Perkins v. Dish Network, LLC

Filing 14

MEMORANDUM OPINION AND ORDER: Defendant's MOTION to Stay Litigation andCompel Arbitration is GRANTED. The court DENIES Defendant's MOTION to Dismiss.The Clerk is DIRECTED to forward a copy of this Memorandum Opinion and Order to counsel of record. Signed by Senior Judge David A. Faber on 6/30/2017. (cc: counsel of record) (mk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ETHELOMA RENEE PERKINS,
Plaintiff,
v.

Civil Action No. 1:17-02039

DISH NETWORK, LLC,
Defendant.

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION

Plaintiff Etheloma Renee Perkins (“Plaintiff”) brought this
civil suit against Defendant DISH Network, LLC (“Defendant”).
Plaintiff claims that during the course of her employment with
Defendant, the latter discriminated against her on the
impermissible bases of race and sex in contravention of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
Section 2000e, et seq. (“Title VII”).

See Doc. No. 1.

Defendant has moved to dismiss this action, or in the
alternative, to stay litigation and compel arbitration.
Doc. Nos. 6—7.

See

Defendant so contends on the ground that at the

outset of Plaintiff’s employment, Plaintiff signed an
Arbitration Agreement (“Agreement”) expressly agreeing to
resolve all disputes with Defendant through the formal and
compulsory arbitration procedures the Agreement stipulates.

II.

FEDERAL LAW

The FAA governs this case because it applies to arbitration
agreements in most employment contracts.

Enacted in 1925, the

FAA responded to the “hostility of American courts to the
enforcement of arbitration agreements, a judicial disposition
inherited from then-longstanding English practice.”

Circuit

City Stores, Inc. v. Adams, 532 U.S. 105, 111 (2001).

The FAA’s

coverage provision, § 2, states:
[a] written provision in any maritime
transaction or 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, or an agreement in writing to
submit to arbitration an existing
controversy arising out of such a contract,
transaction, or refusal, 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 (emphasis added).

“[T]he FAA was enacted pursuant

to Congress’ substantive power to regulate interstate commerce
and admiralty.” Circuit City Stores, 532 U.S. at 112 (citing
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 405
(1967)).

“[T]he [FAA] was applicable in state courts and pre-

emptive of state laws hostile to arbitration.”

Id.

The Supreme

Court has construed § 2 and particularly “the words ‘involving
commerce,’ . . . as implementing Congress’ intent ‘to exercise
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[its] commerce power to the full.’”

Id.

Under prevailing Supreme Court precedent, Congress may
regulate “the channels of interstate commerce,” “persons or
things in interstate commerce,” and “those activities that
substantially affect interstate commerce.”

United States v.

Morrison, 529 U.S. 598, 609 (2000) (internal quotation marks
omitted).

The FAA goes exactly that far.

The Supreme Court has

observed that “the advantages of the arbitration process [do
not] somehow disappear when transferred to the employment
context.”

Circuit City Stores, 532 U.S. at 123.

This is

because “[a]rbitration agreements allow parties to avoid the
costs of litigation, a benefit that may be of particular
importance in employment litigation, which often involves
smaller sums of money than disputes concerning commercial
contracts.”

Id.

There is no doubt that Plaintiff’s employment contract,
dated September 20, 2008 until January 7, 2016, “involv[ed]
commerce,” within the Supreme Court’s understanding.
2.

9 U.S.C. §

Not only does Defendant conduct business in many interstate

and foreign locations, a fact with which Plaintiff should have
been acquainted from the outset of signing her Agreement, but
Plaintiff herself admits that Defendant “sen[t] her to perform
[her] duties . . . within and without the continental United
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States,” Doc. No. 1, including foreign locations.

Some of these

“locations included, but were not limited to, the Philippines in
July and September 2013; to Mexico in September 2013; to
Phoenix, Arizona, twice, one time being June 2014; and to
Christiansburg, VA on two occasions, one being in January 2014.”
Id.

Accordingly, the Agreement falls within the scope of the

FAA, and Wood’s third prong has been satisfied.

It is “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 United States Court of Appeals for the Fourth Circuit
has held that under the Federal Arbitration Act (“FAA”), 9
U.S.C. §§ 1-16, a party can compel arbitration if it
establishes: “(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.”

Am. Gen. Life and Accident Ins. Co. v. Wood, 429 F.3d

83, 87 (4th Cir. 2005) (citations and internal quotation marks
omitted).

This case requires the court to determine whether

those prongs have been satisfied.
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III. ARBITRATION AGREEMENT’S TEXT
The text of this standard, boilerplate Agreement now comes
into play.

See Doc. No. 6-B.

Of course, “a party cannot be

required to submit to arbitration any dispute which he has not
agreed so to submit.”

Am. Recovery Corp. v. Computerized

Thermal Imaging, 96 F.3d 88, 92 (4th Cir. 1996) (citations and
internal quotation marks omitted).

That said, FAA-centric

federal policy instructs that “any doubts concerning the scope
of 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.”

Moses H. Cone Memorial Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 24—25 (1983).

Some of the

provisions are:
• Defendant will pay for the arbitrator and related
arbitration fees and expenses;
• The substantive law of the state in which the employee
works or last worked for Defendant will govern;
• The AAA procedural rules govern the arbitration;
• The location will be the city in which the employee works
or last performed services for Defendant;
• The prevailing party in any arbitration pursuant to the
Agreement will be entitled to attorneys’ fees and costs; and
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• The existence of the Agreement does not alter the at-will
status of the employee.
Doc. No. 7; Doc. No. 6-A (Leyba Decl.).
The Agreement unambiguously states that “any claim,
controversy and/or dispute between [Plaintiff and Defendant],
arising out of and/or in any way related to [Plaintiff’s]
application for employment, employment and/or termination of
employment, whenever and wherever brought, shall be resolved by
arbitration.”

Doc. No. 6-B.

There can be no serious dispute

that the Agreement covers Plaintiff’s employment dispute
concerning racial and gender discrimination in the course of her
employment and the opportunities denied.

However, even if there

were such doubts, the court would have to deploy a “heavy
presumption of arbitrability”—“when the scope of the arbitration
clause is open to question, a court must decide the question in
favor of arbitration”—and, thus, recognize that the Agreement
covers Plaintiff’s employment dispute.

Levin v. Alms and

Associates, Inc., 634 F.3d 260, 266 (4th Cir. 2011) (citation
and internal quotation marks omitted).

Thus, Wood’s first prong

has been satisfied.
Finally, Plaintiff claims that because the National Labor
Relations Board (“NLRB”) has held this Agreement to violate the
National Labor Relations Act (“NLRA”), that should somehow
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affect our FAA analysis too.

See Doc. No. 10.

This is false

since the Supreme Court has construed the FAA to “require[]
courts to enforce agreements to arbitrate according to their
terms.”

CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012).

Such arbitration agreements must be held enforceable “unless
Congress itself has [clearly] evinced an intention” to override
the FAA’s command.

Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 628 (1985).

What the NLRB

perceives as consistent or inconsistent with the NLRA is its
business, and not the court’s.
IV.

WEST VIRGINIA CONTRACT LAW

The remaining question is whether any “grounds . . . exist
at law or in equity for the revocation of [this] contract.”

Id.

Such contractual defenses include laches, estoppel, waiver,
fraud, duress, or unconscionability.

The court shall consult

applicable West Virginia law to make that determination.
A. VALIDITY OF THE CONTRACT
Concerning the validity of this Agreement, no problems
regarding laches, estoppel, waiver, fraud or duress are evident.
West Virginia law is clear that in order for a valid contract to
be formed, mutual assent must exist.

New v. GameStop, Inc., 232

W. Va. 564, 572 (2013); Ways v. Imation Enterprises Corp., 214
W. Va. 305, 313 (2003).

“In order for this mutuality to exist,
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it is necessary that there be a proposal or offer on the part of
one party and an acceptance on the part of the other. Both the
offer and acceptance may be by word, act or conduct that evince
the intention of the parties to contract. That their minds have
met may be shown by direct evidence of an actual agreement . .
..”

Ways, 214 W. Va. at 313 (citations and internal quotation

marks omitted).

In West Virginia, “[t]he elements of a contract

are an offer and an acceptance supported by consideration.”

Dan

Ryan Builders, Inc. v. Nelson, 230 W. Va. 281, 287 (2012).
Defendant gave Plaintiff the Agreement containing all of
its terms and conditions upon the commencement of Plaintiff’s
employment with Defendant.

When Plaintiff signed the Agreement,

she agreed to comply with the Agreement, including the arbitral
provisions.

See Doc. No. 6-A (Leyba Decl.).

Thus, offer,

acceptance and mutual assent existed in this Agreement.
Additionally, adequate consideration existed since Defendant
agreed to submit all employment disputes to arbitration.

See

id.; O’Neil v. Hilton Head Hosp., 115 F.3d 272, 275 (“A mutual
promise to arbitrate constitutes sufficient consideration for
[an] arbitration agreement.”); Adkins v. Labor Ready, Inc., 303
F.3d 496, 501 (4th Cir. 2001) (“[Mutual] promise to arbitrate
[their] claims is a fortiori adequate consideration for [an]
agreement.”); Johnson v. Circuit City Stores, 148 F.3d 373, 378
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(4th Cir. 1998) (“[N]o consideration [is required] above and
beyond the agreement to be bound by the arbitration process”).
B. UNCONSCIONABILITY
Plaintiff levels procedural as well as substantive
unconscionability arguments.

“The doctrine of unconscionability

means that, because of an overall and gross imbalance, onesidedness or lop-sidedness in a contract, a court may be
justified in refusing to enforce the contract as written. The
concept of unconscionability must be applied in a flexible
manner, taking into consideration all of the facts and
circumstances of a particular case.”

Syllabus Point 12, Brown

v. Genesis Healthcare Corp., 228 W. Va. 646 (2011), overruled in
part on other grounds, 565 U.S. 530 (2012).

West Virginia law’s

“analysis of whether the arbitration agreement at issue is
unconscionable necessarily involves an inquiry into the
circumstances surrounding [its] execution and the fairness of
[it] as a whole.”

New, 232 W. Va. at 576 (citations and

internal quotation marks omitted).

In fact, “[a] determination

of unconscionability must focus on the relative positions of the
parties, the adequacy of the bargaining position, the meaningful
alternatives available to the plaintiff, and the existence of
unfair terms in the contract.”

Id. (citations and internal

quotation marks omitted).
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With respect to procedural unconscionability, this doctrine
in West Virginia law “involves a variety of inadequacies that
results in the lack of a real and voluntary meeting of the minds
of the parties, considering all the circumstances surrounding
the transaction.”
omitted).

Id. (citations and internal quotation marks

Under state law, “[t]hese inadequacies include, but

are not limited to, the age, literacy, or lack of sophistication
of a party; hidden or unduly complex contract terms; the
adhesive nature of the contract; and the manner and setting in
which the contract was formed, including whether each party had
a reasonable opportunity to understand the terms of the
contract.”

Id. (citations and internal quotation marks

omitted).
The Agreement was a contract of adhesion, as are “the bulk
of contracts signed in this country.”
internal quotation marks omitted).

Id. at 577 (citations and

That does not inherently

render a contract procedurally unconscionable.

Plaintiff has

offered no evidence that she suffered from any inadequacies that
might have made the Agreement lop-sided in any meaningful sense.
What is more, the fact that Plaintiff can observe today that, in
her view, her qualifications and experience surpassed those whom
Defendant hired for vacant positions indicates that Plaintiff
suffered from no want of sophistication, literacy or inability
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to comprehend the Agreement’s terms.

See Doc. No. 1.

Nor are

the Agreement’s terms particularly abstruse or complex.
Doc. No. 6-B.

See

Plaintiff also has not demonstrated that signing

the Agreement was a Hobson’s choice for her.

Under similar

circumstances, West Virginia’s highest court and this court have
rejected unconscionability arguments.

See, e.g., New, 232 W.

Va. at 578 (“The petitioner’s bald assertions that the
arbitration agreement is procedurally unconscionable because the
agreement was not subject to negotiation and because she was
unemployed and had no other ‘meaningful alternatives available
to her’ other than to sign the Acknowledgment are simply not
sufficient.”); Montgomery v. Applied Bank, 848 F. Supp.2d 609,
616 (S.D.W. Va. 2012) (concluding that where plaintiff did not
offer evidence “that she had no other alternative but to enter
into a credit card agreement with ... defendant[,] ... [she]
wholly fail[ed] to put forth any evidence that the Agreement was
procedurally unconscionable other than her assertion that [it]
was a contract of adhesion, which ... does not in itself make a
contract procedurally unconscionable.”); State ex rel. Clites v.
Clawges, 224 W. Va. 299, 306 (2009) (determining that although
arbitration agreement entered into upon plaintiff’s employment
was a contract of adhesion because the “entire Agreement is
boiler-plate language that was not subject to negotiation and
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there is no contention . . . that the Petitioner had any role or
part in negotiating [its] terms[,]” the agreement was not
unconscionable).
Substantive unconscionability “involves unfairness in the
contract itself and whether a contract term is one-sided and
will have an overly harsh effect on the disadvantaged party.”
Syllabus Point 19, Brown, 228 W. Va. at 646.

Ordinarily,

“courts should consider the commercial reasonableness of the
contract terms, the purpose and effect of the terms, the
allocation of the risks between the parties, and public policy
concerns.”

Id.

“In assessing substantive unconscionability,

the paramount consideration is mutuality.”

New, 232 W. Va. at

579 (citations and internal quotation marks omitted).
Furthermore, “[a]greements to arbitrate must contain at least a
modicum of bilaterality to avoid unconscionability."

Id.

(emphasis added; citations and internal quotation marks
omitted).

This Agreement carries the mutual assent to arbitrate

and, therefore, does not give rise to “a disparity in the rights
of the contracting parties such that it is one-sided and
unreasonably favorable to one party.”

Id. (citations and

internal quotation marks omitted).
*

*

*

Consequently, as far as West Virginia law is concerned,
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there is nothing unconscionable about this Agreement.
entirety of Wood’s second prong has been satisfied.
Plaintiff has failed to arbitrate her claims.
to the federal courthouse.
satisfied.

Thus, the

Lastly,

She came straight

Thus, Wood’s fourth prong has been

Even though Plaintiff now drops her objection to

Defendant’s Motion to Dismiss or Stay Proceeding Pending
Arbitration, see Doc. No. 13, this opinion resolutely explains
why Defendant has a right to compel arbitration.

This is to

avoid future unfair prejudices against Defendant.
V.

CONCLUSION

Accordingly, Defendant’s Motion to Stay Litigation and
Compel Arbitration is GRANTED.

The court DENIES Defendant’s

Motion to Dismiss.
The Clerk is DIRECTED to forward a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 30th day of June, 2017.
ENTER:
David A. Faber
Senior United States District Judge

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