Opinion
Civil Action No: 04-0713, SECTION: "D" (1).
June 28, 2004
Before the court are the following motions:
(1) "Motion to Stay Litigation Pending Arbitration" (Doc. No. 6) filed by Defendant, Terrebonne Parish Consolidated Government (TPCG); and
(2) "Rule 12(b)(6) Motion to Dismiss" (Doc. No. 12) filed by Defendants, Mursimco, Inc., Chauvin Funeral Home, and Mark Ordoyne.
The motions, set for hearing on Wednesday, June 23, 2004, are before the court on briefs, without oral argument.
I. Background
In her Complaint, Plaintiff Lucretia McBride alleges that in August 2002, TPCG employed her as a Cemetery Administrator for Terrebonne Parish's Planning and Zoning Department. (Complaint, Doc. No. 1, ¶¶ III X). She further alleges that in August 2003, TPCG terminated her employment in retaliation for various complaints that she made regarding the alleged inappropriate conduct of Mark Ordoyne, who was allegedly a board member serving on the Terrebonne Parish Cemetery Board and also an employee of Chauvin Funeral Home. ( Id. at ¶¶ IV XXVII). Plaintiff also claims that she complained that Alvin Tillman, allegedly a member of the Terrebonne Parish Council, had sexually harassed her, but no remedial action was taken by Terrebonne Parish. ( Id. at XIII XV).
Mr. Tillman is not named as a Defendant in this matter.
Additionally, Plaintiff alleges that she informed her employer of numerous violations of state law by funeral homes and was "subject to retaliation for such Whistle Blower activities." ( Id. at XXVI).
Plaintiff sues TPCG, Mark Ordoyne, Chauvin Funeral Home and its alleged owner, Mursimco, Inc., and alleges:
Based on the conduct of Defendant and its supervisory personnel, Plaintiffs have the following causes of action against Defendants:
A) Louisiana Anti-Discrimination Statute, LSA-R.S. 23:332, et seq.;
B) Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000, et seq.
C) Retaliatory Discharge;
D) Intentional infliction of emotional distress;
E) Sexual harassment;
F) Employment discrimination;
G) Assault;
H) Battery;
I) Negligent infliction of emotional distress;
J) Negligence pursuant to Louisiana Civil Code Article 2315;
K) Applicable Whistle Blower Statute under state and federal law;
L) Other related cases ( sic) of action to be determined at trial.
(Complaint, ¶ XXX) (emphasis added).
However, in attempting to determine which specific causes of action the Plaintiff was asserting against each Defendant, the court found that Plaintiff's Complaint was not a mark of clarity, especially as to Plaintiff's alleged whistleblower claims. Thus, the court ordered all parties address the following issues:
As to which Defendant(s), does Plaintiff have viable whistle blower claims, under federal and/or state law? ( Specifically identify which federal and/or state law that is applicable, if any).
( See Minute Entry, Doc. No. 14).
Now, having reviewed all of the parties' memoranda pertaining to this issue, together with the memoranda submitted in connection with the Defendants' motions, the court finds that the Defendants' motions should be granted.
II. TPCG's "Motion to Stay Litigation Pending Arbitration"
When Plaintiff sought employment with TPCG, she signed an employment application which contained the following arbitration clause:
I agree that any claim or controversy arising out of either the failure to offer employment, or the termination of my employment, including any contention that such violated any contractual right, law or statute, or was otherwise wrongful or in violation of any implied term or covenant, including the covenant of good faith and fair dealing, shall be submitted to binding arbitration in accordance with the J-A-M-S/Endispute Arbitration Rules and Procedures for Employment Disputes, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. I further agree that in the event such an arbitration is held, each party shall pay the fees of his or her own attorneys, and shall share equally in the costs of the arbitration, including but not limited to, the costs of a court reporter for the hearing.
( See Defendant's Exhibit A, Plaintiff's Employment Application, containing the Pre-Employment Certification with the subject arbitration provision at p. 6 of 7).
Seeking to enforce this employment agreement and arbitration clause, TPCG filed this motion for a stay pending arbitration.
A. Arbitration under Louisiana Law
The Louisiana Arbitration Law is set forth in LSA-R.S. 9:4201 through 4217. LSA-R.S. 9:4201 provides:
Validity of arbitration agreements
A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
The Federal Arbitration Act (FAA) is found at 9 U.S.C. § 1-14. Section 2 provides:
A written provision in . . . a 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.
Because TPCG's business is not involved in interstate commerce, Plaintiff's employment application (and the incorporated arbitration clause) is not subject to the FAA. However, in the absence of Louisiana jurisprudence addressing arbitration issues under Louisiana law, the court looks to federal jurisprudence regarding arbitration issues under the FAA, given the parallel language between the Louisiana and federal arbitration laws. Gautreaux v. Prudential Ins. Co., 728 So.2d 921, 924 (La.App. 1st Cir. 1999).
Under both Louisiana law and federal law, the right to demand arbitration is strong. Simpson v. Pep Boys-Manny Moe Jack, Inc., 847 So.2d 617, 621 (La.App. 4th Cir. 2003). In determining whether Plaintiff and TPCG should be compelled to arbitrate, the court considers: (1) whether the parties agreed to arbitrate the dispute; and if so, (2) whether any statute or policy renders the claims nonarbitrable. R.M. Perez v. Welch, 960 F.2d 534, 538 (5th Cir. 1992). Consideration 1: Did the parties agree to arbitrate the dispute?
When deciding whether a binding agreement to arbitrate exists between the Plaintiff and TPCG, the court looks at Louisiana state-law principles governing the formation of contracts. Rogers v. Brown, 986 F. Supp. 354, 358 (M.D. La. 1997). At the outset, the court rejects Plaintiff's argument that her employment application (which contained the subject arbitration clause) should be construed as an employment manual, which is not an enforceable contract. (Plaintiff's Opp. at 7). Plaintiff cites no legal authority in support of this argument. To the contrary, there is jurisprudential support for enforcing an arbitration clause contained in an employment application. See e.g., Rogers, 986 F. Supp. 354.
Plaintiff also makes the general argument that she was not on "equal footing" with the employer and that the "agreement to arbitrate is more like coercion rather [than] voluntary with full disclosure." (Plaintiff's Opp. at 11-12). However, Plaintiff has not shown how the bargaining positions were unbalanced. In Welch v. A.G. Edwards Sons, Inc., 677 So.2d 520, 526 (La.App. 4th Cir. 1996), the court held that when the employee "could have avoided the clause by simply rejecting the employment with the defendant," the requisite difference in bargaining position was lacking. This case is similar. Further, there is no evidence that plaintiff even objected to the arbitration provision and/or that she initialed the arbitration provision or signed the employment application under protest.
Finally, Plaintiff argues that there was "lack of consideration". (Plaintiff's Opp. at 12). However, Plaintiff signed the agreement as a condition of employment, and "[e]mployment [is] a valid cause of [a] contract." Cellular One v. Boyd, 653 So.2d 30, 34 (La.App. 1st Cir. 1995). Plaintiff received consideration in the form of employment for which she was to be compensated, and TPCG received consideration in the form of services to be provided by plaintiff. Thus, the mutual benefits received by plaintiff and defendant were sufficient consideration to support the contract. Accord, Rogers, 986 F. Supp. at 359-60.
The court concludes that the subject arbitration agreement is an enforceable contract, and next determines whether the Plaintiff's claims against TPCG fall within the scope of the arbitration agreement. "[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay or a like defense to arbitration." City of Meridian v. Algernon Blair, Inc., 721 F.2d 525, 527-28 (5th Cir. 1983), quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983).
The instant arbitration clause provides in pertinent part: "any claim or controversy arising out of either the failure to offer employment, or the termination of my employment, including any contention that such violated any contractual right, law or statute, or was otherwise wrongful or in violation of any implied term or covenant, including the covenant of good faith and fair dealing, shall be submitted to binding arbitration. . . . ." ( See Defendant's Exhibit A, Plaintiff's Employment Application, containing the Pre-Employment Certification with the subject arbitration provision at p. 6 of 7).
The court finds that Plaintiff's retaliatory discharge claim against TPCG clearly arises out of Plaintiff's termination, and thus come within the scope of the arbitration clause. Further, considering the policy greatly favoring arbitration, the court finds that the arbitration clause is sufficiently broad to encompass Plaintiff's employment discrimination, sexual harassment, intentional infliction of emotional distress, and whistleblower claims asserted against TPCG under state law, because such claims are intertwined with Plaintiff's claim that she was subject to retaliation and ultimately discharged in retaliation for reporting complaints of harassment and for reporting various alleged violations of state laws by funeral homes. ( See Complaint at ¶¶ XV, XX, XXV, XXVI XXVII).
Having reviewed the parties' memoranda on the whistleblower issue and the applicable law, the court concludes that Plaintiff has no viable whistleblower claim against TPCG under federal law, but has properly pled a claim against TPCG under Louisiana's whistleblower statute, LSA-R.S. 23:967(A)(1). The court notes that while TPCG admits that Plaintiff has sufficiently pled a claim against TPCG under Louisiana's whistleblower statute for the alleged acts of Councilman Tillman, TPCG argues that Plaintiff has no such claim against TPCG for the alleged acts of Defendant Mark Ordoyne. (TPCG's Memo., Doc. No. 17, p. 7). However, TPCG must make that argument in the arbitration proceedings.
Consideration 2: Does any statute or policy render the claims nonarbitrable?
No federal statute or policy renders Plaintiff's claims nonarbitrable, as the Fifth Circuit has expressly held Title VII claims to be arbitrable. Mouton v. Metropolitan Life Ins. Co., 147 F.3d 453 (5th Cir. 1998); Rojas v. TK Communications, Inc., 87 F.3d 745, 748. See also, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (FAA applies to claims brought under the Age Discrimination in Employment Act).
"By agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral rather than a judicial forum." Gilmer, 500 U.S. at 26, 111 S.Ct. at 1652. (citation omitted). Further, "although judicial scrutiny of arbitration awards is necessarily limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute at issue." Id., 500 U.S. at 32 n. 4, 111 S.Ct. at 1655 n. 4 (internal quotations and citation omitted).
Plaintiff cites several Supreme Court cases that hold that an arbitration clause contained in a collective bargaining agreement could not bar a plaintiff from seeking Title VII remedies in court. (Plaintiff's Opp. at 6). However, Plaintiff's reliance on such cases is misplaced, because there are clear distinctions between arbitration of labor disputes under a collective bargaining agreement and mandatory arbitration of individual statutory claims outside the context of collective bargaining. See Gilmer, 500 U.S. at 34-35, 111 S.Ct. at 1656-57 ( distinguishing Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).
Plaintiff also argues that the subject arbitration clause "attempts to modify Title VII law by providing that each party is responsible for attorney's fees and costs of the arbitration." (Plaintiff's Opp. at 2). However, the court rejects this argument and refuses to re-write these terms to which the parties agreed (and which the court finds are not unduly burdensome or harsh). And again, the Plaintiff had the option of not signing the employment application and initialing the arbitration clause, and finding wok elsewhere if she did not wish to be bound to the terms of the arbitration clause.
Finally, the subject arbitration provision is not excluded from coverage under the Louisiana Arbitration Act (LAA). The only limitation found in the LAA is set forth in LSA-R.S.9:4216 which provides:
Limitation of application of Chapter
Nothing contained in this Chapter shall apply to contracts of employment of labor or to contracts for arbitration which are controlled by valid legislation of the United States or to contracts made prior to July 28, 1948.
LSA-R.S. 9:4216 (emphasis added).
However, Louisiana jurisprudence holds that "labor" does not include the performance of mental tasks, managerial skills or those employees generally recognized as professional men and women. Giacona v. Conti Commodity Services, 409 So.2d 690 (La.App. 4th Cir. 1982); Wright v. Round the Corner Restaurants of Louisiana, Inc., 252 So.2d 341 (La.App. 4th Cir. 1971).
Here, Plaintiff applied for the position of Program Manager (Cemetery Administrator) with TPCG's Planning and Zoning Department. ( See Defendant's Exhibits A B, "Request for Hire" "Proposal to Develop a Terrebonne Parish Public Cemeteries Manager," attached to Defendant's Reply Memo.). Under her job description, she was employed for her supervisory and administrative ability. ( Id). Therefore, the court concludes that the limitation against arbitration set forth in LSA-R.S. 9:4216 does not apply, because Plaintiff was not employed as a "laborer" within the meaning of that statutory provision.
Thus, the court will grant TPCG's "Motion to Stay Litigation Pending Arbitration" pursuant to LSA-R.S. 9:4202 which provides:
Stay of proceedings brought in violation of arbitration agreements
If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall upon application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.II. "Rule 12(b)(6) Motion to Dismiss" filed by Defendants, Mursimco, Inc., Chauvin Funeral Home, and Mark Ordoyne (Chauvin Defendants)
The FAA similarly mandates a stay of the trial of any suit brought which is referable to arbitration, "until such arbitration has been had" and mandates that the court issue an order "directing the parties to proceed to arbitration." 9 U.S.C. § 3,4.
In this motion, the Chauvin Defendants seek dismissal of any claims Plaintiff has asserted against them, under federal and/or state law, for employment discrimination and employment harassment. Plaintiff does not address the arguments made by the Chauvin Defendants, namely, that: (1) Plaintiff did not have an employment relationship with these Defendants and she is not their "employee" within th meaning of the law; and (2) Defendant Ordoyne is an individual and not an "employer" within the meaning of the law.
Rather, in her memorandum (filed on June 18, 2004, in response to the court's order, Doc. No. 14), Plaintiff states:
As per clarification, Plaintiff has the following causes of action against Mark Ordoyne, MURSIMCO/Chauvin Funeral Home:
— Intentional infliction of emotional distress;
— Assault;
— Battery;
— Negligent infliction of emotional distress;
— Negligence pursuant to Louisiana Civil Code Article 2315
Accordingly, plaintiff is not pursuing any employment discrimination and sexual harassment claims against Mark Ordoyne and MURSIMCO/Chauvin Funeral Home.
( See Plaintiff's Memo., Doc. No. 15, p. 3) (emphasis added).
As to Plaintiff's whistleblower claims, the court agrees with the Chauvin Defendants' reasoning that: "[i]n articulating what claims she was making against the Chauvin defendants, McBride established, if only by negative inference, that she was not asserting "whistleblower" claims against defendants, Ordoyne, Chauvin or Mursimco." ( See Chauvin Defendants' Memo., Doc. No. 16. p. 2). Indeed, because Plaintiff has no employment relationship with the Chauvin Defendants, Plaintiff has no actionable whistleblower claim against them.
Thus, the court concludes that Plaintiff only has state tort claims against the Chauvin Defendants, and the court will grant the Chauvin Defendants' "Rule 12(b)(6) Motion to Dismiss," dismissing any federal claim (not limited to employment discrimination and employment harassment) that could be construed to be asserted by Plaintiff against the Chauvin Defendants, as well as any state law claim (limited to employment discrimination and employment harassment) that could be construed to be asserted by Plaintiff against the Chauvin Defendants.
IV. Conclusion
For the reasons set forth above,
IT IS ORDERED that the "Motion to Stay Litigation Pending Arbitration" (Doc. No. 6) filed by Defendant, Terrebonne Parish Consolidated Government (TPCG), be and is hereby GRANTED; IT IS FURTHER ORDERED that Plaintiff submit all of her claims asserted against TPCG to binding arbitration in accordance with the J-A-M-S/Endispute Arbitration Rules and Procedures for Employment Disputes;
IT IS FURTHER ORDERED that the "Rule 12(b)(6) Motion to Dismiss" (Doc. No. 12) filed by Defendants, Mursimco, Inc., Chauvin Funeral Home, and Mark Ordoyne, be and is hereby GRANTED, dismissing all of Plaintiff's claims ( except for Plaintiff's state tort claims) against these Defendants for failure to state federal claims upon which relief can be granted;
The court declines to exercise its supplemental jurisdiction over Plaintiff's state tort claims asserted against Defendants, Mursimco, Inc., Chauvin Funeral Home, and Mark Ordoyne, and accordingly ORDERS that all of Plaintiff's state tort claims against Defendants, Mursimco, Inc., Chauvin Funeral Home, and Mark Ordoyne, be and are hereby DISMISSED without prejudice to be re-asserted in state court;
IT IS FURTHER ORDERED that the Clerk of Court mark this action closed for statistical purposes; and
IT IS FURTHER ORDERED that the Court shall retain jurisdiction and that the case shall be restored to the trial docket by order of this court upon motion of a party if circumstances change, so that the case may proceed to final disposition. This order shall not prejudice the rights of the parties to the litigation.