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Raymond James Fin. Servs., Inc. v. Fenyk

United States Court of Appeals, First Circuit

March 11, 2015

ROBERT MICHAEL FENYK, Respondent, Appellant


Norman E. Watts, with whom Watts Law Firm, PC was on brief, for appellant.

Sandra D. Grannum, with whom Davidson & Grannum, LLP, Peter J. Pingitore, and Pingitore & Fitzpatrick, LLC were on brief, for appellee.

Before Howard, Lipez, and Barron, Circuit Judges.


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LIPEZ, Circuit Judge.

An arbitration panel awarded appellant Robert Fenyk $600,000 in back pay based on a claim that he was unlawfully terminated from his job as a stock broker because he is an alcoholic. The district court vacated the award, concluding that the arbitrators lacked authority to grant that remedy because Fenyk brought no claims under the state law the arbitrators applied. Fenyk now seeks reinstatement of the award, arguing that the district court failed to give due deference to the arbitrators' ruling.

We reverse the district court's judgment. Although the arbitration decision may have been incorrect as a matter of law, it was not beyond the scope of the panel's authority.


A. Factual Background

Appellant Fenyk was associated with appellee Raymond James Financial Services (" RJFS" ) as a securities broker for more than seven years, first in New York City and then, beginning in October 2004, in Vermont. Fenyk managed his own small branch office in Vermont and was designated an independent contractor for RJFS under his agreement with the company. RJFS is based in Florida, and the " Independent Sales Associate Agreement" that Fenyk signed contained a provision stating that Florida law would govern disputes between the parties. Fenyk also signed RJFS's Business Ethics Policy, in which he agreed to arbitrate any conflicts " arising

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out of the independent contractor relationship."

In May 2009, during a routine check of Fenyk's customer communications, an RJFS reviewer noticed an email to a client, Fenyk's former domestic partner, suggesting that Fenyk had an alcohol problem. The email began with information about the client's account, but went on to note Fenyk's " slip" and his " need [for] meetings and real sobriety for a dialoug [sic] with you." The email also reported that Fenyk's " new AA friend was very hard on [him] last night."

The reviewer alerted Fenyk's RJFS supervisors in Florida to the email. On May 27, Thomas Harrington, regional director for the Northeast, and John Tholen, the assistant regional director, called Fenyk and told him they were no longer comfortable supervising him from afar and his contract would be terminated in thirty days.[1] Harrington testified that he decided to terminate Fenyk's affiliation with RJFS as a result of the email because he was concerned about Fenyk's " ongoing sobriety" and the possibility that he was transacting business with clients while he had " an alcohol problem." Although Fenyk's employment with RJFS initially was extended beyond the thirty days so he could arrange a sale of his client " book" to another RJFS broker, the relationship ended on July 1, 2009, after Fenyk decided not to proceed with that sale.

Approximately two years later, in June 2011, Fenyk filed a complaint in Vermont state court alleging that he had been fired on account of his sexual orientation and his status as a recovering alcoholic, in violation of Vermont's Fair Employment Practices Act (" VFEPA" ), Vt. Stat. Ann. tit. 21, § 495. Once alerted by RJFS of his obligation to arbitrate employment disputes, Fenyk dismissed the complaint and brought an arbitration proceeding before the Financial Industry Regulatory Authority (" FINRA" ). His FINRA Statement of Claim reiterated the same two causes of action asserted in his court complaint: retaliation based on sexual orientation and disability, in violation of Vermont law. Fenyk sought $665,000 in back pay, $588,000 in front pay, and $250,000 in punitive damages, along with attorney's fees and costs.

In addition to denying the allegations of discriminatory action, RJFS responded to Fenyk's filing by asserting that Vermont law did not apply to the parties' relationship, and thus the Vermont claims necessarily failed; that Fenyk was an independent contractor, not an employee, and was therefore not protected by either Florida's or Vermont's employment discrimination law; and that his claims were time-barred.

A hearing was held before a panel of three arbitrators in January 2013. On the opening day, Fenyk asked to amend his complaint to add a claim under the Americans with Disabilities Act, 42 U.S.C. § § 12111-12117, noting that the federal law " mirrors" the Vermont and Florida employment discrimination statutes and that, hence, there would be no prejudice to the defense. Counsel for RJFS objected to the proposed amendment as untimely, stating that she had " responded to the claims that have been proffered." She further noted that Fenyk had not, in fact, alleged discrimination per se, but had only asserted claims for retaliation. Fenyk did not at that time propose to add claims under Florida law.

The panel proceeded without deciding whether to accept Fenyk's proposed

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amendment and, following the four-day hearing, Fenyk again moved to amend his Statement of Claim, this time seeking to add disability discrimination claims under federal, New York, and Florida law.[2] He argued that the statutes and the elements of the claims " are essentially the same[,] as are the interpretive judicial decisions," though he ...

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