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Tarpley v. Brookdale Senior Livings

United States District Court, W.D. Virginia, Danville Division

August 30, 2016

RICKY S. TARPLEY, Plaintiff,
v.
BROOKDALE SENIOR LIVINGS, Defendant.

          MEMORANDUM OPINION

          JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Brookdale Senior Livings's (“Brookdale”) Motion to Compel Arbitration and to Dismiss Ricky S. Tarpley's (“Plaintiff”) action. Brookdale and Plaintiff have fully briefed the matter, and I have reviewed the relevant filings and counsel's arguments. For the reasons stated herein, I will compel arbitration and stay the action.

         I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND[1]

         Seemingly under Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101- 12213, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e thru 2000e-17, Plaintiff filed this action against Brookdale for refusing to hire him. (See generally Compl., May 5, 2016 [ECF No. 2].) He attributes Brookdale's hiring decision to discrimination on the basis of his disability, sex, and race. (Id. at pgs. 4, 7-8.) By way of § 4 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), Brookdale moved to compel arbitration. It also moved for the action's dismissal, [2] in its view, a consequence of compelled arbitration.

         On April 30, 2015, Plaintiff completed his final application for employment as a part-time cook at Brookdale.[3] (See id. at pg. 7; Mot. to Dismiss & Mot. to Compel Arbitration ex. 1, at pg. 2, June 7, 2016 [ECF No. 9-2] (hereinafter “Pl.'s S. & A.”).) As part of his application, Plaintiff completed a page titled, “Applicant's Statement & Acknowledgement, ” in which he initialed various matters. (Pl.'s S. & A. at pg. 2.) By signing and dating at the bottom of the page, Plaintiff further “certifie[d]” his “agree[ment] to be bound by the terms and conditions stated in this application, which contain[ed] all the understandings between [Brookdale] and [Plaintiff] concerning the topics addressed [t]herein.” (Id.) There is no dispute that Plaintiff completed the job application, seemingly in Danville. (Cf. Compl. at pgs. 1, 7.)

         On the “Applicant's Statement & Acknowledgement, ” Plaintiff initialed, inter alia, a four-sentence paragraph dealing with arbitration (“the Arbitration Agreement”). The first sentence acknowledged an agreement to arbitrate: “I understand that by signing this application, I agree that in the event a dispute should arise with regard to whether or not I am hired, or if hired, a dispute should arise between my employer and me, that I agree to arbitrate the dispute by a final binding arbitration.” (Pl.'s S. & A. at pg. 2.) The second and third sentences acknowledged possible costs and payment: “The cost of the arbitration shall be paid for by the employer to the extent the costs are awarded by the arbitrator, and therefore, I may have to pay some of the costs. I agree to paying the portion the arbitrator requires.” (Id.) Finally, the fourth sentence acknowledged the Arbitration Policy's application and receipt: “The arbitration to which I am party to is governed by the employer's policy with regard to binding arbitration, and the employer has provided me with a copy of that policy.” (Id.; cf. Mem. in Opp'n to Def. Brookdale's Mot. to Dismiss & Mot. to Compel Arbitration ex. 2, July 8, 2016, [ECF No. 34-2] (hereinafter “the Arbitration Policy”).[4])

         Plaintiff has since declared, “I have never received the ‘employer's policy with regard to binding arbitration' referenced in Brookdale's employment application. I never received an employment handbook for Brookdale.” (Tarpley Decl. ¶ 3, July 8, 2016 [ECF No. 34-1].) At the hearing on this matter, Brookdale's counsel conceded that it lacked evidence to rebut this declaration and that there is a dispute whether Plaintiff received the Arbitration Policy.[5]

         II. STANDARD OF REVIEW

         Addressing a motion to compel arbitration under the FAA, a court applies a standard that “is akin to the burden on summary judgment.” Galloway v. Santander Consumer USA, Inc., 819 F.3d 79, 85 n.3 (4th Cir. 2016) (quoting Chorley Enters., Inc. v. Dickey's Barbecue Rests., Inc., 807 F.3d 553, 564 (4th Cir. 2015)). “If the party seeking arbitration has substantiated the entitlement by a showing of evidentiary facts, the party opposing may not rest on a denial but must submit evidentiary facts showing that there is a dispute of fact to be tried.” Oppenheimer & Co. v. Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995), cited with approval in Chorley Enters., Inc., 807 F.3d at 564. “Where a party ‘show[s] genuine issues of material fact regarding the existence of an agreement to arbitrate, ' . . . that party is entitled to a jury trial on the issue.” Galloway, 819 F.3d at 91 (alteration in original) (quoting Chorley Enters., Inc., 807 F.3d at 564).

         III. DISCUSSION

         Arbitration occurs where “disputants empower[] a third party to render a decision settling their dispute.” See Wilbert, Inc. v. Homan, No. 3:13-CV-30-RJC-DSC, 2013 WL 6238286, at *3 (W.D. N.C. Dec. 3, 2013) (quoting Salt Lake Tribune Publ'g Co., LLC v. Mgmt. Planning, Inc., 390 F.3d 684, 689 (10th Cir. 2004)). It is a “fundamental principle that arbitration is a matter of contract, ” Lorenzo v. Prime Commc'ns, L.P., 806 F.3d 777, 781 (4th Cir. 2015) (quoting AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)), while the FAA “governs the rights and responsibilities of the parties to an arbitration agreement, ” C.B. Fleet Co. v. Aspen Ins. UK Ltd., 743 F.Supp.2d 575, 581 (W.D. Va. 2010).

         “Congress enacted the FAA in 1925 ‘to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.'” Dillon v. BMO Harris Bank, N.A., 787 F.3d 707, 712 (4th Cir. 2015) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)). Before the FAA, it was well established

that the performance of a written agreement to arbitrate would not be enforced in equity, and that if an action at law were brought on the contract containing the agreement to arbitrate, such agreement could not be pleaded in bar of the action; nor would such an agreement be ground for a stay of proceedings until arbitration was had. Further, the agreement was subject to revocation by either of the parties at any time before the award.

S. Rep. No. 68-536, at 2 (1924); see also Red Cross Line v. Atl. Fruit Co., 264 U.S. 109, 120-21 (1924). In response, § 2 of the FAA made arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract, ” and § 3 and § 4 “provide[d] . . . parallel devices for enforcing an arbitration agreement: a stay of litigation in any case raising a dispute referable to arbitration, and an affirmative order to engage in arbitration, ” respectively. Dillon, 787 F.3d at 713 (citations and internal quotation marks omitted). Through these and other provisions, “[t]he FAA manifests an ‘emphatic federal policy in favor of arbitral dispute resolution, ' and requires that courts ‘rigorously enforce agreements to arbitrate.'” Id. at 712 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985), and Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985)).

         “In determining whether the parties executed a valid agreement to arbitrate, courts generally apply ordinary state-law principles that govern the formation of contracts, ” Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d 302, 305 (4th Cir. 2001), here, Virginia law, see Bizmark, Inc. v. Air Prods., Inc., 427 F.Supp.2d 680, 688 (W.D. Va. 2006).[6] The “party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration.” See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000).

         The Arbitration Agreement's plain language clearly encompasses Plaintiff's cause of action, [7] but Plaintiff argues the former's invalidity or unenforceability on several grounds: lack of agreement for Brookdale's failure to provide the Arbitration Policy, lack of mutuality for only Plaintiff's obligation to arbitrate, lack of consideration for Plaintiff's completion of a mere job application, and unconscionability for Plaintiff's lack of meaningful choice in cost splitting.[8]

         A. The Arbitration Policy

         Plaintiff argues that, because Brookdale provided him no copy of the Arbitration Policy (Tarpley Decl. ¶ 3), he formed no arbitration agreement. He contends that he could not have known the terms of arbitration without having been provided the Arbitration Policy.

         Several principles conjoin to undermine Plaintiff's contention here. “[T]he failure to specify the applicable body of arbitration procedures to be used does not render the contract unenforceable as patently ambiguous.” McNeil v. Haley S., Inc., No. 3:10CV192, 2010 WL 3670547, at *5, *6 (E.D. Va. Sept. 13, 2010). In other words, those procedures are not necessary to forming a complete and definite agreement to arbitrate. In light of this principle, the parties' conceded dispute whether Plaintiff received the Arbitration Policy, see supra pg. 3, bears, at most, on a separate question whether the Arbitration Policy will govern the arbitral proceeding.[9]Such a question of “what kind of arbitration ...


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