Poole-Ward v. Affiliates for Women's Health, P.A.

Filing 20

MEMORANDUM AND OPINION entered DENYING AS MOOT #17 Opposed MOTION for ReconsiderationOpposed MOTION to Stay Issuance or Execution of Order to Compel Arbitration, GRANTING #7 MOTION to Compel Arbitration and Dismiss or Stay Litigation. Order of dismissal to follow. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

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United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
REBECCA POOLE-WARD,
Plaintiff,
VS.

AFFILIATES FOR WOMEN’S
HEALTH, P.A.,
Defendant.

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September 07, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-885

MEMORANDUM AND OPINION
The plaintiff, Dr. Rebecca Poole-Ward, worked as an obstetrician and gynecologist for
Affiliates for Women’s Health, a medical practice in Brazos County, Texas. She alleges that
Affiliates denied her reasonable accommodations for her disabilities and eventually terminated her
because of discrimination based on her disabilities. Dr. Poole alleged that Affiliates violated the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and her written employment agreement.
She sued under the Act and state contract law. (Docket Entry No.1). Affiliates moved to dismiss
in favor of arbitration, Dr. Poole responded, Affiliates replied, and Dr. Poole sur-replied. (Docket
Entry Nos. 7, 10, 11, and 13). The court held a hearing at which counsel presented oral argument
on the motion to dismiss. The court indicated its belief that the motion should be granted under
applicable clear law and that an opinion would issue analyzing the motion and responses in detail.
After the hearing, Dr. Poole filed an unfair labor practices complaint with the National Labor
Relations Board. (Docket Entry No. 17, Ex. 1). She then filed a motion to reconsider or stay the
execution of the not-yet-issued order dismissing in favor of arbitration, (Docket Entry No. 17),

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asking the court to rule that the arbitration agreement violates the National Labor Relations Act,
29 U.S.C. § 151 et seq. Affiliates filed a response in opposition to that motion, and Dr. Poole filed
a reply. (Docket Entry Nos. 17–18).
Based on the filings, arguments, and applicable law, the motion to dismiss in favor of
arbitration under the parties’ employment agreement is granted. Because the motion to reconsider
or stay execution of the order was filed before the court ruled on the motion to compel arbitration,
it is denied as moot.
I.

Background
This employment disability-discrimination and contract dispute requires the court to consider

the intersection of the Federal Arbitration Act and the National Labor Relations Act. In this
litigation, Dr. Poole alleged that she has a number of disabilities, including attention-deficit
hyperactivity disorder, migraines, and posttraumatic stress disorder due to an assault. Dr. Poole
alleged that her disabilities have substantially impaired her capacity to work, sleep, care for herself,
and interact with others, and that she has headaches, weight loss, difficulty sleeping, emotional
anxiety, paranoia, flashbacks, and fear in certain circumstances. She alleged that she asked for the
following accommodations from Affiliates: time off to rest or recuperate from her migraine
episodes, to take medication for her disabilities, and to go to doctor’s appointments; that one
Affiliates employee not wear a wristwatch that was similar to the one worn by Dr. Poole’s assailant;
that Affiliates employees not discuss the details of Dr. Poole’s assault; a reduction in the number
of hours she was on call after hours for emergencies; and that Affiliates allow her to switch on-call
coverage if she experienced a posttraumatic-stress-disorder event that resulted in the loss of sleep.

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Dr. Poole alleged that Affiliates granted some of her requested accommodations but denied
others. She alleged that Affiliates ridiculed and questioned her accommodation requests and did not
explain, document, or engage in interactive dialogue when it denied her requests. She alleged that
her termination for failing to perform her duties was a pretext for terminating her based on disability
discrimination. She alleged that Affiliates violated the Americans with Disabilities Act by denying
her reasonable accommodations for, and terminating her on the basis of, her disabilities. She also
alleged that Affiliates breached their written employment agreement by terminating her.
Dr. Poole’s employment agreement contains an arbitration clause. The clause covers, with
an exception not relevant here, any “dispute, claim or controversy arising out of or relating to this
Agreement, the employment of the Doctor by the Association or the relationships between the
Doctor and any member of the Association or its employees . . . pursuant to the Texas Arbitration
Act, [TEX. CIV. PRAC. & REM. CODE § 171].” (Docket Entry No. 7, Ex. 1). Dr. Poole does not
dispute that the agreement exists or that it encompasses the claims she asserted in the complaint.
(Docket Entry No. 10).
In its motion to dismiss and compel arbitration, Affiliates argues that this lawsuit must be
dismissed in favor of the arbitration the parties contracted for. (Docket Entry No. 7). Dr. Poole
responds that although she signed the employment agreement with a generally enforceable broad
arbitration clause encompassing her claims, the arbitration clause is nonetheless unenforceable
because it unlawfully interferes with her rights under the National Labor Relations Act. (Docket
Entry No. 10). She argues that the arbitration clause is so broad that an employee would reasonably
interpret it to prohibit the filing of an unfair labor practices complaint with the National Labor
Relations Board. She argues that the Board and Fifth Circuit have held that employers may not

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maintain or enforce arbitration agreements that violate the Act, and that the “lawfulness of the
arbitration term is to be decided independently of Dr. Poole’s actions.” (Docket Entry No. 17 at
p.2). Affiliates responds that Dr. Poole did not raise any claim under the National Labor Relations
Act in her original complaint; Dr. Poole was either a supervisor or a professional, not an employee
covered by the Act; the arbitration agreement is not a company-wide agreement, which distinguishes
it from the agreements discussed in the cases Dr. Poole cited; Dr. Poole presented no authority
supporting her claim that the arbitration agreement is invalid as to her; and Dr. Poole filed her
National Labor Relations Board complaint too late to make it a basis to refuse arbitration. (Docket
Entry No. 18).
The parties’ arguments and responses are analyzed under the applicable legal standards.
II.

The Legal Standards
In Texas, a party asking a court to compel arbitration must show “(1) an agreement to

arbitrate; and (2) the opposing party’s refusal to arbitrate.” TEX. CIV. PRAC. & REM. CODE
§ 171.021; see, e.g., G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d. 502, 520
(Tex. 2015). When a contract contains a clause specifying Texas law (as here), but does not exclude
the applicability of the Federal Arbitration Act, both the Federal and Texas Arbitration Acts apply.
Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d 327, 338 n.7 (5th Cir. 2004).
Under the Federal Act, a written agreement 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. The Act reflects “a liberal policy favoring arbitration agreements,” AT&T Mobility
LLC v. Concepcion, 563 U.S. 333, 346 (2011), and places arbitration agreements “upon the same

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footing as other contracts,” Schnabel v. Trilegiant Corp., 697 F.3d 110, 118 (2d Cir. 2012) (quoting
Scherk v. Alberto–Culver Co., 417 U.S. 506, 511 (1974)).
Enforcement of an arbitration agreement involves two threshold analytical steps governed
by state contract law. Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201 (5th Cir. 2016). The
first step is contract formation—to determine whether the parties entered into “any arbitration
agreement at all.” Id. While arbitration agreements, like other contracts, may be invalidated by
contract defenses like fraud, duress, unconscionability, or waiver, none applies here. Doctor’s
Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996). Because of the strong presumption in favor
of arbitration, “a party seeking to invalidate an arbitration agreement bears the burden of
establishing its invalidity.” Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 297 (5th Cir.
2004). It is undisputed that Dr. Poole and Affiliates agreed to arbitrate. The second analytical step
is contract interpretation—to determine whether the claim at issue is covered by the arbitration
agreement. Kubala, 830 F.3d at 201. The Fifth Circuit has “instructed that ‘a court is required to
enforce a party’s commitment to arbitrate his federal statutory claims.’” Reyna v. Int’l Bank of
Commerce, 839 F.3d 373, 378 (5th Cir. 2016) (quoting Carter, 362 F.3d at 297). It is undisputed
that the claims Dr. Poole asserted in her complaint fall within the arbitration clause. The issue is
whether Dr. Poole’s recent National Labor Relations Board claim makes the arbitration clause
unenforceable.
III.

Analysis
The Board has broad and exclusive authority to remedy unfair labor practices within its

purview. The only unfair labor practice alleged here is that the arbitration clause is so broad that
a reasonable employee would believe it precluded her from filing an unfair labor practices complaint

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with the Board. Dr. Poole’s statutory disability-discrimination and common-law breach-of-contract
damages claims can be raised as private causes of action only in court or in arbitration. The Fifth
Circuit has held that “there is no private cause of action against employers to prevent and remedy
unfair labor practices under the NLRA; enforcement is left, instead, to the Board.” D.R. Horton, Inc.
v. NLRB, 737 F.3d 344, 360 n.9 (5th Cir. 2013). But when an activity is arguably subject to the
National Labor Relations Act, federal courts must defer to the “exclusive competence” of the
National Labor Relations Board. San Diego Bldg. Trades Council, Millmen’s Union, Local 2020
v. Garmon, 359 U.S. 236, 245 (1959).
Dr. Poole relies on Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013, 1019 (5th Cir. 2015),
cert. granted, 137 S. Ct. 809 (2017), and D.R. Horton, 737 F.3d at 363. The issue in those cases was
whether a reasonable employee would construe the arbitration agreement as prohibiting her from
filing an unfair labor practices complaint with the Board. The arbitration agreements in both cases
contained broad language similar to the language in the agreement here. The Fifth Circuit enforced
the Board’s orders requiring the employers to either rescind or revise the agreements to make clear
that they did not bar employees from bringing unfair labor practice claims before the Board. The
court reasoned that “[t]he problem is that broad ‘any claims’ language can create ‘the reasonable
impression . . . that an employee is waiving not just [her] trial rights, but [her] administrative rights
as well.’” Murphy Oil, 808 F.3d at 1019 (quoting D.R. Horton, 737 F.3d at 363–64). The Fifth
Circuit did not address whether the arbitration clauses were unenforceable in a motion to dismiss
a lawsuit alleging federal statutory and state common-law damages claims like those Dr. Poole raises
here.

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Several circuit courts have addressed one aspect of the question the Fifth Circuit did not face,
whether a broad, otherwise valid, arbitration clause is unenforceable in litigation because it could
mislead an employee to refrain from filing a Board complaint. These cases address whether an
arbitration agreement forbidding class arbitration for employment disputes violates the National
Labor Relations Act. Four cases addressed this in the context of private litigation, with different
results.
In Morris v. Ernst & Young, LLP and Lewis v. Epic Systems Corp., the Ninth and Seventh
Circuits found that the arbitration agreements were unenforceable because they could mislead
employees into refraining from filing Board complaints, holding that the Federal Arbitration Act’s
saving clause prevented enforcement. Morris v. Ernst & Young, LLP, 834 F.3d 975, 987 (9th Cir.
2016), cert. granted, 137 S. Ct. 809 (2017) (“[W]hen an arbitration contract professes to waive a
substantive federal right, the saving clause of the FAA prevents the enforcement of that waiver.”);
Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1155 (7th Cir. 2016), cert. granted, 137 S. Ct. 809 (2017)
(“Because the provision at issue is unlawful under Section 7 of the NLRA, it is illegal, and meets
the criteria of the FAA’s saving clause for nonenforcement.”).
In Sutherland v. Ernst & Young LLP and Owen v. Bristol Care, Inc., the Second and Eighth
Circuits found nothing in the National Labor Relations Act or the Fair Labor Standards Act that
would prohibit waiving the statutory right to pursue a collective or class action in arbitration and
granted the motion to compel arbitration. Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297 (2d
Cir. 2013) (per curiam) (“[T]he FLSA does not include a ‘contrary congressional command’ that
prevents the underlying arbitration agreement from being enforced by its terms.”); Owen v. Bristol

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Care, Inc., 702 F.3d 1050, 1052 (8th Cir. 2013) (“[T]he FLSA contains no ‘contrary congressional
command’ as required to override the FAA.”).
The present case, in contrast, involves neither a class or collective action, a class- or
collective-action waiver, the assertion of claims before the Board that could only proceed in
litigation or arbitration, or a Board decision finding that an arbitration agreement violated the
National Labor Relations Act and ordering that the language be rescinded or revised as the remedy.

This case is far different from the Fifth Circuit cases Dr. Poole cites as well. In D.R. Horton,
the employer appealed a National Labor Relations Board decision that class- or collective-action
waivers in an arbitration agreement were unlawful under the National Labor Relations Act. D.R.
Horton, 737 F.3d at 355. In rejecting the Board’s position that class- or collective-action waivers
in an arbitration agreement made it unenforceable, the Fifth Circuit stated that:
[t]he NLRA should not be understood to contain a congressional command
overriding application of the FAA. The burden is with the party opposing
arbitration, . . . and here the Board has not shown that the NLRA’s language,
legislative history, or purpose support finding the necessary congressional command.
Because the Board’s interpretation does not fall within the FAA’s “saving clause,”
and because the NLRA does not contain a congressional command exempting the
statute from application of the FAA, the [arbitration agreement] must be enforced
according to its terms.
Id. The Fifth Circuit affirmed the Board’s determination that the arbitration clause could be
reasonably interpreted as prohibiting an employee from filing a claim with the Board, but the only
remedy was to require the employer to take corrective action “to clarify with its employees that the
arbitration agreement did not eliminate their rights to pursue claims of unfair labor practices with
the Board.” Id. at 348. The Fifth Circuit did not invalidate the arbitration agreement.

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Murphy Oil similarly held that class-action waivers in an employment arbitration agreement
did not make it unenforceable, stating that the employer “did not commit unfair labor practices by
requiring employees to sign its arbitration agreement or seeking to enforce its agreement in federal
district court.” Murphy Oil, 808 F.3d at 1015. As in D.R. Horton, the court affirmed the Board’s
decision directing the employer to “clarify language in its arbitration agreement applicable to
employees . . . to ensure they underst[ood] that they [were] not barred from filing charges with the
Board.” Id. Neither D.R. Horton nor Murphy Oil support refusing to compel arbitration of claims
subject to an arbitration agreement because the agreement does not specifically exclude an
employee’s right to file claims with the National Labor Relations Board. The Fifth Circuit rejected
this requirement, stating: “We do not hold that an express statement must be made that an
employee’s right to file Board charges remains intact before an employment arbitration agreement
is lawful.” Id. at 1019.
This case, unlike D.R. Horton and Murphy Oil, comes to the court on a motion to compel
arbitration of federal statutory discrimination and state common-law contract claims that seek
damages and that do not involve the Board. The only claim the Board is asked to consider is the
challenge to the effect of the arbitration clause on claims Dr. Poole did not assert in her Board
complaint. The Board could not consider the claims Dr. Poole asserts in her complaint in this
litigation or award the damages Dr. Poole seeks. Invalidating the arbitration agreement would
permit a private plaintiff asserting statutory and common-law rights of action for damages, which
the Board could not grant, to litigate the type of claims she clearly and validly agreed to arbitrate.
To the extent that the arbitration agreement would dissuade a reasonable employee not to file a
Board complaint, Dr. Poole’s only remedy would be to file a charge with the Board asking it to order

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Affiliates to revise or rescind the arbitration clause in its employment agreements to make clear that
it does not preclude employees from filing unfair labor practices complaints with the Board. The
availability of that remedy for the alleged National Labor Relations Act violation does not make this
arbitration clause unenforceable on a motion to dismiss in favor of arbitrating damages claims that
the Board could not adjudicate.
This case is also distinguishable from the Seventh and Ninth Circuit cases. In Morris, 834
F.3d at 975, and Lewis, 823 F.3d at 1147, private plaintiffs resisted enforcement of the arbitration
agreements in their employment contracts with the defendants because those agreements prohibited
class- or collective-action arbitration. The courts refused to compel arbitration on the ground that
the National Labor Relations Act provided the right to proceed on a collective basis. Because the
arbitration agreements required individual arbitration and prohibited class proceedings, the courts
found that the agreements conflicted with the National Labor Relations Act and were unenforceable
under the Federal Arbitration Act. Unlike those cases, the arbitration clause here contains no classor collective-action waiver. As applied to Dr. Poole, it allows her to arbitrate the statutory and
common-law damages claims she could not recover on before the Board. There is no contrary
congressional command from the National Labor Relations Act to override the mandate of the
Federal Arbitration Act in favor of arbitration. D.R. Horton, 737 F.3d at 355.
Dr. Poole agreed to arbitrate the claims for damages and the other relief she seeks in court.
She pursued the claims in litigation and, only after filing this suit, filed a complaint with the
National Labor Relations Board. Dr. Poole is simultaneously seeking to enforce her employment
agreement by asserting a breach-of-contract damages claim and to invalidate that agreement’s
arbitration clause. Dr. Poole has not met her burden of overcoming the strong presumption in favor

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of arbitration and of establishing that the arbitration agreement is invalid. The motion to dismiss
in favor of arbitration is granted.
IV.

Conclusion
Dr. Poole’s breach-of-contract and employment-discrimination claims fall within the scope

of the broad arbitration clause in the employment agreement she signed. The motion to dismiss in
favor of arbitration, (Docket Entry No. 7), is granted. The motion to reconsider or stay execution
of the order, (Docket Entry No. 17), is denied as moot. A dismissal order is separately entered.
SIGNED on September 7, 2017, at Houston, Texas.
______________________________________
Lee H. Rosenthal
Chief United States District Judge

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