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Gillian v. Cowabunga Inc

United States District Court, N.D. Alabama, Southern Division

May 30, 2018



          John E. Ott Chief United States Magistrate Judge

         In this 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.[1] 15). Upon consideration, the court[2] concludes that the motion is due to be granted.

         I. BACKGROUND

         Plaintiff 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).

         In 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).

         Plaintiff 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.

         In 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).


         The 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)).


         Where 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.'”).

         In 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 ...

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