Saxon v. Southwest Airlines Co.

Filing 14

MEMORANDUM by Southwest Airlines Co. in support of motion to dismiss #13 (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F)(Siebert, Melissa)

Exhibit E

agrees to the ADR Program. Exhibit 2 is a true and correct copy of the most recent records for
Saxon. These records reflect that Saxon signed off on and agreed to the ADR Program on October
15, 2018 at 4:15 p.m. (military time of 16:15:46). Exhibit 2 reflects the 2018 SWALife
Announcement that Saxon would have seen when she logged into SWALife, except that her own
name would have appeared next to the acknowledgement box.
7.

Southwest’s ADR Program is available to employees to review and print at any

time on SWALife. As stated above, employees are also required to annually review the ADR
Program and agree to it, and a link directly to the ADR Program is contained in the annual
announcement. (Ex. 2.)
8.

Southwest’s records reflect that Saxon also signed off on and agreed to Southwest’s

ADR Program in 2015, 2016, and 2017. Attached hereto as Exhibit 3 are true and correct copies
of the ADR Program Acknowledgements signed off on and agreed to by Saxon on August 7, 2015,
July 26, 2016, and August 14, 2017.
9.

Southwest’s Information Security Policy prohibits employees from sharing

passwords with others or allowing others to access their accounts, and requires that employees
treat their SWALife passwords as confidential. Southwest’s Guidelines for Employees also
prohibits employees from sharing passwords, or allowing others to utilize their passwords to access
Southwest’s applications or email system.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct.

3

Exhibit 1

Southwest Airlines Alternative Dispute Resolution Agreement
This Alternative Dispute Resolution Agreement is between you and Southwest Airlines Co.,
its parents, subsidiaries, and related entities (collectively, “Southwest Airlines”). Southwest
Airlines operates in interstate commerce and this Agreement is governed by the Federal
Arbitration Act, 9 U.S.C. §§ 1 et seq.
1.

Applicability
The Southwest Airlines Alternative Dispute Resolution Program (“ADR Program”) is
intended to be a substitute for the legal process, and may only be invoked to resolve
Covered Claims (defined in Section 3 below). By agreeing to arbitrate such legal disputes,
the ADR Employee (defined in Section 2 below) and Southwest Airlines (collectively, the
“Parties”) understand that they are not giving up any substantive rights under local, state
or federal law. Rather, they are mutually agreeing to submit certain legal disputes to an
arbitral, rather than judicial, forum before an arbitrator instead of a jury or judge.
The ADR Program applies to any Covered Claim (defined in Section 3 below) between
Southwest Airlines on one hand, and an ADR Employee of Southwest Airlines (defined in
Section 2 below) on the other - even after the employment relationship has ended. ADR
Employees include all Southwest Airlines Employees not covered by a collective bargaining
agreement (“CBA”).
The ADR Program is not intended to be utilized in every instance where an ADR Employee
has a dispute with Southwest Airlines. As always, Employees and Leaders are encouraged
to use informal methods to attempt to resolve disputes internally prior to proceeding
through the ADR Program, including by bringing concerns to their Supervisor, Manager,
HRBP, Director, Vice President, or, if necessary, the Employee Relations Team. The ADR
Program should only be utilized when complaints have not been resolved informally and
when the Employee would otherwise initiate formal legal action.

2.

ADR Employees
By signing this Agreement, or by applying for, accepting, or continuing employment with
Southwest Airlines after receiving a copy of this Agreement, each Employee not subject to a
CBA, and each Prospective Employee or Candidate applying for a position not subject to a
CBA, agrees, as a condition of being considered for employment, continuing employment,
or receiving an offer of employment, to resolve all of his/her Covered Claims (as defined in
Section 3 below) using this ADR Program and hereby waives his/her rights to the judicial
process, including but not limited to (1) having such complaints, disputes and claims
determined by a jury, and (2) having such complaints, disputes and claims determined on a
class-wide or collective basis. Such individuals, collectively known as “ADR Employees”
herein, shall continue to be subject to this ADR Program even after termination of the
employment relationship with Southwest Airlines.

Southwest Airlines Alternative Dispute Resolution Agreement – Page 1

3.

Covered Complaints, Disputes and Claims
All covered complaints, disputes and claims (collectively, “Covered Claims”) that are
recognized under applicable law must be processed by Southwest Airlines and ADR
Employees pursuant to this ADR Program. Thus, both Southwest Airlines and ADR
Employees agree to be bound by the terms of this ADR Program. Southwest Airlines is not
bound by the ADR Program when addressing workplace issues, and is not required to start
the ADR process before taking disciplinary action of any kind, including without limitation
termination of employment. The ADR Program may only be invoked to resolve
claims/causes recognized by applicable law and in place of legal proceedings.
Covered Claims means all legal disputes and legal claims by and between an ADR Employee
and Southwest Airlines, or between an ADR Employee and any agents or employees of
Southwest Airlines if Southwest Airlines could be liable, directly or indirectly, for such
dispute, which exist now or may arise in the future, related to the following:


The creation, existence, or termination of an ADR Employee’s employment relationship
with Southwest Airlines, including an ADR Employee’s application for employment with,
employment with, or termination of employment from Southwest Airlines;



Any matters related to an ADR Employee’s employment with Southwest Airlines, including,
but not limited to:
o wages or any other compensation;
o benefits (except claims under an employee benefit or pension plan that either (i)
specifies that its claims procedure shall culminate in an arbitration procedure
different than this one or (ii) is underwritten by a commercial insurer which decides
claims);
o any agreement or covenant between an ADR Employee and Southwest Airlines;
o hours worked, breaks, or rest periods;
o any matter covered by Southwest Airlines’ employee handbook, standalone policies
and procedures, or other company guidelines, rules, and materials;



Any claims arising under the Uniform Trade Secrets Act, the Equal Pay Act, the Americans
with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical
Leave Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act, the
Rehabilitation Act, the Uniformed Services Employment and Reemployment Rights Act,
Consolidated Omnibus Budget Reconciliation Act (COBRA), Davis-Bacon Act, Drug Free
Workplace Act of 1988, Electronic Communications Privacy Act of 1986, Employee
Polygraph Protection Act of 1988, Fair Credit Reporting Act, Federal Omnibus Crime
Control and Safe Streets Act of 1968, the Hate Crimes Prevention Act of 1999, The
Occupational Safety and Health Act, Omnibus Transportation Employee Testing Act of
1991, Privacy Act of 1993, The Sarbanes-Oxley Act, Veterans Reemployment Rights Act,
Worker Adjustment and Retraining Notification Act (WARN), Illinois Biometric Information
Privacy Act (BIPA), and any other federal, state, or local statute, law, rule, regulation, or
ordinance relating to employment, the creation of the employment relationship, the
Southwest Airlines Alternative Dispute Resolution Agreement – Page 2

information provided to or by employees, employee privacy or informational rights,
employment discrimination and harassment (except as otherwise provided herein),
employment benefits, wage and hour, compensation, or employment law, and all other
statutory and common law claims relating to an ADR Employee’s employment as to which a
court would be authorized by law to grant relief if the claim were successful; and


All legal disputes Southwest Airlines could otherwise file in court against an ADR Employee
relating to an ADR Employee’s application for employment with, employment with, or
termination of employment from Southwest Airlines.
Notwithstanding the foregoing, Covered Claims does not include claims under Title VII of
the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or
harassment, including assault and battery, intentional infliction of emotional distress, false
imprisonment, or negligent hiring, supervision, or retention. Covered Claims does not
include claims for workers’ compensation, state disability insurance, or unemployment
insurance benefits.
Both Southwest Airlines and the ADR Employee understand that, under current law,
California Labor Code Private Attorneys General Act, Cal. Labor Code §§ 2698 et seq., claims
(“PAGA Claims”) cannot be compelled to individual arbitration. Accordingly, PAGA Claims
are excluded from the definition of Covered Claims and are not subject to the ADR
Program. The Parties acknowledge and accept that this exclusion of PAGA Claims may
result in some claims being arbitrable, while other claims are not, resulting in the
possibility of a lawsuit and an arbitration proceeding simultaneously. The Parties further
agree that should the operative statutory language and/or court decisions interpreting
PAGA Claims change such that PAGA Claims may be lawfully compelled to individual
arbitration, this paragraph shall be null and void and PAGA Claims will be included in the
definition of Covered Claims
This ADR Program does not affect an ADR Employee’s right to communicate with, file a
complaint or charge with, or cooperate in the investigations of any governmental agency on
matters within their jurisdiction, including the Equal Employment Opportunity
Commission, the United States Department of Labor, the Occupational Safety and Health
Administration, the Federal Aviation Administration, a state Fair Employment or Human
Rights Commission, a state unemployment commission or workers’ compensation board,
or other federal/state government agency with investigatory authority.
This ADR Program does not cover Southwest Airlines’ or an ADR Employee’s right to seek
equitable or injunctive relief to enforce the provisions of an employment, confidentiality,
trade secret, non-compete or intellectual property agreement.
Even after termination of the employment relationship with Southwest Airlines, all ADR
Employees and Southwest Airlines must continue to follow the terms of this ADR Program
to resolve Covered Claims. All disputes concerning the scope and/or coverage of a claim or
a party must be resolved by the Arbitrator rather than a court.
Southwest Airlines Alternative Dispute Resolution Agreement – Page 3

4.

The Two-Step ADR Process
As described in detail below, this ADR Program contains a two-step process to resolve all
Covered Claims fairly and quickly through the use of General Counsel Review, and if
necessary, through Final and Binding Arbitration.
This ADR Program and the related procedures are the sole and complete agreement
between Southwest Airlines and ADR Employees regarding the resolution of Covered
Claims.
a. Step 1 – General Counsel Review
A party shall initiate Step 1 of the ADR Program by submitting a written request to
Southwest Airlines’ General Counsel Department (“General Counsel”) on a preapproved form entitled, “ADR Request”, available on SWALife or upon request from
General Counsel at 214-792-3215. The ADR Request must be submitted within the
statute of limitations period applicable to the causes of action, or such claims will be
time-barred. The statute of limitations period applicable to the causes of action will be
tolled for 60 days following submission of the ADR Request to General Counsel.
Upon receipt of an ADR Request, General Counsel will investigate the complaint (which
may include delegating some or all of the investigation to other departments or outside
counsel). General Counsel will provide a written response within 60 days following
General Counsel’s receipt of the ADR Request. If either Southwest Airlines or the ADR
Employee is not satisfied with General Counsel’s written response, or if General Counsel
does not provide a written response within 60 days, then a party may proceed to Step 2
of this ADR Program.
b. Step 2 – Final and Binding Arbitration
Prior to proceeding to Final and Binding Arbitration, a Covered Claim must first have
been addressed through Step 1 of this ADR Program. Moreover, if Southwest Airlines or
an ADR Employee chooses to file a charge/complaint with a government agency that
has investigatory power over some or all claims, this ADR Program will be stayed (put
on hold) until the government agency resolves the charge/complaint (such as by
issuing a right to sue letter). If administrative exhaustion would be required before
filing a claim in court, then the party asserting the claim must exhaust administrative
remedies before proceeding to Step 2 of this ADR Program.
The party applying for Arbitration shall submit the request in writing to General
Counsel on a pre-approved form entitled, “Arbitration Request”, available on SWALife
or upon request from General Counsel. The deadline for a party to submit the
Arbitration Request is 45 days following the completion of Step 1, or within the
applicable statute of limitations, whichever is later. Assuming the party applying for
Arbitration has completed Step 1, timely submitted an Arbitration Request, and fulfilled
all other conditions precedent described in this ADR Program, General Counsel shall
Southwest Airlines Alternative Dispute Resolution Agreement – Page 4

then prepare a joint request for Arbitration to be submitted to the American Arbitration
Association (“AAA”) for administration of the Arbitration. If both Parties agree, the
matter may proceed to non-binding Mediation with a trained, neutral Mediator in an
effort to resolve the dispute prior to proceeding to Arbitration.
The Arbitration shall be conducted in accordance with the current version of AAA’s
Employment Arbitration Rules and Mediation Procedures (“AAA Rules”), except to the
extent the AAA Rules conflict with this ADR Program, in which case the terms of this
ADR Program will govern.
Southwest Airlines and ADR Employees agree that any Covered Claims will be subject to
the foregoing provisions and that both Parties will be permitted to arbitrate Covered
Claims to the fullest extent permitted by the Federal Arbitration Act (9 U.S.C. § 1 et seq.,
which shall govern this ADR Program), or The Convention on the Recognition and
Enforcement of Foreign Arbitral Awards. A Covered Claim shall be finally resolved by a
single Arbitrator selected in accordance with the aforementioned AAA Rules. The
Arbitration shall be conducted in the general geographical vicinity of the location where
an ADR Employee currently works for Southwest Airlines or most recently worked for
Southwest Airlines, unless an ADR Employee and Southwest Airlines agree in writing to
a different location.
Although the Parties will first attempt to utilize the services of the AAA to administer
the Arbitration, if the AAA refuses, the Parties will each submit a list of five names of
persons certified as arbitrators by a legitimate ADR organization, who are also licensed
to practice law. The Parties will then attempt to mutually agree on an Arbitrator from
the lists. Absent such agreement, each party shall be allowed to strike the names of four
persons on the other party’s list. The Parties shall then attempt to mutually agree on
one of the two remaining persons to serve as Arbitrator. If the Parties cannot agree, the
Arbitrator will be chosen by coin flip to be conducted by a member of the People
Department.
The Arbitrator shall not have the authority to alter or amend any lawful policy,
procedure or practice of Southwest Airlines or agreement to which Southwest Airlines
is a party, or the substantive rights or defenses of either party under any statute,
contract, constitution or common law.
The Arbitrator will have the authority – and is encouraged to – grant motions to
dismiss, motions for summary judgment, or other motions that result in final
disposition of some or all claims without a hearing. To the extent binding legal
precedent exists on an issue, the Arbitrator shall follow such authority in rendering
his/her decision on a dispositive motion. In resolving such motions, the Arbitrator shall
apply the standards that apply to such motions under the Federal Rules of Civil
Procedure.
Except as provided below, Southwest Airlines shall pay the cost of the Arbitration,
including all administrative fees and Arbitrator’s fees and expenses, unless the
Southwest Airlines Alternative Dispute Resolution Agreement – Page 5

Arbitrator determines that a claim was filed for purposes of harassment or is frivolous,
in which such case the Arbitrator may require the ADR Employee to pay some or all of
these fees and expenses. In all Arbitrations Southwest Airlines initiates, Southwest
Airlines will pay the full arbitration filing fee. In all Arbitrations the ADR Employee
initiates, the ADR Employee will pay the full amount of the arbitration filing fee or the
amount of the filing fee required in the respective state or federal court in which the
ADR Employee’s dispute could otherwise have been brought in the absence of this
Agreement, whichever is less, and his/her own attorneys’ fees, if any, and all travel and
other fees and expenses, with respect to the ADR Employee’s participation in the
Arbitration. However, the Arbitrator is empowered to award reasonable attorneys’ fees
and related expenses to the prevailing party if the prevailing party would be entitled to
those fees and expenses if the claim were resolved in a judicial proceeding, as well as all
other direct money damages to which either party would be entitled if the dispute or
claim were resolved in a judicial proceeding. The Arbitrator shall promptly issue a
written decision in support of his/her award, which must include the Arbitrator’s
findings of fact and conclusions of law in support of his/her award. The decision and
award of the Arbitrator shall be final and binding.
In the event an ADR Employee is found liable for any administrative fees, Arbitrator’s
fees and expenses, attorneys’ fees, or damages, the ADR Employee agrees that, in
addition to other legal methods available for seeking payment, Southwest Airlines may
deduct money from the ADR Employee’s paychecks or monies that Southwest Airlines
may owe the ADR Employee to recover said amounts. To the extent a separate
agreement is required to authorize such paycheck deductions, the ADR Employee
hereby agrees to execute such an agreement within ten (10) days of an Arbitration
award against him/her.
Judgment upon the award rendered by the Arbitrator may be entered in any court of
competent jurisdiction. The Federal Arbitration Act shall govern the application and
enforcement of the provisions of this ADR Program.
This ADR Program establishes deadlines for certain actions. Deadlines established by
this ADR Program are distinct from statutes of limitations. ADR Employees should
direct questions regarding this ADR Program to General Counsel. No party may
arbitrate any Covered Claim that has not been submitted to General Counsel on an ADR
Request before the expiration of applicable limitations periods and in accordance with
the provisions of this ADR Program. The Arbitrator shall have the exclusive authority to
decide any dispute raised at Arbitration between the ADR Employee and Southwest
Airlines concerning a party’s compliance with the deadlines of this ADR Program.
c. Provisional Remedies
Either the ADR Employee or Southwest Airlines may commence a cause of action in a
court of law to obtain an injunction or other court order to enforce the provisions of
this ADR Program. Despite such action, the Parties shall continue in good faith to abide
by this ADR Program.
Southwest Airlines Alternative Dispute Resolution Agreement – Page 6

d. Attempt to Bring Lawsuit Instead of Arbitration
If an ADR Employee attempts to pursue a Covered Claim in court rather than in
Arbitration, Southwest Airlines will request that the ADR Employee voluntarily dismiss
the lawsuit so the Parties may proceed in Arbitration. If the ADR Employee refuses to
voluntarily dismiss such a lawsuit upon request, and Southwest Airlines has to take
court action to enforce the terms of this ADR Program (e.g., moving to compel
arbitration), the ADR Employee will be responsible for reimbursing Southwest Airlines
for any reasonable attorneys’ fees incurred enforcing this ADR Program. Until an ADR
Employee reimburses Southwest Airlines for such attorneys’ fees, the Arbitration
process shall be stayed.
e. Employment/Waiver of Jury Trial
Nothing in this ADR Program limits in any way an ADR Employee’s right or Southwest
Airlines’ right to terminate the employment relationship.
This ADR Program waives any right that Southwest Airlines or an ADR Employee may
have to a jury trial regarding Covered Claims. Further, if any court determines for any
reason that this ADR Program is not binding or otherwise allows any litigation of any
Covered Claim, the ADR Employee and Southwest Airlines expressly waive any and all
rights to a trial by jury and agree to proceed to a bench or judge trial.
f. Termination and Modification of the ADR Program
This ADR Program may be modified or terminated by Southwest Airlines at any time by
giving ADR Employees at least 30 days’ written notice of such modification or
termination. No such modification or termination of the ADR Program shall apply to a
dispute of which Southwest Airlines had notice on the date of the modification or
termination. This ADR Program may only be modified or terminated in writing by an
authorized representative of Southwest Airlines.
g. Waiver of Class/Collective Actions
Both Southwest Airlines and the ADR Employee are prohibited from filing, joining,
opting into, consenting to, intervening in, or otherwise becoming a party to any judicial
action or Arbitration that is brought on a class, collective, representative, or aggregate
basis that in any way relates to a Covered Claim. Further, an Arbitrator shall not have
the authority to consolidate proceedings on more than one person’s or entity’s claims,
and may not otherwise authorize or preside over any form of a class, collective,
representative, or aggregate proceeding. The Arbitrator may only hear a dispute
brought by one individual party arising out of a common set of facts, and does not have
the authority to (i) fashion a proceeding as a class or collective action of any kind or (ii)
award relief to a group or class of persons or entities in one Arbitration proceeding.
There shall be no right or authority for any dispute whatsoever that in any way relates
to a Covered Claim to be brought, heard or arbitrated as a class, collective or
Southwest Airlines Alternative Dispute Resolution Agreement – Page 7

representative action, or for Southwest Airlines or an ADR Employee to participate as a
class member in any purported class, collective or representative action that in any way
relates to a Covered Claim. If any court determines for any reason that this ADR
Program is not binding or otherwise allows any litigation of any Covered Claim, the ADR
Employee and Southwest Airlines expressly waive any and all rights to participate in a
class or collective action proceeding in a court of law.
h. ADR Agreement
Employees submitting to this ADR Program agree that this ADR Program resolves all
Covered Claims against Southwest Airlines and/or any of its Directors, Officers,
Employees, Shareholders or representatives in their capacity as such. Southwest
Airlines agrees that this ADR Program resolves all Covered Claims against the ADR
Employee.
5.

Severability of Provisions in ADR Program
If any provision of this ADR Program is held invalid, illegal or unenforceable by any court of
competent jurisdiction, ADR Employees and Southwest Airlines agree that it shall be
deemed to be modified so that its purpose can lawfully be effectuated and the balance of
this ADR Program shall remain in full force and effect. ADR Employees and Southwest
Airlines further agree that the provisions of this ADR Program shall be deemed severable
and the invalidity or enforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. Notwithstanding the foregoing, Section 4(g)
of this Agreement (Waiver of Class/Collective Actions) is not severable in any case in which
any Covered Claim is brought as a class, collective, representative, or aggregate action, and
any challenge to the validity of Section 4(g) may be determined only by a court of
competent jurisdiction and not by an arbitrator.

6.

Confidentiality
All aspects of the ADR Program, including the hearing and record, if any, of the proceedings
are confidential and shall not be open to public, except under the following circumstances:
(1) to the extent both Parties otherwise agree in writing; (2) as may be required in any
subsequent proceedings between the Parties; or (3) as may otherwise be required by law
or in response to a governmental agency or legal process.
If a monetary or other settlement agreement is reached during or after the dispute
resolution method described herein, then both Parties must maintain confidentiality over
the terms of such agreement. If a party fails to maintain confidentiality over such
settlement terms, then the other party may revoke its offer, and if any proceeds have been
transferred, then the other party must refund all such proceeds to the offeror.

Southwest Airlines Alternative Dispute Resolution Agreement – Page 8

Exhibit 2

e114485,Latrice Saxon,10/15/2018 16:15:46

Exhibit 3

e114485,Latrice Saxon,08/07/2015 07:51:54

e114485,Latrice Saxon,07/26/2016 06:41:26

e114485,Latrice Saxon,08/14/2017 14:17:46

e114485,Latrice Saxon,08/14/2017 14:17:46