Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Driver v. BPV Market Place Investors, L.L.C.

United States District Court, E.D. Missouri, Eastern Division

July 10, 2018

ANITA DRIVER, Plaintiff,
v.
BPV MARKET PLACE INVESTORS, L.L.C., Defendant.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

         In this employment discrimination action, plaintiff Anita Driver (“plaintiff”) asserts that defendant BPV Market Place Investors, L.L.C.'s (“BPV”) violated the Americans with Disabilities Act, 42 U.S.C. §§ 12111, et seq., when it refused to accommodate her disability, retaliated against her for seeking reasonable accommodation, and terminated her employment because of her disability. Plaintiff also alleges that BPV interfered with her rights under the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq. The case is before the Court on defendant BPV's motion to dismiss or, in the alternative, to stay the proceedings and compel arbitration. Plaintiff opposes the motion and it is fully briefed. For the following reasons, the motion to stay the proceedings and compel arbitration will be granted and the alternative motion to dismiss will be denied.

         I. Factual Background

         BPV operates Ball Park Village, a dining and entertainment area adjacent to Busch Stadium in downtown St. Louis, Missouri. Ball Park Village opened in 2014. (Gausepohl Decl., ¶ 3.) Plaintiff was first employed by BPV from about March 2014 until September 2014, when she resigned to find work closer to her home. (Driver Decl. ¶ 4.)

         BPV contracted with non-party service company Entertainment Consulting International, LLC (“ECI”) to manage certain of BPV's functions, including new employee onboarding. (Gausepohl Decl. ¶ 1.) In 2014, ECI's Vice President and General Counsel, Mr. Dana Gausepohl, was responsible for preparing and maintaining BPV's human resources records. (Id. ¶ 4.) In preparation for the opening of Ball Park Village, Mr. Gausepohl attended orientation and personally witnessed BPV employees sign its Mutual Agreement to Arbitrate. (Id.) Before 2014, BPV's practice was to require its new employees to sign an arbitration agreement prior to beginning employment. (Id. ¶ 5.) During the 2014 calendar year, BPV transitioned from having employees sign hard copies to an electronic system where employees would complete all onboarding documents electronically, including arbitration agreements. (Id.)

         On March 5, 2014, plaintiff electronically signed several BPV new-hire onboarding documents, including an acknowledgment of receipt of handbook, employee confidentiality agreement, and Missouri Form W-4, among other documents. (Id. ¶ 6.) Plaintiff did not electronically sign an agreement to arbitrate. Mr. Gausepohl was responsible for ensuring that new BPV employees manually executed their arbitration agreements in early March 2014. (Id. ¶ 7.)

         The Mutual Agreement to Arbitrate (“Agreement”) is a three-page document. (Ex. A to Doc. 31-1, Gausepohl Decl.) The Agreement is signed by plaintiff and “Jake Miller, Authorized Person” on the third page. (Id. at 3.) The Agreement is hand-dated “3/9/13” by both signatories, but the parties agree the dates written on the Agreement are erroneous and it was actually signed in March 2014. (Doc. 36-1, Driver Decl. ¶ 6; Gausepohl Decl. ¶ 11.)

         The following text appears in all capital letters on the signature page of the Agreement:

I KNOWINGLY AND FREELY AGREE TO THIS MUTUAL AGREEMENT TO ARBITRATE CLAIMS, WHICH OTHERWISE COULD HAVE BEEN BROUGHT IN COURT. I AFFIRM THAT I HAVE HAD SUFFICIENT TIME TO READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT AND THAT I HAVE BEEN ADVISED OF MY RIGHT TO SEEK LEGAL COUNSEL REGARDING THE MEANING AND EFFECT OF THIS AGREEMENT PRIOR TO SIGNING. BY ISSUANCE OF THIS AGREEMENT, THE COMPANY AGREES TO BE BOUND BY ITS TERMS.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

(Ex. A at 3.)

         Paragraph C of the Agreement, titled “The Arbitrator's Authority and Severability, ” begins near the bottom of page one and continues on page two. Paragraph C is a so-called delegation clause or provision, which is an agreement to commit to an arbitrator any threshold issues concerning the Agreement. It provides:

The Arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable, except that any determination as to the enforceability of the class/collective action waiver shall be made solely by a court. If the prohibition against class/collective actions is deemed unlawful, then such action shall proceed forward in court as a collective or class action. If an arbitrator finds any other provision of this Agreement unenforceable, a court or arbitrator shall interpret or modify this Agreement, to the extent necessary, for it to be enforceable, subject to the sentence above. This Agreement shall be self-amending; meaning if by law or common law a provision is deemed unlawful or unenforceable that provision and the Agreement automatically, immediately and retroactively shall be amended, modified, and/or altered to be enforceable. The arbitrator shall have no power under this Agreement to consolidate claims and/or to hear a collective or class action.

(Ex. A at 1-2) (emphasis added).

         Pages one and two of the Agreement are paginated at the bottom, and state “Page 1 of 3” and “Page 2 of 3, ” respectively. (Ex. A at 1-2.) At the bottom of page two is Paragraph F, “Other Provisions of this Agreement, ” which is immediately followed by the pagination “Page 2 of 3.” The third page of the Agreement lacks a page number and begins with a sentence fragment that reads, “service being used, the express provisions of the Agreement shall prevail.” (Id. at 3.) The sentence fragment is followed by a new paragraph that states: “This Agreement, except as provided above in Paragraph A, shall be governed by and shall be interpreted in accordance with the laws of the state in which you are or were employed by the Company.” (Id.) (emphasis added).

         Plaintiff admits she signed the Agreement, but states she was only asked to sign a signature page and was not given a copy of the Agreement. (Driver Decl. ¶ 6.) Plaintiff states she had never seen the other pages attached to the Agreement and never received a hard copy of the Agreement, and she does not recall anyone explaining anything about what the Agreement meant, advising her to seek counsel before signing it, or explicitly bringing to her attention that she would be giving up any rights, such as the right to file a lawsuit. (Id.) Plaintiff states that she did not know she was subject to an arbitration agreement and did not understand what “arbitration agreement” meant until her present attorney explained it to her. (Id. ¶ 9.)

         In a supplemental Declaration, ECI's Mr. Gausepohl reiterates that he attended orientation and personally witnessed BPV employees sign the Agreement (Doc. 40-1, Gausepohl Suppl. Decl. ¶ 7). Mr. Gausepohl states he explained to the employees that BPV required them to sign the Agreement, and that arbitration was “a method of dispute resolution whereby both the employees and BPV were required [to] arbitrate any legal dispute between them, which meant that both sides also waived the right to go to court to resolve any disputes.” He briefly explained some of the Agreement's terms, and offered to answer any questions the employees had regarding the Agreement. Mr. Gausepohl also told the employees they did not have to sign the Agreement, but if they did not sign it they could not work for BPV. (Id. ¶ 8.)

         Mr. Gausepohl states that the Agreement “was presented to employees as a complete 3-page document during the March 2014 orientation. I know this because the printing error that appears on Ms. Driver's agreement also appears on the other agreements that were signed at the time.” (Id. ¶ 9.) He further states:

As a result of the printing error, part of Section F of the Mutual Agreement to Arbitrate, titled “Other Provisions of this Agreement, ” was inadvertently left off the copies that were presented to employees for signature.[1] In full, Section F, should state the following:
To the extent any of the provisions herein conflict with any standard rules of the arbitration service being used, the express provisions of this Agreement shall prevail.
This Agreement, except as provided above in Paragraph A, shall be governed by and shall be interpreted in accordance with the laws of the state in which you ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.