Opinion
Case No. 3:21-CV-01941-JGC
09-01-2022
Marilyn REED, Plaintiff v. BEST BUY WAREHOUSING LOGISTICS, LLCS, Defendant.
Daniel S. Dubow, Kevin A. Buryanek, Spitz Law, Beachwood, OH, for Plaintiff. Ashley Bailes, Ronald D. Holman, II, Taft Stettinius & Hollister - Cleveland, Cleveland, OH, Conor H. Meeks, Taft Stettinius & Hollister - Cincinnati, Cincinnati, OH, for Defendant.
Daniel S. Dubow, Kevin A. Buryanek, Spitz Law, Beachwood, OH, for Plaintiff. Ashley Bailes, Ronald D. Holman, II, Taft Stettinius & Hollister - Cleveland, Cleveland, OH, Conor H. Meeks, Taft Stettinius & Hollister - Cincinnati, Cincinnati, OH, for Defendant. ORDER James G. Carr, Sr. United States District Judge
This is an employment discrimination case. Plaintiff, Marilyn Reed, brings claims against her former employer, defendant Best Buy Warehousing Logistics, LLCs (Best Buy) for age discrimination, disability discrimination, violations of the Family and Medical Leave Act (FMLA), and retaliation. She alleges that Best Buy cut her hours, disciplined her, and ultimately terminated her because of her age and because she took FMLA leave for her diverticulitis.
Best Buy contends that plaintiff agreed to resolve these claims in arbitration and thus cannot bring them in federal court.
Pending is Best Buy's Motion to Compel Arbitration and Motion to Dismiss Complaint (Doc. 8). For the reasons discussed below, I grant the motion.
Background
Plaintiff began her employment with Best Buy in or around November 2016. (Doc. 1, pgID 2). She was an Asset Protection Officer. (Id.).
Best Buy claims that plaintiff agreed to arbitration several times during the application and onboarding process.
First, Best Buy has an Arbitration Policy that it contends plaintiff agreed to when she applied for her position. Best Buy summarized the policy in its electronic application as follows:
Best Buy has an Arbitration Policy under which any disputes between any applicant for employment or employee and Best Buy must be arbitrated on an individual basis. The policy is a required condition of your application for employment and, if you are hired, of your employment at Best Buy.(Doc. 8-1, pgID 83).
Review and agree to the Policy (click to view detailed policy) to continue with your application.
On that electronic application form, plaintiff responded "I Agree" to the prompt "I agree to Best Buy's Arbitration Policy." (Id., pgID 95). She further responded "I Agree" to the following statement: "Please check this box if you consent to provide an electronic signature rather than a handwritten signature whenever you sign documents on this website." (Id.).
Best Buy also points to the offer letter that plaintiff received prior to accepting her employment. That letter reads, in relevant part:
Best Buy has an Arbitration Policy under which any disputes between you and Best Buy must be arbitrated on an individual basis. The Policy is a required condition of your hire and ongoing employment at Best Buy. By accepting this employment offer, you are agreeing to the Policy, a copy of which is included in your offer packet.(Id., pgID 99).
When plaintiff accepted her offer of employment, she completed another online form, in which she responded "I Agree" to the prompt "I Agree to Best Buy's Arbitration Policy." (Id., pgID 104).
Lastly, Best Buy contends that plaintiff agreed to its arbitration policy by completing a related E-Learning module and clicking a button acknowledging that she read and understood the policy. Best Buy's system shows that plaintiff completed this E-Learning module on January 2, 2017. (Id., pgID 106).
Standard of Review
The Federal Arbitration Act (FAA) governs the arbitrability of claims. See 9 U.S.C. § 1 et seq. The FAA applies to employment contracts that contain arbitration clauses. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). It allows "[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration" to seek an order compelling arbitration in a federal district court. 9 U.S.C. § 4.
When considering a motion to compel arbitration, a court should consider the following four criteria:
[F]irst, it must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the action are subject to arbitration, it must determine whether to stay the remainder of the proceedings pending arbitration.McGee v. Armstrong, 941 F.3d 859, 865 (6th Cir. 2019).
Where the validity of an agreement to arbitrate is at issue, "the party opposing arbitration must show a genuine issue of material fact as to the validity of the agreement to arbitrate." Great Earth Companies, Inc. v. Simons, 288 F.3d 878, 889 (6th Cir. 2002). This inquiry mirrors the summary judgment standard in that a court must view all facts in the light most favorable to the nonmoving party and "determine whether the evidence presented is such that a reasonable finder of fact could conclude that no valid agreement to arbitrate exists." Id.
"Because arbitration agreements are fundamentally contracts, [I] review the enforceability of an arbitration agreement according to the applicable state law of contract formation." Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967, 972 (6th Cir. 2007). The parties agree that Ohio law applies in this case.
And while there is a "national policy favoring arbitration," I must not construe any arbitration agreement so broadly as to "encompass claims and parties that were not intended by the original contract." I Sports v. IMG Worldwide, Inc., 157 Ohio App. 3d 593, 598, 813 N.E.2d 4 (2004).
"The core issue in any dispute regarding the arbitrability of a matter is whether the parties agreed to arbitration." N. Park Ret. Cmty. Ctr., Inc. v. Sovran Cos., Ltd., 2011-Ohio-5179, ¶ 4, 2011 WL 4600700.
Discussion
Of the four criteria that the Sixth Circuit enumerated in McGee, supra, 941 F.3d at 865, the parties focus their attention on the first one: whether they agreed to arbitrate.
Best Buy contends that plaintiff agreed to arbitrate her claims by completing various electronic acknowledgements of its arbitration policy and by continuing to remain employed there.
Plaintiff argues that she did not agree to Best Buy's arbitration policy because she did not affix her actual signature to any of the documents that Best Buy presented her. She contends that the language in her employment application indicated that Best Buy would require her to do so.
Since the parties' disagreement centers on a matter of contractual interpretation, I look to the language of the relevant documents.
I will first examine the language of plaintiff's electronic employment application. When Best Buy asked if plaintiff agreed to its arbitration policy, she responded "I Agree." The next prompt read: "Please check this box if you consent to provide an electronic signature rather than a handwritten signature whenever you sign documents on this website." (Doc. 8-1, pgID 95). Plaintiff responded "I Agree" to that statement as well.
It is clear from plaintiff's response to the first question that she assented to Best Buy's arbitration policy. The language could not be more explicit.
However, plaintiff argues that the second question muddies the waters in that it indicates she will be required to provide her signature at some point in the document. Without her signature, plaintiff argues, the arbitration policy does not bind her.
But that is not how I read that second statement. It does not say that a signature would be forthcoming in that particular document. Rather, it states that whenever Best Buy asks plaintiff for a signature, she agrees that an electronic one will suffice.
Further, plaintiff reads the term "electronic signature" overly narrowly. It appears plaintiff believes that an electronic signature means she would need to type out her name or otherwise electronically write it. But plaintiff gives no reason why her checking a box stating "I Agree" cannot be considered an electronic signature, manifesting her assent to be bound.
Ohio federal courts applying Ohio law have consistently found that electronic acknowledgements of arbitration clauses are sufficient to bind employees. See, e.g., Reulbach v. Life Time Fitness, Inc., No. 1:21 CV 1013, 2021 WL 2581565, at *5 (N.D. Ohio June 23, 2021) (Gaughan, J.) (employee was bound by arbitration clause where he electronically viewed the agreement and clicked "I Agree"); Stephens v. Frisch's Big Boy Restaurants, No. 1:19-CV-954, 2020 WL 4754682, at *3 (S.D. Ohio July 30, 2020) (employee assented to arbitration agreement where she electronically viewed and acknowledged it); Gragston v. Coca-Cola Refreshments, No. 1:14-CV-986, 2015 WL 4999260, at *4 (S.D. Ohio July 27, 2015) (employee bound by arbitration provision that she viewed in a verified electronic training).
These cases, along with the plain text of the employment application, persuade me that plaintiff's acknowledgement of the arbitration policy is a sufficient indication of her assent to be bound. That is especially so where plaintiff does little to distinguish these cases other than to argue that they are unpublished and therefore have no precedential authority.
District court opinions are not binding on me in any event, whether they are published or unpublished. But I often look to them for guidance in determining the proper outcome of a case. The Sixth Circuit acknowledges that reliance on unpublished opinions as persuasive authority is proper. See Leaf v. Nike, Inc., No. 21-1045, 2021 WL 4950383, at *6 (6th Cir. Oct. 25, 2021). And I find the cases that Best Buy cites to be persuasive. A person can manifest assent in more than one way - a written signature is not necessarily required.
Further, this is not a situation in which the employment application contained a space for a handwritten or typed signature, and plaintiff did not sign. Were that the case, there may have been some question about whether plaintiff truly assented to the terms of the arbitration agreement. But here, plaintiff checked a box indicating that she agreed to Best Buy's arbitration policy. She then checked a box indicating that her electronic signature had the same effect as her handwritten signature. In doing so, she assented to Best Buy's arbitration policy.
The same logic applies to plaintiff's affirmation of Best Buy's arbitration policy when she accepted her offer of employment. There, she similarly clicked a box stating "I Agree" when asked if she agreed to Best Buy's arbitration policy.
And even if plaintiff did not assent to Best Buy's arbitration policy at the outset of her employment, Best Buy correctly argues that she agreed to it by continuing to remain employed there. See Dantz v. Am. Apple Grp., LLC., 123 F. App'x 702, 708 (6th Cir. 2005) ("Mutual assent is manifested by [plaintiff's] continued employment after having been told explicitly that the arbitration agreement was a condition of her employment."); Porter v. MC Equities, LLC, No. 1:12 CV 1186, 2012 WL 3778973, at *6 (N.D. Ohio Aug. 30, 2012) (Gaughan, J.) ("[T]he employee's 'continued employment' with her employer alone was sufficient consideration for an arbitration agreement under Ohio law.").
Best Buy's arbitration policy states: "By becoming or remaining employed after the effective date of this Policy, employees agree to this Policy's terms." (Doc. 8-1, pgID). Plaintiff does not dispute that she received this policy. In fact, it appears she received it several times through the application and onboarding process, including through E-Learning modules. Therefore, plaintiff's continued employment at Best Buy is a separate and distinct basis for finding that she assented to the arbitration policy.
Because I have found that Best Buy's arbitration policy binds plaintiff, I grant its Motion to Compel Arbitration and Motion to Dismiss Complaint.
Plaintiff asks that I stay this action rather than dismiss her complaint. However, dismissal is proper where all remaining claims are subject to arbitration. See Reulbach, supra, 2021 WL 2581565, at *7; Stephens, supra, 2020 WL 4754682, at *4 (dismissing plaintiff's claims without prejudice). Here, plaintiff does not argue that her claims are not subject to arbitration under Best Buy's policy. Rather, she argues that the arbitration agreement is unenforceable. I have rejected that argument, and therefore, find it appropriate to dismiss her claims without prejudice.
Conclusion
It is, therefore, ORDERED THAT
1. Best Buy's Motion to Compel Arbitration and Motion to Dismiss Complaint (Doc. 8) be, and the same hereby is, granted; andSo ordered.
2. Plaintiff's complaint (Doc. 1) be and the same hereby is, dismissed without prejudice.