Davis v. Young & Assocs.

• Decision Date: 15 September 2021
• Docket Number: 1:20cv00061
• Court: U.S. District Court — Western District of Virginia
• Parties: TONI DAVIS, Plaintiff, v. YOUNG & ASSOCIATES, INC., et al., Defendants.

TONI DAVIS, Plaintiff, v. YOUNG & ASSOCIATES, INC., et al., Defendants.

No. 1:20cv00061

United States District Court, W.D. Virginia, Abingdon Division

September 15, 2021

MEMORANDUM OPINION

Pamela Meade Sargent, United States Magistrate Judge.

The plaintiff, Toni Davis, (“Davis”), brings this civil rights action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., against the defendant and former employer, Young &amp Associates, Inc.^[1] Davis claims that the defendant retaliated against her for being a witness in an allegation of discrimination in violation of Title VII.

This matter is before the undersigned magistrate judge on the Defendant's Motion To Compel Arbitration And Stay Proceedings Pending Arbitration, (Docket Item Nos. 18, 20) (“Motion”), on referral pursuant to 28 U.S.C § 636(b)(1)(A).^[2] Counsel for the parties were heard on the Motion by telephone conference call on August 17, 2021. Based on the arguments and representations of counsel, and the evidence provided to the court, the court will take the Motion under advisement and set the matter for summary jury trial on the issue whether the parties formed an agreement to arbitrate.

I. Facts

In her Complaint, (Docket Item No. 1), Davis alleges that she worked for the defendant, doing business as Shoney's, at its Abingdon, Virginia, restaurant beginning in August 2016. The plaintiff alleges that she was employed as Head Supervisor of the dining room from April 2018 to March 9, 2019. She alleges that she was a witness to an allegation of discrimination by another employee in or about September 2017 that resulted in that employee filing a Charge of Discrimination against the defendant with the Equal Employment Opportunity Commission (“EEOC”). The plaintiff claims that the defendant retaliated against her for being a witness in this employee's EEOC proceeding. In or about January 2018, Davis filed a Charge of Discrimination against the defendant with the EEOC. Thereafter, she claims that the defendant threatened to terminate her employment without reason and, on March 9, 2019, without warning or cause, demoted her from Head Supervisor to Relief Supervisor. Davis also alleges that, on March 10, 2019, the defendant issued a written warning against her for “hostility toward managers, ” which was not justified. After that, Davis said, the defendant also placed on her paystub credit for tips that she did not receive, thereby increasing the taxes withheld from her pay. Davis further alleges that the defendant created a hostile work environment against her by encouraging other employees to treat her differently.

The defendant has provided the Declaration Of Brian Spencer, (Docket Item 19-2) (“Spencer Declaration”), in support of the Motion. In this declaration, Spencer stated that he is the President of Young & Associates, Inc., which owns and operates Shoney's restaurants in Southwest Virginia and one restaurant in Johnson City, Tennessee. According to Spencer, the operation of Young & Associates, Inc.'s, restaurants has an impact on interstate commerce, in that it regularly provides meals for customers traveling and/or residing outside of Virginia, purchases food and supplies from vendors and suppliers outside of Virginia, facilitates point-of-sale transactions with credit card companies and financial institutions located outside of Virginia and hires employees who reside outside of Virginia.

Spencer stated that Davis was hired on August 17, 2016, to work in the defendant's Bristol, Virginia, restaurant, where she remained an employee until the restaurant closed due to the COVID-19 pandemic in 2020. When Davis was hired, Spencer said, the defendant utilized the services of Strategic Outsourcing, Inc., (“SOI”), a professional employment organization, to handle various payroll, human resourcing and other administrative tasks. Spencer said that, when Davis was hired, she executed an employment agreement with SOI, which was attached to the Spencer Declaration as Exhibit A. (Docket Item No. 19-2 at 5.)

This document is entitled, “Section 3 - Assigned Employee Acknowledgments” and contains, in part, the following language:

Strategic Outsourcing, Inc. … and the business for which you perform services (Company) are parties to an agreement under which SOI provides services to Company. As part of this arrangement you will be paid as an assigned employee through SOI for work you perform for and under the direction of Company, and you may also be able to participate in certain benefits offered through SOI. No. modification to this page as originally written will be effective. Please sign below: …

I and SOI mutually agree that any legal dispute involving SOI, Company, or any benefit plan, insurer, employee, officer, or director of SOI or Company arising from or relating to my employment, wages, leave, employee benefits, application for employment, or termination from employment will be resolved exclusively through binding arbitration before a neutral arbitrator heard in the capital or largest city of the state in which I work or another mutually agreed location. The arbitrator will be appointed according to the rules of a neutral, mutually agreeable, commercially reasonable arbitration service, have the authority to grant the same remedies that would be available in a court of law (and no more), and be bound by the same rules of evidence as a federal court. The arbitrator will resolve the dispute solely upon the law applicable to the claims, evidenced [sic] adduced, and defenses raised, granting relief on no other basis, and may grant summary disposition or disposition on the pleadings. The arbitrator will render a reasoned written decision, and if an applicable statue requires fees or costs to be shifted the arbitrator can enforce such requirements. If a matter is heard in court and not arbitration for any reason. I and SOI mutually waive any right to a jury trial. Nothing herein prohibits me from complaining to government agencies or cooperating with their investigations as authorized by law. No. failure to strictly enforce this agreement to arbitrate will constitute a waiver or create any future waivers and no-one [sic] other than counsel for SOI may waive this agreement for SOI, and then only in writing. This agreement to arbitrate is enforceable as a contract under the Federal Arbitration Act and any other laws validating arbitration agreements. If any part of it is invalid or unenforceable for any reason, the remainder of this agreement to arbitrate will still be enforceable.

I have received the SOI Assigned Employee Handbook. My relationship with SOI is at will and can terminate at any time for any reason or no reason. Neither this Acknowledgement nor the Handbook creates a contract of employment. …

…

I understand I may request a copy of these Acknowledgments for my records, and I have read them (or had them read to me) and agree;

(Emphasis in original.) The document contains a signature that appears to read “Toni Davis, ” has the name of Toni Davis printed on it and is dated August 17, 2016.

According to Spencer, the term “Company” in this document referred to Young & Associates, Inc. Spencer stated that this document created a mutually binding agreement between Davis and SOI, and Young & Associates, Inc., was an “intended third-party beneficiary” of this agreement.

The defendant also has provided the Declaration Of Angelia Pingo, (Docket Item No. 27-1) (“Pingo Declaration”). According to Pingo, who currently is the Assistant Manager of the Abingdon Shoney's, in 2016, she was the Assistant Manager of the Bristol Shoney's, owned and operated by the defendant. Pingo said she was responsible for “onboarding” new hires, including sitting down and assisting new hires with the completion of the necessary employment paperwork. Pingo said that, in 2016, the defendant was utilizing the payroll services of SOI. She said that, as part of the onboarding process, SOI required new employees to sign a document entitled, “Section 3 - Assigned Employee Acknowledgments.”

Pingo said that Davis was hired on or about August 17, 2016, as Head Supervisor for the Bristol Shoney's. Pingo said that she met with Davis on that date and witnessed her sign various employment documents, including a copy of the “Section 3 - Assigned Employee Acknowledgments, ” which was attached as part of Exhibit A to the Pingo Declaration. This document appears to be a photocopy of the document attached as Exhibit A to the Spencer Declaration.

Davis has provided an affidavit with her response to the Motion, (Docket Item No. 25-1) (“Davis Affidavit”). In this affidavit, Davis stated that, when she was hired by the defendant in August 2016, “[t]o the best of my knowledge, information, and belief, I did not sign” the document entitled “Section 3 - Assigned Employee Acknowledgments.” Davis also stated “[t]o the best of my knowledge, information, and belief, I did not sign any document(s) agreeing to arbitrate claims that arose during my employment with Shoney's in August 2016, or at any other time thereafter.”

Davis further stated that, as part of her job as Head Supervisor from April 2018 to March 9, 2019, she reviewed Shoney's employee handbook with new hires and had new hires sign certain employment forms. Davis said that the document entitled “Section 3 - Assigned Employee Acknowledgments” was not among the documents that she had new employees sign. Davis said that, after a new employee signed the employment documents, she would then place these documents in a brown envelope with the employee's name and file it. Davis said, in March 2019, she observed her manager, Andrea Madder, carrying a brown envelope with Davis's name on it in her purse at Shoney's and as s...