Wilcox v. Taco Bell of America, Inc. et al

Filing 31

ORDER: Defendants' Motion to Dismiss, or Stay and Compel Arbitration 11 is GRANTED to the extent that Plaintiff's claims shall be submitted to arbitration and the case shall be stayed pursuant to 9 U.S.C. s. 3. Defendant's request th at this case be dismissed is DENIED. The case is hereby STAYED pending notification by the parties that they have completed the arbitration process and the stay is due to be lifted or the case is due to be dismissed. The parties shall file a joint status report with this Court every ninety days until this matter is resolved. The Clerk shall terminate all deadlines and motions, and stay and administratively close the case. Signed by Judge Virginia M. Hernandez Covington on 8/15/2011. (CAC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ADRIAN WILCOX,
Plaintiff,
v.

Case No.:

8:10-cv-2383-T-33MAP

TACO BELL OF AMERICA, INC., and
YUM! BRANDS, INC.,
Defendants.
______________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Defendants’ Motion to Dismiss, or Stay and Compel Arbitration
(Doc. # 11), filed on March 2, 2011. Plaintiff filed his
response to the Motion (Doc. # 14) on March 15, 2011. For the
reasons that follow, the Court grants the Motion to the extent
that Plaintiff’s claims shall be submitted to arbitration and
the case stayed pursuant to 9 U.S.C. § 3.
I.

Background and Procedural History
Plaintiff Adrian Wilcox filed suit in this Court on

October 22, 2010, alleging that Defendants Taco Bell and YUM!
Brands (“Defendants” or “Taco Bell”) engaged in discriminatory
employment practices in violation of 42 U.S.C. § 1981, Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., and the Florida Civil Rights Act, Fla. Stat. § 760.10 et
seq. Wilcox filed an Amended Complaint on February 2, 2011,

asserting class allegations. (Doc. # 3). Pursuant to Local
Rule 4.04(b), a motion for class certification was due on or
before May 2, 2011. On May 6, 2011, Defendants filed a Motion
to Strike Class Action Allegations of Plaintiff’s Amended
Complaint (Doc. # 24), alleging that Wilcox had not timely
filed a motion for class certification or a motion for
extension of time in which to do so. The Court granted that
motion on August 8, 2011. (Doc. # 30).
Wilcox alleges that Taco Bell subjected its AfricanAmerican or Black employees to discrimination based upon color
and race through less-favorable conditions of employment,
including
discipline,

scheduling,
promotion

management

decisions,

opportunities,

pay,

evaluations,

application

of

company policies, and demeaning and racially hostile attitudes
and comments. (Doc. # 3 at ¶¶ 12-13). Wilcox further asserts
that Taco Bell threatened his employment if he did not cut his
hair, which is prohibited under his bona fide Rastafarian
religious beliefs. (Id. at ¶ 14). Wilcox voiced opposition to
what he viewed as religious discrimination by complaining to
management and reporting the alleged discriminatory acts to
the Equal Employment Opportunity Commission (EEOC). (Id. at ¶
15). Wilcox alleges that Taco Bell terminated his employment
in retaliation for voicing his opposition. (Id. at ¶ 16).
2

Wilcox
precedent

states

to

the

that

he

has

maintenance

performed
of

this

all

conditions

action,

or

such

conditions precedent have been waived, including timely filing
a

charge

of

discrimination

with

the

EEOC

and

Florida

Commission on Human Relations, receiving a right to sue notice
and timely filing the present suit. (Id. at ¶ 11).
Defendants filed their Motion to Dismiss, or Stay and
Compel Arbitration (Doc. # 11), on March 2, 2011, alleging
that

Wilcox’s

governed

by

a

employment
written

relationship

agreement

in

with
which

Taco
he

Bell

is

agreed

to

arbitrate any controversy arising out of his employment. (Doc.
# 11 at 1). Defendants assert that Wilcox’s claims fall within
the scope of the arbitration provision, yet he failed to
arbitrate

the

dispute

before

filing

this

action.

(Id.).

Defendants ask this Court to dismiss the complaint for lack of
jurisdiction or, in the alternative, to compel arbitration and
stay the proceedings. (Id. at 7).
Wilcox filed his response to the Motion (Doc. # 14) on
March 15, 2011. Wilcox asserts that Defendants’ motion to
dismiss should be denied because it is not limited to the
pleadings or facts alleged in the complaint, but instead
focuses on the arbitration agreement. (Doc. # 14 at 3). Wilcox

3

further argues that arbitration is inappropriate in light of
the class allegations in his Amended Complaint. (Id. at 4).
On February 9, 2011, Defendants filed a demand for
arbitration with the American Arbitration Association (AAA).
The AAA has stayed the arbitration proceedings for at least
sixty days pending resolution of the instant Motion. (Id. at
3).
II.

Legal Standard
The Federal Arbitration Act (FAA) provides that a written

arbitration agreement “is 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. Section 3 of the
FAA provides that a district court must compel arbitration and
stay the underlying action if the parties had an earlier
agreement to arbitrate their dispute. 9 U.S.C. § 3.
The Supreme Court has held that the FAA represents a
“liberal federal policy favoring arbitration agreements.”
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 24 (1983). “Absent some violation of public policy, a
federal court must refer to arbitration any controversies
covered by the provisions of an arbitration clause.” Telecom
Italia, SPA v. Wholesale Telecom Corp., 248 F.3d 1109, 1114
(11th Cir. 2001). “However, the policy fostered by the FAA
4

‘does not require parties to arbitrate when they have not
agreed to do so.’” Wheat, First Sec., Inc. v. Green, 993 F.2d
814, 817 (11th Cir. 1993) (quoting Volt Info. Sciences, Inc.
v. Bd. of Trustees of Stanford Univ., 489 U.S. 468, 478
(1989)).
“Unless the parties clearly and unmistakably provide
otherwise, the question of whether the parties agreed to
arbitrate is to be decided by the court, not the arbitrator.”
AT&T Technologies, Inc. v. Comm. Workers of Am., 475 U.S. 643,
649 (1986). When asked to compel arbitration of a dispute, the
court’s first task “is to determine whether the parties agreed
to arbitrate that dispute.” Chastain v. Robinson-Humphrey Co.,
Inc., 957 F.2d 851, 854 (11th Cir. 1992) (internal quotations
and citation omitted)).
That question is generally decided based upon principles
governing contract interpretation. Telecom Italia, 248 F.3d at
1114. “The plain language of the contract is the best evidence
of the parties’ intent, which generally governs a contract’s
construction

and

interpretation.”

Viamonte

v.

Biohealth

Technologies, Inc., No. 09-21522-CIV, 2009 WL 4250578 (S.D.
Fla. Nov. 25, 2009). However, “those intentions are generously
construed as to the issues of arbitrability,” with all doubts
resolved in favor of arbitration. Olsher Metals Corp. v.
5

Olsher, No. 01-3212-CIV, 2003 WL 25600635, at *3 (S.D. Fla.
2003) (internal quotations and citations omitted).
III. Analysis
The written arbitration agreement between the parties in
this employment discrimination case states as follows:
Agreement to Arbitrate. Because of the delay and
expense of the court systems, TACO BELL and I agree
to use confidential binding arbitration, instead of
going to court, for any claims that arise between
me and Taco Bell, its related companies, and/or
their
current
or
former
employees.
Without
limitation,
such
claims
would
include
any
concerning compensation, employment (including, but
not limited to, any claims concerning sexual
harassment or discrimination) or termination of
employment. Before arbitration, I agree: (i) first
to present any such claims in full written detail
to TACO BELL; (ii) next, to complete any TACO BELL
internal review process; and (iii) finally, to
complete any external administrative remedy (such
as
with
the
Equal
Employment
Opportunity
Commission).
In
any
arbitration,
the
then
prevailing employment dispute resolution rules of
the American Arbitration Association will apply,
except that TACO BELL will pay the arbitrator’s
fees, and TACO BELL will pay that portion fo the
arbitration filing fee in excess of the similar
court filing fee had I gone to court.
(Doc. # 14 at 2-3). Defendants argue that Wilcox entered into
this arbitration agreement on August 22, 2007. (Id. at 2).
Wilcox states that the agreement appears to be part of an
application

for

conjunction

with

employment
his

he

transfer

to

allegedly
a

executed

different

Taco

in
Bell

location. (Id.). Defendants assert that the agreement was a
6

condition of Wilcox’s continued employment (Doc. # 11 at 3),
which Wilcox does not appear to dispute.
Defendants argue that the arbitration agreement is valid
and

enforceable,

and

expressly

encompasses

Wilcox’s

discrimination claims. (Id. at 5). Wilcox does not appear to
dispute that argument with respect to his individual claims.
Absent

any

arguments

concerning

the

validity

of

the

arbitration agreement (such as unconscionability, lack of
mutual assent or waiver), this Court is inclined to grant
Defendants’ request to compel arbitration of Wilcox’s claims.
However, Wilcox makes other arguments in his response to
the

Motion.

He

challenges

Defendants’

motion

to

dismiss

because it is not limited to the pleadings or facts alleged in
the complaint. (Doc. # 14 at 30). Wilcox also argues that
arbitration is inappropriate in light of the class allegations
in his Amended Complaint. (Id. at 4). The Court will address
these arguments.
A.

Motion to Dismiss

Wilcox argues that Defendants’ motion to dismiss should
be denied because it is not limited to the pleadings or facts
alleged in the complaint. Defendants argue this Court may look
beyond the pleadings because Defendants dispute the Court’s
subject matter jurisdiction in this case.
7

On a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6), a court must confine its analysis to the
four corners of the complaint. If the Court considers other
matters it must convert the motion to dismiss into one for
summary judgment under Rule 56. Fed. R. Civ. P. 12(d). On a
motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1), in contrast, “a court is free to
consider matters beyond the four corners of the complaint.”
Seminole Tribe of Fla. v. Coryi, Inc., No. 96-6368-CIV, 1996
U.S. Dist. Lexis 21368, at *3 (S.D. Fla. June 27, 1996).
Although Defendants assert that this court lacks subject
matter jurisdiction over this dispute, they move to dismiss
pursuant to Rule 12(b)(6) and the FAA. The Court will assume
that the citation to Rule 12(b)(6) was a scrivner’s error, and
instead focus on the FAA.
Section 3 of the FAA compels district courts to stay
proceedings involving arbitrable claims:
If any suit or proceeding be brought in any of the
courts of the United States upon any issue
referable to arbitration under an agreement in
writing for such arbitration, the court in which
such suit is pending, upon being satisfied that the
issue involved in such suit or proceeding is
referable to arbitration under such an agreement,
shall on application of one of the parties stay the
trial of the action until such arbitration has been
8

had in accordance with the terms of the agreement,
providing the applicant for the stay is not in
default in proceeding with such arbitration.
9 U.S.C. § 3. Notwithstanding the plain language of the
statute, courts in the Eleventh Circuit have on occasion
dismissed arbitrable claims. See Viamonte, 2009 WL 4250578, at
*5 (discussing such cases). However, the Eleventh Circuit has
instructed that “[u]pon finding that a claim is subject to an
arbitration agreement, the court should order that the action
be stayed pending arbitration.” Bender v. A.G. Edwards & Sons,
Inc., 971 F.2d 698, 699 (11th Cir. 1992). In light of this
directive, the Court finds that this action should be stayed
pending arbitration and not dismissed.1 Insofar as Defendants
cite cases in which the Eleventh Circuit has upheld district
court decisions dismissing arbitrable claims, this Court
declines to exercise any discretion it may have to grant the
Motion to Dismiss.
B.

Class Allegations

Wilcox also argues that arbitration is inappropriate in
light of the class allegations in his Amended Complaint.
Because the arbitration agreement at issue in this matter is

1

While this Court dismissed arbitrable claims in
Arcidiacono v. The Limo, Inc., No. 8:10-cv-780-T-33AEP, 2010
WL 4511083 (M.D. Fla. Nov. 2, 2010), the plaintiffs there
agreed to dismissal of the action.
9

silent as to class arbitration, Wilcox contends that he did
not waive his right to have his class-action claims considered
by this Court. (Doc. # 14 at 6). In support of this argument,
he relies upon the Supreme Court’s recent decision in StoltNielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758
(2010).
In Stolt-Nielsen, the Supreme Court was asked to decide
“whether

imposing

class

arbitration

on

parties

whose

arbitration clauses are ‘silent’ on that issue is consistent
with” the FAA. Id. at 1764. The Supreme Court held that “a
party may not be compelled under the FAA to submit to class
arbitration unless there is a contractual basis for concluding
that the party agreed to do so.” Id. at 1775. Furthermore, an
implicit agreement authorizing class arbitration may not be
inferred

solely

from

the

existence

of

an

arbitration

agreement. Id. “This is so because class-action arbitration
changes the nature of arbitration to such a degree that it
cannot be presumed the parties consented to it by simply
agreeing to submit their disputes to an arbitrator.” Id.
In

their

reply

brief,

Defendants

argue

that

Wilcox

“misconstrues” Stolt-Nielsen, and instead point to Caley v.
Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir. 2005).
(Doc. # 17 at 3). In Caley, the Eleventh Circuit held that an
10

arbitration agreement was enforceable even though it precluded
class arbitrations. The Court finds Caley to be inapposite to
this case because the arbitration agreement at issue here does
not preclude class actions but rather is silent as to class
claims.
In light of Stolt-Nielsen, the Court finds Wilcox’s
argument against class arbitration persuasive. Nonetheless,
this Court granted Defendants’ motion to strike Wilcox’s class
allegations for failure to timely file a motion for class
certification. (Doc. # 30). Whatever the merits of Wilcox’s
argument, it is moot at this juncture.
IV.

Conclusion
The Court finds that Wilcox’s individual claims are

subject to arbitration, and Wilcox’s class allegations are no
longer at issue. The Court therefore finds that the parties
are bound by the terms of the arbitration agreement in this
case. The Court is not inclined to dismiss this case as
requested by Defendants, however. Instead, the Court finds it
appropriate to compel the parties to submit to arbitration and
to stay this action pending the completion of the arbitration
proceedings consistent with the terms of 9 U.S.C. § 3.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
11

(1)

Defendants’

Motion

to

Dismiss,

or

Stay

and Compel

Arbitration (Doc. # 11) is GRANTED to the extent that
Plaintiff’s claims shall be submitted to arbitration and
the case shall be stayed pursuant to 9 U.S.C. § 3.
(2)

Defendant’s

request

that

this

case

be

dismissed

is

DENIED.
(3)

The case is hereby STAYED pending notification by the
parties that they have completed the arbitration process
and the stay is due to be lifted or the case is due to be
dismissed.

(4)

The parties shall file a joint status report with this
Court every ninety days until this matter is resolved.

(5)

The Clerk shall terminate all deadlines and motions, and
stay and administratively close the case.
DONE and ORDERED in Chambers in Tampa, Florida, this 15th

day of August 2011.

Copies:
All Counsel and Parties of Record

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