United States District Court, W.D. Virginia, Lynchburg Division
K. MOON UNITED STATES DISTRICT JUDGE.
an Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101 et seq., discrimination
case relating to Plaintiff's employment as a server at
Defendant's restaurant. The only issue at stake in this
motion to dismiss is whether the arbitration agreement (the
“Agreement”) between the parties is valid and
enforceable. The Agreement is before the Court as an
attachment to the motion to dismiss, and the Court may
consider the outside document because the dispute relates to
argues that the signed Agreement is unenforceable and thus
that she is not required to arbitrate this dispute.
Specifically, Plaintiff argues that: (1) the Agreement was
not voluntary, (2) the Agreement is missing material terms,
and (3) the Agreement lacks consideration. None of these
arguments are persuasive. Thus, the Court will hold that the
Agreement is valid and the dispute is subject to arbitration,
depriving this Court of jurisdiction under the Federal
Arbitration Act, 9 U.S.C. §§ 1 et seq.
(the “FAA”). The Court will dismiss the case and
order the Plaintiff to submit her dispute to arbitration.
Facts as Alleged
is an employee of Golden Corral, working in the restaurant as
a server. (Dkt. 1 at ¶6). Plaintiff has worked as a server
in the restaurant since April 24, 2013. (Id. at
¶9). She was diagnosed with multiple sclerosis
(“MS”), which is a disability. (Id. at
¶10). Defendant knew of Plaintiff's disability,
including the fact that she was hospitalized due to a flare
up in December 2011. (Id. at ¶¶14, 15).
Plaintiff's doctors recommended she take a week or two
off to recover following the hospitalization. (Id.
at ¶16). Following her hospitalization, Plaintiff's
shifts were reduced to only one day per week. (Id.
at ¶ 17).
2012 Plaintiff provided her managers at Golden Corral,
including General Manager Mike Sisk, with a note from her
neurologist stating that she was unable to work night shifts
due to her disability. (Id. at ¶18). Despite
her neurologist's note, Sisk primarily gave Plaintiff
night shifts and an additional server was hired to cover day
shifts. (Id. at ¶23) Since July 2012, Plaintiff
has submitted multiple requests for the accommodation of only
working day shifts, but still has not been granted them
(Id. at ¶¶24, 25). Plaintiff believed the
reduction in hours was in retaliation for her request to work
day shifts, and filed an EEOC charge to that extent on March
13, 2013. (Id. at ¶30).
began to work at a law firm part-time as a source of
additional income in January 2015, while continuing to work
at Golden Corral on the weekends. (Id. at ¶31).
However, she quit that job the next month and returned to
working only at Golden Corral because she was told she would
receive more hours there. (Id. at ¶¶32,
33). Those additional hours never materialized, so Plaintiff
began accepting shifts from other servers. (Id. at
¶35). However, Sisk refused to allow her to work
others' shifts, even though other servers were commonly
permitted to do so. (Id. at ¶36). In additional
to the limitation on the number of days and shifts she could
work, Sisk also began to release Plaintiff from work shortly
after her shift began. (Id. at ¶37). Plaintiff
continues to work only weekend shifts even though she has
told management she is available to work any day during the
week. (Id. at ¶38).
February 13, 2013, Sisk issued a write-up to Plaintiff after
a customer allegedly complained about her service, even
though that customer had left her a large tip. (Id.
at ¶40). Sisk issued another write-up four days later
for another alleged customer complaint. (Id. at
¶41). After the second write-up, Sisk suspended
Plaintiff from work for one day as a disciplinary action.
(Id. at ¶43). When Plaintiff asked for a copy
of the write-ups, Sisk insinuated that she was asking for
them so that she could take them to the lawyer for whom she
had worked. (Id. at ¶44). When she
actually received them, she noticed that several portions had
been scratched out. (Id. at ¶45).
is asserting two causes of action stemming from the alleged
misconduct. First, she asserts a claim for ADA discrimination
arising from Defendant's refusal to provide her with the
reasonable accommodation of working day shifts. Second, she
puts forth an ADA retaliation claim that her hours were
reduced and a one-day suspension given as a result of her
seeking a reasonable accommodation for her disability.
Defendant has filed a motion to dismiss pursuant to Rule
12(b)(1), arguing that this controversy is governed by a
binding arbitration agreement that denies this Court
Standard of Review
parties disagree as to whether Defendant's motion is
properly adjudicated at the motion to dismiss stage rather
than at summary judgment. Plaintiff asserts that
Defendant's motion cannot be heard as a motion to dismiss
because Defendant's argument relies on documents outside
of the pleadings, namely the Agreement attached to the motion
to dismiss. (See dkt. 10 at 1).
argument is incorrect. The applicability of an arbitration
agreement is a question of jurisdiction. See Huntington
Alloys, Inc. v. United Steelworkers of Am., 623 F.2d
335, 338 (4th Cir. 1980); 9 U.S.C. § 4 (“A party
aggrieved by the alleged failure . . . to arbitrate under a
written agreement for arbitration may petition any United
States district court which, save for the agreement,
would have had jurisdiction under title 28 . . .
.” (emphasis added)). Materials outside of the
pleadings may be considered on motions to dismiss for lack of
jurisdiction. See Blitz v. Napolitano, 700 F.3d 733,
736 n.3 (4th Cir. 2012) (quoting Velasco v. Gov't of
Indonesia, 370 F.3d 392, 398 (4th Cir. 2004)). Other
courts have adopted similar reasoning in the context of
arbitration disputes. See, e.g. Lomax v. Weinstock,
Friedman & Friedman, P.A., No. CIV. CCB-13-1442,
2014 WL 176779, at *2 (D. Md. Jan. 15, 2014), aff'd
sub nom. Lomax v. Weinstock, Friedman & Friedman,
P.A., 583 F. App'x 100 (4th Cir. 2014);
Joyner v. GE Healthcare, No. 4:08-2563-TLW-TER, 2009
WL 3063040, at *2 (D.S.C. Sept. 18, 2009).
on subject matter jurisdiction under Rule 12(b)(1) are
categorized as either “facial” or
“factual.” A facial challenge is one which argues
that “the complaint simply fails to allege facts upon
which subject matter jurisdiction can be based.”
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
A factual challenge is one in which it is “contended
that the jurisdictional allegations of the complaint were not
true.” Id. Here, the challenge is factual
because it requires evaluation of a document extrinsic to the
complaint itself. See U.S. ex rel. TBI Investments, Inc.
v. BrooAlexa, LLC, 119 F.Supp.3d 512, 523-24 (S.D. W.Va.
2015). For factual attacks, courts apply the summary judgment
standard in evaluating the motion and “the nonmoving
party must set forth specific facts beyond the pleadings to
show that a genuine issue of material fact exists.”
Richmond, Fredericksburg & Potomac R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991). The plaintiff
bears the burden of establishing that subject matter
jurisdiction exists. Lovern v. Edwards, 190 F.3d
648, 654 (4th Cir. 1999); Piney Run Preservation
Ass'n v. Cnty. Comm'rs of Carroll Cnty., Md.,
523 F.3d 453, 459 (4th Cir. 2008). “The moving party
should prevail only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as
a matter of law.” Richmond, 945 F.2d at 769.