Coup v. Scottsdale Plaza Resort, LLC

• Decision Date: 05 October 2011
• Docket Number: No. CV–11–931–PHX–LOA.,CV–11–931–PHX–LOA.
• Parties: Aurora COUP; Jonathon Coup, Plaintiffs, v. The SCOTTSDALE PLAZA RESORT, LLC, an Arizona limited liability company; Rick Frinkler and Sharon Frinkler, husband and wife; Dawson Employee Benefits, LLC, Defendants.
• Court: U.S. District Court — District of Arizona

823 F.Supp.2d 931

Aurora COUP; Jonathon Coup, Plaintiffs,

v.The SCOTTSDALE PLAZA RESORT, LLC, an Arizona limited liability company; Rick Frinkler and Sharon Frinkler, husband and wife; Dawson Employee Benefits, LLC, Defendants.

No. CV–11–931–PHX–LOA.

United States District Court, D. Arizona.

Oct. 5, 2011.

David C. Larkin, David C. Larkin PC, Tempe, AZ, for Plaintiffs.

Michael W. Sillyman, Natalie C. Larson Anderson, Paul Sullivan Gerding, Jr., Kutak Rock LLP, Scottsdale, AZ, for Defendants.

ORDER

LAWRENCE O. ANDERSON, United States Magistrate Judge.

This case arises on the Motion of Defendants Scottsdale Plaza Resort, LLC; Rick and Sharon Frinkler, husband and wife; and Dawson Employee Benefits, LLC (“Defendants”) to Dismiss Case And/Or Stay Proceedings and Compel Arbitration. (Doc. 24) Plaintiffs Aurora and Jonathon Coup (“Plaintiffs”) filed their opposition to the Motion to which Defendants replied. (Docs. 28, 29) Upon Plaintiffs' request, the Court authorized a surreply to which Defendants responded. (Docs. 31, 32) Defendants' Motion is ripe for ruling.

Because the briefing is adequate and oral argument would not aid the Court, the Court will deny Plaintiffs' request for oral argument. Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir.1999); Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir.1991). After review of the parties' briefing, the Court will grant Defendants' Motion, order the parties to promptly proceed to arbitration on all issues, and will stay this lawsuit for nine months or this case may be dismissed thereafter absent a showing of good cause and the exercise of due diligence.

I. Introduction

Plaintiffs filed this Title VII employment discrimination action on May 10, 2011 and amended their complaint on July 14, 2011, alleging discrimination based on national origin (count one) and gender, hostile work environment (count two) and state law claims of intentional interference with contractual relations (third cause of action ¹), and assault and battery (fourth cause of action). (Docs. 1, 20) The First Amended Complaint's assault and battery allegation claims that Defendant Rick Frinkler, was “employed as a manager and employee of the Scottsdale Plaza Resort Defendants and was acting in his capacity of manager and employee of the Scottsdale Plaza Resort Defendants[.]” (Doc. at 7, ¶ 33) Rather than file an answer, Defendants filed the subject Motion. (Doc. 24)

II. Jurisdiction

Subject matter jurisdiction in Title VII cases is predicated upon a federal question, 28 U.S.C. § 1331, and supplemental jurisdiction exists pursuant to 28 U.S.C. § 1367. All parties have expressly consented in writing to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. (Docs. 18, 25) Neither party argues that an arbitrator, rather than a federal judge, should resolve their current disagreement about whether their disputes are arbitrable. Thus, this case does not implicate the reverse presumption applied by the Supreme Court in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944–45, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (noting that where the question is “who (primarily) should decide arbitrability[,] ... the law reverses the presumption” in favor of arbitration and establishes a presumption that said question is for judicial determination unless there is clear and unmistakable evidence to the contrary). 514 U.S. at 944–45, 115 S.Ct. 1920; Granite Rock Co. v. Int'l Bhd. of Teamsters, ––– U.S. ––––, 130 S.Ct. 2847, 2857 n. 5, 177 L.Ed.2d 567 (2010).

III. Background

Defendants argue that federal law and the parties' agreement to arbitrate require the parties to arbitrate Plaintiffs' claims and the Court should either dismiss or stay this lawsuit pending the completion of the arbitration. (Doc. 24 at 2)

Plaintiffs Aurora and Jonathon Coup, mother and son, were employed as banquet servers at the Scottsdale Plaza Resort (the “Resort”), a resort hotel, convention center, and restaurant catering to business travelers, in Scottsdale, Arizona, from June 2010 until their employment was terminated on December 2, 2010. Defendant Dawson Employee Benefits, LLC (“Dawson”) is a professional employer organization which supplies employees and employee benefit services to the Resort. ( Id. at 6) Dawson employed both Plaintiffs in 2010 but the parties disagree when they started with Dawson. Upon commencement of their employment with Dawson, or shortly thereafter, Plaintiffs received a copy of Dawson's Introduction Guide & Orientation Manual (“employee manual”) and signed a separate document, entitled “Employee Receipt and Acknowledgment” (“Acknowledgment”). The Acknowledgments indicate that each Plaintiff received and understood the policies and rules set forth in the employee manual and agreed to arbitrate all employment-related disputes. Defendants attach a copy of the relevant employee manual to their Motion and copies of the signed Acknowledgments, both dated June 16, 2010. (Doc. 24–1, Exhibit (“Exh.”) 1, 2 and 3)

The signed Acknowledgments are identical and state: “By my signature below, I certify and acknowledge the following: ... that my employment with [Dawson] is on an at-will basis which means that the employment relationship may be terminated at ant time by either the employee or Dawson ... with or without cause and with or without notice.” ( Id., Exh. 2 and 3) The Acknowledgments indicate Plaintiffs “received and read a copy of [Dawson's employee manual].” ( Id.) “In consideration of ... actual employment if employed, [Plaintiffs] agree that all disputes involving alleged unlawful employment discrimination, termination by breach of alleged contract or policy, or employment tort committed by Dawson ... shall be resolved pursuant to the Dawson [employee manual] without recourse to court, with or without jury trial.” ( Id.)

Dawson's employee manual emphasizes, in capital letters, that arbitration is required for employees' claims and disputes arising out of their employment. In relevant part, it provides:

Grievance, Arbitration and Termination Dispute

Resolution Policy

It is the policy of [Dawson] (herein “Employer”) to provide an exclusive, final, binding, speedy, inexpensive, and impartial method for employees to bring employment claims to the attention of management without fear of reprisal and to resolve claims and disputes arising out of alleged unlawful employment discrimination, termination by breach of alleged contract or policy, violations of federal or state discrimination statutes, governmental law, regulation, ordinance, or public policy, or employment tort, not covered by worker's compensation. No employee will be harassed, intimidated, or otherwise disciplined in any way for filing a grievance or participating in the grievance process. Access to arbitration is limited to allegations of alleged unlawful employment discrimination, termination by breach of alleged contract or policy, violations of federal or state discrimination statutes, governmental law, regulation, ordinance, or public policy, or employment tort committed by employer or representative of the employer.

ALL DISPUTES INVOLVING ALLEGED UNLAWFUL EMPLOYMENT DISCRIMINATION, TERMINATION BY BREACH OF ALLEGED CONTRACT OR POLICY, OR EMPLOYMENT TORT COMMITTED BY ... A REPRESENTATIVE OF DAWSON EMPLOYEE BENEFITS, L.L.C., INCLUDING CLAIMS OF VIOLATIONS OF FEDERAL OR STATE DISCRIMINATION STATUTES, GOVERNMENTAL LAW, REGULATION, ORDINANCE, OR PUBLIC POLICY, SHALL BE RESOLVED PURSUANT TO THIS POLICY AND THERE SHALL BE NO RECOURSE TO COURT, WITH OR WITHOUT A JURY TRIAL.

* * * * * *

For a complete, detailed copy of the Grievance, Arbitration and Termination Dispute Resolution Policy, please contact the Human Resources Department.

( Id., Exh. 1, at § 6 at p. 44) (emphasis in original). The parties have not provided the Court with any portion of the “complete, detailed copy of the Grievance, Arbitration and Termination Dispute Resolution Policy” purportedly setting forth Dawson's arbitration rules and procedures.

Relying on the Federal Arbitration Act, related case law, and the employer's written arbitration policy contained primarily in two documents, Defendants argue that Plaintiffs' allegations in the First Amended Complaint “fall within the scope of the employer's arbitration policy [and the] Court must dismiss or stay these proceedings ... and compel arbitration of all claims in the Plaintiffs' Complaint.” ( Id.) Alternatively, Defendants argue that if the Federal Arbitration Act is inapplicable to the instant case, “Arizona law also mandates that the parties arbitrate all of Plaintiffs' claims.” ( Id. citing Arizona Revised Statute (“A.R.S.”) § 12–1501)

Defendants attach the affidavit of David Lunt, Vice President of Administration for Dawson to their Reply, which indicates that the Resort does not have its own employees; rather, workers at the resort, including Plaintiffs, are employees of Dawson. (Doc. 29–1, Exh. 1, ¶¶ 2, 5) He avers that Jonathon Coup and Aurora Coup were hired by Dawson as on-call employees on June 25, 2010 and June 9, 2010, respectively, and each attended an orientation meeting on June 16, 2010, where each of them completed certain paperwork and signed the Acknowledgments. ( Id. at ¶¶ 6, 7, 9–10) Mr. Lunt's testimony is corroborated by the testimony of Jarred Elias, Dawson's former Human Resources Manager who is no longer employed by Dawson, who confirms Plaintiffs attended the June 16, 2010 orientation meeting, which Mr. Elias also attended. (Doc. 29–1, Exh. 2, ¶¶ 2, 6–7) Mr. Elias' affidavit indicates that each Plaintiff received Dawson's employee manual and Dawson's staff, including Mr. Elias, “went through the [employee manual] thoroughly and explained its contents to the individuals attending the orientation meeting. [Mr. Elias] gave all the individuals the opportunity to review the contents and ask any questions. [He]...