Fraser v. Perkins & Marie Callender's, LLC

Filing 11

ORDER granting in part and denying in part 8 motion to dismiss; staying the action pending arbitration. The clerk is directed to administratively close the case. Signed by Judge Steven D. Merryday on 12/30/2016. (SKB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CECILIA M. FRASER,
Plaintiff,
v.

CASE NO. 8:16-cv-3226-T-23AEP

PERKINS & MARIE
CALLENDER’S LLC,
Defendant.
____________________________________/

ORDER
Cecilia Fraser sues (Doc. 1) her former employer, Perkins & Marie
Callender’s, under Title VII of the Civil Rights Act of 1964 for sexual harassment
and under Florida law for sexual harassment and for intentional infliction of
emotional distress. The parties agree that a written contract requires an arbitrator to
decide the claims but disagree about the disposition of this action. The defendant
moves (Doc. 8) to dismiss the action because “all of the Plaintiff’s claims are
arbitrable,” but the plaintiff requests (Doc. 10) a stay pending arbitration.
DISCUSSION
If a valid and written agreement requires the arbitration of the plaintiff’s
claims and if a party moves to stay the action pending arbitration, the Federal

Arbitration Act mandates that an order “shall . . . stay . . . the action” until the
announcement of an arbitral decision. 9 U.S.C. § 3.
Fraser agreed in her written employment application to arbitrate a claim
“based on Title VII of the Civil Rights Act of 1964 ” and based on “any other state or
federal laws, regulations, or common law theories.” (Doc. 8 at 10, which states that
both parties agree to arbitrate a dispute) The Federal Arbitration Act permits the
arbitration of the plaintiff’s claims, including the claim for employment
discrimination under Title VII of the Civil Rights Act of 1964. See Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). And no provision in the Federal
Arbitration Act bars the enforcement of an arbitration clause in an employment
application. Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).
Consideration (the mutual promises to arbitrate) supports the agreement.
Kinko’s, Inc. v. Payne, 901 So. 2d 354, 355 (Fla. 2d DCA 2005) (Whatley, J.) (“[T]he
agreement of a party to submit to arbitration is sufficient consideration to support the
other party’s agreement to do the same.”). Valid under Florida law, the arbitration
agreement warrants enforcing. See Paladino v. Avnet Comput. Tech., Inc., 134 F.3d
1054, 1061 (11th Cir. 1998) (Cox, J., concurring) (applying state-law contract
principles to determine the validity of an arbitration agreement).

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The mandate in Section 3 that an order “shall” stay this action pending
arbitration requires the entry of a stay.* Lloyd v. HOVENSEA, LLC, 369 F.3d 263,
268–71 (3d Cir. 2004) (Stapleton, J.). But see, e.g., Sparling v. Hoffman Const. Co., Inc.,
864 F.2d 635, 638 (9th Cir. 1988) (Boochever, J.) (affirming the dismissal of an
action in which an agreement required the arbitration of all the plaintiff’s claims).
CONCLUSION
The defendant’s motion (Doc. 8) to compel arbitration and to dismiss the
action is GRANTED-IN-PART and DENIED-IN-PART. The parties must
arbitrate the plaintiff’s claims, but Section 3 of the Federal Arbitration Act precludes
dismissal. The plaintiff’s motion (Doc. 10) to stay the action pending arbitration is
GRANTED, and the action is STAYED.
The clerk is directed to administratively close the case. No later than ten days
after the arbitrator announces a decision, the plaintiff must move either to re-open
the case and to lift the stay or to dismiss the action.
ORDERED in Tampa, Florida, on December 30, 2016.

*

See Shall, Black’s Law Dictionary at 1407 (8th ed. 2004) (explaining that, despite the word’s
several meanings, legislative drafters typically choose “shall” to impose a duty).

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