Williams, Jr. et al v. Voya Financial Advisors, Inc.

Filing 26

ORDER: Defendant Voya Financial Advisors, Inc.'s Motion to Compel Arbitration and Stay this Action (Doc. #5) is granted. The case is referred to FINRA arbitration and is stayed pending resolution thereof. The Clerk is directed to stay and administratively close the case. The parties are directed to file a joint report of the status of the arbitration proceeding by March 8, 2021, and every ninety days thereafter. The parties must immediately notify the Court upon the arbitrator's resolution of the claims asserted in this case. Signed by Judge Virginia M. Hernandez Covington on 1/6/2021. (AR)

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 1 of 20 PageID 413

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
O’DOLL VAN WILLIAMS, JR.,
MARCUS ROBINSON, GWENDOLYN
ROBINSON, BRANDI WHITFIELD,
KIMBERLY SAUNDERS, and
JOHNNIE HALL,
Plaintiffs,
v.

Case No. 8:20-cv-2611-T-33JSS

VOYA FINANCIAL ADVISORS, INC.,
Defendant.
/
ORDER
This matter comes before the Court upon consideration of
Defendant Voya Financial Advisors, Inc.’s Motion to Compel
Arbitration and Stay This Action (Doc. # 5), filed on November
13,

2020.

Robinson,

Plaintiffs
Gwendolyn

O’Doll

Robinson,

Van

Williams,

Brandi

Jr.,

Whitfield,

Marcus

Kimberly

Saunders, and Johnnie Hall responded on November 30, 2020.
(Doc. # 17). For the reasons below, the Motion is granted.
I.

Background
Plaintiffs are African American individuals who worked

in some capacity for Voya Financial, a broker-dealer “that
provides

retirement,

investing,

and

financial

planning

services.” (Doc. # 1-4 at ¶¶ 3-8, 11). As part of their
working relationship with Voya Financial, Plaintiffs signed
1

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 2 of 20 PageID 414

three

different

written

agreements.

(Doc.

#

5

at

7-9).

Plaintiffs Williams, Whitfield, and Marcus Robinson signed a
“Retail

Agent

Agreement,”

which

includes

the

following

arbitration clause:
9. Arbitration. Agent and Company shall settle by
binding
arbitration
any
dispute,
claim,
or
controversy, including, without limitation, any
claim alleged under any state or federal statute,
(i) that Agent and Company are required or
permitted
to
arbitrate
under
the
rules,
constitutions or by-laws of the NASD, as may be
amended from time to time (“NASD Arbitration”), or
(ii) that arises out of or is related in any way to
this Agreement, the breach, termination, or
validity of this Agreement, or the actions of Agent
or Company with respect to one another during the
term of this Agreement. Arbitration of any dispute,
claim, or controversy that is not subject to NASD
Arbitration shall be administered by the American
Arbitration Association under its Commercial
Arbitration Rules. Judgment on any arbitration
award may be entered by any court having
jurisdiction thereof. Agent and Company consent to
arbitration in Hartford, Connecticut. Arbitration
under this Agreement shall be governed by the
Federal Arbitration Act.1
(Doc. # 5-3 at 5-6; Doc. # 5-7 at 5-6; Doc. # 5-14 at 5-6)
(emphasis

in

original).

In addition

to

the Retail

Agent

1. Plaintiff Marcus Robinson’s agreement contains slightly
different language, replacing “NASD Arbitration” with “FINRA
Arbitration,” and stating that the parties agreed to
arbitration in Windsor, Connecticut, rather than Hartford,
Connecticut. (Doc. # 5-7 at 5-6). The National Association of
Securities Dealers (“NASD”) is the Financial Industry
Regulatory Authority, Inc’s (“FINRA”) predecessor. Deutsche
Bank Sec. Inc. v. Simon, No. 19-20053-CIV-GAYLES/MCALILEY,
2019 WL 4864465, at *2 (S.D. Fla. Aug. 20, 2019).
2

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 3 of 20 PageID 415

Agreement,

Williams

signed

an

“Advisory

Representative

Agreement,” which includes a lengthy agreement to arbitrate:
20. Binding Arbitration. It is understood that the
following
AGREEMENT
TO
ARBITRATE
does
not
constitute a waiver of the right to seek a judicial
forum to the extent that such waiver would be void
under applicable law.
a. The parties each agree that, except as
inconsistent with the preceding sentence, all
claims or controversies, and any related
issues, which may arise at any time between
the parties (including their
directors,
officers,
employees,
representatives,
or
agents) with respect to any subject matter;
any transaction, order, or direction; any
conduct of the parties or their directors, of
employees, representatives, or agents; any
construction, performance, or breach of this
or any other agreement between the parties,
whether entered into prior to, on, or
subsequent to the date hereof; any breach of
any common law or statutory duty; or any
violation of any federal or state law of any
nature
shall
be
resolved
by
binding
arbitration rather than by lawsuit in a court
of law or equity.
b. Any arbitration pursuant to this agreement
shall be in accordance with, and governed by,
a mutually agreeable arbitration forum, but,
in the absence of such agreement, then the
Code of Arbitration Procedure of the NASD, if
the NASD accepts jurisdiction, and, if not,
then the American Arbitration Association.
There shall be at least three arbitrators
unless otherwise agreed by the parties. The
award of the arbitrators, or of the majority
of them, shall be final and binding upon the
parties, and judgment upon the award rendered
may be entered in any federal or state court
having jurisdiction. Any arbitration shall be
commenced by delivery to the other party of a
3

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 4 of 20 PageID 416

written demand for arbitration setting forth
in detail the claim or controversy to be
arbitrated.
c. The arbitrators shall be entitled to order
specific performance of the
obligations
imposed by this Agreement.
(Doc. # 5-4 at 8) (emphases in original). Lastly, Plaintiffs
Saunders, Hall, and Gwendolyn Robinson signed a “Registered
Representative

Agreement,”

which

includes

a

shorter

arbitration provision:
i. Arbitration. Any controversy or claim between
the parties will be settled by arbitration in
accordance with the rules of the Financial Industry
Regulatory Authority, and judgment upon the award
may be entered in any court having jurisdiction.
The arbitrators may award reasonable expenses,
attorneys’ fees and costs.
(Doc. # 5-11 at 7; Doc. # 5-18 at 7; Doc. # 5-21 at 6)
(emphasis in original).
Plaintiffs

allege

that

Voya

Financial

discriminated

against them on the basis of race in a variety of ways. (Doc.
# 1-4 at ¶ 18-19). Plaintiffs initiated this action in state
court on September 22, 2020. (Doc. # 1-4). Thereafter, on
November 6, 2020, Voya Financial removed the action to this
Court on the basis of federal question jurisdiction. (Doc. #
1). The complaint includes claims against Voya Financial for
racial discrimination (Counts I, III, V, VII, IX, XI) and
retaliation (Counts II, IV, VI, VIII, X). (Doc. # 1-4).
4

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 5 of 20 PageID 417

On November 13, 2020, Voya Financial moved the Court to
compel arbitration and stay the case pending completion of
the arbitration. (Doc. # 5). Plaintiffs have responded (Doc.
# 17), and the Motion is now ripe for review.
II.

Legal Standard
Under

the

Federal

Arbitration

Act

(FAA),

a

written

arbitration provision in a “contract evidencing a transaction
involving

commerce

.

.

.

[is]

valid,

irrevocable,

and

enforceable,” unless law or equity necessitates revocation of
the contract. 9 U.S.C. § 2. Federal law favors arbitration
agreements. Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24-25 (1983). Thus, “any doubts concerning
the scope of arbitrable issues should be resolved in favor of
arbitration.” Id. However, “a party cannot be required to
submit to arbitration any dispute which he [or she] has not
agreed so to submit.” United Steelworkers of Am. v. Warrior
& Gulf Navigation Co., 363 U.S. 574, 582 (1960).
Before deciding whether a case should be referred to
arbitration, “a court must determine: (1) whether there is a
valid agreement to arbitrate; (2) whether a court or an
arbitrator should decide if the dispute falls within the scope
of the agreement to arbitrate; and (3) whether the dispute
does fall within the scope – the question of arbitrability.”
5

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 6 of 20 PageID 418

Convergen Energy LLC v. Brooks, No. 20-cv-3746 (LJL), 2020 WL
5549039, at *13 (S.D.N.Y. Sept. 16, 2020) (citation omitted).
“The question whether the parties have submitted a particular
dispute

to

arbitration

.

.

.

is

an

issue

for

judicial

determination unless the parties clearly and unmistakably
provide otherwise.” Howsam v. Dean Witter Reynolds, Inc., 537
U.S. 79, 83 (2002) (citation omitted).
“A motion to compel arbitration is treated as a Rule
12(b)(1)

motion

to

dismiss

for

lack

of

subject-matter

jurisdiction.” Babcock v. Neutron Holdings, Inc., 454 F.
Supp. 3d 1222, 1228 (S.D. Fla. 2020) (citations omitted).
Accordingly, “the Court may consider matters outside the four
corners of the Complaint.” Id. When determining the existence
of an arbitration agreement, federal courts employ a “summary
judgment-like standard,” “conclud[ing] as a matter of law
that

parties

did

or

did

not

enter

into

an

arbitration

agreement only if ‘there is no genuine dispute as to any
material

fact’

concerning

the

formation

of

such

an

agreement.’” Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d
1325, 1333 (11th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).
“A dispute is not ‘genuine’ if it is unsupported by the
evidence or is created by evidence that is ‘merely colorable’
or ‘not significantly probative.’” Id. (quoting Baloco v.
6

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 7 of 20 PageID 419

Drummond Co., 767 F.3d 1229, 1246 (11th Cir. 2014)).
III. Analysis
Voya
arbitration

Financial
and

stay

moves
the

the
case

Court
pending

to

compel

such

FINRA

arbitration

because Plaintiffs’ “claims fall squarely within the broad
scope of the parties’ arbitration agreements.” (Doc. # 5 at
1-2).

Plaintiffs

Arbitration

respond

Procedures

that
does

because
not

FINRA’s

require

Code

of

employment

discrimination claims to be arbitrated unless the parties
agreed to arbitrate such claims, they cannot be compelled to
arbitrate the instant suit. (Doc. # 17 at 5).
A. Initial Question of Arbitrability
Generally, it is for the Court to determine the scope of
an arbitration agreement. Betkowski v. Kelley Foods of Ala.,
697 F. Supp. 2d 1296, 1298 (M.D. Ala. Mar. 23, 2010). However,
“[w]hen the parties’ contract delegates the arbitrability
question to an arbitrator, a court may not override the
contract.” Henry Schein, Inc. v. Archer & White Sales, Inc.,
139 S. Ct. 524, 529 (2019). Still, “there must be ‘clear and
unmistakable’ evidence that the parties agreed to have an
arbitrator decide such issues.” Blanton v. Domino’s Pizza
Franchising LLC, 962 F.3d 842, 844 (6th Cir. 2020).
Here, none of the arbitration agreements expressly state
7

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 8 of 20 PageID 420

that the initial question of arbitrability must be submitted
to arbitration. (Doc. ## 5-3; 5-4; 5-7; 5-11; 5-14; 5-18; 521). Although the agreements do incorporate either the NASD
or

FINRA

rules,

“incorporating

the

FINRA

rules

into

an

arbitration agreement is insufficient on its own to evidence
the parties’ clear intent for the arbitral panel to determine
arbitrability.” 2 Retina

Consultants

P.C.

Defined

Benefit

Pension Plan v. Benjamin, No. CV-119-037, 2020 WL 1491756, at
*5 (S.D. Ga. Mar. 19, 2020); see Merrill Lynch, Pierce, Fenner
& Smith, Inc. v. Cohen, 62 F.3d 381, 384 (11th Cir. 1995)
(“We conclude that, at most, section 35 [of the NASD Code]
creates an ambiguity as to who determines arbitrability.
Because

an

ambiguity

is

insufficient

to

override

the

2. Although expressly incorporating the American Arbitration
Association’s (“AAA”) Rules into an arbitration clause does
constitute clear and unmistakable evidence that the parties
delegated the initial question of arbitrability to an
arbitrator, the contracts signed by Williams, Whitfield, and
Marcus Robinson refer cases to the AAA only to the extent
that the disputes cannot be arbitrated before FINRA. (Doc. #
5 at 6-9); see JPay, Inc. v. Houston, 904 F.3d 923, 937 (11th
Cir. 2018). Indeed, the parties preferred forum is FINRA, and
none of the other clauses refer to the AAA. (Doc. # 5 at 69). Considering that the AAA’s rules would not apply if the
parties were able to arbitrate before their chosen forum
(FINRA), as well as the fact that the parties appear to agree
that the initial question of arbitrability can be decided by
this Court, and the presumption that courts decide such
questions, the Court finds that this inclusion creates enough
ambiguity so that the initial question of arbitrability need
not be submitted to arbitration. (Doc. ## 5; 17).
8

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 9 of 20 PageID 421

presumption that courts determine arbitrability, . . . we
conclude that the district court must determine whether the
dispute between [the parties] is arbitrable.”). Therefore,
the Count finds that it can decide the issue of arbitrability.
B. Application of the Arbitration Agreements
The Court now turns to the substance of the Motion.
Plaintiffs challenge the validity of the agreements on the
ground

that

this

suit

involves

a

claim

of

employment

discrimination, which is carved out from FINRA’s rule on
mandatory arbitrations. (Doc. # 17 at 5). Plaintiffs argue
that this carveout, and the fact that the broad agreements do
not

expressly

include

employment

discrimination

claims,

evidences an intent not to arbitrate such claims. (Id.).
Additionally,

Plaintiffs

posit

that

these

agreements

represent invalid contracts of adhesion. (Id.).
As noted, under the FAA, arbitration agreements are
“valid, irrevocable, and enforceable,” unless grounds exist
to revoke said contract. 9 U.S.C. § 2. This represents a
“federal policy favoring arbitration.” Moses, 460 U.S. at 24.
“When

faced

with

a

broadly

worded

arbitration

clause,

[courts] should follow the presumption of arbitration and
resolve

doubts

in

favor

of

arbitration.”

Cheruvoth

v.

SeaDream Yacht Club, Inc., No. 1:19-cv-24416-GAYLES/OTAZO9

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 10 of 20 PageID 422

REYES, 2020 WL 6263013, at *5 (S.D. Fla. Oct. 22, 2020)
(citation omitted). “Accordingly, the FAA requires a court .
.

.

to

compel

arbitration

upon

a

showing

that

(a)

the

plaintiff entered into a written arbitration agreement that
is enforceable ‘under ordinary state-law’ contract principles
and (b) the claims before the court fall within the scope of
the agreement.” Lambert v. Austin Ind., 544 F.3d 1192, 1195
(11th Cir. 2008) (citing Paladino v. Avnet Computer Techs.,
Inc., 134 F.3d 1054, 1061 (11th Cir. 1998)).
1. Enforceability of the Agreements
Although state law governs the enforceability of an
arbitration agreement, “the Supreme Court has also made clear
that in enacting [Section 2] of the FAA, ‘Congress declared
a national policy favoring arbitration and withdrew the power
of the states to require a judicial forum for the resolution
of claims which the contracting parties agreed to resolve by
arbitration.’” Morales v. Rent-A-Center, Inc., 306 F. Supp.
2d 175, 180 (D. Conn. 2003) (quoting Southland Corp. v.
Keating, 465 U.S. 1, 7 (1984)). Therefore, “the FAA preempts
all

state

agreements
arbitration
applicable

laws
or

that

limit

the

agreements.”
contract

impermissibly
provisions
Id.

defenses,
10

at
such

burden
of

181.
as

the

arbitration
FAA

Only
fraud,

favoring

“generally
duress,

or

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 11 of 20 PageID 423

unconscionability may be applied to invalidate arbitration
agreements without contravening [Section 2 of the FAA].”
Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996).
Here,

the

Agreements,”

parties

signed

by

agree

that

Williams,

the

“Retail

Whitfield,

and

Agent
Marcus

Robinson, as well as the “Advisory Representative Agreement,”
signed by Williams alone, are governed by Connecticut law,
and the “Registered Representative Agreements,” signed by
Saunders, Hall, and Gwendolyn Robinson, are governed by Iowa
law.3 (Doc. # 5 at 15; Doc. # 17 at 4). Therefore, the Court
turns to Connecticut and Iowa law in determining whether the
arbitration clauses are enforceable.
Under

Connecticut

law,

“[t]he

issue

of

whether

the

parties to a contract have agreed to arbitration is controlled
by their intention.” Connecticut v. Philip Morris, Inc., 905
3. The “Retail Agent Agreements” do not include a choice-oflaw clause, but were signed in Connecticut. (Doc. ## 5-3; 57; 5-14); see Taylor, Bean & Whitaker Mortg. Corp. v. GMAC
Mortg. Corp., No. 5:05-cv-260-Oc-GRJ, 2007 WL 1114045, at *2
(M.D. Fla. Apr. 12, 2007) (“Florida follows the principle of
lex loci contractus, which means that the law of the place
where the contract was signed governs the dispute.”). The
“Advisory Representative Agreement” includes a choice-of-law
clause that selects Connecticut law. (Doc. # 5-4 at 9). The
“Registered Representative Agreements” include a conflictof-law clause, which provides: “This Agreement is governed
under the law of the state of Iowa without regard to its
conflicts of laws provisions.” (Doc. # 5-11 at 7; Doc. # 518 at 7; Doc. # 5-21 at 6).
11

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 12 of 20 PageID 424

A.2d 42, 48 (Conn. 2006) (citation omitted). The parties’
intent is evidenced from the language used, interpreted in
light of the parties’ situation and circumstances. Goldberg
v. Hartford Fire Ins. Co., 849 A.2d 368, 373 (2004). “Although
the intention of the parties typically is a question of fact,
if their intention is set forth clearly and unambiguously, it
is a question of law.” Philip Morris, 905 A.2d at 48.
“Under Iowa law, the elements of a valid contract are
offer, acceptance, and consideration.” Owen v. MBPXL Corp.,
173 F. Supp. 2d 905, 914 (N.D. Iowa 2001). “An acceptance of
an offer is a manifestation of assent to the terms thereof
made by the offeree in a manner invited or required by the
offer.” Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 270
(Iowa 2001) (citation omitted). “The offeree ‘must know of
the offer before there can be mutual assent.’” Duncan v. Int’l
Mkts. Live, Inc., No. 4:20-cv-00017-RGE-HCA, 2020 WL 6733636,
at *4 (S.D. Iowa Nov. 6, 2020) (quoting Anderson v. Douglas
& Lomason Co., 540 N.W.2d 277, 283 (Iowa 1995)).
Here, the agreements are valid under both Connecticut
and Iowa law. The contracts at issue all include a provision
requiring arbitration of related disputes. (Doc. # 5 at 79). Plaintiffs signed those agreements, “which serves as
presumptive evidence that an agreement was formed.” Morales,
12

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 13 of 20 PageID 425

306 F. Supp. 2d at 181; see also Ziskovsky v. Ziskovsky, 843
N.W.2d 478, 478 (Ct. App. Iowa 2014) (“It is well-settled
contract law that if a party to a contract is able to read
the contract, and is given an opportunity to do so, that party
cannot later argue she did not read the contract and remove
herself from the terms of the contact.). And, Plaintiffs do
not contend that they did not intend to arbitrate at least
some claims or that there was no offer or acceptance. 4 (Doc.
# 17); see also Ziskovsky, 843 N.W.2d at 478 (finding offer
and acceptance where the parties had an opportunity to read
their

contracts,

signed

them,

and did

not contest

those

signatures). Neither do Plaintiffs contend that they entered
into these agreements out of fraud or duress. (Doc. # 17).
Although Plaintiffs argue that the arbitration clauses
are unenforceable because they are “contracts of adhesion,”
they provide no factual support thereof and this statement
therefore amounts to no more than a legal conclusion. (Id. at
8); DaimlerChrysler Ins. Co. v. Pambianchi, 762 F. Supp. 2d
410, 423 (D. Conn. 2011) (“Under Connecticut law, a court

4. The Court need not address whether adequate consideration
was exchanged because Plaintiffs did not raise a lack of
consideration argument. See Owen, 173 F. Supp. 2d at 914 (“The
Iowa Supreme Court refuses to address the issue [of lack of
consideration] unless raised by the parties.”).
13

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 14 of 20 PageID 426

cannot find procedural unconscionability unless the party
opposing

enforcement

of

a

contractual

provision

has

introduced some specific evidence of overreaching by the
other party in the formation of the agreement.” (emphasis in
original)); De Dios v. Brand Energy & Infrastructure Servs.,
No. C-18-4011-MWB, 2018 WL 2976104, at *8 (N.D. Iowa June 13,
2018) (“Under Iowa law, the burden of proof that a particular
provision or contract is unconscionable rests on the party
claiming it is unconscionable.”).
To

the

extent

that

Plaintiffs

attempt

to

raise

an

unconscionability defense without stating so plainly, “mere
inequality

of

bargaining

power

that

exists

between

an

employee and employer is an insufficient reason to find an
arbitration

agreement

unenforceable.”

Gilmer

v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991); see
also De Dios, 2018 WL 2976104, at *8 (“As Brand points out,
De Dios sought employment with Brand, but there is no reason
to believe that he could not have also sought employment
elsewhere, or that he could only have worked for Brand. . .
. Here, De Dios not only signed the Agreement to Arbitrate in
his

employment

application,

but

the

Acknowledgement,

expressly representing that he had read and understood the
Agreement to Arbitrate and had been given time to consider
14

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 15 of 20 PageID 427

it. Because he does not allege any fraud, he cannot contradict
these representations.”); Billie v. Coverall N. Am., 444 F.
Supp. 3d 332, 347 (D. Conn. 2020) (“[U]nder Connecticut law,
the

court

cannot

deem

the

delegation

clause

to

be

unconscionable based solely on the adhesive nature of the
contract

and

the

unequal

standing

of

the

[parties].”

(citation omitted)).
The Court also notes that in all of the relatively short
contracts, the arbitration clauses were visible, with – at a
minimum – the header noting “arbitration” in bold. (Doc. # 5
at

6-7);

see

Billie,

444

F. Supp.

3d

at

347 (“In

both

contracts, the section heading is written in bold, capital
letters. The text of the clause is written in the same font
size as the surrounding clauses. The law requires nothing
more.”). With all of this in mind, as well as the strong
federal

policy

favoring

arbitration,

the

agreements

to

arbitrate are enforceable.
2. Scope of the Agreements
Now

that

the

Court

has

found

that

enforceable

arbitration agreements exist, it must determine whether the
instant racial discrimination claims are included in the
scope of those agreements. In gleaning the scope of the
agreements,

the

Court

looks
15

to

both

the

FAA

and

the

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 16 of 20 PageID 428

agreements’ text. Because “the FAA creates a presumption in
favor of arbitrability,” the parties “must clearly express
their

intent

arbitration

to

exclude categories

agreement.”

Lambert,

of

544

claims from
F.3d

at

their

1197-98.

“Federal statutory claims are generally arbitrable because
arbitration,
deterrent

like

litigation,

function,

and

can

federal

serve

law

a

favors

remedial

and

arbitration.”

Paladino, 134 F.3d at 1062 (citing Gilmer, 500 U.S. at 28).
Additionally,
because

the

language,

“[a]

party

cannot

avoid arbitration

arbitration

clause

uses

rather

than

listing

every

general,

. .

.

inclusive

possible

specific

claim[.]” Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217,
1221 (11th Cir. 2000).
Here, the arbitration agreements express the parties’
intent
arising

to

arbitrate
from

discrimination

any and

their
claims.

all

controversies or

relationship
(Doc.

#

5 at

–

including
6-9). Indeed,

claims
racial
these

provisions are both broad and do not specifically exclude
discrimination claims. (Id.); see Maddox v. USA HealthcareAdams, LLC, 350 F. Supp. 2d 968, 974 (M.D. Ala. 2004) (“The
FAA creates a presumption in favor of arbitration so parties
must clearly express their intent to exclude categories of
claims from their arbitration agreement. Adams has explicitly
16

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 17 of 20 PageID 429

excluded

certain

categories

from

arbitration.

However,

discrimination claims do not fall within the purview of noted
exceptions. . . . Maddox should be compelled to arbitrate
[the age and disability discrimination] claims that he has
presented to this court.” (citations omitted)).
The Eleventh Circuit faced a similar issue in Brown v.
ITT Consumer Financial Corp., in which three African American
employees sued their employer for racially discriminatory
treatment. Brown, 211 F.3d at 1217-21. The employees had
signed

an

arbitration

agreement

which

provided

that

the

parties “agreed that any dispute between them or claim by
either against the other or any agent or affiliate of the
other shall be resolved by binding arbitration[.]” Id. at
1220-21. The Court found that this was sufficient to compel
arbitration of the discrimination case, despite the fact that
the arbitration clause did not specifically include such
claims. Id. at 1221-22 (“We think that the language of the
instant

arbitration

clause

.

.

.

includes

statutory

claims.”). Here, like in Brown, the broad arbitration clause
compels the arbitration of racial employment discrimination
claims. Id.; see Bender v. A.G Edwards & Sons, Inc., 971 F.2d
698, 700-01 (11th Cir. 1992) (finding that Title VII claims
were subject to arbitration under similar circumstances); see
17

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 18 of 20 PageID 430

also Maddox, 350 F. Supp. 2d at 972 (“The FAA applies to all
employment contracts not specifically exempted from the FAA
(transportation

workers),

including

statutory

claims

for

discrimination.”).
And, although Plaintiffs contend that Rule 13201 of
FINRA’s Code of Arbitration Procedure precludes compelling
arbitration of racial discrimination claims here, the Court
does not find this logic persuasive. (Doc. # 17 at 5). Rule
13201 provides that employment discrimination claims are “not
required to be arbitrated” under FINRA’s Code, and rather
that such claims “may be arbitrated only if the parties have
agreed to arbitrate [them].” FINRA Rule 13201(a). Because the
Court has already found that the broad arbitration clauses
include

an

agreement

to

arbitrate

racial

discrimination

claims, Rule 13201 – even if it applies here – is satisfied.
Additionally, a number of courts in the Eleventh Circuit
have

previously

found

that

parties

can

be

compelled

to

arbitrate racial discrimination claims pursuant to a valid
arbitration agreement. See, e.g., Lewis v. Haskell Co., 108
F. Supp. 2d 1288, 1290-91, 1294 (M.D. Ala. 2000) (directing
African

American

plaintiffs

to

arbitrate

their

racial

discrimination claims in light of a broad arbitration clause
that did not specifically include such claims); Ravelo v.
18

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 19 of 20 PageID 431

Shutts
1587272,

&

Bowen,
at

LLP,

*1-2

(M.D.

No.

8:09-cv-865-T-26EAJ,

Fla.

June

5,

2009)

2009

WL

(compelling

arbitration in a case involving racial discrimination and
retaliation claims where the arbitration clause provided that
the plaintiff agreed to “resolve all claims, controversies or
disputes which may arise out of his/her employment with the
Firm (including statutory claims) by submitting these claims
to final and binding arbitration”); James v. Cmty. Phone Book,
Inc., No. 3:07-cv-775-J-33TEM, 2008 WL 2741841, at *5 (M.D.
Fla. July 11, 2008) (compelling arbitration of a pro se
plaintiff’s racial discrimination claims).
Therefore, the Motion is granted, and this case is stayed
pending arbitration of Plaintiffs’ claims. See Milestrone v.
Citrus Specialty Grp., Inc., No. 8:19-cv-2341-T-02JSS, 2019
WL 5887179, at *3 (M.D. Fla. Nov. 12, 2019) (“In accord with
Eleventh Circuit law, this case must be stayed rather than
dismissed.” (citing 9 U.S.C. § 3)).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant

Voya

Financial

Advisors,

Inc.’s

Motion

to

Compel Arbitration and Stay this Action (Doc. # 5) is
GRANTED.
(2)

This case is referred to FINRA arbitration and is STAYED
19

Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 20 of 20 PageID 432

pending resolution thereof. The Clerk is directed to
STAY and administratively CLOSE the case.
(3)

The parties are DIRECTED to file a joint report of the
status of the arbitration proceeding by March 8, 2021,
and

every

immediately

ninety

days

notify

the

thereafter.
Court

upon

The
the

parties

must

arbitrator’s

resolution of the claims asserted in this case.
DONE and ORDERED in Chambers, in Tampa, Florida, this
6th day of January, 2021.

20