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Schambon v. Orkin, LLC

United States District Court, W.D. Kentucky, Bowling Green Division

April 4, 2017



          Greg N. Stivers, United States District Court Judge

         This matter is before the Court upon Defendant's Motion to Compel Arbitration (DN 12), which is ripe for adjudication. The motion is GRANTED to the extent outlined below.

         I. BACKGROUND

         Defendant Orkin, LLC (“Orkin”) hired Plaintiff Ross Schambon (“Schambon”) in February 2014 to work as a part-time employee in its Bowling Green branch. (Miller Decl. ¶ 3, DN 14-2). In September 2014, Schambon was promoted to a full-time position. (Miller Decl. ¶ 4). As part of his promotion he was required to sign Orkin's Agreement to Arbitrate (“Agreement”), in which he agreed to abide by Orkin's Dispute Resolution Policy (“DRP”) and arbitrate any dispute regarding or arising out of his employment. (Agreement to Arbitrate, DN 12-1). The Agreement provides, in relevant part:

[I]n consideration of employment and the mutual promises, covenants, and conditions set forth in this Agreement, I agree, as does the Company, to abide by the Company's Dispute Resolution Policy (“DRP”) and to arbitrate any dispute, claim, or controversy regarding or arising out of my employment (as defined by the Company's DRP, a copy of which I may request at any time) that may arise between me and the Company, its parent, subsidiaries, affiliates, or any other persons or entities acting as its agent. The parties agree that the Company's operations directly affect interstate commerce to the extent that all procedures hereunder contemplated shall be subject to, and governed by, the Federal Arbitration Act (FAA). Unless the parties agree otherwise, the arbitration shall be administered under the applicable rules of the American Arbitration Association (“AAA”). The parties agree that the arbitrator shall follow the substantive law, including the terms and conditions of this Agreement.
I specifically understand that by agreeing to arbitrate, I waive any right to trial by judge or jury in favor of having such disputes resolved by binding arbitration. I understand that any disputes presented to an arbitrator shall be resolved only in accordance with the applicable federal, state, or local law governing such dispute. The award rendered by the arbitrator shall be final and binding, and judgment may be entered on the award in any court having jurisdiction thereof. I agree that any arbitration proceeding under this Agreement will not be consolidated or joined with any action or legal proceeding under any other agreement or involving any other employees, and will not proceed as a class action, collective action, private attorney general action or similar representative action.

(Agreement to Arbitrate 1).

         When Orkin hired Schambon in February 2014, it gave him a Field Employee Handbook, which described the DRP in general terms:

The Dispute Resolution Policy establishes the procedures both you and the Company are required to follow for resolving any “dispute” between us. The policy applies to and legally binds the Company, together with you and the Company's current and/or former employees and applicants.
The Company believes that protracted and expensive court litigation often does not serve the best interests of either you or the Company. The Company therefore has instituted a Policy that is designed to be fair, efficient, and inexpensive. All parties are required to use this process exclusively, rather than more formal court litigation, so that the merits of such disputes are more promptly and efficiently resolved.
This policy has been designed with the intent of assuring a reliable and efficient method for addressing such disputes. These procedures reflect the Company's long-standing commitment to open communication and its continuing interest in seeing that employment-related disputes are promptly, fully and fairly addressed.
To acknowledge and agree to the Dispute Resolution Policy, the Agreement to Arbitrate form must be signed by employee either at the time of hire, during the signing of bonus plans or at the time of job promotion. The Agreement to Arbitrate from can be found the myOrkin intranet site.

(Field Employee Handbook 1, DN 13-4).

         The DRP itself is quite detailed and requires employees to adhere to certain procedures when they have a “dispute.” (Dispute Resolution Policy 3-4, DN 13-1). First, employees must file a “Request for Dispute Resolution, ” describing the nature of the dispute, the relevant facts, and remedies sought. (Dispute Resolution Policy 4-5). The request must be filed with Orkin within the applicable contractual limitations period; if there is no such period, the request must be filed within the statute of limitations provided by either statute or common law. (Dispute Resolution Policy 4). Any dispute the request fails to name or describe is forever waived. (Dispute Resolution Policy 4). Fourteen days after a Request for Dispute Resolution is filed, Orkin's Human Resources Department is to contact the employee filing the request and attempt to resolve the dispute through informal means.[1] (Dispute Resolution Policy 5). If the employee and Orkin are unable to resolve the dispute informally, and the employee wants to pursue it further, he or she must file a Demand for Arbitration form within 90 days after he or she filed the Request for Dispute Resolution and pay a filing fee of $120.00. (Dispute Resolution Policy 6, ...

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