HARVEY v. DARDEN RESTAURANT, INC.
Filing
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MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 03/31/2015. In light of the written agreement between the Parties, the Court should compel arbitration. However, a stay of th is matter, rather than dismissal, is appropriate. RECOMMENDED that Defendant's Motion to Dismiss Plaintiff's Amended Complaint and Compel Arbitration [Doc. # 16 ] should be granted to the extent that the Court should compel the Pa rties to arbitration but should stay, rather than dismiss, this action. FURTHER RECOMMENDED that this case be administratively closed, and that either party may file a motion to reopen the matter if appropriate, without payment of filing fees.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KEOSHA HARVEY,
Plaintiff,
v.
DARDEN RESTAURANT, INC., d/b/a
RED LOBSTER,
Defendant.
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1:14CV258
MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendant Darden Restaurant, Inc.’s Motion
to Dismiss Plaintiff’s Amended Complaint and Compel Arbitration [Doc. #16].1 For the
reasons that follow, the Court should grant the instant motion to the extent that the Court
should compel arbitration, but should stay this action pending arbitration rather than dismiss
it.2
1
Defendant’s instant Motion asserts that “Plaintiff misidentified the name of the corporate defendant in her
Complaint. The correct corporate entity is GMRI, Inc., d/b/a Red Lobster, not ‘Darden Restaurant, Inc.
d/b/a Red Lobster.’” (See Def.’s Mot. to Compel Arbitration [Doc. #16] at 1 n.1.) This Memorandum
Opinion will refer to the corporate entity as “Defendant.”
2
In its Memorandum in Support of the instant Motion, Defendant “asks the Court to compel Plaintiff to
arbitration, and to dismiss this action with prejudice, or, in the alternative to stay this action pending
completion of arbitration.” (See Def.’s Mem. Supp. Mot. to Compel Arbitration [Doc. #17] at 2.)
I.
Facts, Claims, and Procedural History
Plaintiff, proceeding pro se, filed her Complaint [Doc. #2] and her Amended
Complaint [Doc. #14], contending that Defendant discriminated against and ultimately
terminated her because of her disability in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101 et seq.3 Defendant subsequently filed its instant Motion
contending that Plaintiff is bound by a valid and enforceable written agreement requiring her
to arbitrate her claims such that this Court should dismiss this action and compel arbitration.
(See Def.’s Mot. Compel Arbitration [Doc. #16] ¶ 4.) Plaintiff responded [Doc. #19] and
Defendant replied [Doc. #20].
II.
Discussion
The Federal Arbitration Act “mandates that district courts shall direct the parties to
proceed to arbitration on issues as to which an arbitration agreement has been signed.”
Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). A litigant can compel
arbitration pursuant to the Federal Arbitration Act if he can establish:
“(1) the existence of a dispute between the parties, (2) a written agreement that
includes an arbitration provision which purports to cover the dispute, (3) the
relationship of the transaction, which is evidenced by the agreement, to
interstate or foreign commerce, and (4) the failure, neglect or refusal of [a
party] to arbitrate the dispute.”
3
Plaintiff’s Amended Complaint alleges that she filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) on July 1, 2013 and received her Notice of Right to Sue from the EEOC on January
7, 2014 (see Am. Comp. [Doc. #14], ¶¶ 33, 35), and Plaintiff attached a copy of her EEOC Notice to her
original Complaint [Doc. #2-1].
2
Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th Cir. 2002) (quoting Whiteside v.
Teltech Corp., 940 F.2d 99, 102 (4th Cir. 1991)). In determining whether a party agreed to
arbitration, “the court should apply ‘ordinary state-law principles that govern the formation
of contracts.’” Johnson v. Circuit City Stores, 148 F.3d 373, 377 (4th Cir. 1998) (quoting
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).
“‘In the context of motions to compel arbitration brought under the Federal
Arbitration Act . . . courts apply a standard similar to that applicable to a motion for
summary judgment.’” Minter v. Freeway Food, Inc., No. 1:03CV00882, 2004 WL 735047, at
*2 (M.D.N.C. Apr. 2, 2004) (unpublished) (quoting Bensadoun v. Jobe-Riat, 316 F.3d 171,
175 (2d Cir. 2003)); see also 9 U.S.C. § 4 (“[U]pon being satisfied that the making of the
agreement for arbitration or the failure to comply therewith is not in issue, the court shall
make an order directing the parties to proceed to arbitration in accordance with the terms of
the agreement.”).
In connection with its instant Motion, Defendant has provided the Declaration of
Melissa Ingalsbe, Director of Defendant’s Dispute Resolution Process Department. [Doc.
#16-1.] Ms. Ingalsbe avers that, as part of the hiring process, Defendant would have
provided Plaintiff with a copy of its Dispute Resolution Process (“DRP”) booklet. (Id., ¶ 5.)
Moreover, Ms. Ingalsbe states that, “[o]n July 2, 2011, an acknowledgement of the DRP was
executed, bearing the signature of [Plaintiff], which confirmed receipt, review and
understanding of the DRP booklet.” (Id., ¶ 6.)
3
Consistent with those statements, attached to Ms. Ingalsbe’s declaration is a
document entitled “Dispute Resolution Process Acknowledgement,” dated July 2, 2011,
which reflects Plaintiff’s signature. (See Decl. of M. Inglasbe, Ex. 1 [Doc. #16-1 at 4-5].)
That document provides:
I have received and reviewed the [DRP] booklet. This booklet contains the
requirements, obligations, procedures and benefits of the DRP. I have read
this information and understand and agree to the terms and conditions of the
DRP. I agree as a condition of my employment, to submit any eligible
disputes I may have to the company’s DRP and to abide by the provisions
outlined in the DRP. I understand that this includes, for example, claims
under state and federal laws relating to harassment or discrimination, as well as
other employment-related claims as defined by the DRP. Finally, I understand
that the company is equally bound to all of the provisions of the DRP.
(Id.)
Also attached to Ms. Ingalsbe’s declaration is a copy of Defendant’s DRP booklet.
(See Dec. of M. Ingalsbe, Ex. 2 [Doc. #16-1 at 7-20].) The DRP booklet describes a fourstep dispute resolution process: (1) “Open Door”; (2) “Peer Review”; (3) “Mediation”; and
(4) “Arbitration.” The DRP booklet further provides:
The DRP is the sole means for resolving covered employment-related
disputes, instead of court actions. 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 action for these disputes.
(Id. at 10 (capitalization in original).)
4
Plaintiff disputes neither receiving Defendant’s DRP booklet nor signing the DRP
Acknowledgement. Nor does Plaintiff contend that her ADA claims fall outside the scope
of the DRP, or that ADA claims, generally, may not be subject to compulsory arbitration.
Indeed, the DPR booklet is explicit in its coverage of discrimination claims, and the ADA
itself encourages alternative methods of dispute resolution, including arbitration. See 42
U.S.C. § 12212 (“Where appropriate and to the extent authorized by law, the use of
alternative means of dispute resolution, including settlement negotiations, conciliation,
facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve
disputes arising under this chapter.”).
Rather, Plaintiff contends that she was “only allowed to participate in the first step of
[Defendant’s DRP], but was denied the second and third steps” and thus never reached the
fourth step of arbitration. (See Pl.’s Mem. Resp. [Doc. #19] at 1.) Plaintiff points to
language in the DRP booklet that “[w]ithin fourteen (14) days after the receipt of the
completed DRP submission form by the DRP department, the party submitting the claim to
DRP will be notified whether the claim is eligible for resolution under the DRP.” According
to Plaintiff, her managers “never offered, but in fact denied any submission forms to the
Plaintiff in the many disputes between [] Plaintiff and [her] Mangers [sic].” (Pl.’s Mem.
[Doc. #19] at 1.) Thus, Plaintiff argues, she “cannot submit anything to [a]rbitration when it
was never offered by Defendant’s Mangers [sic] in the first place.” (Id. at 2.)
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Plaintiff’s contentions do not alter her agreement to present her claims to arbitration.
As Defendant notes, the DRP requires no special form to request arbitration. Rather, the
DRP booklet requires only an “in writing” notice “describ[ing] all claims being submitted to
arbitration, the facts upon which the claims are based, and the relief or remedy requested.”
(Decl. of M. Ingalsbe, Ex. 2 [Doc. #16-1 at 13].) Whether Defendant took actions delaying
or preventing Plaintiff from complying with the dispute resolutions procedures are questions
more appropriately reserved for the arbitrator. See, e.g., Howsam v. Dean Witter Reynolds,
Inc., 537 U.S. 79, 84 (2002) (“Thus, ‘procedural’ questions which grow out of the dispute
and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to
decide. So, too, the presumption is that the arbitrator should decide allegations of waiver,
delay, or a like defense to arbitrability.” (internal quotation marks and citations omitted));
PTA-FLA, Inc. v. ZTE USA, Inc., No. 3:11-cv-1605, 2011 WL 4549280, at *5 (D.S.C. Oct.
3, 2011) (“[T]he court concludes that any argument that Defendant failed to satisfy a
condition precedent to arbitration by failing to participate in pre-arbitration proceedings in
good faith is a matter for resolution by the arbitration panel.”). Thus, Plaintiff’s contentions
would not, on their own, relieve Plaintiff of her prior commitment to present her dispute to
the arbitrator in the first instance.
Accordingly, there being no dispute regarding the
existence of a valid arbitration agreement or that Plaintiff’s claims fall within its scope, the
Court should compel the Parties to arbitration.4
4
The Court notes that in this case, Defendant has not raised any procedural bars to Plaintiff’s ability to
6
The Federal Arbitration Act requires a court, upon application of one of the parties,
to “stay the trial of the action until such arbitration has been had in accordance with the
terms of the agreement.” 9 U.S.C. § 3. The stay is mandatory. See Adkins v. Labor Ready,
Inc., 303 F.3d 496, 500 (4th Cir. 2002); see also Hooters of Am., Inc. v. Phillips, 173 F.3d
933, 937 (4th Cir. 1999) (“When a valid agreement to arbitrate exists between the parties and
covers the matter in dispute, the FAA commands the federal courts to stay any ongoing
judicial proceedings . . . and to compel arbitration . . . .”).
The Fourth Circuit has noted that in some circumstances, “dismissal is a proper
remedy when all of the issues presented in a lawsuit are arbitrable,” Choice Hotels Int’l, Inc.
v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir. 2001). However, the FAA
itself requires only a stay, and the Fourth Circuit has further noted that “dismissal is not
appropriate where . . . the issues are not all subject to arbitration.” Aggarao v. MOL Ship
Mgmt. Co., Ltd., 675 F.3d 355, 376 n.18 (4th Cir. 2012); see also Bayer Cropscience AG v.
Dow Agrosciences LLC, No. 2:12cv47, 2012 WL 2878495, at *8 (E.D. Va. July 13, 2012)
(unpublished) (noting that “an arbitration agreement does not divest the court of jurisdiction
to hear a matter.”).
Given the clear statutory authority providing for a stay pending
arbitrate her claims. In its Reply Brief, Defense counsel notes that she contacted Plaintiff to explain that no
particular form was required for Plaintiff to exercise her rights under the arbitration provision, and offered to
send Plaintiff a “Submission to Dispute Resolution” form, which Plaintiff could use to exercise her rights
under the arbitration provision. The Court therefore notes that if Plaintiff chooses to proceed with her
claims, she should submit a request for arbitration in writing, either on her own or on the form supplied by
Defendant, in accordance with the instructions in the DRP.
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arbitration, as well as the possible procedural issues that have been raised, and Plaintiff’s pro
se status, the Court concludes that staying this action pending arbitration would be the more
prudent course of action and would provide for greater efficiency should further disputes
arise that require the Court’s attention. See Blount v. Northup Grumman Info. Tech.
Overseas, Inc., No. 1:14cv919, 2014 WL 5149704, at *5 (E.D. Va. Oct. 14, 2014) (electing to
stay action pending arbitration); Green v. Zachry Indus., Inc., 36 F. Supp. 3d 669, 678 (W.D.
Va. 2014) (staying case pending arbitration “pursuant to the express requirement of the
Federal Arbitration Act.”); Christian v. Travel Centers of America, LLC, No. 4:13-3301,
2014 WL 3687420 (D.S.C. July 23, 2014) (noting that courts have held that a stay is
appropriate when procedural issues may be raised in arbitration and “the plaintiff would
otherwise be left without a forum”). Therefore, the Court will recommend that this action
be stayed pending arbitration proceedings.
III.
Conclusion
In light of the written agreement between the Parties, the Court should compel
arbitration. However, a stay of this matter, rather than dismissal, is appropriate.
IT IS THEREFORE RECOMMENDED that Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint and Compel Arbitration [Doc. #16] should be granted to the
extent that the Court should compel the Parties to arbitration but should stay, rather than
dismiss, this action.
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IT IS FURTHER RECOMMENDED that this case be administratively closed, and
that either party may file a motion to reopen the matter if appropriate, without payment of
filing fees.
This, the 31st day of March, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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