Glass v. Allied Waste Transportation, Inc.
Filing
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Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 11/3/2016: Defendant's motion 22 for an order striking plaintiff's jury demand is granted. Status hearing is set for 12/1/2016, at 9:00 a.m. Mailed notice (gds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM GLASS,
Plaintiff,
v.
ALLIED WASTE TRANSPORTATION, INC., d/b/a
Republic Services of Chicago,
Defendant.
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Case No. 15 C 10041
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff William Glass has sued Defendant Allied Waste Transportation, Inc. d/b/a Republic
Services of Chicago, alleging wrongful discharge in violation of plaintiff’s rights under the Family
Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (Count I), and retaliation under Illinois state law
(Count II). Defendant has moved pursuant to Fed. R. Civ. P. 39 to strike plaintiff’s jury demand,
arguing that plaintiff knowingly and voluntarily waived his right to a jury trial through a
contractual agreement with defendant. For the reasons described below, defendant’s motion is
granted.
FACTS
Defendant provides waste collection, recycling, and disposal service to residential,
commercial, and industrial customers. Plaintiff was employed by defendant as an industrial
driver from June 18, 2012, until November 5, 2013. As a condition of defendant considering his
employment application and, if hired, his employment, plaintiff executed a jury trial wavier
agreement (“the Waiver”) on June 1, 2012, in which he agreed to waive his right to request or
demand a jury trial with respect to any lawsuit between him and defendant.
The Waiver was presented to plaintiff on a single page at the end of plaintiff’s employment
application, and was clearly labeled “JURY TRIAL WAIVER AGREEMENT” in bold and capital
letters. The Waiver stated that it “constitutes the entire agreement and understanding” between
plaintiff and defendant and “supersedes any prior agreements and understandings, whether written
or oral, related to this subject matter.” The Waiver provided that it “cannot be revoked or modified
except by a written agreement, signed by [plaintiff] and the General Counsel of the Company.”
The final paragraph above the Waiver’s signature line provided in all capital letters and in bold
face type that plaintiff understood that he was giving up and waiving his right to a jury trial,
“KNOWINGLY, INTELLIGENTLY, VOLUNTARILY, AND FREE FROM DURESS OR
COERCION.” Finally, the Waiver specifically permitted plaintiff to “consult with any attorney of
[his] choosing” regarding the Waiver, and that he could “take as much time as [he wanted] to
consider [the Waiver].”
Through a letter (the “employment agreement”) received on June 4, 2012, defendant
offered plaintiff employment, informing him that his employment would be governed by a
collective bargaining agreement (“CBA”) in place between defendant and Union Local 731 (the
“Union”). The letter did not refer to the Waiver. To accept the offer, plaintiff signed a form
attached to the employment agreement that stated: “I understand all terms offered to me and accept
employment on these terms. I agree that no other promises have been made to me.”
Plaintiff’s employment with defendant was subsequently terminated after an investigation
revealed that plaintiff repeatedly failed to follow company policy and received numerous
corrective reports as part of defendant’s discipline system. Plaintiff alleges that he was wrongfully
disciplined and discharged under state and federal law.
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DISCUSSION
Defendant has moved to strike plaintiff’s jury demand, arguing that by signing the Waiver,
plaintiff knowingly and voluntarily waived his right to a jury trial concerning all matters relating to
his employment with defendant. Although the Seventh Amendment to the United States
Constitution guarantees the right to a jury trial in civil cases, this right is waivable. Whirlpool Fin.
Corp. v. Sevaux, 866 F. Supp. 1102, 1105 (N.D. Ill. 1994). Such a waiver, however, must be made
knowingly and voluntarily. In re Reggie Packing Co., Inc., 671 F. Supp. 571, 573 (N.D. Ill. 1987).
Plaintiff first contends that the Waiver is invalid, arguing that the Union was authorized to
act as his exclusive bargaining agent, and that the Waiver was not authorized under the applicable
CBA. Relying on 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), plaintiff argues that jury
waiver, like the question of whether employment-related discrimination claims, may be brought in
court or subject to arbitration, is a condition of employment that is subject to mandatory bargaining
under Section 159(a) of the National Labor Relations Act. In 14 Penn Plaza LLC, however, the
Court held only that a union can agree collectively to arbitrate an ADEA claim, not that the issue
had to be bargained collectively. Id. at 274. (“We hold that a collective bargaining agreement
that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as
a matter of federal law.”). The decision was based, in large part, on the Court’s earlier decision in
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28-29 (1991), which held that an individual
may agree to arbitrate an ADEA claim because “the mere involvement of an administrative agency
in the enforcement of a statute is not sufficient to preclude arbitration.”
Defendant correctly notes that the plain language of the applicable CBA applied only to
defendant’s “employees.” When he executed the Waiver, plaintiff was not yet a member of the
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bargaining unit. Plaintiff executed the Waiver as part of his application process, well before he
became an employee. Further, the CBA provides that newly hired employees who have worked
fewer than 60 days or less than 90 calendar days do not have bargaining unit rights under the CBA.
Therefore, the Union would not have had any right to negotiate the terms of the Waiver within that
period, or as a part of plaintiff’s application process. Consequently, the Waiver is valid despite
the Union’s authority to act as plaintiff’s exclusive bargaining agent throughout his employment.
Plaintiff next argues that even if the Waiver was valid at the time it was entered, it was
supplanted or superseded by the CBA. Defendant responds that because plaintiff was not a
member of the Union when he executed the Waiver, and not covered by the CBA, and because the
two agreements did not cover the same subject matter, the Waiver was not superseded by the CBA.
The court agrees with defendant.
Under Illinois law, an earlier contract is superseded by a later contract when: (1) both
contracts deal with the same subject matter; (2) the two contracts contain some inconsistences
which "evince[ ] the conclusion that the two parties intended for the second contract to control
their agreement and to supersede the first contract"; and (3) the later contract "reveal[s] no
intention by the parties to incorporate any of the terms of the first contract." Courtois v. Millard,
174 Ill. App. 3d 716, 720 (Ill. App. Ct. 5th Dist. 1988). In the instant case, the CBA clearly states
that its purpose is to “establish the hours, wages, and other conditions of employment, and to adopt
measures for the settlement or difference and to maintain a cooperative relationship so as to
prevent interruptions by boycotts, strikes, or lockouts.” The CBA provides no rights to employees
who are part of its bargaining unit relating to litigation following the termination of an employee’s
employment or, more specifically, the employee’s right to a jury trial. In contrast, the Waiver
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specifically relates to the rights and obligations relating to defendant’s and plaintiff’s right to a jury
trial. The Waiver and the employment agreement do not cover the same subject matter, and the
CBA does not purport to cover plaintiff’s right to a jury trial after he was terminated.
Plaintiff alternatively argues that the Waiver is supplanted or superseded by the
employment agreement he signed on June 4, 2012. He offers no support for this argument. The
Waiver specifically indicates that it cannot be superseded or revoked “except by a written
agreement, signed by [plaintiff] and the General Counsel of the Company,” and nothing in the
employment agreement purports to do that. Thus, the court concludes that the Waiver was not
supplanted or superseded by the CBA or the employment agreement.
Next, plaintiff argues that the Waiver is invalid because it was not supported by adequate
consideration. Plaintiff argues, relying on Keefe v. Allied Home Mortgage Corporation, 393 Ill.
App. 3d 226(2009), that defendant’s promise lacked consideration because its performance was
“optional.” In Keefe, however, the court found that a party’s mere “promise to arbitrate” was
neither empty nor optional. Keefe, 393 Ill. App. 3d at 230.
Consideration is “a bargained-for exchange whereby the promisor receives some benefit or
the promisee suffers detriment.” LKQ Corp. v. Thrasher, 785 F. Supp. 2d 737, 739 (N.D. Ill.
2011). By “waiving the right to have a jury trial, both parties have suffered a detriment because
they have given up a significant legal right.” See Johnson v. Harvest Mgmt. Sub TRS
Corp.--Holiday Ret., 2015 WL 5692567, at *2 (S.D. Ind. 2015). In the instant case, both
defendant and plaintiff received a benefit and suffered a detriment through the execution of the
Waiver. Defendant offered plaintiff the benefit of considering his application for employment, and
gave up its own right to a
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jury trial, in exchange for plaintiff’s waiver of his right to demand a jury. Thus, the court concludes
that the Waiver was supported by sufficient consideration.
Finally, plaintiff argues that the Waiver was not executed knowingly and voluntarily under
the standard set forth in Whirlpool Fin. Corp. v. Sevaux, 866 F. Supp. 1102 (N.D. Ill. 1994). In
Whirpool, the plaintiff credit corporation sued the defendant debtor alleging that the defendant had
failed to pay on a note that he had executed. The defendant demanded a jury trial. Id. The plaintiff
had a copy of the six-page note sent to defendant via mail, which contained a clause stating that
defendant “irrevocably and unconditionally waives all right to a jury trial.” Whirlpool, 866 F.
Supp. at 1104. The court considered four factors to determine whether a contractual waiver of the
right to jury trial was entered into knowingly and voluntarily: (1) the parties' negotiations
concerning the waiver provision, if any; (2) the conspicuousness of the provision; (3) the relative
bargaining power of the parties; and (4) whether the waiving party's counsel had an opportunity to
review the agreement. Whirlpool, 866 F. Supp. at 1103.
Applying those factors, the Whirlpool court concluded that the parties had never discussed
the waiver provision in the note and, because the waiver constituted only three lines in a six-page
form loan agreement, the waiver was not sufficiently conspicuous Id. The defendant was in
desperate need of cash, and therefore had less bargaining power than the plaintiff, and the
defendant did not have the opportunity to have counsel evaluate the note. Id. Under those
circumstances, the court held that defendant’s signing of the note did not waive his right to a jury
trial. Id. at 1106.
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In the instant case, although plaintiff did not have the opportunity to negotiate the Waiver,
plaintiff executed the Waiver in the presence of defendant. The Waiver was presented to plaintiff
on a single page following plaintiff’s employment application, and was clearly labeled “JURY
TRIAL WAIVER” in bold, capital letters at the top of the page. The final paragraph above the
Waiver’s signature line provided in all capital letters and in bold face type that plaintiff understood
he was giving up and waiving his rights to a jury trial, “KNOWINGLY, INTELLIGENTLY,
VOLUNTARILY, AND FREE FROM DURESS OR COERCION.” Thus, the court finds that
the Waiver was conspicuous.
Next, as the opinion in IFC explains, unequal bargaining power and form contracts do not
invalidate the plain language of a jury trial waiver. IFC Credit Corp. v. United Bus. & Indus. Fed.
Credit Union, 512 F.3d 989, 993 (7th Cir. Ill. 2008). Such agreements are upheld where the plain
language of the contract includes an express waiver of the right to a jury trial, “even in form
contracts." Allaway v. Prospect Mortg., 2013 WL 6231382 (N.D. Ill. 2013). Finally, the Waiver
specifically permitted plaintiff to “consult with any attorney of [his] choosing” regarding the
waiver, and that he could “take as much time as [he wanted] to consider [the waiver].” Therefore,
the court concludes that plaintiff waived his right to a jury trial knowingly and voluntarily.1
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Because there are no disputed issues of fact there is no need to hold an evidentiary hearing as
requested by plaintiff.
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CONCLUSION
For the foregoing reasons, defendant’s motion for an order striking plaintiff’s jury demand
(Doc.22) is granted. This matter is set for a report on status for December 1, 2016, at 9:00 a.m.
ENTER:
November 3, 2016
__________________________________________
Robert W. Gettleman
United States District Judge
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