United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge.
matter is before the court on motion of Plaintiff, AT&T
Mobility Services LLC (“AT&T”), moving the
court to compel arbitration of state court claims pending in
the Jefferson County, Kentucky Circuit Court in Payne v.
AT&T Mobility LLC., et al., Case No: 17-CI-000706,
and for a preliminary injunction enjoining the state court
proceedings. For the reasons stated, the Plaintiff's
motion will be GRANTED.
Defendant, Brandy Payne (“Payne”), was employed
by AT&T Mobility Services LLC (“AT&T”) at
all times relevant to this action. (DN 1, ¶¶ 7-15.)
AT&T alleges that on March 15, 2013, AT&T sent Payne
an email to her unique employee email address titled
“Action Required: Management Arbitration
Agreement.” (DN 1, Knight Decl.) According to AT&T,
the email advised Payne that the agreement would apply to all
future claims between Payne and the Company if she did not
affirmatively “opt-out” of the agreement within
60 days. (Id. at Exh. 2.) The email provided a link
to the web page containing the text of the entire Arbitration
Agreement (“Agreement”), which then provided a
link to the site where the user could electronically register
to opt out of the Agreement. (Id. at Exh. 1, Exh.
alleges that it sent additional emails to Payne at her
employee email address, identical to the email sent on March
15, on March 30, 2013, April 14, 2013, April 29, 2013, and
May 14, 2013. (Id.) AT&T further testifies that
Payne never opted out of the Agreement and that it has no
reason to believe the emails were not delivered to her
employee email address. (DN 1, Knight Decl.) Payne was
continuously employed by AT&T until her separation with
the company on January 4, 2015.
February of 2017, Payne filed a Complaint in Jefferson
Circuit Court, Kentucky (“State Court Action”)
against AT&T alleging sexual harassment, hostile work
environment, and retaliation. (DN 1, Exh. A.) The State Court
Action remains pending in Jefferson Circuit Court.
then filed a Complaint in this court on October 24, 2017,
seeking an order compelling the arbitration of Payne's
claims against AT&T pursuant to the Federal Arbitration
Act and for an injunction prohibiting Payne from pursuing the
State Court Action while the parties arbitrate. (DN 1.)
AT&T simultaneously filed a Motion to Compel Arbitration
and Motion for Preliminary Injunction (“Motion to
Compel”). (DN 4.)
than file a response to AT&T's Motion to Compel,
Payne filed a motion seeking leave to conduct
arbitration-related discovery prior to filing a response to
the Plaintiff's Motion to Compel. (DN 13.) Therein, Payne
requested limited discovery to establish that “she did
not receive Plaintiff's alleged offer to enter into an
agreement to arbitrate.” (Id.) This court
denied Payne's motion for leave to conduct
arbitration-related discovery and allowed Payne seven days
from the entry of the order to respond to AT&T's
Motion to Compel. (DN 18.) Payne having failed to respond
within the seven day period afforded by the court,
AT&T's Motion is ripe for review.
Federal Arbitration Act (FAA) makes agreements to arbitrate
“valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of
any contract.” 9 U.S.C. § 2. The FAA further
requires courts to stay litigation of claims pending
arbitration of those claims “in accordance with the
terms of the agreement” and requires courts to compel
arbitration of such claims upon the motion of either party to
the agreement. Id. at §§ 3-4.
Agreement at issue in this case expressly states that it is
“governed by the Federal Arbitration Act, 9 U.S.C.
§ 1 and following, and evidences a transaction involving
commerce.” (DN 1, Knight Decl., Exh. 2.) Before
compelling arbitration, however, a court must first determine
whether “a valid agreement to arbitrate exists between
the parties and… the specific dispute falls within the
substantive scope of that agreement.” Tillman v.
Macy's, Inc., 735 F.3d 453, 456 (6th Cir. 2013)
(quoting Javitch v. First Union Secs., Inc., 315
F.3d 619, 624 (6th Cir. 2003)).
The Validity of the Agreement
contract law controls in this case. Under Kentucky law, a
valid contract consists of “offer and acceptance, full
and complete terms, and consideration.”
Commonwealth v. Morseman, 379 S.W.3d 144, 149 (Ky.
2012). AT&T contends, and the court agrees, that the
facts evidence a valid contract under Kentucky law. AT&T
states that the five emails sent to Payne concerning the
Agreement “plainly constituted offers to enter into an
agreement to arbitrate future claims. Those emails
specifically laid out the material provisions of the
Agreement… and specified a method and deadline for
acceptance.” (DN 4, 7.) AT&T properly supported
these assertions and Payne did not respond. Therefore,
AT&T extended a valid offer to Payne to enter into an
AT&T has provided sufficient evidence for the court to
conclude that Payne accepted its offer to enter into an
agreement to arbitrate future claims. Under Kentucky law,
continuing employment may constitute assent to be bound by
the terms of an agreement. See Parts Depot, Inc. v.
Beiswenger, 170 S.W.3d 354, 362 (Ky. 2005) (“An
express personnel policy can become a binding contract once
it is accepted by the employee through his continuing to work
when he is not required to do so.”) (internal citation
omitted). The Sixth Circuit has likewise found that
continuing employment may constitute assent to enter into a
binding contract to arbitrate future claims under the FAA.
See Tillman, 735 F.3d at 461 (“[B]ecause [the
plaintiff] accepted the offer by continuing her employment