Csukardi v. Platinum Corral,LLC

Filing 15

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on February 16, 2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

WHITNEY CSUKARDI,

CIVIL ACTION NO. 6:16-cv-00064
Plaintiff,

v.

MEMORANDUM OPINION

PLATINUM CORRAL, LLC,

JUDGE NORMAN K. MOON
Defendant.

This is an Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.,
discrimination case relating to Plaintiff’s employment as a server at Defendant’s restaurant. The
only issue at stake in this motion to dismiss is whether the arbitration agreement (the
“Agreement”) between the parties is valid and enforceable. The Agreement is before the Court as
an attachment to the motion to dismiss, and the Court may consider the outside document
because the dispute relates to jurisdiction.
Plaintiff argues that the signed Agreement is unenforceable and thus that she is not
required to arbitrate this dispute. Specifically, Plaintiff argues that: (1) the Agreement was not
voluntary, (2) the Agreement is missing material terms, and (3) the Agreement lacks
consideration. None of these arguments are persuasive. Thus, the Court will hold that the
Agreement is valid and the dispute is subject to arbitration, depriving this Court of jurisdiction
under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “FAA”). The Court will dismiss the
case and order the Plaintiff to submit her dispute to arbitration.

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I.

Facts as Alleged
Plaintiff is an employee of Golden Corral, working in the restaurant as a server. (Dkt. 1 at

¶6).1 Plaintiff has worked as a server in the restaurant since April 24, 2013. (Id. at ¶9). She was
diagnosed with multiple sclerosis (“MS”), which is a disability. (Id. at ¶10). Defendant knew of
Plaintiff’s disability, including the fact that she was hospitalized due to a flare up in December
2011. (Id. at ¶¶14, 15). Plaintiff’s doctors recommended she take a week or two off to recover
following the hospitalization. (Id. at ¶16). Following her hospitalization, Plaintiff’s shifts were
reduced to only one day per week. (Id. at ¶ 17).
In July 2012 Plaintiff provided her managers at Golden Corral, including General
Manager Mike Sisk, with a note from her neurologist stating that she was unable to work night
shifts due to her disability. (Id. at ¶18). Despite her neurologist’s note, Sisk primarily gave
Plaintiff night shifts and an additional server was hired to cover day shifts. (Id. at ¶23) Since July
2012, Plaintiff has submitted multiple requests for the accommodation of only working day
shifts, but still has not been granted them (Id. at ¶¶24, 25). Plaintiff believed the reduction in
hours was in retaliation for her request to work day shifts, and filed an EEOC charge to that
extent on March 13, 2013. (Id. at ¶30).
Plaintiff began to work at a law firm part-time as a source of additional income in
January 2015, while continuing to work at Golden Corral on the weekends. (Id. at ¶31).
However, she quit that job the next month and returned to working only at Golden Corral
because she was told she would receive more hours there. (Id. at ¶¶32, 33). Those additional
hours never materialized, so Plaintiff began accepting shifts from other servers. (Id. at ¶35).
However, Sisk refused to allow her to work others’ shifts, even though other servers were

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Defendant Platinum Corral, LLC does business as “Golden Corral.” Subsequent briefings
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commonly permitted to do so. (Id. at ¶36). In additional to the limitation on the number of days
and shifts she could work, Sisk also began to release Plaintiff from work shortly after her shift
began. (Id. at ¶37). Plaintiff continues to work only weekend shifts even though she has told
management she is available to work any day during the week. (Id. at ¶38).
On February 13, 2013, Sisk issued a write-up to Plaintiff after a customer allegedly
complained about her service, even though that customer had left her a large tip. (Id. at ¶40).
Sisk issued another write-up four days later for another alleged customer complaint. (Id. at ¶41).
After the second write-up, Sisk suspended Plaintiff from work for one day as a disciplinary
action. (Id. at ¶43). When Plaintiff asked for a copy of the write-ups, Sisk insinuated that she was
asking for them so that she could take them to the lawyer for whom she had worked.2 (Id. at
¶44). When she actually received them, she noticed that several portions had been scratched out.
(Id. at ¶45).
Plaintiff is asserting two causes of action stemming from the alleged misconduct. First,
she asserts a claim for ADA discrimination arising from Defendant’s refusal to provide her with
the reasonable accommodation of working day shifts. Second, she puts forth an ADA retaliation
claim that her hours were reduced and a one-day suspension given as a result of her seeking a
reasonable accommodation for her disability. Defendant has filed a motion to dismiss pursuant to
Rule 12(b)(1), arguing that this controversy is governed by a binding arbitration agreement that
denies this Court jurisdiction.
II.

Standard of Review

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Plaintiff’s timeline becomes muddled here. The write-ups allegedly occurred in 2013, but
she began working at the law firm in January 2015. Therefore, it is not clear how Sisk, in 2013,
could be referencing conduct that had not yet occurred. Perhaps Plaintiff has confused her dates
or perhaps Sisk was referencing a prior legal employer not mentioned in Plaintiff’s complaint.
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The parties disagree as to whether Defendant’s motion is properly adjudicated at the
motion to dismiss stage rather than at summary judgment. Plaintiff asserts that Defendant’s
motion cannot be heard as a motion to dismiss because Defendant’s argument relies on
documents outside of the pleadings, namely the Agreement attached to the motion to dismiss.
(See dkt. 10 at 1).
Plaintiff’s argument is incorrect. The applicability of an arbitration agreement is a
question of jurisdiction. See Huntington Alloys, Inc. v. United Steelworkers of Am., 623 F.2d 335,
338 (4th Cir. 1980); 9 U.S.C. § 4 (“A party aggrieved by the alleged failure . . . to arbitrate under
a written agreement for arbitration may petition any United States district court which, save for
the agreement, would have had jurisdiction under title 28 . . . .” (emphasis added)). Materials
outside of the pleadings may be considered on motions to dismiss for lack of jurisdiction. See
Blitz v. Napolitano, 700 F.3d 733, 736 n.3 (4th Cir. 2012) (quoting Velasco v. Gov’t of
Indonesia, 370 F.3d 392, 398 (4th Cir. 2004)). Other courts have adopted similar reasoning in the
context of arbitration disputes. See, e.g. Lomax v. Weinstock, Friedman & Friedman, P.A., No.
CIV. CCB-13-1442, 2014 WL 176779, at *2 (D. Md. Jan. 15, 2014), aff’d sub nom. Lomax v.
Weinstock, Friedman & Friedman, P.A., 583 F. App’x 100 (4th Cir. 2014); Joyner v. GE
Healthcare, No. 4:08-2563-TLW-TER, 2009 WL 3063040, at *2 (D.S.C. Sept. 18, 2009).
Attacks on subject matter jurisdiction under Rule 12(b)(1) are categorized as either
“facial” or “factual.” A facial challenge is one which argues that “the complaint simply fails to
allege facts upon which subject matter jurisdiction can be based.” Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). A factual challenge is one in which it is “contended that the jurisdictional
allegations of the complaint were not true.” Id. Here, the challenge is factual because it requires
evaluation of a document extrinsic to the complaint itself. See U.S. ex rel. TBI Investments, Inc.

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v. BrooAlexa, LLC, 119 F. Supp. 3d 512, 523–24 (S.D. W. Va. 2015). For factual attacks, courts
apply the summary judgment standard in evaluating the motion and “the nonmoving party must
set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.”
Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991). The plaintiff bears the burden of establishing that subject matter jurisdiction exists.
Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999); Piney Run Preservation Ass’n v. Cnty.
Comm’rs of Carroll Cnty., Md., 523 F.3d 453, 459 (4th Cir. 2008). “The moving party should
prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled
to prevail as a matter of law.” Richmond, 945 F.2d at 769.
III.

Discussion
The controversy at this stage is whether Plaintiff signed a valid and enforceable

arbitration agreement that would deprive this Court of jurisdiction to hear the case. Generally,
the FAA holds that “[a] written provision in . . . a contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter arising out of such contract or
transaction, or the refusal to perform the whole or any part thereof . . . shall be valid, irrevocable,
and enforceable.” 9 U.S.C. § 2. “Congress enacted the FAA in 1925 ‘to reverse the longstanding
judicial hostility to arbitration agreements that had existed at English common law and had been
adopted by American courts, and to place arbitration agreements upon the same footing as other
contracts.’” Dillon v. BMO Harris Bank, N.A., 787 F.3d 707, 712 (4th Cir. 2015) (quoting
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)). “The FAA manifests an
‘emphatic federal policy in favor of arbitral dispute resolution,’ and requires that courts
‘rigorously enforce agreements to arbitrate.’” Dillon, 787 F.3d at 712 (quoting Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985), and Dean Witter Reynolds,
Inc. v. Byrd, 470 U.S. 213, 221 (1985)).
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Arbitration agreements apply with equal force in the ADA context. In Gilmer v.
Interstate/Johnson Lane Corp., the Court held that statutory claims are subject to arbitration
“unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the
statutory rights at issue.” 500 U.S. at 26. While Gilmer involved arbitration under the Age
Discrimination in Employment Act (“ADEA”), subsequent cases have extended its logic to the
ADA. See Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir. 1996);
Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141 (1st Cir. 1998). The language of the ADA, rather
than evincing an “inherent conflict” with arbitration of disputes, actually expressly permits the
arbitration of disputes. 42 U.S.C. § 12212 (“Where appropriate and to the extent authorized by
law, the use of alternative means of dispute resolution, including . . . arbitration, is encouraged to
resolve disputes arising under this chapter.”); see Gilmer, 500 U.S. at 26 (stating that Congress’s
intent to prevent waiver of judicial forum can be found “in the text of the [statute], its legislative
history, or an ‘inherent conflict’ between arbitration and the [statute’s] underlying purposes”).
Courts in the Fourth Circuit routinely enforce arbitration agreements in suits alleging statutory
claims under the ADA. See, e.g. Harvey v. Darden Rest., Inc., No. 1:14CV258, 2015 WL
1474946, at *2 (M.D.N.C. Mar. 31, 2015), report and recommendation adopted, No.
1:14CV258, 2015 WL 2381176 (M.D.N.C. May 18, 2015).
In the Fourth Circuit, the “[a]pplication of the FAA requires demonstration of four
elements: (1) the existence of a dispute between the parties, (2) a written agreement that includes
an arbitration provision which purports to cover the dispute, (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 defendant to arbitrate the dispute.” Galloway v. Santander
Consumer USA, Inc., 819 F.3d 79, 84 (4th Cir. 2016) (internal quotation marks omitted).

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Defendant asserts that Plaintiff is bound to arbitrate under the language of the Agreement
which reads: “[A]ll claims related to [Plaintiff’s] recruitment, employment with, or termination
from the Company shall be deemed waived unless submitted to final and binding arbitration in
accordance with the rules of the arbitration provider.” (Dkt. 6 at 2; dkt. 6-1). The Agreement
further provides that “in the event that either [party] seeks relief in a court of competent
jurisdiction by a dispute covered by Agreement, the other may, at any time within 60 days of the
service of the complaint, require the dispute to be arbitrated, and that the decision and award of
the arbitrator shall be final binding, and enforceable in the courts.” (Id.)
The only issue in contention is whether the Agreement is valid and enforceable. Plaintiff
does not contest that she signed the Agreement, that the Agreement purports to apply to their
dispute, or any of the other elements under the Fourth Circuit’s formulation in Galloway.
Instead, Plaintiff raises several specific objections to the validity of the Agreement. Plaintiff
argues the agreement in unenforceable because, according to the terms of the Agreement and
Defendant’s arbitration policy (the “Policy”), she would have been forced to arbitrate her dispute
regardless of whether she signed the Agreement. Plaintiff also argues that the Agreement is
unenforceable because it is missing material terms. Finally, Plaintiff claims that the Agreement
lacks consideration. Plaintiff’s various objections are addressed in turn.
a. The Agreement Was Voluntary
Plaintiff brings several objections related to the voluntariness of the Agreement. Because
both the Policy and the Agreement state that disputes are subject to arbitration regardless of the
presence of a signed arbitration agreement, Plaintiff argues that the Agreement has no legal
effect. Similarly, Plaintiff argues that she could not have knowingly agreed to arbitration when
she was required to undergo arbitration regardless of whether she signed the Agreement. Finally,

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Plaintiff argues that the unequal bargaining power between the parties means she could not have
voluntarily agreed to arbitration.
Plaintiff’s argument that the Agreement would have applied even absent her signing of
the document does not advance her cause. The clause in the Agreement stating that Plaintiff’s
“employment will nevertheless remain at all times subject to and conditioned upon your
participation in this arbitration procedure regardless of whether you sign a copy of the form” is
an enforceable term. Such a clause is valid because the FAA only requires a “writing,” but not
necessarily a signed contract. See MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 248–49 (4th Cir.
2001); Krusch v. TAMKO Bldg. Prod., Inc., 34 F. Supp. 3d 584, 589 (M.D.N.C. 2014)
(“Arbitration agreements must be in writing, 9 U.S.C. § 2, but they need not be signed to be
enforceable.”). Assent to an arbitration agreement in the absence of a signed document may be
manifested by an employee beginning or continuing to work for the employer, knowing that they
have implemented a binding arbitration policy. Phillips v. Mazyck, 273 Va. 630, 636, 643 S.E.2d
172, 175 (2007) (“We ascertain whether a party assented to the terms of a contract from that
party's words or acts . . . .”); see also Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359,
1369–70; (11th Cir. 2005) (“[T]he employees' acceptance was by continuing their employment
and was not in writing. . . .”). The Agreement, therefore, is enforceable as written. Further,
because Plaintiff has actually signed the Agreement, there is no doubt of her intent to assent to its
terms.
Even if Plaintiff were correct that challenged term somehow makes the Agreement null
and void, she would still be bound to arbitration by the terms of the Policy. Arbitration policies
similar to Defendant’s — where a party agrees to arbitration without executing a signed
agreement — are routinely upheld so long as they meet the normal requirements of a contract.

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See Caley 428 F.3d at 1369–70 (“[T]he overwhelming weight of authority supports the view that
no signature is required to meet the FAA’s ‘written’ requirement.”). Further, whether an
unsigned arbitration policy binds the parties “is a question of the parties’ intent.” Perez v.
Lemarroy, 592 F. Supp. 2d 924, 930–31 (S.D. Tex. 2008). Here, the Agreement serves to evince
Plaintiff’s clear intent to be bound to submit her claims to arbitration. Further, the potentially
duplicative ways of manifesting assent does not cause them both to become invalidated. See,
e.g., Brookins v. Superior Mgmt. Grp., Inc., No. 13-2051-EFM-JPO, 2013 WL 5819706, at *3
(D. Kan. Oct. 29, 2013) (“Here, Brookins accepted Superior's offer both by signing the policy
and by continuing as an at-will employee of Superior.”). The presence of the Agreement
enhances, rather than detracts from, the enforceability of the Policy.
Plaintiff’s also invokes a heighted “knowing” standard for the voluntariness of arbitration
agreements. See Penn v. Ryan’s Family Steakhouses, Inc., 95 F. Supp. 2d 940, 952–53 (N.D. Ind.
2000), aff’d and remanded sub nom. Penn v. Ryan’s Family Steak Houses, Inc., 269 F.3d 753
(7th Cir. 2001) (“The Ninth Circuit has taken a stance on the waiver issue in this context,
expressly holding that when an employee enters into an arbitration agreement, that waiver of a
judicial forum must be ‘knowing.’” (citing Kummetz v. Tech Mold, Inc., 152 F.3d 1153, 1155
(9th Cir. 1998))). However, Plaintiff presents no authority to suggest that the standard has been
adopted in the Fourth Circuit. Further, the concern in line of Ninth Circuit cases cited in Penn
was the lack of an express agreement, which is not a concern here where a signed arbitration
agreement exists. See Kummetz, 152 F.3d at 1155; Nelson v. Cyprus Bagdad Copper Corp., 119
F.3d 756, 762 (9th Cir.1997) (“Any bargain to waive the right to a judicial forum for civil rights
claims, including those covered by the ADA, in exchange for employment or continued
employment must at the least be express: the choice must be explicitly presented to the employee

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and the employee must explicitly agree to waive the specific right in question.”). Even if the
standard were applicable, it is difficult to fathom how Plaintiff’s signing of an agreement which
purports to cover the exact controversy here does not satisfy the “knowing” standard.
Plaintiff’s argument regarding her unequal bargaining power is similarly unpersuasive.
As an initial matter, Plaintiff does not specify the legal effect of the alleged unequal bargaining
power. The Court may surmise, from the rest of Plaintiff’s argument, that the unequal bargaining
position somehow rendered the contract unenforceable, possibly under a theory of
unconscionability. The Court need not proffer a full unconscionability analysis here because
Plaintiff did not properly raise this ground. In any event, it will suffice to say that there is not
sufficient evidence before the Court for it to rule the Agreement was unconscionable. See Piney
Run Preservation Ass’n, 523 F.3d at 459 (holding that a plaintiff “bears the burden of proving
that subject-matter exists” in a 12(b)(1) motion). To the extent Plaintiff argues that mere unequal
bargaining power eliminated any voluntariness of her signing of the Agreement, her claim is
legally insufficient. “Simply because an employer and an employee do not stand on equal footing
with respect to bargaining power does not magically transform an employment agreement into an
adhesion contract.” Zaklit v. Global Linguist Solutions, LLC, 53 F.Supp.3d 835, 845–46 (E.D.
Va. 2014).
b. The Agreement is Not Missing Material Terms
Plaintiff also offers the argument that the arbitration agreement is unenforceable because
it is incomplete. Plaintiff claims it is missing material terms such as “a full description of terms
regarding claims to be covered and excluded from arbitration, terms regarding notice of all
claims, terms regarding arbitration procedures, and terms regarding payment of fees and
expenses.” (Dkt. 10 at 9).

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Generally, it is true that a contract may be unenforceable if it is missing material terms.
See Saza, Inc. v. Zota, No. 3:11-CV-363, 2012 WL 527370, at *5 (E.D. Va. Feb. 16, 2012)
(“Essentially, a district court must conclude that an agreement has been reached on all the
material terms, otherwise, the purported agreement is unenforceable.” (citing Ozyagcila v. Davis,
701 F.2d 306, 308 (4th Cir. 1983))). Here, however, Plaintiff has merely offered the legal
conclusion that the contract is missing material terms without explaining how the terms were
material or even, in some cases, how the terms were missing. For example, the procedures to
govern arbitration are not considered a material term in arbitration agreements.3 See Davis v.
ECPI Coll. of Tech., L.C., 227 F. App’x 250, 253 (4th Cir. 2007); Dockser v. Schwartzberg, 433
F.3d 421, 426 (4th Cir. 2006). Arbitration fees and expenses are also not material terms required
for a valid arbitration agreement. Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d 302, 306
(4th Cir. 2001) (“[F]ailure of an arbitration agreement to address costs and fees does not alone
make the agreement unenforceable.” (citing Green Tree Fin. Corp.–Alabama v. Randolph, 531
U.S. 79, 121 S.Ct. 513, 522 (2000))).
Turning to the missing “description of terms regarding claims to be covered and excluded
from arbitration,” Plaintiff has failed to present a compelling argument that these terms are even
missing. (See dkt. 10 at 9). The Agreement explicitly applies to “all claims relating to your
recruitment, employment with, or termination of employment” and further specifies numerous
types statutory claims to which it applies. (Dkt. 6-1). Notably, the Agreement specifically

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It is not clear exactly what Plaintiff was referencing when she stated that “terms
regarding notice of all claims” were also missing. (See dkt. 10 at 9). However, it is likely the
notice terms could be considered arbitration “procedures” and thus nonmaterial. Alternatively, it
is unlikely the notice term would be considered material when similar concerns, such as
arbitration procedures and fees, are not. Regardless, the Court will not hold the Agreement
unenforceable on the basis of an alleged missing term which is vaguely referenced but not
adequately argued.
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“covers all matters directly or indirectly related to your recruitment, employment or termination
of employment . . . including, but not limited to, allegations of violations of . . . the Americans
with Disabilities Act of 1990 (‘ADA’).” (Id.) Plaintiff’s conclusory statement that specific
descriptions are missing flies in the face of the plain language of the Agreement.
Plaintiff also argues that that the Agreement is unenforceable because it does not
expressly incorporate the terms of the Policy. Again, Plaintiff does not fully explain the legal
significance of this contention, but the Court will assume Plaintiff is arguing that the Agreement
cannot be complete without incorporating some of the terms found only in the Policy. Without
Plaintiff specifying which terms found only in the Policy render the Agreement unenforceable, it
is impossible for the Court to fully evaluate this argument. However, to the extent that Plaintiff is
arguing that the Policy contains arbitration procedures, notice, and fees not contained in the
Agreement, that argument fails for the reasons discussed earlier.
c. The Agreement did not lack consideration
Plaintiff’s third argument — that the Agreement lacks consideration — is without merit.
The law in Virginia is clear that a mutual agreement to arbitrate constitutes sufficient
consideration for both parties. See O’Neil v. Hilton Head Hosp., 115 F.3d 272, 275 (4th Cir.
1997) (“A mutual promise to arbitrate constitutes sufficient consideration for this arbitration
agreement.”); Price v. Taylor, 251 Va. 82, 85, 466 S.E.2d 87, 88 (1996) (“[I]t is well established
that mutual promises in a contract constitute valuable consideration.”); see also Tarpley v.
Livings, No. 4:16-CV-00021, 2016 WL 4537751, at *4 (W.D. Va. Aug. 30, 2016); McNeil v.
Haley S., Inc., No. 3:10CV192, 2010 WL 3670547, at *6 (E.D. Va. Sept. 13, 2010); Louis v.
Geneva Enterprises, Inc., 128 F. Supp. 2d 912, 915 (E.D. Va. 2000).

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Plaintiff, however, states that the Agreement did not mutually bind both parties to
arbitration. (See dkt. 10 at 10–11). This argument is frivolous, as Plaintiff cites no language in
support of her claim and ignores the clear language of the Agreement indicating that the promise
is mutual. Specifically, the Agreement states that: (1) there are “mutual promises,” (2) “in the
event either party files . . . a court action . . . the plaintiff in such action agrees not to request . . .
its right to trial by jury,” (3) “you and the Company . . . agree that all claims . . . shall be deemed
waived unless submitted to final and binding arbitration,”4 (4) “if either party seeks relief in a
court . . . the other may . . . require the dispute to be arbitrated.” (Dkt. 6-1) (emphasis added).
The Court, therefore, holds that the parties were subject to a binding arbitration
agreement which covered the scope of the present controversy. Plaintiff’s various arguments
regarding the unenforceability of the signed Agreement are unpersuasive.
d. The Correct Remedy is Dismissal
Given the conclusion that the parties were bound by an arbitration agreement, the Court
must now turn to the proper remedy. Defendant urges that the entire case be dismissed and
ordered into arbitration, rather than just stayed pending the resolution of arbitration.
The FAA provides two explicit remedies for cases such as this. Under Section 3, a Court
should “stay the trial of the action until such arbitration has been had.” 9 U.S.C. § 3. Under
Section 4, a Court may “make an order directing the parties to proceed to arbitration in
accordance with the terms of the agreement.” 9 U.S.C. § 4. However, the Fourth Circuit has also
stated that “dismissal is a proper remedy when all issues presented in a lawsuit are arbitrable.”
Choice Hotels Int’l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709–10 (4th Cir. 2001);

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This language appears twice in the Agreement.
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see also Lomax, 2014 WL 176779 at *2 (“Courts have found it proper to dismiss claims subject
to arbitration agreements under both Rule 12(b)(1) and Rule 12(b)(6).”).
Here, Plaintiff’s only claim is under the ADA and related to her employment. (See dkt.
1). The Agreement specifically covers ADA claims relating to employment such as this. (See
dkt. 6-1). All of Plaintiff’s claims are thus arbitrable in this suit. Under Choice Hotels, therefore,
dismissal is a proper remedy. The Court will follow the rule established in Choice Hotels and
dismiss Plaintiff’s suit under Rule 12(b)(1). Further, the Court will order the parties to proceed to
arbitration pursuant to the terms of their agreement.
IV.

Conclusion
The uncontroverted facts in this case show that Plaintiff and Defendant entered into an

agreement to arbitrate any disputes relating to Plaintiff’s employment, including any disputes
under the ADA. Plaintiff’s various arguments against the enforceability of the agreement are
unpersuasive, and the Court holds that the Agreement was valid and enforceable. Contrary to the
terms of the Agreement, Plaintiff filed a lawsuit under the ADA that related to her employment
without first arbitrating the dispute. This Court, therefore, lacks jurisdiction to hear this
controversy under the terms of the parties’ Agreement and the FAA. The complaint will be
dismissed, and the parties will be ordered to submit their dispute to arbitration. An appropriate
Order will issue.
The Clerk of the Court is directed to send a certified copy of this Memorandum Opinion
to all counsel of record.

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16th
Entered this ______ day of February, 2017.

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