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Johnson v. Pizza Hut

United States District Court, W.D. Arkansas, El Dorado Division

March 2, 2017

DASHUNDA R. JOHNSON PLAINTIFF
v.
PIZZA HUT DEFENDANT

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE.

         Before this Court is, NPC International, Inc. (“NPC” or “Defendant”)[1] Motion to Compel Arbitration and Dismiss or Stay Proceedings. ECF No. 12. Plaintiff has filed a response to this Motion. ECF No. 13. Defendant also filed Reply Briefing. ECF No. 17. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Susan O. Hickey referred this Motion to this Court for the purpose of making a report and recommendation. In accordance with that referral, this Court enters the following report and recommendation.

         1. Background

         In this matter, Plaintiff brings a pro se suit against the Defendant, alleging discriminatory discharge under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623 et seq., the Americans with Disabilities Act, as amended (“ADA”), 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). ECF No. 1.

         On January 17, 2017, Defendants filed a Motion to Compel Arbitration and Dismiss or in the alternative Stay Proceedings. ECF. No. 12. With this Motion, Defendant seeks referral of the issues raised in this Complaint to arbitration in accordance with the terms of the Arbitration agreement.

         Defendant further seeks a stay or dismissal the action pending arbitration. Id. According to Defendant, during Plaintiff's employment with the Defendant, she electronically signed an Arbitration Agreement confirming that she agreed to the following:

NPC International Inc. on behalf of itself and its parents and affiliates, officers and directors (collectively, “NPC”) and I agree to use confidential binding arbitration, instead of going to court, for any claims, including any claims now in existence or that may exist in the future (a) that I may have against NPC and/or their current or former employees or (b) that NPC may have against me. Without limitation, such claims include any concerning . . . leave, employment (including, but not limited to, any claims concerning harassment, discrimination, or retaliation) . . . and/or termination of employment.
In any arbitration, the American Arbitration Association (“AAA”) will administer the arbitration, and the then prevailing employment dispute resolution rules of the AAA will govern, except that (a) NPC will pay the arbitrator's fees; (b) if I am the one filing the claim, NPC will pay that portion of the arbitration filing fee in excess of the similar court filing fee had I gone to court; and (c) as discussed below, the arbitration shall occur only as an individual action . . . . . . .
All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the validity, enforceability, and interpretation of its prohibitions of class and representative proceedings, shall be for a court of competent jurisdiction to decide.
I acknowledge and agree that this Agreement to Arbitrate is made in exchange for my employment or continued employment, as well as the mutual promises to resolve disputes through arbitration contained in this Agreement. . . .

ECF No. 12-3 (emphasis added).

         Plaintiff responded and stated Defendant's Motion should be denied because: (1) the Arbitration Acknowledgment submitted by Defendant does not actually refer to Plaintiff; and (2) the Agreement lacks mutuality because it is merely an “agreement to agree to” arbitrate. ECF No. 13.

         2. Applicable Law

         In addressing a motion to compel arbitration, courts generally apply a two-part test: “(1) whether there is a valid arbitration agreement and (2) whether the particular dispute falls within the terms of that agreement.” E.E.O.C. v. Woodmen of World Life Ins. Soc., 479 F.3d 561, 565 (8th Cir. 2007) (quoting Faber v. Menard, Inc., 367 F.3d 1048, 1052 (8th Cir. 2004)). While, the Federal Arbitration Act (“FAA”) governs the enforceability of the Arbitration Agreement in this case, “[t]he validity of the agreement is determined by state contract law.” Id. Under Arkansas law, the essential elements of a contract or an agreement are: (1) competent parties, (2) ...


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