Zeringue v. Monster Energy Company

Filing 22

ORDER AND REASONS regarding 3 Motion to Compel Arbitration. For the foregoing reasons, the Court GRANTS defendant's motion to compel arbitration. Plaintiff's complaint is DISMISSED. Signed by Judge Sarah S. Vance on 11/6/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PAGE ZERINGUE

CIVIL ACTION

VERSUS

NO. 17-6023

MONSTER ENERGY COMPANY

SECTION “R” (2)

ORDER AND REASONS
Before the Court is defendant’s motion to compel arbitration and to
dismiss, or in the alternative, to stay litigation pending arbitration. 1 For the
following reasons, the Court grants the motion to compel arbitration and to
dismiss.

I.

BACKGROUND
This case arises out of a claim of sexual harassment in violation of

Title VII of the Civil Rights Act. 2 Plaintiff Page Zeringue was employed by
Defendant Monster Energy Company between February 2008 and October
2015.3 On February 20, 2008, and again on September 11, 2014, plaintiff

1
2
3

R. Doc. 3.
R. Doc. 1.
Id. at 2-9.

signed an employment contract that included an agreement to subject any
controversy or claim arising out of her employment to binding arbitration. 4
Plaintiff alleges that, beginning in July 2014, her supervisor, John
Kenneally, began making unwelcome sexual advances toward her.5 Plaintiff
further alleges that another Monster Energy manager, Ted Cook, made
comments about her breasts and grabbed her inappropriately.6 Plaintiff
alleges that she experienced retaliation after rejecting Kenneally’s sexual
advances and filing a sexual harassment complaint against Cook, and she
was eventually terminated on October 16, 2015. 7
On June 22, 2017, plaintiff filed a complaint for damages alleging
violations of Title VII because of a sexually hostile work environment and
unlawful retaliation. 8 Defendant now moves to compel arbitration, and to
dismiss, or alternatively stay, these proceedings.9
II.

DISCUSSION
The Federal Arbitration Act expresses a liberal federal policy favoring

arbitration. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 346 (2011).

4
5
6
7
8
9

R. Doc. 3-2; R. Doc. 18-1.
R. Doc. 1 at 3
Id. at 5 ¶ 14.
Id. at 8-9.
Id. at 10-11.
R. Doc. 3.
2

As a result, “any doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration.” Moses H. Cone Memorial Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24-25 (1983). To determine whether to compel
parties to arbitrate, the Court conducts a two-step inquiry. The Court first
determines whether the parties agreed to arbitrate the dispute, namely
whether there is a valid agreement to arbitrate and whether the dispute in
question falls within the scope of that agreement. See JP Morgan Chase &
Co. v. Conegie ex rel. Lee, 492 F.3d 596, 598 (5th Cir. 2007). The Court next
considers “whether any federal statute or policy renders the claims nonarbitrable.” Id. (citations omitted).
The Court finds that the parties entered into a valid arbitration
agreement, and that plaintiff’s Title VII claims fall within the scope of that
agreement.

On September 11, 2014, plaintiff signed an employment

agreement that states, in relevant part, that “[a]ny controversy or claim
arising out of or relating to Employee’s employment or other relationship
with Company or any agents of Company shall be settled by binding
arbitration.”10 This provision is unambiguous, and plaintiff’s argument that
the arbitration provision does not expressly include claims of sexual
harassment or retaliatory termination is without merit.

10

R. Doc. 3-2 at 3.
3

Moreover, the

agreement specifically refers to “claims relating to or arising out of any state
or federal statute or public policy (‘public policy claims’).”11 Under the
agreement, “the substantive and remedial provisions of the statute[s]
applicable to the public policy claims shall be available to any party required
to arbitrate if those provisions would be otherwise available in court,” and a
party required to arbitrate a public policy claim “shall be entitled to the full
range of discovery provided under applicable law.”12

The arbitration

agreement is clearly intended to apply to statutory claims, including
plaintiff’s Title VII claims.
Plaintiff further contends that this arbitration agreement should not
apply to events that occurred before the agreement was signed in September
2014. 13 But the language of the arbitration clause includes no temporal
limitation. See Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 206-07
(5th Cir. 2012) (noting that silence about the retroactive effect of a change in
arbitration policy is interpreted to allow retroactive application); Lakeland
Anesthesia, Inc. v. United Healthcare of La., Inc., 871 So. 2d 380, 392 (La.
App. 4 Cir. 2004). Additionally, defendant has produced an arbitration

11
12
13

Id.
Id. at 3-4.
R. Doc. 10 at 5.
4

agreement signed and initialed by plaintiff on February 20, 2008, which
specifically provides for the arbitration of Title VII claims. 14
Plaintiff also asserts that the arbitration agreement is in conflict with
defendant’s other policies on harassment, which do not reference
arbitration.15 But plaintiff does not show that these general company policies
displace or supersede her individual agreement to arbitrate.16 Plaintiff also
points out that her most recent written employment agreement, a December
2014 letter regarding a promotion, does not include any reference to
arbitration.17 But there is no indication that this letter altered any conditions
of plaintiff’s employment beyond her job description. By contrast, the
September 2014 agreement containing the arbitration clause specifically
provides that “[t]his agreement will supersede your previous terms of
employment with Monster Energy Company . . . and will govern your
employment from the date of this change.”18

R. Doc. 18-1 at 4-5.
R. Doc. 10 at 6-7.
16
Plaintiff points to company policies that permit employees to file a
complaint with the EEOC and DFEH. See R. Doc. 10 at 6-7. But the
arbitration clause specifically provides that the agreement does not prevent
employees “from initially submitting a dispute to the applicable state
agency, the EEOC, or the National Labor Relations Board.” See R. Doc. 3-2
at 3.
17
R. Doc. 10 at 4; R. Doc. 10-6.
18
R. Doc. 3-2 at 1.
5
14
15

Plaintiff’s arguments that the arbitration agreement is invalid because
she did not previously discuss the arbitration provision with her supervisor
and did not intend to agree to anything except a promotion are meritless. 19
Plaintiff does not dispute that she signed the September 2014 agreement.
Regardless of her oral discussions regarding her employment conditions,
plaintiff had an obligation to read the written agreement before signing it.
See Coleman v. Jim Walter Homes, Inc., 6 So. 3d 179, 183 (La. 2009)
(holding that written arbitration agreement was enforceable even though
prior oral negotiations did not mention arbitration).
Further, the Court finds that the arbitration provision is not an
unenforceable contract of adhesion. The Louisiana Supreme Court has
explained that “the real issue in a contract of adhesion analysis is not the
standard form of the contract, but rather whether a party truly consented to
all the printed terms.” Aguillard v. Auction Mgmt. Co., 908 So. 2d 1, 10
(2005). Here, the arbitration provision appears under its own subheading,
covers several paragraphs, and states in bold text that “[y]ou agree to waive
the right to a jury and instead submit disputes arising out of or related to this
agreement or your employment to neutral, binding arbitration.” 20 Like the

19
20

R. Doc. 6-7.
R. Doc. 3-2 at 3-4.
6

arbitration agreement upheld by the Louisiana Supreme Court in Aguillard,
the arbitration provision in plaintiff’s contract appears in the same print size
as the other contract terms, is clearly visible, and applies to both parties. See
908 So. 2d at 16-17; cf. Duhon v. Activelaf, LLC, -- So. 2d. --, 2016 WL
6123820, at *5 (La. 2016) (finding arbitration clause unenforceable when
arbitration language was concealed within a long paragraph and lacked
mutuality).
Plaintiff does not point to any federal statute or policy that renders her
claims non-arbitrable. On the contrary, her arguments are inconsistent with
the federal policy favoring arbitration and the Supreme Court’s decision in
Concepcion. See 563 U.S. at 346-47 (holding that federal policy favoring
arbitration preempted a state rule regarding unconscionability of contracts
of adhesion). Plaintiff’s unsupported assertion that she did not agree to the
arbitration provision is insufficient to defeat the motion to compel
arbitration.
Because all of plaintiff’s claims are subject to arbitration, the Court
finds it appropriate to dismiss the complaint. See Alford v. Dean Witter
Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992); see also Fedmet Corp. v.
M/V BUYALYK, 194 F.3d 674, 678-79 (5th Cir. 1999).

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III. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to
compel arbitration. Plaintiff’s complaint is DISMISSED.

6th
New Orleans, Louisiana, this _____ day of November, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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