Johnson v. Pizza Hut

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; re 18 ; granting and denying in part 12 Motion for Referral to Arbitration and Dismiss or in the Alternative to stay. Signed by Honorable Susan O. Hickey on March 21, 2017. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
DASHUNDA R. JOHNSON
v.

PLAINTIFF
Case No. 1:16-cv-1089

PIZZA HUT 1

DEFENDANT

ORDER
Before the Court is the Report and Recommendation filed March 2, 2017, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 18).

Plaintiff Dashunda R. Johnson filed timely objections to the Report and

Recommendation, along with a supplement to her objections. (ECF Nos. 19, 22). The Court
finds the matter ripe for consideration.
I. BACKGROUND
This case is an employment-discrimination action brought under Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), and the Americans
with Disabilities Act (“ADA”). 2 Plaintiff is a former employee of Defendant NPC International,
Inc., and alleges that she was wrongfully terminated. On January 17, 2017, Defendant filed a
Motion to Compel Arbitration and Dismiss or in the Alternative Stay Proceedings (ECF No. 12),
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Defendant Pizza Hut states that it was incorrectly named in this action and that its proper name is “NPC
International, Inc.” The Court will refer to the party in this Order as “NPC International, Inc.”

2

Plaintiff’s objections state that, in addition to the causes of action listed above, she also brings suit against
Defendant on the basis that it interfered with her rights under the Family Medical Leave Act (“FMLA”) and violated
her privacy rights when it sent her to take a drug and alcohol test several days after she suffered a work-related
injury. Plaintiff’s supplement asserts that she also brings retaliation claims under Title VII, FMLA, and the
Arkansas Civil Rights Act (“ACRA”); claims under 32 U.S.C. § 1983 and § 1988; and the state-law claims of
defamation and outrage. However, Plaintiff’s complaint (ECF No. 1) only asserts Title VII, ADEA, and ADA
claims, and Plaintiff has not sought to amend her complaint to add the other claims. Therefore, the Court finds that
Plaintiff has not made these additional claims.

stating that it and Plaintiff electronically signed a valid arbitration agreement that covers
Plaintiff’s claims in this matter.
Judge Bryant issued a Report and Recommendation, recommending that the Court grant
Defendant’s motion, compel this matter to arbitration, and stay the case pending completion of
the arbitration.

Judge Bryant reasoned that the parties’ arbitration agreement is a valid

contractual agreement under Arkansas law, 3 and that Plaintiff’s claims in this matter fall within
the scope of the arbitration agreement. Thus, Judge Bryant concluded that it is appropriate to
compel this matter to arbitration. On March 10, 2017, Plaintiff filed objections to the Report and
Recommendation. Pursuant to 28 U.S.C. § 646(b)(1), the Court will conduct a de novo review of
all issues related to Plaintiff’s specific objections.
II. DISCUSSION
Plaintiff objects to Judge Bryant’s recommendation that the arbitration agreement is a
valid contractual agreement under Arkansas law.

Specifically, Plaintiff argues that the

arbitration agreement is invalid due to lack of competent parties because she does not remember
her personnel number 4 and does not remember electronically signing the agreement. Plaintiff
also argues that the arbitration agreement is invalid due to lack of definite subject matter,
consideration, mutual agreement, and mutual obligations because she did not sign the agreement
in ink or electronically in cursive signature. Plaintiff argues further that when she previously
pursued a workers’ compensation claim, the arbitration agreement was not mentioned, and thus

3

The validity and enforceability of a purported arbitration agreement is governed by state contract law. E.E.O.C. v.
Woodmen of World Life Ins. Soc., 479 F.3d 561, 565 (8th Cir. 2007). The essential elements of a valid arbitration
agreement under Arkansas law are: (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual
agreement, and (5) mutual obligations. Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 119-20,
27 S.W.3d 361, 366 (2000).
4

The record shows that, in order to sign the arbitration agreement, employees were required to sign into an
electronic computer system using an assigned personnel number. The system would display the document for the
employee’s review, after which the employee would click on an “Acknowledged Document” box. (ECF No. 12-2).

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she concludes that no arbitration agreement was signed. The Court is unpersuaded by Plaintiff’s
objections.
Plaintiff’s assertion that she does not remember her personnel number or signing the
arbitration agreement is insufficient to show that she was incompetent at the time the agreement
was signed. 5 The Court notes that Plaintiff does not allege that she was mentally incompetent at
the time the agreement was signed, but rather she states that she does not remember signing the
agreement. Without more evidence, the Court cannot assume that Plaintiff lacked contractual
capacity at the time she signed the arbitration agreement. See Harrod v. Signet Jewelers Ltd.,
No. 6:15-cv-6111 BAB, 2016 WL 4699710, at *2 (W.D. Ark. Aug. 16, 2016) (finding
unpersuasive the plaintiff’s unsubstantiated claim of not remembering signing an arbitration
agreement), report and recommendation adopted, Harrod v. Signet Jewelers Ltd., No. 6:15-cv6111 SOH, 2016 WL 4639175 (W.D. Ark. Sept. 6, 2016). Therefore, the Court finds that
Plaintiff was competent at the time the arbitration agreement was executed.
Plaintiff’s arguments regarding the remaining four elements of a contract under Arkansas
law all rest on the assertion that Plaintiff must not have signed the arbitration agreement because
it was not signed in ink or electronically in cursive signature. The Court notes that an electronic
signature 6 can be used to sign a contract and has the same force and effect as a written signature.
See Ark. Code Ann. § 25-32-107. In this case, the record shows that Plaintiff accessed the
arbitration agreement through Defendant’s computer system and clicked a box indicating that she
read and acknowledged the agreement. Under Arkansas law, this is a valid signature for contract
5

In support, Plaintiff provides the court with two affidavits—one from an ex-coworker at Pizza Hut, and one from
her roommate. (ECF Nos. 20-21). The roommate’s affidavit states that Plaintiff suffers from occasional loss of
concentration and memory loss, and speculates that Plaintiff likely cannot remember signing the arbitration
agreement due to this. The ex-coworker’s affidavit states that, like Plaintiff, he also does not remember
electronically signing an arbitration agreement.
6

An electronic signature is “an electronic sound, symbol, or process attached or logically associated with a record
and executed or adopted by a person with the intent to sign the record.” Ark. Code Ann. § 25-32-102(8).

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purposes. That aside, the form of Plaintiff’s signature has no bearing on whether the agreement
is invalid for lack of definite subject matter, consideration, mutual agreement, or mutual
obligations. As Judge Bryant stated, the arbitration agreement covers the essential terms of the
contract in detail, and the Court agrees that the subject-matter element is met. The Court finds
that legal consideration exists because, under the agreement, Plaintiff and Defendant both
promised to relinquish their rights to a trial and to instead arbitrate any legal claims that one
might have against the other. Because both parties relinquished their trial rights and agreed to
arbitrate any claims, the Court finds that the arbitration agreement contains mutual obligations
and mutual promises. Therefore, the Court finds that all five essential elements of a contract are
met.
Plaintiff’s final objection asserts that the arbitration agreement is invalid because it was
not used to prevent her from previously pursuing a workers’ compensation claim.

This

discrepancy is explained by the language of the arbitration agreement, which states that the
agreement would not prevent Plaintiff from pursuing an action with an administrative agency,
including workers’ compensation or unemployment claims with applicable state agencies. The
agreement states, however, that all legal claims the parties have against one another fall within
the scope of the agreement.

Therefore, the Court finds that Plaintiff’s previous workers’

compensation claim does not render the agreement invalid.
For the reasons above, the Court finds that the arbitration agreement is valid and
enforceable. Plaintiff does not object to Judge Bryant’s recommendation that her claims fall
within the scope of the arbitration agreement. The Court agrees with Judge Bryant and finds that
the agreement explicitly lists employment claims as within its scope. 7

7

Even assuming arguendo that the additional claims Plaintiff purports to assert were properly brought before the
Court, these claims would all fall within the scope of the agreement, as it covers “any claims” each party may have

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III. CONCLUSION
Upon de novo review of the Report and Recommendation, and for the reasons discussed
above, the Court overrules Plaintiff’s objections and adopts the Report and Recommendation.
(ECF No. 18). Defendants’ Motion to Compel Arbitration and Dismiss or in the Alternative Stay
Proceedings (ECF No. 12) is GRANTED IN PART AND DENIED IN PART. Plaintiff’s
claims are referred to arbitration in accordance with the parties’ agreement. The matter is hereby
stayed and administratively terminated pursuant to 9 U.S.C. § 3, without prejudice to the right of
the parties to reopen the proceedings to enforce the arbitrator’s decision.
IT IS SO ORDERED, this 21st day of March, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

against the other. (ECF No. 12-3).

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