United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN UNITED STATES DISTRICT JUDGE.
action involves an employment discrimination and retaliation
dispute concerning the termination of an employee following
that employee’s religious accommodation request. Takia
Rodriguez (“Plaintiff”) contends that she was
racially and religiously discriminated against at one of
Cracker Barrel Country Store, Inc.’s
(“Defendant”) Florence, Kentucky locations that
caused her to seek additional employment and contributed to
her February 2016 termination. Particularly,
Plaintiff’s amended complaint alleges four (4) counts
under Title VII and K.R.S. § 344 including: disparate
treatment on the basis of race (Count I), retaliation (Count
II), discriminatory hostile work environment (Count III), and
conspiracy to engage in continuing discriminatory treatment
(Count IV). (Doc. 28, PageID# 119-122). Plaintiff has also
brought common law tort and punitive damages claims for
grossly negligent hiring and retention (Counts V, VI).
(Id. at 122-23).
matter is before this Court on Defendant’s motion to
dismiss for failure to state a claim, or alternatively, stay
the proceedings and compel arbitration. (Doc. 32). The Court
previously heard oral argument on this motion and took the
matter under advisement. (Doc. 38). Having given this matter
further study, the Court now issues the following memorandum
opinion and order.
FACTUAL & PROCEDURAL BACKGROUND
Cracker Barrel Old Country Store’s ADR
a Tennessee corporation licensed to transact business in
Kentucky, is a national restaurant company and retail store
serving home-style comfort food along with a variety of gifts
and music. (Doc. 33, PageID# 189).
offers training programs and company policies for its
employees through an online interface known as Cracker Barrel
University (“CBU”). (Doc. 32-2, PageID# 155).
Employees use a unique individual access number to login to a
particular module, create their own password, and review a
particular unit. (Id.) CBU maintains records of each
module that every employee completes. (Id.)
CBU’s modules covers Defendant’s alternative
dispute resolution (“ADR”) policies. In this
module, Defendant presents its ADR Policy Guide
(“Guide”) which discusses covered employment
dispute claims and outlines a three-step resolution process.
(Doc. 32-3). The policy specifically identifies that claims
arising out of disputes involving harassment, discrimination,
or retaliation must be resolved through arbitration if
Defendant’s in-house conciliation process fails.
(Id. at 161). It explicitly states that claims,
including but not limited to, “harassment,
discrimination, retaliation . . . and termination . . . that
come about through employment laws such as Title VII of the
Civil Rights Act . . . and any federal, state, or local laws,
or regulations covering the same or similar matters”
are covered by the conciliation and arbitration policy.
(Id. at 160). Additionally, “ADR also covers
any tort, negligence, or contractual claims.”
Guide spells out in unambiguous terms the effect of
compliance with its provisions. It is clear that “[i]f
the dispute is not resolved through conciliation, it must be
submitted to final and binding arbitration.”
(Id. at 159). The Guide goes on to note in bold
typeface that “[t]his means that
neither you nor the Company may file a lawsuit against the
other in a court of law.” (Id.)
Takia Rodriguez’s Employment & Termination
employed Plaintiff as a server at one of its Florence,
Kentucky locations beginning in November 2014. (Doc. 32-2,
28, 2015, Plaintiff launched the ADR Guide module. (Doc.
32-4, PageID# 167-68). After reviewing the Guide, Plaintiff
arrived at a sign-off page entitled “ADR
Sign-off” whose purpose was to “ensure that the
Employee has read, understands, and will comply with the
company’s ADR policy.” (Id.)
Plaintiff’s electronic signature memorialized her
completion of the module. (Id. at 168).
December 15, 2015, Plaintiff approached Associate Manager Tom
Gillman informing him that she had recently become a
born-again Christian and requested to have Sunday mornings
off to attend services. (Doc. 33-2, PageID# 221). Gillman
accommodated Plaintiff’s request by adding Saturday
shifts to her schedule. (Id.)
claims that Defendant then proceeded to reduce
Plaintiff’s hours gradually from forty to four hours
per week. (Doc. 33-1, PageID# 217). As Defendant reduced
Plaintiff’s hours, Plaintiff attempted to compensate by
acquiring additional shifts from co-workers. (Id.).
When Plaintiff did work her shifts, she noticed that
Defendant only gave her two poorly positioned tables in the
restaurant’s rear to wait on. (Id.)
reduced hours compelled Plaintiff to seek separate additional
employment. (Doc. 28, PageID# 118). Once Plaintiff secured
this employment and Defendant became aware of
Plaintiff’s second job, Defendant allegedly began to
discriminate against Plaintiff due to Plaintiff’s
African American race. Plaintiff claims that management would
search Plaintiff, along with a fellow African-American
co-worker, before they were allowed to leave the premises
after their respective shifts ended. (Id.)
February 18, 2016, Defendant terminated Plaintiff’s
employment. (Id.). On February 22, 2016, Plaintiff
filed a discrimination charge with the Equal Employment
Opportunity Commission (“EEOC”). (Doc. 33-1,
PageID# 217). In November 2016, the EEOC transmitted a
“right-to-sue” letter to Plaintiff. (Doc. 33-3,
PageID# 229). Plaintiff initially proceeded pro se, bringing
this lawsuit in the Southern District of Ohio. (Doc. 1-1).
Following transfer to this Court, Plaintiff filed a complaint
to which Defendant answered without asserting arbitration as
an affirmative defense. (Doc. 7; Doc. 11). After retaining
counsel, the parties agreed that Plaintiff would file an
amended complaint to clarify her specific claims. (Doc. 28).
The parties then engaged in limited discovery, exchanging
initial disclosures in May 2017. (Doc. 23; Doc. 24).
Plaintiff filed an amended complaint on June 12, 2017, to
which Defendant timely filed its answer asserting an
arbitration defense on August 11, 2017. (Doc. 28; Doc 30).
This motion to dismiss followed in September 2017. (Doc. 32).
Federal Arbitration Act (“FAA”) instructs that
arbitration clauses in commercial contracts
“‘shall be valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the
revocation of any contract.’” Javitch v.
First. Union Sec., Inc., 315 F.3d 619, 624
(6th Cir. 2003) (quoting 9 U.S.C. § 2).
Federal courts must compel arbitration if a valid arbitration
agreement governs a claim. 9 U.S.C. §§ 3-4. This
statutory scheme evidences “a liberal federal policy
favoring arbitration agreements” to such a degree that
any doubts regarding arbitrability should be resolved in
favor of arbitration. Watson Wyatt & Co. v. SBC
Holdings, Inc., 513 F.3d 646, 649 (6th Cir.
2008) (quoting Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24-25 (1983)).
burden rests on the party opposing arbitration to show that
the agreement is unenforceable. Green Tree Fin.
Corp.-Ala. v. Randolph, 531 U.S. 79, 91-92 (2000). The
opposing party “must show a genuine issue of material
fact as to the validity of the agreement to arbitrate.”
Mazera v. Varsity Ford Mgmt. Servs., LLC., 565 F.3d
997, 1001 (6th Cir. 2009) (citation and quotation
omitted); see also 9 U.S.C. § 4. In this way,
the required showing parallels that required to withstand
summary judgment in a civil suit, and the Court draws all
facts and inferences in the non-moving party’s favor.
Great Earth Cos., Inc. v. Simons, 288 F.3d 878, 889
(6th Cir. 2002).
opposing party also cannot adduce “conclusory or
unsupported allegations, rooted in speculation,” to
satisfy this burden. Bryant v. Commw. of Ky., 490
F.2d 1273, 1275 (6th Cir. 1974). Rather, it must produce
“concrete evidence from which a reasonable juror”
could determine that the matter should ...