United States District Court, W.D. Arkansas, Fayetteville Division
TAYLOR WILSON, SPECIAL ADMINISTRATOR OF THE ESTATE OF RANDY WARREN WILSON PLAINTIFF
LUXOTTICA RETAIL NORTH AMERICA, INC. DEFENDANT
OPINION AND ORDER
HOLMES, III U.S. DISTRICT JUDGE.
the Court is Defendant Luxottica Retail North America,
Inc.'s (“Luxottica”) motion (Doc. 8) to
dismiss or, in the alternative, to stay and compel
arbitration and brief (Doc. 9) in support. Plaintiff Taylor
Wilson (“Wilson”), Special Administrator of the
Estate of Randy Warren Wilson (“Mr. Wilson”),
deceased, filed a response (Doc. 11) in opposition. Luxottica
filed a reply (Doc. 15) with leave of Court. Luxottica's
motion requests that the Court compel arbitration as required
by the parties' arbitration agreement and dismiss this
action. For the reasons set forth below, the motion will be
filed this action on November 1, 2018 claiming Luxottica
terminated Randy Wilson's employment on the basis of a
disability in violation of the Americans with Disabilities
Act (“ADA”) and the Arkansas Civil Rights Act of
1993 (“ACRA”). The complaint further claims that
Luxottica terminated Mr. Wilson's employment as
retaliation for his status as a protected whistleblower in
violation of the False Claims Act, 31 U.S.C. § 3730(h).
Wilson worked as the General Manager of a Lenscrafter retail
store owned and operated by Luxottica. In 2015, Luxottica
issued an “Associate Guide” to its employees. The
terms of the Associate Guide set out that as a condition of
continued employment, Mr. Wilson was required to review and
acknowledge the Guide's policies, including a dispute
resolution agreement with an arbitration agreement. (Doc.
9-1, p. 5). The arbitration agreement “covers virtually
all legal claims arising out of or related to [Mr.
Wilson's] employment with Luxottica.” (Doc. 9-1, p.
8). The arbitration agreement explicitly includes Americans
with Disabilities Act claims and “state statutes or
regulations addressing the same or similar subject matters,
and all other federal or state legal claims arising out of or
relating to [Mr. Wilson's] employment or the termination
of employment.” (Doc. 9-1, p. 10). Both parties agreed
“to resolve their disputes exclusively through binding
arbitration, ” and the parties agreed that they waived
their rights to a trial. (Doc. 9-1, p. 9). The terms of the
Associate Guide allowed Mr. Wilson to opt out of the dispute
resolution agreement within 30 days of receipt of the Guide.
(Doc. 9-1, p. 12). Mr. Wilson did not opt out.
argues that the arbitration agreement requires the Court to
compel arbitration and dismiss or stay the case. Taylor
Wilson contends that the arbitration provision is
unenforceable because it lacks consideration and mutuality,
that the arbitration agreement is not binding on him because
he, Taylor Wilson, was not a party to the original dispute
resolution agreement, and that even if the arbitration
agreement is valid and enforceable, Luxottica waived its
right to compel arbitration.
motion to compel arbitration is reviewed under the summary
judgment standard. See Nebraska Mach. Co. v. Cargotec
Sols., 762 F.3d 737, 741-42 (8th Cir. 2014). The Court
views the evidence and resolves all factual disputes in the
nonmoving party's favor. Id. In determining
whether Wilson's claims fall within the terms of the
arbitration provision, the Court should not rule on the
potential merits of the underlying claims. AT&T
Techs. v. Commc'ns Workers, 475 U.S. 643, 649
(1986). The Court should determine first whether there is a
valid arbitration agreement and second, whether the claims
fall within the terms of the arbitration provision.
Robinson v. EOR-ARK LLC, 841 F.3d 781, 783-84 (8th Cir.
2016). If both questions are answered in the affirmative,
arbitration must be compelled.
an arbitration agreement is valid and enforceable is governed
by state contract law. Donaldson Co., Inc. v. Burroughs
Diesel, Inc., 581 F.3d 726, 731-32 (8th Cir. 2009)
(explaining that “state contract law governs the
threshold question of whether an enforceable arbitration
agreement exists between litigants”). Under Arkansas
law, the essential elements of a contract are: (1) competent
parties; (2) subject matter; (3) legal consideration; (4)
mutual agreement; and (5) mutual obligations. Tyson
Foods, Inc. v. Archer, 147 S.W.3d 681, 684 (Ark. 2004).
There is no dispute the parties to the agreement were fully
competent and the mutual agreement covered legally
permissible subject matter. The only elements at issue are
legal consideration and mutual obligations.
argues that there is no valid contract because continued
at-will employment cannot constitute
consideration. Arkansas law is clear that continued
at-will employment can constitute consideration for an
employment agreement. See Barnard v. Townsquare Media,
LLC, No. 12-cv-4110, 2013 U.S. LEXIS 58728, at *6 n.1
(W.D. Ark. April 24, 2013) (“The legal consideration
for the agreement was furnished by [the employee's]
acknowledgement of the policy as a condition of her
employment, as well as the mutual promises stated in the
agreement that the parties would arbitrate their
disputes.”); see also Sexton Law Firm, P.A. v.
Milligan, 948 S.W.2d 388, 393-94 (Ark. 1997). In
Sexton, the Arkansas Supreme Court stated:
If the handbook language [is sufficiently definite to
constitute] an offer, and the offer has been communicated by
dissemination of the handbook to the employee, the next
question is whether there has been an acceptance of the offer
and consideration furnished for its enforceability. In the
case of unilateral contracts for employment, where an
at-will employee retains employment with knowledge of new or
changed conditions, the new or changed conditions may become
a contractual obligation. In this manner, an original
employment contract may be modified or replaced by a
subsequent unilateral contract. The employee's retention
of employment constitutes acceptance of the offer of a
unilateral contract; by continuing to stay on the job,
although free to leave, the employee supplies the necessary
consideration for the offer.
948 S.W.2d at 393-94 (emphasis added) (quoting Crain
Indus., Inc. v. Cass, 810 S.W.2d 910, 914 (Ark. 1991)).
dispute resolution agreement was among the policies in the
Associate Guide distributed to employees and reviewed by Mr.
Wilson. The Guide makes clear that Mr. Wilson's continued
employment was conditioned on his review and acknowledgement
of the policies, including the dispute resolution agreement.
(Doc. 9-1, p. 5). The language of the Guide amounts to a
unilateral offer: to continue working for Lenscrafters,
employees must review and acknowledge each of the policies in
the Guide as applicable. After reviewing the policy, Mr.
Wilson was free to leave and seek new employment at any time.
He was also free to opt out of the dispute resolution
agreement within 30 days of receipt of the Guide. Mr. Wilson
did neither. By returning to work, he supplied the necessary
consideration for the unilateral offer of employment. His
retention of employment-with knowledge of the new policies
under the Associate Guide- constituted acceptance.
also argues that there is no valid contract because there is
no mutuality of obligation. Relying on Alltel Corporation
v. Rosenow, 2014 Ark. 375, at *7-9 (2014), Wilson argues
that the agreement fails “to provide a mechanism by
which both parties could opt-out; instead, the contract only
allowed the employee to opt-out.” (Doc. 11, p. 5).
“[M]utuality of contract means that an obligation must
rest on each party to do or permit to be done something in
consideration of the act or promise of the other; thus,
neither party is bound unless both are bound.”
Tyson Foods, Inc. v. Archer, 147 S.W.3d at 684.
However, if an agreement “leaves it entirely optional
with one of the parties as to whether or not he will perform
his promise his promise would not be ...