Abdul-Hasib v. Aerotek, Inc.

Filing 27

MEMORANDUM AND ORDER re: Arbitration. Signed by Judge Marvin J. Garbis on 11/29/2017. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LINA ABDUL-HASIB, et al.
Plaintiffs
vs.

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Defendant

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* CIVIL ACTION NO. MJG-17-1502

AEROTEK, INC.

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MEMORANDUM & ORDER RE: ARBITRATION
The Court has before it Defendant Aerotek, Inc.’s Motion to
Dismiss the Claims of Plaintiffs Abdul-Hasib, Smith, and
McGunigal [ECF No. 8] and the materials relating thereto.

The

Court has reviewed the materials provided by the parties and
finds that a hearing is not needed.

I.

BACKGROUND
Plaintiff, Lina Abdul-Hasib (“Abdul-Hasib”) filed a

putative collective action against Defendant Aerotek, Inc.
(“Aerotek”) asserting an unpaid wages claim under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.

Aliyah Smith

(“Smith”) and Beverly McGunigal (“McGunigal”) joined the
putative collective action as party plaintiffs.

Aerotek is a

staffing company and has employed both Abdul-Hasib and Smith for

temporary assignments.

There are no records, however,

indicating that McGunigal has ever been employed by Aerotek.
As a part of their employment with Aerotek, Abdul-Hasib and
Smith each entered into a Mutual Arbitration Agreement (“the
Agreement”). See Def.’s Mot. Exs. 2, 3, ECF Nos. 9-2, 9-3.
Agreement states, in pertinent part:
Except (i) as expressly set forth in
the section, “Claims Not Covered by this
Agreement,”
all
disputes,
claims,
complaints, or controversies (“Claims”) that
I may have against Aerotek, Inc and/or any
of its subsidiaries, affiliates, officers,
directors, employees, agents, and/or any of
its clients or customers (collectively and
individually the “Company”), or that the
Company may have against me, including
contract claims; tort claims; discrimination
and/or
harassment
claims;
retaliation
claims; claims for wages, compensation,
penalties or restitution; and any other
claim under any federal, state, or local
statute,
constitution,
regulation,
rule,
ordinance, or common law, arising out of
and/or directly or indirectly related to my
application for employment with the Company,
and/or my employment with the Company,
and/or the terms and conditions of my
employment
with
the
Company,
and/or
termination
of
my
employment
with
the
Company (collectively “Covered Claims”), are
subject to confidential arbitration pursuant
to the terms of this Agreement and will be
resolved by Arbitration and NOT by a court
or jury. The parties hereby forever waive
and give up the right to have a judge or a
jury decide any Covered Claims.
Id. at 1 (emphasis added).

It further states:

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The

No Covered Claims may be initiated or
maintained on a class action, collective
action,
or
representative
action
basis
either in court or arbitration [“the Class
Action Waiver”];
A court of competent jurisdiction, not
an
arbitrator,
must
resolve
issues
concerning the enforceability or validity of
the class action, collective action, or
representative
action
waiver
set
forth
above;
If, for any reason, the class action,
collective action, or representative action
waiver is held unenforceable or invalid in
whole or in part, then a court of competent
jurisdiction, not an arbitrator, will decide
the type of claim as to which the waiver was
held unenforceable or invalid;
All claims must be brought in a party’s
individual capacity and unless the parties
expressly agree in writing, Covered Claims
may not be joined or consolidated in court
or
arbitration
with
other
individuals’
claims, and no damages or penalties may be
sought or recovered on behalf of other
individuals;
. . . .
Claims Not Covered by this Agreement
Workers’
compensation
benefits,
unemployment compensation benefits, claims
for benefits under a plan that is governed
by the Employee Retirement Income Security
Act of 1974 (“ERISA”), and claims which are
subject to the exclusive jurisdiction of the
NLRB; and
Any claim that is expressly precluded
from arbitration by a governing federal law
or by a state law that is not preempted by
the Federal Arbitration Act (“FAA”) or other
federal law.

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Id.

The Agreements were signed electronically; Abdul-Hasib
signed on February 18, 2017, and Smith signed on November 12,
2015.

Id.
By its Motion to Dismiss, Aerotek seeks dismissal of Abdul-

Hasib and Smith’s claims without prejudice to their ability to
pursue the claims in arbitration.

For reasons stated herein,

the Court shall grant Aerotek’s dismissal motion.
Aerotek also seeks dismissal of McGunigal’s claims because
she cannot establish the requisite employer-employee
relationship.1

McGunigal has subsequently withdrawn her consent

to join this litigation. Notice, ECF No. 17; Opp’n 1 n.1, ECF
No. 18.

II.

Therefore, McGunigal’s claim shall be dismissed.

LEGAL SETTING
The Federal Arbitration Act (“FAA”) reflects a strong

federal policy favoring arbitration, and courts are thus

1

McGunigal does not allege to have worked for Aerotek, and
according to her LinkedIn page, she is employed by a company
called Connexions as a CVS Caremark Customer Care
Representative. Abdul-Hasib and Smith both worked assignments
for Aerotek at its client, CVS, but the claims in the instant
lawsuit are against Aerotek, not CVS. Therefore, McGunigal
fails to state a claim against Aerotek, because “FLSA conditions
liability on the existence of an employer-employee relationship,
and the employee bears the burden of alleging and proving the
existence of that relationship.” Kerr v. Marshall Univ. Bd. of
Governors, 824 F.3d 62, 83 (4th Cir. 2016).

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required “rigorously [to] enforce agreements to arbitrate.”
Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220, 226
(1987).

However, this liberal policy does not operate to compel

arbitration of issues that do not fall within the scope of the
parties’ arbitration agreement.
Before compelling an unwilling party to arbitration, a
court must “engage in a limited review to ensure that the
dispute is arbitrable - i.e., that a valid agreement to
arbitrate exists between the parties and that the specific
dispute falls within the substantive scope of that agreement.”
Murray v. United Food and Commercial Workers Int’l Union, 289
F.3d 297, 302 (4th Cir. 2002).

A court must compel arbitration

if “(i) the parties have entered into a valid agreement to
arbitrate, and (ii) the dispute in question falls within the
scope of the arbitration agreement.” Chorley Enters., Inc. v.
Dickey’s Barbecue Rests., Inc., 807 F.3d 553, 563 (4th Cir.
2015), cert. denied, 136 S. Ct. 1656 (2016).
The party seeking to arbitrate must establish only two
facts: “(1) [t]he making of the agreement and (2) the breach of
the agreement to arbitrate.”

Mercury Constr. Corp. v. Moses H.

Cone Mem’l Hosp., 656 F.2d 933, 939 (4th Cir. 1981).

The Court

must particularly “avoid reaching the merits of arbitrable
issues.” Id. (citing Drivers, Chauffeurs, etc. v. Akers Motor
Lines, 582 F.2d 1336, 1342 (4th Cir. 1978)).

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III. DISCUSSION
Abdul-Hasib and Smith do not dispute that they signed the
Agreement, nor do they dispute that their claims are within the
scope of the Agreement’s covered claims.

By filing the instant

lawsuit, Abdul-Hasib and Smith have breached the Agreement.
However, Abdul-Hasib and Smith assert that the Class Action
Waiver contained within the Agreement is not enforceable, and
therefore, the Court must deny Aerotek’s dismissal motion or
alternatively, the Court should wait for the United States
Supreme Court’s decision on the validity of class action waivers
in employment contracts.2
Under current Fourth Circuit precedent, class action
waivers have been held permissible.

See Hayes v. Delbert Servs.

Corp., 811 F.3d 666, 674 (4th Cir. 2016); see also Muriithi v.
Shuttle Exp., Inc., 712 F.3d 173, 180–81 (4th Cir. 2013)
(holding that the class action waiver was not unconscionable in
the context of a Maryland Franchise Law claim); Adkins v. Labor
Ready, Inc., 303 F.3d 496, 506 (4th Cir. 2002) (holding that
FLSA claims may be resolved in individual arbitration).
2

As

The Supreme Court granted certiorari on January 12, 2017,
in three consolidated FLSA cases to resolve a split in the
appeals courts on whether a class-action waiver is invalid or
unenforceable because it waives employees’ substantive rights
under the National Labor Relations Act. See National Labor
Relations Board v. Murphy Oil USA, Inc., 137 S. Ct. 809 (2017);
Epic Sys. Corp. v. Lewis, 137 S. Ct. 809 (2017); Ernst & Young,
LLP v. Morris, 137 S. Ct. 809 (2017). Oral argument was held on
October 2, 2017.

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Plaintiffs have noted, the two district courts in the Fourth
Circuit to have specifically addressed class action waivers in
the context of the FLSA and the National Labor Relations Act
(“NLRA”) have found such waivers valid and enforceable.3

See

Pls.’ Opp’n 4 n.4, ECF No. 18 (citing CarMax Auto Superstores,
Inc. v. Sibley, 215 F. Supp. 3d 430, 435-36 (D. Md. 2016)(Titus,
J.); Green v. Zachry Indus., Inc., 36 F. Supp. 3d 669, 674-75
(W.D. Va. 2014) (Conrad, J.)).
Importantly, even if this Court were to find that the Class
Action Waiver was not enforceable, this would not affect the
enforceability of the arbitration provision of the Agreement,
which is severable and remains intact.

See Agreement 2, Def.’s

Mot. Exs. 2, 3, ECF Nos. 9-2, 9-3 (“If any court of competent
jurisdiction finds any part or provision of this Agreement void,
voidable, or otherwise unenforceable, such a finding will not
affect the validity of the remainder of the Agreement, and all
other parts and provisions remain in full force and effect.”).4
Further, while not dispositive, the Court also notes that a
putative class or collective action representative’s claim is
3

The Fourth Circuit has not spoken decisively on the
specific issue of whether class action waivers violate the NLRA,
placing AT&T Mobility Servs., LLC v. National Labor Relations
Board (Nos. 16-1099, 16-1159) in abeyance pending the Supreme
Court’s decision.
4
Presumably, if the Supreme Court holds that class-action
waivers are not enforceable in this context, Plaintiffs could
choose to arbitrate their claims collectively rather than
individually.

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brought individually to the extent that the Court has not yet
made the findings necessary to conditionally certify a
collective action under FLSA, 29 U.S.C. § 216(b), or a class
action under the Federal Rules of Civil Procedure, Fed. R. Civ.
P. 23.

As such, the individual claim is arbitrable under the

Agreement.
Accordingly, the Court concludes that Abdul-Hasib and
Smith’s claims are subject to a valid and enforceable
arbitration agreement.

IV.

CONCLUSION
For the foregoing reasons:
1.

Defendant Aerotek, Inc.’s Motion to Dismiss the
Claims of Plaintiffs Abdul-Hasib, Smith, and
McGunigal [ECF No. 8] is GRANTED.
a.
b.

2.

Plaintiffs Abdul-Hasib and Smith’s claims
are dismissed without prejudice.
Plaintiff McGunigal’s claim is dismissed for
failure to state a claim.

Judgment shall be entered by separate Order.

SO ORDERED, on Wednesday, November 29, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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