United States District Court, N.D. Alabama, Southern Division
E. Ott Chief United States Magistrate Judge
action, Scarlet Summer Gillian (“Plaintiff”)
brings claims against her former employer, Cowabunga, Inc.
(“Cowabunga”), and a former co-employee,
Kristopher Clemens (“Clemens”) (collectively,
“Defendants”). The case is now before the court
on Defendants' Motion to Compel Arbitration.
(Doc. 15). Upon consideration, the
court concludes that the motion is due to be
first began working for Cowabunga in November 2015. (Doc.
21-1 at 6). Upon employment, Plaintiff signed a “Mutual
Agreement to Arbitrate” (the “Agreement”)
which included two provisions relevant to the current
dispute. Section 2(a) of the Agreement states the following:
Claims and disputes covered by this Agreement include all
claims by Employee against Cowabunga, Inc. . . . and all
claims that Cowabunga, Inc., may have against Employee,
including, without limitation, any claims Employee may have
relating to his/her hiring, terms and conditions of
employment, job assignments, payment of any wages, benefits
or other forms of compensation, and/or separation from
employment . . . .
(Doc. 15-2 at 1). In addition, Section 4(c) of the Agreement
provides that “[t]his Agreement . . . shall survive the
termination of Employee's employment, and can only be
revoked or modified by a writing signed by all parties which
specifically states an intent to revoke or modify this
Agreement.” (Doc. 15-2 at 3).
March 2016, Plaintiff quit her job with Cowabunga without
providing notice. (Docs. 16-1; 21-1 at 25). Cowabunga's
records show that Plaintiff was terminated effective March
14, 2016, and was labeled as “NO REHIRE.” (Doc.
21-1 at 25). Plaintiff later reapplied to work for Cowabunga
and, after initially being told she was ineligible for
employment, was rehired and began working as an employee
again on May 4, 2016. (Docs. 16 at 1; 1 at ¶ 8). Upon
reemployment, Plaintiff did not sign a new arbitration
agreement. (Doc. 16).
continued working for Cowabunga through September 2016. (Doc.
1. at ¶ 48). It is during this second period of
employment that Plaintiff's claims arose. (Doc. 16 at
¶ 5). Plaintiff asserts that upon being rehired,
“she was sexually harassed and assaulted” by
Clemens. (Doc. 15 at ¶ 1). Plaintiff also alleges that
she experienced “sexual discrimination in violation of
Title VII and that she was not properly paid for the time
that she allegedly worked.” Id.
their motion to compel arbitration, Defendants contend that
the Agreement Plaintiff signed in November 2015 applies to
her second period of employment and thereby covers her claims
in this case. (Docs. 15 at ¶ 2; 20 at ¶ 2-3).
Defendants further assert that there was no revocation of the
Agreement by either party. (Doc. 20 at ¶ 6). Plaintiff
retorts that all of her claims arose during her second period
of employment and that she did not agree to arbitrate any
claims after she was rehired. (Doc. 16 at ¶ 5).
Plaintiff asserts that because she did not sign a new
arbitration agreement when she was reemployed by Cowabunga,
she has not waived her right to trial by jury. (Doc. 21 at
¶¶ 5, 7).
STANDARD OF REVIEW
Federal Arbitration Act (“FAA”), 9 U.S.C. §
2, “establishes a ‘federal policy favoring
arbitration.'” Chrysler Fin. Corp. v.
Murphy, No. Civ. A. 97-JEO-2391-S, 1998 WL 34023394, at
*2 (N.D. Ala. Aug. 5, 1998) (citing Moses H. Cone
Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24
(1983)). The FAA provides that “[a] written provision
in . . . a contract . . . to settle by arbitration a
controversy thereafter arising out of such contract or
transaction . . . 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. In light of the presumption in favor of
arbitration, courts should resolve “any doubts
concerning the scope of arbitrable issues . . . 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 defense to arbitrability.” Moses H.
Cone Mem'l Hosp., 460 U.S. at 24-25. Finally, courts
should compel arbitration of a particular grievance
“unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation
that covers the asserted dispute. Doubts should be resolved
in favor of coverage.” AT&T Techs., Inc. v.
Commc'ns Workers of Am., 475 U.S. 643, 650 (1986)
(citing United Steelworkers of Am. v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582-83 (1960)).
an arbitration agreement contains express language indicating
intent for the agreement to survive termination of
employment, parties may be compelled to arbitrate claims
arising during subsequent re-employment. Nelson v. Carl
Black Chevrolet of Nashville, LLC, No. 3:17-cv-00687,
2017 WL 3298327, at *5 (M.D. Tenn. Aug. 2, 2017) (“The
language specifically provides that the Agreement
‘survives' the termination of employment . . .
.”); Anderson v. Waffle House, Inc.,
920 F.Supp.2d 685, 693 (E.D. La. 2013) (“[T]his
Agreement shall survive termination of my employment . . .
.”); Burch v. PJ Cheese, Inc., 2009
WL 10688971, *3 n.2 (N.D. Ala. 2009) (“The Agreement
specifically provides, ‘This Agreement to arbitrate
shall survive the termination of my employment.'”).
Anderson v. Waffle House, the plaintiff employee
entered into an arbitration agreement with the defendant
employer. Anderson, 920 F.Supp.2d at 687. The
plaintiff was later terminated but sought re-employment
nearly a year later. Id. at 689. Upon being rehired
by the defendant, the plaintiff never signed a new
arbitration agreement. Id. When the plaintiff later
brought suit against the defendant, the defendant petitioned
the court to compel arbitration by enforcing the arbitration
agreement the plaintiff had signed during her prior
employment. Id. at 686-87. The plaintiff claimed
there was no valid agreement to arbitrate because her
termination had ended the agreement and she never signed a
new agreement subsequent to her re-employment. Id.
at 689. The court held that the plaintiff was bound to
arbitrate and that termination of her employment did not
terminate the agreement. Id. at 693. The court
relied on an express provision of the arbitration agreement
that stated it applied to all future claims and would survive
termination of employment. Id. “[The] survival
clause unambiguously reflect[ed] the parties' intent that
the arbitration ...