Emp. Res. Grp., LLC v. Collins

• Decision Date: 03 June 2019
• Docket Number: No. 18-0007,18-0007
• Court: West Virginia Supreme Court
• Parties: EMPLOYEE RESOURCE GROUP, LLC, DAVID CURRY and JAMES MOLLETTE, Defendants Below, Petitioners v. ANITA COLLINS, Plaintiff Below, Respondent

EMPLOYEE RESOURCE GROUP, LLC, DAVID CURRYand JAMES MOLLETTE, Defendants Below, Petitioners v. ANITA COLLINS, Plaintiff Below, Respondent

No. 18-0007

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 3, 2019

(Mingo County 16-C-214)

MEMORANDUM DECISION

Petitioners Employee Resource Group, LLC (sometimes referred to as "ERG"), David Curry, and James Mollette (referred to collectively as "petitioners"), by counsel Bradley K. Shafer, appeal the December 5, 2017, order entered by the Circuit Court of Mingo County, denying their motion to enforce an arbitration agreement. Respondent Anita Collins, by counsel Nathan D. Brown, filed a response. On appeal, petitioners contend that the circuit court erred in refusing to enforce the parties' arbitration agreement because it found they failed to produced a signed copy of the agreement.

The Court has considered the parties' briefs, oral arguments and appendix record on appeal. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the circuit court is reversed and this case is remanded for further proceedings consistent with this memorandum decision.

I. Facts

On April 24, 2016, respondent was employed by petitioner ERG to work at a Wendy's restaurant located in South Williamson, Kentucky. As part of the hiring process, respondent was sent an e-mail containing an "Agreement and Receipt for Dispute Resolution Program" (hereinafter "Arbitration Agreement"), in addition to a document entitled "Dispute Resolution Program, Program Booklet." Respondent was asked to review these documents, as well as other employment-related documents, and to sign the various documents digitally, or electronically, including the Arbitration Agreement. A copy of the Arbitration Agreement at issue, which was submitted to the circuit court, reflects respondent's digital signature on the agreement as follows: "Digitally Signed By: Anita Collins; Date: Apr-24-2016 1:12:25 PM EDT" on the line above "Associate Signature."

The Arbitration Agreement expressly provides, in relevant part:

MUTUAL PROMISE TO RESOLVE CLAIMS BY BINDING ARBITRATION. The Company and I agree that all legal claims or disputes covered by the Agreement must be submitted to binding arbitration and that this binding arbitration will be the sole and exclusive final remedy for resolving any such claim or dispute. I also agree that any arbitration between the Company and me is of an individual claim and that any claim subject to arbitration will not be arbitrated on a collective or class-wide basis.

The mutual obligations set forth in this Agreement shall constitute a contract between the Employee and the Company but shall not change an Employee's at-will relationship or any term of any other contract or agreement between the Company and Employee. This Policy shall constitute the entire agreement between the Employee and Company for the resolution of Covered Claims. The submission of an application, acceptance of employment or the continuation of employment by an individual shall be deemed to be acceptance of the dispute resolution program. No signature shall be required for the policy to be applicable.

Legally protected rights covered by this Arbitration Agreement are all legal claims, including: . . . tort claims (including, but not limited to, claims for physical, mental or psychological injury, but excluding statutory workers compensation claims); claims for wrongful termination; sexual harassment; [and] discrimination (including, but not limited to, claims based on race, sex, religion, national origin, age, medical condition or disability, whether under federal, state or local law) . . . .

I understand and agree that by entering into this Agreement, I anticipate gaining the benefits of a speedy, impartial dispute resolution procedure. This procedure is explained in the Dispute Resolution Program Booklet, which I acknowledge I have received and read or have had an opportunity to read.

. . . .

. . . This Agreement and the Dispute Resolution Program Booklet are the complete agreement of the parties on the subject of arbitration of disputes. . . .

. . . .VOLUNTARY AGREEMENT. I acknowledge that I have carefully read this Agreement, I understand its terms, that all understandings and agreements between the Company and me relating to the subjects covered in this Agreement are contained in it, and that I have entered into the Agreement voluntarily and not in reliance on any other promises or representations by the Company other than those in the Agreement itself and the Dispute Resolution Program.

I further acknowledge and agree that I have been given the opportunity to discuss this Agreement with my own private lawyer and have used that opportunity to the extent that I wish to do so. . . .

On November 3, 2016, respondent was terminated from Wendy's. Following her termination, respondent filed a complaint in the circuit court against petitioners alleging that she was sexually harassed and that she was terminated from her employment, because she reported the ongoing sexual harassment that she suffered. Respondent's claims included: 1) violation of the Kentucky Civil Rights Act, Kentucky Revised Statute § 344.040 (LexisNexis 2011); 2) retaliation in violation of the Kentucky Civil Rights Act; 3) wrongful termination; 4) extreme and outrageous conduct; 5) hostile work environment; and 6) negligent supervision/retention.¹

In response to the complaint, petitioners filed answers and a motion to enforce the Arbitration Agreement. Petitioners argued that respondent was presented with and endorsed the Arbitration Agreement and that the claims raised by respondent's lawsuit were subject to that agreement. Respondent opposed petitioners' motion by arguing, in part, that the Arbitration Agreement was not enforceable because she "did not in fact sign the document." Specifically, respondent contended that "[w]ithin the three (3) page document, there are multiple places in which the employee is asked to 'digitally sign.' Those places have a typed name of Anita Collins; however, there is no signature on the document. Further, the plaintiff indicates that she has never seen nor signed the document." In response, petitioners argued, inter alia, that the Arbitration Agreement was an enforceable contract and that respondent signed the agreement with her digital signature.²

In an order entered on May 22, 2017, the circuit court denied petitioners' motion to enforce arbitration, finding that "no evidence was tendered regarding when . . . [respondent] was presented with said agreement and how much time she was afforded to review said document prior to the alleged electronic signing of the same[;]" that respondent "contends she did not sign" the agreement; and, that "no enforceable contract exists between" respondent and petitioners. The circuit court, however, granted petitioners leave to "re-address said motion after" the parties engaged in discovery.

Thereafter, both respondent and Mr. Ball, the manager of the Wendy's where respondent worked and the individual who hired and fired respondent, were deposed. Respondent testified that she applied for Wendy's on her iPhone and used her Yahoo email address.³ She testified that she no longer has the iPhone used in the application process. She further testified that she did not receive certain employment documents, including the Arbitration Agreement. Respondent, however, testified that if she had created a passcode or password for the purposes of the security of the application process,⁴ she would not have given it to anyone else to use. Regarding her employee orientation process, she testified that she did not complete any paperwork as part of the hiring process, including an I-9 "Employment Eligibility Verification," or provide proof that she was authorized to work in the United States. Despite this testimony, subsequent to her deposition, petitioners produced a copy of respondent's I-9, a copy of her driver's license, and her W-4, which indicates her withholdings. Respondent said that the only thing she received from Wendy's was "my apron, shirt, and hat[.]"

Mr. Ball's deposition revealed that he had worked for Wendy's since 2005. He testified that once an individual completes the on-line application for a job with Wendy's he manages, the application is sent to him. He then reviews the application and determines whether he wants to proceed to hire the individual. If the individual is hired, a program called TalentReef generates an email that is sent to the employee at the email address the applicant provides. The email includes the Arbitration Agreement and the "Employee Resource Group LLC Dispute Resolution ProgramBooklet." The email is sent to the employee, and the employee confirms receipt of those documents by electronically signing them. The recipient can print the documents if desired. Mr. Ball stated that when an employee completes an on-line application, the person sets up a profile and creates a password. The employee then enters that password to electronically sign the documents—there is no "physical signature." If the employee does not complete the forms emailed to him or her by digitally signing the documents, Mr. Ball testified that he does not schedule the orientation and the individual is not hired. If the forms are completed, Mr. Ball schedules an orientation. As part of the orientation, Mr. Ball stated that he looks at the new employee's social security card and photo identification card, makes a copy of those documents, and places them in the restaurant's file. Mr. Ball then logs onto the TalentReef program and digitally signs all the paperwork that the new employee has reviewed by entering his password. Mr. Ball stated that it is his customary and routine practice to review with any new employee the policies that were previously...