Brown, v. Chipotle Servs., WD84613

CourtCourt of Appeal of Missouri (US)
Writing for the CourtALOK AHUJA, JUDGE
Docket NumberWD84613
PartiesROY BROWN, et al., Respondents, v. CHIPOTLE SERVICES, LLC, et al., Appellants.
Decision Date08 March 2022

ROY BROWN, et al., Respondents,

CHIPOTLE SERVICES, LLC, et al., Appellants.

No. WD84613

Court of Appeals of Missouri, Western District, Second Division

March 8, 2022

Appeal from the Circuit Court of Jackson County The Honorable Justine Del Muro, Judge

Before Alok Ahuja, P.J., and Edward R. Ardini, Jr. and Janet L. Sutton, JJ.


Kourtney Cunningham, Zhyesia Jameson, and Roy Brown (the "Employees"), jointly filed suit in the Circuit Court of Jackson County against Chipotle Mexican Grill, Inc., Chipotle Services, LLC, and Chipotle Mexican Grill of Colorado, LLC (collectively "Chipotle"). The Employees alleged claims of unlawful discrimination and retaliation in employment. Chipotle moved to compel arbitration of the Employees' claims. The circuit court denied Chipotle's motion, and it appeals. Because Chipotle failed to submit competent evidence to the circuit court establishing the existence of any arbitration agreements, we affirm the circuit court's denial of Chipotle's motion to compel arbitration.

Factual Background

The Employees each worked at a Chipotle restaurant on Main Street in Kansas City beginning in 2016 or 2017. The employment of each of the Employees terminated in 2019.


On February 1, 2021, the Employees filed suit against Chipotle in the circuit court. In their Petition, each of the Employees alleged claims for discrimination, harassment, and retaliation in employment based on race or color, in violation of the Missouri Human Rights Act (or "MHRA"), ch. 213, RSMo. In addition, Cunningham alleged that Chipotle had retaliated against her for seeking compensation for a workplace injury, in violation of Missouri's Workers' Compensation Law, § 287.780.[1]

On May 18, 2021, Chipotle filed a motion to compel arbitration. Chipotle claimed that each Employee electronically reviewed and signed an Agreement to Arbitrate when they were hired. Chipotle contended that, under the Agreement to Arbitrate, the Employees agreed to submit to binding arbitration "any and all disputes, claims, and controversies arising out of or relating to . . . the parties' employment relationship."

In support of its motion to compel arbitration, Chipotle attached as exhibits two unnotarized declarations, each of which was submitted "under penalty of perjury." The first declaration was signed by Robert J. Mollohan, Jr., an attorney representing Chipotle in this case. Mollohan's declaration stated that he had asked the Employees to agree to submit their disputes to arbitration, but that they had refused.

The second unsworn declaration was executed by Caroline Barcelona, a "People Experience Partner" for Chipotle. Barcelona's declaration explained that, at the time the Employees were hired, they were required to "complete the onboarding process" before starting their employment with Chipotle. Barcelona's declaration stated that "[o]nboarding refers to the process through which employees formalize and finalize their employment relationship with Chipotle and is done


through Workday, which is Chipotle's human resources software." According to Barcelona's declaration, new employees were required to accept the terms of an Agreement to Arbitrate as part of the onboarding process. Barcelona stated that new employees were given "unique log-in credentials" which should not be available to any other individual completing the onboarding process. New employees were instructed to "e-sign" the relevant onboarding documents "by marking the 'I Agree' box . . . and clicking on the 'Submit' button" in the Workday software. Barcelona attached to her declaration the Agreements to Arbitrate which she contended were in effect at the time each of the Employees began their employment with Chipotle. She also attached spreadsheets generated by the Workday software, which indicated the date and time at which each Employee had purportedly reviewed and accepted the Agreement to Arbitrate and other onboarding documents.

Nothing in Barcelona's declaration indicates that she ever communicated directly with any of the Employees, or that she personally had any role in their hiring or onboarding at the Main Street Chipotle restaurant. Although Barcelona's declaration states that restaurant workers are employed by Chipotle Services, LLC, a subsidiary of Chipotle Mexican Grill, Inc., Barcelona does not identify herself as an officer or employee of Chipotle Services, LLC, but instead as a "People Experience Partner" for an unidentified "Chipotle" entity.

The Employees filed suggestions in opposition to Chipotle's motion to compel arbitration. In their opposition, the Employees moved to strike the Barcelona and Mollohan declarations for "being hearsay, lacking foundation, and being based on speculation."

Besides moving to strike her declaration, the Employees also contended that Barcelona's declaration did not constitute competent evidence because she lacked personal knowledge concerning: what the Employees were instructed at the time they were hired; whether and how they were issued any log-in credentials to access


the onboarding documents; or the nature of any documents they may have reviewed or electronically signed at the time of their hiring. The Employees also pointed out that the Agreements to Arbitrate attached to Barcelona's declaration were undated. The Employees asserted that, "[t]o the extent the objections [to Barcelona's declaration] are not sustained, then the Court should instead find the declaration, including exhibits, by Ms. Barcelona not to be credible and reject her baseless claims and conclusions." The Employees also contended that the Agreements to Arbitrate were not enforceable because they were not supported by consideration; because Chipotle had never manifested its assent to the Agreements; and because the Agreements violated the Employees' right to a jury trial as guaranteed by the Missouri Constitution.

In its reply suggestions in support of its motion, Chipotle argued among other things that "[t]he Declarations in Support of Chipotle's Motion Are Admissible and Dispositive."

The circuit court denied Chipotle's motion to compel arbitration. Its order did not state any basis for its ruling.

Chipotle appeals the order denying its motion to compel arbitration, as authorized by § 435.440.1(1). See Holm v. Menard, Inc., 618 S.W.3d 669, 672 n.1 (Mo. App. W.D. 2021).

Standard of Review

Generally, the question of whether a motion to compel arbitration should have been granted is one of law, which is reviewed de novo. Triarch Indus., Inc. v. Crabtree, 158 S.W.3d 772, 774 (Mo. 2005). "'However, issues relating to the existence of an arbitration agreement are factual and require our deference to the trial court's findings.'" Trunnel v. Mo. Higher Educ. Loan Auth., 635 S.W.3d 193, 197 (Mo. App. W.D. 2021) (quoting Miller v. Securitas Sec. Servs. USA Inc., 581 S.W.3d 723, 728 (Mo. App. W.D. 2019), in turn quoting Baier v. Darden Rests., 420


S.W.3d 733, 736 (Mo. App. W.D. 2014)). Thus, as in any other case in which a circuit court has resolved factual issues, "in an appeal from a circuit court's order overruling a motion to compel arbitration when there is a dispute as to whether the arbitration agreement exists, the circuit court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432, 436 (Mo. 2020) (footnote omitted) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. 1976)).


"A motion to compel arbitration first requires the trial court to determine whether a valid arbitration agreement exists." Baier, 420 S.W.3d at 737 (citation omitted); see also, e.g., Miller, 581 S.W.3d at 729 (quoting Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. 2006)); Bertocci v. Thoroughbred Ford, Inc., 530 S.W.3d 543, 550 (Mo. App. W.D. 2017).

"The party seeking to compel arbitration has the burden of proving the existence of a valid and enforceable arbitration agreement." Jimenez v. Cintas Corp., 475 S.W.3d 679, 683 (Mo. App. E.D. 2015) (citing Whitworth v. McBride & Son Homes, Inc., 344 S.W.3d 730, 737 (Mo. App. W.D. 2011)); accord Baier, 420 S.W.3d at 737. For Chipotle to establish that valid arbitration agreements existed, it was required to prove that the Employees had assented to agreements containing an arbitration clause. Theroff, 591 S.W.3d at 437.

In order to satisfy its burden to prove the existence of enforceable arbitration agreements, Chipotle was required to submit competent evidence establishing that the Employees in fact manifested their assent to the Agreements to Arbitrate. "A motion is not self-proving, and the movant has the burden of proving the allegations contained therein." St. Louis Bank v. Kohn, 517 S.W.3d 666, 674 (Mo. App. E.D. 2017) (citation omitted); see also, e.g., Holmes v. Union Pac. R.R. Co., 617 S.W.3d 853, 861 (Mo. 2021).


In particular, "[e]xhibits attached to motions filed with the trial court are not evidence and are not self-proving." Bertocci, 530 S.W.3d at 551 (quoting Ryan v. Raytown Dodge Co., 296 S.W.3d 471, 473 (Mo. App. W.D. 2009)); see also Powell v. State Farm Mut. Auto Ins. Co., 173 S.W.3d 685, 689 (Mo. App. W.D. 2005) (motion properly denied where "exhibits were not in the form of affidavits and were never introduced into evidence"); Kulaga v. Kulaga, 149 S.W.3d 570, 573 n. 6 (Mo. App. W.D. 2004). "The authenticity of a document cannot be assumed"; instead, "what it purports to be must be established by proof. Thus, before a document can be admitted into evidence and considered by the [circuit] court, its proponent must show that it is, in fact, what it is purported to be." Asset Acceptance v. Lodge, 325 S.W.3d 525, 528 (Mo. App. E.D. 2010).

Affidavits are generally considered to be hearsay and are not admissible as...

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