United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE.
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.
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.
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.
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.
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.
MOTION TO COMPEL ARBITRATION
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.
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).
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.
parties' agreement to arbitrate states, in pertinent
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 ...