United States District Court, W.D. Kentucky
CHARLES R. SIMPSON III, SENIOR JUDGE
case is before the Court on the Defendant's motion to
dismiss Plaintiff Latrice Burnley's complaint. DN 10.
Burnley, proceeding pro se, filed a complaint against Conifer
alleging employment discrimination. DN 1. Specifically, she
alleges discrimination on the basis of race as well as
retaliation after she filed a discrimination complaint with
the Equal Employment Opportunity Commission. DN 1. Burnley
applied, and was permitted, to proceed in forma pauperis. DN
5, 6. On April 23, 2018, Conifer filed a motion to dismiss,
claiming that Burnley had signed an arbitration agreement. DN
10. Burnley did not respond. Then, on September 13, 2018,
almost four months later, Bobby Potters, an attorney from
Plainfield, Indiana, filed a notice of appearance and a
motion for extension of time to respond. DN 11, 12. The
motion included no reason or excuse for Burnley's delay.
This Court denied the motion, noting the lengthy and
unexplained delay and that Potters is not admitted to the bar
of this Court nor did he seek admission pro hac vice. DN 14.
This matter is now ripe for review. For the reasons set forth
below, Conifer's motion to dismiss will be granted.
hired Burnley on July 22, 2013, as a Rep Scheduler II. DN 10,
Aff of Robert Erny. As part of the hiring process,
Burnley reviewed and electronically signed Conifer's
employee handbook and arbitration acknowledgment. DN 10, Aff.
of Robert Erny. The acknowledgment states:
Except to the extent that any applicable collective
bargaining agreement provided otherwise, I hereby voluntarily
agree to use the Company's Fair Treatment Process and to
submit to final and binding arbitration of any and all claims
and disputes that are related in any way to my employment or
the termination of my employment with Conifer. I understand
that final and binding arbitration will be the sole and
exclusive remedy of any such claim or dispute against Conifer
or its parent, subsidiary or affiliated companies or
entities, and each of its and/or their employees, officers,
directors or agents, and that, by agreeing to the use of
arbitration to resolve my dispute, both the Company and I
agree to forego any right we each may have had to a jury
trial on issues covered by the Fair Treatment Process. I also
agree that such arbitration will be conducted before an
experienced arbitrator chosen by me and the Company, and will
be conducted under the Federal Arbitration Act and the
procedural rules of the American Arbitration Association
I further acknowledge that in exchange for my agreement to
arbitrate, the Company also agrees to submit all claims and
disputes it may have with me to final and binding
DN 10, Ex. A. Burnley electronically signed the agreement
using her employee ID number on July 31, 2018. DN. 10, Ex. A.
Federal Arbitration Act (FAA) “place[s] arbitration
agreements upon the same footing as other contracts”
and embodies a “liberal federal policy favoring
arbitration agreements.” Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 24-25
(1991). Through its enactment, “Congress declared a
national policy favoring arbitration and withdrew the power
of the states to require a judicial forum for the resolution
of claims which the contracting parties agreed to resolve by
arbitration.” Southland Corp. v. Keating, 465
U.S. 1, 10 (1984). Put succinctly, “Congress has thus
mandated the enforcement of arbitration agreements” in
both federal and state courts. Id.
pertinent part, the FAA states that “a contract
evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such
contract or transaction . . . 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. Thus, for the FAA's mandate to apply, the
agreement must impact interstate commerce and be without
grounds for the revocation of a contract. Southland
Corp., 465 U.S. at 11.
is broad, “exercis[ing] Congress' commerce power to
the full.” Allied-Bruce Terminix Cos. v.
Dobson, 513 U.S. 265, 277 (1995). This power,
“[a]t least since 1824, ” is
“plenary.” Southland Corp., 465 U.S. at
12. Employment discrimination cases are included within that
power. Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 123 (2001). Here, Conifer is clearly involved in
interstate commerce, as it has employees and customers in
multiple states within the United States. DN 10, Aff. of
contractual agreement to arbitrate is governed by general
contract law principles. Section 2 of the FAA explicitly
reserves “such grounds as exist at law or in equity for
the revocation of any contract.” 9 U.S.C. § 2.
This includes traditional contract defenses like
“fraud, duress, [and] mistake.” Haskins v.
Prudential Co. of America, 230 F.3d 231, 239 (6th Cir.
2000). However, the Sixth Circuit has interpreted this clause
to also require that the “arbitral forum permits the
effective vindication of [statutory] rights.”
McMullen v. Meijer, Inc., 355 F.3d 485, 492 (6th
Cir. 2004), citing Floss v. Ryan's Family Steak
Houses, Inc., 211 F.3d 306, 311 (6th Cir. 2000). For
example, one party cannot have “exclusive control over
the pool of potential arbitrators from which the arbitrator
is selected.” McMullen, 355 F.3d at 487.
Similarly, the arbitration agreement cannot require employees
to file a notice and list of witnesses when the company is
not so required. Id. at 492, citing Hooters of
America v. Phillips, 173 F.3d 933, 938-39 (4th Cir.
case, there appear to be no impairments preventing the
parties from contracting. There was an express exchange of
promises to utilize arbitration. DN 10, Ex. A. The
arbitration acknowledgment was mutual in its terms, rather
than one-sided, and employed fair procedures following the
guidelines of the AAA and allowing both parties to
participate in the choice of arbitrator. DN 10, Ex. A. Such a
mutual agreement also serves as adequate consideration as
long as it is not “fatally indefinite” by
allowing the company to amend the rules. Walker v.
Ryan's Family Steak House, Inc., 400 F.3d 370, 380
(6th Cir. 2005).
arbitration acknowledgment signed by Burnley falls within the
FAA and appears to be a valid contract between her and
Conifer. Therefore, the Court will GRANT Defendant Conifer
Health Solutions's motion to dismiss (DN 10). The Court
will dismiss this claim, without prejudice. The Court will
enter an order in accordance with this opinion.