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Spikener v. Olive Garden Holdings, LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

May 18, 2018

OLIVE GARDEN HOLDINGS, LLC, doing business as Olive Garden Restaurant, Defendant.



         This matter is pending for consideration of the defendant's motion to dismiss and compel the plaintiff to participate in arbitration. [Record No. 6] For the reasons that follow, the Court will hold an evidentiary hearing before ruling on the relief requested.


         Plaintiff Majesty Spikener (“plaintiff” or “Spikener”) worked as a waitress at the defendant's Olive Garden Restaurant in Lexington, Kentucky, for about four months beginning in November 2');">201');">16. [Record No. 1');">1-1');">1, ¶ 7] Spikener alleges that she was subjected to a racially hostile work environment and ultimately was terminated because she reported the situation to the defendant's upper management. Id. Spikener filed suit in Fayette Circuit Court in February 2');">201');">18, asserting claims against Defendant Olive Garden Holdings, LLC (“defendant” or “Olive Garden”) under the Kentucky Civil Rights Act, Ky. Rev. Stat. 344.01');">10, et seq. The defendant removed the matter to this Court based on diversity jurisdiction. It filed a motion to dismiss and compel arbitration on April 4, 2');">201');">18.


         Spikener reports that she visited the defendant's Olive Garden restaurant in Lexington, Kentucky on October 2');">22');">2, 2');">201');">16. [Record No. 7-1');">1, p. 1');">1] Her friend Josh Barcomb was working there as a manager. According to Spikener, he asked her to apply for a waitress position. Id. Spikener wrote her personal information and work history on a sheet of paper and gave it to Barcomb, who went to his office and submitted an online job application on her behalf. Id. at p. 2');">2. The employment application included the following statement:

I understand that the Darden Companies, including Olive Garden . . . have in place a Dispute Resolution Process (DRP), and I further acknowledge and agree that if I am offered and accept employment, any dispute between me and any of the Darden Companies relating in my employment and/or my separation from employment, shall be submitted within one (1');">1) year of the day which I learned of the event and shall be resolved pursuant to the terms and conditions of the DRP.

[Record No. 6-2');">2, p. 7] “Accept, ” appears beside this clause in Spikener's completed application.

         Spikener received a telephone message several days later advising that she had been hired but needed to attend orientation in the beginning of November. [Record No. 7-1');">1, p. 2');">2] She attended orientation in early November 2');">201');">16, where two managers and several other “soon-to-be-employees” were present. Id. Spikener contends that an alternative dispute resolution agreement was never mentioned during her training, orientation, or employment and that she never signed such an agreement. Id. However, Sean Nealey, a former manager of Olive Garden's Lexington restaurant, reports that he conducted the employee orientation that Plaintiff Spikener attended. [Record No. 8-3] Nealey states that he specifically discussed the DRP program, including the mandatory arbitration required of all employees. He reported that Spikener did not make any objections or raise concerns regarding the DRP and that she signed the DRP acknowledgement. Id.

         The defendant has been unable to locate portions of Spikener's personnel file, including the signed DRP acknowledgement, which provides as follows:

This agreement contains the requirements, obligations, procedures, and benefits of the Dispute Resolution Process (DRP). I acknowledge that I have received and/or have had the opportunity to read this arbitration agreement. I understand that this arbitration agreement requires that disputes that involve the matters subject to the agreement be submitted to mediation or arbitration pursuant to the arbitration agreement rather than to a judge or jury in court. I agree as a condition of my employment, to submit any eligible disputes I may have to the DRP and to abide by the provisions outlined in the DRP. I understand this includes, for example, claims under state and federal laws relating to harassment or discrimination, as well as other employment-related claims as defined by the DRP. Finally, I understand that the Company is equally bound to all of the provisions of the DRP.

[Record No. 6-2');">2, pp. 3, 2');">20 (emphasis in original)]

         Melissa Ingalsbe, Director of Dispute Resolution and Human Resources, provided a declaration based on her review of company files, including Spikener's personnel records. [Record No. 6-2');">2] Ingalsbe reported that Darden Restaurants, Inc., which operates Olive Garden, maintains a dispute resolution process that has been in place since at least 2');">2005, and it applies to all employees. Id. at p. 2');">2. Ingalsbe further reported that, as part of the hiring and orientation process, each employee is provided with a DRP book and asked to sign an acknowledgement. While the defendant was unable to locate Spikener's signed DRP acknowledgment form, Ingalsbe stated that Spikener would not have been permitted to work at the restaurant had she declined to agree to the DRP and sign the form. Id. at p. 3.

         Jefe D. Gabat also provided a declaration stating that he was the general manager of the Lexington Olive Garden during Spikener's employment. [Record No. 8-5] Gabat indicated that he reviewed the personnel files for all seven employees who completed orientation on November 7, 2');">201');">16, including Spikener. According to Gabat, Spikener's file was the only one that did not contain a signed DRP acknowledgment. Gabat confirmed that no employee is permitted to begin employment if he or she does not sign the DRP ...

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