Narcio v. G2 Secure Staff, LLC
| Decision Date | 26 July 2022 |
| Docket Number | 5:22-cv-6045-NKL |
| Parties | ALEJANDRA NARCIO, Plaintiff, v. G2 SECURE STAFF, LLC, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Defendant G2 Secure Staff moves to compel the arbitration of plaintiff Alejandra Narcio's claims. Doc. 12. Since G2 has established as a matter of law that there is a valid arbitration agreement that covers Narcio's claims, the Court will grant G2's motion to compel arbitration and dismiss Narcio's case.
Narcio alleges that G2 discriminated against her in violation of federal and state law. See generally Doc. 1-1 (Narcio's Complaint). Specifically, Narcio alleges that she developed a physical disability when working for G2 and consequently requested accommodations. In response, G2 allegedly refused to provide said accommodations, harassed Narcio in hopes that she would quit, demoted Narcio to a job that she could not perform, and told Narcio not to return to work until her restrictions were lifted. Id. ¶¶ 18-41.
G2 argues that Narcio electronically signed a “Pre-Dispute Resolution Agreement” that requires her to arbitrate her claims. In support of its motion, G2 provided a copy of Narcio's application, which includes the Pre-Dispute Resolution Agreement Narcio allegedly electronically signed.[1] The top of the application states:
Please follow the steps on the bar to the left. When you have a green checkmark in each required section, you will have completed the application.... At the end of the application process, you must scroll down and click the forward arrow at the bottom of the page to submit your application for consideration.
Doc. 13-1, at 7-10. The application contains Narcio's name, email address, mailing address, phone number, and work history. Id. at 7-9.
On the last page of the application it states, in bold, Doc. 13-1, at 10. Immediately following this statement is the title “Pre-Dispute Resolution Agreement.” Below the title, the agreement states:
[t]o provide fast, fair and inexpensive means of resolving disputes between [G2] and the employees, [G2] has instituted a mandatory binding arbitration program. . . . As part consideration for your employment, you and [G2] agree that in the event a dispute arises between you and [G2] (or its officers, directors, employees, representatives, successors, assigns or agents in their capacity as such) regarding your employment such disputes shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act. This obligation binds [G2] as well as the employees This pre-dispute resolution agreement is not a contract of employment, expressed or implied. This agreement does not alter the “at will” status of your employment.... I have read and understand all of the above, I agreed that by becoming an employee of G2 Secure Staff, LLC, I will resolve any disputes pertaining to my employment through binding arbitration.
Applicants are not prompted to sign this section separately. A new section, titled, “Pre Employment Agreement” follows. In relevant part it states:
I hereby certify that I have personally completed this application, that the information contained in it is true, complete and correct....If hired, I agree and understand that I will conform to the polices, practices and procedures of G2.... I acknowledge that I have been given the opportunity to ask questions regarding G2's policies and procedures.... G2 AND ITS EMPLOYEES ARE SUBJECT TO A MANDATORY BINDING ARBITRATION PROGRAM TO THE EXTENT ALLOWED BY THE LAW
Immediately under the all-capital statement referencing the arbitration provision, the agreement states:
G2 also provided a declaration from Diane Schoeberl-G2's director of human resources. Doc. 13-1 (Schoeberl Declaration), at 1-5. She explained that a third-party vendor, ADP, oversees G2's online application process; and G2 provides ADP with the information to include in the application, including the Pre-Dispute Resolution Agreement. Id. ¶¶ 2-3. Before accessing the online application, Narcio needed to create a unique login and password, provide a personal email address, answer a pre-employment prescreening questionnaire, and then e-sign the prescreening questionnaire by typing in her name. Id. ¶¶ 4-6. Narcio was then directed to the employment application where she had to provide her name, email address, physical address, telephone number, work history, and other personal information. Id. ¶ 7. Schoeberl stated that, based on her review of Narcio's application, Narcio provided the required information. Id.
Schoeberl further stated that, after completing the application, Narcio was directed to a screen that contained G2's Pre-Dispute Resolution Agreement and Pre-Employment Agreement. Id. ¶ 8. Furthermore, Narcio was instructed to submit her e-signature to acknowledge and confirm her consent to the agreements by typing in her name, and failure to type her name would have prevented her from submitting her application. Id. Lastly, Schoeberl declared that the Pre-Dispute Resolution Agreement has been included in every application since 2017, and an applicant must sign the Pre-Dispute Resolution Agreement to submit their application. Id. ¶¶ 3, 9-10.
“The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., declares a ‘liberal federal policy favoring arbitration agreements.”' Lyster v. Ryan's Family Steak Houses, Inc., 239 F.3d 943, 945 (8th Cir. 2001) (quoting Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983)). When presented with a motion to compel arbitration, a court must “[1] determine whether a valid arbitration agreement exists between the parties and, [2] if so, whether the subject matter of the dispute falls within the scope of the arbitration clause.” Neb. Mach. Co. v. Cargotec Sols., LLC, 762 F.3d 737, 740 (8th Cir. 2014) (citation omitted).
Missouri law determines whether a valid arbitration agreement exists between Narcio and G2. Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726, 731 (8th Cir. 2009). Under Missouri law, “[t]he essential elements of any contract, including one for arbitration, are ‘offer, acceptance, and bargained for consideration.'” Baker v. Bristol Care, Inc., 450 S.W.3d 770, 774 (Mo. 2014) (citation omitted).
G2 bears the burden of proving the existence of a valid arbitration agreement. Baier v. Darden Rests., 420 S.W.3d 733, 737 (Mo.Ct.App. 2014). When a motion to compel is supported by materials outside the pleadings, as G2's motion is, then a court analyzes the motion under the summary judgment standard. City of Benkelman, Neb. v. Baseline Eng'g Corp., 867 F.3d 875, 881-82 (8th Cir. 2017). Thus, arbitration can only be compelled when the evidence, viewed in the light most favorable to Narcio, presents no genuine dispute of material fact. Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016). A dispute is genuine if a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). Consequently, G2 bears the burden of proving that a trier of fact could only reasonably find that the Pre-Dispute Resolution Agreement is valid and covers Narcio's claims. Ascentium Cap. LLC v. Littell, No. 2:20-CV-04215-NKL, 2022 WL 301685, at *1 (W.D. Mo. Feb. 1, 2022) (citing Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015)); see also 10A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ § 2727.1 Grounds for Summary Judgment-Burden on the Moving Party (4th ed. 2021) (collecting sources).
However, self-serving allegations or sworn testimony do not create a genuine issue of material fact. Young v. Hoogland Foods, LLC, No. 4:19 CV 456 CDP, 2020 WL 555106, at *2 (E.D. Mo. Feb. 4, 2020) (citing Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th Cir. 2002); City of Benkelman, 867 F.3d at 881-82); see also Gander Mountain Co. v. Cabela's, Inc., 540 F.3d 827, 831 (8th Cir. 2008) .
There is no dispute that, if the Pre-Dispute Resolution Agreement is valid, it covers Narcio's claims. However, Narcio argues that the Pre-Dispute Resolution Agreement is not valid and G2 waived its right to arbitration. The Court will address these arguments in turn.
G2 argues that Narcio accepted the Pre-Dispute Resolution Agreement by electronically signing said agreement. As stated above, G2 has supported that argument by providing the electronically signed agreement. G2 has also provided sworn testimony that the only way to complete an online application, which the Parties agree Narcio did, is to electronically sign it. Furthermore, G2 points out that the agreement was signed after the signer provided a plethora of personal information about Narcio, the veracity of which Narcio does not dispute. To G2, this evidence permits only one reasonable conclusion: that Narcio electronically signed the agreement. See Barclay v. ICON Health & Fitness Inc., No. 19-CV-2970 (ECT/DTS), 2020 WL 6083704, at *10 (D. Minn. Oct. 15, 2020) (...
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