Myers v. Darden Restaurant Group

Filing 20

ORDER Regarding Various Motions. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Alan L. Myers,
Plaintiff,
Case No. 14-13316
v.
HONORABLE DENISE PAGE HOOD
Darden Restaurant Group,
Defendant.
_________________________________/
ORDER REGARDING VARIOUS MOTIONS
Before the Court is Plaintiff Alan Myer’s Motion requesting appointment of
counsel [Docket No. 3, filed August 26, 2014], Motion for leave to amend
complaint [Docket No. 12, filed October 7, 2014], and Motion for Summary
Judgment [Docket No. 13, filed October 7, 2014]. Also before the Court is
Defendant Darden Restaurant Group’s Motion to Compel Arbitration and Dismiss
Plaintiff's Complaint [Docket No. 8, filed October 2, 2014].
I. BACKGROUND
Plaintiff alleges in his complaint as follows: While Plaintiff was employed by
the Olive Garden as a chef, he was verbally harassed by four employees. The
employees were Kyle, Richard, Terry, and Drew. Plaintiff identifies as a bisexual
black male. On January 10, 2014, when Plaintiff removed his coat from a rack in
the employee coatroom, he found a pair of women’s underpants on the hook
beneath where his coat was placed.

Plaintiff filed a grievance with General Manager Seth Petty after being sexually
harassed three times. On January 14, 2014, Manager Fredrica Stephen contacted
Plaintiff to notify him that he would be permitted to take “stress leave” with pay.
Petty investigated the women’s underpants incident for two weeks and determined
that the women’s underpants were placed by another employee, but could not
determine which employee. Petty gave Plaintiff the option to return to work or to
remain on “stress leave” without pay until Plaintiff could find another Olive
Garden to transfer to.
Plaintiff did not feel safe working at the same branch. Plaintiff filed a police
report and a grievance with the Olive Garden’s Corporate Office. The Corporate
Office suggested the same as Petty- Plaintiff could return to work or stay on leave
without pay. When Plaintiff filed a complaint with the Equal Employment
Opportunity Commission, his pay stopped and he was told he would be transferred
to the Livonia branch, but the transfer is still pending.
Plaintiff claims Defendant violated of Title VII of the Civil Rights Act of 1964
by failing to address sexual harassment and race discrimination, creating a hostile
work environment, and retaliating.
II. ANALYSIS
a. Plaintiff’s Motion Requesting Appointment of Counsel

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This matter comes before the Court on Plaintiff’s Request for Appointment of
Counsel, filed August 26, 2014 [Docket No. 3]. 28 U.S.C. § 1915 governs in
forma pauperis proceedings. “[A]ppointment of counsel in a civil case is . . . a
matter within the discretion of the court. It is a privilege and not a right.” Childs v.
Pelligrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (quoting United States v. Madden,
352 F.2d 792, 793 (9th Cir. 1965)). Plaintiff has demonstrated an ability to
communicate with the Court. Therefore, the Court will not appoint counsel at this
stage of the proceedings.
b. Defendant’s Motion to Compel Arbitration and Dismiss Plaintiff's
Complaint
Defendants filed a Motion to Compel Arbitration and Dismiss Plaintiff's
Complaint on October 2, 2014 [Docket No. 8]. The Motion was referred to
Magistrate Judge R. Steven Whalen. Magistrate Judge Whalen ordered the
Plaintiff to respond to the Motion by October 30, 2014. Since then, Plaintiff has
failed to respond and this Court rescinded the Order of Reference to Magistrate
Judge Whalen on October 9, 2014 [Docket No. 15].
Plaintiff argues in the Motion for Summary Judgment that Defendant’s failure
to participate in the EEOC mediation process and Defendant’s silence on the
constitutional violations is an admission of guilt. Defendant is not required to
participate in mediation. The Defendant has not admitted guilt by remaining silent

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on the violations. Instead, Defendant properly filed a Motion to Compel
Arbitration and Dismiss Plaintiff’s Complaint on October 2, 2014, in lieu of an
Answer, which filing was within the allotted time. Fed. R. Civ. P. 12(a)(1)(A)(i).
After filing a Motion to Dismiss, Defendant is not required to file an answer until
14 days after notice of the court’s action. Fed. R. Civ. P. 12(a)(4)(A). In the
answer, Defendant may admit or deny the allegations brought against it Plaintiff.
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 2 states:
A written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract . . ., or
the refusal to perform the whole or any part thereof, or an
agreement in writing to submit to arbitration an existing
controversy arising out of such a contract, transaction, or
refusal, 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. Section 1 of the FAA provides the sole exception to the
enforceability of arbitration agreements, stating that Section 2 “shall [not] apply to
contracts of employment of seamen, railroad employees, or any other class of
workers engaged in foreign or interstate commerce.” See 9 U.S.C. § 1; See, Circuit
City Stores, Inc. v. Adams, 532 U.S. 105 (2001) and Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20 (1991). The Sixth Circuit has reiterated the strong
presumption in favor of arbitration on more than one occasion. See, e.g., Stout v.
J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2001) (stating that the FAA promotes a

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“strong federal policy in favor of arbitration” and “was designed to override
judicial reluctance to enforce arbitration agreements, to relieve court congestion,
and to provide parties with speedier and less costly alternative litigation”); Willis v.
Dean Witter Reynolds Inc., 948 F.2d 305, 311 (6th Cir. 1991) (“Congress passed
the FAA to ensure that courts honor the contractual agreement of parties who
choose to resolve their disputes by arbitration.”). “Courts are to examine the
language of the [Arbitration Agreement] in light of the strong federal policy in
favor of arbitration.” Stout, 228 F.3d at 714. “[A]ny ambiguities in the
[Arbitration Agreement] or doubts as to the parties’ intentions should be resolved
in favor of arbitration.” Id.
Defendant’s Dispute Resolution Process (hereinafter “DRP”) is the means
through which an employee may seek redress for an employment related claim.
The DRP handbook states in pertinent part:
The DRP, instead of court actions, is the sole means for
resolving covered employment related disputes. Disputes
eligible for DRP must be resolved only through DRP,
with the final step being binding arbitration heard by an
arbitrator. This means DRP-eligible disputes will not be
resolved by a judge or jury. Neither the Company nor the
Employee may bring DRP eligible disputes to court. The
Company and the Employee waive all rights to bring a
civil court action for these disputes…
Examples of legal claims covered by DRP include but are
not limited to: claims that arise under the Civil Rights
Act of 1964, Americans With Disabilities Act, Fair Labor

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Standards Act, Age Discrimination in Employment Act,
and Family Medical Leave Act.
Def.’s Mot. to Compel Arbitration and Dismiss Pl.’s Comp., Exhibit A-1, Dispute
Resolution Process handbook. The only exceptions to the arbitration requirement
are disputes “that do not state a legal claim,” that cannot be subjected to mandatory
arbitration under federal law, or “are legally required under controlling federal law
to be arbitrated or resolved under a different process.” Id.
On November 18, 2013, Plaintiff signed the DRP acknowledgment form
agreeing to submit any eligible disputes to the DRP. Id. at Exhibit A-2. In the
Sixth Circuit, to compel arbitration, “first, [the district court] must determine
whether the parties agreed to arbitrate; second, it must determine the scope of that
agreement; third, if federal statutory claims are asserted, it must consider whether
Congress intended those claims to be nonarbitrable; and fourth, if the court
concludes that some, but not all, of the claims in the action are subject
to arbitration, it must determine whether to stay the remainder of the proceedings
pending arbitration.” Fazio v. Lehman Bros., Inc., 340 F.3d 386, 392 (6th
Cir.2003) (citation omitted).
Under Michigan law, the elements of a valid contract are (1) parties
competent to enter into a contract, (2) a proper subject matter; (3) legal
consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Thomas
v. Leja, 187 Mich.App. 418, 422, 468 N.W.2d 58, 60 (1991). The parties entered
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into a contract and the arbitration of employment matters for a restaurant employee
is proper subject matter. The legal consideration was the exchange of wages for
Plaintiff’s work. The parties mutually agreed by signing and are mutually
obligated to arbitrate claims such as the one before us.
The scope of the agreement is to arbitrate all claims that are permitted to be
arbitrated under federal law. There is nothing to indicate that Congress intended
employment disputes brought under Title VII of the Civil Rights Act of 1964 to be
nonarbitrable. The Title VII claims are the only claims brought by Plaintiff and
therefore, the Court compels arbitration.
Since the parties are compelled to arbitration, Plaintiff’s Motion for Leave to
Amend Complaint [Docket No. 12, filed October 7, 2014] and Motion for
Summary Judgment [Docket No. 13, filed October 7, 2014] are MOOT.
III.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant Darden Restaurant Group’s Motion to

Compel Arbitration [Docket No. 8, filed October 2, 2014] is GRANTED, and
Defendant’s Motion to Dismiss [Docket No. 8, filed October 2, 2014] is
DENIED.

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IT IS FURTHER ORDERED that this action is STAYED until the
conclusion of any arbitration proceedings and this action is CLOSED on the
Court’s docket for statistical purposes.
IT IS FURTHER ORDERED that the Court shall retain jurisdiction in
accordance with the Federal Arbitration Act, 9 U.S.C. §§ 1-16, for the purpose of
confirming, vacating or correcting any arbitration award. Any party may move to
do so at the conclusion of arbitration proceedings.
IT IS FURTHER ORDER Plaintiff’s Motion for Leave to Amend
Complaint [Docket No. 12, filed October 7, 2014] is deemed MOOT.
IT IS FURTHER ORDER Plaintiff’s Motion for Summary Judgment
[Docket No. 13, filed October 7, 2014] is deemed MOOT.
IT IS FURTHER ORDERED Plaintiff’s Motion requesting appointment of
counsel [Docket No. 3, filed August 26, 2014] is DENIED without prejudice.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: February 13, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of
record on February 13, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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