RBC In Breathless Arbitration Over Zombies And Beauty Parlor Fumes

[R]espondent alleged that he became ill due to his exposure to harmful chemicals and other environmental allergens which were present within the RBC Vermont office as a consequence of an improperly installed and operated HVAC system. In its Opposition, Claimant asserted, among other things, that Respondent's personal injury claim is not contemplated by the arbitration agreement entered into by the parties and FINRA arbitration is not the proper forum to decide any such personal injury claims. In his Reply, Respondent asserted, among other things, that FINRA arbitration is the proper forum for the determination of all claims between the parties. After hearing oral arguments from the parties at the July 16, 2012, prehearing conference, the Panel issued an Order granting the Motion.

On or about December 5, 2014, Respondent filed a Motion to Amend First Amended Counterclaims for the purpose of including statutory employment discrimination claims. Claimant did not file a written response. At the evidentiary hearing on December 9,  2014, prior to a ruling from the Panel, Respondent withdrew his Motion to Amend Counterclaims.

On or about December 5, 2014, Claimant filed a Motion to Amend for the purpose of adding a claim against Respondent for contribution of half of a FINRA arbitration award in Case Number 09-00524 (Wachovia Securities, LLC vs. RBC Capital Markets, et al.) in the amount of $271,000.00, which the Panel in that arbitration assessed to Claimant RBC Capital Markets LLC and Respondent Bushey jointly and severally. Respondent did not file a written response. At the outset of the hearng on December 9, 2014. The  Panel heard argument on Claimant's Motion to Amend. Respondent opposed the motion on the basis that the amendment had no relation to the proceedings, among other things. Claimant replied that it would be fair and reasonable to add the claim, which would not take any time or require any real extension of the proceedings. The Panel heard oral argument from the parties on December 9, 2014, and thereafter denied Claimant's Motion to Amend without prejudice.

[R]espondent's counsel submitted a copy of a court order in the matter of Bushey v. RBC Capital Markets. LLC and Aaron Scott from the United States District Court for the District of Vermont dated January 27, 2015, which stayed the court action pending a final determination by the FINRA Panel in this arbitration and ordered that Respondent Bushey must arbitrate all of his non-statutory discrimination claims. On or about February 1, 2015, FINRA Dispute Resolution provided the Panel with a copy of the court order.

14) On or about March 31,2009 BUSHEY contacted RBC's Project Manager Kurt P. Ostrander by email to report that "we have a beauty salon in the building and it doesn't appear [that] they have very good ventilation [and that] the smell in the office of perm is so strong that some of the brokers are feeling sick". Ostrander responded by email to state: "I have forwarded your note to RH [SMITH who was RBC"s Senior Project Manager] to contact the landlord or contractor today and resolve this quickly."

. . .

19) On May 21,2009 BUSHEY made the decision to close the New Office Space and to allow his staff to work from the RBC Williamstown office or from home until "we figure this out". BUSHEY also reported by email to SCOTT:" Everyone is walking around looking like Zombies even with the front door open. My head hasn't felt clear for a week". 

28) On or about July 6, 2009 BUSHEY spoke by telephone with DEFENDANT SCOTT, to advise him that his work-place symptoms had not yet cleared up and that the symptoms he was continuing to experience made it difficult for him to remain in the office on a full-time basis. In the call BUSHEY asked SCOTT whether he should resign as Branch Manager or should relocate to the Williamstown office. 

29) DEFENDANT SCOTT responded by shouting at him and accusing him of "not sticking it out" and of displaying bad leadership to his co-workers who had similar symptoms. Following this conversation, BUSHEY became aware that SCOTT and others at RBC had decided that he was no longer a "company man" and that they, particularly DEFENDANT SCOTT, sought to make it impossible for him to remain as an employee of RBC. 

30) Following the shouting match with DEFENDANT SCOTT, BUSHEY left the office that night and found that his symptoms had worsened. BUSHEY was then confined to bed due to illness for the next three days. When his symptoms abated, BUSHEY returned to work at the RBC Vermont Office but noticed that his symptoms continued to reoccur and seemed to be related to the length of time he spent each day in the office. 

In support of his constructive discharge claim, Plaintiff alleges that RBC asked him to be the branch manager of its Manchester, Vermont office, which RBC decided to relocate to a building with a beauty salon with an allegedly defective HV AC system. According to Plaintiff, RBC failed to provide a safe workplace: 

RBC's efforts to renovate and set up and operate a new office in Vermont imposed upon it a duty to provide a safe workplace for its employees. That duty arose at common law and is enforceable in Vermont by an employee against his employer pursuant to the provisions of title 21 Vermont Statutes Annotated section 223(a). That duty required among other things RBC to provide its employees including BUSHEY with "safe and healthful working conditions at their workplace [so that] insofar as practicable no employee shall suffer diminished health, functional capacity or life expectancy as a result of his or her work experience" (id. Section 20l(a)[)]. The duty to provide a safe workplace is nondelegable by the employer. 

Id. at ¶ 5. 

Plaintiff alleges that he made a series of complaints about the working conditions on his own behalf and on behalf of his employees and that "[f]rom June 6, 2009 until about September 1, 2009 the health complaints stated by employees of the RBC Vermont office continued but gradually diminished in frequency and extent of symptoms over that time." Id. at 7, ¶14. Plaintiff, however, continued to feel ill and sought medical attention and was advised that his symptoms were likely to continue as long as he was exposed to his work environment. He attempted to work from home and sought guidance from his supervisor, Defendant Scott, who allegedly shouted at him and accused him of "'not sticking it out' and of displaying bad leadership to his co-workers who had similar symptoms." Id. at 8,¶ 16. 

Thereafter, Plaintiff alleges the situation continued unabated until "[d]uring the latter part of July 2009, SCOTT telephoned BUSHEY to advise that RBC would accept his resignation as Branch Manager and allow him to work from his home for the time being" but would not allow him to relocate to another RBC branch office on either a temporary or permanent basis, which Plaintiff believed he needed to do in order to properly support his brokerage clients. Id. at 9, ¶ 18. 

Plaintiff alleges that he subsequently relocated to RBC's Jacksonville, Florida office where he discovered that as of March 2010, Plaintiff "had been placed on 'probation' by RBC for reasons which were never specifically disclosed to him." Id. at 10, ¶  21. He claims he was not given the opportunity to respond to RBC's decision as allegedly required by RBC's policies and regulations. 

Although Plaintiff alleges that RBC subsequently thwarted his efforts to remain productive, his overall performance remained within the top twenty percent of RBC's U.S. workforce. On November 1, 2010, Plaintiff decided to resign from RBC after his former regional manager advised him that "you need a quick exit strategy and a [good] friend as they are after you." Id. at 11,¶ 22

Bushey Complaint (District Vermont)

District Court Opinion and Order

• FINRA
• Arbitration
• RBC
• Zombies
• Beauty Parlor
• Unsafe Workplace
• Constructive Discharge
• Bill Singer
• BrokeAndBroker