Collier v. Real Time Staffing Services, Inc. d/b/a SelectRemedy
Filing
42
MEMORANDUM Opinion and Order Signed by the Honorable Joan H. Lefkow on 4/11/2012:Mailed notice(mad, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARION COLLIER, individually and on
behalf of all others similarly situated,
Plaintiff,
vs.
REAL TIME STAFFING SERVICES, INC.,
doing business as SelectRemedy,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No. 11 C 6209
Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
On September 7, 2011, plaintiff Darion Collier filed a putative class action against
defendant Real Time Staffing Services, Inc., doing business as SelectRemedy (“SelectRemedy”),
alleging that SelectRemedy violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681
et seq., by declining to hire Collier based on a consumer credit report without first providing
Collier with (1) a pre-adverse action disclosure that included a copy of Collier’s consumer
report; (2) a written description of Collier’s rights under the FCRA; and (3) a pre-adverse action
opportunity to dispute the accuracy of the reported information. SelectRemedy now moves to
dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and to compel
arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq. For the reasons set
forth herein, SelectRemedy’s petition to compel arbitration will be granted and its motion to
dismiss for lack of subject matter jurisdiction will be denied.
BACKGROUND
On or about July 26, 2011, Collier completed an electronic job application to work for
SelectRemedy. As part of his employment application, Collier signed a “Mutual Agreement to
Arbitrate” (“Arbitration Agreement”), which states in relevant part:
If SelectRemedy and I are unable to resolve any dispute informally,
I agree to having the dispute submitted and determined by binding
arbitration in conformity with the procedures of the Federal
Arbitration Act and the California Arbitration Act . . . . Such
disputes may include but not be limited to . . . those claims whether
in law or equity, which either party could assert, at common law or
under statute, rule, regulation, order of law, whether federal, state, or
local, except for those . . . precluded from arbitration by law.
(Def.’s Ex. A1 at 7.) Collier also signed an acknowledgment stating that he would become an
employee upon commencing a paid assignment with a client of SelectRemedy, that his
employment with SelectRemedy would be on an at-will basis, and that SelectRemedy was free to
alter the terms and conditions of his employment at any time. (Id. at 6.) After reviewing
Collier’s application, SelectRemedy chose not to hire Collier. Collier then filed the instant
lawsuit.
LEGAL STANDARD
The FAA governs questions of arbitrability in both state and federal courts. Jain v. de
Mere, 51 F.3d 686, 688 (7th Cir. 1995). The FAA provides that an arbitration clause in “a
contract evidencing a transaction involving commerce . . . 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 FAA’s central purpose is to ensure that private agreements to
arbitrate are enforced according to their terms.” Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 53–54, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995) (internal quotation marks and
2
citation omitted). “[W]hen a contract contains an arbitration clause, a strong presumption in
favor of arbitration exists and courts have no choice but to order arbitration ‘unless it may be
said with positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute.’” CK Witco Corp. v. Paper Allied Indus., 272 F.3d 419, 421–22 (7th
Cir. 2001) (quoting AT & T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 650, 106 S. Ct.
1415, 89 L. Ed. 2d 648 (1986)).
Under the FAA, a court may compel arbitration where there is (1) a written agreement to
arbitrate, (2) a dispute within the scope of the arbitration agreement, and (3) a refusal to arbitrate.
Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 687 (7th Cir. 2005). “To determine
whether a contract’s arbitration clause applies to a given dispute, federal courts apply state-law
principles of contract formation.” Gore v. Alltel Commc’ns, LLC, 666 F.3d 1027, 1032 (7th Cir.
2012). Under Illinois law, “[a]n agreement to arbitrate is treated like any other contract,”
Vassilkovska v. Woodfield Nissan, Inc., 830 N.E.2d 619, 623, 358 Ill. App. 3d 20, 294 Ill. Dec.
207 (2005), in other words, there must be “offer, acceptance and consideration.” Id. at 624. The
party opposing arbitration bears the burden of establishing why the arbitration provision should
not be enforced. Green Tree Fin. Corp. Ala. v. Randolph, 531 U.S. 79, 91–92, 121 S. Ct. 513,
148 L. Ed. 2d 373 (2000).
ANALYSIS
Collier argues that the Arbitration Agreement is unenforceable because (1) the agreement
to arbitrate was not mutual and SelectRemedy provided no other consideration to support the
agreement; and (2) SelectRemedy disclaimed any employment agreement with Collier by stating
that his employment was at-will. Collier also argues that if the court determines that the
3
Arbitration Agreement is enforceable, then the arbitrator must decide in the first instance
whether the parties agreed to arbitrate class claims.
I.
Whether the Arbitration Agreement is Enforceable
Collier argues that the Arbitration Agreement lacks consideration because SelectRemedy
did not agree to arbitrate its claims against Collier. “It is a basic tenet of contract law that in
order for a promise to be enforceable against the promisor, the promisee must have given some
consideration for the promise.” Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126,
1130 (7th Cir. 1997). “Often, consideration for one party’s promise to arbitrate is the other
party’s promise to do the same.” Id. at 1131. SelectRemedy’s commitment to arbitrate its
claims is evidenced by the Arbitration Agreement, titled “Mutual Agreement to Arbitrate.”
(Def.’s Ex. A1 at 7 (emphasis added).) Moreover, the Arbitration Agreement explicitly states
that it applies to “any dispute . . . which either party could assert.” Id. (emphasis added).
Unlike in Gibson, where the arbitration agreement contained “no promise on [the
employer’s] part to submit claims to arbitration” and was “worded entirely in terms of [the
employee’s] obligation to submit her claims to arbitration (using phrases such as ‘I agree’ ‘I
understand’ ‘I am waiving’),” here, both parties have mutually agreed to arbitrate claims that
either party could assert. Gibson, 121 F.3d at 1131. The Arbitration Agreement is therefore
supported by adequate consideration. See, e.g., Domin v. River Oaks Imps., Inc., No. 11 C 3876,
2011 WL 5039865, at *2 (N.D. Ill. Oct. 24, 2011) (“[W]here an arbitration agreement binds both
parties, there is sufficient consideration.”) (applying Illinois law); Truckenbrodt v. First Alliance
Mortg. Co., No. 96 C 1822, 1996 WL 422150, at *2 (N.D. Ill. July 24, 1996) (“All the
consideration that is required for one party’s promise to arbitrate is ‘the other party’s promise to
4
arbitrate at least some specified class of claims.’”) (applying Illinois law, quoting Lopez v. Plaza
Fin. Co., No. 95-C-7567, 1996 WL 210073, at *4 (N.D. Ill. April 25, 1996)). The Arbitration
Agreement is clear on its face, and the court need not consider whether SelectRemedy provided
any additional consideration because a mutual agreement to arbitrate is sufficient. See
Matterhorn, Inc. v. NCR Corp., 763 F.2d 866, 869 (7th Cir. 1985) (“If the agreement of one
party to arbitrate disputes is fully supported by the other party’s agreement to do likewise, there
is no need to look elsewhere in the contract for consideration for the agreement to arbitrate.”).1
Collier also argues that, even if the agreement to arbitrate was mutual and therefore
supported by consideration, SelectRemedy’s promise was illusory because it promised nothing in
exchange for Collier’s agreement. That is, SelectRemedy retained the right to change the terms
and conditions of Collier’s employment, including the manner in which disputes could be
resolved, rendering even the promise to arbitrate illusory.2 This argument is reasonable but it has
not been accepted among the appellate courts, as is reflected in Gibson, on which Collier relies.
See 121 F.3d at 1132 (“[T]here ought to be realistic requirements for achieving a valid
arbitration agreement in the context of employment. These requirements must recognize that we
are dealing in most cases with a contract of adhesion: agree to arbitrate or lose your job.”)
(Cudahy, J., concurring). In Penn v. Ryan’s Family Steak Houses, Inc., 269 F.3d 753, 761 (7th
1
Collier cites Oguejiofor v. Nissan, No. C-11-0544 EMC, 2011 WL 3879482 (N.D. Cal. Sept. 2,
2011), as rejecting the employer’s argument that an arbitration agreement in an employment application
was supported by adequate consideration. The court, however, seemed to accept the argument: “It would
appear that the arbitration agreement might apply even if Mr. Oguejiofor had not been hired, e.g., if he
tried to sue for discriminatory refusal to hire.” Id. at *2.
2
The “At-Will” section of the agreement states: “Terms and conditions of employment including
promotions, change in job duties, locations, and compensation can be changed at the sole discretion of
SelectRemedy, at any time, with or without cause, advance notice, or stated reason.” (Def.’s Ex. A1 at 6.)
5
Cir. 2001), the Seventh Circuit drew the line on deference to employee arbitration agreements
where an employee was required as a condition of employment to sign an arbitration agreement
with an employer-funded enterprise offering employment dispute resolution services to
employers. Although the enterprise promised “to provide an arbitration forum, Rules and
Procedures, and a hearing and decision based on any claim or dispute,” the agreement was so
vague that it allowed the vendor to fulfill its promise by providing the parties with a “coin toss.”
Id. at 759. The agreement here, by contrast, provided that the arbitration would be conducted in
conformity with the procedures of the FAA and the California Arbitration Act. (Def.’s Ex. A1 at
7.) Beyond Gibson and Penn,3 Collier provides scant support for his position that employment
at-will language, which is standard in most employment contracts, renders an otherwise
enforceable promise to arbitrate illusory, and the court declines to so hold. See, e.g., Tinder v.
Pinkerton Security, 305 F.3d 728, 736 (7th Cir. 2002) (rejecting employee’s claim that
employer’s agreement to arbitrate was “illusory because [the employer] reserved the right to
modify or terminate its policies at any time”) (applying Wisconsin law); Wilkerson v. Serv.
Corp. Int’l, No. IP 02–0982–C B/S, 2003 WL 21052128, at *3 (S.D. Ind. Apr. 2, 2003) (“Where,
as here, the employer provides independent consideration for the arbitration
provision—continued employment and an agreement to be bound by any arbitration
decision—and where, as here the employee agrees to arbitrate the enumerated claims, the
arbitration provision is consistent with employment at will.”) (applying Indiana law).
II.
Arbitrability of Class Claims
3
Collier’s reliance on Dwyer v. Graham, 457 N.E.2d 1239, 1241, 99 Ill. 2d 205, 75 Ill. Dec. 680
(1983), is not helpful because that case arose in an entirely different context. It dealt with an indefinite
term of a lease, resulting in a holding that the lease was terminable at will by either party.
6
Finally, Collier argues that the arbitrator must determine in the first instance whether the
Arbitration Agreement encompasses class claims because the Arbitration Agreement suggests
that the parties intended to arbitrate class claims. SelectRemedy, on the other hand, argues that
the Arbitration Agreement is silent as to class claims, and as such, the court may only refer
Collier’s individual claim to arbitration. The Supreme Court addressed this very issue in Green
Tree Financial Corporation v. Bazzle, although the case failed to produce a majority. 539 U.S.
at 450–454. As explained by the Seventh Circuit,
The [Bazzle] plurality opinion (Breyer, J., joined by Scalia, Souter,
and Ginsburg, JJ.) concluded that arbitrators are entitled to make the
initial decision about whether class arbitration has been authorized.
539 U.S. at 450–54, 123 S. Ct. 2402. Chief Justice Rehnquist, joined
by Justices O’Connor and Kennedy, thought that a court should make
the initial decision. Id. at 456–60, 123 S. Ct. 2402. Justices Stevens
and Thomas participated but did not address the question.
Blue Cross Blue Shield of Mass., Inc. v. BCS Ins. Co., 671 F.3d 635, 639 (7th Cir. 2011).
Similar to the Supreme Court, the Seventh Circuit has yet to reach the issue as it relates to class
claims.
In Employers Insurance Company of Wausau v. Century Indemnity Company, however,
the Seventh Circuit held that “the question of whether an arbitration agreement forbids
consolidated arbitration is a procedural one, which the arbitrator should resolve.” 443 F.3d 573,
577 (7th Cir. 2006) (emphasis added); see also Howsam v. Dean Witter Reynolds, Inc., 537 U.S.
79, 84, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002) (“[P]rocedural questions which grow out of the
dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator,
to decide.” (internal quotation marks and citation omitted, emphasis in original)). Although
Wausau considered the arbitrability of consolidated claims, not class claims, the Seventh Circuit
7
in Champ v. Siegel Trading Company, Inc., 55 F.3d 269, 274–75 (7th Cir. 1995), looked to
consolidated arbitration cases to guide its analysis of class claims issues. See also 1
COMMERCIAL ARBITRATION § 20:44 (“consolidation in arbitration is analogous to class
arbitration”).
The Supreme Court recently clarified the role arbitrators may play in resolving class
claims by holding that arbitrators may entertain class actions only where the parties have
authorized such a procedure by contract. Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., --- U.S. ---, 130 S. Ct. 1758, 1775, 176 L. Ed. 2d 605 (2010). In Stolt-Nielsen, two sophisticated shipping
companies entered into a maritime contract, known as a charter party, whereby they agreed to
submit their claims to binding arbitration. AnimalFeeds brought an anti-trust action against
Stolt-Nielsen and sought arbitration on behalf of the class. Id. at 1764–65. The charter party
was silent as to the arbitrability of class claims, and the parties stipulated that they had not
reached an agreement on the issue. Id. at 1766. Nevertheless, a panel of arbitrators decided,
based on public policy concerns, that the arbitration clause allowed for class arbitration. Id. at
1770. The Supreme Court reversed, stating that “the differences between bilateral and classaction arbitration are too great for arbitrators to presume, consistent with their limited powers
under the FAA, that the parties’ mere silence on the issue of class-action arbitration constitutes
consent to resolve their disputes in class proceedings.” Id. at 1776. Reiterating “the basic
precept that arbitration ‘is a matter of consent, not coercion,’” id. at 1773 (quoting Volt Info.
Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S. Ct.
1248, 103 L. Ed. 2d 488 (1989)), the Court concluded that “a party may not be compelled under
8
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 (emphasis in original).
In affirming this court’s post-Stolt-Nielsen decision to permit an arbitrator to determine in
the first instance whether an arbitration agreement, which was silent on its face, allowed
arbitration of consolidated claims, the Seventh Circuit explained the impact of Stolt-Nielsen,
[Here,] the district court would have allowed the arbitrators to decide
in the first instance whether a consolidated proceeding is permissible
under the contracts and, if so, whether it is appropriate. That’s the
upshot of Wausau, and Stolt-Nielsen does not hold otherwise. It
reached the Supreme Court after arbitration had been concluded.
Whether the arbitrators had exceeded their powers, and thus whether
the award could be set aside under 9 U.S.C. § 10(a)(4), was the only
question presented by the petition for certiorari. . . . [T]he Court in
Stolt-Nielsen did not deny that class-wide arbitration is still
‘arbitration’; it just held that certifying a class exceeds an arbitrator’s
powers unless the parties have consented to class procedures. If
class-wide arbitration is still ‘arbitration,’ so is consolidated
arbitration.
Blue Cross Blue Shield of Mass., Inc., 671 F.3d at 638–39. SelectRemedy argues that StoltNielsen forecloses an arbitrator’s ability to determine the arbitrability of class claims in the first
instance and therefore only Collier’s individual claim may be referred to arbitration. This is not
the reading of Stolt-Nielsen endorsed by the Seventh Circuit. Rather, “[t]he only question that a
court should address before arbitration starts is whether the parties have agreed to arbitrate at
all.” Id. at 639.
Having concluded that the parties in this case so agreed, the court holds that it is up to
“the arbitrators themselves [to] resolve procedural questions in the first instance.” Id.; see also
Guida v. Home Sav. of Am., Inc., 793 F. Supp. 2d 611, 617–18 (E.D.N.Y. 2011) (“There are a
number of cases . . . in which courts have concluded, subsequent to Stolt-Nielsen, that the ability
9
of plaintiffs to arbitrate on a class basis is an issue to be determined by the arbitrator.”)
(collecting cases).4 The proper course of action, therefore, is to stay proceedings pending
arbitration.5 See 9 U.S.C. § 3; OCMC, Inc. v. Billing Concepts, Inc., No.
1:05-CV-1396-DFH-TAB, 2006 WL 1234884, at *5 (S.D. Ind. May 3, 2006) (“Ordinarily, when
a court finds that a dispute falls within the scope of a valid agreement to arbitrate, the proper
course of action under the FAA is not to dismiss the case but to stay judicial proceedings and to
compel arbitration.”) (collecting cases).6
ORDER
For the foregoing reasons, the court grants defendant’s petition to compel arbitration
[#17]. In accordance with section 3 of the FAA, the court stays the litigation pending arbitration.
The motion to certify the class [#6] is denied without prejudice and with leave to reinstate should
the class claims proceed in this court. Defendant’s motion to dismiss [#17] is, therefore, denied.
ENTER:
Dated: April 11, 2012
______________________________
JOAN HUMPHREY LEFKOW
United States District Judge
4
Judge Hibbler came to a different conclusion in Goodale v. George S. May Int’l Co., No. 10 C
5733, 2011 WL 1337349, at **2–3 (N.D. Ill. Apr. 5, 2011), as did Judge Zagel in Watkins v. New
Koosharem Corp., No. 11-CV-5210, Dkt. #37 (N.D. Ill. Mar. 9, 2012).
5
The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 15 U.S.C.
§ 1681p. Venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(b)(2) because a
substantial part of the events or omissions giving rise to Collier’s claims occurred in this district.
6
In concluding that the arbitrator must decide whether the Arbitration Agreement provides for
the arbitration of class claims, the court declines to consider if or how the National Labor Relations
Board’s recent opinion in D.R. Horton, Inc., 357 N.L.R.B. No. 184 (Jan. 3, 2012), affects the claim
asserted in this case.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?