DECISION and ORDER Plaintiff commenced this action by Complaint filed January 21, 2021 alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §12117(a) et seq. (“the ADA”), and the Civil Rights Act of 1991, 42 U.S.C. §1981. Plaintiff received a favorable disposition of Plaintiff’s administrative complaint filed with the N.Y. Division of Human Rights (“NYDHR” or “DHR”) on December 24, 2019, and a right to sue letter from the NYDHR on July 29, 2020, and the EEOC on October 2, 2020. Dkt. 12 at 11. Specifically, Plaintiff alleges that after satisfactory employment with Defendant as a physical therapist, commencing in 2003, Defendant terminated Plaintiff in 2019 upon discovering that Plaintiff was then suffering from a brain tumor requiring a reasonable accommodation which Defendant refused to provide. This case was referred to the undersigned by Hon. John L. Sinatra, Jr. for all pretrial mattes on March 23, 2021 (Dkt. 7). By papers filed March 22, 2021, Defendant moved, pursuant to the Federal Arbitration Act §2 (“FAA __”) to compel arbitration and, pursuant to FAA §3, to stay further proceedings in the instant action (Dkt. 5) (“Defendant’s motion”). Motions to compel and to stay under FAA §§2 and 3, are non-dispositive. See Manley v. Diversified Recovery Bureau, LLC, 2021 WL 4324412, at *1 n. 1 (W.D.N.Y. Sept. 23, 2021) (citing Kiewit Constructors, Inc. v. Franbilt, Inc., 2007 WL 2461919, at *1 n. 1 (W.D.N.Y. Aug. 24, 2007) (citing Herko v. Metropolitan Life Ins. Co., 978 F.Supp. 141, 142 n.1 (W.D.N.Y. 1997))). Arbitration agreements are enforceable in federal court pursuant to §2 of the FAA. See Manley, 2021 WL 4324412, at *2 (citing Salerno v. Credit One Bank, NA, 2015 WL 6554977, at *3 (W.D.N.Y. Oct. 29, 2015)), and “arbitration is strongly favored by federal courts.” Manley, 2021 WL 4324412, at *2 (citing Moses v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983); State of New York v. Oneida Indian Nation of N.Y., 90 F.3d 58, 61 (2d Cir. 1996)). Whether a federal claim is subject to arbitration depends on whether there exists a valid agreement to arbitrate determined by reference to state contract law, Salerno v. Credit One Bank, NA, 2015 WL 6554977 at * 4 (W.D.N.Y. Oct. 29, 2015) (quoting Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir. 2002) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995))), whether the federal claim at issue is within the scope of the agreement, Abdullayeva v. Attending Homecare Servs, LLC, 928 F.3d 218, 212-22 (2d Cir. 2019), and whether the claim has been excluded from arbitration as a matter of Congressional policy. Id. Where, however, the party seeking to compel arbitration has engaged in judicial litigation of the matter or delayed in compelling arbitration, such party may be found to have waived arbitration warranting denial of a motion to compel arbitration. See Baker & Taylor, Inc. v. AlphaCraze.com Corp., 602 F.3d 486, 492 (2d Cir. 2010) (defendant defaulted and waived right to compel arbitration by proceeding to litigate in district court for eight months while plaintiff engaged in discovery and motion practice but defendant never appeared, defended itself or sought to compel arbitration). Here, Plaintiff does not dispute that Plaintiff’s ADA claim, i.e., wrongful termination, is within the scope of the putative arbitration agreement set forth by Defendant. See Dkt. 11 at 6 (“Plaintiff does not dispute that the agreement’s language contemplated that post-termination discrimination claims were subject to its provision.”) Nor does Plaintiff dispute that Plaintiff’s ADA claim is arbitrable. Id. (citing EEOC v. Waffle House, Inc., 534 U.S. 279, 299 n. 1 (2002) (ADA claim subject to arbitration agreement)); see also Virk v. MapleGate Anesthesiologists, P.C., 657 Fed.Appx. 19, 22-23 (2d Cir. 2016) (arbitration agreement in employment contract was enforceable with regard to ADA claim); Germosen v. ABM Indus. Corp, 2014 WL 4211347, at *6 (S.D.N.Y. Aug. 26, 2014) (ADA claims arbitrable under FAA) (citing cases). Instead, Plaintiff opposes Defendant’s motion on two grounds: (1) Plaintiff did not execute an agreement to arbitrate as Defendant contends, and (2) Defendant’s undue delay in requesting arbitration amounts to laches or estoppel or a waiver of arbitration, assuming the court finds the putative arbitration agreement is otherwise enforceable. Dkt. 11 at 8. Plaintiff’s Acceptance of the DRA As to Plaintiff’s first objection, Plaintiff contends Plaintiff did not affirmatively acknowledge receipt of Defendant’s new arbitration program (the “Dispute Resolution Agreement” or “DRA”) which included the arbitration agreement as promulgated by Defendant in 2013 because the e-mail signature relied on by Defendant to demonstrate Plaintiff received the document misspelled Plaintiff’s name, which Plaintiff maintains demonstrates it could not have been entered into Defendant’s e-mail system by Plaintiff as Defendant contends Defendant’s digital e-mail records indicate. Dkt. 11 at 4-5. Plaintiff further claims the time of Plaintiff’s alleged acknowledgement was in the afternoon, 2:33 p.m., on August 13, 2013, a time when Plaintiff would not typically be engaged in providing services to Defendant. Id. at 5. See also Dkt. 11 Exh. 1 (Declaration of James Erich LeRoy) (“LeRoy Declaration”). According to Plaintiff, these discrepancies demonstrate Defendant’s failure to meet Defendant’s burden of establishing Plaintiff knowingly agreed to Defendant’s new arbitration (DRA) program at that time. Id. at 5. Upon acknowledging receipt of the DRA, the employee was advised in a “pop-up” that unless the employee filed an opt-out form (“Opt-Out form”) with Amedisys within 30 days, the employee would be bound by the DRA including the arbitration agreement. Declaration of T. Terrell West, Amedisys Director of Talent Operations & Compliance (“West Declaration”) Dkt. 5-2 6 (referencing Exh. D at 4, 12). Plaintiff, however, does not dispute that according to Defendant’s computerized records of Plaintiff’s e-mails at that time, and assuming Plaintiff did in fact as Defendant’s records indicate, Dkt. 5-2 at 20-21, receive the DRA on August 13, 2013, at 10:48 a.m., Dkt. 5-2 at 10, and acknowledged receipt at 2:33 p.m., Dkt. 5-2 at 20, Plaintiff failed to opt-out of the arbitration program by filing within 30 days of receipt of the DRA an Opt-Out form as the DRA provided, Dkt. 5-2 at 12, thereby establishing Plaintiff’s assent to the arbitration agreement. Dkt. 11 (passim). Defendant initially emailed the DRA program to Plaintiff on August 6, 2013 at 1:30 p.m., Dkt. 5-2 at 8, requesting Plaintiff acknowledge its receipt but Plaintiff failed to do so at that time. Dkt. 5-2
