McMillian v. Olive Garden Holdings, LLC
MEMORANDUM OPINION AND ORDER: The Defendant's 8 Motion to Dismiss and compel arbitration is DENIED. Signed by Judge Danny C. Reeves on 5/22/2018. (KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
OLIVE GARDEN HOLDINGS, LLC,
doing business as Olive Garden
Civil Action No. 5: 18-189-DCR
This matter is pending for consideration of the defendant’s motion to dismiss and
compel arbitration. [Record No. 8] The Court will deny the motion for the reasons that follow.
Plaintiff Breyanna McMillian (hereafter, “the Plaintiff” or “McMillian”) submitted an
electronic application on November 5, 2016, seeking employment by Defendant Olive Garden
Holdings, LLC (hereafter, “the Defendant” or “Olive Garden”). The application included the
I understand that the Darden Companies, including Olive Garden . . ., have in
place a Dispute Resolution Process (DRP), and I further acknowledge and agree
that if I am offered and accept employment, any dispute between me and any of
the Darden Companies relating to my employment and/or my separation from
employment, shall be submitted within one (1) year of the day which I learned
of the event and shall be resolved pursuant to the terms and conditions of the
[Record No. 8-2, p. 4] The Plaintiff “accepted” the DRP provision and signed the application
electronically. Id. at pp. 4-5. McMillian alleges that, after she submitted the application, Josh
Barcomb interviewed her and the Plaintiff was told that she had received the job. [Record
Nos. 1-1, p. 3; 9-1, p. 1] Barcomb instructed McMillian to attend new employee training the
following day. Id.
McMillian attended a group training session at an Olive Garden restaurant in
Lexington, Kentucky in early November 2016. The Plaintiff alleges that approximately two
hours into the training session, manager Sean Nealy told her that he would not have hired her
because she was “too dark.” Id. According to McMillian, Nealy handed her a twenty dollar
bill and told her to “go back to Burger King,” because that is where she deserved to work. Id.
McMillian filed suit against the Defendant in Fayette Circuit Court, alleging claims of
discrimination under the Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.010, et seq. The
Defendant removed the case to federal court based on diversity jurisdiction in March 2018 and
moved to dismiss and compel arbitration. [Record No. 8]
The Defendant contends that McMillian never received a job offer and that she
presented to the employee training session despite not having been hired. [Record No. 8-1, p.
1] In support of that assertion, it has tendered only an undated “non-selection email,” which
states simply “Thank you, Breyanna . . . we regret that we are unable to offer you employment
with Olive Garden USA at this time.” [Record No. 8-3] In deciding a motion to dismiss, the
Court takes all well-pleaded allegations in the Complaint as true and construes those
allegations in a light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Further, the Court
generally may not consider matters outside the pleadings, such as the non-selection email. See
Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007).
McMillian alleges that the Defendant hired her and the Court must construe this allegation as
true in the absence of admissible evidence to the contrary.
Olive Garden argues that, if McMillian is permitted to proceed with her discrimination
claims, she must “abide by the arbitration requirement every employee also has agreed to be
bound.” [Record No. 8-1, p. 2] However, McMillian contends that she never agreed to
arbitrate her claims. [Record No. 9] The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16,
“embodies [a] national policy favoring arbitration and places arbitration agreements on equal
footing with all other contracts.” Richmond Health Facilities v. Nichols, 811 F.3d 192, 195
(6th Cir. 2016). The Act provides that written agreements to arbitrate disputes arising out of
contracts or transactions 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.
While federal law favors arbitration, see Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, 473 U.S. 614, 626 (1985), the “FAA was not enacted to force parties to arbitrate in
the absence of an agreement.” Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 314
(6th Cir. 2000) (quoting Avedon Engineering, Inc. v. Seatex, 126 F.3d 1279, 1286 (10th Cir.
1997)). Accordingly, the Court must determine whether McMillian and the Defendant entered
into a valid agreement to arbitrate. See 9 U.S.C. § 2; Javitch v. First Union Sec., Inc., 315 F.3d
619, 624 (6th Cir. 2003) (citing AT&T Techs. v. Comm’s Workers of Am., 475 U.S. 643, 649
In determining whether a valid agreement to arbitrate exists, the Court applies state
contract law. Fazio v. Lehman Bros. Inc., 340 F.3d 386, 392-93 (6th Cir. 2003). In the case
of factual disputes, the Court treats the facts as it would in ruling on a motion for summary
judgment. Kovac v. Superior Dairy, Inc., 930 F.Supp.2d 857, 864 (N.D. Ohio 2013). Should
factual disputes arise, the party opposing arbitration bears the burden of demonstrating a
genuine issue of material fact regarding the validity of the agreement to arbitrate. Great Earth
Cos. v. Simons, 288 F.3d 878, 889 (6th Cir. 2002).
Darden, Olive Garden’s parent company, maintains a dispute resolution program that
has been in place since at least 2005. [Record No. 8-2, p. 2] Each employee is provided with
a DRP book as part of the orientation process and is asked to sign an acknowledgment form
contained therein. Id. at p. 3. The DRP book is approximately twenty pages in length and
explains the DRP process in detail. Id. at pp. 6-23. The DRP includes four steps, including
arbitration, which is the fourth and final step. See id. at p. 9. It is undisputed that McMillian
did not review the DRP book or sign the acknowledgment form.1 [See Record Nos. 8-2, p. 3;
9-1, p. 2.]
McMillian did review and sign the employment application, however, which included
a written DRP provision. 2 The Court must consider whether this provision constitutes a valid
The Defendant has provided the affidavit of Melissa Ingalsbe, Director of Dispute Resolution
and Human Resource Compliance for Darden and its subsidiaries. [Record No. 8-2] Ingalsbe
reports that the Defendant has no signed DRP acknowledgement form for McMillian because
she was never an employee. McMillian submitted an affidavit stating that the Defendant did
not present her with the DRP and she only learned of it through her attorney. [Record No. 91] The Defendant half-heartedly suggests that McMillian had knowledge of the DRP based
on informational postings located in the restaurant, but this argument is based on the affidavit
of Jefe Gabat, which is not filed in the record of this proceeding. [See Record No. 10, p. 4.]
The Federal Arbitration Act requires arbitration agreements to be in writing and applies only
to transactions in interstate commerce. See 9 U.S.C. § 2. The Court is satisfied that both of
these conditions have been met. [See Record No. 8-2, p. 1.]
agreement to arbitrate under ordinary contract law principles. See Gatliff v. Firestone Indus.
Prods. Co., LLC, No. 2013-CA-1568, 2015 WL 510680 (Ky. Ct. App. Feb. 6, 2015).
Definite and certain terms are required elements of any contract. Fisher v. Long, 172
S.W.2d 545, 547 (Ky. 1943); Dohrman v. Sullivan, 220 S.W.2d 973, 975 (Ky. 1949) (“[A]
mere agreement to reach an agreement” at some point in the future is insufficient to create a
binding contract.”). To be sure, an agreement to arbitrate need not spell out the exact terms of
arbitration to be enforceable. See Indus. Servs. of Am., Inc. v. Abcom Trading Pte. Ltd., 869
F.Supp.2d 807, 810-11 (W.D. Ky. 2012). However, McMillian’s employment application did
not provide any terms of the DRP. The DRP clause gives no indication of what the process
might be and does not even include the word “arbitrate.” Olive Garden suggests that the full
DRP booklet should be incorporated into the employment application, but this would be
inappropriate given that McMillian did not have an opportunity to review it prior to submitting
the application. See Emery Worldwide v. AAF-McQuay, Inc., No. 2003-CA-1446-MR, 2005
WL 2402544, at *4 (Ky. Ct. App. Sept. 30, 2005); Evans v. Bayles, 787 S.E.2d 540, 545-46
Olive Garden relies on Gatliff, 2015 WL 510680, and Waller v. Daimler Chrysler
Corp., 391 F.Supp.2d 594 (E.D. Mich. 2005), to advance its argument that McMillian is bound
to Darden’s DRP based on her submission of an employment application. However, the
applications involved in Gatliff and Waller explicitly advised employees that certain claims
would be resolved through arbitration and/or verified that the employee had had an opportunity
to review the dispute resolution plan. 2015 WL 510680, *1-2; 391 F.Supp.2d at 596. Notably,
in Reed v. Darden Restaurants, Inc., 213 F.Supp.3d 813, 817-18 (S.D. W. Va. 2016), which
involved the same DRP as the case at bar, the plaintiff (who worked in the restaurant for eight
months) did not deny that that he had received the DRP booklet and signed the DRP
acknowledgment. Olive Garden has failed to identify any authority in which an employee has
been compelled to arbitrate based solely on the employee’s acceptance of a generic DPR clause
contained in an employment application.
Finally, Olive Garden relies on Deloitte Noraudit A/S v. Deloitte Haskins & Sells, U.S.,
9 F.3d 1060, 1064 (2d Cir. 1993), to argue that McMillian is estopped from denying her
obligation to arbitrate. However, in Deloitte, Noraudit (the party seeking to avoid arbitration)
had received a copy of the arbitration agreement, did not object to it, and knowingly continued
to benefit from using the name “Deloitte” after having reviewed the agreement. Id. The
present case differs significantly because McMillian did not receive a copy of the DRP and
worked for the Defendant for two hours, at most. There is no evidence to suggest that she
learned of the arbitration agreement during those two hours and “knowingly accepted the
benefits” after that time.
Based on the foregoing, the Defendant’s motion to dismiss and compel arbitration
[Record No. 8] is DENIED.
This 22nd day of May, 2018.
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