McGee v. Nordstrom Cherry Creek Rack

Filing 17

ORDER granting 13 Nordstrom's Motion to Dismiss and for Order Compelling Arbitration, or in the Alternative, to Stay Action Pending Arbitration. The parties shall arbitrate Ms. McGee's claims. This action is dismissed without prejudice, by Judge Lewis T. Babcock on 7/14/2017. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 16-cv-02715-LTB
NICOLE Q. MCGEE,
Plaintiff,
v.
NORDSTROM CHERRY CREEK RACK,
Defendant.
_____________________________________________________________________________
ORDER
_____________________________________________________________________________
This employment discrimination case is before me on defendant Nordstrom,
Inc.’s (improperly named “Nordstrom Cherry Creek Rack” in the caption) Motion to
Dismiss and for Order Compelling Arbitration, or in the Alternative, to Stay Action
Pending Arbitration. (ECF No. 13.) Plaintiff Nicole McGee, an African American
woman, alleges that Nordstrom discriminated against her on the basis of her race
and gender. Nordstrom argues that because Ms. McGee agreed to have any
disputes resolved in arbitration when she signed a dispute resolution agreement,
this case should be dismissed, and I should compel Ms. McGee to participate in
arbitration.
I agree with Nordstrom that the parties agreed to arbitrate the issues raised
in Ms. McGee’s complaint, and I accordingly order the parties to arbitrate this case
and dismiss this action without prejudice.

I. BACKGROUND
The following facts are taken from Ms. McGee’s complaint (ECF No. 1) unless
otherwise noted. Ms. McGee, an African American woman, worked as an associate
at Nordstrom in Denver, Colorado for two and a half years, beginning in 2013. She
was the only full-time African American woman in her department. Before she
started working, Ms. McGee signed a dispute resolution agreement with Nordstrom,
which provided in relevant part:
This Agreement is intended to apply to the resolution of past, present,
and future disputes that would otherwise be resolved in a court of law
and requires that all such disputes be resolved only by an arbitrator
through final and binding arbitration and not by way of court or jury
trial except as otherwise stated in this Agreement. The Agreement
applies without limitation to disputes regarding the employment
relationship, trade secrets, unfair competition, compensation, breaks
and rest periods, termination, discrimination, retaliation (including
retaliation under the Employee Retirement Income Security Act of
1974) or harassment and claims arising under the Uniform Trade
Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act,
Age Discrimination in Employment Act, Family Medical Leave Act,
Fair Labor Standards Act, Genetic Information Non-Discrimination
Act, and other state and local statutes, addressing the same or similar
subject matters, and all other state statutory and common law claims.
(Frampton Dec. Ex. H, ECF No. 13-1 at 17.)
Nordstrom promoted white employees over Ms. McGee, even though the
white associates had less experience. And despite expressing her work availability
to her supervisors, she was frequently scheduled to work shifts she could not,
denied hours, and scheduled at the last minute. She also had her shifts cancelled.
She told her supervisor about her concerns with these practices to no avail.
In February 2015, Ms. McGee began to plan her upcoming maternity leave.
After speaking with someone at Nordstrom’s benefits department, she learned she
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would not receive paid maternity leave because she had not worked sufficient hours
during the relevant measurement period. During the measurement period, Ms.
McGee suffered from hyperemesis gravidarum (severe nausea during pregnancy),
which impacted her ability to work.
Ms. McGee eventually resigned from her position from Nordstrom, and on
July 13, 2016, she filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC). The EEOC provided her with a Notice of Right
to Sue on August 5, 2016. On November 3, 2016, Ms. McGee filed her complaint in
this Court, alleging that Nordstrom discriminated against her based on race and
gender by failing to promote her, giving her fewer hours, and giving her less
responsibility.
Nordstrom moved for an order compelling arbitration and dismissing the case
or staying the proceedings pending arbitration. (ECF No. 13.) When Ms. McGee
did not respond, I issued a scheduling order directing a response. (ECF No. 16.)
Nevertheless, Ms. McGee never filed any response to the motion.
II. LEGAL STANDARD
The Federal Arbitration Act (the “FAA”) provides that “[a] written provision
in any . . . contract evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such contract or transaction . . .
shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law
or in equity for the revocation of any contract.” 9 U.S.C. § 2. “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
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an order directing the parties to proceed to arbitration in accordance with the terms
of the agreement.” 9 U.S.C. § 4. Courts must interpret arbitration clauses liberally,
and all doubts must be resolved in favor of arbitration. Armijo v. Prudential Ins.

Co. of America, 72 F.3d 793, 798 (10th Cir. 1995). Thus, “[h]aving made the bargain
to arbitrate, the party should be held to it unless Congress itself has evinced an
intention to preclude a waiver of judicial remedies for the statutory rights at issue.”

Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, 473 U.S. 614, 628 (1985).
III. ANAYLSIS
The plain language of the dispute resolution agreement commits this dispute
to arbitration. Ms. McGee’s claims relate to her employment with Nordstrom and
arise under the Civil Rights Act. (Compl., ECF No. 1 at 1). The agreement
encompasses “any disputes arising out of or related to” her employment with
Nordstrom including “disputes regarding . . . discrimination . . . arising under the . .
. Civil Rights Act of 1964.” Id.
Ms. McGee “made the bargain to arbitrate” and should be held to it.

Mitsubishi Motors, 473 U.S. at 628. She signed the dispute resolution agreement
with Nordstrom, and I am therefore required to “make an order directing the
parties to proceed to arbitration in accordance with the terms of the agreement.” 9
U.S.C. § 4.
IV. CONCLUSION
Because the parties agreed to arbitrate this dispute, I GRANT Nordstrom’s
Motion to Dismiss and for Order Compelling Arbitration, or in the Alternative, to

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Stay Action Pending Arbitration. (ECF No. 13.) I ORDER the parties to arbitrate
Ms. McGee’s claims, and I DISMISS this action without prejudice.

Dated: July 14 , 2017 in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK

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