17‐554‐cv DeBello v. VolumeCocomo Apparel, Inc. et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of December, two thousand seventeen.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, DENNY CHIN, Circuit Judges.

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GLENN DEBELLO, Plaintiff‐Appellant,

v. 17‐554‐cv

VOLUMECOCOMO APPAREL, INC., VOLUMECOCOMO APPAREL OF NEW YORK, INC., YONG AHN, AKA ANDREW AHN, HYOSIK CHANG, AKA CHRIS CHANG, Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: VALDI LICUL, Vladeck, Raskin & Clark, P.C., New York, New York.

FOR DEFENDANTS‐APPELLEES: Andreas E. Theodosiou, Braverman Greenspun, P.C., New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Buchwald, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Glenn DeBello appeals a January 26, 2017 judgment of

the district court, entered pursuant to a January 25, 2017 memorandum and order,

dismissing DeBelloʹs employment discrimination claims alleging violations of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and state and local law, under

the doctrine of forum non conveniens. Dismissal was based on a contractual forum

selection clause designating the Superior Court of Los Angeles, West Judicial District as

the exclusive venue for DeBelloʹs claims. DeBello principally argues that the forum

selection clause violates a public policy preference, embodied in Title VIIʹs special

venue provision, for litigating employment discrimination claims in a venue local to the

plaintiff. We assume the partiesʹ familiarity with the underlying facts, procedural

history, and issues on appeal.

We draw the following facts from the partiesʹ pleadings and affidavits,

Martinez v. Bloomberg LP,

(2d Cir. 2014), and view them in the light

most favorable to DeBello, Phillips v. Audio Active Ltd.,

(2d Cir. 2007).

In October 2012, defendant‐appellee VolumeCocomo Apparel, Inc. (ʺVolumeCocomoʺ),

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a clothing manufacturer with U.S. offices in New York and Los Angeles, hired DeBello,

an experienced sales professional, as its Vice President of Product Development and

Private Brands for an initial term of three years at an annual salary of $360,000.

Defendant‐appellee VolumeCocomo Apparel of New York, Inc., is a wholly‐owned

subsidiary of VolumeCocomo and defendants‐appellees Yong Ahn and Hyosik Chang

are executives of both companies. VolumeCocomoʹs headquarters in Los Angeles house

its travel, accounting, payroll, and human resources departments, as well as the teams

responsible for design, production, and price‐setting. To carry out his responsibilities,

DeBello regularly communicated with VolumeCocomoʹs California employees and once

traveled to California.

DeBello alleged that VolumeCocomoʹs employees, including DeBelloʹs

supervisor Mitchell Rudnick, repeatedly harassed and humiliated DeBello because they

believed he was too feminine and because of what they perceived to be his sexual

orientation. The harassment took place in New York and occurred almost daily. In

February 2013, DeBello complained about his treatment to Rudnick, who ignored and

dismissed his concerns. In March 2013, VolumeCocomo reduced DeBelloʹs annual

salary by one‐third, and in April 2013, VolumeCocomo fired DeBello without

explanation.

DeBelloʹs employment agreement (the ʺAgreementʺ) includes a choice of

law and forum selection clause, which provides as follows: ʺAny dispute arising from

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the relationship between the parties to this Agreement shall be governed by and

construed under and according to California law, and any action or arbitration based

thereon shall be venued in the Superior Court of Los Angeles, West Judicial District.ʺ

App. 35 ¶ 4.3. The Agreement also contains a provision confirming that the ʺparties

have each received independent legal advice from attorneys of their own choosing with

respect to the terms of this Agreementʺ and that the attorneys had the opportunity to

review the Agreement and make changes. Id. ¶ 4.9.

In October 2013, DeBello filed a discrimination complaint with the U.S.

Equal Employment Opportunity Commission, which issued DeBello a notice of right to

sue in October 2015. On January 13, 2016, DeBello brought this action against

defendants alleging discrimination, a hostile work environment, and retaliation in

violation of Title VII, the New York State Human Rights Law,

et

seq., and N.Y.C. Administrative Code § 8‐107 et seq., as well as breach of contract under

California common law. On April 11, 2016, defendants moved to dismiss under the

doctrine of forum non conveniens based on the Agreementʹs forum selection clause. The

district court granted the motion to dismiss. This appeal followed.

The ʺappropriate way to enforce a forum‐selection clause pointing to a

state or foreign forum is through the doctrine of forum non conveniens.ʺ Atl. Marine

Const. Co. v. U.S. Dist. Court for W. Dist. of Tex.,

(2013). Although we

have not decided the standard of review for dismissal of a suit under forum non

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conveniens based on a forum selection clause, Martinez,

, we need not

address that issue here, because we conclude that the district courtʹs dismissal was

proper even under de novo review.

A forum selection clause is presumptively enforceable if it was

ʺreasonably communicated to the party resisting enforcement,ʺ has ʺmandatory force,ʺ

and ʺcovers the claims and parties involved in the dispute.ʺ Phillips,

.

DeBello does not dispute that the forum selection clause at issue is presumptively

enforceable.

A party can rebut the presumption by demonstrating that enforcement of

the clause ʺwould be unreasonable or unjustʺ under M/S Bremen v. Zapata Off‐Shore Co.,

(1972). Martinez,

(citation omitted). We decline to enforce a

forum selection clause if: ʺʹ(1) its incorporation was the result of fraud or overreaching;

(2) the law to be applied in the selected forum is fundamentally unfair; (3) enforcement

contravenes a strong public policy of the forumʹ in which suit is brought; ʹor (4) trial in

the selected forum will be so difficult and inconvenient that the plaintiff effectively will

be deprived of his day in court.ʹʺ

at 228 (quoting Phillips,

). Under the

third Bremen factor, the only one on which DeBello relies, we decide whether

enforcement contravenes a strong public policy of the forum state by looking to ʺfederal

cases or statutes . . . because such materials may constitute declarations of public policy

that justifies invalidating a forum selection clause.ʺ

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The district court rejected DeBelloʹs argument that enforcement of the

forum selection clause contravenes public policy, concluding that DeBello failed to

demonstrate that the California state court could not adequately adjudicate his claims

or protect his civil rights. DeBello contends that he was not required to make either

showing.

We agree with DeBello that a forum selection clause may be deemed

invalid based solely on its conflict with a strong public policy of the forum state. Under

Martinezʹs plain language, the four factors offer independent grounds for invalidating a

forum selection clause. See

; see also Bremen,

(ʺA contractual

choice‐of‐forum clause should be held unenforceable if enforcement would contravene

a strong public policy of the forum in which suit is brought, whether declared by statute

or by judicial decision.ʺ). In challenging a forum selection clause, a plaintiff may argue

that the contractual forum is inadequate, but he or she is not required to do so.

DeBello argues that the forum selection clause at issue contravenes a

strong public policy, reflected in Title VIIʹs special venue provision, for litigating

employment discrimination claims in a local venue affected by the discriminatory acts.

Title VII provides for venue in the judicial district where (1) the unlawful employment

practice took place, (2) the employment records relevant to the practice are maintained

and administered, or (3) the plaintiff would have worked but for the unlawful

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employment practice. 42 U.S.C. § 2000e‐5(f)(3).1 But if the employer is not located in

any of those districts, then venue is proper in the judicial district of the employerʹs

principal office. Id. The venue provision was designed to ʺprevent ʹnational companies

with distant officesʹ from seeking to discourage claims by ʹforc[ing] plaintiffs to litigate

far from their homes.ʹʺ Martinez, 740 F.3d at 228–29 (alteration in original) (quoting

Passantino v. Johnson & Johnson Consumer Prods., Inc.,

, 505 (9th Cir. 2000));

see also Stebbins v. State Farm Mut. Auto. Ins. Co.,

(D.C. Cir. 1969)

(ʺ[T]he intent of Congress to limit venue to the judicial district concerned with the

alleged discrimination seems clear.ʺ).

We have declined to ʺadopt a per se ruleʺ giving contractual forum

selection clauses ʺdispositive effect where the civil rights laws are concerned,ʺ noting

the ʺstrong federal public policy favoring enforcement of the civil rights laws so

important to the advancement of modern society.ʺ Red Bull Assocs. v. Best Western Intʹl,

Inc.,

(2d Cir. 1988). Although we find no circuit court decisions

squarely addressing this issue, several district courts have held forum selection clauses

1 Title VIIʹs venue provision provides in relevant part:

Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.

42 U.S.C. § 2000e‐5(f)(3).

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unenforceable where they conflict with Title VIIʹs special venue provision. See, e.g.,

Smith v. Kyphon, Inc.,

(M.D. Tenn. 2008); Thomas v. Rehab. Servs.

of Columbus, Inc.,

(M.D. Ga. 1999).

We conclude, however, that in the circumstances here, DeBelloʹs public

policy argument does not overcome the presumption that ʺa valid forum‐selection

clause [should be] given controlling weight in all but the most exceptional cases.ʺ Atl.

Marine,

(alteration in original) (quoting Stewart Org., Inc. v. Ricoh Corp.,

(1988) (Kennedy, J., concurring)). This is not an exceptional case. In

Martinez, we upheld a forum selection clause designating England as the exclusive

forum for the plaintiffʹs claims under the Americans with Disabilities Act, despite the

Actʹs incorporation of Title VIIʹs special venue provision and the ʺActʹs identification of

a strong federal interest in combatting discrimination based on disability.ʺ

. We are not persuaded here that the freely‐bargained forum selection clause is

unenforceable based solely on its conflict with a policy preference reflected in Title VIIʹs

special venue provision. Although DeBello is deprived of his choice of venue, he

retains his right to litigate his discrimination claims. Cf. Desiderio v. Natʹl Assʹn of Sec.

Dealers, Inc.,

(2d Cir. 1999) (compulsory arbitration clauses enforceable

for Title VII claims). Moreover, DeBello, an experienced professional who was hired for

an executive position at a relatively high salary, willingly entered into his employment

agreement knowing it contained a forum selection clause, and he did so after he had the

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opportunity to consult with an attorney and make changes to the Agreement.

VolumeCocomo is headquartered in Los Angeles and DeBello regularly interacted with

VolumeCocomoʹs California‐based employees.

We emphasize that forum selection clauses do not have ʺdispositive effect

where the civil rights laws are concerned,ʺ Red Bull,

, and we do not

foreclose the possibility that a conflict with Title VIIʹs special venue provision,

combined with other factors, may render a forum selection clause unenforceable. We

hold simply that DeBello has not made a sufficient showing here.

We have considered DeBelloʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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