Ibrahim v. ABM Government Services, LLC

          MEMORANDUM OPINION AND ORDER

          JOSEPH H. MCKINLEY, JR., CHIEF JUDGE.

         This matter is before the Court on a motion by Defendant, ABM Government Services, LLC, to compel arbitration or, alternatively to dismiss Plaintiff's 42 U.S.C. § 1981 claims pursuant to Fed.R.Civ.P. 12(b)(6) [DN 13]. Fully briefed, this matter is ripe for decision.

         I. BACKGROUND

         Plaintiff, Jamileh Ibrahim, filed this action asserting claims for sexual harassment, national origin discrimination, gender discrimination, and retaliation pursuant to Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866, 42 U.S.C. § 1981, against Defendant, ABM Government Services, LLC. Plaintiff alleges that she was sexually harassed beginning in November of 2014 while working for Defendant, discriminated against on the basis of her gender and national origin, and then retaliated against after she complained of harassment and discrimination.

         Plaintiff, a female born in Jordan, was hired by Defendant in March of 2013 as an Arabic Linguist Cat III to provide language support services to the Department of the Air Force in the Middle East, specifically in Kuwait, Qatar, and Jordan. Plaintiff had previously worked in these three countries with several Air Force detachment units. Plaintiff alleges that in November of 2014, she began to be sexually harassed by Sergeant Kern, a new sergeant assigned to her detachment unit while working in Jordan. Plaintiff maintains that after rejecting Sergeant Kern's repeated advances, Sergeant Kern reported to the detachment commander, Bradley Byington, that Plaintiff was not doing her job. Commander Byington reprimanded Plaintiff about her job performance. Plaintiff avers that at that time she reported to Commander Byington that Sergeant Kern was sexually harassing her and his behavior was interfering with her ability to do her job. She requested that Sergeant Kern utilize the other available linguist. Commander Byington refused.

         Plaintiff alleges that in early January of 2015, she reported the sexual harassment to Alan King, Plaintiff's regional manager at ABM. After additional incidents of harassment and discrimination, Plaintiff alleges that the conduct of both Kern and Byington were reported to the Inspector General by King. King instructed Plaintiff to return home for a two-week vacation and informed Plaintiff that she was being transferred to another assignment. On January 20, 2015, Plaintiff received an email with a new employment contract for a higher paying position in Iraq from Defendant. Plaintiff waited to begin her new assignment and was repeatedly told by Defendant it was delayed because of a Visa issue. According to Plaintiff, in March of 2015, she received a Mutual Arbitration Agreement as part of the new hire packet. She signed the agreement on March 10, 2015, “intending to agree to arbitrate any potential future matters” related to her next assignment. (Response at 2, DN 19.) In April of 2015, Defendant sent Plaintiff to a deployment certification for a week with 17 other non-Jordanian, male translators. She was eventually informed by Defendant that she could not be deployed with the group and had to return home. The male, non-Jordanian translators were deployed to Iraq.

         On August 27, 2016, Plaintiff filed this current action against Defendant. Defendant now moves to compel this lawsuit to arbitration. Alternatively, if the Court does not compel this case to arbitration, Defendant moves to dismiss Plaintiff's § 1981 claims pursuant to Fed.R.Civ.P. 12(b)(6).

         II. MOTION TO COMPEL ARBITRATION

         The Mutual Arbitration Agreement provides that the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, shall govern the agreement. The FAA “‘manifests a liberal federal policy favoring arbitration agreements.'” Yaroma v. Cashcall, Inc., 130 F.Supp.3d 1055, 1061 (E.D. Ky. 2015)(quoting Masco Corp. v. Zurich American Ins. Co., 382 F.3d 624, 626 (6th Cir. 2004)). “Under § 4, when a party is ‘aggrieved by the failure of another party to arbitrate under a written agreement for arbitration, ' that party ‘may petition a federal court for an order directing that such arbitration proceed in the manner provided for' by the contract.” Yaroma, 130 F.Supp.3d at 1061(quoting Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) (quoting 9 U.S.C. § 4) (internal quotation marks omitted)). The FAA “places arbitration agreements on an equal footing with other contracts, . . . and requires courts to enforce them according to their terms.” Rent-A-Center, 561 U.S. at 67.

         The liberal federal policy favoring arbitration agreement “is not so broad that it compels the arbitration of issues not within the scope of the parties' arbitration agreement.” Watson Wyatt & Co. v. SBC Holding, Inc., 513 F.3d 646, 649 (6th Cir. 2008). “‘Before compelling an unwilling party to arbitrate, [a] court must engage in a limited review to determine whether the dispute is arbitrable; meaning that a valid agreement to arbitrate exists between the parties and that the specific dispute falls within the substantive scope of that agreement.'” Id. (quoting Bratt Enterprises, Inc. v. Noble International Ltd., 338 F.3d 609, 613 (6th Cir. 2003)). Basic contract law further instructs that “[a]bsent an ambiguity in the contract, the parties' intentions must be discerned from the four corners of the instrument without resort to extrinsic evidence.” Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. Ct. App. 2002)(citations omitted).

         Here, the parties agree that a valid agreement to arbitrate existed between them, but they disagree as to whether the claims arising before the execution of the arbitration agreement on March 10, 2015, are within the scope of the agreement. Plaintiff maintains that she signed the Agreement in anticipation of being deployed on a new assignment. Specifically, Plaintiff contends that she received the Agreement as part of a new hire packet for a position that was to begin in or about May of 2015. According to Plaintiff, the Agreement would not apply to the current matter which was part of an assignment which ended in January of 2015. Accordingly, Plaintiff argues that she did not agree to arbitrate this matter; and, as a result, the Agreement is not enforceable as to these claims because these claims fall outside the Agreement's scope.

         The parties' agreement to arbitrate states, in pertinent part:

Final and binding arbitration before a single, neutral arbitrator shall be the exclusive remedy for any “Covered Claim” (as the term is hereinafter defined). A “Covered Claim” is any claim (except a claim that by law is non-arbitrable) that arises between [Plaintiff] and [Defendant] . . . including but not limited to claims arising and/or relating in any way to my hiring, my employment with, and/or the severance of my employment with [Defendant]. . . . Covered Claims include, but are not limited to, any claim for breach of contract, for any provision of state labor code or a Wage Order, for unpaid fees, expenses, wages, or overtime, for unpaid compensation or penalties for missed meal or rest breaks, for wrongful termination, for unfair competition, for discrimination, harassment, or unlawful retaliation, for violation of the Fair Labor Standards Act, and for violation of the California Labor Code Private Attorneys General Act of 2004 (the “PAGA”) or any applicable similar laws, to the full extent permitted by applicable law.

(Mutual Arbitration Agreement ¶ A, DN 14-1.) The Mutual Arbitration Agreement further indicates what the parties agreed that the term “Covered ...