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Robinson v. Brookdale Senior Living Communities, Inc.

United States District Court, Tenth Circuit

December 5, 2013

SHAKITA ROBINSON, LAKISHA WILLIAMS, ELIJAH MAKAU, HABTAMA AKALU Plaintiffs,
v.
BROOKDALE SENIOR LIVING COMMUNITIES, INC., PEGGY HACKETT, LINDSAY BEACH Defendants.

MEMORANDUM AND ORDER

RICHARD D. ROGERS, District Judge.

This matter is presently before the court upon defendants' motion to dismiss or, in the alternative, to stay proceedings and compel arbitration. The defendant contends that the claims of plaintiffs Shakita Robinson, Lakisha Williams and Elijah Makau are subject to a binding arbitration agreement and should either be dismissed or stayed pending arbitration. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.

I.

Plaintiffs Robinson, Williams and Makau filed a complaint in state court on September 11, 2013.[1] The defendants were Brookdale Senior Living Communities, Inc., their former employer, and two managerial employees of Brookdale. Robinson and Williams are identified in the complaint as African-Americans. Makau is identified as a person of African national origin from the country of Ethiopia. Plaintiffs assert claims under 42 U.S.C. §1981. They contend they were subjected to a racially hostile work environment during their employment. Robinson and Williams also contend that they were terminated because of their race. Makau contends that he was terminated because of his national origin under § 1981 and for his refusal to perform unlawful acts under state law.

The facts underlying the instant motion are undisputed. Robinson was employed by Brookdale from September 2008 to July 3, 2013. In conjunction with her employment, Robinson signed an Employment Binding Arbitration Agreement on or about September 18, 2008. On September 18, 2008, and on several dates after that time, Robinson signed an Associate Handbook Receipt and Acknowledgment in which she confirmed her agreement to arbitrate any disputes with Brookdale.

Williams was employed by Brookdale from March 2011 until July 3, 2013. She also signed an Employment Binding Arbitration Agreement on or about March 21, 2011. On that date, and on a subsequent date, Williams signed an Associate Handbook Receipt and Acknowledgment Agreement in which she confirmed her agreement to arbitrate any disputes with Brookdale.

Makau was employed by Brookdale from at least February 2007 to May 2013. On February 22, 2007, and again on a subsequent date, Makau signed an Associate Handbook Receipt and Acknowledgment in which he agreed to arbitrate any disputes with Brookdale in accordance with Brookdale's Employment Binding Arbitration Agreement. The Associate Handbook contained Brookdale's Binding Arbitration Procedure.

The Arbitration Agreement signed by Robinson and Williams provides, in part, as follows:

1. As a condition of your employment here, you agree that any controversy or claim arising out of or relating to your employment relationship with us or the termination of that relationship, must be submitted for final and binding resolution by a private and impartial arbitrator, to be jointly selected by you and us.
a. Claims Covered: This agreement to submit to mediation and (if necessary) arbitration:
i. Covers any dispute concerning the arbitrability of any such controversy or claim; and ii. Includes, but is not limited to, any claim that could be asserted in court or before an administrative agency or claims for which you have an alleged cause of action, including without limitation claims for breach of any contract or covenant (express or implied); tort claims; claims for discrimination (including but not limited to discrimination based on sex, pregnancy, race, national or ethnic origin, age, religion, greed, marital status, mental or physical disability, or medical condition or other characteristics protected by statute); claims for wrongful discharge; violations of the Family and Medical Act (FMLA); violations of confidentiality or breaches of trade secrets; and/or claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, and whether based on statute or common law; and
iii. All those claims whether made against us, any of our parent, subsidiary, or affiliated entities, or our individual officers or directors (in an official or personal capacity).

The Arbitration Agreement provides the following on the payment of the costs of the arbitration process:

j. The parties agree that the costs of the AAA administrative fees and the arbitrator's fees and expenses will be paid for us initially, but as provided by statute or decision of the arbitrator. In other words, all costs could after all is complete be paid by us or you, depending upon the outcome. All other costs and expenses associated with the arbitration, including, without limitation, the party respective attorneys' fees, shall ...

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