Robinson v. Universal Protection Service LP et al

Filing 17

ORDER granting 12 Defendants' motion to compel arbitration. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 8/9/16.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Matthew Robinson,
Plaintiff,

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Universal Protection Service, L.P., et al.

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ORDER

v.

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No. CV-16-01408-PHX-DGC

Defendants.

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Plaintiff Matthew Robinson alleges that Defendant Universal Protection Service

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(“UPS”) terminated him following a leave of absence authorized by the Family and

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Medical Leave Act (“FMLA”). Doc. 1, ¶¶ 10-34. He asserts claims under the FMLA

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and for intentional infliction of emotional distress. ¶¶ 35-45.

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Defendants produce an arbitration agreement signed by Plaintiff, in which he

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agreed to submit all disputes with UPS to arbitration. Doc. 12-1. Defendants move for

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an order compelling arbitration and dismissing this matter in its entirety. Doc. 12. The

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motion has been fully briefed (Docs. 13, 15) and no party requests oral argument. The

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Court will grant the motion.

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The Federal Arbitration Act (“FAA”) provides that an agreement to arbitrate

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“shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in

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equity for the revocation of any contract.” 9 U.S.C. § 2. “[S]tatutory claims may be the

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subject of an arbitration agreement, enforceable pursuant to the FAA,” unless “Congress

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itself has evinced an intention to preclude a waiver of judicial remedies for the statutory

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rights at issue.”

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(citation and internal quotation marks omitted).

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waiver of judicial remedies may be “discoverable in the text of the [statute], its legislative

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history, or an inherent conflict between arbitration and the [statute’s] underlying

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purposes.” Id. The party opposing arbitration bears the burden of showing that Congress

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intended to preclude a waiver of judicial remedies. Id.

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Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)
Congressional intent to preclude a

Plaintiff argues that Congress did not intend to allow employees to waive judicial
remedies with respect to their rights under the FMLA.

He points to 29 U.S.C.

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§ 2617(a)(2), which provides that “[a]n action to recover the damages or equitable relief

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prescribed [by the FMLA] may be maintained against any employer . . . in any Federal or

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State court of competent jurisdiction,” and to 29 C.F.R. § 825.220(d), which provides that

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“[e]mployees cannot waive . . . their prospective rights under FMLA.” Additionally,

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Plaintiff argues that the Seventh Amendment protects his right to a jury trial on FMLA

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claims. Doc. 13 at 3. Defendants counter by pointing to decisions of the Fourth and

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Eighth Circuits holding that FMLA claims can be subject to mandatory arbitration.

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Doc. 15 at 2. In O’Neil v. Hilton Head Hospital, 115 F.3d 272 (4th Cir. 1997), the Fourth

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Circuit concluded that “[n]othing in the [FMLA] suggests that Congress wished to

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exempt disputes arising under it from the coverage of the FAA.” Id. at 274 (citing

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Satarino v. A.G. Edwards & Sons, Inc., 941 F. Supp. 609, 613 (N.D. Tex. 1996)). And in

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Thompson v. Air Transportation International LLC, 664 F.3d 723 (8th Cir. 2011), the

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Eighth Circuit held that “[e]mployment-related civil rights claims,” including claims

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under the FMLA, “can be subject to a mandatory arbitration provision.” Id. at 727.

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The Court agrees with the Fourth and Eighth Circuits. Section 2617(a)(2) does not

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confer an unqualified right to a judicial forum, as would be necessary to displace the

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FAA; it provides only that an action to enforce the FMLA “may be maintained . . . in any

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Federal or State court of competent jurisdiction.” 29 U.S.C. § 2617(a)(2). This language

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is very similar to the language of the Age Discrimination in Employment Act (“ADEA”),

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which the Supreme Court in Gilmer found consistent with arbitration. See Gilmer, 500

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U.S. at 29 (“arbitration is consistent with Congress’ grant of concurrent jurisdiction over

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ADEA claims to state and federal courts, see 29 U.S.C. § 626(c)(1) (allowing suits to be

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brought “in any court of competent jurisdiction”), because arbitration agreements, like

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the provision for concurrent jurisdiction, serve to advance the objective of allowing

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claimants a broader right to select the forum for resolving disputes.”) (citation and

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quotation marks omitted; alteration incorporated).

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29 C.F.R. § 825.220(d), which prevents an employee from waiving prospective

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rights under the FMLA, does not change this analysis.1 As explained, the FMLA does

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not create a right to a judicial forum: it simply creates a cause of action and provides that

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Federal and State courts have subject matter jurisdiction over cases asserting these

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claims. Because the FMLA does not confer a right to a judicial forum, the anti-waiver

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provision does not invalidate an agreement to submit an FMLA claim to arbitration. See

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Jann v. Interplastic Corp., 631 F. Supp. 2d 1161, 1165 (D. Minn. 2009) (“Gilmer,

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therefore, compels the conclusion that individuals may be required to arbitrate FMLA

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claims, notwithstanding the text of Section 825.220(d).”).2

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Nor does the Seventh Amendment create an unqualified right to a judicial forum

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in this case. “The Seventh Amendment right to a jury, although a fundamental right, can

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be waived if done so knowingly and intentionally.” Russell-Stanley Holdings, Inc. v.

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Buonanno, 327 F. Supp. 2d 252, 257 (S.D.N.Y. 2002). Moreover, “by agreeing to

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arbitration . . . [a party] effectively waive[s] her right to a jury trial.” Great W. Mortgage

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Corp. v. Peacock, 110 F.3d 222, 231 (3d Cir. 1997). Plaintiff waived his right to a jury

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Although the parties do not address the question, the Court will assume for
purposes of this discussion that a valid federal regulation can preclude application of the
FAA. Cf. Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007)
(deferring to regulation providing that the Endangered Species Act did not apply to
certain agency actions under the Clean Water Act).
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Even if the FMLA were understood to create a right to a judicial forum, this
would be a procedural right, not a substantive right. The Fifth Circuit has held that
§ 825.220(d) “applies only to waiver of substantive rights under the statute.” Faris v.
Williams WPC-I, Inc., 332 F.3d 316, 320 (5th Cir. 2003).
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trial by agreeing to submit all disputes with UPS to arbitration.3

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IT IS ORDERED that Defendants’ motion to compel arbitration (Doc. 12) is

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granted. The Clerk of the Court shall enter judgment accordingly and terminate this

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case.

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Dated this 9th day of August, 2016.

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29 C.F.R. § 825.220(d) does not prevent waiver of the Seventh Amendment right
because it applies only to “rights under FMLA.”
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