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Spikener v. Olive Garden Holdings, LLC

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

July 5, 2018

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


          Danny C. Reeves, United States District Judge.

         This matter is pending for consideration of the defendant's motion to dismiss and compel arbitration. [Record No. 6] The Court previously determined that genuine issues of material fact existed regarding whether the parties entered into an agreement to arbitrate. [Record No. 9] As a result, the Court held an evidentiary hearing on June 2');">2');">2');">29, 2');">2');">2');">2018. The defendant subsequently filed a motion to supplement the record [Record No. 15] which will be granted. Having considered the issues and the evidence presented, the Court will grant the defendant's motion to dismiss and compel arbitration.


         Plaintiff Majesty Spikener worked as a server at the Olive Garden restaurant in Lexington, Kentucky from November 2');">2');">2');">2016 to March 2');">2');">2');">2017. [Record No. 6-2');">2');">2');">2] She filed suit in state court in February 2');">2');">2');">2018, alleging that Olive Garden fired her in retaliation for reporting racial hostility in violation of Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.010, et seq. The defendant removed the action to this Court based on diversity jurisdiction, 2');">2');">2');">28 U.S.C. § 1332');">2');">2');">2(a)(1), and promptly filed a motion to dismiss and compel arbitration. [Record Nos. 1, 6]

         GMRI, Inc., a subsidiary of Darden Restaurants, Inc., owns and operates Olive Garden restaurants throughout the United States, including one restaurant in Lexington. [Record No. 6-2');">2');">2');">2, p. 1');">p. 1] Melissa Ingalsbe, the Director of Dispute Resolution and Human Resource Compliance for Darden and its subsidiaries, provided a sworn declaration stating that GMRI maintains a national Dispute Resolution Process (“DRP”) that applies all employees. Id. at p. 2');">2');">2');">2. GMRI's electronic employment application requires prospective employees to “accept” a clause regarding the DRP. It reads:

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) year of the day which I learned of the event and shall be resolved pursuant to the terms and conditions of the DRP.

         “Accept” appears beside this paragraph in Spikener's application, which was submitted on October 2');">2');">2');">22');">2');">2');">2, 2');">2');">2');">2016. See id. at p. 7.

         Ingalsbe also reported that, as part of the hiring and orientation process, each new employee is provided with a booklet that explains the DRP in detail. Id. at p. 3. The booklet is approximately 2');">2');">2');">20 pages and describes the four steps of the DRP: Open Door, Peer Review, Mediation, and Arbitration. Id. at pp. 1');">p. 11-2');">2');">2');">25. It also informs employees that “[d]isputes eligible for DRP must be resolved only through DRP, with the final step being binding arbitration heard by an arbitrator.” Id. at p. 7. It goes on to clarify that “DRP-eligible disputes will not be resolved by a judge or a jury . . . . The Company and the Employee waive all rights to bring a civil court action for these disputes.” Id. Each new employee is asked during orientation to sign an acknowledgement form located at the back of the DRP book. Id. at p. 3. The acknowledgement states that the DRP covers claims under state and federal law relating to harassment and discrimination. Id. at p. 2');">2');">2');">20.

         The defendant is unable to locate Spikener's signed DRP acknowledgement. It maintains, however, that signing the acknowledgement is a condition of employment. [Record No. 6-2');">2');">2');">2, p. 2');">2');">2');">2] In other words, Spikener would not have been permitted to work at Olive Garden had she not signed the form. Id.

         Despite these measures, Spikener is adamant that she was completely unaware of the DRP until after she filed this lawsuit. She asserts initially that she did not complete the job application personally and, as a result, never saw or accepted the DRP clause contained therein. [Record No. 7-1, pp. 1');">p. 1-2');">2');">2');">2] During the evidentiary hearing, Spikener explained that she and her boyfriend had a date at the Olive Garden restaurant in Lexington on October 2');">2');">2');">22');">2');">2');">2, 2');">2');">2');">2016. There, she encountered her friend, Service Manager Josh Barcomb, with whom she had worked at another local restaurant. According to Spikener, she told Barcomb that she had attempted to apply for a job via Olive Garden's online application system, but “the system was messed up.” Spikener claims that Barcomb asked her to write down “all of [her] history . . . like a resume.” Barcomb took Spikener's information and later returned, telling her that some of her information was already “in the system, ” based on prior job applications she had submitted to another Darden restaurant. [See Record Nos. 8-1, 8-2');">2');">2');">2.] Spikener assumed that Barcomb submitted the application on her behalf, because she received a job offer on November 1, 2');">2');">2');">2016, and was directed to report to orientation shortly thereafter.

         Josh Barcomb also testified at the evidentiary hearing. He told a completely different story. Barcomb reported that he had worked with Spikener at another restaurant for a brief period in 2');">2');">2');">2014, but that the two were not acquaintances outside of work. He emphatically denied having completed any part of Spikener's application or having played any role in her application for employment at Olive Garden. Barcomb further testified that he was on vacation the week of October 2');">2');">2');">22');">2');">2');">2, 2');">2');">2');">2016, and was not in the restaurant on that date. In support, he provided a written work schedule for October 2');">2');">2');">2016 and a Facebook post by his wife indicating that he was, in fact, on vacation that week.

         Jefe Gabat has been the General Manager of Olive Garden's Lexington restaurant for more than twelve years. Gabat testified regarding Darden's Team Member Acquisition System (“TAS”), which “tracks the moment” someone starts applying for a job online. According to Gabat, TAS records reveal that Spikener initiated her application on October 2');">2');">2');">22');">2');">2');">2, 2');">2');">2');">2016, at 3:46 a.m., and completed it 35 minutes later, at 4:2');">2');">2');">21 a.m. Gabat interviewed Spikener after receiving this application, and offered her a job on November 1, 2');">2');">2');">2016.

         Spikener, along with six other new employees, reported for orientation on November 7, 2');">2');">2');">2016. [Record No. 8-5, p. 1');">p. 1] Gabat ordinarily assisted in training new service employees, but he was on vacation that week. His co-manager Sean Nealey (who no longer works for the defendant) conducted the orientation instead. Nealey provided an affidavit in support of the defendant's motion to compel arbitration, stating all of the new employees, including Spikener, completed and signed all of the required paperwork, including the DRP acknowledgement. [Record No. 8-3, pp. 1');">p. 1-3]

         Gabat explained that when new employees come in for training, they are given folders containing new-hire paperwork, which is prepared by the defendant's corporate office. The paperwork discusses various topics, including rules about serving alcohol, handling cash, and security. It also includes the DRP booklet, which contains the acknowledgement form new employees are required to sign. Although Gabat was not present during Spikener's orientation, he explained that he had worked “hand in hand for 15 years” with Nealey, who “was trained to do ...

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