Johnson v. Orkin, LLC
| Decision Date | 06 March 2013 |
| Docket Number | No. 12 C 141,12 C 141 |
| Parties | IRENN H. JOHNSON, Plaintiff, v. ORKIN, LLC; ORKIN PEST CONTROL; ORKIN EXTERMINATING, INC., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
On January 9, 2012, Plaintiff Irenn H. Johnson ("Johnson"), appearing pro se, commenced this suit against Orkin, LLC ("Orkin"), Orkin Pest Control ("OPC"), and Orkin Exterminating, Inc., ("OEI") (collectively, "Defendants") by filing a complaint with this Court alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Illinois Human Rights Act, 775 III. Comp. Stat. 5/1-101 et seq. (R. 1, Compl.) Johnson alleges that Defendants discriminated against him before and during his employment with them on the basis of his race and arrest record and retaliated against him for engaging in protected behavior. (Id. at 1-3.) Presently before the Court are two motions. First, Defendants have moved to dismiss Johnson's complaint or, in the alternative, to compel arbitration. Second, Johnson has filed a motion to stay the proceedings and to strike Defendants'motion to dismiss. (R. 41, Pl.'s Mot.)1 For the reasons discussed herein, Defendants' motion to compel arbitration is granted. Accordingly, Johnson's motion is denied as moot, and this case is dismissed.
Johnson is an African-American male who has an arrest record. On March 7, 2005, Johnson completed a job application with Defendants and scheduled an interview for March 9, 2005. (Id. ¶ 7.) On March 9, Defendants allegedly offered Johnson employment contingent upon the results of a background check, a physical examination, and a drug screening. (Id.) Johnson alleges that his job offer was rescinded on March 18, 2005, due to his race and his arrest record. (Id. ¶¶ 5, 7-8.) Johnson further alleges that Defendants failed to use other information to determine whether he actually engaged in any unlawful conduct related to the offenses he was charged with in connection with his arrest and negligently rescinded his job offer based solely upon the fact of his arrest. (Id. ¶ 8.)
On or about April 4, 2005, Defendants offered Johnson employment. (Id.) Johnson's employment with Defendants commenced on April 21, 2005. (Id.) On that date, Johnson alleges that he was unwillingly forced to sign a mandatory arbitration policy that prevented him from engaging in protected activity and that Defendants retaliated against him for engaging in protected activity by subjecting him to different terms and conditions of employment. (Id. ¶ 10.)Johnson claims that Defendants' mandatory arbitration policy limited his rights pursuant to Title VII by: (1) failing to mention his Equal Employment Opportunity Commission ("EEOC") rights under Section II A; (2) restricting his ability to file a charge of discrimination within the "applicable contractual limitation period" under Section IV B; and (3) requiring employees who serve Defendants with a "Demand for Arbitration" to request administrative closure (i.e., "notice of right to sue") from the EEOC within 90 days. (Id. ¶ 11.) Johnson also alleges that he suffered an adverse employment action after engaging in protected activity when his employment was terminated on August 31, 2005. (Id. ¶ 13.) Johnson further alleges that there is a connection between his exercise of protected activity and his termination. (Id. ¶ 14.)
As a condition of his employment with Defendants, Johnson entered into an Agreement to Arbitrate and an Employment Agreement with Defendants, and he agreed to Defendants' Dispute Resolution Policy ("DRP"), which was referenced in Johnson's Agreement to Arbitrate. In addition, as a condition of being considered for employment by Defendants, Johnson's Employment Application also included an agreement to arbitrate. (R. 41, Pl.'s Mot. ¶ 3.)
The April 21, 2005 Agreement to Arbitrate that Johnson entered into with Defendants states, in relevant part:
I desire, as does the Company, to resolve any disputes regarding or arising from my employment in an expeditious and economical fashion. I recognize and agree, as does the Company, that arbitration of such disputes through binding arbitration is in the best interest of both parties. Therefore, in consideration of employment and the mutual promises, covenants, and conditions set forth in this Agreement, I agree, as does the Company, to abide by the Company's Dispute Resolution Policy and to arbitrate any dispute, claim or controversy regarding or arising out of my employment (as defined by the Company's Policy . . .) that may arisebetween me and the Company, its parents, subsidiaries, affiliates and any other persons or entities acting as its agents. The parties agree that the Company's operations directly affect interstate commerce to the extent that all procedures hereunder contemplated shall be subject to, and governed by, the Federal Arbitration Act...
Expressly incorporated within the parties' Agreement to Arbitrate is Defendants' February 15, 2005 DRP, which states:
The DRP defines "disputes" as:
(1) all claims, actions or suits arising out of or in connection with any applicant's application for employment and the Company's actions with respect to that application, and (2) all claims, actions or suits arising out of or in connection with any employee's employment, including but not limited to the terms and conditions of any employee's employment and the termination or cessation of that employment.
(Id. at II A.) Consistent with the above, the DRP includes any and all claims brought under Title VII or the Illinois Human Rights Act ("IHRA"), such as those at issue in this suit, but it does not prohibit employees from filing charges of discrimination with the EEOC or a relevant State agency, such as the Illinois Department of Human Rights ("IDHR" or the "Department"). (Id. at IV B, VI B.)
Executed on the same day as the Agreement to Arbitrate, Johnson's Employment Agreement with Defendants' parent company, Rollins, Inc., states in relevant part that Johnson:
consents and agrees to submit to binding arbitration with the American Arbitration Association located in Atlanta, Georgia which . . . shall be the soleand exclusive forum for purposes of resolving any dispute . . . relating to the employment relationship between Employee and Rollins.
.)
As a job applicant, Johnson requested that Defendants produce his personnel file, but Defendants declined to do so. (Id. ¶ 41.) Four days after Defendants hired him, Johnson again requested his personnel file, which Defendants this time provided to him. (Id. ¶¶ 5-6.) Johnson's personnel file included Johnson's Employment Application, Agreement to Arbitrate, and Employment Agreement, among other documents, but it did not include Defendants' Employee Handbook or DRP, neither of which Johnson specifically requested. (Id. ¶¶ 6, 12.) On August 31, 2005, Johnson's employment was terminated. (Id. ¶ 12.) Five months later Johnson again requested his personnel file, and Defendants again provided it to him. (Id.)
On December 19, 2005, Johnson filed a Charge of Discrimination with the EEOC alleging that Defendants discriminated against him during his employment on the basis of his race and in retaliation for engaging in protected activity. On February 1, 2006, the IDHR sent Johnson a letter notifying him that the Department had become aware of the fact that he had filed a Charge of Discrimination with the EEOC and advising him on how to proceed with the IDHR for claims of discrimination pursuant to the IHRA, 775 III. Comp. Stat 5/1-101 et seq. (R. 41, Pl.'s Mot., Ex. 8, Feb. 1, 2006 IDHR Letter.) Johnson did not file a Charge of Discrimination with the IDHR alleging violations of the IHRA until May 5, 2011. (R. 41, Pl.'s Mot, Ex. 23-2, IDHR Charge.) Johnson later moved to amend his Charge with the Department to include a new claim of arrest record discrimination pursuant to Section 5/2-103 of the IHRA. (R. 41, Pl.'s Mot at 5; R. 41,Pl.'s Mot., Ex. 22, Mot. Am. Charge.) The IDHR did not amend Johnson's Charge or investigate his new claim. (R. 18-8, Defs.' Mot. Vacate, Ex. H, IDHR Notice Dismissal at 15-18.)
Johnson also alleges that on or about June 8, 2008, he engaged in protected activity by filing a written complaint opposing Defendants' discriminatory conduct.
On August 19, 2010, the EEOC determined, based on its investigation of Johnson's charges, that there was reasonable cause to believe that Title VII had been violated. Ultimately, the EEOC and the IDHR issued Johnson Notices of Right of Sue Defendants on October 11, 2011 and November 2, 2011, respectively. Johnson filed his complaint in this case on January 9, 2012.
On January 9, 2012, Johnson commenced this cause of action by filing a pro se complaint with this Court. (R. 1, Compl.) On April 16, 2012, Johnson moved...
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