 9 W.S.C. § 2.<br />
Under the FAA, where the voluntariness of the<br />
agreement is at issue, there is no presumption favoring<br />
arbitration. - McCarthy<br />
-_. v. Azure, 1- 22<br />
F.3d 351, 355 (1st Cir.<br />
1994) (presumption of arbitrability does not apply when<br />
Court is considering whether "arbitration rest [SI on a<br />
consensual foundation"). Thus, neither the FAA or MAA, or<br />
the presumption of arbitrability that they may imply, bear<br />
upon the en<strong>for</strong>ceability of this agreement.<br />
Moreover, as shown above, the FAA and MAA are<br />
inapplicable, because the MCAD never signed the arbitration<br />
agreement at issue. Maria, 402 F.3d at 16 ("The EEOC is a<br />
nonparty to the arbitration agreement and there<strong>for</strong>e cannot<br />
be bound by it"). Thus, <strong>Mass</strong>achusetts law, and public<br />
policy controls here, and clearly invalidates the<br />
agreement, as the product of unlawful threats.<br />
CONLWSICW<br />
For tho <strong>for</strong>egoing reasons, the JoulG complaint should<br />
be dismissed, and the MCAD proceedings should be permitted<br />
to continue.<br />
47
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