Johnson v. Menard, Inc.
| Decision Date | 27 July 2021 |
| Docket Number | WD 84138 |
| Citation | 632 S.W.3d 791 |
| Parties | Telissah JOHNSON, Respondent, v. MENARD, INC., Appellant. |
| Court | Missouri Court of Appeals |
Kenneth D. Kinney, Kansas City, for Respondent.
Alex R. Meyers, for Appellant.
Division Three: Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and W. Douglas Thomson, Judge
Telissah Johnson ("Johnson") sued her former employer, Menard Inc. ("Menard"), in the Circuit Court of Platte County alleging employment discrimination. Menard filed a motion to compel arbitration, which was denied by the trial court. Menard appeals from that order. We affirm.
Johnson began working as a cashier at a Menard store in Kansas City, Missouri, on January 10, 2019. Upon beginning her employment, Johnson, an at-will employee, signed an Employee/Employer Agreement ("EEA") that, among other things, included an arbitration provision. Approximately a month later, Johnson made a written complaint of race discrimination to Menard's human resources department. Two weeks after that, Johnson was terminated.
Johnson filed a charge of discrimination with the Missouri Commission on Human Rights ("MCHR") alleging employment discrimination and retaliation. The MCHR issued her a right-to-sue letter, and on March 8, 2020, Johnson initiated the underlying action against Menard in the Circuit Court of Platte County.
On April 10, 2020, Menard filed a Motion to Compel Arbitration, claiming that the EEA she signed when she became employed by Menard required her to arbitrate her claims.1 The EEA states, in relevant part:
Johnson opposed the motion, arguing that the arbitration agreement contained in the EEA was not a valid, enforceable contract because it lacked consideration and contained illusory promises; and that collateral estoppel prohibited the trial court from compelling arbitration based on two circuit court judgments involving similar arbitration agreements with other Menard employees. And, although Menard's motion to compel made no mention of the existence of a delegation clause, Johnson's opposition to the motion to compel directly challenged the enforceability of the delegation clause in the agreement.2 Argument on the motion was held on April 10, 2020, and the trial court granted Menard's motion to compel arbitration.
On August 10, 2020, Johnson filed a petition for a writ of mandamus with this Court. A preliminary writ was issued expressing, in part, concern that the consideration supporting both the delegation provision and the arbitration agreement as a whole was illusory, and ordering the trial court to vacate its order granting Menard's motion to compel arbitration or to show cause as to why it should not do so. On September 1, 2020, the trial court vacated its order compelling arbitration,3 and on November 2, 2020, the trial court entered an order denying Menard's motion to compel arbitration.4 Menard appeals from that denial.5
" ‘We review the circuit court's denial of a motion to compel arbitration de novo. ’ " Pinkerton v. Technical Educ. Servs., Inc. , 616 S.W.3d 477, 481 (Mo. App. W.D. 2020) (quoting Fogelsong v. Joe Machens Auto. Grp. Inc. , 600 S.W.3d 288, 293 (Mo. App. W.D. 2020) ) (additional citation omitted). Whether a dispute is covered by an arbitration agreement and whether there is a valid, enforceable delegation clause in the arbitration agreement are legal issues that are both reviewed de novo. Theroff v. Dollar Tree Stores, Inc. , 591 S.W.3d 432, 436 (Mo. banc 2020) (citations omitted).
Menard raises four points on appeal, all asserting that the trial court erred in denying its Motion to Compel Arbitration. In its first point, Menard argues that its motion to compel arbitration should have been granted because the arbitration agreement includes a delegation clause, which requires an arbitrator, and not the trial court, to decide threshold issues of arbitrability. In Points II and III, Menard asserts that the arbitration agreement contained in the EEA was valid in that it was supported by sufficient consideration.6 Finally, in its fourth point, Menard complains that circuit court cases denying arbitration in cases with similar EEAs cannot constitute collateral estoppel, arguing that "the previous cases involving Menard concerned contracts with different language and Missouri caselaw has changed."7
" ‘Arbitration is a matter of contract under the Federal Arbitration Act (FAA).’ " Pinkerton , 616 S.W.3d at 482 (quoting Soars v. Easter Seals Midwest , 563 S.W.3d 111, 114 (Mo. banc 2018) ) (additional citation omitted). "[P]arties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract." TD Auto Fin., LLC v. Bedrosian , 609 S.W.3d 763, 768 (Mo. App. E.D. 2020) . However, " ‘[a] party cannot be required to arbitrate a dispute that it has not agreed to arbitrate[,]’ and arbitration will only be compelled where ‘a valid arbitration agreement exists and ... the specific dispute falls within the scope of that agreement.’ " Hughes v. Ancestry.com , 580 S.W.3d 42, 47 (Mo. App. W.D. 2019) (quoting NutraPet Sys., LLC v. Proviera Biotech, LLC , 542 S.W.3d 410, 413-14 (Mo. App. W.D. 2017) ; Granger v. Rent-A-Ctr., Inc. , 503 S.W.3d 295, 298 (Mo. App. W.D. 2016) ). " ‘Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.’ " Id. (quoting Dotson v. Dillard's, Inc. , 472 S.W.3d 599, 603 (Mo. App. W.D. 2015) ; First Options of Chi., Inc. v. Kaplan , 514 U.S. 938, 942, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) ).
In Menard's first point, it claims that the arbitration agreement signed by Johnson included a delegation provision that required an arbitrator to decide threshold questions of arbitrability.
" ‘[A] delegation provision is an agreement to arbitrate threshold issues concerning the arbitration agreement.’ " Soars , 563 S.W.3d at 114 ). "Accordingly, it ‘is simply an additional, antecedent agreement the party seeking arbitration asks the ... court to enforce, and the [Federal Arbitration Act] operates on this additional arbitration agreement just as it does on any other.’ " Id. ). " ‘Generally, any silence or ambiguity concerning the scope of arbitrable issues should be resolved in favor of arbitration.’ " Id. (). "However, when considering whether a court or an arbitrator should decide threshold questions of arbitrability, there is generally a presumption against arbitrability." Id. (citing First Options of Chi., Inc. , 514 U.S. at 944-45, 115 S.Ct. 1920 ). " ‘[C]lear and unmistakable evidence’ the parties manifestly intended to arbitrate questions of arbitrability is required to overcome this presumption." Id. ). "This ‘clear and unmistakable’ requirement ... pertains to the parties’ manifestation of intent that issues of arbitrability be decided by the arbitrator instead of the court." Pinkerton , 531 S.W.3d at 43 ).
In the present case, the parties mutually agreed that the AAA National Rules for the Resolution of Employment Disputes ("AAA rules") would govern any claims brought by either party under the EEA. Johnson does not dispute that the claims she has asserted in the underlying action fall within the scope of the EEA and the arbitration provision contained therein. Moreover, the relevant AAA rules provide that "[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement." The explicit reference in the arbitration agreement to the AAA rules, which include the aforementioned provision, constitutes clear and unmistakable...
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Hamilton v. Family Dollar Stores of Mo., LLC
...consideration] when one party retains the unilateral right to amend the agreement and avoid its obligation.” Johnson v. Menard, Inc., 632 S.W.3d 791, 797 (Mo.Ct.App. 2021) (citation and quotation marks omitted) (holding arbitration provision not enforceable because employer “retained the un......
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