DILLARD v. DOLGEN CORP. LLC et al

Filing 20

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 11/09/2017, that Defendant's Motion to Compel Arbitration [Doc. # 8 , # 12 ] be granted, and that this case be administratively closed, but any party may file a motion to reopen the matter if appropriate at the conclusion of the arbitration, without payment of filing fees. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEMETRIUS D. DILLARD, SR.,
Plaintiff,
v.
DOLGEN CORP. LLC., et al.,
Defendants.

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1:17CV112

MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Motions to Compel Arbitration and Dismiss
or, in the alternative, to Stay Proceedings Pending Arbitration [Doc. #8, #12], filed by
Defendants Shannon Richardson and Dolgencorp, LLC (“Dollar General”). 1
In this case, Plaintiff Demetrius Dillard Sr., proceeding pro se, brings claims alleging
discrimination, harassment, and retaliation in violation of the Age Discrimination in
Employment Act of 1967, as amended (ADEA), arising out of his prior employment at Dollar
General. In the present Motions, Defendants contend that Plaintiff’s claims are subject to
arbitration pursuant to the terms of the Dollar General Employee Arbitration Agreement
(“Arbitration Agreement”) that exists between Plaintiff and Defendant Dollar General.
For the reasons that follow, the Court will recommend that Defendants’ Motions to
Compel Arbitration be granted.

Defendant Dolgencorp’s instant Motion asserts that Plaintiff improperly identified Defendant as Dolgen Corp
LLC, and that the corporate entity is Dolgencorp, LLC. (See Def.’s Mot. to Compel Arbitration [Doc. #12] at
1). This Memorandum Opinion will refer to the corporate entity as “Dollar General” and collectively with
Defendant Shannon Richardson as “Defendants.”
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I.

FACTS, CLAIMS, AND PROCEDURAL HISTORY
In the Complaint, Plaintiff alleges that he was hired on October 12, 2015 to work at a

Dollar General Store located at 3109 Yanceyville Street in Greensboro, NC, but that he waited
six weeks to be scheduled to work and then requested transfer to another location. On
December 9, 2015, he was transferred to the nearby Dollar General Store located at 4017
Yanceyville Street and began working approximately 20 hours per week. He alleges that
beginning February 1, 2016, a new manager began harassing him and making discriminating
statements about his age. Plaintiff alleges that he complained to the store manager, Defendant
Richardson, but it appeared that nothing was done. Plaintiff alleges that after he continued to
complain, his schedule was reduced in retaliation and he was ultimately forced to resign.
In connection with the instant Motions to Compel Arbitration, Defendants provided
the Declaration of Lynne Pool, Supervisor of Dollar General’s Human Resources Shared
Services Department [Doc. #9-1]. Ms. Pool avers that Plaintiff accepted the Dollar General
Employee Arbitration Agreement on October 12, 2015, as part of Plaintiff’s new hire
documents. (Id.) Ms. Pool explains that Dollar General uses an “Express Hiring system” that
requires candidates to log in to the system using a unique identification number and password.
(Id.) Ms. Pool further notes that once logged into the system, candidates are presented with
new hire documents, including the Arbitration Agreement, and candidates have the option to
electronically agree to the Arbitration Agreement or opt out of the Agreement. (Id.)
Candidates are also advised that a failure to take action within 30 days is construed as the
candidate’s acceptance of the Arbitration Agreement. (Id.) Ms. Pool states that company
records indicate that Plaintiff used his unique login information to access the Arbitration
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Agreement on October 12, 2015, that he agreed to the Arbitration Agreement, and that he
affixed his electronic signature thereto. (Id.) Ms. Pool further indicates that Plaintiff took no
further action within the 30 day period provided to opt out of the Arbitration Agreement. (Id.)
Consistent with those statements, attached to Ms. Pool’s declaration is a document
entitled “Dollar General Employee Arbitration Agreement,” dated October 12, 2015, which
reflects Plaintiff’s name, the last four digits of Plaintiff’s social security number, and Plaintiff’s
initials certifying the contents of the document. (See Decl. of L. Pool, Ex. A [Doc. #9-2].)
That document provides, in part:
Dollar General … has a process for resolving employment related legal disputes
with employees that involves binding arbitration. This Dollar General
Employee Arbitration Agreement (“Agreement”) describes that process and
constitutes a mutually binding agreement between you and Dollar General,
subject to opt out rights described at the end of this Agreement.
You agree that, with the exception of certain excluded claims described below,
any legal claims or disputes that you may have against Dollar General, its parent
and subsidiary corporations, employees, officers and directors arising out of
your employment with Dollar General or termination of employment with
Dollar General (“Covered Claim” or “Covered Claims”) will be addressed in
the manner described in this Agreement. You also understand that any Covered
Claims that Dollar General may have against you related to your employment
will be addressed in the manner described in this Agreement.
....
The procedures in this Agreement will be the exclusive means of resolving
Covered Claims relating to or arising out of your employment or termination of
employment with Dollar General, whether brought by you or Dollar General.
This includes, but is not limited to, claims alleging violations of wage and hour
laws, state and federal laws prohibiting discrimination, harassment and
retaliation, claims for defamation or violation of confidentiality obligations,
claims for wrongful termination, tort claims, and claims alleging violation of any
other state or federal laws, except claims that are prohibited by law from being
decided in arbitration, and those claims specifically excluded in the paragraph
below.

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(Id.) 2 The Arbitration Agreement also contains a provision stating that arbitration “will be
conducted in accordance with the terms set forth in [the] Agreement and the Employment
Arbitration Rules of AAA (the “Rules”), except as superseded by the terms of this
Agreement.” (Id.)
Plaintiff does not dispute that he agreed to the terms of the Arbitration Agreement.
Plaintiff also does not contend that his ADEA claims fall outside the scope of the Arbitration
Agreement. 3 Rather, Plaintiff contends that the Arbitration Agreement “should be voided”
because he did not begin working for Defendant in October 2015 when he signed the
Arbitration Agreement. (Pl.’s Response [Doc. #15] at 2.) 4 Plaintiff alleges that the Defendants
misled him as to the Dollar General location where he would work, that Defendants instead
transferred Plaintiff to a store other than the one to which he applied, that Plaintiff did not
begin working for two months after he signed the Arbitration Agreement, and that these issues
should render the Dollar General Employee Arbitration Agreement invalid. (Id.)

The Arbitration Agreement excludes from its coverage “claims for unemployment insurance benefits, workers’
compensation benefits … whistleblower claims under the Sarbanes-Oxley Act, and claims for benefits under
the Employee Retirement Income Security Act. Covered claims also do not include claims pending in court as
of the date this Agreement is signed by you, and claims concerning the scope or enforceability of this
Agreement.”
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See also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (concluding that Congress did not
intend to preclude arbitration of ADEA claims).
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Plaintiff also notes in his Response that this Court previously dismissed an earlier Complaint filed by Plaintiff
in 1:16CV545, without prejudice to Plaintiff refiling after he exhausted his administrative remedies with the
EEOC. Plaintiff points out that Defendants did not object to the Court permitting Plaintiff to refile his claim.
(See Pl.’s Response [Doc. #15] at 2.) However, in that earlier case, the Recommendation was entered before
Defendants were served. Thus, Defendants were not required to file objections to the Court’s
Recommendation, and their failure to do so did not function as a waiver of their right to move for arbitration
in the present action. Moreover, the requirement that Plaintiff exhaust his administrative remedies is not
inconsistent with Defendants’ request to submit the dispute to arbitration, and the Arbitration Agreement itself
requires exhaustion of administrative remedies by filing with the EEOC and obtaining a notice of right to sue
before a demand for arbitration is made.
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II.

DISCUSSION
In the present motion, Defendants move to compel arbitration pursuant to the Federal

Arbitration Act (“FAA”). Pursuant to the FAA, written arbitration agreements in a contract
involving commerce are “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. “By its terms, the [FAA]
leaves no place for the exercise of discretion by a district court; instead it 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).
“However, a party cannot be required to arbitrate a dispute that it has not agreed to submit to
arbitration.” Fastener Corp. of Am. v. Asheboro Elastics Corp., No. 1:12-CV-1296, 2013 WL
3227665, at *2 (M.D.N.C. June 25, 2013) (citing AT & T Techs., Inc. v. Commc’ns Workers
of Am., 475 U.S. 643, 648 (1986)).
The Court will compel arbitration under the FAA if “(1) the parties have entered into
a valid agreement to arbitrate, and (ii) the dispute falls within the scope of the arbitration
agreement.” Chorley Enterprises, Inc. v. Dickey’s Barbecue Restaurants, Inc., 807 F.3d 553,
563 (4th 2015) (citing Muriithi v. Shuttle Express, Inc., 712 F.3d 173, 179 (4th Cir. 2013)). The
Court applies state law principles governing contract formation in determining whether the
parties agreed to arbitrate. Hightower v. GMRI, Inc., 272 F.3d 239, 242 (4th Cir. 2001). “A
valid contract requires offer, acceptance, consideration, and no defenses to formation.” Collie
v. Wehr Dissolution Corp., 345 F. Supp. 2d 555, 558 (M.D.N.C. 2004) (internal quotation
omitted). It is essential to formation that there be mutual assent of both parties to the terms
of an agreement. Id.
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Here, Plaintiff does not dispute the existence of the Arbitration Agreement. Plaintiff
affirmatively opted into the terms of the Arbitration Agreement in October 2015, thus
agreeing to arbitrate “[c]overed [c]laims relating to or arising out of [his] employment or
termination of employment with Dollar General.” The fact that Plaintiff was transferred to a
different store location and did not begin to physically work until December 2015 does not
alter the parties’ agreement to arbitrate. The terms of the Arbitration Agreement also
permitted Plaintiff to opt out. The Arbitration Agreement made clear that Plaintiff otherwise
would be bound by the terms of the Arbitration Agreement if he did not expressly opt out in
the manner prescribed “within 30 days of starting his employment.” [Doc. #9-2 at 2.] Plaintiff
does not contend that he opted out of the Arbitration Agreement. Instead, the Arbitration
Agreement itself reflects that Plaintiff expressly agreed to the Arbitration Agreement and
attached his electronic signature. Thus, Plaintiff agreed to the terms of the Arbitration
Agreement, whether the Court construes Plaintiff’s “start of employment” as his hire date in
October 2015 or the date he began physically working in December 2015.
In addition, Dollar General agreed to be bound by the same terms in the Arbitration
Agreement. In North Carolina, an exchange of mutual promises to be bound by the terms of
an Arbitration Agreement is sufficient consideration for an agreement to arbitrate. Johnson v.
Circuit City Stores, 148 F.3d 373, 377 (4th Cir. 1998). The acknowledged Arbitration
Agreement clearly satisfies the requisite offer, acceptance, and consideration to form a contract
under North Carolina contract law. Thus, there exists between the parties an agreement to
arbitrate covered claims.

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In addition, Plaintiff does not dispute that the claims asserted in this case are within
the scope of the Arbitration Agreement. As noted above, the Arbitration Agreement covers
any legal claims or disputes against Dollar General and its employees “arising out of your
employment with Dollar General or termination of employment with Dollar General,”
including “claims alleging violations of . . . federal laws prohibiting discrimination, harassment
and retaliation.” Thus, there is no question that the claims in this case are within the scope of
the Arbitration Agreement. 5
The Court therefore concludes that all of the claims asserted in this case are subject to
arbitration pursuant to the Arbitration Agreement, and no matters remain for further
adjudication by the Court. The Court will therefore recommend that the Motion to Compel
Arbitration be granted, and that this case be administratively closed while the matter proceeds
to arbitration, but either party may file a motion to reopen the matter if appropriate at the
conclusion of the arbitration, without payment of filing fees.
III.

CONCLUSION
IT IS THEREFORE RECOMMENDED that Defendant’s Motion to Compel

Arbitration [Doc. #8, #12] be granted, and that this case be administratively closed, but any

In his Complaint, Plaintiff also alleges that Defendants violated various company policies. Specifically,
Defendant alleges that “Dollar General violated their Ethical Standards, Open Door Policy, Non-Retaliation
Policy, Anti-Discrimination and Harassment Policy, and Workplace Violence Policy.” (Complaint [Doc. #2] at
3). Plaintiff’s Complaint does not make clear, however, what cause of action he asserts based on the alleged
violations of company policy. As discussed herein, the ambit of the Arbitration Agreement is broad. To the
extent Plaintiff asserts other claims that arise from the employment relationship, those claims fall squarely
within the ambit of the Arbitration Agreement and are also subject to arbitration.

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party may file a motion to reopen the matter if appropriate at the conclusion of the arbitration,
without payment of filing fees.
This, the 9th day of November, 2017.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

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