Boykin v. Family Dollar Stores of Mich., LLC

Decision Date01 July 2021
Docket NumberNo. 20-1153,20-1153
Parties Timothy BOYKIN, Plaintiff-Appellant, v. FAMILY DOLLAR STORES OF MICHIGAN, LLC, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: William G. Tishkoff, TISHKOFF PLLC, Ann Arbor, Michigan, for Appellant. Emily M. Petroski, JACKSON LEWIS P.C., Southfield, Michigan, for Appellee. ON BRIEF: William G. Tishkoff, TISHKOFF PLLC, Ann Arbor, Michigan, for Appellant. Emily M. Petroski, JACKSON LEWIS P.C., Southfield, Michigan, for Appellee.

Before: ROGERS, NALBANDIAN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

It has been almost a century since Congress enacted the Federal Arbitration Act. Yet this case suggests that the existing caselaw still leaves unclear how a defendant should go about raising an arbitration defense in a pending suit. Timothy Boykin filed an employment suit against Family Dollar Stores. Asserting that Boykin "e-signed" an arbitration contract covering his claims, Family Dollar moved to compel arbitration and dismiss Boykin's complaint for improper venue under Federal Rule of Civil Procedure 12(b)(3). The district court instead treated the motion as one for failure to state a claim under Rule 12(b)(6). But it relied on substantial outside-the-complaint evidence, rejecting Boykin's sworn denial that he e-signed any contract as "self-serving." The court dismissed Boykin's suit and compelled arbitration.

We reverse. Although the Federal Arbitration Act requires a court to summarily compel arbitration upon a party's request, the court may do so only if the opposing side has not put the making of the arbitration contract "in issue." 9 U.S.C. § 4. The district court in this case should have evaluated whether Boykin adequately challenged the making of the contract using the standards that apply on summary judgment. And Boykin's evidence created a genuine issue of fact over whether he electronically accepted the contract or otherwise learned of Family Dollar's arbitration policy. Although his affidavit denying that he accepted the contract may have been "self-serving," that description alone does not provide a valid basis to ignore it.


Boykin is a 73-year-old African-American veteran. From 2003 to 2018, he worked in managerial roles for Family Dollar Stores of Michigan at stores located in Detroit and Ypsilanti. (Family Dollar Stores of Michigan has changed corporate form over the years. But these changes do not matter for our resolution, so we will refer to the corporate entities collectively as "Family Dollar.") Boykin eventually became the store manager of a Family Dollar store in Ypsilanti.

On July 8, 2018, a customer named Afshin Jadidnouri entered this store in search of a greeting card just two minutes before the store's 9:00 p.m. closing. After Boykin corralled the carts from outside, he claims that he politely asked Jadidnouri to make his final selection and proceed to the checkout line. According to Boykin, Jadidnouri responded in repulsive fashion: "Is that a Family Dollar policy or a N***er policy?" Compl., R.11, PageID 89. Boykin told him to leave. Jadidnouri allegedly retorted "f**k you," crumpled up a greeting card, and pushed Boykin. Id. , PageID 90. Boykin asked his assistant manager to call the police and escorted Jadidnouri out. The police spoke separately with Jadidnouri and Boykin and told Boykin that the store had every right to exclude this customer from the premises.

Both Boykin and Jadidnouri later gave their sides of this encounter to Ron Durham, Family Dollar's operations manager for the area. When Durham met with Jadidnouri, the customer demanded that Family Dollar fire Boykin. Durham fired Boykin a few weeks later. When doing so, Durham confessed that he disagreed with the decision and handed Boykin an email from human resources. The email ordered Boykin's termination and instructed Durham to explain that the decision had been made after an investigation.

Boykin sued Family Dollar. His complaint alleged that the company fired him because of his age and race rather than the incident with Jadidnouri. Boykin asserted federal and state claims of race and age discrimination.

Family Dollar moved to compel arbitration and dismiss Boykin's suit at the pleading stage. In support, it introduced a declaration from Natalie Neely, a human-resources manager. Neely explained that Family Dollar employees must take online training sessions through "Family Dollar University," including a session about arbitration. When taking online courses, employees use their own unique ID and password. During the arbitration session, Neely explained, they must review and accept Family Dollar's arbitration agreement. The session states in all capital letters that, by clicking "I ACCEPT," each employee acknowledges that the employee has read the agreement, that the employee and the company are giving up their trial rights, and that they are agreeing to arbitrate disputes instead. The contract makes clear that it covers "all claims" against the company, including claims under the employment laws.

Family Dollar keeps records of when employees complete the arbitration session. According to Neely, the records showed that Boykin completed the session at 10:00:58 a.m. on July 15, 2013.

Boykin responded with an affidavit stating under oath that he "unequivocally" did not consent to or acknowledge an arbitration agreement on July 15, 2013 (or at any other time). Boykin added that he had no recollection of taking the arbitration session, that he did not have a certificate of completion for the session, and that no one ever told him that arbitration was a condition of his employment. After his termination, Boykin also requested his personnel file under Michigan law. The records that Family Dollar provided did not include any arbitration agreement.

The district court granted Family Dollar's motion to compel arbitration and dismissed the suit. It held that an arbitrator must resolve Boykin's claim that the parties had not entered into an arbitration agreement. It alternatively found that the parties had, in fact, done so.

After the district court denied Boykin's motion to alter or amend the judgment, Boykin appealed. We review the decision compelling arbitration de novo. See Great Earth Cos. v. Simons , 288 F.3d 878, 888 (6th Cir. 2002).


The briefing in this case reveals confusion on a basic question: What procedures govern Family Dollar's motion to dismiss Boykin's suit and compel arbitration? The Federal Arbitration Act provides the starting point for our answer because it supplants conflicting Federal Rules of Civil Procedure. Fed. R. Civ. P. 81(a)(6)(B). The Act provides two routes by which a party may invoke arbitration. 9 U.S.C. §§ 3 – 4. Section 3 addresses motions arising in a case like this one in which a defendant seeks arbitration of "any issue" pending in an existing federal suit. Id. § 3. If a court is "satisfied that the issue involved in such suit ... is referable to arbitration under" a written agreement, § 3 says, the court "shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement[.]" Id.

Section 3 might suggest that the district court should have stayed Boykin's suit, not dismissed it. Some courts read the section's use of the word "shall" to mean that courts lack discretion to issue a dismissal when a party seeks a stay. See Katz v. Cellco P'ship , 794 F.3d 341, 345–47 (2d Cir. 2015). (A circuit split exists on this question; our unpublished cases have upheld dismissals. See id. ; Anderson v. Charter Commc'ns , ––– F. App'x ––––, –––– – ––––, 2021 WL 2396231, at *4–5 (6th Cir. June 11, 2021).) If Family Dollar had sought a stay, it would already be in arbitration. A party generally may not immediately appeal a non-final decision that grants a stay pending arbitration, no matter how meritorious its claim of error. 9 U.S.C. § 16(b)(1) ; Preferred Care of Del., Inc. v. Estate of Hopkins , 845 F.3d 765, 768 (6th Cir. 2017). But Family Dollar did not cite § 3 or adequately request a stay. It thus forfeited reliance on § 3 and its remedy. Hilton v. Midland Funding, LLC , 687 F. App'x 515, 519 (6th Cir. 2017). And Boykin may appeal the district court's final decision dismissing his suit in favor of arbitration. Id. at 518.

That leaves § 4. It allows a plaintiff to file a contract claim seeking the specific performance of an arbitration contract. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 7, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The section states that a "party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under" a written arbitration agreement may "petition" a district court for an "order directing that such arbitration proceed in the manner provided for in such agreement." 9 U.S.C. § 4. It then lists procedures to resolve this request. Id. Whether or not § 4 ’s procedures expressly apply to a defendant like Family Dollar (rather than a plaintiff), the Supreme Court has called it "inconceivable" that the Act would change the rules "depending upon which party to the arbitration agreement first invokes the assistance of a federal court." Prima Paint Corp. v. Flood & Conklin Mfg. Co. , 388 U.S. 395, 404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). Besides, a defendant could always pursue a counterclaim seeking an injunction compelling arbitration under § 4 (not just a stay under § 3 ). The Act does not require this defendant (technically, a "counterclaim plaintiff") to file any formal pleadings because it tells courts to treat an application under § 4 as a motion. 9 U.S.C. § 6. So Family Dollar's motion is best read as one partially under § 4 because it sought to compel Boykin to arbitrate (although it also sought to dismiss Boykin's complaint and did not cite § 4 ).

What are § 4 ’s procedures? The section allows the court to consider only narrow issues: those ...

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