I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm . . . that is required to be arbitrated under the rules, constitutions, or bylaws of the SROs indicated in Section 4 (SRO REGISTRATON) as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction.
According to respondent, during his tenure with BTIG "he witnessed blatant religious, racial and gender discrimination." For example, he observed a managing director making anti-Semitic comments regarding a key client of BTIG. That same manager also directed BTIG staff to screen out female and African-American job applicants. Respondent complained directly to BTIG executives about this discrimination, but the company reportedly "did not investigate, and instead reprimanded [respondent] for making things 'awkward.' Shortly thereafter, despite never having received a negative performance review or feedback, [respondent] was fired."
causes of action for retaliation in violation of the FEHA, wrongful termination in violation of public policy, injunctive relief, and unfair business practices. He alleged that in addition to being wrongfully terminated, BTIG submitted fraudulent information to FINRA resulting in a damaging designation on his publicly available FINRA profile.
unconscionability argument and granted BTIG's petition to compel arbitration of his unfair business practices claim. The court denied the petition as to respondent's claims for retaliation and wrongful termination, concluding those claims were exempt from arbitration under FINRA's arbitration rules because the rules expressly exclude claims " 'alleging employment discrimination, including a sexual harassment claim, in violation of a statute.' " The court also denied the petition as to the claim for injunctive relief because that claim "is best characterized as part of [respondent's] FEHA retaliation claim." The court stayed the case pending completion of arbitration on the unfair business practices claim. . . .
BTIG, LLC (BTIG) appeals from an order denying its motion to compel arbitration as to three of the four causes of action alleged in a complaint filed by BTIG's former employee, respondent Matthew McLeod. The three claims, which allege claims for retaliation, wrongful termination, and injunctive relief, are based on respondent's contention that BTIG retaliated against him for reporting acts of discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). BTIG contends that respondent's claims must be submitted to arbitration even though the parties' arbitration agreement excludes claims that allege "employment discrimination . . . in violation of a statute." The trial court concluded that the three claims are not arbitrable because they fall within this exclusion.
at Page 7 of the CACtApp Opinion[A]lthough the FINRA rules permit the arbitration of statutory employment discrimination claims if the parties privately agree to doing so, BTIG does not identify any such agreement between the parties here. Accordingly, the question presented in this appeal is whether the three causes of action for retaliation, wrongful termination, and injunctive relief allege claims of employment discrimination in violation of a statute. If they do, those claims cannot be arbitrated pursuant to the unambiguous terms of the parties' arbitration agreement.
Even if, as a general matter, a cause of action for wrongful termination in violation of public policy arises from common law and need not depend on the violation of an express statutory provision, there is no dispute that in this action, respondent's wrongful termination claim is predicated entirely on a violation of the FEHA. Respondent's wrongful termination claim mirrors the allegations of his retaliation claim by asserting that his termination was an act of retaliation for "opposing, protesting, and reporting discriminatory practices" in violation of the FEHA. Indeed, in the absence of these statutory allegations, respondent would have no basis upon which to state a claim for wrongful termination. Accordingly, respondent's wrongful termination claim is "[a] claim alleging employment discrimination . . . in violation of a statute." (Rule 13201(a).)
[W]e agree with the trial court that respondent's request for injunctive relief is properly understood as a request that a remedy be entered in response to BTIG's retaliation against him in violation of the FEHA. Entitlement to such relief will require respondent to 17 prove his retaliation claim. And because we have concluded that respondent's cause of action for retaliation is exempt from FINRA arbitration, so too is respondent's request for equitable relief.
[B]ecause BTIG asked the trial court to exercise its authority to determine the arbitrability of his claims, BTIG is estopped from advancing this contention on appeal under the doctrine of invited error. The purpose of the invited error doctrine is to "prevent a party from misleading the trial court and then profiting therefrom in the appellate court."