Nicholas Malfitano Jan. 19, 2016, 4:11pm


PHILADELPHIA – A financial services firm that filed to dismiss a pending discrimination suit against it and compel arbitration with the plaintiff has had that filing rejected in federal court.

On Thursday, Judge J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania denied Fiserv’s request to dismiss Kim Shank’s lawsuit and force arbitration proceedings to begin.

Shank, 57, was employed as a Quality Analyst by Fiserv from May 2007 until March 2014, in its King of Prussia location. In January 2014, Shank was involved in a serious car accident, and subsequent treatment necessitated Shank to take medical leave from Fiserv, via the Family Medical Leave Act (FMLA).

Though Shank suffered disabling injuries in the accident and was allegedly not fully recovered, her doctor cleared her to return to work – which she did in March 2014, according to the suit. Shank was terminated the day after her return, on March 20, 2014. 

Fiserv told Shank she was being terminated “as part of a layoff that had occurred one month earlier and because her position was eliminated due to a reorganization.” However, Shank believes she was terminated due to her disability, age, national origin, and/or for taking FMLA leave.”

In her September-filed complaint, Shank alleges Fiserv violated the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act (PHRA), and the FMLA. In response, Fiserv filed the present motion to dismiss and compel arbitration in November.

On April 17, 2007, Shank signed a “Mutual Agreement to Arbitrate Claims” shortly before her tenure with Fiserv began. Fiserv argues that this agreement contractually obliges the plaintiff to arbitrate the claims in her complaint, while Shank believes the arbitration agreement is invalid because members of Fiserv never signed it themselves, and thus she is entitled to pursue her claims in court.

Under Pennsylvania law, a valid contract requires three elements: “(1) A mutual manifestation of an intention to be bound, (2) terms sufficiently definite to be enforced, and (3) consideration.”

Shank’s argument that the form’s validity is compromised due to lack of a signature from Fiserv found favor with Joyner, who noted the agreement’s express language indicated a “clear and unambiguous intent” of the parties to forgo litigation if they signed the agreement.

Joyner said, “The agreement states: In utilizing this process and signing this agreement, the employee and the company relinquish all rights to pursuing through the court the claims covered by this agreement.”

“Because the defendant did not sign the agreement, there is no intent to be bound, nor any consideration for the plaintiff’s promise. Accordingly, we find that there is no valid contract to arbitrate the claims here,” Joyner stated.

Joyner then rejected Fiserv’s motion to dismiss and compel arbitration.

The plaintiff is represented by Kevin C. Console of Console Law Offices, in Philadelphia.

The defendant is represented by Amanda E. Colvin and Charles B. Jellinek of Bryan Cave in St. Louis, plus Michael D. LiPuma in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-05319

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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