King v. Associated Grocers of the South Inc et al
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 1/4/13. (KGE, )
2013 Jan-04 PM 02:19
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ASSOCIATED GROCERS OF THE
SOUTH, INC. and JOHN GILBERT, }
CIVIL ACTION NO.
Before the court is a motion to compel arbitration filed by
defendants, Associated Grocers of the South, Inc. (“Associated
defendants have responded. Doc. 20.
For the reasons that follow,
defendants’ motion to compel arbitration will be granted.
Associated Grocers is a wholesale grocery cooperative that
provides a variety of services for over 300 independent grocery
stores in five states. Since March 1, 2004, Associated Grocers has
presented all of its non-union employees with an Alternative
Dispute Resolution Policy (“ADR Policy”) that they must sign as a
condition of employment.
The ADR Policy provides that employees
arbitration. It further states that “Covered Claims” are “any and
employment with the Company.” It
to list examples of
“Covered Claims” including but not limited to: “actions under Title
VII of the Civil Rights Act of 1964;” “any claim of retaliation,
including claims under Alabama Code Section 25-5-11.1;” and “tort
claims, (including, but not limited to, negligent or intentional
injuries, defamation, and sexual harassment).” Doc. 18-2, page 1-2.
It also states that employees have the same right as the company to
assert the ADR Policy and to require arbitration when faced with a
On April 8, 2004, King applied for a job with Associated
Grocers and was offered a non-union recoup clerk position. On April
9, 2004, she completed Associated Grocers’s employment paperwork,
including the ADR Policy, at which time she signed and dated the
acknowledgment and receipt form that stated:
I acknowledge that I have received and
reviewed a copy of Associated Grocers of the
South, Inc.’s Alternative Dispute Resolution
Policy (“ADR”) and I agree to this ADR Policy
as a condition of my employment. I understand
that, among other things, the ADR Policy
requires all non-union employees to arbitrate
certain Covered Claims defined by the Policy
rather than litigate such claims in court.
Doc. 18-2, page 7. King was also given an Employee Handbook with an
acknowledgment of receipt form that she signed and dated. It
I acknowledge receipt of the Associated
Grocers of the South, Inc.’s Employee Handbook
and the fact that I have read and understand
it. I further acknowledge that the provisions
of employment stated in this handbook are not
contractual. Company policies and procedures,
whether included in this handbook or not, are
in no way contractually binding on any party.
Also, I understand that the company reserves
the right to amend, revoke, replace, suspend
or add, without notice, any or all of its
policies and procedures, whether or not
contained or referenced in this handbook.
Doc. 18-1 at page 29.
completion of these employment forms. She was later promoted to
work as a transportation clerk and/or transportation supervisor.
Beginning in January 2007 and continuing until the end of King’s
employment, John Gilbert was her supervisor. On March 25, 2011,
King’s employment was terminated. Associated Grocers maintains that
the reason for her termination was her excessive tardiness, but
King claims other reasons, and on September 5, 2012 she filed the
reasons. She also alleges, among other complaints, that she was
subjected to a hostile work environment and that Gilbert sexually
Defendants invoke the ADR Policy and assert that all of
plaintiff’s claims are “Covered Claims” under the ADR Policy and
that plaintiff should be ordered to arbitration.1
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 2, “preempts
state law to the extent that it treats arbitration agreements
differently than other contracts.” Caley v. Gulfstream Aerospace
Corp., 428 F. 3d 1359, 1367 (11th Cir. 2005). The Supreme Court has
clarified the statute by holding that employment agreements fall
under the FAA, and are thus enforceable as long as they involve
interstate commerce and are valid contracts under the governing
state law. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105
(2001). Defendants assert that King worked in five states, and that
this meets the interstate commerce requirement. King does not deny
that the interstate commerce element exists. However, she attacks
the validity of the contract.
The basis of King’s argument is an Alabama Supreme Court case
in which that court found that the inclusion of vitiating language
in the employee handbook invalidated the arbitration provision that
Count 1 - “Quid Pro Quo Sexual Harassment” in violation of Title VII;
Count 2 - “Hostile Working Environment - Sexual Harassment” in violation of
Title VII; Count 3 - “Hostile Working Environment - Racial Harassment” in
violation of Title VII; Count 4 - “Disparate Treatment” on the basis of race
and gender in violation of Title VII; Count 5 -“Retaliation”in violation of
for protesting against racial and sexual discrimination; Count 6
- “Negligence, Wantonness and/or Recklessness” that caused emotional and other
injuries; Count 8 - “Negligent/Wanton Hiring, Training, Supervision, and/or
Retention of John Gilbert”; Count 9 - “Negligent/Wanton Hiring, Training,
Supervision, and/or Retention” of other employees; Count 10 - “Invasion of
Privacy. Plaintiff also listed Count 7 - “Respondeat Superior/Vicarious
Liability.” This is a theory of liability for which Associated Grocers could
be responsible for the acts of defendant Gilbert, but it is not an independent
cause of action.
also appeared in the handbook. Ex Parte Beasley, 712 So. 2d 338
(Al. 1998). In Beasley, the plaintiff had signed an acknowledgment
form providing, inter alia, that “no written statement or agreement
in this handbook. . . is binding.” Id. at 340. The Alabama Supreme
Court found that the words “no written statement” included the
handbook’s statement requiring employees to use arbitration, and
thus directed the trial court to vacate its order that compelled
plaintiff employee to arbitrate her claims against her employer.
Beasley because the acknowledgment form she signed in her employee
handbook stated that the provisions are “in no way contractually
binding on any party.” However, King’s arbitration agreement was a
completely separate signed document that was not part of the
Brookwood’s standard employee handbook would
have created a binding obligation to arbitrate
under Patterson if Beasley had signed that
form; however, she did not sign that form. . .
. Absent Beasley’s signature on a document
that contains a valid arbitration clause, we
cannot hold that she agreed to arbitrate her
employment claims against Brookwood.
Id. citing Patterson v. Tenet Healthcare, Inc., 113 F. 3d 832 (8th
Cir. 1997) (holding that the arbitration clause was an enforceable
disclaiming language2). The situation before this court is much
more analogous to Patterson than to Beasley because the arbitration
agreement is a separate enforceable contract that is not affected
by the language of the employee handbook. There is no ambiguity in
the ADR Policy, which King is presumed to have read.
King argues that despite the separateness of the documents,
the handbook acknowledgment form language vitiates the arbitration
agreement because it says company policies are not binding on any
party “whether included in this handbook or not.” However, there is
no reason to look outside of the arbitration agreement to discern
its enforceability. “General contract law requires a court to
enforce, as it is written an unambiguous and lawful contract.”
Drummond Co., Inc. v. Walter Industries, Inc., 962 So. 2d 753 (Al.
2006). The arbitration agreement being unambiguous, the analysis
does not move to an examination of extrinsic evidence like the
claims” for which arbitration is required includes each of the
types of claims brought by King. Therefore, not only is the
arbitration agreement a valid contract and thus enforceable under
the FAA, but it also applies to all of King’s claims. Furthermore,
“We believe that the difference in language used in the handbook and
that employed in the arbitration clause would sufficiently impart to an
employee that the arbitration clause stands alone, separate and distinct from
the rest of the handbook. The reservation of rights language refers to the
handbook provisions related to employment, not to the separate provisions of
the arbitration agreement.” Patterson, 113 F. 3d 835.
the agreement states that the right to arbitration belongs to other
employees when they face a lawsuit brought by a fellow employee.
Therefore, Gilbert is allowed to force the arbitration of the
claims brought against him.
arbitration will be granted.
A separate order effectuating this
opinion will be entered.
day of January, 2013.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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