Rodgers-Glass v. Conroe Hospital Corporation et al
Filing
10
OPINION AND ORDER DISMISSING CASE AND COMPELLING ARBITRATION granting 4 Motion to Dismiss. Case terminated on 7/10/2015.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MADELEINE RODGERS-GLASS,
§
§
Plaintiff,
§
§
VS.
§
§
CONROE HOSPITAL CORPORATION AND§
HOSPITAL CORPORATION OF AMERICA§
a/k/a HCA, INC.,
§
§
Defendants.
§
Civ. A. H-14-3300
OPINION AND ORDER DISMISSING CASE AND COMPELLING ARBITRATION
The above referenced action, removed from state court on
federal question jurisdiction under 28 U.S.C. §§ 1331 and 1441(a),
alleges
discrimination,
retaliation,
unlawful
termination,
violations of the Family Medical Leave Act, the Americans With
Disabilities
Act,
the
Health
Insurance
Portability
and
Accountability Act, Title VII of the Civil Rights Act of 1964 and,
as amended, 1991, the Age Discrimination in Employment Act, the
Employment Retirement Income Security Act, and Section 52.031 of
the Texas Labor Code (offense of blacklisting, i.e., publishing
the name of a former employee to prevent her from securing other
employment,
punishable
by
fine
or
imprisonment),
defamation,
slander, invasion of privacy, intentional infliction of emotional
distress, etc.
Pending before the Court is Defendants Conroe
Regional Medical Center1 (“the hospital”) and Hospital Corporation
1
Defendants note that the Conroe Regional Medical
Center, Plaintiff’s employer, is incorrectly named as Conroe
Hospital Corporation, and they state that HCA was not Plaintiff’s
employer, as they indicated in the “Verified Denial” part of their
Original Answer filed in state court. #1-1, p. 1; #4, p. 1, n.1.
Plaintiff objects that Conroe Hospital Corporation, named in the
certified records of the Texas Secretary of State (copies attached
-1-
of America a/k/a HCA, Inc.’s (“HCA’s”) motion to dismiss and
compel arbitration under the Federal Arbitration Act (“FAA”), 9
U.S.C. § 4, because Plaintiff and everyone working at the Conroe
Regional Hospital, Plaintiff Madeleine Rodgers-Glass’S former
employer, are subject to a Mandatory Binding Arbitration Policy
(“the Policy”).2
Defendants’ Motion to Dismiss and Compel Arbitration
Defendants
affidavit
(Exhibit
explain
A)
from
with
Diana
a
supporting,
Howell,
Director
notarized
of
Human
Resources for the hospital,3 that the Policy was implemented on
to Response), has the same address as HCA in those records.
2
A copy of the Policy is attached to the motion as
Exhibit A-1.
3
Plaintiff complains that Howell’s affidavit states
that she works for “Conroe Regional Hospital” and not the
Defendant named in the Original Petition. The Court notes that
“Conroe Regional Hospital” is found on page 1 of the affidavit,
but on page 2 Howell refers twice to the “Conroe Regional Medical
Center.” An internet search indicates they are one and the same.
The names are used interchangeably in this litigation.
Plaintiff further contends, without specific examples,
that the affidavit is conclusory, lacks foundation, is
speculative, and fails to establish any connection between
Plaintiff and Defendants to effectively evidence any agreement to
arbitrate her claims. The Court disagrees. In an affidavit
“[p]ersonal knowledge may be demonstrated by showing that the
facts
stated
‘reasonably’
fall
within
the
‘sphere
of
responsibility’ of the affiant as a corporate employee.” Cutting
Underwater, 671 F.3d at 516, quoting DIRECTV, Inc. v. Budden, 420
F.3d 521, 530 (5th Cir. 2005)(citation omitted), and Rutledge v.
Liab. Ins. Indus., 487 F. Supp. 5, 7 (W.D. La. 1979)(“An official
title alone is enough to indicate the basis of personal knowledge
. . . .”). An affiant does not need to state that his affidavit
is based on personal knowledge as long as such knowledge can
reasonably be inferred from the affiant’s position. Id. at 530.
As Director of Human Resources at the hospital since 2004, Howell
states that she is familiar with the policies and procedures
applicable to the employees at the hospital, including the
Mandatory Binding Arbitration Agreement, and avers that true and
correct copies of the Policy (Ex. A-1) and sign-in sheet with
-2-
January 1, 2006.
enforceable
Under Texas law arbitration agreements are
when there is notice of the policy and acceptance of
its terms, regardless whether there is a signed arbitration
acknowledgment form. See, e.g., In re Dillard Dep’t Stores, Inc.,
198 S.W. 3d 778, 781 (Tex. 2006); In re Halliburton, 80 S.W. 3d
566 (Tex. 2002), cert. denied, 537 U.S. 1112 (2003).
Howell’s
affidavit asserts that all new employees are informed about the
Policy
during
a
New
Employee
Orientation
process,
in
which
Plaintiff, who began work at the hospital on June 17, 2010,
participated on July 19, 2010, as evidenced by the sign-in sheet
for that date, Exhibit A-2.
Moreover Howell avers that it is on
Plaintiff’s signature for those attending the July 19, 2010
orientation for new employees(Ex. A-2) are attached. As stated in
In Estate of Guerreo,,
S.W. 3d
, 2015 WL 1884068, at *6
(Tex. App.--Houston [14th Dist.] Apr. 23, 2015),
The evidentiary standards for a motion to
compel arbitration are the same as for a
motion for summary judgment. In re Jebbia,
[26 S.W. 3d 753, 756-57 (Tex. App.--Houston
[14th Dist.] 2000)]. Under the summary
judgment standard, copies of documents must
be authenticated in order to constitute
summary judgment evidence.
See Republic
Nat’l Leasing Corp. v. Schindler, 717 S.W. 2d
606, 607 (Tex. 1986)(per curiam); see also
Niu v. Revcor Molded Prod. Co., 206 S.W. 3d
723, 729 (Tex. App.--Fort Worth 2006, no
pet.). A properly sworn affidavit stating
that the attached documents are true and
correct copies of the original authenticates
the copies so they may be considered as
summary judgment evidence.
Republic, 717
S.W. 2d at 607; see also Jack B. Anglin Co.
[v. Tipps, 842 S.W. 2d 266, 270 (Tex. 1992)]
(relying on summary judgment precedent to
hold that the trial and appellate courts must
accept as true the clear, direct, and
positive evidence of an undisputed affidavit
supporting a motion to compel arbitration.).
-3-
the hospital’s intranet and available to all employees at all
times.
Because Plaintiff
accepted work after receiving notice of
the arbitration agreement during the new employee orientation
policy, she accepted the mandatory binding arbitration as a matter
of law as a condition of employment.
Dillard, 198 S.W. 3d at 780
(“An employer may enforce an arbitration agreement entered into
during an at-will employment relationship if the employee received
notice of its arbitration policy and accepted it. . . . If the
employee receives notice and continues working with the knowledge
of the modified employment terms, the employee accepts them as a
matter of law.”), citing In re Halliburton Co., 80 S.W. 3d at 568.
The Policy at issue states in relevant part,
[B]oth the employee and [the Hospital] agree
to give up any right either party has to a
jury or judge trial regarding any issue
governed by the Mandatory Binding Arbitration
Policy. All disputes governed by the
Mandatory Binding Arbitration Policy shall be
submitted to final and binding arbitration to
be conducted by an experienced Arbitrator
from the American Arbitration Association
(AAA) chosen by the employee and the company.
The employee and the Employer will be bound
by the decision made by the third party
neutral arbitrator . . . .
The Policy expressly requires arbitration for the following
claims, among others:
-claims relating to involuntary terminations
. . .
-employment discrimination claims . . . based
on . . . age . . . race, sex, religion,
national origin, veteran status, citizenship,
disability or other characteristics protected
by federal, state or local law.
-retaliation
claims
as
recognized
applicable state or federal law
-4-
by
-claims relating to workplace accommodation
due to any physical or mental disabilities
-claims related to state or federal family
and medical leave acts . . . .
-tort claims, such as negligence, defamation,
invasion of privacy, intentional infliction
of emotional distress, etc.
Finally, the Policy’s Mandatory Binding Arbitration Agreement
states just above the signature line, “This Agreement shall be
governed exclusively by and interpreted exclusively under the
Federal Arbitration Act, 9 U.S.C. §§ Sections 1-16 giving effect
to that Act’s liberal policy toward enforcement of arbitration
agreements.”
Exhibit A-1.4
Defendants maintain that all of Plaintiff’s claims fall
within the scope of the arbitration agreement because they are
related to her discharge and the alleged
discrimination/retaliation in violation of the Family Medical
Leave Act and the Texas Labor Code.
Plaintiff’s Response (#8)
Plaintiff objects that the copy of the arbitration
agreement attached to the motion is not executed by her.
She also contends that the agreement does not state that
there is a binding agreement to arbitrate between HCA and herself.
Moreover if HCA is not her employer, and if consideration for the
arbitration agreement is “continued employment,” the arbitration
provision cannot be enforced against her by HCA.
4
It is black letter law that parties may expressly
agree to arbitrate under the FAA. In re Rubiola, 334 S.W. 3d 220,
223 (Tex. 2011).
-5-
In addition Plaintiff contends that her claims other
than for discrimination and wrongful termination are not within
the scope of the arbitration provision.
Moreover, Plaintiff observes that the Policy (Ex. A-1)
states that it was “Reviewed 1/12.”
Since she was hired on July
19, 2010, she asserts that the Policy is not the one in place at
the time she was employed and there is no evidence that she ever
received actual notice of it.
That she attended an employee
orientation and signed the attendance sheet is not evidence that
she agreed to binding arbitration for her claims against the
hospital.
Next she argues that the Policy is a modification of the
employment-at-will agreement she had with the hospital and that
the hospital failed to provide her with notice of the
modification.
Therefore it cannot be enforced against her.
Last, Plaintiff insists alternatively that Defendants,
without
legal
justification,
breached
the
employment-at-will
agreement with her in failing to comply with their own policies
and procedures regarding employment dealings and treatment of
protected
asserting
healthcare information, so they are estopped from
mandatory
binding
arbitration
that
the
alleged
nonemployer HCA has imposed.
Defendants’ Reply (#9)
Defendants point out that the Policy (Exhibit A-1)
clearly indicates that it was implemented on January 1, 2006, as
does Howell’s affidavit, and that it was the version in effect
when Plaintiff’s employment was terminated.
-6-
Ex. A-1.
That the
hospital reviews policies every now and then does not render a
prior version of the Policy inapplicable.
Moreover Howell’s
affidavit states that all policies are available on the hospital’s
intranet.
It is long established that a signature is not required
for an arbitration to be binding on an employee.
In re RRGT,
Inc., No. 04-06-00012-CV, 2006 WL 622736 (Tex. App.–-San Antonio
2006)(holding that employee did not sign arbitration agreement but
continued to work, and therefore accepted arbitration as a term of
employment); In re Autotainment Partners, Ltd., 183 S.W. 3d 532,
535-36 (Tex. App.--Houston [14th Dist.] 2006)(holding that “the FAA
does not require that an arbitration clause be signed, so long as
it is written and agreed to by the parties”),
AdvancePCS
Health,
LP,
172
S.W.
3d
603,
citing In re
606
(Tex.
2005).
Defendants point out that portions of page 7 and pages 8 and 9 of
the Policy are not signature blocks to indicate acceptance of the
policy, but are forms for an employee to initiate a claim under
the policy.
and
the
See p. 7 requiring employee to describe his claims
damages
signature.
he
seeks.
The Policy does not require a
Because Plaintiff had notice of the Policy and
accepted its terms by her continued employment, she is bound by
its terms.
Defendants also insist that all of Plaintiffs’ claims
are covered by the Policy as evidenced by the long list of claims
specifically covered on page 4.
Defendants
further
maintain
that
the
Policy
was
supported by adequate consideration, i.e., Plaintiff’s continued
-7-
employment for four years.
See, e.g., Alex Sheshunoff Mgmt.
Servs., LP v. Johnson, 209 S.W. 3d 644, 665 (Tex. 2006)(holding
that an agreement conditioned on continued employment becomes
enforceable upon the employee’s continuation in the job.).
Under
Plaintiff’s no-consideration argument, no arbitration provision or
policy would ever be enforceable if the employee was terminated at
some point.
Plaintiff, herself, has claimed that she was employed by
HCA, yet simultaneously argued that HCA should not receive the
benefit of the arbitration provision.
alleged
that
HCA
unlawfully
Her Original Petition
discriminated
against
her
and
retaliated against her, violating inter alia, Title VII, a statute
under which liability extends only to “employers.”
2000e-2(a).
42 U.S.C. §
Texas Civ. Prac. & Rem. Code § 9.011 states that the
signing of pleadings constitutes a certificate by the signatory
that to the signatory’s best knowledge, information, and belief
the pleading is not groundless and brought in bad faith.
The
Policy extends to HCA in stating that its purpose is to “provide
Texas Affiliated Employers a consistent means for employees to
resolve disputes.”
Ex. A-1 at p. 4.
Thus both defendants should
receive the benefit of the arbitration provision.
Substantive Law and Its Application Here
The FAA, 9 U.S.C. § 2, provides, “A written provision in
. . . a contract evidencing a transaction involving commerce to
settle by arbitration a controversy thereafter arising out of such
contract . . . shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the revocation
-8-
of any contract.”
The term “involve” is broadly construed as
meaning “affect.”
In re Koch Industries, Inc., 49 S.W. 3d 439,
433 (Tex. App.--San Antonio 2001), citing Allied-Bruce Terminix
Co. v. Dobson, 513 U.S. 265, 277-81 (1995); In re Tenet Healthcare
Ltd., 84 S.W. 3d 760, 765 (Tex. App.--Houston [1st Dist.] 2002,).
Thus “[a] transaction “involves commerce if the transaction turns
out in fact to involve commerce even if the parties did not
contemplate an interstate connection.”
Koch, 49 S.W. 3d at 433,
citing Allied Bruce, 513 U.S. at 282.
The question is not whether
the
transaction
parties’
interstate
dispute
commerce,
concerns
but
a
whether
their
that
dispute
transaction that affects interstate commerce.
affects
concerns
a
Jack B. Anglin Co.
v. Tipps, 842 S.W. 2d 266, 271 (Tex. 1992)(“Here, the material
evidence before the court consisted of pleadings, the contract,
and Jack Anglin’s affidavit, which states that Anglin transported
material across state lines pursuant to the contract and prepared
the billings for the job in Michigan.”); In re Education Mgmt.
Corp., 14 S.W. 3d 418, 423 (Tex. App.-Houston [14th Dist.] 2000).
Diana Howell’s uncontroverted, notarized affidavit states, “Conroe
Medical Center engages in interstate commerce through the receipt
of goods and services from out of state vendors.
Conroe Regional
Medical Center also provides services to individuals who reside
outside the State of Texas.”
Ex. A.
Thus the interstate commerce
requirement is met.
Whether an arbitration agreement is enforceable is a
question of law.
In re Estate of Guerrero,
S.W. 3d
, 2015
WL 1884068, at *4 (Tex. App.--Houston [14th Dist.] Apr. 23, 2015),
-9-
citing M.M. Davidson, Inc. v. Webster, 128 S.W. 3d 223, 227 (Tex.
2003).
parties
Furthermore, “absent unmistakable evidence that the
intended the contrary,” whether it is a valid and
enforceable agreement is a matter to be determined by the court
rather than by the arbitrator.
In re Weekley Homes, LP, 180 S.W.
3d 127, 130 (Tex. 2005); In re Labatt Food Service, LP, 279 S.W.
3d 640, 643 (Tex. 2009).
The initial questions for the Court in addressing a
motion to compel arbitration are (1) was there a valid agreement
to arbitrate between the two parties and (2) does the dispute at
issue fall within the scope of that agreement.
Carey v. 24 Hour
Fitness, USA, Inc., 669 F.3d 202, 205 (5 th Cir. 2012), citing JP
Morgan Chase & Co. v. Conegie ex rel. Lee, 492 F.3d 596, 598 (5th
Cir. 2007).
After reviewing the record and the applicable law,
the Court concludes for the reasons stated below there was a valid
agreement to arbitrate and that the parties agreed to arbitrate
all of the causes of action asserted by Plaintiff here.
The liberal federal policy favoring arbitration does not
apply to the determination whether there is a valid contract to
arbitrate between the two parties; instead, because arbitration is
a matter of contract, the Court looks to “ordinary state-law
principles that govern the formation of contracts,” here the law
of Texas.
Id., citing Morrison v. Amway Corp., 517 F.3d 248, 254
(5th Cir. 2008), and AT&T Mobility LLC v. Concepcion , 131 S. Ct.
1740, 1745 (2011); see also J.M. Davidson, Inc. v. Webster, 128
S.W. 3d 223, 227 (Tex. 2003).
-10-
Whether an arbitration agreement binds a nonsignatory
is central here since none of the parties signed the agreement.
A party may prove the existence and execution of the arbitration
agreement by attaching to its motion to compel an affidavit
proving up the agreement and stating that the nonmovant entered
into the agreement, as the affidavit of Diana Howell does here
(Ex. A).
In re Estate of Guerrero,
S.W. 3d
, 2015 WL
1884068, at *6 (Tex. App.--Houston [14th Dist.] Apr. 23, 2015),
citing Citigroup Global Markets, Inc. v. Brown, 261 S.W. 3d 394,
400
(Tex.
App.--Houston
[14th
Dist.]
2002).
Moreover, as
Defendants argued, under Texas law a party may be bound by an
arbitration agreement even absent its signature:
the FAA “only
requires that an arbitration clause be in writing, without any
requirement that an arbitration clause must be signed, thus no
signatures
are
agreement.”
necessary
to
bind
parties
to
an
arbitration
Perez v. Lemarroy, 529 F. Supp. 2d 924, 9 (S.D. Tex.
2008), citing 9 U.S.C. § 2; Lora v. Providian Bancorp Servs., No.
EP-05-CA-045-DB, 2004 WL 1743878, at *3 (W.D. Tex. July 22,
2005)(lack of employer’s signature on an employment agreement did
not prevent the employer from enforcing the arbitration clause).
“Under Texas law, an employer may enforce an arbitration agreement
entered into during an at-will employment relationship if the
employee received notice of the employer’s arbitration policy and
accepted it.”
Washington v. Sears Logistics Services, Inc., No.
3:13-CV-3060-L, 2014 WL 2159253, at *4 (N.D. Tex. May 23, 2014),
citing In re Dallas Peterbilt, Ltd., LLP , 196 S.W. 3d 161, 162
(Tex. 2006).
Plaintiffs’ continued employment at the hospital
-11-
after notice of the arbitration Policy constitutes acceptance of
the arbitration policy.
PAK Foods Houston, LLC v. Garcia, 433
S.W. 3d 171 (Tex. App.-Houston [14th Dist.] 2014)(“An employer may
enforce an arbitration agreement entered during an at-will
employment relationship if the employee received notice of the
employer’s arbitration policy and accepted it by continuing to
work
after
knowledge
of
the
policy.”),
citing
In
re
Dallas
Peterbilt, 196 S.W. 3d at 162.
Under Texas law an agreement to arbitrate must be
supported by consideration.
S.W.
3d
827,
831
(Tex.
Mendivil v. Zanios Foods, Inc., 357
App.--El
Paso
2012).
Consideration
supporting an agreement may take the form of mutual promises to
submit a dispute to arbitration, as here.
In re 24R, Inc., 324
S.W. 3d 564, 566 (Tex. 2010).
A contract’s “arbitration clause is not illusory unless
one party can avoid its promise to arbitrate by amending the
provision
or
terminating
it
altogether.”
In
Healthcare, Inc., 310 S.W. 3d 419, 424 (Tex. 2010).
re
Odyssey
No language
in the contract at issue here permits unilateral amendment or
termination of the contract.
“[A] written agreement is prima facie valid and must be
enforced unless the opposing party . . . alleges and proves that
the arbitration clause itself was a product of fraud, coercion, or
such grounds as exist at law or in equity for the revocation of
the contract.”
Freudensprung v. Offshore Tech. Servs., Inc., 379
F.3d 327, 341 (5th Cir. 2004). Plaintiff has not alleged that the
-12-
arbitration agreement was the product of fraud or coercion or that
it should be revoked.
Regarding
Plaintiff’s
assertion
that
there
is
no
agreement to arbitrate between HCA, which was not her employer,
and herself, the Court disagrees.
A quick internet search reveals
that HCA is the largest healthcare provider in the United States,
with 165 hospitals and 115 freestanding surgery centers that are
locally managed; Conroe Regional Medical Center is one of those
hospitals affiliated with HCA.
Black’s Law Dictionary (6th ed.
1990) at p. 58 defines “affiliate” as “a condition of being
united; being in close connection, allied, associated, or attached
as a member or branch.”
It defines “affiliate company” as one
“effectively controlled by another company.”
further
highlights
the
fact
that
the
Id.
Binding
and
The Court
Mandatory
Arbitration Policy itself reflects a strong affiliation.
top of the Policy in very large, bold letters is HCA.
At the
The Policy
does not mention the hospital, but instead expressly and generally
addresses Company-affiliated subsidiaries in Texas.
The first
subject matter box, titled “SCOPE,” states,
All Company-affiliated subsidiaries located
in Texas including, but not limited to
hospitals,
ambulatory
surgery
centers,
outpatient
imaging
centers,
physician
practices, All About Staffing, Corporate
Departments, Groups, and Divisions
(collectively, Texas Affiliated Employers”
and
individually,
“Texas
Affiliated
Employer”).
Underneath SCOPE, it defines as its “PURPOSE”:
“To provide Texas
Affiliated Employers a consistent means for employees to resolve
disputes as outlined below in the Procedure section through
-13-
binding arbitration.”
Under “
POLICY” it provides in part, “ Under
the Mandatory Binding Arbitration Policy, both the employee and
the Texas Affiliated Employer agree to give up any right either of
them might have to a jury or judge trial regarding any issue
governed by the Mandatory Binding Arbitration Policy.”
Furthermore, the United States Supreme Court held in
Arthur Andersen, LLP v. Carlise, 556 U.S. 624, 631 (2009), that a
nonsignatory may enforce an arbitration clause against a signatory
under the FAA if the relevant state contract law permits it to do
so.
be
After Carlisle, nonsignatories to arbitration agreements can
compelled
to
arbitration
based
on
traditional
state
law
principles including piercing the corporate veil, alter ego,
third-party beneficiary theories, waiver, and estoppel.
630.
Id. at
See, e.g., Todd v. Steamship Mutual Underwriting Assoc.
(Bermuda) Ltd., 601 F.3d 329, 336 (5th Cir. 2010)(“In Carlisle, the
Supreme Court made clear that state law controls whether an
arbitration clause can apply to nonsignatories.”),
cited by
Harland Clarke Holdings, Corp. v. Milken, 997 F. Supp. 2d 561. 580
(W.D. Tex. 2014).
Indeed before
Carlisle Texas law permitted
nonsignatories to enforce an arbitration agreement against a
nonsignatory based on traditional state contract law theories.
Bridas S.A.P.I.C. v. Government of Turkmenistan, 345 F. 3d 347,
356 (5th Cir. 2003)(“Six theories for binding a nonsignatory to an
arbitration agreement have been recognized:
(a) incorporation by
reference; (b) assumption; (c) agency; (d) veil-piercing/alter
ego; (e) estoppel; and (f) third-party beneficiary.”); Cappadonna
Elec. Management v. Cameron County, 180 S.W. 3d 364, 370 (Tex.
-14-
App.--Corpus Christi 2005)(same), citing In re Kellogg, Brown &
Root, 166 S.W. 3d 732, 739 (Tex. 2005); LFD Const., Inc. v. Bryan,
324
S.W.
3d
137,
147-48
(Tex.
App.-Waco
2010).
Whether a
nonsignatory can compel arbitration under an arbitration provision
is a legal matter for the court to determine.
Opro,
Inc. v. RTD
Quality Services, USA, Inc., 761 F. Supp. 2d 492, 497 (S.D. Tex.
2011)(citing Carlisle, 556 U.S. at 630).
In Grigson v. Creative Artists Agency, LLC, 210 F.3d
524, 526-28 (5th Cir. 2000)(allowing a non-signatory to a contract
with
an
arbitration
clause
to
compel
arbitration
against
a
nonsignatory)(citing MS Dealer Serv. Corp. v. Franklin, 177 F.3d
942, 947 (11th Cir. 1999)), cert. denied, 531 U.S. 1013 (2000)),
the Fifth Circuit estopped a signatory plaintiff on equitable
estoppel grounds from using a defendant’s nonsignatory status to
prevent defendants from compelling arbitration under the agreement
when the signatory plaintiff raises allegations of substantially
interdependent and concerted misconduct by both the nonsignatory
and one or more of the signatories to the contract.
The appellate
court’s rationale was that equitable estoppel applies to limit a
party from “having it both ways.”
Id. at 528.
“A plaintiff
cannot, on the one hand seek to hold the non-signatory liable
pursuant to duties imposed by the agreement, which contains an
arbitration provision, but, on the other hand, deny arbitration’s
applicability by claiming that the defendant is a non-signatory.”
Id.
Even though neither Plaintiff nor the hospital signed the
agreement, Plaintiff, as noted, received notice of it and both
parties accepted the benefits of their employment agreement, and
-15-
are thus bound by it.
The Court agrees with Defendants that she
named HCA to the suit and asserted all claims against both
Defendants.
The Mandatory Binding Arbitration Policy references
only HCA and generally its affiliated Texas subsidiaries and
reflects substantial involvement of HCA.
Thus the Court finds
that Plaintiff is estopped from arguing that HCA cannot enforce
the arbitration provision against her.
See also In re Koch
Indus., 49 S.W. 3d 439, 447 (Tex. App.--San Antonio 2001, mandamus
denied
(June
affiliated
11,
with
2001))(holding
signatory
that
nonsignatory
defendant
company
defendants
could
enforce
arbitration agreement against signatory plaintiff when the same
operative facts were involved.);
In re Kenwood Communications
Corp., No. 04-02-00377-CV, 2003 WL 1191409, at *4 (Tex. App.--San
Antonio Mar. 12, 2003)(citing In re Koch as standing for principle
that “where claims against affiliated companies are inherently
inseparable from claims against party to agreement, arbitration
may be compelled.”).
The Court concludes that there is a valid agreement to
arbitrate
here
and
that
Plaintiff’s
continued
employment
constitutes acceptance of that agreement by both Plaintiff and
Defendants.
Sears Logistics, 2014 WL 2159253, at *4
citing In re
Dillard Dep’t Stores, 198 S.W. 3d at 780-81.
“‘[A]ny doubts concerning the scope of arbitrable issues
should be resolved in favor of arbitration.’”
(Suisse), S.A. v. Precious Flowers Ltd., 523
The Rice Co.
F.3d 528, 534 (5 th
Cir. 2008), quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24-25 (1983).
-16-
The Court finds
that
Plaintiffs’
agreement.
the
causes
of
action
fall
within
the
scope
of
that
Defendants have demonstrated that Plaintiff attended
Orientation
arbitration
Meeting and was given full notice of the
agreement.
Plaintiff’s
continued
employment
constitutes acceptance of that agreement, as does Defendants’.
In
the context of employment, mandatory arbitration agreements are
usually enforceable, as the case law demonstrates. See, e.g.,
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 124 (2001);
Rojas v. TK Commc’ns, Inc., 87 F.3d 745, 748 (5th Cir. 1996)(Title
VII claims subject to mandatory arbitration provision); Taylor v.
University of Phoenix/Apollo Group, 487 Fed. Appx. 942 (5th Cir.
2012)(FMLA and ADA)5; In re Choice Homes, Inc., 174 S.W. 3d 408,
413 (Tex. App.--Houston [14th Dist.] 2005)(defamation).
“[C]ourts
have regularly held that claims by employees arising under federal
and state employment statutes are subject to the FAA and mandatory
arbitration.” Garrett v. Circuit City Stores, Inc., 449 F.3d 672,
675
n.
(5th
1
Cir.
2006)(listing
examples).
See
also
Colt
Unconventional Resources, LLC v. Resolute Energy Corp., CA No.
3:13-CV-1324-K, 2013 WL 3789896, at *5-6 (N.D. Tex. July 19,
2013)(addressing
arbitration
of
a
tortious
interference
with
contract claim)(“Under Texas law, whether a claim falls within the
scope
of
an
arbitration
agreement
depends
on
the
factual
allegations of the complaint instead of the legal causes of action
asserted”).
5
Miller v. Public Storage Management, Inc., 121 F.3d
215, 218 (5th Cir. 1997)(“Congress did not intend to exclude the
ADA from the scope of the FAA.”).
-17-
After
the
party
seeking
to
compel
arbitration
demonstrates that a valid arbitration agreement exists, the burden
shifts to the nonmovant to establish a defense to enforcement
(e.g.,
unconscionability,
revocation).
duress,
fraudulent
inducement,
If the nonmovant fails to meet this burden, the
trial court must compel arbitration. In re FirstMerit Bank, N.A.,
52 S.W. 3d 749, 753-54 (Tex. 2001).
See also Doctor’s Assocs.,
Inc. v. Casarotto, 517 U.S. 681, 687 (Arbitration agreements, like
other contracts, may be invalidated by contract defenses like
fraud, duress, unconscionability, or waiver.); Miller Brewing Co.
v.
Fort
Worth
1986)(same).
Distrib.
Co.,
781
F.2d 494, 497 (5
th
Cir.
Plaintiff has failed to allege, no less support a
defense to enforcement here.
Although section 3 of the FAA provides that when the
court properly and mandatorily refers claims to arbitration it
shall stay the case until arbitration is complete, “[t]he weight
of authority clearly supports dismissal of the case [as opposed to
staying the suit] when all of the issues raised in the district
court must be submitted to arbitration.”
Reynolds, Inc., 975 F.2d 1161, 1164 (5
Alford v. Dean Witter
th
Cir. 1992), cited by
Innova Hosp. San Antonio, LP v. Blue Cross and Blue Shield of
Texas, 995 F. Supp. 587, 613 (N.D. Tex. 2014). See also Fedmet
Corp. v. M/V Buyalyk , 194 F.3d 674, 676 (5
th
Cir. 1999)(holding
that “district courts have discretion to dismiss cases in favor of
arbitration,: but not implying any obligation to do so.”); Apacje
Bohai Corp. LDC v. Texaco China, B.V., 330 F.3d 307, 311 n.9 (5th
Cir.
2003)(Alford
“held
that
dismissal
-18-
was
not
an
abuse
of
discretion,”
not
that
“dismissal
was
required
under the
circumstances.”). All Plaintiffs’ claims against both parties are
subject to mandatory arbitration here. Thus the Court in its
discretion chooses dismissal as the appropriate procedure.
Accordingly the Court
ORDERS that Defendants’ motion to dismiss and compel
arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. §
4, is GRANTED in full.
SIGNED at Houston, Texas, this
10th
day of
July ,
2015.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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