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Brewer v. IMG College, LLC

United States District Court, D. Kansas

July 11, 2019

Alice Brewer, Plaintiff,
v.
IMG College, LLC; IMG College Seating, LLC; and IMG College Licensing, LLC, Defendants.

          MEMORANDUM & ORDER

          John W. Lungstrum United States District Judge

         Plaintiff Alice Brewer filed this lawsuit against defendants asserting employment-related claims of discrimination and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This matter is presently before the court on defendants' motion to compel arbitration and to stay this case pending arbitration (doc. 7). As set forth in more detail below, defendants' motion is granted.[1]

         Factual Background

         IMG College is a leading collegiate sports marketing company that provides national, regional and local advertising and marketing opportunities for businesses to reach college sports fans. At all pertinent times, IMG College's business headquarters were in North Carolina. In August 2015, plaintiff began her employment with IMG College as a Senior Account Executive at its University of Kansas facility in Lawrence, Kansas.

         At the time IGM College extended an employment offer to plaintiff in July 2015, all “new hires” were required to sign employment agreements. Consistent with this practice, IMG College emailed plaintiff an offer letter in July 2015 that was accompanied by an employment agreement. Plaintiff accepted the offer by signing the employment agreement on July 23, 2015. Kristine Schroeder, IMG College's Director of Human Resources, signed the agreement on behalf of IMG College the following day and the executed agreement was maintained in plaintiff's personnel file. The employment agreement contains an arbitration provision requiring the parties to submit to arbitration any dispute related to the employment relationship, including the termination of that relationship.

         IMG College terminated plaintiff's employment in February 2018. After exhausting her administrative remedies, plaintiff filed this lawsuit. IMG College asserts that the filing was done in contravention of the arbitration provision.

         Legal Framework

         Congress enacted the Federal Arbitration Act (“FAA”) “in response to widespread judicial hostility to arbitration agreements.” Beltran v. AuPairCare, Inc., 907 F.3d 1240, 1250 (10th Cir. 2018) (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). Under the FAA, “A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. (quoting 9 U.S.C. § 2). Thus, if the court is “satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” Id. (quoting 9 U.S.C. § 4).

         In deciding whether to grant a motion to compel arbitration, courts must resolve “whether the parties are bound by a given arbitration clause.” Id. (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)).[2] This inquiry requires a court to determine whether the arbitration agreement should “be declared unenforceable ‘upon such grounds as exist at law or in equity for the revocation of any contract.'” Id. at 1250-51 (quoting Concepcion, 563 U.S. at 339 (quoting 9 U.S.C. § 2)). “This saving clause permits agreements to arbitrate to be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability,' but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Id. at 1251 (quoting Concepcion, 563 U.S. at 339). The enforceability of the agreement is a matter of state law. Id. (citing Concepcion, 563 U.S. at 339).

         The parties agree that under the choice-of-law provision in the employment agreement, North Carolina law governs the enforcement of the arbitration provision. North Carolina public policy strongly favors arbitration. Gemini Drilling & Foundations, LLC v. National Fire Ins. Co., 665 S.E.2d 505, 509 ( N.C. Ct. App. 2008). Under North Carolina law, general principles of contract law govern the issue of whether there exists a valid agreement to arbitrate. Canadian American Ass'n of Professional Baseball, Ltd. v. Ottawa Rapidz, 711 S.E.2d 834, 837 ( N.C. Ct. App. 2011). The party seeking arbitration bears the burden of proving that the parties mutually agreed to arbitrate their disputes, see id., and the party opposing arbitration bears the burden of proving any defense, such as unconscionability. See Tillman v. Commercial Credit Loans, Inc., 655 S.E.2d 362, 369 ( N.C. Ct. App. 2008).

         In support of the motion to compel arbitration, IMG College highlights the existence of each element of an enforceable contract-offer, acceptance and sufficient consideration (i.e., the parties' mutual agreement to arbitrate any disputes). See China Grove 152, LLC v. Town of China Grove, 773 S.E.2d 566, 572 ( N.C. Ct. App. 2015) (valid contract requires offer, acceptance and sufficient consideration). In response to IMG College's motion, plaintiff contends that no valid agreement to arbitrate exists because the agreement lacks sufficient consideration and is substantively unconscionable. As will be explained, sufficient consideration to support the agreement exists and plaintiff has not satisfied her burden of proving unconscionability. The parties, then, are required to arbitrate this dispute.

         Sufficient Consideration

         The arbitration provision in the parties' employment agreement provides that “[u]nless the resolution of a particular dispute is barred by law, the parties agree to submit to arbitration any dispute related to the employment relationship and/or the termination of that relationship and agree that the arbitration process shall be the exclusive, final and binding means for resolving disputes which the parties cannot themselves resolve.” Relying on this mutual agreement to arbitrate, IMG College asserts that the agreement is supported by sufficient consideration. See Howard v. Oakwood Homes Corp., 516 S.E.2d 879, 881 ( N.C. Ct. App. 1999) (mutual promises to arbitrate contained in an arbitration agreement constitute sufficient consideration for that agreement). Nonetheless, plaintiff contends that no reciprocal agreement exists here because IMG College retains the ability to seek “provisional” injunctive relief in court to enforce the non-compete, non-solicitation, trade secret and confidentiality obligations set forth in the employment agreement pending a decision on the merits by an arbitrator.

         Plaintiff directs the court to only one case in support of her argument-a case from the Missouri Court of Appeals, Jimenez v. Cintas Corp., 475 S.W.3d 679 (Mo.Ct.App. 2015). But the provision at issue in Jimenez was a complete exception to arbitration-the employer was permitted to seek injunctive relief in court without submitting those claims to arbitration. See id. at 687-88. Here, the exception provides only “provisional” injunctive relief pending arbitration. Both the Fourth Circuit and federal district courts in North Carolina have recognized that the specific reservation of rights utilized by IMG College is “merely declaratory of existing legal rights.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1053-54 (4th Cir. 1985) (quoting Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1067 (2nd Cir. 1972)); UBS Painwebber, Inc. v. Aiken, 197 F.Supp.2d 436, 441 (W.D. N.C. 2002) (employer reserved right to seek preliminary injunctive relief pending arbitration and district court had jurisdiction to enter that relief despite the fact that case was subject to binding arbitration). In other words, IMG College's reservation of the right to seek injunctive relief pending arbitration does not alter the fact that IMG College, like plaintiff, is required to arbitrate any and all ...


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