Graham v. Trugreen Landcare of Alabama, LLC
MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/19/2012. (AVC)
2012 Jun-19 PM 02:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOHN R. GRAHAM,
OF ALABAMA, LLC.
Case No.: 2:11-CV-2385-RDP
This case is before the court on Defendant’s Renewed Motion to Dismiss (Doc. # 21), filed
January 12, 2012. By agreement of the parties at the April 5, 2012 telephone conference, the court
determined that it would treat Defendant’s Motion as a motion for summary judgment, pursuant to
Rule 12(d) of the Federal Rules of Civil Procedure. (Doc. # 28). The court will refer to Defendant’s
Motion (Doc. # 21) throughout this opinion as a Motion for Summary Judgment. Defendant’s
Motion for Summary Judgment has been fully briefed. (Docs. # 25, 26, 29).
Having considered the briefs and evidentiary submissions, the court finds that Defendant’s
Motion for Summary Judgment (Doc. # 21) is due to be denied for the reasons set out below.
On June 30, 2011, Plaintiff John R. Graham initiated this suit against his former employer,
Defendant Trugreen Landcare of Alabama, LLC,1 alleging discrimination claims based on race under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and the Civil
Rights Act of 1866, as amended, 42 U.S.C. § 1981. (Doc. # 1 ¶ 1). On July 26, 2011, Defendant
Defendant asserts that it has been incorrectly named in this lawsuit; its proper name is “TruGreen Limited
filed a Motion to Dismiss (Doc. # 6), arguing that Plaintiff’s claims are subject to arbitration because
Plaintiff consented to an arbitration agreement for all employment-related disputes. Plaintiff
responded that he does not remember seeing or signing the agreement and does not believe that the
signatures on the documents are his. (Doc. # 9). The court conducted a motion docket on September
27, 2011 and with the parties’ agreement, directed the parties to engage in limited discovery on
whether Plaintiff signed the arbitration agreement. (Doc. # 12). The court terminated Defendant’s
Motion to Dismiss, allowing Defendant to renew its Motion once limited discovery was completed.
On January 12, 2012, Defendant renewed its Motion to Dismiss (Doc. # 21), seeking to
dismiss Plaintiff’s Complaint under Federal Rule 12(b)(6) and sections 3 and 4 of the Federal
Arbitration Act (“FAA”), 9 U.S.C. §§ 3-4. (Doc. # 22). Defendant argues that Plaintiff agreed to
arbitrate all employment-related disputes by executing the “We Listen” Acknowledgment Form on
February 1, 2010 and signing the Handbook Acknowledgment Form on February 10, 2010.
Defendant submitted the following evidence in support of its arguments: a declaration from Roy
Cohen, the Human Resources Business Partner for Defendant (Doc. # 6-1 at 1-3); an affidavit from
Michael Dunkin, a Branch Administrator for Defendant (Doc. # 22-1 at 1-4); the arbitration
agreement and other documents Plaintiff allegedly signed (Docs. # 22-1 at 5-25, # 22-2, # 6-1 at 422); and the transcript of Cohen’s telephone deposition (Doc. # 22-3). The only evidence Plaintiff
submitted was his affidavit (Doc. # 9-1), where he denied ever agreeing to the arbitration agreement.
Because the parties submitted evidence outside of the pleadings, the court conducted a
telephone conference on April 5, 2012 on whether Defendant’s Motion should be treated as a Motion
for Summary Judgment. The parties agreed that it should, and consistent with that agreement the
court ruled pursuant to Rule 12(d), that Defendant’s Motion (Doc. # 21) would be treated as a Rule
56 motion for summary judgment. (Doc. # 28). The court gave the parties an opportunity to submit
supplemental material, but only Defendant did so — it filed its Sur-Reply on May 10, 2012. (Doc.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Affidavits or declarations “used to support or
oppose a motion must be made on personal knowledge.” Fed. R. Civ. P. 56(c)(4). The party asking
for summary judgment always bears the initial responsibility of informing the court of the basis for
its motion and identifying those portions of the pleadings or filings that the moving party believes
demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. No
genuine issue of material fact exists when there is a “complete failure of proof concerning an
essential element of the nonmoving party’s case.” Id. Accordingly, only “when there is no genuine
issue of fact concerning the formation of the [arbitration] agreement should the court decide as a
matter of law that the parties did or did not enter into such an agreement.” Magnolia Capital
Advisors, Inc. v. Bear Sterns & Co., 272 F. App’x 782, 785-786 (11th Cir. 2008) (citations omitted).
Once the moving party has met its burden, Rule 56(a) requires the nonmoving party to go beyond
the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Chapman, 229 F.3d at 1023. All reasonable doubts
about the facts and all justifiable inferences are resolved in favor of the nonmovant. Chapman, 229
F.3d at 1023. A dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248; Chapman, 229 F.3d at 1023. If the
evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
Anderson, 477 U.S. at 249-50. The method used by the party moving for summary judgment to
discharge its initial burden depends on whether that party bears the burden of proof on the issue at
trial. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-1117 (11th Cir. 1993) (citing United
States v. Four Parcels of Real Prop., 941 F.2d 1428 (11th Cir. 1991) (en banc)). If the moving party
bears the burden of proof at trial, then it can only meet its initial burden on summary judgment by
coming forward with positive evidence demonstrating the absence of a genuine issue of material fact
(i.e., facts that would entitle it to a directed verdict if not controverted at trial), Fitzpatrick, 2 F.3d
at 1115, and by showing that “on all the essential elements of its case . . . no reasonable jury could
find for the nonmoving party,” Four Parcels of Real Prop., 941 F.2d at 1438. Once the moving
party makes such a showing, the burden shifts to the nonmoving party to produce significant,
probative evidence demonstrating a genuine issue for trial.
On the other hand, if the moving party does not bear the burden of proof at trial, it can satisfy
its initial burden on summary judgment in at least one of two ways. First, the moving party may
produce affirmative evidence negating a material fact, thus demonstrating that the nonmoving party
will be unable to prove its case at trial. Once the moving party satisfies its burden using this method,
the nonmoving party must respond with positive evidence sufficient to resist a motion for directed
verdict at trial. Second, a moving party who does not bear the burden of proof at trial can satisfy its
initial burden on summary judgment by affirmatively showing the absence of evidence in the record
to support a judgment for the nonmoving party on the issue in question. This method requires more
than a simple statement that the nonmoving party cannot meet its burden at trial but does not require
evidence negating the nonmovant’s claim; it simply requires the movant to point out to the district
court that there is an absence of evidence to support the nonmoving party’s case. Fitzpatrick, 2 F.3d
at 1115-16. If the movant meets its initial burden by using this second method, the nonmoving party
may either point out to the court record evidence, overlooked or ignored by the movant, sufficient
to withstand a directed verdict, or the nonmoving party may come forward with additional evidence
sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.
However, when responding, the nonmovant can no longer rest on mere allegations, but must set forth
evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)).
When Defendant hires an employee to join its workforce, it routinely provides the employee
with many documents to review and/or sign. (Doc. # 22-1 at 1-2). Included in these documents are
the “We Listen” booklet, “We Listen Acknowledgment” form, and “Handbook Acknowledgment”
form. (Id.) It is undisputed that, if properly agreed to and executed, the We Listen Acknowledgment
The facts presented are undisputed, unless the court notes otherwise. Generally, on a motion for summary
judgment, the court requires the parties to submit a numbered list of the undisputed facts. However, because Defendant’s
Motion was converted to one for summary judgment after the motion had been filed, the parties have not submitted such
a list. Therefore, the court has gleaned the undisputed facts from the evidentiary submissions and the parties’ briefs.
form and Handbook Acknowledgment form constitute an arbitration agreement for all employmentrelated disputes arising out of an employee’s employment with Defendant.
After Defendant filed the We Listen Acknowledgment Form and the Handbook
Acknowledgment Form, both of which bear what Defendant argues are Plaintiff’s signatures (Doc.
# 6-1 at 21-22), Plaintiff submitted an affidavit. Plaintiff testified that he “recall[s] neither seeing
nor signing such documents, and do[es] not believe the signatures are [his].”3 (Doc. # 9-1). He
stated that there are differences between his handwriting and the handwriting on the documents that
Defendant argues he allegedly signed. (Id.)4
Dunkin, a Branch Administrator for Defendant, stated that he conducted orientation for
Plaintiff and another employee, Alan Fetter. (Doc. # 22-1 at 1-2). Dunkin presented Plaintiff and
Fetter with all of the standard paperwork, which included the documents containing the arbitration
agreement. (Id.) Dunkin stated that he sat with Plaintiff and Fetter while they completed their
paperwork, and once they completed their paperwork, they passed it to him. (Id. at 1-3). Dunkin
specifically remembered going through their documents to ensure that they signed everything, but
“do[es] not recall whether there were any missing signatures.” (Id. at 3) Dunkin attached the
documents to his affidavit that he alleged are the documents that Plaintiff and Fetter signed during
their new hire orientation. (Id. at 3, 5-46). Dunkin did not provide the dates on which he conducted
The affidavit provides that it was signed by Plaintiff on August 3, 2011, but the notary appears to have dated
the affidavit February 12, 2014 (Doc. # 9-1 at 2). Since this document was submitted on August 3, 2011, the court
presumes that this is the correct date.
Plaintiff also testified that he has reason to believe that Defendant would forge his signature. He explained
that Defendant is owned by The ServiceMaster Company, which also owns Terminex International, Inc., Plaintiff’s
former employer. He stated that while working at Terminex, a ServiceMaster employee forged his name on a check at
least once. (Id.). The court does not view this portion of Plaintiff’s declaration as competent Rule 56 evidence, and has
not considered it in ruling on this motion.
orientation for Plaintiff and Fetter, nor did he provide any dates for the events discussed in his
affidavit. Dunkin stated that he has never observed an employee’s signature being forged and has
never heard of Defendant encouraging the forging of employees’ signatures. (Id. at 3).
The documents that Dunkin testified Plaintiff signed during new hire orientation are attached
to his affidavit as “Exhibit A.” (Id. at 3, 5-25). These documents include standard forms that
employees are typically required to sign, as well as the documents that comprise the arbitration
agreement. (Id. at 5-25). The Handbook Acknowledgment form bears the name “John R. Graham”
and a corresponding signature, and is dated February 10, 2010. (Id. at 15). The We Listen
Acknowledgment form contains Plaintiff’s printed name and a corresponding signature, and is dated
February 1, 2010. (Id. at 21).
The fact that the dates on the Handbook Acknowledgment form and We Listen
Acknowledgment form are different is inconsistent with Dunkin’s affidavit, where Dunkin indicated
that the documents Plaintiff allegedly signed during new hire orientation were all signed on the same
day. What is more, the documents that Fetter allegedly signed on this same day also bear different
dates. (Doc. # 22-1 at 26-46). Fetter’s documents are dated January 26, February 1, February 9, and
February 11, 2010. Neither party has offered its position on the discrepancy between (1) the dates
on the documents (Doc. # 22-1 at 15, 21) and (2) Dunkin’s sworn statement providing that he
watched Plaintiff sign all of the documents in one sitting (Doc. # 22-1 at 1-4). It is not clear whether
Dunkin was mistaken (deliberately or not) in his affidavit about when these documents were
allegedly received and signed, or whether there is an allegation that the dates on the documents are
incorrect. Dunkin’s affidavit creates genuine issues of fact regarding whether Dunkin actually
witnessed Plaintiff receive and sign any of documents containing the arbitration agreement, whether
the dates on these documents reflect the actual dates on which they were signed and received, and
consequently, whether Plaintiff actually signed all (or some) of the documents in question.5
Although it is undisputed that Defendant’s usual procedure for new employees is that the office
manager provides them with all of the paperwork that they must sign and watches them sign the
paperwork6 (Doc. # 22-3 at 15), it is unclear whether the usual procedure occurred in Plaintiff’s case.
The resolution of this dispute turns on whether Plaintiff has placed the validity of the
arbitration agreement at issue. If the court finds that Plaintiff has done so, the issue of whether the
arbitration agreement is enforceable will be decided by a jury.7
The Federal Arbitration Act (“FAA”), 9 U.S.C. § § 1–16 (2006), controls the validity and
enforcement of covered arbitration agreements. “The FAA embodies a liberal federal policy
favoring arbitration agreements.” Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th
Cir. 2005) (citation and quotation marks omitted). When a party moves a court to compel arbitration
pursuant to an arbitration agreement:
Defendant also submitted the declaration of Roy Cohen, the Human Resources Business Partner for Defendant
(Doc. # 6-1 at 1-3), wherein Cohen stated that Plaintiff executed the We Listen Acknowledgment form on February 1,
2010 and the Handbook Acknowledgment form on February 10, 2010. However, Cohen later admitted that he did not
witness Plaintiff sign these documents and that his declaration was purely based on his observation of the documents.
(Doc. # 22-3 at 17-18). Because Cohen admitted that his declaration was not based on personal knowledge, the court
does not consider his declaration. See Fed. R. Civ. P. 56(c)(4). Nevertheless, the declaration offers no insight into when
and if Plaintiff was presented with the arbitration agreement.
Cohen was deposed by telephone on December 20, 2011. He has never met Plaintiff and does not work in
Defendant’s Birmingham location. He testified regarding Defendant’s usual procedures for new employees. (Doc. # 223).
Whether the court or jury determines the arbitrability issue is up to the party objecting to the arbitration
agreement, see 9 U.S.C. § 4, and Plaintiff has requested a jury trial in his Complaint (Doc. # 1 at 7).
The court shall hear the parties, and upon being satisfied that the
making of the agreement for arbitration or the failure to comply
therewith is not in issue, the court shall make an order directing the
parties to proceed to arbitration in accordance with the terms of the
agreement . . . . If the making of the arbitration agreement or the
failure, neglect, or refusal to perform the same be in issue, the court
shall proceed summarily to the trial thereof. If no jury trial be
demanded by the party alleged to be in default, . . . the court shall
hear and determine such issue.
Id. § 4. A review of this statutory provision makes clear that Congress expressly assigned the duty
of deciding issues concerning the “making of the arbitration agreement” to the courts. Id.
The Supreme Court, in analyzing the role of the courts in enforcing arbitration agreements
under the FAA, has noted that “[a]rbitration under the Act is a matter of consent, not coercion . . .
.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 479 (1989). The
Court has further explained that “arbitration is a matter of contract and a party cannot be required
to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of
Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). “The question whether the parties
have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for
judicial determination [u]nless the parties clearly and unmistakably provide otherwise.’” Howsam
v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting AT & T Techs., Inc. v. Commc’ns
Workers of Am., 475 U.S. 643, 649 (1986)). Thus, it is incumbent upon a court to decide “certain
gateway matters, such as whether the parties have a valid arbitration agreement at all . . . .” Green
Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003); see also Chastain v. Robinson–Humphrey Co.,
957 F.2d 851, 853–56 (11th Cir.1992).
When confronted with a question related to the validity of an arbitration agreement, a court
must consider both federal policy and applicable state contract law. As the Eleventh Circuit has
The FAA preempts state law to the extent it treats arbitration
agreements differently than other contracts. The purpose of the FAA
is to give arbitration agreements the same force and effect as other
contracts. However, state law generally governs whether an
enforceable contract or agreement to arbitrate exists. Thus, in
determining whether a binding agreement arose between the parties,
courts apply the contract law of the particular state that governs the
formation of contracts. The federal policy favoring arbitration,
however, is taken into consideration even in applying ordinary state
Caley, 428 F.3d at 1367–68 (citations and quotation marks omitted); see also Employers Ins. of
Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1322 (11th Cir.2001) (“Federal law
establishes the enforceability of arbitration agreements, while state law governs the interpretation
and formation of such agreements.”).
Taking into account the general federal policy favoring arbitration, the Eleventh Circuit has
found that when a party denies the existence of a valid arbitration agreement, “that party must
substantiate the denial of the contract with enough evidence to make the denial colorable.” Chastain,
957 F.2d at 855. “A party cannot place the making of the arbitration agreement in issue simply by
opining that no agreement exists.” Id. Rather, the Eleventh Circuit held, “To make a genuine issue
entitling the party seeking to avoid arbitration to a trial by jury on the arbitrability question, an
unequivocal denial that the agreement had been made is needed, and some evidence should be
produced to substantiate the denial.” Id. at 854 (alterations omitted) (quoting T & R Enters., Inc. v.
Cont’l Grain Co., 613 F.2d 1272, 1278 (5th Cir.1980)). Thus, in order to place the making of an
arbitration agreement in issue, the party seeking to avoid arbitration must (1) unequivocally deny that
an agreement to arbitrate was made and (2) provide some evidence to substantiate the denial.
Chastain, 957 F.2d at 854 (adopting the former Fifth Circuit’s two-part test as described in T & R
Enters. v. Cont’l Grain Co., 613 F.2d 1272, 1278 (5th Cir. 1980)); Wheat First Securities, Inc. v.
Green, 993 F. 2d 814, 817 (11th Cir. 1993).
Plaintiff has denied that he is bound to arbitrate his claims and testified that he does not recall
ever seeing or signing the arbitration agreement.
There is no question that Plaintiff has
unequivocally denied that he consented to the arbitration agreement, and his affidavit substantiates
his denial. Although Defendant provided Dunkin’s affidavit in attempt to refute Plaintiff’s affidavit,
Dunkin’s affidavit, read in conjunction with the accompanying documents, actually muddles the
issues. The inconsistencies between Dunkin’s affidavit and the attached documents create disputes
of material fact regarding whether Dunkin witnessed Plaintiff sign certain documents and if so,
which documents and when. Defendant has thus failed to produce any affirmative evidence
establishing that Plaintiff received and signed the arbitration agreement.
Further, Defendant challenges whether Plaintiff’s “mushily worded” affidavit actually
constitutes an unequivocal denial. To prevail on summary judgment, however, Defendant must do
more than quibble over the semantics of Plaintiff’s affidavit. The court concludes that Plaintiff’s
affidavit contains a clear denial of ever agreeing to an arbitration agreement.8 Accordingly, there is
Defendant has presented caselaw espousing the principle that affidavits must be based on personal knowledge,
not a party’s beliefs. (Doc. # 26 at 5). The court need not reach the issue of whether Plaintiff’s affidavit contains mere
beliefs rather than personal knowledge because here Defendant’s failure to prevail on summary judgment is due to its
own failure to meet its Rule 56 burden.
a genuine issue of material fact as to whether Plaintiff agreed to arbitrate employment-related claims
with Defendant, and Plaintiff has placed the making of the arbitration agreement in issue.
For the reasons discussed above, Defendant’s Motion for Summary Judgment (Doc. # 21)
is due to be denied. The issue of whether there was a valid arbitration agreement must therefore be
resolved by a jury. The court will enter a separate order denying the Motion.
DONE and ORDERED this
day of June, 2012.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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