Call v. Harris Stowe State University et al
Filing
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OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Compel Arbitration and the alternative Motion to Stay Proceedings, [Doc No. 14], is GRANTED. IT IS FURTHER ORDERED that the Parties will timely notify the Court of the completion of arbitration. Further action in this matter is stayed until such notification. 14 Signed by District Judge Henry Edward Autrey on 3/26/18. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SANDRA CALL,
Plaintiff,
v.
HARRIS STOWE STATE UNIVERSITY and
LASHONDA BOONE,
Defendants.
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) CASE NO 4:17CV1548 HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Compel
Arbitration and Dismiss or in the Alternative, Stay Proceedings Pending the
Completion of Arbitration [Doc 14]. Plaintiff opposes the Motion. For the reasons
set forth below, the Motion to Compel Arbitration is granted.
Facts and Background
Plaintiff filed this action against Defendants on February 23, 2015, alleging
that during her employment with Defendant Harris Stowe, she was subjected to
discrimination on the basis of her race, her disability, and /or perceived disability,
and that she was retaliated against as a result of her having complained of this
alleged discrimination. Plaintiff further claims that the discrimination and
retaliation were the cause of the termination of her employment.
On August 23, 2013, Plaintiff signed an employment agreement with Harris
Stowe, agreeing to be employed as the Director of Financial Aid for the 2013-14
school year. The Employment Agreement contains an arbitration clause entitled
“Alternative Dispute Resolution – Agreement to Arbitrate”:
The University and the Employee hereby agree that arbitration is the
required and exclusive forum for the resolution of all employment-related
and compensation related disputes based on legally protected rights (i.e.,
statutory, contractual or common law rights) that may arise between
Employee and the University, including without limitation contractual
claims and claims, demands or actions under Title VII of the Civil Rights
Act of 1964, the Civil Rights Acts of 1866 and 1991, the Age
Discrimination in Employment Act of 1967, the Older Worker Benefit
Protection Act of 1990, the Rehabilitation Act of 1973, the Americans with
Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the
Fair Labor Standards Act of 1938, the Equal Pay Act of 1963, the Missouri
Human Rights Act, any other federal, state or local statue, regulation or
common law doctrine regarding employment discrimination, conditions of
employment or termination of employment, and compensation-related
claims including without limitation, claims, demands or actions for or
relating to current salary or wages, equity compensation, deferred
compensation, bonuses, commissions, vacation pay and expense
reimbursements.
On May 11, 2017, Plaintiff obtained leave to file her First Amended Petition
against Defendants alleging Defendants violated the Missouri Human Rights Act
(“MHRA”) and the Family and Medical Leave Act of 1993 (“FMLA”).
Defendants move to compel arbitration and dismiss, alternatively,
Defendants seek a stay of this action pending arbitration. Plaintiff argues that
Defendants have waived the right to compel arbitration
Considerations to Compel Arbitration
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Before compelling arbitration, a district court must determine (1) whether
there is a valid arbitration agreement and (2) whether the particular dispute falls
within the terms of that agreement. Robinson v. EOR-ARK, LLC, 841 F.3d 781,
783 (8th Cir. 2016). Any doubts raised in construing contract language on
arbitrability should be resolved in favor of arbitration. CD Partners, LLC v.
Grizzle, 424 F.3d 795, 795 (8th Cir. 2005).
Under Section 2 of the Federal Arbitration Act (FAA), “written arbitration
agreements [are] valid, irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of a contract.” Anderson v. Carlisle, 129
S.Ct. 1896, 1901 (2009). Section 2 “creates substantive federal law regarding the
enforceability of arbitration agreements, requiring courts to place such agreements
upon the same footing as other contracts.” Id. (quotations omitted). “Section 3, in
turn, allows litigants already in federal court to invoke agreements made
enforceable by Section 2.” Id. “That provision requires the court, on application of
one of the parties, to stay the action if it involves an issue referable to arbitration
under an agreement in writing.” Id.
Plaintiff does not dispute the Arbitration Agreement’s existence, nor does
she claim issues in this case do not fall within the provisions of the Agreement.
Rather, Plaintiff contends that Defendants have waived their right to compel
arbitration.
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Waiver of Right to Arbitrate
“Parties can waive their contractual right to arbitration even if their
agreement to arbitrate is valid and enforceable.” Schultz v. Verizon Wireless Servs.,
LLC, 833 F.3d 975, 978 (8th Cir. 2016). Courts will not compel arbitration when
the party who seeks to arbitrate has waived its right to do so. See generally
Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1094 (8th Cir. 2007);
Hooper v. Advance Am., 589 F.3d 917, 920 (8th Cir. 2009); Erdman Co. v. Phx.
Land & Acquisition, LLC, 650 F.3d 1115, 1120 (8th Cir. 2011). A party waives its
right to arbitrate when the party “(1) knew it had a right to arbitration, (2) acted
inconsistently with such right, and (3) prejudiced [the opposing party].” Hooper,
589 F.3d 917, 920 (citations omitted).
Plaintiff argues that the parties have been litigating this action for over three
years and have engaged in extensive discovery. Plaintiff has filed a motion to
compel, which was set for hearing in the Circuit Court from which this action was
removed. The Circuit Court entered a Consent Order. Plaintiff has disclosed a
medical expert, and the parties filed a joint motion to continue the trial date in the
Circuit Court. Plaintiff has deposed Defendant Boone. Plaintiff has produced her
expert’s Independent Medical Examination.
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Plaintiff filed her First Amended Petition on May 11, 2017. This Amended
Petition added a claim for a violation of the Family Medical Leave Act. Based on
this added count, Defendants removed the action to this Court on May 23, 2017.
“A party acts inconsistently with its right to arbitrate if the party
substantially invokes the litigation machinery before asserting its arbitration right.”
Lewallen 487 F.3d at 1090 (quotation and alterations omitted). Prejudice occurs
when the parties litigate “substantial issues on the merits, or when compelling
arbitration would require a duplication of efforts.” Hooper, 589 F.3d at 923
(quotation omitted). There is little doubt that Defendants knew they had a right to
arbitrate disputes related to and arising from Agreement, but the remaining two
requirements have not been satisfied.
Although Plaintiff argues that the parties have been litigating for over three
years, the record reflects that very little activity has transpired in that time. There
have been no dispositive motions. Defendants point out that most of the
production of discovery has been satisfied by Defendants. Plaintiff, after the
deposition of Defendant Boone consciously decided to add an additional claim
under the Family Medical Leave act. There appears to have been no discovery vis
a vis her new claim. While Defendants may not have sought to arbitrate Plaintiff’s
claims in the original Petition, the addition of the Family Medical Leave Act claim,
still in its infancy, gives rise to a new consideration. The Court fails to see how
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any of the actions detailed herein reflect a substantial invocation of the litigation
machinery.
Moreover, even if these events could be construed as invoking “litigation
machinery” to resolve the case, none of them prejudiced Plaintiff in the manner
required by Hooper. Defendants have not asked any Court to consider the merits of
Plaintiff’s substantive claims, and no effort expended here will be duplicated in the
arbitration.
Conclusion
For the reasons stated herein, the Court concludes Defendants have not
waived their right to enforce the arbitration agreement because they have not acted
inconsistently with that right and Plaintiff has not been prejudiced in the manner
required to support a waiver. The Motion to Compel Arbitration will be granted.
Defendants have not articulated a sufficient reason for dismissal of the action as
opposed to a stay. In that the Court has jurisdiction in this case, and issues may
arise subsequent to the arbitration, the alternative Motion to Stay Proceedings will
be granted.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Compel
Arbitration and the alternative Motion to Stay Proceedings, [Doc No. 14], is
GRANTED.
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IT IS FURTHER ORDERED that the Parties will timely notify the Court
of the completion of arbitration. Further action in this matter is stayed until such
notification.
Dated this 26th day of March, 2018.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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