Scudiero et al v. Radio One of Texas II, LLC

Filing 19

OPINION AND ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 14 Memorandum and Recommendations; and Denying 5 MOTION to Dismiss and to Compel Arbitration. (Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VINCE SCUDIERO and CHRISTEL
§
THORNTON,
§
§
Plaintiff,
§
§
VS.
§ CIVIL ACTION H-12-1088
§
RADIO ONE OF TEXAS II, LLC,
§
§
Defendant.
§
OPINION AND ORDER
Pending before the Court in the above referenced cause,
alleging racial discrimination and retaliation under Title VII of
the Civil Rights Act of 1964, are (1) Defendant Radio One of Texas
II, LLC’s (“Radio One’s”) motion to dismiss and compel arbitration
(instrument #5), (2) United States Magistrate Judge Frances Stacy’s
memorandum and recommendation (#14) that the motion be denied, and
(3) Radio One’s objections (#15).
The United States Magistrate Judge determined that the two
arbitration provisions at issue, found on separate pages of Radio
One’s Employee Handbook, were illusory and unenforceable because in
that Handbook, Radio One reserved the right unilaterally to modify
or

eliminate

its

Employee handbook.

policies,

benefits,

and

information

in

the

Judge Stacy relied on two Fifth Circuit cases,

Morrison v. Amway Corp., 517 F.3d 248, 257-58 (5th Cir. 2008), and
especially on Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202,
205 (5th Cir. 2012).

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Radio One objects that the Magistrate Judge relied on “noncontrolling Fifth Circuit case law” and ignored case law from the
Texas Supreme Court and the Houston Fourteenth Court of Appeals.
In re 24R, Inc. 324 S.W. 3d 564, 567 (Tex. 1010)(an arbitration
clause in an employee handbook similar to that at issue here, was
not illusory.); D.R. Horton, Inc, v. Brooks, 207 S.W. 3d 862 (Tex.
Civ. App.--Houston [14th Dist.] 2006).
After reviewing the briefs and the cited cases, the Court
agrees

with

Plaintiffs

that

the

Texas

cases

are

factually

distinguishable in that the documents containing the arbitration
provisions were not included in, but were separate from, the
employee handbooks, to which the right to unilaterally modify or
terminate the agreement solely applied.

Moreover, it concurs with

Magistrate Judge Stacy’s legal analysis.
Accordingly, the Court
ORDERS

that

Radio

One’s

objections

(#15)

are

OVERRULED.

Moreover, the Court
ADOPTS Magistrate Judge Stacy’s memorandum and order (#14) as
its own and hereby ORDERS that Defendants’ motion to compel
arbitration (#5) is DENIED.
SIGNED at Houston, Texas, this

19th

day of

February , 2013.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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