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Nazarova v. Duke University

United States District Court, M.D. North Carolina

March 2, 2017



          OSTEEN, JR., District Judge

         Presently before this court are Duke University's (“Duke” or “Defendant”) Motion to Compel Arbitration or, in the Alternative, to Dismiss the Complaint for Lack of Subject Matter Jurisdiction (Doc. 11) as well as pro se Plaintiff Muzhgan I. Nazarova's (“Nazarova” or “Plaintiff”) Motion to Strike Defendant's Motion to Compel (Doc. 20) and Motion for Leave to File Suplemental [sic] Complaint (Doc. 21). For the following reasons, Duke's motion will be granted and Nazarova's motions will be denied.


         A. Background

         1. Facts

         “Nazarova's religion is Islam, and her national origin is Azerbaijan.” (Complaint (“Compl.”) (Doc. 2) ¶ 10.) Plaintiff “began employment at Defendant's Library in Durham, North Carolina as a Catalog Librarian for Slavic Resources on or about October 1, 2012.” (Id. ¶ 8.) Natalie Sommerville was Plaintiff's supervisor and Amy Turner was her trainer. (Id. ¶¶ 11, 12.)

         “In or about February 2014 Nazarova began to experience numerous derogatory religion and national origin-based comments from Turner. Specifically, Turner repeatedly called Nazarova a ‘cultural Muslim' and made derogatory statements about Nazarova being a foreigner who was lacking in her ability to speak English.” (Id. ¶ 13.) “On or about February 24th, 2014, Nazarova complained about Turner's derogatory comments about her religion and national origin to Sommerville[] and subsequently to Human Resources Manager Kim Burhop-Service [] on or about May 7th, 2014.” (Id. ¶ 14.) Plaintiff alleges “no investigation of Nazarova's complaints was performed, nor was any action taken against Turner.” (Id.)

         “Nazarova received negative comments on her performance review from Sommerville about her inability to accept performance feedback from others” on two separate occasions -May 8, 2014, and September 5, 2014. (Id. ¶ 15.) Also on September 5, 2014, “Nazarova was informed by Sommerville that she was not recommending her for a tenured position with the University.” (Id. ¶ 17.)

         “Nazarova filed a charge of discrimination and retaliation with the University's Office of Institutional Equity [] on or about September 6, 2014.” (Id.) Also during September 2014, “Nazarova filed an EEOC charge of discrimination” and “met with the University Librarian Deborah Jakubs [] and Associate University Librarian for Collections Robert Byrd [] and raised her concerns about discriminatory and retaliatory actions against her.” (Id. ¶ 18.) Plaintiff alleges that neither party took any action in response to her claims. (Id.)

         “In or about November 2014, Turner and Sommerville revoked Nazarova's cataloging ‘independence' status.” (Id. ¶ 19.) “On or about December 17, 2014, Nazarova received a letter from Jakubs, informing Nazarova that she was not selected for the continuing appointment and was being placed on a two-year probationary status as a result of [the] recommendation of Sommerville and Turner.” (Id. ¶ 20.) Nazarova filed another “EEOC charge of discrimination and retaliation” against Duke “on or about March 27, 2015.” (Id. ¶ 21.) She also alleges that “[s]oon after filing this charge, Nazarova began experiencing regular hostility and a lack of cooperation from her coworkers.” (Id.)

         In April 2015, Plaintiff alleges that “Sommerville intensified her scrutiny of Nazarova's cataloging duties, and attributed errors to Nazarova” in a discriminatory way. (Id. ¶ 22.) In July 2015, Sommerville and Burhop-Service refused to provide Nazarova with access to the Duke's “Aleph” Report tracking system, which would be able to substantiate her alleged “error rates.” (Id. ¶ 23.) In August 2015, Sommerville put Nazarova on a “Performance Improvement Plan” that was allegedly more strict than the standard applied to other employees. (Id. ¶ 24.) In November 2015, “Nazarova received a written warning from Sommerville, ” which she alleges was incorrect. (Id. ¶ 27.) Plaintiff received a second allegedly incorrect written warning for similar errors in February 2016. (Id. ¶ 29.)

         “Because of the discrimination and retaliation against Nazarova by the University, and the ongoing hostility from coworkers, Nazarova felt compelled to resign, and submitted her notice of resignation on or about March 14, 2016.” (Id. ¶ 32.) “Nazarova filed an additional charge of discrimination and retaliation [] on March 28, 2016.” (Id. ¶ 30.)

         2. Claims

         Plaintiff brings her first claim under Title VII, alleging discrimination and disparate treatment due to religion and national origin under 42 U.S.C. § 2000e. (Id. ¶¶ 33-41.) Plaintiff alleges that she “was not selected for the continuing appointment as a Catalogue Librarian” and that she “was held to significantly stricter standards and scrutiny of her work” due to her race and religion. (Id. ¶¶ 36-38.) Plaintiff claims “lost wages, salary, benefits, and emotional distress” as well as punitive damages. (Id. ¶¶ 39-40.)

         Plaintiff's second claim is a Title VII retaliation claim. (Id. ¶¶ 42-53.) Plaintiff alleges that, as she reported the aforementioned racial and religious discrimination through appropriate University and EEOC channels, she experienced various forms of backlash. (Id.) Plaintiff claims “lost wages, salary, benefits, and emotional distress, mental pain, suffering, stress, grief, worry and mental anguish” as well as punitive damages. (Id. ¶ 51.)

         Plaintiff's third claim is a Title VII constructive discharge claim. (Id. ¶¶ 54-61.) Plaintiff alleges that the sum total of the situation caused her “working conditions [to become] so intolerable, a reasonable employee encountering like conditions would have been compelled to resign her employment.” (Id. ¶ 58.) Plaintiff claims “lost wages, salary, benefits, and emotional distress, mental pain, suffering, stress, grief, worry and mental anguish” as well as punitive damages. (Id. ¶ 58.)

         B. Discussion

         Defendant moves to compel arbitration or, in the alternative, to dismiss the complaint for lack of subject matter jurisdiction. (See Doc. 11.) In support of this motion, Defendant has filed the affidavit of Denise Evans, which contains Duke's Dispute Resolution Process and the “Candidate Certification” form containing the arbitration agreement and bearing Plaintiff's signature.[1] (Def.'s Mem. in Supp. of Mot. to Compel (“Def.'s Br.”), Decl. of Denise Evans (“Evans Decl.”) (Doc. 12-1), Ex. A attached to Decl. at 5-10, Ex. B attached to Decl. at 11-12.) Defendant contends these two documents control Plaintiff's rights as an employee and compel arbitration. (Def.'s Br. (Doc. 12) at 2-10.)

         Defendant initially notes that “although not required by the FAA or North Carolina law, the agreement with Plaintiff is in writing and signed.” (Def.'s Br. (Doc. 12) at 7.) “Duke required Plaintiff to agree to submit employment-related grievances to the DRP [Dispute Resolution Process] as a condition of employment, ” to which “Plaintiff agreed by signing the written agreement and by reporting to work and continuing employment up to the time of her resignation on or about March 14, 2016.” (Id. at 7-8.) Defendant further argues that “the arbitration agreement binds both Plaintiff and Duke to arbitrate claims within its scope.” (Id. at 8.)

         Plaintiff does not dispute the veracity of these documents, but instead contends: (1) that her agreement with Duke is a contract of adhesion, (2) that the agreement is unconscionable, and (3) that Duke materially breached the agreement. (Pl.'s Resp. in Opp'n to Def.'s Mot. to Compel Arbitration (“Pl.'s Resp.”) (Doc. 16) at 1-2.)

         The Federal Arbitration Act (“FAA”) governs the resolution of private disputes through arbitration. 9 U.S.C. § 1 et seq.

         Section 2 of the FAA provides:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2. Courts must compel arbitration when a valid arbitration agreement exists because the FAA's provisions are mandatory. See 9 U.S.C. § 2; see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (“Thus, insofar as the language of the Act guides our disposition of this case, we would conclude that agreements to arbitrate must be enforced . . . .”). In order to compel arbitration under the FAA, a party must show: (1) that a dispute between the parties exists, (2) that a contract between the parties includes an arbitration provision which would seem to cover the dispute, (3) that the contract or transaction at issue involves interstate or foreign commerce, and (4) that one party refuses to arbitrate the dispute. See Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th Cir. 2002).

         With regards to the four factors outlined in Adkins, the parties in the present case only contest the existence of “a written agreement that includes an arbitration provision which purports to cover the dispute.” Id. at 500-01. As such, Defendant must show that the contract includes an arbitration provision which covers the dispute in this case. See Id. “It is for the court, not the arbitrator, to decide in the first instance whether the dispute is to be resolved through arbitration . . . [and the court] engage[s] in a limited review to ensure that the dispute is arbitrable - i.e., that a valid agreement to arbitrate exists between the parties and that the specific dispute falls within the substantive scope of that agreement.” Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 937-38 (4th Cir. 1999) (internal punctuation and quotation marks omitted).

         1. A Valid Agreement ...

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