United States District Court, E.D. North Carolina, Eastern Division
CARL E. DAVIS, Plaintiff,
BSH HOME APPLIANCES CORPORATION, BLUE ARBOR, INC., and TESI SCREENING, INC. Defendants.
W. FLANAGAN United States District Judge
matter is before the court on defendant BSH Home Appliances
Corporation's motion to confirm arbitration award. (DE
50). Also before the court is plaintiff's motion for
hearing. (DE 49). In this posture, the issues raised are ripe
for ruling. For the reasons that follow, the court denies
plaintiff's motion and grants defendant's motion. The
arbitration award is confirmed.
proceeding pro se, initiated this action on June 15, 2015,
against defendants BSH Home Appliances Corporation
(“BSH”), Blue Arbor, Inc. (“Blue
Arbor”), and TESI Screening, Inc. (“TESI”).
Plaintiff alleges one count of retaliation under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII claim”).
of answer, on July 16, 2015, defendant BSH filed a first
motion to compel arbitration, pursuant to the Federal
Arbitration Act (“FAA”), 9 U.S.C. §§ 3
and 4. (DE 14). The court denied defendant BSH's motion
by orders dated January 14 and February 10,
2016. (DE 19, 30). Upon review of the evidence,
the court found that defendant BSH failed to establish that
plaintiff agreed to submit the disputed issues to
the court's denial of its first motion, defendant BSH
filed an amended motion to compel arbitration and stay trial
on February 24, 2016. (DE 31). On May 18, 2016, the court
granted BSH's amended motion and directed plaintiff to
submit the underlying employment dispute, as well as any
argument regarding the validity and scope of the disputed
dispute resolution policy to arbitration. At that time, the
court stayed the case, pending resolution of the
to the court's directive, defendant BSH and plaintiff
participated in arbitration. On October 31, 2016, defendant
BSH submitted a motion to dismiss plaintiff's claims to
arbitrator Carl Horn, III. Plaintiff responded in opposition
on December 3, 2016. On December 9, 2016, the arbitrator
issued a final order dismissing the arbitration with
prejudice. (DE 49-1 at 18-20). In reaching his conclusion,
the arbitrator found that defendant BSH “clearly and
credibly established [that plaintiff's] employment was
conditioned upon his agreement to be subject to a Dispute
Resolution Policy (“DRP”) which required that
most disputes between the employee and his employer be
resolved first by submitting to mediation and, if not
resolved in the mediation, by binding arbitration
administered by the American Arbitration Association.”
(Id. at 18). The arbitrator found that the
“DRP clearly and unequivocally provides that
arbitration must be initiated ‘within one year of the
time the claim accrued or, in the case of a claimed statutory
violation, the time limits imposed by the applicable statute
of limitations, whichever is longer. . . . ‘[F]ailure
to initiate arbitration within this timeline will forever bar
any claim involving that dispute.'” (Id.
at 19). Based on this language, the arbitrator concluded that
plaintiff's claim presented in arbitration was untimely.
December 27, 2016, plaintiff filed the instant motion for
hearing. Plaintiff contends that arbitration was improper and
seeks hearing to present evidence that defendant BSH
falsified certain paperwork it relied on to establish
plaintiff agreed to arbitrate employment related claims.
Defendant BSH filed opposition to plaintiff's motion on
January 4, 2017.
December 28, 2016, BSH filed the instant motion to confirm
the arbitration award. (DE 50). Defendant BSH contends that
the court should confirm the arbitrator's award, as
pursuant to 9 U.S.C. § 9, where no basis to vacate,
modify, or correct the award exists. Plaintiff has not
responded directly to defendant BSH's motion, however his
motion for hearing and related filings set forth several
reasons why the court should not dismiss the case.
pertinent to the instant motions are summarized as follows.
Defendant BSH employed plaintiff from August 11, 2003, until
June 15, 2008. Sometime in 2000, defendant BSH promulgated a
“dispute resolution policy, ” (the “2000
DRP”), which establishes a multi-step procedure for
resolving employee grievances arising out of or relating to
the employee's employment. (See Ex. D, DE 32 at
16-19). At the time it was promulgated, defendant BSH
provided all then-current employees with a copy of the 2000
DRP. As a condition of continued employment, defendant BSH
required each employee to agree with the terms of the policy.
Defendant BSH also provided a copy of the 2000 DRP to all
newly-hired employees. Defendant BSH required all newly-hired
employees to sign a form acknowledging receipt of the policy
and indicating their assent to the terms contained therein.
Defendant BSH provided plaintiff a copy of the policy on
August 11, 2003.
relevant here, the 2000 DRP contains an arbitration
provision, which incorporates by reference rules of the
American Arbitration Association (“AAA”), and
requires any arbitration to occur before the AAA. In June of
2005, defendant created and circulated an employee handbook.
The employee handbook incorporates several previously
free-standing company policies, including a revised version
of the 2000 DRP. (See Ex. B, DE 32 at 11-14). Like
the 2000 DRP, the revised DRP requires aggrieved employees to
submit employment disputes to arbitration before the AAA. The
revised DRP also incorporates by reference AAA rules.
Following implementation of the employee handbook, defendant
BSH circulated copies of the handbook and all related
documents to its then-current employees, who were required to
sign an acknowledgment thereof as a condition of continued
employment. Plaintiff signed the acknowledgment form on June
23, 2005. (See Ex. B, DE 32 at 7).
28, 2005, defendant BSH terminated plaintiff for reasons, it
alleges, related to a rules infraction. Following
plaintiff's 2005 termination, plaintiff filed a claim of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”), wherein he alleged that his
termination was racially motivated. Plaintiff ultimately
settled his discriminatory termination claim, and defendant
re-hired plaintiff with seniority retroactive to August 11,
2003, plaintiff's original hire date. Thereafter,
plaintiff continued to work for defendant BSH until he
voluntarily left in June 2008. In July 2013, plaintiff
reapplied to work at defendant BSH. At that time, defendant
BSH informed plaintiff that he had to apply for the position
through defendant TESI, Inc., a temporary staffing agency now
known as defendant Blue ...