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McMillian v. Olive Garden Holdings, LLC

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

May 22, 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 arbitration. [Record No. 8] The Court will deny the motion for the reasons that follow.


         Plaintiff Breyanna McMillian (hereafter, “the Plaintiff” or “McMillian”) submitted an electronic application on November 5, 2');">201');">16, seeking employment by Defendant Olive Garden Holdings, LLC (hereafter, “the Defendant” or “Olive Garden”). The application included the following provision:

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 to 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. 8-2');">2, p. 4] The Plaintiff “accepted” the DRP provision and signed the application electronically. Id. at pp. 4-5. McMillian alleges that, after she submitted the application, Josh Barcomb interviewed her and the Plaintiff was told that she had received the job. [Record Nos. 1');">1-1');">1, p. 3; 9-1');">1, p. 1');">1] Barcomb instructed McMillian to attend new employee training the following day. Id.

         McMillian attended a group training session at an Olive Garden restaurant in Lexington, Kentucky in early November 2');">201');">16. The Plaintiff alleges that approximately two hours into the training session, manager Sean Nealy told her that he would not have hired her because she was “too dark.” Id. According to McMillian, Nealy handed her a twenty dollar bill and told her to “go back to Burger King, ” because that is where she deserved to work. Id. McMillian filed suit against the Defendant in Fayette Circuit Court, alleging claims of discrimination under the Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.01');">10, et seq. The Defendant removed the case to federal court based on diversity jurisdiction in March 2');">201');">18 and moved to dismiss and compel arbitration. [Record No. 8]

         The Defendant contends that McMillian never received a job offer and that she presented to the employee training session despite not having been hired. [Record No. 8-1');">1, p. 1');">1] In support of that assertion, it has tendered only an undated “non-selection email, ” which states simply “Thank you, Breyanna . . . we regret that we are unable to offer you employment with Olive Garden USA at this time.” [Record No. 8-3] In deciding a motion to dismiss, the Court takes all well-pleaded allegations in the Complaint as true and construes those allegations in a light most favorable to the plaintiff. Ashcroft v. Iqbal, 2');">2');">556 U.S. 662');">2, 678 (2');">2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2');">2007)). Further, the Court generally may not consider matters outside the pleadings, such as the non-selection email. See Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 2');">27');">508 F.3d 32');">27, 335-36 (6th Cir. 2');">2007). McMillian alleges that the Defendant hired her and the Court must construe this allegation as true in the absence of admissible evidence to the contrary.


         Olive Garden argues that, if McMillian is permitted to proceed with her discrimination claims, she must “abide by the arbitration requirement every employee also has agreed to be bound.” [Record No. 8-1');">1, p. 2');">2] However, McMillian contends that she never agreed to arbitrate her claims. [Record No. 9] The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1');">1-1');">16, “embodies [a] national policy favoring arbitration and places arbitration agreements on equal footing with all other contracts.” Richmond Health Facilities v. Nichols, 1');">11');">1 F.3d 1');">192');">2');">81');">11');">1 F.3d 1');">192');">2, 1');">195 (6th Cir. 2');">201');">16). The Act provides that written agreements to arbitrate disputes arising out of contracts or transactions involving commerce “shall be 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');">2.

         While federal law favors arbitration, see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 1');">14');">473 U.S. 61');">14, 62');">26 (1');">1985), the “FAA was not enacted to force parties to arbitrate in the absence of an agreement.” Floss v. Ryan's Family Steak Houses, Inc., 2');">21');">11');">1 F.3d 306');">2');">21');">11');">1 F.3d 306, 31');">14 (6th Cir. 2');">2000) (quoting Avedon Engineering, Inc. v. Seatex, 1');">12');">26 F.3d 1');">12');">279');">1');">12');">26 F.3d 1');">12');">279, 1');">12');">286 (1');">10th Cir. 1');">1997)). Accordingly, the Court must determine whether McMillian and the Defendant entered into a valid agreement to arbitrate. See 9 U.S.C. § 2');">2; Javitch v. First Union Sec., Inc., 1');">15 F.3d 61');">19');">31');">15 F.3d 61');">19, 62');">24 (6th Cir. 2');">2003) (citing AT&T Techs. v. Comm's Workers of Am., 475 U.S. 643, 649 (1');">1986)).

         In determining whether a valid agreement to arbitrate exists, the Court applies state contract law. Fazio v. Lehman Bros. Inc., 340 F.3d 386, 392');">2-93 (6th Cir. 2');">2003). In the case of factual disputes, the Court treats the facts as it would in ruling on a motion for summary judgment. Kovac v. Superior Dairy, Inc., 2');">2d 857');">930 F.Supp.2');">2d 857, 864 (N.D. Ohio 2');">201');">13). Should factual disputes arise, the party opposing arbitration bears the burden of demonstrating a genuine issue of material fact regarding the validity of the agreement to arbitrate. Great Earth Cos. v. Simons, 2');">288 F.3d 878');">2');">288 F.3d 878, 889 (6th Cir. 2');">2002');">2).


         Darden, Olive Garden's parent company, maintains a dispute resolution program that has been in place since at least 2');">2005. [Record No. 8-2');">2, p. 2');">2] Each employee is provided with a DRP book as part of the orientation process and is asked to sign an acknowledgment form contained therein. Id. at p. 3. The DRP book is approximately twenty pages in length and explains the DRP process in detail. Id. at pp. 6-2');">23. The DRP includes four steps, including arbitration, which is the fourth and final step. See Id. at p. 9. It is undisputed that McMillian did not review ...

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