BEERY et al v. QUEST DIAGNOSTICS, INC. et al

Filing 54

MEMORANDUM OPINION fld. Signed by Judge Kevin McNulty on 6/14/13. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ERIN BEERY, et al.,

Civ. No. 12-cv-00231 (KM)(MCA)

Plaintiffs,
MEMORANDUM OPINION
V.

QUEST DIAGNOSTICS, INC., and
AMERIPATH, INC.,
Defendants.

This matter comes before the Court on a Motion to Compel Arbitration
submitted by the Defendants, Quest Diagnostics, Inc. and AmeriPath, Inc.’
Plaintiffs Erin Beery, Heather Traeger, and Sandy Cooper have filed an
Amended Complaint which alleges that Defendants subjected female employees
to a systematic pattern and practice of pay and promotion discrimination.
These named Plaintiffs filed this case as a putative class action on behalf of
themselves and other female sales representatives. The Amended Complaint
2
asserts claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), the
Equal Pay Act (“EPA”), and the New Jersey Law Against Discrimination

In 2007, Quest Diagnostics acquired AmeriPath as a wholly-owned subsidiary.
Quest has filed a separate motion to dismiss asserting that Plaintiffs, who sue as
employees of AmeriPath, cannot pierce the corporate veil. (DE No. 18-1) I here refer to
Quest and AmeriPath jointly as “Defendants,” but in doing so I do not prejudge the
corporate veil issue.
2
The purported class comprises current and former female sales representatives
who are or were employed by Defendants from February 17, 2010, through the date
that a judgment is entered in this case.
1

(“NJLAD”). Ms. Beery, Ms. Traeger, and Ms. Cooper also assert individual
claims for retaliation and sexual harassment.
Defendants contend that this action must be dismissed in favor of
arbitration. Each Plaintiff signed an Employment Agreement that contains an
Arbitration Clause. The Arbitration Clause requires employees to arbitrate “all
claims, disputes or issues” arising out of their employment with Defendants,
including “all claims, disputes or issues of harassment, including sexual
harassment and/or harassment based on

.

.

.

sex.” Any such arbitration shall

be “governed by the American Arbitration Association’s National Rules for the
Resolution of Employment Disputes.” Thus, on its face, the Arbitration Clause
would appear to require that this action be dismissed pursuant to the Federal
Arbitration Act (“FAA”), 9 U.S.C.

§ 4.

Plaintiffs argue, however, that the Arbitration Clause is unenforceable for
three reasons: 1) because its restrictive terms impair their vindication of their
statutory rights under Title VII and EPA; 2) because it is procedurally and
substantively unconscionable; and 3) because Defendants waived arbitration
by participating in EEOC proceedings.
For the reasons set forth below, Defendants’ Motion to Compel
Arbitration will be granted, and the claims of Ms. Beery, Ms. Traeger, and Ms.
Cooper will be dismissed in favor of arbitration. One portion of the Arbitration
Clause, containing the 90-day limitations period and certain pre-claim
procedures, is unenforceable because it unduly restricts Plaintiffs’ vindication
of their federal rights; it can, however, be severed. The signing of the
2

employment contract containing the Arbitratio
n Clause, although perhaps
marked by a disparity in bargaining power, was
not procedurally
unconscionable. Finally, as numerous cases have
held, an employer’s
cooperation with or participation in EEOC proc
eedings does not waive a valid
agreement to arbitrate.
I.

BACKGROUND

Plaintiffs’ claims all arise out of their employm
ent by AmeriPath.
Ms. Beery is an Executive Territory manager in
AmeriPath’s Anatomical
Pathology Sales Division in Indianapolis, Indiana.
She began her employment
with AmeriPath in February 2004 and has cons
istently achieved exceptional
sales results, winning multiple awards.
Ms. Traeger began her employment with AmeriPath
in November 2005 as
a Territory Manager of New Business Development
of the Anatomical Pathology
Sales Division. In June 2010, Ms. Traeger was
promoted to Senior Executive
Territory Manager in the Anatomical Pathology
Sales Division in Bradenton,
Florida. Like Ms. Beery, Ms. Traeger has achieved
exceptional sales results and
received numerous sales awards during her emp
loyment with AmeriPath.
Ms. Cooper was initially hired by AmeriPath on May
23, 2001, as a per
diem Cytotechnologist in the Company’s Youngst
own, Ohio laboratory. From
March 2004 through May 2005, she worked as
a full-time Cytotechnologist in
AmeriPath’s laboratory in Cleveland, Ohio. In May
2005, Ms. Cooper was
promoted to Associate Sales Representative in Ame
riPath’s laboratory in
Youngstown. Between 2007 and 2011, Ms. Coo
per was promoted four more
3

times; it was in March 2011 that she achieved her
current position of Territory
Manager of the Northern Ohio Territory. Ms. Cooper
is also a consistently
strong performer; her 2011 sales, for example, placed
her sixth out of twentyfive territory representatives.
Within days of commencing their employment, Plaintiffs
executed
essentially identical Employment Agreements. The Plainti
3
ffs do not dispute
that they signed the Agreement, but allege that the hum
an resources
representative forced them to sign it “in a hurry” and
did not explain it to them.
Paragraph 7 of the Employment Agreement, the Arbi
tration Clause, provides for
arbitration of all disputes relating to employment:
All claims, disputes or issues arising between Employee
and the
Company, its owners, directors, officers, employees, agen
ts, successors
and/or assigns . . . shall be resolved in accordance with
[the arbitration
clausel.
Agreement at

¶

7(a). The Arbitration Clause defines the words “Claim” or

“Claims” to include:
[Aill claims, disputes or issues involving employment discrimination
relating to Employee’s . . sex . . .; all claims disputes or issue
s of
harassment, including sexual harassment and/or harassme
nt based on.
sex. . .; and any other employment related claim, dispute
or issue that
Employee may have under federal, state, local or common
law.
.

Id. at 4-5

¶J

7(a)(ii), (iii), and (v). The Arbitration Clause goes on to set
forth

certain pre-claim procedures. Aggrieved Employees are requ
ired first to discuss
a Claim with their immediate supervisor or the Company’s
Senior Vice
Defendants submitted each plaintiff’s Employment Agreements
as Exhibit A to
a separate certification from Richard H. Brown. The certifications
and attached
agreements are, for current purposes, essentially identical. For
simplicity, this
Memorandum Opinion refers to the Certifications collectively as
the Brown Cert., and
refers to the “Employment Agreement” and “Arbitration Clause”
in the singular.
3

4

President of Human Resources (in person in Florida
or by calling a 1-800
number). Id. at 5

¶

7(b)(i). “If the Employee is not satisfied with the [Comp
any’s]

resolution of the Claim or Claims
Claims.

.

.

.

.

.

the Employee shall submit the Claim or

for final and binding mandatory arbitration.” Id. at
5

submission to arbitration

—

¶

7(b)(ii). Any

whether by the Employee or the Company

be made within ninety (90) days after the Claim arise
s. Id. at 5

¶

—

must

7(b)(ii). The

Arbitration Clause also contains a “loser-pays” provision:
“The prevailing party
in any proceeding to challenge the validity of this Para
graph 7

[i.e.,

the

Arbitration Clause] and/or any Arbitration thereunde
r shall be entitled to an
award of attorney’s fees and costs through and including
any appeals.” Id. at 5

¶

7(b)(iii).
The Arbitration Clause states that “[a]rbitration pursuant
to this

Paragraph 7 is intended to be a substitute for employm
ent related lawsuits that
Employee or the Company may consider bringing against
one another as a
result of the employment relationship between the Emplo
yee and the
Company.” Id. at 5

¶

7(c). It concludes:

Employee and the Company have carefully read this Para
graph 7 and
understand that by signing this Agreement, they are agre
eing to submit
the above-described Claim or Claims to arbitration in lieu of
bringing a
legal action. Furthermore, Employee and the Company unde
rstand that
by agreeing to this Paragraph 7, they are giving up substanti
al legal
rights, i.e., the right to sue in federal and state courts,
the right to have
disputes or claims heard by a jury and the right to have claim
s of civil
rights violations considered by local, state, and/or federal
investigatory
agencies.
Id. at 6

¶

7(d).

5

A separate, “Miscellaneous” section of the Emp
loyment Agreement
provides that it shall be construed under Florida
law and states that any
proceedings relating to the Agreement shall, to
the extent permitted by law, be
held in Broward County, Florida. Id. at p.’7,

¶ 8(g).

According to the Amended Complaint, all three nam
ed Plaintiffs filed
“Charges of Discrimination” with the EEOC. Ms. Beer
y filed her Charge on
December 14, 2010, and received her Letter of Righ
t to Sue on October 15,
2011. Ms. Traeger filed hers on January 11, 2011
, and received her Letter of
Right to Sue on October 17, 2011. Ms. Cooper filed
hers on October 4, 2011,
and received her Letter of Right to Sue on February
17, 2012.
The Complaint in this action was filed on January
12, 2012, and the
Amended Complaint was filed on April 2, 2012. All three
named Plaintiffs allege
in this action that, despite superior performance, they
have been denied
promotional opportunities, have received unfair perfo
rmance reviews, and have
been subjected to discriminatory actions that have
stalled their careers.
II.

DISCUSSION
Federal law is decidedly pro—arbitration. The FAA’s purp
ose is “to reverse

the longstanding judicial hostility to arbitration agre
ements that had existed at
English common law and had been adopted by Ame
rican courts, and to place
arbitration agreements upon the same footing as othe
r contracts.” Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (199
1). Thus the statute makes
agreements to arbitrate “valid, irrevocable, and enforceab
le,” subject only to
traditional contract principles. 9 U.S.C.

§ 2. It provides that contract provisions

6

manifesting the intent of the parties to settle disputes
in arbitration shall be
binding, allows for the stay of federal court proceedin
gs in any matter
referrable to arbitration, and permits both federal and
state courts to compel
arbitration if one party has failed to comply with an
agreement to arbitrate. 9
U.S.C.

§ 2, 3, 4. Cumulatively, those provisions “manifest a liberal federal

policy favoring arbitration agreements.” Gilmer, 500
U.S. at 24 (quotations
omitted). Thus, “as a matter of federal law, any doub
ts concerning the scope of
arbitrable issues should be resolved in favor of arbitratio
n.” Moses H. Cone
Mem’lHosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-2
5 (1983).
The fact remains, however, that arbitration is a creature
of contract.
Before referring any controversy to arbitration, the Cou
rt must determine
whether the parties have indeed agreed to arbitrate it. Gree
n Tree Fin. Corp. v.
Bazzle, 539 U.S. 444, 452 (2003). That determination has
three subparts: (1)
whether the parties agreed to arbitrate; (2) whether the
dispute is within the
scope of the agreement; and (3) whether Congress neve
rtheless intended the
dispute to be non-arbitrable. Sarbak u. Citigroup Global
Markets, Inc., 354 F.
Supp. 2d 531, 536-37 (D.N.J. 2004).
Plaintiffs concede that the Arbitration Clause satisfies thos
e three
criteria. They nevertheless argue that it should not be enfo
rced because
arbitration would prevent them from vindicating their statu
tory rights, because
the Arbitration Clause is unconscionable, and because Defe
ndants waived their

7

right to enforce the arbitration clause by parti
cipating in EEOC proceedings.
The Court will address each of these argumen
ts in turn.
4

A. Vindication of Federal Statutory Rights
A party who has agreed to arbitrate disputes
may nevertheless go to
court if she demonstrates that she cannot vind
icate her federal statutory rights

in arbitration. See Gilmer, 500 U.S. at 28; Gree
n Tree Fin. Corp.-Alabama v.
Randolph, 531 U.S. 79, 90 (2000). Plaintiffs here
assert that the Arbitration
Clause should not be enforced because it impa
irs effective prosecution of their
claims under Title VII and the EPA.
In Gilmer, the Court compelled arbitration of a
claim for wrongful firing
under the Age Discrimination in Employment
Act (ADEA). 500 U.S. at 28. The
Court determined that arbitration was a suitable
forum for the statutory ADEA
claims; ADEA would “‘continue to serve both its
remedial and deterrent
function” as long as litigants could “‘vindicate
[their] statutory cause of action
in the arbitral forum.” Id. (quoting Mitsubishi Mot
ors, 473 U.S. at 637). The
After the Motion to Compel Arbitration was fully brief
ed, four individuals opted
in as plaintiffs in the proposed Equal Pay Act colle
ctive action claim (one of eleven
counts in the Amended Complaint). These opt-in plain
tiffs allege that they did not sign
arbitration clauses. Plaintiffs submitted supplemental
briefing arguing that the
presence of the opt-in plaintiffs without arbitration
clauses is another reason to deny
arbitration because “Plaintiffs without arbitration claus
es cannot be compelled to
arbitrate and their claims must be allowed to proceed
in this forum.” Plaintiffs argue
that dividing the action into different forums would
defeat the efficiency rationale of
class and collective actions and risk inconsistent resul
ts. Moreover, Plaintiffs suggest
that this Court should deny arbitration in the face of
otherwise valid Arbitration
Clauses with class members because otherwise they
may not meet the numerosity
requirement for a class action. The Court rejects Plain
tiffs’ argument that the presence
of the opt-in plaintiffs changes the analysis. Supreme
Court precedent has been clear
for decades that the FAA requires district courts to com
pel arbitration of arbitrable
claims even where the result would be “piecemeal” litiga
tion in different forums. See
Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221(1985
); Moses H. Cone, 460 U.S.
at 20.
4

8

Court found that the New York Stock Exchange
arbitral rules, which would
govern the dispute, “provide[dJ protections again
st biased [arbitral] panels,”
“allow[edj for document production, information
requests, depositions, and
subpoenas,” and “require[d] that all arbitration
awards be in writing.” Id. at 3032. Such safeguards, the Court held, were adeq
uate.
The Court again discussed the vindication-of right
s-doctrine, and again
held that the doctrine did not bar arbitration, in
Green Tree Financial Corp.
Alabama v. Randolph, 531 U.S. 79 (2000). Larketta
Randolph financed the
purchase of a mobile home through Green Tree.
Id. at 82. Her loan contained a
clause that mandated arbitration but said nothing
about how the proceeding
was to be conducted. Id. at 82-83. She then filed
in district court a class action
against Green Tree under the Truth in Lending Act
(TILA) and Equal Credit
Opportunity Act (ECOA). Id. at 83. When Green Tree
moved to compel
arbitration, Randolph argued that she lacked the resou
rces to arbitrate her
claims, citing evidence that “arbitration filing fees
for claims below $10,000
were generally $500 and that the average arbitrator
’s fee per day is $700.” Brief
for Respondent, Green Tree Financial Corp.-Alabam
a v. Randolph, 531 U.S. 79
(2000) (No. 99-1235), 2000 WL 1086800, at *3 The
district court ordered the
matter to arbitration, but the Eleventh Circuit reve
rsed. The Eleventh Circuit
was troubled by the arbitration clause’s silence as
to fees and costs:
The arbitration clause in this case raises serious conc
erns with respect
to filing fees, arbitrators’ costs and other arbitratio
n expenses that may
curtail or bar a plaintiff’s access to the arbitral forum
This clause
says nothing about the payment of filing fees or the
apportionment of the
costs of arbitration. It neither assigns an initial respo
nsibility for filing
.

9

.

.

.

fees or arbitrators’ costs, nor provides for a waiv
er in cases of financial
hardship. It does not say whether consumers, if
they prevail, will
nonetheless be saddled with fees and costs in exce
ss of any award.
Green Tree, 178 F.3d 1149, 1159 (11th Cir. 1999).
The Supreme Court reversed the judgment of the
Court of Appeals. Green
Tree, 531 U.S. at 9 1-92. The Supreme Court did
not take issue with the general
proposition that burdensome arbitral costs could
invalidate an arbitration
clause. Id. at 90. The Court determined, however,
that Randolph’s argument
rested on “unfounded assumptions,” id. at 90 n.6,
and demanded a more
concrete showing: “The ‘risk’ that Randolph will be
saddled with prohibitive
costs is too speculative to justify the invalidation of
an arbitration agreement.”
Id. at 91 (citations omitted).
At a minimum, then, Gilmer and Green Tree stand for
the propositions
(a) that arbitration, even if agreed upon, can be avoided
if it would
frustrate the vindication of federal rights;
(b) that a party seeking to avoid arbitration on those grou
nds must
make a concrete showing that his or her federal right
s would be impaired by
the arbitration process; and
(c) that familiar arbitration rules, like those of the New
York Stock
Exchange, will ordinarily ensure an adequate forum
5
.

The Arbitration Clause provides that arbitration will be “gov
erned by the
American Arbitration Association’s National Rules for the
Resolution of Employment
Disputes.” Plaintiffs do not contend that the AAA rules, whic
h are commonly accepted
and incorporated in arbitration agreements, lack the nece
ssary procedural safeguards.
10
5

Ms. Beery, Ms. Traeger, and Ms. Cooper grou
nd their vindication-ofrights argument on four aspects of the Arbi
tration Clause. They are: (1) the
“loser-pays” provision, which allegedly entitles
the prevailing party to an award
of attorney’s fees and costs; (2) the pre-claim
“discussion” procedures and 90day time limit for commencing arbitration; (3)
the prohibition on having claims
of civil rights violations “considered” by investiga
tory agencies such as the
EEOC; and (4) the Florida forum selection claus
e.
1. “Loser-pays” Provision
Plaintiffs maintain that the “loser-pays” provision
would require the
employee to pay all of the Company’s fees, costs
, and expenses if she were
unsuccessful in the arbitration of her claims unde
r Title VII and the EPA.
6
Plaintiffs say that they could not afford to pay
Defendants’ attorney’s fees and
expenses, which might run in the “hundreds of
thousands or millions of
dollars.” Defendants reply that Plaintiffs are unde
rstating their financial
resources. More fundamentally, Defendants say,
the Plaintiffs are grossly
overstating the effect of the Arbitration Clause’s
“loser-pays” provision. That
provision does not require a losing plaintiff to
pay all expenses incurred by
Defendants in defending the underlying arbitratio
n. Rather, it shifts the costs
of only two narrow kinds of proceedings: (1) a proc
eeding to challenge to the
validity of the Arbitration Clause; and (2) a proc
eeding to challenge the validity
of the arbitration itself. According to Defendants,
“given the limited nature of
6
The parties do not appear to dispute that, should Plain
tiffs prevail, Title VII and
the EPA’s fee-shifting provisions will govern the awar
d of fees and costs in arbitration,
just as they would in court. The interpretive dispute
is over the extent to which the
Arbitration Clause makes Plaintiffs liable for fees
and costs if they do

not prevail.

11

the fee shifting clause, plaintiffs’ claims that
they might be liable for ‘millions’
is simply wrong.” (Reply Br. at n. 2).
Plaintiffs have the burden of proof on these
issues. The Third Circuit has
interpreted Green Tree to require that the “par
ty seeking to invalidate an
arbitration agreement because arbitration wou
ld be prohibitively expensive
bears the burden of showing this likelihood.”
Spinetti v. Service Corp. Int’l, 324
F.3d 212, 217 (3d Cir. 2003) (citing Green Tree
, 531 U.S. at 92); see Parilla v.
lAP Worldwide Services, V1, Inc., 368 F.3d 269,
284-85 (3d Cir. 2004). Plaintiffs
attempt to carry this burden by submitting decla
rations detailing their income
and expenses. Ms. Beery, for example, declares
that she “make[s] $70,700 per
year in base salary,” has a $300,000 mortgage
on her home, spends $6,000 per
year in childcare, and pays $2,300 every six week
s for MBA tuition and books.
Beery Deci. at 6. Plaintiffs Traeger and Cooper
have submitted similar
declarations. See Traeger Deci. at 6; Cooper Deci
. at 6.
All three Plaintiffs, however, fail to disclose commiss
ions in amounts that
are multiples of their base salaries. For example,
Ms. Traeger discloses her
base salary of $81,000 but fails to disclose that
her total annual income,
including commissions, was $354,240.40 in 2011
; $262,913.14 in 2010; and
$295,511.26 in 2009. See Certification of Doreen Arrig
oni (“Arrigoni Cert.”)

¶J

3-4. Similarly incomplete are the statements
in the declarations of Beery and
Cooper. Compare Beery Decl. at
compare Cooper Deci. at

¶

¶

27, with Arrigoni Cert. at

27, with Arrigoni Cert. at

¶J

¶J

5 and 6; and

7 and 8. Consequently,

even if Plaintiffs were exposed to massive fee-shifti
ng, as they claim, I would
12

harbor serious doubts about whether they had carried their
burden as to their
inability to pay.
In any event, however, I do not believe that the Arbitration Clause
does
expose Plaintiffs to such massive fee-shifting. The Arbitration Clause
provides:
The prevailing party in any proceeding to challenge the validity
of this
Paragraph 7 [i.e., the Arbitration Clause] and/or any Arbitration
thereunder shall be entitled to an award of attorney’s fees and costs
through and including any appeals.
Agreement at p. 5

¶

7(b)(iii).

To be sure, there is a potential distributive ambiguity. The clause “any
proceeding to challenge the validity of” might modify only the first alterna
tive
(“this Paragraph 7”), or might also modify the second (“any Arbitration”).
Plaintiff’s interpretation:
The provision shifts costs and fees to
[1] the prevailing party in “any proceeding to challenge the validity
of this Paragraph 7”; and
[2j the prevailing party in “any Arbitration thereunder.”
Defendant’s interpretation:
The provision shifts costs and fees to
[1] the prevailing party in “any proceeding to challenge the validity
of this Paragraph 7”; and
[2] the prevailing party in “any proceeding to challenge the validity
of

...

any Arbitration thereunder.”

Under Plaintiff’s interpretation, the Arbitration Clause would grant
Defendants reciprocal fee-shifting privileges, the mirror image of those
that
13

plaintiffs enjoy in Title VII or EPA litigation. I am
inclined, however, to accept
Defendant’s interpretation, under which the Arbi
tration Clause does not shift
the costs of the arbitration itself. Rather, it shift
s the costs to the loser only in
two kinds of proceedings: (1) a proceeding to chall
enge to the validity of the
Arbitration Clause; and (2) a proceeding to chall
enge the validity of arbitration.
In Defendants’ version, these phrases plausibly share
a common purpose to
protect the integrity of the arbitration process. Defe
ndants’ interpretation is
slightly more plausible as a matter of syntax. I also
question whether such a
major revision of customary fee-shifting law would
be tucked in an
inconspicuous clause in the manner suggested by Plain
tiffs. And of course
Defendants themselves disclaim any entitlement to
shift the costs of arbitration
should they prevail. The limited shifting of costs and
fees under Defendants’
interpretation would not tend to render the cost of arbit
ration prohibitive.
7
A plaintiff would ordinarily be pleased to endorse Defe
ndants’ narrow
interpretation, which implies that Plaintiffs are not
at risk to pay huge defense
costs. That narrow interpretation, however, works again
st Plaintiffs’ attempt to
invalidate the Arbitration Clause on grounds of excessive
8
expense.
7

Attorneys’ fees aside, the fees charged by AAA are fairly modes
t. See generally

www.adr.org/aaa/faces/aoe/lee/employment.

For purposes of this motion, each side embraces an interpreta
tion of the
Agreement unfavorable to itself. Defendants urge that the
Agreement be interpreted
narrowly, in Plaintiffs’ favor, to preserve the validity of the
Arbitration Clause.
Plaintiffs, on the other hand, read the Agreement in the
most overreaching, defendantfriendly light, in order to establish that it is too broad to
be enforceable.
Perhaps both parties are being somewhat opportunistic. The
least charitable
interpretation of Defendants’ position would be that they
have drafted invalid but
intimidating contractual provisions, only to claim, when challen
ged, that they meant
nothing of the sort. The least charitable interpretation of
Plaintiffs’ position would be
that they are exaggerating any flaws in the contract in order
to draw a favorable ruling
8

14

As I say, I am inclined to accept Defendants’ inter
pretation of the feeshifting provision, but the provision is, at wors amb
t,
iguous. And even an
ambiguous provision would not help Plaintiffs avoi
d arbitration. In Quilloin v.
Tenet Health System Philadelphia, Inc., 673 F.3d 221
(3d Cir. 2012), the parties
disputed whether an arbitration agreement allowed
the prevailing party to
recover attorney’s fees. 673 F.3d at 231. The district
court found the agreement
to be ambiguous on that point, and ruled that it coul
d not compel arbitration
until it resolved the attorney’s fees issue. The Third
Circuit reversed, holding
that “[wje agree with the District Court that the arbit
ration agreement is
ambiguous regarding the award of attorneys’ fees, but
find that the District
Court erred in determining that it could not compel arbit
ration before resolving
the issue.” Id.
What the district court missed, said the Quilloin pane
l, is that “[tihe
Supreme Court has clearly established that ambiguit
ies in arbitration
agreements must be interpreted by the arbitrator.” Id.
(citing PacfICare Health
Sys., Inc. v. Book, 538 U.S. 401, 406—07 (2003)). And inde
ed the Supreme
Court has held that the courts “should not, on the basis
of mere speculation
that an arbitrator might interpret.

.

.

ambiguous agreements in a manner that

casts their enforceability into doubt, take upon ourselves
the authority to
decide the antecedent question of how the ambiguity is
to be resolved.”
PacfiCare, 538 U.S. at 406—07 (citation and internal
quotation marks omitted).
from the Court. Cf http: / / en.wikipedia.org/ wiki/Flop
(basketbai1). I adopt neither the
“passive-aggressive” nor the “flop” interpretation. I do point
out that the parties’ shortrun positions here may have long-run estoppel conseque
nces.

15

The Quilloin district court thus erred when it reach
ed out to decide an issue
that might or might not arise, depending on the arbit
rator’s interpretation of
the agreement (or the identity of the prevailing party
).
Under PaczfiCczre and Quilloin, then, even an ambiguo
us loser-pays
provision would not stave off arbitration; it would pose
an issue to be resolved
by the arbitrator. This, too, persuades me that I cann
ot say that the fee-shifting
provision of the Arbitration Clause prevents Plain
tiffs from vindicating their
statutory rights. I will not invalidate the Arbitration
Clause on such a basis.
2. Pre-Claim Procedures and 90-day Limitations Perio
d
The Arbitration Clause provides that any arbitration
claim “shall be made
within ninety (90) days after the Claim or Claims in
question arises.” But before
pursuing a claim in arbitration, an employee must
discuss the matter with her
immediate supervisor or the Company’s Senior Vice
President of Human
Resources (in person in Florida or by calling a 1-800
number). Agreement at p.
5,

¶

7(b)(i). Only then, “[ijf the Employee is not satisfied with
the [Company’sj

resolution of the Claim or Claims.
Claims.

.

.

.

.

the Employee shall submit the Claim or

for final and binding mandatory arbitration.” Id. at
p. 5,

¶

7(b)(ii).

The implication is that the required pre-claim discu
ssion, as well as the filing of
a claim in arbitration, must be completed within the
90-day limitations period.
Plaintiffs contend that this schedule is simply too tight
; these provisions
unduly burden their vindication of their statutory right
s.
A provision limiting the time to bring a claim is not
necessarily unfair or
unenforceable, but the time period must be reasonabl
e. Alexander v. Anthony
16

Int1,

L.P., 341 F.3d 256, 266 (3d Cir. 2003). In Alexander,
the Third Circuit

declared an Arbitration Clause unconscionable, subs
tantially because an
absolute 30-day statute of limitations on all employee
claims “inappropriately
assist[ed the defendant] by making it unnecessarily
burdensome for an
employee to seek relief.” Id. Importantly, the provision
in Alexander imposed an
absolute bar on all claims filed more than 30 days after
“the event which forms
the basis of the claim.” Such a rigid claim bar preclude
s employees from taking
advantage of the “continuing violation” doctrine and the
“discovery rule,” tolling
doctrines that ameliorate the harshness of a short limit
ations period. Id. at
266-67. See also Ingle v. Circuit City Stores, Inc., 328
F.3d 1.165, 1.175 (9th Cir.

2003) (limitations provision contained in an arbitration claus
e was
unconscionable because it foreclosed “the possibility of relief
under the
continuing violations doctrine”); Circuit City Stores, Inc.
v. Adams, 279 F.3d
889, 894 (9th Cir. 2002), cert. denied, 535 U.S. 1112 (2002)
.
Here, Plaintiffs allege that the 90-day deadline is a rigid
time bar that
precludes them from invoking the continuing violation doct
rine and the accrual
rule embodied in the Lilly Ledbetter Fair Pay Act of 2009.10
It is not at all
apparent, however, that the Arbitration Clause actually depr
ives Plaintiffs of
The continuing violation doctrine provides that the statute of limitat
ions does
not begin to run until a continuing course of tortious conduct
ceases. Pearson v. Ford
Motor Co., 694 So.2d 61, 68 (Fla. Dist. Ct. App.1997) (Florida law);
Roa v. Roa, 200
N.J. 555, 985 A.2d 1225, 1231(2010) (NJ law). The discovery
rule, as the name
implies, may delay the running of a statute of limitations until
the plaintiff knows or
should know of her cause of action. See Larson & Larson, P.A.
v. TSE Indus., Inc., 22
So. 3d 36, 51 (Fla. 2009) (Florida law); Martinez v. Cooper Hosp.-Univ.
Med. Ctr., 163
N.J. 45, 52, 747 A.2d 266, 270 (2000) (NJ law).
The Lilly Ledbetter Fair Pay Act of 2009, 111 P.L. 2, provides, inter
alia, that for
pay discrimination claims, each new pay check is actionable as
an unlawful practice.
9

17

these rights. The 90-day limitations period in the Arbitration
Clause does not,
like the Alexander provision, run from the “event” giving rise
to the claim;
rather, it starts to run when “the Claim or Claims in question
arises” (sic;
emphasis added). To my mind, the “arising” language in the Arbitra
tion Clause
is compatible with an accrual statute of limitations. And an accrua
l statute is
broad enough to encompass the Ledbetter Act, the continuing
violation
doctrine, and other tolling doctrines.
Judge Debevoise of this Court has found an “arising” limitations
period
in an arbitration agreement to be parallel to the “accrual” statute
of limitations
that applies to personal injury and statutory discrimination claims
in this
State. Pyo v. Wicked Fashions, Inc., No. 09-cv-2422, 2010 WL 13809
82, at
10 (D.N.J. March 31, 2010), citing N.J. Stat. Ann.

*

§ 2A:14-2 (claim must be

asserted within two years “after the cause of any such action shall
have
accrued”). As Judge Debevoise noted, “[i]t is well-established under
New Jersey
law that.

.

.

the continuing violation doctrine appl[iesl to that [accrual] statute

of limitations.” Id. at *10 (citing Shepherd v. Hunterdon Development
al Ctr., 174
N.J. 1, 803 A.2d 611, 621 (2002)). Finding no significant difference
between
“arise” and “accrue” for these purposes, Judge Debevoise held that
both the
continuing violation doctrine and discovery rule would toll the limitat
ions
period in that arbitration agreement. In those respects, this Arbitra
tion Clause
is no different.
Other features of this Arbitration Clause, however, render it more
burdensome than the one in Pyo. The Pyo agreement had a one-ye
ar (not 9018

day) limitations period, and it imposed only a pre-claim notification (not
“discussion”) requirement. Those distinctions matter. Even assuming, as I do,
that the continuing-violation and Ledbetter tolling doctrines remain available,
this Arbitration Clause’s pre-claim procedures and the short 90-day limitations
period render it unduly burdensome. This 90-day limitations period, short
enough in its own right, must also accommodate the internal, informal
“discussion” procedure that is a prerequisite to arbitration. Indeed, the
Company, simply by delaying its response to an initial complaint, may
unilaterally consume some or all of that 90-day period.” Taken together, the
pre-claim discussion requirement and the 90-day deadline may impede a
plaintiff’s efforts to formulate a well-supported claim in arbitration. I find these
restrictions to be incompatible with the broad, remedial policies of Title VII and
EPA.
Neither party has asserted that the claims of the named Plaintiffs here
are untimely. Nevertheless, I find that the portion of the Arbitration Clause
setting forth the pre-claim procedures and 90-day limitations period would be
unenforceable. As discussed in section II.D, below, however, these terms are

Defendants assert that an employee must “discuss” the matter with a
supervisor, but technically does not have to wait for a response from the Company
before filing a claim in arbitration. The pre-claim discussion requirement appears to be
designed to allow the parties to resolve claims informally. That the Employee must
wait for the Company’s answer is not literally stated, but it is implied: the Employee is
to submit the claims to arbitration if, after consultation, “the Employee is not satisfied
with the [Company’s] resolution of the Claim or Claims,” Agreement at p.5, 7(b)(ii)
¶
(emphasis added). In reality, then, the 90-day limitations period will be much shorter
for any employee who follows the logical, good-faith procedure of allowing the
Company a reasonable time to respond to her complaint.
19

not essential; they can be severed, and the remainder of the Arbitration Clause
will remain viable.
3. Prohibition of EEOC or Other Agency Consideration
Plaintiffs contend that the Arbitration Clause is void as against public
policy because it prevents the EEOC or any other agency from “considering”
Plaintiffs’ claims. The clause at issue provides as follows:
Employee and the Company understand that by agreeing to this
Paragraph 7 [Arbitration Clause], they are giving up substantial legal
rights, i.e., the right to sue in federal and state courts, the right to have
disputes or claims heard by a jury and the right to have claims of civil
rights violations considered by local, state and! or federal investigatory
agencies.
Agreement at

¶

7(d) (emphasis added). Plaintiffs contend that this language

impermissibly prohibits them from filing a charge with the EEOC. Defendants
disagree. In Defendants’ view, the agreement limits only the employee’s right to
obtain an award of damages in proceedings before an administrative agency.
Defendants are correct that an employee can validly waive the right to
prosecute a claim before an administrative agency, including the EEOC. Every
mandatory arbitration agreement, after all, waives a judicial forum; waiving an
administrative forum is no more objectionable in principle. See Parilla, 368
F.3d at 282. Filing a charge with the EEOC to invoke its investigative powers,
however, is different. Cf Gilmer, 500 U.s. at 28 (“[a]n individual..

.

claimant

subject to an Arbitration Clause will still be free to file a charge with the EEOC,
even though the claimant is not able to institute a private judicial action.”) The

20

function of such a charge is merely “to place the EEOC on notice
that someone
•

.

.

believes that an employer has violated the [Act].” Id.’
2
In Parilla, an employment agreement provided that “[ajny controversy
or

claim arising out of or relating in any way to this Agreement, to the breach
of
this Agreement, and/or to Employee’s employment with Employer

...

shall be

resolved by arbitration and not in a court or before an administrative agency
.”
368 F.3d at 282 (emphasis in original). Parilla upheld this clause, which
did
not (and could not) limit the EEOC’s independent investigative and
enforcement functions. The Arbitration Clause at issue here is similar.
Read in
the context of the paragraph, the evident intent of the “agency” language
is
simply to emphasize that the sole forum for Plaintiffs’ claims is arbitration.
The parties’ course of conduct suggests that they understood the clause
that way. It is undisputed that EEOC charges were filed here. At no time did
Defendants argue that Plaintiffs were prohibited from filing such charges or
from assisting the EEOC in its investigation. The Arbitration Clause has not
prevented Plaintiffs from putting the EEOC on notice that they believe
discrimination has occurred, or from cooperating with an EEOC investigation.
Plaintiffs have, at best, raised an ambiguity, and I am not certain they
have done even that. But even if the Agreement were ambiguous, that would
be
a matter for interpretation by the arbitrator. See Quilloin, supra.

Filing a charge because it may be a prerequisite to the filing of a federal court
action may be the prudent course if there is any doubt as to the validity of an
arbitration agreement. See generally www. eeoc gov/ employees laws u it .cfm. All three
Plaintiffs here did so, and received right-to-sue letters from the/ EEOC.
12

—

—

21

Accordingly, this provision of the Arbitration Clause, as I read it, is not
void on grounds of public policy, and would not bar referral of this
matter to
3
arbitration.’
4. Forum Selection Clause
The forum selection clause provides that all proceedings relating to
the
Agreement, such as arbitration, “shall, to the extent permitted by law,”
be held
in Broward County, Florida. Agreement at p.7,

¶ 8(g). Ms. Cooper lives in Ohio,

and Ms. Beery in Indiana; they assert that the selection of a Florida forum
“unreasonably interferes with their ability to pursue their claims.”
4
The named Plaintiffs elected to file suit in New Jersey, many hundreds
of miles away. Concededly, New Jersey is closer than Florida to their
Midwestern homes, but neither is terribly remote. It is difficult to see why
flying
to Florida for arbitration (but not to New Jersey for litigation) would be unduly
burdensome.
The forum selection clause contains the perhaps superfluous caveat that
Florida is the appropriate forum “only to the extent permitted by law.” Legal or
prudential objections to holding an arbitration in Florida may be asserted in
arbitration. Written or oral objections to the location of the arbitration hearing
can be submitted to AAA, which will decide the issue at the outset of

The Company should consider strongly whether to redraft this language. A
claim by a plaintiff that an invalid or unclear contractual provision intimidated her
from alerting the EEOC to unlawful employment practices might present a far differe
nt
situation.
14
One named Plaintiff, Ms. Traeger, is herself a Florida resident. She does not
contend that the Florida forum selection clause interferes with her statutory rights.
13

22

arbitration. See AAA Employment Arbitration Rules 8, 10 (availa
ble at
http://www.adr.org).
For these reasons, the Court finds that the forum selection clause
contained in the Arbitration Clause does not unduly impair Plainti
ffs’ efforts to
vindicate their statutory rights under Title VII and EPA.
B. Unconscionability
Plaintiffs argue that the Arbitration Clause is unenforceable becaus
e it is
unconscionable. With limited exceptions, Florida law requires both
procedural
and substantive unconscionability to invalidate an agreement to
arbitrate. SA
PG Sun City Center, LLC v. Kennedy, 79 So.3d 916, 919 (Fla. App.
2012).
1. Procedural Unconscionability
Plaintiffs maintain that they were presented with the Employment
Agreement on a “take it or leave it” basis, and were not given a meanin
gful
opportunity to review what they now claim is a misleading document.
They
emphasize that they had already begun working at the Company when
they
were presented with the Agreement.
“As the party seeking to avoid the arbitration provision on the ground
of
unconscionability, the burden [is] on the party claiming unconscionab
ility] to
present evidence sufficient to support that claim.” Gainesville Health
Care
Center, Inc. v. Weston, 857 So. 2d 278, 288 (Fla. App. 2003). A party
to a
contract is “conclusively presumed to know and understand the conten
ts,
terms, and conditions of the contract.” Rocky Creek Ret. Prop., Inc.
v. Estate of
Fox ex rel. Bank of Am., 19 So. 3d 1105, 1108-09 (Fla. App. 2009).
23

Plaintiffs are educated professionals. The Agreement, and in particular
the Arbitration Clause, are relatively short. Plaintiffs should have had no
trouble reading and understanding the terms of the document. Although they
claim generally that the human resources representative rushed them,
Plaintiffs have presented no evidence that they were prevented from reading the
Agreement. And it is well established that, in the absence of fraud, an
individual who signs a contract is assumed to have read and understood its
terms. Morales v. Sun Constructors, Inc., 541 F.3d 218, 221-22 (3d Cir. 2008)
(applying that principle in the context of an arbitration agreement, despite the
plaintiff’s allegation that it was drafted in English and he spoke only Spanish).
Plaintiffs have presented no evidence that they were not free to negotiate
the terms of the Employment Agreement containing the Arbitration Clause;
indeed, they have presented no evidence that they even tried to do so. Plaintiffs’
unsupported belief that the Company would have insisted, or did insist, on
these terms is insufficient to require a finding that Arbitration Clause is
procedurally unconscionable.
2. Substantive Unconscionability
In addition, and in the alternative, the Agreement was not substantively
unconscionable. Here, Plaintiffs essentially repeat the arguments they made in
support of their vindication-ofrights theory. For similar reasons, I reject them.
Plaintiffs add that the Arbitration Clause is substantively unconscionable
because it lacks mutuality, contending that “all the real burdens fall on the
employee.”
24

It is well-established that there is “no such doctrine of complete
mutuality under federal law.” Becker Autoradio U.S.A., Inc. v. Becker
Autoradiowerk GmbH, 585 F.2d 39, 47 n.15 (3d Cir. 1978). To the contrar
y, a
contract, if it is supported by consideration, may confer rights and obliga
tions
on one party that it does not confer on the other. The U.S. Court of Appea
ls for
the Third Circuit has specifically affirmed that principle in the context
of
arbitration agreements. Harris v. Green Tree Fin. Corp., 183 F.3d 173,
180 (3d
Cir. 1999) (“[P]arties to an arbitration agreement need not equally bind each
other with respect to an arbitration agreement if they have provided each
other
with consideration beyond the promise to arbitrate.”). Florida courts,
too, have
ruled that a valid agreement to arbitrate does not require complete mutuality
of
rights and obligations. See Rocky Creek, 19 So. 3d at 1109 (“one party’s
agreement to submit a dispute to arbitration is sufficient consideration to
support the other party’s agreement to do the same because of the mutuality
of
obligations that the agreement creates”). In any event, the Arbitration Clause
in
this case does expressly bind both the employer and employee: “All claims
,
disputes or issues arising between Employee and the Company” are subject
to
arbitration.
Substantive unconscionability requires much more than imperfect
mutuality; it requires contract terms “so outrageously unfair as to shock the
judicial conscience. A substantively unconscionable contract is one that no
man in his senses and not under delusion would make on the one hand, and
as no honest and fair man would accept on the other.” Woebse v. Health Care
25

& Ret. Corp. of Am., 977 So. 2d 630, 632 (Fla. App. 2008) (intern
al quotations

and citations omitted). The Employment Agreement here, and
the Arbitration
Clause therein, come nowhere near that standard.
Under Florida law, this Court will not invalidate an arbitration agreem
ent
unless it is both procedurally and substantively unconscionable.
This
Arbitration Clause is neither.
C. Waiver of Arbitration
Plaintiffs argue that Defendants waived arbitration when, in respon
se to
Plaintiffs’ charges to the EEOC, they filed documents but did not
assert their
right to arbitrate. The Arbitration Clause contains an express prohib
ition on
claims being “considered” by the EEOC. Defendants’ “attack on the
merits”
before the EEOC, according to Plaintiffs, effectively constitutes an
abandonment of the Arbitration Clause and precludes them from mainta
ining
that arbitration is the exclusive forum for Plaintiffs’ claims.
Defendants counter that they were under no obligation to “proffer every
possible defense or legal argument before the EEOC.” See Bourgeois
v.
Nordstrom, Inc., 2012 WL 42917, at *9 (D.N.J. Jan 10, 2012) (quoting
Petruska
v. Gannon Univ., 462 F.3d 294, 308 (3d Cir. 2006)). Bourgeois held that
an
employer did not waive its right to arbitrate by participating in EEOC
proceedings, citing numerous federal cases in support.’ Plaintiffs note,
5

Bourgeois cited Volpe v. Jetro Holdings, WL 4916027, at *6 (E.D. Pa. Nov.
14,
2008), which in turn cited Bcirna v. Wackenhut Svcs., Civ. A. No. 07-147,
2007 WL
3146095, at *6 (N.D. Ohio Oct. 25, 2007) (finding defendant’s failure to deman
d
arbitration during EEOC proceedings did not constitute a waiver of right
to arbitrate);
15

26

however, that the arbitration agreements in those cases do not
appear to have
contained any express prohibition of administrative “consideratio
n,” like the
Arbitration Clause here. I do not find that distinction persuasive,
for several
interrelated reasons:

First, I do not accept that the Arbitration Clause flatly prohibits
any and
all EEOC proceedings. See section II.A.3, supra. Thus the incons
istency
between Defendants’ participation in EEOC proceedings and their
intent to
arbitrate is not so stark as Plaintiffs would have it.
Second, the EEOC was investigating a charge, not hearing a claim
for
damages (which concededly is consigned to arbitration). The EEOC
’s power to
investigate a charge of discrimination is unquestioned, and it cannot
be
subverted by an agreement to which EEOC is not a party. See Marie
v. Allied
Home Mortgage Corp., 402 F.3d 1, 15—16 (1st Cir. 2005) (prelim
inary EEOC
Taleb v. AutoNation USA Corp., Civ. A. No. 06—20 13, 2006 WL 37169
22, at *6_7(D.
Ariz. Nov. 13, 2006) (rejecting claim that defendant employer’s partici
pation in
administrative proceedings constituted waiver of right to arbitrate);
Santos v. GE
Capital, 397 F.Supp.2d 350, 356 (D. Conn. 2005) (declining to find emplo
yer’s
participation in EEOC arbitration to be a waiver of right to arbitrate);
Gonzalez v. GE
Group Admrs., Inc., 321 F.Supp.2d 165, 17 1—72 (D. Mass. 2004) (findin
g that
defendant employers’ participation in administrative proceedings before
the EEOC and
local agency, accompanied by their failure to seek to compel arbitration,
did not
constitute a waiver of their right to arbitration); Hankee v. Menard, Inc.,
2002 WL
32357167, at *4 (“an employer may participate in EEOC proceedings
without losing its
rights under the arbitration agreement.”); Medina v. Hispanic Broad.
Corp., Civ. A. No.
0 1—2278, 2002 WL 389628, at *5_6 (N.D. Ill.Mar.12, 2002) (rejecting argum
ent that
defendant waived its right to enforce the arbitration agreement by not
asserting this
right during the EEOC’s investigation or during a settlement confer
ence at the Illinois
Human Resource Commission, where defendant filed its motion to compe
l arbitration
two months after receiving service of process); Roberson v. Clear Chann
el Broad., Inc.,
144 F.Supp.2d 1371, 1375 (S.D. Fla. 2001) (declining to fmd waiver
where defendant
did not make a demand for arbitration during EEOC proceedings).

27

investigation “cannot be halted by an arbitratio
n agreement between the
complaining employee and her employer”) (citin
g EEOC v. Waffle House, Inc.,
534 U.S. 279 (2002)). Marie concluded that failin
g to initiate arbitration during
an EEOC investigation was not a waiver of the right
to arbitrate, because
forcing parallel proceedings would be contrary
to the purposes of the Federal
Arbitration Act. It also follows that Defendants here
did not “waive” anything by
failing, for example, to plead an arbitration defe
nse as a bar to the EEOC
investigation; no such defense existed.
Third, an employer is required to, and should, coop
erate with an EEOC
investigation; to discourage such cooperation wou
ld be bad policy. And had
Defendants failed to cooperate or respond, surely Plain
tiffs would be arguing
that this was a cover-up or a sign of bad faith.
This federal court action was the first proceeding pote
ntially repugnant
to the Arbitration Clause. In this action, Defendants invo
ked the Arbitration
Clause in their first substantive pleading. That was suffi
cient; Defendants have
not waived their right to arbitrate.
D. Severability
The upshot of all the foregoing is that none of Plaintiffs’
challenges to the
Arbitration Clause would bar this Court from giving
it effect, with one possible
exception: I have found the 90-day limitations period
and the pre-claim
“discussion” procedure to be invalid because they undu
ly burden Plaintiffs’
vindication of their federal statutory rights. The ques
tion remains whether the
28

invalid portion of the Arbitration Clause may be severed, or whethe
r it requires
that the entire clause be stricken.
Arbitration is a creature of contract, and a federal court constru
ing the
effect of an arbitration agreement must look first to the contrac
t law of the
relevant state. Florida courts have held that if an essential term
of a contract is
deemed illegal, it renders the contract unenforceable. On the
other hand, “a
bilateral contract is severable where the illegal portion of the
contract does not
go to its essence, and where, with the illegal portion eliminated,
there still
remains of the contract valid legal promises on one side which are
wholly
supported by valid legal promises on the other.” Local No. 234. Henley
&
Beckwith, Inc., 66 So.2d 818, 821-22 (Fla. 1953). Therefore, “the
make-orbreak task before us is to decide whether the stricken portion of
the
employment arbitration agreement constitutes ‘an essential part
of the agreed
exchange’ of promises.” Spinetti, 324 F.3d at 214.
Both the “liberal federal policy favoring arbitration agreements,” Gilme
r
500 U.S. at 24, and applicable precedents dealing with similar severa
nce issues
point toward severance if it can be done without compromising
the essence of
the agreement. Compare Spinetti, 324 F.3d at 214 (refusing to invalid
ate an
entire arbitration agreement in which only two provisions were substan
tively
unconscionable, stating that “[you don’t cut down the trunk of
a tree because
some of its branches are sickly”) with Alexander, 341 F.3d at 271
(striking
entire agreement because the majority of its terms were uncons
cionable and
stating that “[t]he cumulative effect of so much illegality prevents
us from
29

enforcing the Arbitration Clause. Because the sickness has infected
the trunk,
we must cut down the entire tree.”).
Here, the essence of the disputed agreement is that the parties will
settle
employment disputes through fair and mutually binding arbitration.
The
applicable AAA procedures and the majority of the provisions in the Arbitra
tion
Clause are reasonably calculated to that end. The pre-claim procedure
and
limitations period (which Defendants do not seem to have invoked
in any event)
can be severed without disturbing the central goals of the Agreement
or the
parties’ mutual obligations to arbitrate. Severing the invalid provision
simply
gives the employee sufficient time to formulate a claim. In short, only
one
provision of the Arbitration Clause is unenforceable: the one setting forth
the
pre-claim discussion procedure and imposing a 90-day limitations period
. I will
sever that provision and enforce the remainder of the Arbitration Clause
.
CONCLUSION
For the reasons set forth above, Defendants’ Motion to Compel
Arbitration of the claims asserted by named Plaintiffs Beery, Traeger,
and
Cooper is granted. Ms. Beery’s, Ms. Traeger’s, and Ms. Cooper’s claims
are
dismissed in favor of arbitration before the American Arbitration Associ
ation in
Broward County, Florida, or such other location as may be fixed the
AAA or by
the parties’ consent. Whether the claims in arbitration are to proceed
on an
individual or a class basis may also be decided in the arbitration.
Finally, the parties are directed to submit letter briefs not to exceed five
pages setting forth their positions on whether this Court retains jurisdiction
30

over the proposed Equal Pay Act collective action given that certain
individuals
filed consent to join forms before conditional certification was granted
and
court-approved notice was sent to employees.
An appropriate order will be filed.

K INMCNULTY
United States District Judge
Date: June 14, 2013

31