Amos v. Lincoln Property Company

Filing 41

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 6/19/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
NATALIE AMOS, on behalf of herself and
all others similarly situated,

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Plaintiff,
v.

LINCOLN PROPERTY COMPANY,
Defendant.

Civil No. 3:17-cv-37
Judge Aleta A. Trauger

MEMORANDUM
The defendant has filed a Motion to Compel Arbitration and Stay Proceedings (Docket
No. 19), to which the plaintiff has filed a Response in Opposition (Docket No. 22), and the
defendant has filed a Reply (Docket No. 27). With leave of the court, the plaintiff has also filed
a Sur-Reply in Opposition to the Motion (Docket No. 33), and the defendant has filed a
Response to the Sur-Reply (Docket No. 37). For the reasons stated herein, the motion will be
denied.
PROCEDURAL & FACTUAL BACKGROUND
Lincoln Property Company (“Lincoln”) is a Texas corporation that manages residential
properties nationwide, including the Gale Lofts apartment complex in Nashville, Tennessee.
(Docket No. 1 ¶¶ 5–6; Docket No. 20, p. 1.) The plaintiff, Natalie Amos, was employed as a
leasing agent – and, later, business manager – at the Gale Lofts complex from January of 2015 to
November of 2016. 1 (Docket No. 1 ¶ 8; Docket No. 21 (Decl. L. Fetzer) ¶ 4.) On January 10,

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In the pending motion, Lincoln contends that it is not the proper party to this case,
because the plaintiff was employed by its affiliate, Lincoln Apartment Management Limited
Partnership. (Docket No. 20, p. 1 n.1.) This affiliate – which appears to be represented by the
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2017, Ms. Amos filed this action pursuant to § 216(b) of the Fair Labor Standards Act (“FLSA”)
on behalf of herself and “[a]ll Business Managers currently or formerly employed by [Lincoln] at
any time since January 10, 2014, who did not direct the work of two or more full-time employees
or the equivalent in at least one workweek.” (Docket No. 1 ¶ 16.) Ms. Amos alleges that
Lincoln violated the FLSA when it misclassified its business managers as exempt from the
FLSA’s overtime provisions to avoid paying them an overtime rate for hours worked over 40 in a
workweek. (Id. ¶¶ 8–15.) Lincoln now seeks an order compelling arbitration of Ms. Amos’s
claims on the grounds that Ms. Amos agreed “to resolve any claim relating to her employment
through final and binding arbitration rather than through the courts.” (Docket No. 19.)
I.

The Motion to Compel Arbitration and Stay Proceedings
On May 5, 2017, Lincoln filed the pending motion (Docket No. 19), accompanied by a

Memorandum in Support (Docket No. 20) and the Declaration of Lynn Fetzer, the company’s
Southeast Region Payroll and Benefits Manager (the “Fetzer Declaration”) (Docket No. 21).
Attached to the Fetzer Declaration is a copy of Lincoln’s Employee Handbook, which states in
bolded text on its first page:
This Employee Handbook . . . contain[s] a binding Arbitration Agreement
between you and Lincoln. Please review the Arbitration Policy carefully and
understand that your execution of the Employee Handbook Acknowledgement
and Agreement to Arbitrate or, simply, your continued employment with Lincoln
will acknowledge and confirm your agreement to binding arbitration as set forth
in the Arbitration Policy.
(Docket No. 21 (Ex. 1), p. 1.) The entire arbitration policy is set forth at the end of the

same counsel as Lincoln – has filed an Answer to the plaintiff’s complaint “with the expectation
that [the plaintiff] will file a motion to amend pursuant to Federal Rule of Civil Procedure 15” to
name the proper defendant. (Docket No. 8, p. 1.) The plaintiff has not filed such a motion,
however, and the court does not find resolution of this issue necessary to its consideration of the
pending motion.
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Employee Handbook and includes a provision stating that “[n]either [Lincoln] nor [its
employees] will pursue any claim against the other as a member or representative of a class.”
(Id. at pp. 43–46). The Employee Handbook also includes a form titled “Employee Handbook
Acknowledgment and Agreement to Arbitrate,” which the employee is directed to sign in
acknowledgment of her receipt of the Employee Handbook and agreement to arbitrate all claims
relating to her employment. (Id. at pp. 3–4.) The text further directs that the original copy of the
form is “to be placed in [the] Employee’s Personnel File.” (Id.)
According to Ms. Fetzer, “[a]t or near the time she joined Lincoln Apartment
Management, Ms. Amos was provided with Lincoln’s Employ[ee] Handbook,” and “[s]he was
reminded that she needed to sign an [Employee] Handbook Acknowledgement, but she never
did.” (Docket No. 21 ¶ 4.) The Fetzer Declaration does not, however, provide any basis for
Ms. Fetzer’s purported knowledge of Ms. Amos’s receipt of the Employee Handbook, nor does it
attach any documentation demonstrating that Ms. Amos was provided with the Employee
Handbook or reminded to sign an acknowledgment form. Ms. Fetzer further contends that
Ms. Amos was familiar with the terms of the arbitration policy because one of Ms. Amos’s
duties as a business manager was to “onboard” new employees, which required her to “deliver
the Handbook, explain the policies contained therein (including the Arbitration Policy), and
collect signed acknowledgements.” (Id. ¶ 5.) Moreover, Ms. Fetzer states, Ms. Amos was
required to review updates to company policies and “new hire” documents – both of which
include the arbitration agreement – in her capacity as a business manager. (Id. ¶ 6.) Finally,
Ms. Fetzer notes that Ms. Amos attended training sessions – including a course titled “Tennessee
Payroll 101” – in which Lincoln’s arbitration policy was reviewed and discussed. (Id.)
Based on the Fetzer Declaration, Lincoln argues that Ms. Amos “not only obtained direct

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knowledge of the Arbitration Policy at or near the time she was hired, [but] she [also]
independently knew of the policy in her capacity as Business Manager at Gale Lofts.” (Docket
No. 20, p. 3.) With knowledge of the arbitration policy – and that her continued employment
with Lincoln would acknowledge and confirm her agreement to arbitrate – Ms. Amos remained
with the company. (Id. at pp. 6–7.) According to Lincoln, this decision to continue her
employment “constituted [Ms. Amos’s] assent to the terms of the arbitration agreement,”
consistent with the terms of the arbitration policy and Tennessee law “recogniz[ing] the validity
of unilateral contracts, in which acceptance is indicated by action under the contract.” (Id.
(quoting Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967, 978 (6th Cir. 2007)).)
Accordingly, Lincoln requests that the court compel arbitration of Ms. Amos’s claims and
dismiss this case or, in the alternative, stay it pending resolution of the arbitration. (Id. at p. 9.) 2
II.

Ms. Amos’s Response in Opposition
On May 19, 2017, Ms. Amos filed a Response in Opposition to the pending motion, in

which she argues that Lincoln never effectively communicated that there was a written
arbitration policy that applied to her or informed her that her acceptance of that agreement was a
condition of her continued employment. (Docket No. 22, pp. 5–10.) Ms. Amos argues,
therefore, that, under Tennessee law, Lincoln did not make a legally effective offer of the
arbitration agreement to her, and she did not knowingly accept that agreement. (Id.) For these
reasons, Ms. Amos argues that Lincoln has failed to “carry its burden of establishing” the
existence of a valid agreement to arbitrate, and its motion should be denied. (Id. (citing Johnson

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Lincoln also argues that the arbitration agreement is valid and enforceable because it is
supported by valid consideration and is not an unconscionable contract of adhesion. (Docket
No. 20, pp. 7–9.) Ms. Amos has not challenged these positions in her Response, and the court,
therefore, will not review their merits in its consideration of the pending motion.
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v. Long John Silver’s Rests., Inc., 320 F. Supp. 2d 656, 664 (M.D. Tenn. 2004)).)
As support for her argument that no valid agreement to arbitrate was ever formed,
Ms. Amos has submitted a declaration describing her exposure to, and understanding of, the
company’s arbitration policy. (Docket No. 23 (Decl. N. Amos).) Ms. Amos states that, when
she was hired, she was asked to sign a number of documents but was not “given, shown, or told
about any handbook or an arbitration agreement, nor did [she] sign any acknowledgement of
receiving or reviewing a handbook or arbitration agreement.” (Id. ¶¶ 3–4.) Ms. Amos further
states that she believed that she had been given all relevant documents at the time of her hiring
and that she was unaware, therefore, that Lincoln had any policy regarding the arbitration of
claims relating to her employment. (Id. ¶ 4.) According to Ms. Amos, she first learned of
Lincoln’s arbitration policy at a training for business managers in January of 2016,
approximately one year after she had been hired and six months after she was promoted to
business manager. (Id. ¶¶ 5–6.) During this conference, Lincoln representatives distributed a set
of documents relating to the “onboard[ing]” of new hires to the business managers in attendance,
including Ms. Amos. (Id. ¶ 7.) The representatives explained that these documents – including
those relating to Lincoln’s arbitration policy – were “new or updated” and that it was particularly
important that business managers have new hires sign the arbitration agreement, “because there
had been some previous lawsuits.” (Id. ¶¶ 7–9.) According to Ms. Amos, neither she nor any
other business manager was told during the conference “that any of these documents applied to
[them],” and they were not asked to sign the documents. (Id. ¶ 10.)
Ms. Amos avers that she had never seen, reviewed, or signed any arbitration policy prior
to this training conference, and her understanding of the policy both during and after the
conference was that it applied only to new employees – i.e., those hired after January of 2016.

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(Id. ¶¶ 11–12.) According to Ms. Amos, “[n]o one at Lincoln . . . has ever conveyed to [her] that
there is an arbitration agreement that applies to [her] and [her] employment with the company, or
shown [her] what the terms of that agreement look like” (id. ¶ 13) and, therefore, there could not
be any “meeting of the minds” on the arbitration policy or its terms (Docket No. 22, p. 10).
Absent proof of such a mutual promise, Ms. Amos contends, Lincoln has failed to carry its
burden of proving that she knowingly waived the right to pursue her claims in court, and the
pending motion must be denied. (Id.)
III.

Lincoln’s Reply in Support of the Pending Motion
On May 24, 2017, Lincoln filed a Reply in support of the pending motion, in which it

argues that Ms. Amos knowingly accepted the arbitration agreement during her employment and,
therefore, is subject to its terms. (Docket No. 25-1, p. 1.) Lincoln introduces no additional
evidence demonstrating that Ms. Amos knew that the arbitration policy applied to her position,
but it argues that Ms. Amos’s assertion that she did not recall receiving the Employee Handbook
when she was hired does not, on its own, adequately refute the existence of an agreement to
arbitrate. (Id. at pp. 1–2 (citing Fisher v. GE Med. Sys., 276 F. Supp. 2d 891 (M.D. Tenn.
2003)).) At a minimum, Lincoln argues, Ms. Amos was aware that Lincoln had an arbitration
policy after she completed business manager training in January of 2016, and “[h]er continued
employment after that conference constitutes sufficient acceptance of the agreement to make it a
valid contract.” (Id.) Moreover, Lincoln notes that Ms. Amos had “repeated encounters” with
the arbitration agreement during the course of her employment “through company training
programs, receipt of updates to company policies, and revisions of company ‘new hire’
documents,” as evidenced by the Fetzer Declaration. (Id. at pp. 3–4 (citing Docket No. 21 ¶¶ 4–
6).) Based on this evidence, Lincoln argues that Ms. Amos must have had knowledge of the

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arbitration policy and its terms, which she accepted through her continued employment and
thereby made valid and enforceable. (Id.)
IV.

Ms. Amos’s Sur-Reply and Lincoln’s Response
On June 5, 2017 – with leave of the court – Ms. Amos filed a Sur-Reply in order to

address the Sixth Circuit’s decision in National Labor Relations Board v. Alternative
Entertainment, Inc., No. 16-1385, 2017 WL 2297620 (6th Cir. May 26, 2017), which was issued
after briefing on the pending motion was completed. (Docket No. 33.) In Alternative
Entertainment, the Sixth Circuit held that an arbitration agreement that bars employees who are
covered by the National Labor Relations Act (“NLRA”) from taking any concerted legal action –
including collective arbitration – is unenforceable under the FAA because it violates the NLRA’s
guarantee of the right to collective action. 2017 WL 2297620, at *4–9. Ms. Amos argues that
the Alternative Entertainment decision prohibits an employer from “impos[ing] an arbitration
agreement on its employees that contains a waiver of class and collective actions.” (Docket
No. 33, p. 1.) Based on this holding, Ms. Amos argues that Lincoln’s arbitration policy – which
contains a class waiver – is “unenforceable as written.” (Id. at p. 2.)
On June 9, 2017 – also with the court’s leave – Lincoln filed a Response to Ms. Amos’s
Sur-Reply, in which it argues that Ms. Amos has “attempt[ed] to expand the impact of
[Alternative Entertainment] beyond the actual holding of the court.” (Docket No. 37, p. 1.)
After noting that the Sixth Circuit’s decision “contribute[s] to a . . . circuit split” that will likely
be resolved by the Supreme Court later this year, Lincoln argues that the class waiver contained
in the arbitration policy does not, on its own, render the entire policy unenforceable. (Id. (citing
Morris v. Ernst & Young LLP, 834 F.3d 975 (9th Cir. 2016), cert. granted, 137 S. Ct. 809
(2017)).) Lincoln argues that, under Tennessee law, “courts should interpret a contract in a way

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that supports its validity and invalidates only the offending contractual terms,” which requires
this court to sever the class waiver provision from the broader agreement to arbitrate. (Id. at p. 2
(citing In re Baby, 447 S.W.3d 807, 831 (Tenn. 2014)).) According to Lincoln, “[t]here is
nothing in Alternative Entertainment that should keep this Court from compelling arbitration as
agreed to by the parties.” (Id.)
LEGAL STANDARD
Under the Federal Arbitration Act (“FAA”), agreements to arbitrate “shall be 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. “This text reflects the overarching principle that
arbitration is a matter of contract” and, “consistent with that text, courts must ‘rigorously
enforce’ arbitration agreements according to their terms[.]” Am. Express Co. v. Italian Colors
Rest., 133 S. Ct. 2304, 2309 (2013). The FAA embodies a “liberal federal policy favoring
arbitration agreements,” CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012) (quoting
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)), and there is a
strong presumption in favor of arbitration under the Act, O.J. Distrib., Inc. v. Hornell Brewing
Co., Inc., 340 F.3d 345, 355 (6th Cir. 2003). Under the FAA, where a litigant establishes the
existence of a valid agreement to arbitrate the dispute at issue, the district court must grant the
litigant’s motion to compel arbitration and stay or dismiss proceedings until the completion of
arbitration. Glazer v. Lehman Bros., Inc., 394 F.3d 444, 451 (6th Cir. 2005) (citing 9 U.S.C.
§§ 3–4). The party opposing arbitration has the burden to prove that there is a “genuine issue of
material fact as to the validity of the agreement to arbitrate.” Brubaker v. Barrett, 801 F. Supp.
2d 743, 750 (E.D. Tenn. 2011) (quoting Great Earth Cos., Inc. v. Simons, 288 F.3d 878, 889 (6th
Cir. 2002)).

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ANALYSIS
In determining whether to compel arbitration of a party’s claims, the court must “engage
in a limited review to determine whether the dispute is arbitrable.” Masco Corp. v. Zurich Am.
Ins. Co., 382 F.3d 624, 627 (6th Cir. 2004) (quoting Javitch v. First Union Sec., Inc., 315 F.3d
619, 624 (6th Cir. 2003)). This review requires the court to determine whether “a valid
agreement to arbitrate exists between the parties and [whether] the specific dispute falls within
the substantive scope of the agreement.” Landis v. Pinnacle Eye Care, LLC, 537 F.3d 559, 561
(6th Cir. 2008). Ms. Amos has not argued that her claims fall outside of the scope of Lincoln’s
arbitration policy, but she has argued that she never knowingly assented to waive her right to
submit claims relating to her employment to a court and that, therefore, there exists no valid
arbitration agreement between her and Lincoln.
As the Sixth Circuit has noted, arbitration agreements are “fundamentally contracts,” and
courts must review their enforceability “according to the applicable state law of contract
formation.” Seawright, 507 F.3d at 972. Under Tennessee law, “[a] valid, enforceable contract
requires consideration and mutual assent, manifested in the form of an offer and an acceptance.”
Ace Design Grp., Inc. v. Greater Christ Temple Church, Inc., No. M2016-00089, 2016 WL
7166408, at *7 (Tenn. Ct. App. Dec. 8, 2016); accord Moody Realty Co., Inc. v. Huestis,
237 S.W.3d 666, 675 n.8 (Tenn. Ct. App. 2007). Lincoln admits that Ms. Amos never signed an
acknowledgment form affirming that she had reviewed the Employee Handbook and agreed to
its material terms, including the arbitration policy. (Docket No. 20, p. 3 (citing Docket No. 21
¶ 4).) As Lincoln correctly notes, however, Ms. Amos’s failure to sign her assent to the
arbitration policy does not necessarily signify that no valid arbitration agreement exists between
the two parties. (Id. at pp. 5–6.) Rather, Tennessee “recognizes the validity of unilateral

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contracts, in which acceptance is indicated by action under the contract.” Fisher v. GE Med.
Sys., 276 F. Supp. 2d 891, 895 (M.D. Tenn. 2003); see also Seawright, 507 F.3d at 978
(“[A]rbitration agreements under the FAA need to be written, but not necessarily signed.”).
Lincoln argues, therefore, that Ms. Amos agreed to arbitrate all claims relating to her
employment when she continued her employment with the company after she (1) received the
Employee Handbook, which states that her “continued employment with Lincoln will
acknowledge and confirm [her] agreement to binding arbitration,” and (2) had “repeated
encounters with the arbitration agreement,” which demonstrates that she had knowledge of the
agreement’s terms. (Docket No. 25-1, p. 3.)
Lincoln’s argument, however, ignores the evidence placed into the record by Ms. Amos,
which raises a genuine issue of material fact as to whether she was ever informed that her
acceptance of an arbitration agreement was a condition of her continued employment with the
company. Ms. Amos has submitted her sworn statement averring that she was not given, shown,
or told about any Employee Handbook or arbitration policy when she was hired and was thereby
unaware that Lincoln had any arbitration policy for the first year of her employment with the
company. (Docket No. 23 ¶ 4.) Moreover, though Ms. Amos admits to having learned that
Lincoln had an arbitration policy during the business manager training in January of 2016, she
clarifies that – based on statements made by Lincoln representatives during that training – she
believed that the arbitration policy applied only to new hires and not to those already employed
by the company. (Id. ¶¶ 7–11.) According to Ms. Amos’s sworn statement, she was never
informed that the documents distributed at this training or the policies contained therein applied
to her as a business manager, nor was she ever informed that the arbitration policy described in
those documents applied to individuals who were already employed by Lincoln. (See id. ¶¶ 8–9

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(noting that the documents were described as “new or updated” and that business managers were
instructed to “ensure that new employees signed the arbitration agreement because there had
been some previous lawsuits”).) Ms. Amos, therefore, has presented evidence demonstrating
that Lincoln never effectively communicated to her that the company’s arbitration policy applied
to her, specifically, or that her continued employment would constitute acceptance of an
agreement to arbitrate all claims relating to her employment. She has thereby demonstrated that
there exists a genuine issue of material fact as to the validity of the agreement to arbitrate
asserted by Lincoln, which precludes this court from compelling arbitration of her claims at this
time.
Nothing submitted by Lincoln in support of the pending motion effectively refutes the
points made in Ms. Amos’s sworn statement or demonstrates that the dispute of fact that she has
raised is anything less than genuine. Lincoln has attempted to refute Ms. Amos’s recollection of
her hiring with the Fetzer Declaration’s statement that, “at or near” the time Ms. Amos was
hired, she “was provided with Lincoln’s Employ[ee] Handbook” and “reminded that she needed
to sign an . . . Acknowledgement, but she never did.” (Docket No. 21 ¶ 4.) This statement,
however, is completely unsupported by any evidence demonstrating the basis for Ms. Fetzer’s
purported knowledge of the documents given to, and requested from, Ms. Amos at the time of
her hiring. Moreover, Ms. Amos challenged this portion of the Fetzer Declaration for lack of
foundation in her Response (Docket No. 22, p. 7 n.2), and Lincoln did not even acknowledge, let
alone remedy, the deficiency in its Reply. Ms. Fetzer’s statements regarding the paperwork
given to Ms. Amos at her hiring, therefore, are of little, if any, weight in the court’s consideration
of the pending motion and, even if the court were to credit those statements, they do little more
than confirm that there is a genuine issue of material fact as to the validity of the agreement to

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arbitrate. Lincoln has also attempted to refute Ms. Amos’s contention that she never understood
that the arbitration policy applied to her, specifically, by introducing evidence demonstrating that
Ms. Amos periodically reviewed the company’s arbitration policy when it was updated or
discussed in a training. (See Docket No. 25-1, pp. 3–4.) Nothing submitted by Lincoln,
however, reveals any statement made during any policy update or training that would be
understood by a reasonable person to signify that the company’s arbitration policy applied to
employees who were already employed by Lincoln as of January of 2016 and who had never
signed an acknowledgment form agreeing to the terms of that policy. Lincoln, therefore, has
failed to produce any evidence demonstrating that the disputes of fact raised by Ms. Amos are
anything less than genuine.
Lincoln also argues that “Ms. Amos’s assertion that she does not remember receiving the
Employee Handbook when she was hired” is not, as a matter of law, sufficient to refute the
existence of an agreement to arbitrate. (Docket No. 25-1, p. 1–2 (citing Fisher, 276 F. Supp. 2d
891.) It is true that a number of courts have found that a valid agreement to arbitrate existed
even though the plaintiff had submitted a sworn statement averring that he did not recall
receiving notice of his employer’s arbitration policy at the time that he was hired. See, e.g.,
Fisher, 276 F. Supp. 2d at 895; Sellers v. Macy’s Retail Holdings, Inc., No. 2:12-cv-02496, 2014
WL 2826119, at *9 (W.D. Tenn. June 23, 2014). In these cases, however, there existed
additional, competent evidence that the plaintiff did, in fact, know that the defendant’s arbitration
policy was a condition of his employment, such as incontrovertible evidence that the plaintiff
had received a copy of the documents containing the arbitration policy or the plaintiff’s own
admission that he was aware of the policy and its application to him. See Fisher, 276 F. Supp.
2d at 895 (noting that the plaintiff admitted that he had discussed the arbitration policy with other

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employees and was concerned about its application to him); Sellers, 2014 WL 2826119, at *7
(finding that there is “no genuine dispute that the parties mutually agreed to be bound” by an
arbitration agreement where the plaintiff did not recall agreeing to arbitrate her claims but had
signed a form acknowledging that she had received documentation of the company’s arbitration
policy). Lincoln has failed to submit any such evidence, and Ms. Amos disputes that she was
ever aware that the company’s arbitration policy applied to her.
There is no evidence in the record establishing that Ms. Amos knew that her acceptance
of an arbitration agreement was a condition of her continued employment with Lincoln, and the
court, therefore, cannot conclude that her decision to remain in her position as a business
manager evidenced any intent to agree to arbitrate all disputes with Lincoln. Lincoln has failed
to establish the existence of a valid agreement to arbitrate that would bind Ms. Amos and,
accordingly, the court must deny Lincoln’s request that Ms. Amos be compelled to pursue her
claims in arbitration. 3
CONCLUSION
For the reasons discussed herein, the defendant’s Motion to Compel Arbitration and Stay
Proceedings (Docket No. 19) will be denied.
An appropriate order will enter.

___________________________
ALETA A. TRAUGER
United States District Judge

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Because the court has determined that there exist genuine disputes of material fact
regarding the existence of any agreement to arbitrate between the parties, it does not reach the
merits of the parties’ arguments regarding the Sixth Circuit’s recent decision in Alternative
Entertainment, 2017 WL 2297620.
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