Harris v. TAP Worldwide, LLC

• Decision Date: 22 June 2016
• Docket Number: B262504
• Citation: 203 Cal.Rptr.3d 522,248 Cal.App.4th 373
• Parties: Dwayne HARRIS, Plaintiff and Respondent, v. TAP WORLDWIDE, LLC, et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

248 Cal.App.4th 373

203 Cal.Rptr.3d 522

Dwayne HARRIS, Plaintiff and Respondent

v.TAP WORLDWIDE, LLC, et al., Defendants and Appellants.

B262504

Court of Appeal, Second District, Division 5, California.

Filed June 22, 2016

Certified for Partial Publication.^*

Fernald Law Group, Rachel D. Stanger, Brandon C. Fernald, and Gina McCoy, Los Angeles, for Defendants and Appellants.

Cummings & Franck, Scott O. Cummings, Long Beach, and Lee Franck for Plaintiff and Respondent.

TURNER

, P.J.

I. INTRODUCTION

Defendants, TAP Worldwide, LLC, Eddie Rivera and Alex Dominguez, appeal from an order denying their motion to compel arbitration. Plaintiff, Dwayne Harris, filed a complaint against defendants alleging wrongful termination and violations of the Fair Employment and Housing Act and the Labor Code. Defendants moved to compel arbitration relying upon an arbitration agreement which plaintiff acknowledged receiving. Plaintiff asserted there was no arbitration agreement and alternatively argued any agreement was unconscionable. Defendants' motion to compel arbitration was denied.

Defendants assert the trial court erred because the arbitration agreement attached as Appendix A to the Employer Handbook is enforceable. The undisputed facts demonstrate: there is a valid arbitration agreement; the agreement to arbitrate is not illusory; and, as discussed in the unpublished part of our opinion, the arbitration agreement is not unconscionable to the degree that it is unenforceable. Accordingly, we reverse the order under review.

II. BACKGROUND

A. Plaintiff's Complaint

On October 10, 2014, plaintiff filed his complaint. Plaintiff alleges he was employed by TAP Worldwide, LLC which utilizes the fictitious business name of 4 Wheel Parts Performance Center at a warehouse located in Compton, California. Mr. Rivera was the warehouse manager for TAP Worldwide, LLC. Mr. Dominguez was the lead for the department and a supervisor and manager for TAP Worldwide, LLC. Plaintiff is African–American.

Plaintiff alleges racial discrimination, harassment and retaliation towards himself and other African–American employees by defendants. Plaintiff alleges he and other employees were denied meal and rest breaks and overtime pay and other Labor Code violations. Plaintiff is married and requested leave under the California Family Rights Act due to the serious health condition of a family member. TAP Worldwide, LLC denied him his Family Rights Act rights and his requested time off. Plaintiff alleges Mr. Dominguez used a forklift in an unsafe manner. Mr. Dominguez pushed plaintiff with a forklift. This occurred while plaintiff was operating another unidentified vehicle. Plaintiff reported these health and safety issues to TAP Worldwide, LLC. TAP Worldwide, LLC terminated plaintiff's employment on December 18, 2013.

Plaintiff brought 12 causes of action: racial discrimination in violation of the Fair Employment and Housing Act; marital status discrimination and retaliation in violation of the Fair Employment and Housing Act; association discrimination and retaliation in violation of the Fair Employment and Housing Act; interference with California Family Rights Act rights and retaliation; retaliation for opposing practices forbidden by the Fair Employment and Housing Act; hostile work environment in violation of the Fair Employment and Housing Act; violation of Labor Codes sections 233 and 234 for denial of kin care; wrongful termination in violation of public policy; non-payment of wages, including overtime, in violation of the Division of Labor Standards Enforcement and the Labor Code; failure to provide meal and rest breaks in violation of the Labor Code; intentional severe emotional distress infliction; and failure to do everything reasonably necessary to prevent discrimination, harassment and retaliation in violation of the Fair Employment and Housing Act. Plaintiff sought as relief damages, costs of suit including attorney fees, lost wages, declaratory relief, waiting time penalties, and other injunctive and equitable relief.

B. Defendants' Motion to Compel Arbitration

On November 17, 2014, defendants moved to compel arbitration. Defendants relied on three documents: the Employee Handbook; the Current Employment Alternative Dispute Resolution Policy (the arbitration agreement); and the “CURRENT EMPLOYMENT ALTERNATIVE DISPUTE RESOLUTION AGREEMENT ” which was attached as Appendix A to the Employee Handbook. Plaintiff acknowledged in writing receiving the Employee Handbook with the attached arbitration agreement on September 16, 2012, when he became an employee of TAP Worldwide, LLC. He had previously worked at TAP Worldwide, LLC but as an employee of a temporary employment service. The written acknowledgement states: “ACKNOWLEDGEMENT OF RECEIPT [¶] I hereby confirm and acknowledge receipt of [defendant's]: [¶] [ ] Alternative Dispute Resolution Agreement for current employees; and [ ] Personnel Policy Handbook.” The parties do not dispute that the Personnel Policy Handbook is the Employee Handbook. Plaintiff declared he actually signed the acknowledgement of receipt of the documents on September 16, 2012, but the year was erroneously listed as 2010.

Page one of the Employee Handbook states, “It is each employee's responsibility to read, understand and follow the provisions of this Handbook; accordingly, you will find it to your advantage to read promptly the entire Handbook.” Page nine of the handbook is entitled, “MANDATORY ALTERNATIVE DISPUTE RESOLUTION BINDING ARBITRATION OF CLAIMS .” Page nine of the employee handbook then states: “The Company has adopted mandatory binding arbitration as a means of dispute resolution regarding any and all employment related claims that may exist between the Company and an employee, and vice versa. Confirmation of receipt and agreement to this policy is an absolute prerequisite to your hiring by, and continued employment with, the Company. [¶] Under this policy, should any employment related dispute arise between you and the Company, for whatever reason, both you and the Company will be required to resolve the dispute through binding arbitration. This means that neither you nor the Company can file a civil lawsuit against the other to seek redress for any employment related grievances. [¶] Binding arbitration has proven itself to be a highly useful and cost effective means to resolving disputes which may arise between employer and employee. We hope that through this policy, any claims that may arise between you and the Company can be resolved quickly, efficiently and to the satisfaction of everyone involved. [¶] For a complete summary of the Company's policy on mandatory binding arbitration, please see Appendix A to this Handbook, as well as the Agreement to Arbitrate, a copy of which you will be required to execute prior to employment with the Company. [¶] If, for any reason, an applicant fails to execute the Agreement to Arbitrate yet begins employment, that employee will be deemed to have consented to the Agreement to Arbitrate by virtue of receipt of this Handbook.”

Appendix A to the Employee Handbook is entitled: “CURRENT EMPLOYMENT ALTERNATIVE DISPUTE RESOLUTION AGREEMENT .” The introduction to the alternative dispute agreement begins, “In consideration of TAP WORLDWIDE, LLC (‘the Company’) continuing to offer you (‘Employee’) gainful employment as an at-will employee (sometimes collectively referred to as ‘The Parties' or individually as ‘Each Party’), and in consideration of Employee continuing to accept said at-will employment with the Company, the Company hereby offers and adopts the following terms and conditions for Employee's continued employment....” Paragraph 1 of the arbitration agreement states: “Covered Claims: Each Party will hereby submit to binding arbitration, and waive any and all rights to civil trial, any dispute, claim or controversy arising out of or in any way connected with any dispute relating to the terms and/or conditions of employment which includes, but is not limited to: [¶] (a) Any and all claims arising under either federal or state law, including but not limited to claims arising under Title VII of the Civil Rights Act (federal), Equal Pay Act (federal), Americans with Disabilities Act (federal), Age Discrimination in Employment Act (federal), Fair Labor Standards Act (federal), Families with Medical Leave Act (federal), Labor Management Relations Act (federal), Employee Retirement Income Security Act (federal), Fair Employment and Housing Act (state), and the Unfair Business Practices Act (state), as well as any and all claims under federal and/or state law involving law against discrimination, including but not limited to discrimination based on race, sex, sexual orientation, gender, religion, national origin, age, marital status, handicap (actual or perceived), disability (actual or perceived) and/or harassment on any of the foregoing grounds; and [¶] (b) Any and all claims arising under either contract or tort principals, including but not limited to claims for breach of contract (oral or written), breach of implied covenant of good faith and fair dealing, negligent and/or intentional infliction of emotional distress, wrongful termination in violation of statute (see para. (a) above), wrongful termination in violation of common law, wrongful termination in violation of public policy, retaliation (related to provision of workers' compensation benefits, exercise of a statutory right (see para. (a) above) or otherwise) and/or fraud. [¶] Each Party hereby recognizes and acknowledges that the foregoing paragraphs are meant to be only illustrative and not exhaustive as to the nature and type of all employment related disputes which will be subject to binding arbitration upon implementation of this Agreement. [¶] Each Party will also hereby submit to binding arbitration any dispute, claim or controversy arising out of or in any way connected with any dispute relating to the interpretation...