United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
matter comes before the Court on Defendants BJ's
Wholesale Club, Chris Chase, and Brandon Jester's
(collectively, "BJ's") joint Motions to Compel
Arbitration and Dismiss Proceedings. (ECFNos. 11, 12.)
Plaintiff Dazzmond Hawthorne responded to BJ's Motions.
(ECF No. 17.) BJ's did not file a reply, and the time to
do so has expired. Accordingly, the motions are ripe for
adjudication. The Court dispenses with oral argument because
the materials before the Court adequately present the facts
and legal contentions necessary to resolve BJ's motions.
The Court exercises jurisdiction over this matter pursuant to
28 U.S.C. § 1331.
reasons that follow, the Court will grant BJ's Motion to
Compel Arbitration (ECF No. 11) and BJ's Motion to
Dismiss (ECF No. 12). The Court will dismiss the action
Procedural and Factual Background
September 22, 2015, Hawthorne filed a Complaint in this
Court. (ECF No. 2.) Hawthorne submitted his Complaint in
narrative form, lacking enumerated paragraphs or citations to
any law. Hawthorne specifically states that he brings suit
against BJ's for "wrongful termination, pain and
suffering, defamation of character, and false
allegations." (Compl. 3.) Liberally construing
Hawthorne's pro se Complaint, the Court finds he
attempts to state claims for defamation, wrongful
termination, and racially discriminatory employment
practices, in violation of Title VII. (See supra
note 1.) On January 13, 2015, BJ's filed the instant
Motions to Compel Arbitration and Dismiss the Proceedings.
(ECFNos. 11, 12.) BJ's asserts that Hawthorne's
claims are subject to an agreement to submit all
employment-related claims to binding arbitration.
Hawthorne's Work for and Termination from
about December 2, 2013, BJ's hired Hawthorne to work in
its tire bay.Hawthorne alleges that two coworkers,
Shiante Crumbley and Ashley Cooper, informed him in June 2014
that another coworker, Brandon Jester, used vulgar and
racially derogatory language to insult him on Facebook.
Hawthorne states that he confronted Jester about the comments
during Hawthorne's next shift. Hawthorne avers that
management then began scheduling Jester to work with
Hawthorne more frequently than had occurred in the past.
Hawthorne states that he felt as if Jester and BJ's
management wanted "something serious to occur"
between Hawthorne and Jester. (Compl. 1.) Hawthorne alleges
that he brought these concerns to his immediate manager, but
was told "to think nothing of it, and just continue to
do [his] job." (Id.) Hawthorne states that no
other incidents occurred between June and September of 2014.
about September 13, 2014, Hawthorne alleges that Crumbley
contacted him and told him to "watch [his] back"
because she heard Hawthorne "was getting" something
when he returned to work. (Id.) During
Hawthorne's next shift, on September 20, 2014, Chris
Chase, the store manager, placed Hawthorne on suspension, in
part for making threatening comments to other employees.
Hawthorne avers that Chase refused to state more specific
grounds for the suspension because of a
"right-to-know" law. (Id.) On September
29, 2014, Hawthorne met with two other BJ's
representatives. The two representatives ultimately
terminated Hawthorne due to a threat against Jester.
The Arbitration Agreement
April and May of 2013, BJ's adopted the Open Door
Solutions program to serve as a four-step dispute resolution
system. Steps one, two, and three of the Open Door Solutions
program attempt to resolve employment-related disputes
internally. Step four of the Open Door Solutions program
requires the parties to submit to binding arbitration. At the
time of its implementation, BJ's allowed each of its
employees to opt out of the Open Door Solutions'
Arbitration Agreement (the "Arbitration
Agreement"). Since its implementation, BJ's informs
all new employees about the Arbitration Agreement and gives
them an opportunity to opt out.
parties agree that Hawthorne signed a "New Hire
Acknowledgement and Agreement" (the
"Acknowledgement") upon being hired. (New Hire
Ackn. Arb. Agreement at 1; Pl's Resp. at 1.) The
Acknowledgment notes that Hawthorne received and reviewed a
copy of BJ's Open Door Solutions program materials. The
Acknowledgement further states:
In particular, I confirm my understanding and agreement with
BJ's that any employment dispute that is not resolved
informally by BJ's and me in Steps 1 through 3 of the
Open Door Solutions program will be resolved by Step 4, final
and binding arbitration, in accordance with the Program.
I understand and agree that I am giving up and waiving my
right to a jury trial or court trial including my right to
participate in class action litigation or other
representation or collective actions.
(New Hire Ackn. Arb. Agreement 1.) Article 2 of the Open Door
Solutions Rules and Procedures provides that "all
employment-related legal disputes, controversies or claims
arising out of, or relating to, employment or cessation of
employment, whether arising under federal, state[, ] or local
decisional or statutory law ("Employment-Related
Claims"), shall be resolved exclusively by final and
binding arbitration." (Loudon Decl. at 8 ("Arb.
Rules and Proc"), art. 2, ECF No. 13-1.) Article 2 then
lists a number of examples of "Employment-Related
Claims/' expressly including defamation, wrongful
termination, and claims arising under Title VII of the Civil
Rights Act of 1964. (Id.)
"Mutual Agreement to Arbitrate Claims" further
clarifies the Arbitration Agreement in plain language:
This Agreement applies to any dispute, past, present[, ] or
future that I have against BJ's, or that BJ's has
against me, which could have been resolved in a court of law,
arising out of or relating to any aspect of my job at
BJ's, including but not limited to: my application for a
job, my work at BJ's, or my separation from BJ's. I
understand that this Agreement continues after my employment
at BJ's ends. I understand that this Agreement does not
change in any way my status as an "at will"
employee of BJ's.
(Loudon Decl. at 5 ("Mutual Agreement to Arb."
BJ's employees have an opportunity to opt out of the
Arbitration Agreement by completing an opt-out form and
returning it to the BJ's Office of Open Door Solutions
within 30 days. Neither party contests that Hawthorne did not
opt out of the Arbitration Agreement.