Herbert v. Dollar Tree Inc

Filing 10

MEMORANDUM OPINION and ORDER Granting Defendant's 3 MOTION to Dismiss and Compel Arbitration - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Bertram Herbert,
Plaintiff,
v.

Case No. 16-cv-14043
Judith E. Levy
United States District Judge

Dollar Tree Inc.,
Defendant.

Mag. Judge Stephanie Dawkins
Davis

________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS AND COMPEL ARBITRATION [3]
This is an employment case in which plaintiff Bertram Herbert
brings claims under both Title VII and Michigan’s Elliott-Larsen Civil
Rights

Act,

alleging

unlawful

discrimination,

harassment,

and

retaliation. Defendant Dollar Tree, Inc. argues that the complaint was
inappropriately filed with this Court, because the parties agreed to
arbitrate claims of this nature. Plaintiff responds by denying that he
ever signed or assented, in any way, to the terms of the arbitration
agreement.

For the reasons set forth below, defendant’s motion to

dismiss and compel arbitration is granted.

On November 15, 2016, plaintiff filed an action with this Court
alleging sex and religious discrimination, as well as harassment and
retaliation claims against his employer Dollar Tree, Inc. The following
background is drawn from his complaint.
Plaintiff was employed as a stock person at a Dollar Tree store
and was sexually harassed by one of his female co-workers. (Dkt. 1 at
2.) She made sexual innuendoes and inappropriately touched plaintiff,
such as rubbing on plaintiff and “grind[ing]” on him “in a sexual
manner.” (Id. at 2-3.)

Plaintiff “rejected [her] advance[s],” but “she

continued to force herself []on him.” (Id.)
Management was aware of her actions but failed to take any
action on their own. (Id. at 3.) However, once plaintiff raised the issue
with

management,

the

female

co-worker

who

perpetrated

the

harassment was fired. (Dkt. 1 at 3.) But plaintiff then faced retaliation
for reporting the harassment, which included reduced hours, fewer
opportunities

to

work,

closer

scrutiny,

unwarranted

discipline,

unwarranted scheduling changes, disparagement, and threats. (Id. at
3-4.) Plaintiff believes he was “treated differently than other similarly

2

situated employees because of his sex, his religious convictions, and
because he reported sexual harassment.” (Dkt. 1 at 4.)
On December 13, 2016, defendant filed a motion to dismiss and
compel arbitration.

According to defendant, “[a]t the outset of his

employment with Dollar Tree, [plaintiff] received and reviewed a copy of
a Mutual Agreement to Arbitrate Claims.”
arbitration

agreement

requires

(Dkt. 3 at 9.)

“employment-related

This

disputes—

specifically including, but not limited to, claims for employment
discrimination”—to be resolved “through binding arbitration.” (Id.)
Plaintiff responded on February 3, 2017, arguing that he “never
received, nor did he accept defendant’s offer to enter into a binding
arbitration agreement,” and that without mutual agreement as to
arbitration, there is no valid agreement between the parties. (Dkt. 6 at
9-11.) Plaintiff states that he told his manager, Ms. Lisa Allen Johns,
that he could not access the new-hire paperwork from his home
computer, and that she responded by telling him “not to worry about it,
and that she would have the Assistant Store Manager Mr. Ronald
Morris take care of it.” (Dkt. 6-1 at 2.)

3

Defendant’s reply, filed on February 17, 2017, argues, first, that
“an arbitrator and not the Court should determine the validity and
enforcement of the arbitration agreement.” (Dkt. 8 at 2.) Alternatively,
defendant argues that if the Court decides to answer the validity
question, then it should find that a valid agreement to arbitrate exists.
(Dkt. 8 at 2.) In support of its alternative argument, defendant relies
on case law recognizing that “electronic signatures are valid evidence of
mutual assent to the terms of a contract.” (Dkt. 8 at 2.)
Defendant also relies on the affidavit of Vincent Votta, Manager of
Recruiting Operations for Dollar Tree.

(Dkt. 8-1.)

In his affidavit,

Votta, who is familiar with the onboarding process for new store
associates, attests that “a unique password created for Bertam [sic]
Herbert was used to digitally sign an Arbitration Agreement.” (Dkt. 8-1
at 4.)
The Court held a hearing on April 19, 2017, to determine whether
plaintiff in fact signed the arbitration agreement.

At the hearing,

plaintiff testified on his own behalf, in line with the arguments that
were made in his brief. Defendant called Ronald Morris to the stand,

4

who testified that he did not sign any documents on plaintiff’s behalf, as
plaintiff alleges Ms. Johns told plaintiff Mr. Morris would do.
When deciding a motion to compel arbitration and stay
proceedings in federal court, the Court must determine: (1) whether the
parties agreed to arbitrate; (2) the scope of the arbitration agreement;
(3) if federal statutory claims are asserted, whether Congress intended
those claims to be non-arbitrable; and (4) if some but not all of the
claims are subject to arbitration, whether to stay the remainder of the
proceedings pending arbitration. Stout v. J.D. Byrider, 228 F.3d 709,
714 (6th Cir. 2000).
Because plaintiff argues that he never signed any arbitration
agreement, the only thing for this Court to decide is whether the parties
in fact agreed to arbitrate. See Stout, 228 F.3d at 714; Sroka Advance
Vehicles, Inc. v. Material Handling, Inc., No. 1:11-CV-907, 2011 U.S.
Dist. LEXIS 80588, at *7-8 (N.D. Ohio July 25, 2011).
As noted above, the Court held a hearing to determine whether
plaintiff in fact signed the arbitration agreement. Plaintiff testified on
his own behalf, stating that Lisa Allen Johns, the store manager who
hired plaintiff, told him that Ronald Morris, the assistant store
5

manager, would fill out the paperwork on plaintiff’s behalf and to begin
work anyway.

Plaintiff started work as directed.

Plaintiff’s middle

name is misspelled throughout the contract, adding credibility to his
testimony he did not in fact sign the documents himself.

Morris

testified that he did not fill out any paperwork and that Johns asked
him to do no such thing. Both witnesses were credible.
Thus, either Johns signed the documents in plaintiff’s stead,
without asking Morris, or plaintiff simply does not remember filling out
the paperwork. In either case, plaintiff assented to the terms of the
contract under Michigan law, and is thus bound to arbitrate his claims
pursuant to the agreement.
Under Michigan law, the creation of a contract requires both offer
and acceptance.

Pakideh v. Franklin Commercial Mortg. Grp., 213

Mich. App. 636, 640 (1995).

“[A]n acceptance sufficient to create a

contract arises where the individual to whom an offer is extended
manifests an intent to be bound by the offer, and all legal consequences
flowing

from

the

offer,

through

voluntarily

undertaking

some

unequivocal act sufficient for that purpose.” Kloian v. Domino’s Pizza,
L.L.C., 273 Mich. App. 449, 453-54 (2006) (quotations omitted). “The
6

absence of a signature is not fatal to the formation of a contract because
an offeree can assent through conduct, such as continued employment
after the effective date of the policy.”

Hall v. Pac. Sunwear Stores

Corp., No. 15-cv-14220, 2016 U.S. Dist. LEXIS 46347, at *13 (E.D.
Mich. Apr. 6, 2016) (quoting Pakideh, 213 Mich. App. at 640).
Accepting as true that Johns signed the contract for plaintiff, he
showed up to work after she told him to do so and that she would sign
the paperwork for him. He assented to Johns or Morris signing the
contract on his behalf by doing so. It does not matter that he may have
been unaware of the contract’s contents. “Competent adults are bound
by such documents, read or unread.” Hill v. Gateway 2000, 105 F.3d
1147, 1149 (7th Cir. 1997). And at the very least, there was testimony
that the “paperwork” included information that must have been
provided by plaintiff, such as the number of deductions he claimed for
tax purposes, indicating that plaintiff was aware of the nature of the
forms being completed on his behalf. Had plaintiff wished not to be
bound by the employment contract requiring him to arbitrate his
claims, he ought not to have agreed to begin work with the

7

understanding that Johns, or anyone else, would fill out his paperwork
for him.
For the reasons set forth above, defendant’s motion to dismiss and
compel arbitration (Dkt. 3) is GRANTED.
IT IS SO ORDERED.
Dated: June 8, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on June 8, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

8