Brubaker v. Barrett

• Court: U.S. District Court — Eastern District of Tennessee
• Writing for the Court: THOMAS W. PHILLIPS
• Citation: Brubaker v. Barrett, 801 F.Supp.2d 743 (E.D. Tenn. 2011)
• Decision Date: 15 July 2011
• Docket Number: No. 3:10–CV–477.,3:10–CV–477.
• Parties: Jamie BRUBAKER, Plaintiff, v. Michael BARRETT, Combined Ins. Co. of Am., and AON Ins. Mgmt. Servs., Inc., Defendants.

801 F.Supp.2d 743

Jamie BRUBAKER, Plaintiff,

v.Michael BARRETT, Combined Ins. Co. of Am., and AON Ins. Mgmt. Servs., Inc., Defendants.

No. 3:10–CV–477.

United States District Court, E.D. Tennessee.

July 15, 2011.

David R. Smith, Law Office of David Randolph Smith and Associates, Nashville, TN, Russell L. Egli, Law Office of Russell L. Egli, Knoxville, TN, for Plaintiff.

Michael Barrett, Edgefield, SC, pro se.

Timothy B. McConnell, Melissa L. Stevens, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Knoxville, TN, for Defendants.

MEMORANDUM AND ORDER

THOMAS W. PHILLIPS, District Judge.

This matter is before the Court on the Motion to Compel Arbitration and Dismiss [Doc. 3] filed by defendants Combined Insurance Company of America (“Combined Insurance”) and AON Insurance Management Services, Inc. (“AON”) (collectively, “Defendants” for purposes of this Memorandum and Order). Plaintiff has filed this lawsuit against her former employer, Combined Insurance, and immediate supervisor, Michael Barrett (“Mr. Barrett”). In particular, Plaintiff has filed claims of sexual harassment, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, constructive discharge, outrageous conduct, invasion of privacy, and recklessness. All of these claims have been brought under state law.

As a basis for this lawsuit, Plaintiff alleges that Mr. Barrett recorded a video of her undressing in a hotel room. This allegedly occurred during a work conference for Combined Insurance. After learning about the video, Plaintiff argues that she was forced to resign from her position.¹ Plaintiff wants to hold Combined Insurance and AON liable for Mr. Barrett's actions.

In response, Combined Insurance and AON argue that Plaintiff's claims should be dismissed, or at least stayed pending arbitration. In May 2008, Plaintiff signed an employment contract with ACE Group of Companies (“ACE”), in which she agreed to submit all “employment related legal claims” to mandatory arbitration. Plaintiff also agreed to submit any claims against ACE's subsidiaries and affiliates, including Combined Insurance.² The arbitration agreement does not affect Plaintiff's claims against Mr. Barrett.

The following issues are before the Court. First, is the arbitration agreement an enforceable contract? In particular, was the agreement supported by consideration and mutual assent? Second, assuming that there was an enforceable agreement, are Plaintiff's claims against Combined Insurance and AON subject to arbitration? In other words, are Plaintiff's claims within the scope of the arbitration agreement?

Based upon the following, the Motion to Compel Arbitration and Dismiss [Doc. 3] is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

On November 12, 2010, Plaintiff filed this action against her former employer, Combined Insurance, and immediate supervisor, Mr. Barrett.³ [Plaintiff's Complaint, Doc. 1]. Combined Insurance is an insurance company that provides “short term disability, accidents and sickness, health, life and medicare supplemental insurance.” [Defendants' Memorandum in Support of their Motion to Compel Arbitration, Doc. 5, at 2] [citation omitted]. In 2008, ACE acquired Combined Insurance. [ Id., at 3]. Prior to the acquisition, Combined Insurance was a wholly-owned subsidiary of AON. [ Id.]. Combined Insurance is now a subsidiary of ACE. [ Id., at 1 n. 1.].

Following this acquisition, ACE mailed a welcome package to its commissioned employees. [ Id.]. Plaintiff received a package in April 2008, which included the “ACE Policy Supplement to Commissioned Employee Handbook” (“Employee Handbook Supplement,” Doc. 4–1). Notably, the Employee Handbook Supplement included two sections on arbitration. The first section was titled “Employment Dispute Arbitration Policy” (“Arbitration Policy”), which explained the types of claims subject to arbitration. The other section was titled “Employment Dispute Arbitration Rules and Procedures” (“Arbitration Procedures”).

The Employee Handbook Supplement also included a page titled “Arbitration Agreement Form” (“Arbitration Form” or “Form”).⁴ [Signed Form, Doc. 4–4]. On this page, the employee was directed to sign the Form (which included a signature block at the bottom) and mail it to ACE. [ Id.]. The Form provided, in its entirety:

I agree that, in the event I have any employment related legal claims, I will submit them to final and binding neutral third-party arbitration, in accordance with the ACE Employment Dispute Arbitration Policy recited above, which is made a part of this agreement. I understand that this agreement means that I cannot bring any employment related claim in court and that I waive my right to a jury trial for such claims.[ Id.] [emphasis added]. The Form also expressly incorporated the Arbitration Policy,⁵ whereby Plaintiff agreed to submit the following claims to arbitration:

This policy covers all employment-related disagreements and problems that concern a right, privilege or interest recognized by applicable law. Such disputes include claims, demands, disputes, controversies under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Civil Rights Act of 1991, the Equal Pay Act, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act of 1974, the Fair Labor Standards Act, the Rehabilitation Act of 1973, the Americans with Disabilities Act, the Family and Medical Leave Act, and any other federal, state, or local statute, regulation, ordinance or common law doctrine, regarding unfair competition, employment discrimination or termination of employment. This policy is intended to substitute final and binding arbitration for court action, and its related delays and inefficiencies. This policy also applies to claims that arose prior to the adoption of this policy, pending at the time this policy is distributed, and future claims. This policy will apply to any successors or assigns of ACE. Further, ACE reaffirms its intent that there will be no right or authority for any dispute to be brought, heard or arbitrated as a class action or private attorney general.

If ACE has a legal claim against an employee, ACE must utilize the Employment Dispute Arbitration Rules and Procedure that are a part of this policy, rather than go to court. This policy is a term and condition of the employment relationship between employees and ACE. It is not, however, a guarantee that employment will continue for any specified period of time or end only under certain conditions.

[Arbitration Policy, Doc. 4–2] [emphasis added]. Plaintiff signed the Form—which was a condition of continued employment—dated May 2, 2008. [Signed Form, Doc. 4–4]. Pursuant to the Arbitration Agreement, Plaintiff agreed to submit all “employment-related disagreements and problems” against ACE (along with any of ACE's subsidiaries or affiliates ⁶) to arbitration.

On November 12, 2010, Plaintiff filed this lawsuit against Combined Insurance, AON, and her previous supervisor, Mr. Barrett. Plaintiff has filed claims of: (1) sexual harassment; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; (4) negligence; (5) constructive discharge; (6) outrageous conduct; (7) invasion of privacy (including three separate types); and (8) recklessness. Plaintiff's claims—all of which arise under state law—are based upon incidents that allegedly occurred before and after Plaintiff signed the Form. The following is a summary of Plaintiff's allegations.

In February 2002, Plaintiff began working for Combined Insurance. [Plaintiff's Complaint, Doc. 1, at 2, ¶¶ 6–7]. Plaintiff remained employed by Combined Insurance until she resigned in June 2005. [ Id.]. In July 2006, Plaintiff was re-hired by Combined Insurance. [ Id., at 2, ¶ 8]. In December 2006, Plaintiff was promoted to Branch Manager of Wyoming and Montana. [ Id.].

During this time, Mr. Barrett was employed as the Executive Administrator of the Life Health Division. [ Id., at 2, ¶ 9]. As part of his duties, Mr. Barrett oversaw the administrative assistants in the Life Health Division. [ Id., at 3, ¶ 10]. Plaintiff claims that Mr. Barrett was her immediate supervisor. [ Id., at 5, ¶ 22].

During January, April, and August of 2007, Plaintiff traveled to Chicago, Illinois for work conferences. [ Id., at 3, ¶¶ 11–14]. Mr. Barrett also attended these trips, which were conducted for job training. [ Id.]. Plaintiff—along with other Combined Insurance employees—stayed in hotels during these trips. [ Id.]. Plaintiff alleges that during one of these trips (or a later trip to Nashville, Tennessee in March 2009 ⁷), Mr. Barrett secretly filmed her while she undressed in a hotel room. [ Id.]. Plaintiff claims that Mr. Barrett recorded the video by aiming a cell phone through the “peep hole” of her hotel room door. [ Id., at 5, ¶ 22].

This is not the first time that Mr. Barrett has been accused of this conduct. In October 2009, Mr. Barrett was arrested for recording a “peeping tom” video of Erin Andrews, a reporter for the popular sports network, “ESPN.” [ Id., at 4, ¶ 17]. In December 2009, Mr. Barrett pled guilty to recording the video of Erin Andrews, and was sentenced to thirty months imprisonment.⁸ In April 2010, the Federal Bureau of Investigation (“FBI”) informed Plaintiff that they had a possible match on a video recorded by Mr. Barrett. [ Id., at 4, ¶ 20]. Plaintiff watched the video and confirmed that it was her undressing in a hotel room. [ Id., at 4, ¶ 21]. Plaintiff alleges that Mr. Barrett released the video (or at least images of it) onto the Internet, [ id., at 5, ¶ 23], and that Combined Insurance “knew or had reasonable grounds to know that Barrett was making these videos ...” [ Id., at 5, ¶ 21].

On November 12, 2010, Plaintiff filed suit against Mr. Barrett, Combined Insurance, and AON. [Plaintiff's Complaint, Doc. 1]. On December 17, 2010, Combined Insurance...