Opinion
NO. 3-04-CV-0654-L.
June 15, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Volt Management Corporation ("Volt") has filed a motion to dismiss and to compel arbitration of all claims asserted by plaintiff in this employment discrimination case. For the reasons stated herein, the motion should be granted.
I.
In June 2002, Plaintiff Yi Su was hired by Volt as a Senior Software Developer and assigned to one of its customers, T-Mobile USA, Inc. (Plf. Orig. Pet. at 2, ¶ 6; Def. App. at 10, ¶ 4). During her assignment at T-Mobile, plaintiff claims that she was verbally abused and subjected to unequal treatment by her supervisor, Ramesh Subramanian. ( See Plf. Orig. Pet. at 2-3, ¶¶ 7-9). More particularly, Subramanian allegedly asked plaintiff to spy on her co-workers, perform personal tasks for him outside the scope of her job description, and would not let her take medical or holiday leave. ( Id. at 2-3, ¶ 7). Plaintiff further contends that Subramanian disparaged female employees, proclaiming that "all women are stupid and annoy him." ( Id. at 3, ¶ 7). When plaintiff complained about this treatment, she was given unfavorable work assignments and negative performance evaluations. ( Id. at 3, ¶¶ 7-8). On June 20, 2003, plaintiff was terminated by Volt. ( Id. at 5, ¶ 18).
On March 19, 2004, plaintiff sued Volt, T-Mobile, and Subramanian in Texas state court for sex discrimination in violation of the Texas Commission on Human Rights Act, TEX. LAB. CODE ANN. § 21.051, et seq., and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Plaintiff also asserts claims for wrongful termination, intentional infliction of emotional distress, and negligence under Texas law. Volt, joined by T-Mobile, timely removed the case to federal court and filed the instant motion to dismiss in favor of arbitration. In support of its motion, Volt points to two documents signed by plaintiff when she was hired by Volt. The first document, a Personal Data Questionnaire, contains the following arbitration clause:
Federal jurisdiction is proper because plaintiff asserts a retaliation claim under Title VII. ( See Plf. Orig. Pet. at 8, ¶ 28).
ANY DISPUTES ARISING OUT OF OR RELATING TO YOUR EMPLOYMENT WITH VOLT OR ANY ASSIGNMENT OR TERMINATION OF ANY ASSIGNMENT, INCLUDING DISPUTES ARISING OUT OF OR RELATED TO THE ACTIONS OF VOLT'S CUSTOMERS (OR CUSTOMER'S EMPLOYEES), SHALL BE SETTLED BY BINDING ARBITRATION . . . VOLT AND YOUR [sic] HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION OR DEFENSE THAT THEY MAY HAVE AGAINST EACH OTHER OR AGAINST ANY CUSTOMER OF VOLT.
(Def. App. at 12, ¶ 8). The second document, an Employment Agreement, contains a similar provision:
AGREEMENT TO ARBITRATE DISPUTES: Any dispute, controversy, or claim arising out of, involving, affecting or related in any way to this Agreement or a breach of this Agreement, or in any way arising out of, involving, affecting or related to Employee's employment or the conditions of employment or the termination of employment, or in any way arising out of, involving, affecting or related to any assignment or termination of any assignment with any Client of the Company, including but not limited to disputes, controversies or claims arising out of or related to the actions of the Company's other employees, the Company's Clients and/or Client's employees, under Federal, State and/or local laws, shall be resolved by final and binding arbitration, . . .
( Id. at 13, ¶ 8). By virtue of these documents, Volt maintains that plaintiff has agreed to submit any disputes arising out of her employment to final and binding arbitration. Plaintiff has not filed a response to the motion.
In an amended certificate of conference filed on May 5, 2004, Volt represents that "Plaintiff's counsel stated that Plaintiff was not opposed to the relief sought in Defendant's motion." However, the parties have never submitted an agreed order dismissing this action in favor of arbitration. See LCivR 7.1(c) ("An unopposed motion must be accompanied by an agreed proposed order, signed by the attorneys or parties.").
II.
The Federal Arbitration Act provides, in relevant part:
If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.9 U.S.C. § 3. The language of this section is mandatory. Where the court finds that the parties agreed to arbitrate a dispute, its role is limited to enforcing that agreement. See ATT Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649-50, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986). The decision whether to enforce an arbitration clause involves a two-step inquiry. First, the court must determine whether the parties agreed to arbitrate the dispute. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 626, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444 (1985); R.M. Perez Associates, Inc. v. Welch, 960 F.2d 534, 538 (5th Cir. 1992). The court then must consider whether any statute or policy renders the claims non-arbitrable. Mitsubishi Motors, 105 S.Ct. at 3355; R.M. Perez, 960 F.2d at 538.
A.
The threshold inquiry is whether plaintiff agreed to arbitrate her claims against Volt. In order to answer that question, the court must determine: (1) whether there is a valid agreement to arbitrate; and (2) whether the dispute falls within the scope of that agreement. See American Heritage Life Insurance Co. v. Lang, 321 F.3d 533, 537 (5th Cir. 2003), citing Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th Cir. 1996). Both tests clearly are met here. The Personal Data Questionnaire and the Employment Agreement signed by plaintiff provide for the arbitration of all disputes "arising out of" or "related to" the conditions of employment or the termination of employment, including disputes involving the actions of Volt's customers or the customer's employees. ( See Def. App. at 12, ¶ 8 13, ¶ 8). All the claims asserted by plaintiff in this lawsuit, both state and federal, fall within the broad scope of those agreements.
B.
The only remaining issue is whether the arbitration provision should be enforced as a matter of law and public policy. A claim is subject to arbitration unless Congress clearly intended to preclude the parties from waiving their judicial remedies. Glimer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991); see also ATT Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986). In failing to file a response, plaintiff has not met her burden to demonstrate such intent. Glimer, 111 S.Ct. at 1652; Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 227, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 1865 (1987). The court therefore finds that the arbitration agreements are enforceable.