Case 1:23-cv-10018-RGS Document 21 Filed 03/17/23 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`CIVIL ACTION NO. 23-10018-RGS
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`ADAM MOORE
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`v.
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`BRISTOL MYERS SQUIBB, DAVID
`SHEPPERLY, and CLAUDIA PEZZINA
`
`MEMORANDUM AND ORDER ON
`DEFENDANTS’ MOTION TO COMPEL ARBITRATION
`
`
`
`
`
`
`STEARNS, D.J.
`
`March 17, 2023
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`
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`Adam Moore brings this lawsuit against his former employer,
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`defendant Bristol Myers Squibb, for his termination on June 21, 2022, based
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`on his failure to comply with the company’s COVID-19 vaccine policy.1
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`Moore claimed a sincere religion-based aversion to use of the vaccine and his
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`request for a religious accommodation was denied. After initiating
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`arbitration as required by his employment agreement, Moore filed a petition
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`to stay the arbitration in state court; defendants removed here. Defendants
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`now ask this court to compel Moore to participate in the ongoing arbitration.
`
`
`1 While Moore includes the two individual defendants in the caption
`of his state court filing and mentions them once in the body of his pleading,
`he fails to identify them. The court assumes that they are employees of
`Bristol Myers Squibb.
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`CIVIL ACTION NO. 23-10018-RGS
`
`ADAM MOORE
`
`v.
`
`BRISTOL MYERS SQUIBB, DAVID
`SHEPPERLY, and CLAUDIA PEZZINA
`
`MEMORANDUM AND ORDER ON
`DEFENDANTS’ MOTION TO COMPEL ARBITRATION
`
`
`
`
`
`
`STEARNS, D.J.
`
`March 17, 2023
`
`
`
`Adam Moore brings this lawsuit against his former employer,
`
`defendant Bristol Myers Squibb, for his termination on June 21, 2022, based
`
`on his failure to comply with the company’s COVID-19 vaccine policy.1
`
`Moore claimed a sincere religion-based aversion to use of the vaccine and his
`
`request for a religious accommodation was denied. After initiating
`
`arbitration as required by his employment agreement, Moore filed a petition
`
`to stay the arbitration in state court; defendants removed here. Defendants
`
`now ask this court to compel Moore to participate in the ongoing arbitration.
`
`
`1 While Moore includes the two individual defendants in the caption
`of his state court filing and mentions them once in the body of his pleading,
`he fails to identify them. The court assumes that they are employees of
`Bristol Myers Squibb.
`
`
`
`Case 1:23-cv-10018-RGS Document 21 Filed 03/17/23 Page 2 of 7
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`BACKGROUND
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`
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`Bristol Myers hired Adam Moore as an Operations and Maintenance
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`Associate on February 18, 2020. As a condition of Moore’s employment,
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`Bristol Myers required Moore to read and accept the company’s Arbitration
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`Agreement. See Small Decl. (Dkt # 16-1) ¶¶ 2-3. Relevant to this motion, the
`
`Arbitration Agreement provides that it is governed by the Federal Arbitration
`
`Act (FAA) and that:
`
`all disputes, claims, complaints, or controversies (“Claims”) that
`[Plaintiff] ha[s] now, or at any time in the future may have,
`against Bristol-Myers Squibb Company . . . including claims
`relating to . . . wrongful discharge, discrimination and/or
`harassment claims, retaliation claims, claims for overtime,
`wages, leaves, paid time off, sick days, compensation . . .
`including but not limited to claims under . . . Title VII of the Civil
`Rights Act of 1964 . . . The Massachusetts Wage Act, and any
`other claim under any federal, state or local statute . . . arising
`out of and/or related to [his] . . . employment with the Company,
`and/or termination of [his] employment with the Company . . .
`will be resolved by arbitration and NOT by a court or jury. THE
`PARTIES HEREBY FOREVER WAIVE AND GIVE UP THE
`RIGHT TO HAVE A JUDGE OR A JURY DECIDE ANY
`COVERED CLAIMS.
`
`Small Decl., Ex. A at ¶ 1 (emphasis in original).
`
`The Agreement explicitly lists the types of employee claims not subject to
`
`arbitration:
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`a. Claims for workers’ compensation benefits.
`
`b. Claims for unemployment compensation benefits.
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`2
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`Case 1:23-cv-10018-RGS Document 21 Filed 03/17/23 Page 3 of 7
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`c. Claims for benefits under a plan that is governed by the
`Employee Retirement Income Security Act of 1974 (“ERISA”).
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`d. Claims that are subject to the exclusive jurisdiction of the
`National Labor Relations Board.
`
`
`
`
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`e. Any claim that is expressly precluded from inclusion in this
`Arbitration Agreement by a governing federal statute.
`
`
`Id. ¶ 3. The Agreement informs the employee that its terms are a condition
`
`of employment stating that, “if you begin employment with the Company
`
`without signing the Agreement it will be effective, and you will be deemed to
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`have agreed to, ratified, and accepted this Agreement through your
`
`knowledge of it you’re your acceptance of and/or continued employment
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`with the Company.” Id. ¶ 6(f). Moore signed the Arbitration Agreement on
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`January 28, 2020. Id. at 5. In executing the Agreement, Moore represented
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`that he “carefully read this Agreement,” “underst[ood] the terms of this
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`Agreement,” and “enter[ed] into this Agreement voluntarily.” Id.
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`
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`Bristol Myers terminated Moore’s employment on June 21, 2022.
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`Moore had filed a Demand for Arbitration with Judicial Arbitration and
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`Mediation Services (JAMS), the arbitration entity set out in the Agreement.
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`Honorable Nancy Holtz (ret.) was appointed (chosen according to the
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`parties’ rankings of seven proposed arbitrators) and a schedule was set.
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`Discovery in the arbitration had commenced, Moore’s deposition had been
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`taken, and the dispositive motion deadline was set for the following month,
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`3
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`Case 1:23-cv-10018-RGS Document 21 Filed 03/17/23 Page 4 of 7
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`when, on December 9, 2022, Moore filed a request to stay the arbitration in
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`the Middlesex County Superior Court. Moore based his request to forgo the
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`arbitration process on his belief that all JAMS staff had received the COVID-
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`19 vaccine and consequently would be bias in handling his dispute. See Dkt.
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`No. 1-B. In Moore’s state court filing he asserts that “[t]his court has
`
`jurisdiction due to the location of the parties, amount in question, nature of
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`the claims and that 1st amendment issues are always in the public’s
`
`interest.” Pet. at 3 (emphasis in original). Moore also states that Bristol
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`Myers “[a]pplied a policy with disparate treatment of both secular and non-
`
`secular objections in violation of The Civil Rights Act 1964.” Bristol Myers
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`removed the case to this court.
`
`
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`After the court denied Moore’s motion to remand (Dkt #14), Bristol
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`Myers filed a motion to compel Moore to reengage in his previously filed
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`arbitration at JAMS. See Dkt # 15. Moore opposes the motion. See Dkt # 20.
`
`DISCUSSION
`
`
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`“[Q]uestions of arbitrability must be addressed with a healthy regard
`
`for the federal policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v.
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`Mercury Constr. Corp., 460 U.S. 1, 24 (1983). The liberal policy favoring
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`arbitration in the FAA requires “ambiguities as to the arbitration clause itself
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`[to be] resolved in favor of arbitration.” Ouadani v. TF Final Mile LLC, 876
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`
`
`4
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`
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`Case 1:23-cv-10018-RGS Document 21 Filed 03/17/23 Page 5 of 7
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`F.3d 31, 36 (1st Cir. 2017) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of
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`Leland Stanford Junior Univ., 489 U.S. 468, 476 (1989)).
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`
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`A party that seeks to compel arbitration pursuant to the FAA, 9 U.S.C.
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`§ 1, et seq., must show “(1) that a valid agreement to arbitrate exists, (2) that
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`the movant is entitled to invoke the arbitration clause, (3) that the other
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`party is bound by that clause, and (4) that the claim asserted comes within
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`the clause’s scope.” Ouadani, 876 F.3d at 36, quoting InterGen N.V. v. Grina,
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`344 F.3d 134, 142 (1st Cir. 2003). See also Hoolahan v. IBC Advanced Alloys
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`Corp., 947 F.3d 101, 112 (1st Cir. 2020) (explaining requirements of Section
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`10(a) of the Federal Arbitration Act). The First Circuit reviews motions to
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`compel arbitration under the FAA pursuant to the summary judgment
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`standard. See Air-Con, Inc. v. Daikin Applied Latin Am., LLC, 21 F.4th 168,
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`175 (1st Cir. 2021).
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`Ultimately, Moore bears the burden of demonstrating that his claims
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`are outside the scope of arbitrable claims. See Green Tree Fin. Corp.-Ala. v.
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`Randolph, 531 U.S. 79, 91 (2000) (“[A] party resisting arbitration bears the
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`burden of proving that the claims at issue are unsuitable for arbitration.”).
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`In his Opposition, Moore argues that his termination (and the arbitration) is
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`based on “[t]he ‘Covid-19 Vaccination and Testing: Emergency Temporary
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`Standard’ [which was] withdrawn by OSHA [and] . . . was never a federal
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`5
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`
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`Case 1:23-cv-10018-RGS Document 21 Filed 03/17/23 Page 6 of 7
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`state or local statute.” Pl.’s Opp’n at 2. As the cited portions of the
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`Agreement and Moore’s own pleadings make clear, the bases of Moore’s
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`claims are discrimination under employment statutes and free exercise of his
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`religious beliefs under the First Amendment to the United States
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`Constitution – which he believes include the right not to vaccinate. There is
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`no legitimate argument that Moore’s claims regarding his termination are
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`not arbitrable under the parties’ Agreement.
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`To succeed on a motion to stay the proceedings, Moore must
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`demonstrate (1) a likelihood of success on the merits; (2) that he will be
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`irreparably injured absent a stay; (3) that issuance of the stay will not
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`substantially injure the other parties interested in the proceeding; and (4)
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`where the public interest lies. See Nken v. Holder, 556 U.S. 418, 425-426
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`(2009) (internal quotations omitted). In Nken, the Supreme Court tells us
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`that “[t]he first two factors . . . are the most critical.” Id. at 434. In his
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`Opposition, Moore focuses almost entirely on arbitrability. Moreover, the
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`court agrees with defendants’ position as to the first two factors that Moore
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`offers nothing more than an accusation of bias and, notwithstanding, he can
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`ask for review of any “evident partiality.” See 9 U.S.C. § 10(a)(2). While the
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`third factor is of less consequence, defendants have invested time, energy,
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`and expense in participating in the arbitration process. As to the fourth
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`6
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`Case 1:23-cv-10018-RGS Document 21 Filed 03/17/23 Page 7 of 7
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`factor, Moore argues that “First Amendment issues are always in the public
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`interest [and that] this action must be allowed in open court.” However,
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`Moore agreed to arbitrate such claims, and that is where his case must begin.
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`ORDER
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`The motion to compel arbitration is ALLOWED. This case, initiated by
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`Moore in state court and removed to this court by defendants, is
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`DISMISSED.
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`SO ORDERED.
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`_____
`Richard G. Stearns___
`UNITED STATES DISTRICT JUDGE
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`7
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