Blount v. Northrop Grumman Information Technology Overseas, Inc. et al

Filing 29

MEMORANDUM OPINION - For the reasons set forth, the Court will grant Defendants Motion to Compel Arbitration and stay this action pending arbitration. An appropriate order will follow.. Signed by District Judge James C. Cacheris on 10/14/14. (gwalk, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

CARLOTTA BLOUNT,
Plaintiff,
v.
NORTHRUP GRUMMAN INFORMATION
TECHNOLOGY OVERSEAS, INC.
et al.,
Defendants.

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M E M O R A N D U M

1:14cv919 (JCC/TCB)

O P I N I O N

This matter is before the Court on Defendant Northrop
Grumman Information Technology Overseas, Inc.’s (“Defendant” or
“Northrop Grumman”) Motion to Compel Arbitration [Dkt. 19] and
corresponding Memorandum in Support [Dkt. 20].

Plaintiff

Carlotta Blount (“Plaintiff” or “Blount”) has brought this
action for harassment, retaliation, wrongful termination,
failure to prevent discrimination and harassment, wage and hour
violations, and breach of contract.
[Dkt. 1] Ex. 1.)

(See Notice of Removal

For the reasons set forth below, the Court

will grant Northrup Grumman’s motion and stay this case pending
arbitration.
I. Background
Carlotta Blount was employed by Northrop Grumman as a
Network Engineer III from September 2010 through March 21, 2012.

(Notice of Removal [Dkt. 1], Ex. 1, Compl. ¶ 2 [hereinafter
Compl.].)
44.)

Her employment required her to work overseas.

(Id. ¶

As a condition of employment, Blount entered into an

International Assignment Agreement (“IAA”).
at 18-21 [hereinafter IAA].) 1
an arbitration clause. 2

(See Compl., Ex. 1,

Relevant here, the IAA contained

Under a section labeled “Miscellaneous,”

it stated: “4.1. Arbitration of Disputes.

You acknowledge that

any employment-related legal claims during or after your
Assignment will be subject to the Northrop Grumman
Mediation/Binding Arbitration Program CO-H103A (“H103A”), but
that the arbitration hearing and related proceedings shall be
convened and conducted in McLean, VA U.S. [sic].”

(IAA at 19.)

The IAA also contained a forum-selection clause selecting
Virginia state and federal courts as the appropriate forum for
any disputes relating to the IAA.

(Id.)

The H103A program requires both employees and Northrop
Grumman “to submit all claims covered by this Program to binding
1

Pagination of all exhibits is according to CM/ECF.
Generally, a district court does not consider extrinsic materials when
evaluating a complaint under Rule 12(b)(6). It may, however, consider
“documents incorporated into the complaint by reference.” Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also Blankenship
v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006). In addition, the court
may consider documents attached to the defendant’s motion to dismiss if those
documents are central to the plaintiff’s claim or are “sufficiently referred
to in the complaint,” so long as the plaintiff does not challenge their
authenticity. Witthohn v. Fed. Ins. Co., 164 F. App’x 395, 396–97 (4th Cir.
2006). Northrop Grumman seeks dismissal of the complaint. (Def.’s Mem. in
Supp. [Dkt. 20] at 12.) Therefore, with respect to the scope of materials
that this Court can consider, this Court will treat Northrop Grumman’s motion
as a motion to dismiss. Accordingly, the IAA, which is attached to Blount’s
state court complaint, and Northrop Grumman’s arbitration policy, which
accompanies its motion, are properly before the Court.
2

arbitration, rather than to have such claims heard by a court or
jury.”
H103A].)

(Muhly Decl. [Dkt. 22], Ex. A, at 3 [hereinafter
The arbitration program applies
to any claim, controversy, or dispute, past,
present, or future:
which in any way arises out of, relates
to,
or
is
associated
with
your
employment
with
the
Company,
the
termination of your employment or any
communications
with
third
parties
regarding
or
related
to
your
employment;
and as to which a court would
authorized by law to grant relief
the claim were successful.

Id.

be
if

Examples of claims included in the program are: claims for

wages or other compensation due; unlawful retaliation claims;
breach of contract claims; unlawful discrimination or harassment
claims,

including

but

not

limited

to

discrimination

or

harassment based on race, sex, religion, national origin, age,
disability,

or

any

other

status

as

protected

and

defined

by

applicable law; benefits (unless expressly excluded); and any
violation of applicable federal, state, or local law.
4.

Id. at 3-

No employee is required to arbitrate any claim under Title

VII of the Civil Rights Act of 1964 or any tort related to or
arising out of sexual assault or harassment.

Id. at 4.

Blount filed this action in the Superior Court for San
Diego County on December 31, 2013.

(See Compl.)

She alleged

six causes of action: harassment in violation of the California
Fair Employment and Housing Act (“FEHA”) (“Count 1”) (Compl. ¶¶
46-51); retaliation, in violation of FEHA (“Count 2”); (Comp. ¶¶
52-57);

failure

to

prevent

discrimination

and

harassment,

in

violation of the FEHA (“Count 3”) (Compl. ¶¶ 58-63); wrongful
termination, in violation of public policy (“Count 4”) (Compl.
¶¶ 64-69); state statutory wage and hour violations (“Count 5”)
(Compl. ¶¶ 70-81); and breach of contract (“Count 6”) (Compl. ¶¶
82-87.).

Northrop Grumman is named as a defendant as to all

counts.

In

Count

1,

Blount

also

names

John

McCann,

Grant

Bunderson, Rudy Velasquez, and Does 1 through 40 as defendants. 3
(Compl. ¶¶ 46-51.)

Northrop Grumman removed the case to the

U.S. District Court for the Southern District of California on
the basis of diversity jurisdiction.

(Notice of Removal at 2.)

It then moved to compel arbitration or, in the alternative, to
transfer venue.

([Dkt. 10.].)

Without reaching the issue of

arbitrability, the Court transferred the action here.

(7/23/14

Mem. Op. [Dkt. 16] at 5.)
Northrop

Grumman

filed

the

instant

motion

and

supporting memorandum on August 12, 2014 [Dkts. 19, 20].
hearing on the motion was set for September 25, 2014.
23].)
3

A

([Dkt.

Local Civil Rule 7(F)(1) provides that a party opposing a

In the July 23, 2014 order, Judge Bencivengo stated that the “docket does
not evidence that plaintiff has yet served the three individual defendants.”
(7/23/14 Mem. Op. [Dkt. 16] at 3 n.1.) This Court’s review of the docket
also determines that the individual defendants have not been served.

motion

“shall

documents

as

service[.]”

file
are

a

responsive

appropriate,

brief

within

and

such

eleven

(11)

E.D. Va. Local Civ. R. 7(F)(1).

supporting
days

after

Rule 6(d) of the

Federal Rules of Civil Procedure adds three days to this period
if

service

is

made

under

Rule

5(b)(2)(E),

service to be made through electronic means.

which

for

Given these rules,

Blount’s response was due on August 26, 2014.
and went without any filing from her.

allows

That date came

On September 16, the

Court informed both parties that it would take the case on the
papers.
hearing

On
on

opposition.

September

25,

the

Northrup

Grumman’s

date

originally

motion,

Blount

set

for

filed

the
her

([Dkt. 27].)

Having been briefed, Northrop Grumman’s motion is ripe
for adjudication.
II. Legal Standard
The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–15,
was intended to “create a body of federal substantive law of
arbitrability, applicable to any arbitration agreement within
the coverage of the Act.”

Power Sys. & Controls, Inc. v.

Schneider Elec. USA, Inc., No. 3:10CV137, 2010 WL 2384537, at *1
(E.D. Va. June 9, 2010) (quoting Moses H. Cone Mem'l Hosp. v.
Mercury Const. Corp., 460 U.S. 1, 24 (1983)).

The FAA reflects

a liberal national policy favoring arbitration agreements.
(citation omitted).

“[A]ny doubts concerning the scope of

Id.

arbitrable issues should be resolved in favor of arbitration,
whether the problem at hand is the construction of the contract
language itself or an allegation of waiver, delay, or a like
defense to arbitrability.”
at 24.

Moses H. Cone Mem’l Hosp., 460 U.S.

Thus, “the heavy presumption of arbitrability requires

that when the scope of the arbitration clause is open to
question, a court must decide the question in favor of
arbitration.”

Peoples Sec. Life Ins. Co. v. Monumental Life

Ins. Co., 867 F.2d 809, 812 (4th Cir. 1989).
The FAA provides that in a suit brought in any of the
courts of the United States:
upon any issue referable to arbitration
under an agreement in writing for such
arbitration, the court . . . upon being
satisfied that the issue involved in such
suit
or
proceeding
is
referable
to
arbitration under such an agreement, shall
on application of one of the parties stay
the
trial
of
the
action
until
such
arbitration has been had in accordance with
the terms of the agreement.
9 U.S.C. § 3.

If there is a failure or refusal to arbitrate

under a written agreement, an aggrieved party may petition the
court “for an order directing that such arbitration proceed in
the manner provided for in such agreement.”

9 U.S.C. § 4.

III. Analysis
Before considering the merits of this motion, this
Court must first address Blount’s untimely filing.

Blount’s

opposition was approximately one month late.
Blount move for an extension of time.
6(b)(1)(B).

At no point did

See Fed. R. Civ. P.

Furthermore, she filed her opposition after the

Court advised both parties that it was taking the case on the
papers, a decision motivated by the lack of any responsive
filing by Blount.

Therefore, the Court declines to consider

Blount’s opposition in ruling on this motion.

See Smith v.

Donahoe, 917 F. Supp. 2d 562, 567-68 (E.D. Va. 2013) (granting
defendant’s motion to strike plaintiff’s opposition brief that
was filed two weeks late).
Notwithstanding this, the Court decides this motion,
which is functionally equivalent to a motion to dismiss, on its
merits.

A number of federal courts have declared that a motion

to dismiss may be properly granted without reaching the merits
on grounds that a plaintiff’s failure to respond is a concession
that the motion should be granted or that dismissal is an
appropriate sanction for failure to respond.

See Osborne v.

Long, No. 1:11-cv-00070, 2012 WL 851106, at *10 n.5 (S.D. W.Va.
Mar. 13, 2012) (collecting cases).

As one court has noted,

however, “if a motion to dismiss is granted solely because it
has not been opposed, the case is simply not being dismissed
because the complaint failed to state a claim upon which relief
may be granted.

Rather, it is dismissed as a sanction[.]”

Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991).

There is no local rule in this district that mandates dismissal
for failure to respond, and this Court declines to adopt one.
Therefore, the motion to compel arbitration will be considered
on its merits.
A. Arbitration
In the Fourth Circuit, a court must compel arbitration
and stay the litigation if the moving party can demonstrate:
(1) the existence of a dispute between the
parties,
(2) a written agreement that includes
arbitration
provision
which
purports
cover the dispute,

an
to

(3) the relationship of the transaction,
which is evidenced by the agreement, to
interstate or foreign commerce, and
(4) the failure, neglect or refusal of the
[non-movant] to arbitrate the dispute.
Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th Cir.
2002).

Factors one, three, and four are not challenged here.

There is a dispute between the parties.

The transaction is

related to interstate or foreign commerce, as Blount is a
Georgia resident employed by a Virginia company and worked
overseas.

Finally, Blount has refused to arbitrate her claims.

(Def.’s Mem. in Supp. [Dkt. 20] at 2.)

Thus, the only issues to

be resolved here are whether the written agreement between the
two parties purporting to consent to arbitration is valid and
covers the claims at issue.

1. Enforceability of the Arbitration Agreement
An arbitration agreement may be found unenforceable
only if the party resisting arbitration can prove a generally
applicable contract formation defense, such as fraud, duress, or
unconscionability.

AT&T Mobility, LLC v. Concepcion, 131 S. Ct.

1740, 1746 (2011); see also 9 U.S.C. § 2.

In her complaint,

which is Plaintiff’s only operative filing before this Court,
Blount has made no allegation that any of these contract
defenses apply.

Nor does she allege that she did not

voluntarily sign the agreement.

Therefore, the arbitration

agreement is valid and enforceable. 4
2. Scope of the Arbitration Agreement
The Court also finds that the IAA covers all the
claims at issue here.

The IAA states that the parties will

submit “any employment-related legal claims” to binding
arbitration.

(IAA at 19.)

not apply here.

4

The exceptions to that program do

Blount’s complaint does not allege a cause of

Three individual defendants, all employees of Northrup Grumman, were named
in the complaint filed in California state court. To date, they have not yet
been served with notice of this lawsuit. (See Def.’s Mem. in Supp. at 11.)
Furthermore, Blount’s complaint states the individual defendants are citizens
of California, and Northrup Grumman contends that this Court may not have
personal jurisdiction over them. Id. However, even if these parties were
properly before this Court, it would not preclude compelling arbitration.
“A non-signatory may invoke an arbitration clause under ordinary state-law
principles of agency or contract.” Long v. Silver, 248 F.3d 309, 320 (4th
Cir. 2001). As the individual defendants are sued for events that “were
committed within the scope of their employment, agency, or other similar
relationship” with Northrup Grumman (Compl. ¶ 49), claims against those
defendants (if they are ever served) must also be arbitrated. Furthermore,
the addition of these parties to the lawsuit does not prevent Northrup
Grumman from arbitrating claims against it.

action under Title VII.

Nor do her state law claims of

discrimination in violation of California statutes constitute a
“tort related to or arising out of sexual assault or harassment,
including assault and battery, intentional infliction of
emotional distress, false imprisonment, or negligent hiring,
supervision, or retention.”

(H103A at 4.)

Blount has not

alleged any common law causes of action for sexual harassment or
discrimination.

Even if she had, however, the underlying

conduct of her allegations concern preferential treatment
allegedly received by a colleague because of that colleague’s
consensual relationship with a supervisor.

This does not form

the basis for a sexual harassment claim under California law.
Proskel v. Gattis, 49 Cal. Rptr. 2d 322, 324 (Cal. Ct. App.
1996) (“Where, as here, there is no conduct other than
favoritism toward a paramour, the overwhelming weight of
authority holds that no claim of sexual harassment or
discrimination exists.”); see also Miller v. Dep’t of
Corrections, 115 P.3d 77, 80 (Cal. 2005) (“[A]lthough an
isolated instance of favoritism on the part of a supervisor
toward a female employee with whom the supervisor is conducting
a consensual sexual affair ordinarily would not constitute
sexual harassment, when such sexual favoritism in a workplace is
sufficiently widespread it may create an actionable hostile work

environment[.]”)

Therefore, all of Blount’s claims are subject

to arbitration.
B. Remedy
Northrup Grumman has brought this motion to compel
arbitration under Section 3 of the FAA.
at 1.)

(Def.’s Mem. in Supp.

Pursuant to § 3, should a district court be satisfied

that a valid arbitration agreement exists, it “shall . . . stay
the trial of the action until such arbitration has been had[.]”
9 U.S.C. § 3 (emphasis added); see Adkins, 303 F.3d at 500
(stating the FAA’s stay of litigation provision is
“mandatory.”).

Northrup Grumman urges the Court to dismiss the

action in its entirety because all of the claims are subject to
arbitration.

It cites to Choice Hotels Intern., Inc. v. BSR

Tropicana Resort, Inc., which states “[n]otwithstanding the
terms of § 3, however, dismissal is a proper remedy when all of
the issues presented in a lawsuit are arbitrable.”

252 F.3d

707, 709-10 (4th Cir. 2001); see also Wheeling Hosp., Inc. v.
Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577, 584
(4th Cir. 2012) (“Notably, Choice Hotels concerned whether
dismissal was an authorized remedy under § 3[.]”).
The Fourth Circuit has noted tension between its
decision in Choice Hotels and Hooters of America, Inc. v.
Phillips, 173 F.3d 933, 937 (4th Cir. 1999) (indicating a stay
is required when the arbitration agreement covers the matter in

dispute). 5

In its most recent decision on this topic, the Fourth

Circuit declined to reach whether dismissal was an appropriate
remedy under § 3 because the arbitration agreement was
unenforceable for lack of mutual consideration.

Noohi v. Toll

Bros., Inc., 708 F. 3d 599, 605 n.2 (4th Cir. 2013).

The Noohi

decision leaves the conflict between Choice Hotels and Hooters
of America intact.

However, this Court’s interpretation of

Choice Hotels leads it to the conclusion that the quoted
language upon which Northrup Grumman relies is dicta.

In Choice

Hotels, the Fourth Circuit found that at least one of the claims
was not arbitrable, and thus dismissal was not a proper remedy.
Choice Hotels, 252 F.3d at 712.

Thus, the language Northrup

Grumman relies upon was extraneous to the Fourth Circuit’s
judgment in Choice Hotels.

Accordingly, this Court will stay

the litigation pending the outcome of arbitration.
Zachry Indus., Inc.,

See Green v.

--F. Supp. 2d --, No. 7-11CV00405, 2014 WL

1232413, *8 (W.D. Va. Mar. 25, 2014) (ordering case stayed
pending arbitration, even when all claims subject to
arbitration, due to “uncertainty” in Fourth Circuit case law).

5

This intra-circuit tension mirrors a circuit split on this issue. Compare
Cont’l Cas. Co v. Am. Nat’l Ins. Co., 417 F.3d 727, 732 n.7 (7th Cir. 2005)
(“[T]he proper course of action when a party seeks to invoke an arbitration
clause is to stay the proceedings pending arbitration rather than to dismiss
outright.”), with Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164
(5th Cir. 1992) (“The weight of authority clearly supports dismissal of the
case when all of the issues raised in the district court must be submitted to
arbitration.”).

IV. Conclusion
For the reasons set forth above, the Court will grant
Defendant’s Motion to Compel Arbitration and stay this action
pending arbitration.

October 14, 2014
Alexandria, Virginia

An appropriate order will follow.

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE