Sharp v. Terminix International, Inc., et al.

Filing 30

ORDER granting 18 Motion to Compel. The case is DISMISSED WITHOUT PREJUDICE to the parties right to re-open it for entry of an arbitration award or for any other relief to which the parties may be entitled. The parties are directed to proceed to arbitration in accordance with the terms of their agreement. Signed by Judge Samuel H. Mays, Jr on 07-20-2018. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
)
)
)
)
)
)
)
)
)
)
)
)

JOHN LOGAN SHARP,
on behalf of himself and all
others similarly situated,
Plaintiff,
v.
TERMINIX INTERNATIONAL, INC.,
et al.,
Defendants.

No. 2:18-cv-02072-SHM-dkv

ORDER

Before

the

Court

Inc., The Terminix

is

Defendants

Terminix

International,

International Company Limited Partnership,

and ServiceMaster Global Holdings, Inc.’s Motion to Compel Arbitration (the “Motion”), filed on February 23, 2018.
18; see also ECF No. 18-1.)
March 9, 2018.
2018.

(ECF No. 27.)

(ECF No.

Plaintiff John Sharp responded on
Defendants replied on March 21,

(ECF No. 28.)

For the following reasons, the Motion is GRANTED.
I.

Background
The action arises from an alleged agreement between Plain-

tiff and Defendants in which Defendants “promise[d] to pay their
outside salespersons commission on products and services sold.”

(ECF No. 1 at 2.)1

Plaintiff alleges that “Defendants have en-

gaged in a pattern and practice of failing to pay Plaintiff and
other outside salespersons agreed-upon commissions in a timely
manner.”

(Id.)

Plaintiff alleges breach of contract, unjust

enrichment, and violation of §§ 3–502 and 3-505 of the Maryland
Wage Payment and Collection Law.

(Id. at 13-19.)

He seeks com-

pensatory damages, punitive damages, prejudgment interest, and
attorney’s fees.

(Id. at 20.)

The heart of the present dispute is whether the parties
agreed to arbitrate their claims.

Defendants contend that they

“maintain[] a policy of requiring, as a condition of employment,
all employees and new hires . . . to agree to utilize [an] alternative dispute resolution program known as The ServiceMaster
We Listen Dispute Resolution Plan (“The We Listen Plan”).”
No. 18-1 at 53.)
tiff

signed

an

(ECF

Defendants assert that on May 11, 2016, Plainemployment

contract

that referred to The We Listen Plan.

(the

“Compensation

(Id.)

Plan”)

Specifically, the

Compensation Plan contained a clause above Plaintiff’s signature
stating: “By my signature below, I acknowledge that I have received a copy of this Compensation Plan, have reviewed The ServiceMaster We Listen Dispute Resolution Plan, and agree to use
We Listen to resolve any and all work-related disputes relating

1

Unless otherwise noted, all in-cite page numbers refer to the PageID
number.

2

to my wages.”

(ECF No. 18-2 at 76.)

Defendants provide a copy

of The We Listen Plan that is not signed by Plaintiff.
at 77-81.)
mutual

(See id.

The We Listen Plan includes, among other things, “a

agreement

to

arbitrate

individual

covered

Disputes.”

(ECF No. 18-2 at 77.)
Plaintiff presents a different version of events.

He al-

leges that he was never provided a copy of The We Listen Plan.
(ECF No. 27 at 102.)

He represents that “Defendants have a reg-

ular practice of requiring [employees] to sign documents without
allowing them either time to review before signing, or copies to
take home for their own records.”

(Id.)

“When [Plaintiff]

asked his supervisors questions about the content of the documents he was asked to sign, he was regularly told not to worry
about the content, that he was not being asked to agree to anything, and that his signature was simply verifying he had been
shown the document.”

(Id. at 102-03.)

Plaintiff argues that he did not sign The We Listen Plan
because he was not provided a copy of it.

(Id. at 103.)

He

contends that, when he signed the Compensation Plan, Defendants
“did not mention We Listen, did not explain the terms of We Listen, and did not provide me with a copy of We Listen to read or
review.”

(ECF No. 27-1 at 119.)

On February 23, 2018, Defendants filed the Motion.
No.

(ECF

18;

that

see

also

ECF

No.

18-1.)

3

The

Motion

contends

“[Plaintiff’s] claims are subject to a valid and enforceable arbitration agreement.”

(Id. at 67.)

Defendants move the Court

to “dismiss this case or, alternatively, stay the case pending
arbitration.”

(Id.)

On March 9, 2018, Plaintiff responded.

(ECF No. 28.)

Defendants replied on March 21, 2018.

(ECF No.

28.)

On May 21, 2018, Defendants filed a Supplemental Memoran-

dum.

(ECF No. 29.)

II.

Jurisdiction
Plaintiff contends that the Court has jurisdiction under

the Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”).
(ECF No. 1 at 2.)

“CAFA provides the federal district courts

with ‘original jurisdiction’ to hear a ‘class action’ if the
class has more than 100 members, the parties are minimally diverse, and the ‘matter in controversy exceeds the sum or value
of $5,000,000’” after aggregating the claims of individual members of the proposed class.
568

U.S.

588,

592

(2013)

Standard Fire Ins. Co. v. Knowles,
(quoting

28

U.S.C.

§

1332(d)(2),

(d)(5)(B)).
Under CAFA, a class action is any civil action filed under
Rule 23 of the Federal Rules of Civil Procedure.
1332(d)(1)(B).

See id. §

Plaintiff brings claims on behalf of various

class members and invokes Rule 23.

(See ECF No. 1 at 9-13.)

The Court has original jurisdiction over his class action if
“the

matter

in

controversy

exceeds

4

the

sum

or

value

of

$5,000,000 . . . and is a class action in which (A) any member
of a class of plaintiffs is a citizen of a State different from
a named defendant . . . .”

28 U.S.C. § 1332(d)(2)(A).

Plaintiff is a citizen of Maryland.

(ECF No. 1 at 3.)

De-

fendant Terminix International Inc. is a Delaware corporation
with its principal place of business in Tennessee.

(Id.)

Be-

cause Plaintiff and Defendant Terminix International Inc. are
citizens of different states, CAFA's minimal diversity requirement is satisfied.

See 28 U.S.C. § 1332(d)(2)(A).

Plaintiff alleges that “the amount in controversy exceeds
$5,000,000 exclusive of costs and interest.”

(ECF No. 1 at 2.)

A plaintiff’s assertion of the amount in controversy is not
questioned unless it appears “to a legal certainty” that a claim
is for less than the jurisdictional amount.

Schultz v. General

R.V. Ctr., 512 F.3d 754, 756 (6th Cir. 2008).

It does not ap-

pear to a legal certainty that Plaintiff and the class members
cannot recover the amount asserted.

Plaintiff has satisfied the

amount in controversy requirement under § 1332(d)(2).
CAFA’s

minimal

diversity

requirement

controversy requirement are satisfied.

and

the

amount-in-

The Court has jurisdic-

tion.
III. Choice of Law
The parties dispute whether Tennessee or Maryland law applies.

Defendants contend that The We Listen Plan “contains a

5

Tennessee choice of law provision with respect to issues of its
construction, interpretation, validity, and enforcement.”
No. 18-1 at 59.)
er

mutual

assent

(ECF

Plaintiff argues that, “because there was nevto

the

contract

which

contains

Defendants’

choice of law provision, and Tennessee applies the law of the
state in which the contract was formed, any challenge to the
formation of the contract should be governed by Maryland law.”
(ECF No. 27 at 107.)
The threshold determination about the validity of a contract containing a forum selection clause is a question of state
substantive law.

See Kutite, LLC v. Excell Petrol., LLC, No.

2:13-cv-2106, 2013 WL 5550091, at *2 (W.D. Tenn. Oct. 8, 2013).
Because this is a diversity case, the Court applies the choice
of law principles of the forum state.

See Klaxon Co. v. Stentor

Elec. Mfg. Co., 313 U.S. 487, 496 (1941).
Tennessee follows the rule of lex loci contractus, which
provides that “a contract is presumed to be governed by the law
of the jurisdiction in which it was executed absent a contrary
intent.”

See Williams v. Smith, 465 S.W.3d 150, 153 (Tenn. Ct.

App. 2014) (citing Ohio Cas. Ins. Co. v. Travelers Indem. Co.,
493

S.W.2d

465,

“[a]pplication

of

467
these

(Tenn.

1973)).

principles

[]

As
is

applied

somewhat

here,

circular.”

Cobble v. 20/20 Communications, Inc., No. 2:17-cv-53, 2018 WL
1026272, at *7 (E.D. Tenn. Feb. 23, 2018).

6

If, as Defendants

contend, the parties executed a choice of law agreement specifying Tennessee law, the Court will enforce that agreement.

If

Plaintiff did not agree to the choice of law provision, there is
no contrary intent and Maryland law will apply.
The Sixth Circuit confronted this question in Masco Cabinetry Middlefield, LLC v. Cefla N. Am., Inc.
(6th Cir. 2015).

There, plaintiff and defendant disputed the

validity of a sales contract.
that

the

disputed

637 F. App’x 192

contract

Id. at 194.
included

a

Defendant contended

choice

of

law

clause

providing that any action arising out of the contract would be
governed by Michigan law.

Id.

Plaintiff contended that there

was no contract between the parties and that Ohio law applied.
Id. at 196.

In deciding whether a contract had been formed, the

Sixth Circuit applied Michigan law, as provided in the disputed
contract’s choice of law clause.2

Id. at 197.

Using the methodology applied and approved in Masco, the
Court relies on the choice of law provision in the parties’ dis2

The court’s methodology was questioned by Judge White, in dissent, who
suggested that the majority was “put[ing] the cart before the horse by first
deciding that Michigan law governs under a contractual choice-of-law provision, then applying Michigan law to determine whether there is a contract.”
Masco Cabinetry Middlefield, LLC v. Cefla N. Am., Inc., 637 F. App’x 192, 202
n.3 (6th Cir. 2015) (White, J. dissenting).
Before Masco, district courts in this circuit deciding the same question generally avoided considering choice of law provisions when the parties
disputed the formation of a contract. See, e.g., Heiges v. JP Morgan Chase
Bank, N.A., 521 F. Supp. 2d 641, 646 (N.D. Ohio 2007); Detroit Tigers, Inc.
v. Ignite Sports Media, LLC, 203 F. Supp. 2d 789, 794 (E.D. Mich. 2002).
Since Masco, at least one district court in this circuit has followed
the Masco methodology and relied on the choice of law provision in a disputed
contract to determine the law governing an issue of contract formation. See
Cobble v. 20/20 Communications, Inc., No. 2:17-cv-53, 2018 WL 1026272, at *7
(E.D. Tenn. Feb. 23, 2018).

7

puted contract.

Thus, the Court applies Tennessee law to deter-

mine whether Defendants have established a valid contract.
In Tennessee, “in order for a contract to be consummated,
the parties must mutually assent to the material terms.”

All-

state Ins. Co. v. Tarrant, 363 S.W.3d 508, 528 (Tenn. 2012).
“[M]utual assent is determined by an objective standard -- that
is, by the apparent intention of the parties as manifested by
their actions.”

Id. (quoting Black's Law Dictionary 124 (8th

ed. 2004)).
“[A]n individual who signs a contract is presumed to have
read the contract and is bound by its contents.

To hold other-

wise would make contracts not worth the paper on which they are
written.”

84 Lumber Co. v. Smith, 356 S.W.3d 380, 383 (Tenn.

2011).
Plaintiff signed the Compensation Plan.
at 76.)

(See ECF No. 18-2

The Compensation Plan provides that: “By my signature

below, I acknowledge that I have received a copy of this Compensation Plan, have reviewed The ServiceMaster We Listen Dispute
Resolution Plan, and agree to use We Listen to resolve any and
all work-related disputes, including disputes related to my wages.”

(Id.)

The We Listen Plan contains, among other things, a

statement that “[t]his Plan shall be construed, interpreted and
its validity and enforceability determined, strictly in accordance with the Federal Arbitration Act (9 U.S.C. §1, et seq.) and

8

. . . in accordance with the laws of the State of Tennessee.”
(Id. at 80.)
Although

Plaintiff

did

not

sign

The

We

Listen

Plan,

“[o]ther writings . . . which are referred to in a written contract may be regarded as incorporated by reference as a part of
the contract and therefore, may be properly considered in the
construction of the contract.”

McCall v. Towne Square, Inc.,

503 S.W.2d 180, 183 (Tenn. 1973).

The Compensation Plan ex-

pressly and clearly states that The We Listen Plan is incorporated.

The text “was not hidden or indecipherable so that it

would be unfair to expect [Plaintiff] to be aware of the provision.”

Robert J. Denley Co., Inc. v. Neal Smith Const. Co.,

Inc., No. W2006–00629–COA–R3–CV, 2007 WL 1153121, at *4 (Tenn.
Ct. App. 2007).

Plaintiff does not allege that he was the vic-

tim of fraud when he signed the Compensation Plan.
Plaintiff

and

Defendants

manifested

their

assent

to

choice of law provision by signing the Compensation Plan.

the
Ten-

nessee law governs the validity of the arbitration agreement.3
IV.

Standard of Review

The Federal Arbitration Act (“FAA”) strongly favors arbitration. EEOC v. Waffle House, Inc., 534 U.S. 279, 289 (2002).

3

The only motion before the Court is Defendants’ Motion to Compel Arbitration. (ECF No. 18.) Because Plaintiff’s claims are not being addressed on
the merits, the Court need not determine what law applies to those causes of
action.

9

An arbitration agreement must be (1) in writing and (2) involve
a transaction in interstate commerce.

9 U.S.C. § 2.

Such an

arbitration agreement “shall be valid, irrevocable, and enforceable.”

Id.

“Any doubts about whether an [arbitration] agreement is enforceable, including defenses to arbitrability, should be resolved in favor of arbitration.”

Johnson v. Long John Silver's

Rests., Inc., 320 F.Supp.2d 656, 663 (M.D. Tenn. 2004) (internal
citation omitted); accord Waffle House, 534 U.S. at 289.
“[A]bsent a showing of fraud, duress, mistake, or some other
ground upon which a contract may be voided, a court must enforce
a contractual agreement to arbitrate.”

Haskins v. Prudential

Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir. 2000).
On a motion to compel arbitration:
The court has four tasks: first, it must determine
whether the parties agreed to arbitrate; second, it
must determine the scope of that agreement; third, if
federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that
some, but not all, of the claims in the action are
subject to arbitration, it must determine whether to
stay the remainder of the proceedings pending arbitration.
Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2000) (internal citation omitted).
The showing necessary to compel arbitration absent trial is
the same as the showing necessary for summary judgment in a civ10

il suit.

Id.

The moving party must “clearly and convincingly

establish[ ] the nonexistence of any genuine issue of material
fact, and the evidence . . . must be read in a light most favorable to the party opposing the motion.”

Kochins v. Linden-

Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986).

In particu-

lar, the moving party must show the existence of “a binding
agreement to arbitrate.”

In re First Thermal Systems, Inc., 182

B.R. 510, 513 (Bankr. E.D. Tenn. 1995).
If that showing is made, the burden shifts to the nonmoving party to prove “that the claims at issue are unsuitable
for arbitration.”
U.S. 79, 91 (2000).
tions and denials.

Green Tree Fin. Corp.-Ala. v. Randolph, 531
That requires evidence beyond mere allegaSee Great Earth Cos., Inc. v. Simons, 288

F.3d 878, 889 (6th Cir. 2002) (internal citation omitted) (“In
order to show that the validity of the agreement is ‘in issue,’
the party opposing arbitration must show a genuine issue of material fact as to the validity of the agreement to arbitrate.”).
The nonmoving party must point to evidence in the record, such
as admissions, affidavits, answers to interrogatories, declarations, or depositions.

See Metlife Securities, Inc. v. Holt,

No. 2:16-cv-32, 2016 WL 3964459, at *7 (E.D. Tenn. July 21,
2016).

11

V.

Analysis
A. Agreement to Arbitrate
The Court must first determine whether “a valid agreement

to arbitrate exists between the parties . . . .”

Masco Corp. v.

Zurich Am. Ins. Co., 382 F.3d 624, 627 (6th Cir. 2004) (citation
omitted).

“State contract law . . . governs in determining

whether the arbitration clause itself was validly obtained, provided the contract law applied is general and not specific to
arbitration clauses.”

Fazio v. Lehman Bros., Inc., 340 F.3d

386, 393 (6th Cir. 2003) (citations omitted).

“An arbitration

agreement may be invalidated for the same reasons for which any
contract may be invalidated, including forgery, unconscionability, and lack of consideration.”

Id. (citing Doctor's Assocs.

v. Casarotto, 517 U.S. 681, 687 (1996)).
Plaintiff argues that The We Listen Plan is invalid because
it lacks consideration and unenforceable because it is unconscionable.

(See ECF No. 27 at 106-12.)

1. Lack of Consideration
Plaintiff contends that The We Listen Plan is not a binding
contract because Defendants did not provide consideration.
No. 27 at 108-09.)

(ECF

Plaintiff cites the provision in the Compen-

sation Plan that Defendants “retain[] the right to modify, amend
or discontinue this Plan, subject to the requirements of applicable law.”

(ECF No. 18-2 at 75.)

12

Defendants respond that “The

Compensation Plan does not control We Listen and contains no
provision giving [Defendants] the right to alter or amend We
Listen.”

(ECF No. 28 at 129.)

Plaintiff’s argument is not well taken.

Defendants’ “right

to modify, amend or discontinue this Plan” applies only to the
Compensation Plan, not to The We Listen Plan.
at 75.)

(See ECF No. 18-2

The We Listen Plan is not mentioned in the paragraph in

the Compensation Plan that Plaintiff cites.
The We Listen Plan contains a paragraph providing, in relevant part: “[Plaintiff] and [Defendants] agree that the mutual
obligations by [Defendants] and [Plaintiff] to arbitrate Disputes, my continued employment, [Defendants’] processing and
evaluation of my application for employment, and [Defendants’]
agreement to pay the applicable fees for mediation and arbitration, provide adequate consideration for this Plan.”
81.)

(Id. at

A mutual promise “in itself [constitutes] sufficient con-

sideration.”

Rodgers v. Southern Newspapers, Inc., 379 S.W.2d

797, 800 (Tenn. 1964).
The arbitration agreement is not invalid for lack of consideration.
2. Unconscionability
Plaintiff argues that The We Listen Plan is unenforceable
because it is unconscionable.

(ECF No. 27 at 109-12.)

He ar-

gues that unconscionability stems from “the inequity of bargain-

13

ing power between the parties and the utter lack of opportunity
[Plaintiff] had to understand the terms of the arbitration
agreement because, among other reasons, it was never provided to
him.”

(Id. at 110.)

Plaintiff submits a declaration, which

states, in relevant part:
5. In approximately May 2016, . . . [Defendants] required that I sign the revised compensation plan
(hereafter “Compensation Plan”).
. . .
8. During my employment I was regularly asked to sign
on lines without being given time to review the contents of what I was signing.
9. When I asked my supervisors questions about the
content of the documents I was asked to sign, I was
regularly told not to worry about the content, that I
was not being asked to agree to anything, and that my
signature simply verified that I had been shown the
document.
10. [Defendants] regularly failed to provide copies of
the documents to me for either my review or for my
records.
11. I was not provided with copies of the Compensation
Plan for my review or for my records.
. . .
13. Until about a couple weeks ago, I never knew We
Listen existed.
. . .
16. When I was instructed to sign the Compensation
Plan, [Defendants] did not mention We Listen, did not
explain the terms of We Listen, and did not provide me
with a copy of We Listen to read or review.
(ECF No. 27-1 at 119-20.)
“Unconscionability may arise from a lack of a meaningful
choice on the part of one party (procedural unconscionability)
or from contract terms that are unreasonably harsh (substantive
unconscionability).”

Trinity Industries, Inc. v. McKinnon

14

Bridge Co., 77 S.W.3d 159, 170 (Tenn. Ct. App. 2001).

Tennessee

courts “lump the two together” and find unconscionability “when
the inequality of the bargain is so manifest as to shock the
judgment of a person of common sense, and where the terms are so
oppressive that no reasonable person would make them on one
hand, and no honest and fair person would accept them on the
other.”

Trinity Industries, 77 S.W.3d at 171.

It is not enough

for the moving party to establish procedural or substantive unconscionability alone.

Both must be established.

See Iysheh v.

Cellular Sales of Tennessee, LLC, 2018 WL 2207122, at *5 (E.D.
Tenn. May 14, 2018) (“Even if the Agreement was [procedurally
unconscionable], it is enforceable unless plaintiff can also
show it is substantively unconscionable.”); accord Cooper v. MRM
Inv. Co., 367 F.3d 493, 505 (6th Cir. 2004) (concluding same).
Plaintiff submits sufficient evidence to establish that The
We Listen Plan is procedurally unconscionable.

Plaintiff as-

serts that he was asked to sign the Compensation Plan “without
being given time to review the contents of what I was signing.”
(ECF No. 27-1 at 120.)

He asserts that, when he asked questions

about the documents, “[he] was regularly told not to worry about
the content, that [he] was not being asked to agree to anything,
and that [his] signature simply verified that [he] had been
shown the document.”

(Id.)

When Defendants asked Plaintiff to

sign the Compensation Plan, “[Defendants] did not mention [The

15

We Listen Plan], did not explain the terms of [The We Listen
Plan], and did not provide [Plaintiff] with a copy of [The We
Listen Plan] to read or review.”

(Id.)

Plaintiff’s declara-

tions are analogous to the facts in Webb v. First Tennessee Brokerage, Inc., in which the court found that an arbitration
agreement was procedurally unconscionable because defendant did
not carry its burden “to show that the parties actually bargained over the arbitration provision.”

No. E2012-00934-COA-R3-

CV, 2013 WL 3941782, at *17 (Tenn. Ct. App. June 18, 2013).
Plaintiff’s unconscionability defense fails, however, because he does not establish that The We Listen Plan is substantively unconscionable.

Although Plaintiff relies on the

inequality in bargaining power between himself and Defendants,
“[m]ere inequality in bargaining power . . . is not a sufficient
reason to hold that arbitration agreements are never enforceable
in the employment context.”

Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20, 33 (1991).

An arbitration agreement in an

employment contract is not oppressive or beyond the reasonable
expectations of an ordinary person.
504.

See Cooper, 367 F.3d at

Plaintiff was not denied a meaningful choice.

have refused to sign the contract.

He could

See Winn v. Tenet Healthcare

Corp., No. 2:10–cv–02140–JPM–cgc, 2011 WL 294407, at *7 (W.D.
Tenn. Jan. 27, 2017); Haun v. King, 690 S.W.2d 869, 872 (Tenn.
Ct. App. 1984) (“If the provisions are [] viewed as so one-sided

16

that the contracting party is denied any opportunity for a meaningful choice, the contract should be found unconscionable.”).
Plaintiff has failed to establish that The We Listen Plan is
substantively conscionable.
The We Listen Plan memorializes the parties’ agreement to
arbitrate their disputes.
of unconscionability.

It is not unenforceable on the ground

It contains a valid arbitration agree-

ment.
B. Scope of Arbitration Agreement
The scope of the arbitration agreement in The We Listen
Plan is broad.

The We Listen Plan defines “Disputes” covered by

the Plan as “all Disputes arising out of or relating to my employment, termination of employment or application for employment that I or the Company could otherwise have resolved in a
court . . . .”

(ECF No. 18-2 at 77.)

The We Listen Plan pro-

vides a non-exhaustive list of covered claims, including “any
federal, state or local law or common law doctrine for breach of
contract,” “torts,” and “claims under federal, state or local
law regarding wages and other compensation.”

(Id.)

Plaintiff’s

causes of action for breach of contract, unjust enrichment, and
violation of §§ 3–502 and 3-505 of the Maryland Wage Payment and
Collection Law are subject to arbitration under The We Listen
Plan.

17

C. Whether Congress Intended Claims to be Non-Arbitrable
The We Listen Plan contains the following class waiver provision:
I HEREBY WAIVE ANY RIGHT FOR ANY DISPUTE TO BE
BROUGHT, HEARD, DECIDED OR ARBITRATED AS A CLASS,
COLLECTIVE AND/OR REPRESENTATIVE ACTION . . . . I understand that I will not be retaliated against, disciplined or threatened with discipline as a result of
exercising rights under Section 7 of the National Labor Relations Act by the filing or participation in a
class, collective or representative action in any forum; however, [Defendants] may lawfully seek enforcement of this Plan and the Class and Representative
Action Waiver under the Federal Arbitration Act and
seek dismissal of such class, collective or representative actions or claims.
(Id. at 79 (emphasis in original).)
Plaintiff argues that “[e]nforcement of the class waiver
here would violate [his] right to concerted activity provided
under the National Labor Relations Act.”

(ECF No. 27 at 113.)

Plaintiff also argues that finding the class waiver enforceable
would “contravene [] controlling [Sixth Circuit] authority” and
“create a split within the Western District.”

(Id.)

Defendants

argue that the class waiver should be enforced because “[Plaintiff] signed a clear, unequivocal waiver to bring any class
claim.”

(ECF No. 18-1 at 64.)

Defendants cite Epic Systems

Corp. v. Lewis, 138 S. Ct. 1612 (2018), in which the Supreme
Court held “that the National Labor Relations Act does not bar
enforcement

of

individual

arbitration

18

provisions

or

collec-

tive/class action waivers in arbitration agreements and the Federal Arbitration Act mandates enforcement of such provisions as
written.”

(ECF No. 29 at 135.)

In National Labor Relations Board v. Alternative Entertainment, Inc., the Sixth Circuit “join[ed] the Seventh and Ninth
Circuits in holding that an arbitration provision requiring employees covered by the NLRA individually to arbitrate all employment-related claims is not enforceable.”

858 F.3d 393, 401

(6th Cir. 2017); see Morris v. Ernst & Young, L.L.P., 834 F.3d
975, 985-86 (9th Cir. 2016); Lewis v. Epic Sys. Corp., 823 F.3d
1147, 1160 (7th Cir. 2016); contra Murphy Oil USA, Inc. v. NLRB,
808 F.3d 1013, 1018 (5th Cir. 2015).
In Epic Systems Corp. v. Lewis, the Supreme Court abrogated
Alternative Entertainment.

138 S. Ct. 1612 (2018).

The court

held that “Congress has instructed federal courts to enforce arbitration agreements according to their terms -- including terms
providing for individualized proceedings.”
Supreme

Court

has

stated

Congress’s

intent

those at issue in this case be arbitrable.

Id. at 1619.
that

claims

The
like

The class action

waiver is enforceable.
D. Whether to Stay Proceedings Pending Arbitration
All of Plaintiff’s claims are subject to arbitration.

Be-

cause there are no nonarbitrable claims, the Court need not consider whether to stay them.

See Stout, 228 F.3d at 714.

19

VI.

Conclusion

For the foregoing reasons, Defendants’ Motion is GRANTED.
The case is DISMISSED WITHOUT PREJUDICE to the parties’ right to
re-open it for entry of an arbitration award or for any other
relief to which the parties may be entitled.

The parties are

directed to proceed to arbitration in accordance with the terms
of their agreement.

So ordered this 20th day of July, 2018.

/s/ Samuel H. Mays, Jr. ____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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