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Starnes v. Conduent Inc.

United States District Court, M.D. North Carolina

July 18, 2018

DE'ANDRE STARNES, Plaintiff,
v.
CONDUENT INCORPORATED and XEROX COMMERCIAL SERVICES, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., DISTRICT JUDGE.

         Presently before this court is a Motion to Compel Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration, filed by Defendants Conduent Incorporated (“Conduent”) and Xerox Commercial Services, LLC (“XCS”) (collectively, “Defendants”). (Doc. 12.) Pro se Plaintiff De'Andre Starnes (“Plaintiff”) responded, (Doc. 15), and Defendants replied, (Doc. 17). Plaintiff then filed a second response raising new arguments, (Doc. 20), and Defendants filed a Motion for Leave to File Sur-Reply Memorandum, (Doc. 21). Also before the court is Plaintiff's Motion to Demand Jury Trial. (Doc. 16.) For the following reasons, Defendants' motion to file a sur-reply, (Doc. 21), will be granted, Defendants' motion to compel arbitration, (Doc. 12), will be granted, and Plaintiff's motion for a jury trial, (Doc. 16), will be denied.

         I. BACKGROUND

         Plaintiff, proceeding pro se, filed this Complaint against his employer, [1] bringing claims under the Family Medical Leave Act (“FMLA”) and the Americans with Disability Act Amendments Act of 2008 (“ADAAA”) as well as claims of discrimination based upon sex and race. (See Complaint (“Compl.”) (Doc. 1) at 1-4.)[2] This court has jurisdiction. See 28 U.S.C. § 1331.

         Plaintiff specifically alleges that he “was denied timely access to reasonable accommodations” by his employer, in violation of FMLA and the ADAAA. (Compl. (Doc. 1) at 3.) Plaintiff further alleges that he has “spoken with a coworker [who] did not have these issues when she took time off for her medical issues[, ]” (id.), giving rise to the claims of discrimination.

         Defendants responded by moving to compel arbitration. (Defs.' Mot. to Compel Arbitration & Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration (“Defs.' Mot.”) (Doc. 12).) In support of the motion, Defendants submitted the declaration of Shirley Pierce, Vice-President of Human Resources for Conduent Business Services, LLC. (Defs.' Mot., Ex. A (Doc. 12-2).) Pierce describes Plaintiff's application for employment. The application by Plaintiff was made in 2015 “utilizing Defendants' electronic application and new hire onboarding process.” (Id. at 3.) According to Pierce, applicants “electronically acknowledge” and agree to company policies, including the Dispute Resolution Plan and Rules (“DRP”). (Id. at 2-3.)

         The DRP provides that it “applies to any [d]ispute.” (Defs.' Mot., Ex. A-1 (Doc. 12-3) at 8.) A “dispute” is defined as

all legal and equitable claims, demands, and controversies, of whatever nature or kind, whether in contract, tort, under statute, regulation, or ordinance, or some other law, between persons (which include Employees, Applicants and the Company) bound by the DRP or by an agreement to resolve Disputes under the DRP, or between a person bound by the DRP and a person or entity otherwise entitled to its benefits, including, but not limited to, any matters with respect to:
7. Any other matter related to or concerning the relationship between the Applicant and the Company and/or the Employee and the Company alleging violation of any federal, state or other governmental law, statute, regulation, or ordinance, or common law, or contract violation, including but not limited to the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, the Family Medical Leave Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act (“ERISA”), the Uniformed Services Employment Reemployment Rights Act (“USERRA”), and the Worker Adjustment Retraining and Notification Act (“WARN”), including, by way of example and without limitation, allegations of: unlawful retaliation, including whistleblower retaliation, discrimination or harassment based on race, sex, religion, creed, color, marital status, sexual orientation, citizenship, national origin, age, veteran or military status, disability status, or other legally protected characteristics; wrongful discharge; constructive discharge; workers' compensation retaliation; defamation; fraud; invasion of privacy; infliction of emotional distress; promissory estoppel; equitable estoppel; negligence, negligent misrepresentation; breach of contract; quasi-contract; equitable relief; failure to pay wages including overtime; claims for benefits, or membership with regard to any employee benefit plan[.]

(Id. at 6-7.) The DRP provides certain processes that may be utilized such as the Open Door process or the Internal Conference option. (Id. at 8.) The DRP then states that “[t]o the extent allowed under the law, each Dispute not otherwise resolved by the Parties shall be arbitrated on an individual basis.” (Id.)

         According to Pierce, Plaintiff “affirmatively agreed to be bound by the DRP in order for his application for employment to be considered.” (Defs.' Mot., Ex. A (Doc. 12-2) at 3.) Following Plaintiff's receipt of an offer of employment, Plaintiff electronically signed several documents (the “Offer Paperwork”), including an “Offer Acknowledgment Form, ” a three-page “Acknowledgement of Application of Employment, ” and an “Agreement to be Bound by the Xerox Business Services Dispute Resolution Plan and Rules (“DRP”) Otherwise Referred to as the Offeree Arbitration Agreement or ‘Agreement.'” (See id. At 3-4.) Of particular note, the Offer Acknowledgment Form, signed electronically by Plaintiff, contains the following provision:

Having been accepted for employment and as part of my acceptance, I CONSENT TO THE EXCLUSIVE FINAL AND BINDING RESOLUTION BY ARBITRATION UNDER THE DRP OF ALL DISPUTES (as defined in the DRP) INCLUDING LEGAL CLAIMS, past, present or future, arising out of, relating to, or concerning my employment with Xerox Business Services, LLC . . . .
TO THE EXTENT ALLOWED UNDER THE LAW, AND EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR THE DRP, XBS AND I AGREE THAT:
DISPUTES WILL BE ARBITRATED RATHER THAN DECIDED BY A COURT OR JURY. I AM WAIVING MY RIGHT TO A JUDGE OR JURY TRIAL.

(Defs.' Mot., Ex. A-3 (Doc. 12-5) at 9-10.) The copy reflects a signature of “De Andre Starnes” with a date of September 26, 2015, and a specific IP Address. (Id. at 12.)

         Pierce describes the electronic online process as one in which Plaintiff was required to create and utilize a “personally created, private password” in order to complete the application process. (Defs.' Mot., Ex. A (Doc. 12-2) at 3.) The documents electronically signed by Plaintiff were all executed using the personal, private password that was not accessible to Defendants. (Id. at 3-4.)

         II. DEFENDANTS' MOTION FOR LEAVE TO FILE A SUR-REPLY

         Defendants move for leave to file a sur-reply in light of Plaintiff's filing of a second response to Defendants' motion to compel arbitration. (See Defs.' Mot. for Leave to File Sur-Reply Mem. (Doc. 21) at 1.) Plaintiff did in fact file a second response, (Pl.'s Reply (Doc. 20)), raising new arguments and expanding upon arguments made in the first response, after Defendants' reply was filed. (Compare Pl.'s Resp. (Doc. 15), with Pl.'s Reply (Doc. 20).)

         Plaintiff's second response is clearly improper. Local Rule 7.3 controls motion practice and permits a motion and brief, LR 7.3(a), a response, LR 7.3(f), and a reply brief, LR 7.3(h). Plaintiff is not permitted to file serial responses to a motion. This court has considered simply striking Plaintiff's second response. However, Plaintiff is proceeding pro se and is not held to the same high standards as attorneys. See Hughes v. Rowe, 449 U.S. 5, 10 n.7 (1980). While Plaintiff's clear failure to follow the rules is not acceptable[3], in this instance, the court will accept Plaintiff's second response and, in the interest of fairness, permit the filing of Defendants' sur-reply.

         Plaintiff then filed a third memorandum in response to the motion to compel arbitration. (Pl.'s Mem. (Doc. 23).) Even allowing for Plaintiff's pro se status, this court cannot find any basis upon which to conclude that a pro se party would genuinely or reasonably believe these types of serial filings are permissible. In order to avoid depriving Defendants unfairly of an opportunity to respond to Plaintiff's arguments, this third memorandum will only be considered to the extent it cites further legal authority in support of arguments previously made in the first two responses.

         III. DEFENDANTS' MOTION TO COMPEL ARBITRATION AND PLAINTIFF'S MOTION FOR A JURY TRIAL

         Defendants move to compel arbitration pursuant to 9 U.S.C. § 4 and to dismiss Plaintiff's Complaint, or in the alternative, to stay Plaintiff's claims pending arbitration pursuant to 9 U.S.C. § 3. (Defs.' Mot. (Doc. 12) at 1.)

         A. Legal Standard

         Under the Federal Arbitration Act (“FAA”), a written arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Federal policy strongly favors arbitration, and the FAA represents “a liberal federal policy favoring arbitration agreements” and applies “to any arbitration agreement within the coverage of the [FAA].” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).

         To compel arbitration under § 4 of the FAA, a litigant must show “(1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of the defendant to arbitrate the dispute.” Adkins v. Labor Ready,Inc., 303 F.3d 496, 500-01 (4th Cir. 2002) (citation omitted). The parties must have entered into a valid agreement to arbitrate, and the dispute in question must fall within the scope of the arbitration agreement. Chorley Enters., Inc. v. Dickey's Barbecue Rests., Inc., 807 F.3d 553, 563 (4th Cir. 2015) (citation omitted). ...


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