Scott v. Burns Intern. Sec. Services, Inc., No. Civ. 99-00925 ACK.

• Decision Date: 11 April 2001
• Docket Number: No. Civ. 99-00925 ACK.
• Citation: 165 F.Supp.2d 1133
• Parties: David I. SCOTT, Plaintiff, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., et al., Defendants.
• Court: Hawaii Supreme Court

Page 1133

165 F.Supp.2d 1133

David I. SCOTT, Plaintiff, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., et al., Defendants.

No. Civ. 99-00925 ACK.

United States District Court, D. Hawai`i.

April 11, 2001.

David I. Scott, Pearl City, HI, plaintiff pro se.

Dennis W. Potts, Honolulu, HI, Barry Bradley, Melinda Manley, Bradley & Gmelich Glendale, CA, for Borg Warner Protective Services dba Burns International Security Services, Inc., defendant.

ORDER DENYING PLAINTIFF'S MOTION TO DISMISS STIPULATION OF THE PARTIES TO STAY FEDERAL ACTION PENDING COMPLETION OF BINDING ARBITRATION AND GRANTING DEFENDANT'S MOTION TO CONFIRM ARBITRATION AWARD

KAY, District Judge.

BACKGROUND

This case arises out of the employment of David I. Scott ("Plaintiff") by Borg Warner Protective Services dba Burns International Security Services, Inc. ("Defendant"). Plaintiff was hired by Defendant on December 14, 1995. On December 19, 1995, Plaintiff signed a Pre-Dispute Resolution Agreement with Defendant. Plaintiff alleges that in September, 1997, he was constructively discharged by Defendant in violation of the Americans with Disabilities Act ("ADA").

On June 19, 1998 Plaintiff filed a formal complaint alleging employment discrimination under Title VII with the EEOC. Plaintiff was issued a Right to Sue Letter on September 30, 1999. Plaintiff filed the instant suit on December 30, 1999 alleging violations of Title VII, the Rehabilitation Act, the ADA, and H.R.S. § 378. Defendant was served with the Complaint on February 14, 2000. On April 14, 2000, the parties stipulated to a stay of the federal action pending completion of binding arbitration pursuant to a Pre-Dispute Resolution Agreement. The stipulation was approved by Order of the Court. On April 12, 2000, the parties jointly selected the Honorable Robert R. Devich to act as arbitrator. See Affidavit of Melinda Manley in Support of Motion to Confirm Arbitration Award, filed November 29, 2000. The arbitration hearing was set for October 11, 2000.

Five months later, on September 15, 2000, Plaintiff substituted himself pro se as counsel of record. On September 28, 2000, less than two weeks before the scheduled arbitration hearing, Plaintiff filed a Non-Hearing Motion to Lift Stay and a Motion to Stay Arbitration on the eve of the scheduled arbitration hearing. In his original Motion, Plaintiff argued that the attorney who signed and filed the stay was not representing him for purposes of this matter and therefore had no authority to sign the stipulation. Plaintiff additionally argued that the request for arbitration was untimely. Defendant filed an Objection to Plaintiff's Motions on October 4, 2000. On October 6, 2000, the Court denied Plaintiff's Motion to Lift Stay and Motion to Stay Arbitration ("October Order"). On the same day, Plaintiff filed a Motion for Reconsideration. The Court denied the Motion for Reconsideration on October 10, 2000. On October 10, 2000 Plaintiff filed a second Motion for Reconsideration which the Court denied the same day.

The Arbitration went forward on October 11, 2000 in front of the Honorable Robert Devich, Justice Retired. See Ex. A to Defendant's Motion to Confirm Arbitration Award (hereinafter "Arbitration Award"). Plaintiff appeared telephonically and informed Justice Devich that he would not appear for the arbitration. See Transcript of Arbitration Hearing, filed November 13, 2000 at 24-25 (hereinafter "Transcript"); Arbitration Award at 1. After hearing Defendant's offer of proof, Justice Devich found that Plaintiff could not make out a prima facie case under the ADA because he failed to show that he was disabled under the ADA, and failed to establish that he was able to perform the essential functions of his job with or without reasonable accommodation. See Arbitration Award at 2.

After the arbitration, on October 23, 2000 and October 30, 2000, Plaintiff filed Addendum to Memorandum in Support of Hearing Motion to Lift Stay apparently attempting to amend the second motion for reconsideration that the Court denied on October 10, 2000. As Plaintiff is pro se, and appeared to present new arguments in the amendments, the Court construed the amendments to be a third Motion for Reconsideration and directed Defendant to file an Opposition. Defendant filed an Opposition on November 9, 2000 and Plaintiff filed a Reply on November 17, 2000. The Court denied Plaintiff's third motion for reconsideration on January 4, 2001 ("January Order").

On November 29, 2000, Defendant filed a Motion to Confirm Arbitration Award and an Affidavit in support on the same day. On December 4, 2000, Plaintiff filed an Opposition to Defendant's Motion to Confirm Arbitration Award and a Motion to Dismiss Stipulation of the Parties to Stay Federal Action Pending completion of Binding Arbitration. On December 6, 2000, Plaintiff filed a Supplement to his Motion. On January 9, 2001, Defendant filed an Opposition. Plaintiff filed a Reply on January 29, 2001. A Hearing on the Motions was held February 1, 2001 at 10:00 a.m. at which time the Court requested the parties further brief the question of whether or not the Court had jurisdiction under the Federal Arbitration Act ("FAA") to stay the Federal Action. Upon reviewing the parties briefs, the Court stayed its decision pending the Supreme Court's ruling on Circuit City Stores Inc. v. Adams, 194 F.3d 1070 (9th Cir.1999) cert. granted, 529 U.S. 1129, 120 S.Ct. 2004, 146 L.Ed.2d 955 (May 22, 2000).

DISCUSSION

The Court will address both parties' Motions in this Order as the Motions are based on the same facts and argue the same points of law. The Court will first address Plaintiff's Motion to Dismiss the Stipulation.¹

I. MOTION TO DISMISS PARTIES' STIPULATION

The Court notes that while Plaintiff has framed his argument slightly differently this time around, in effect this is Plaintiff's fourth motion for reconsideration. As such it is an improper vehicle to present new arguments to this Court. See Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir.1985); Stein v. United Artists Corp., 691 F.2d 885, 898 (9th Cir.1982). Plaintiff ought to have presented all legal arguments in his original Motion to Lift Stay, however, as Plaintiff is pro se this Court will continue to grant him latitude in presenting his arguments.

In this most recent Motion, Plaintiff has narrowed his arguments to two; a) Plaintiff's attorney was required to have Plaintiff's written consent in order to stipulate to arbitration, and b) the Court cannot compel Plaintiff to arbitrate his claim under the Pre-Dispute Resolution Agreement. The Court reiterates that these arguments could have been and should have been raised in the original motion, and are not appropriate at this time. Moreover, the Court finds that the stipulation is binding upon Plaintiff and that in light of the recent decision of the Supreme Court in Circuit City Stores Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), the Pre-Dispute Resolution Agreement binds Plaintiff to arbitrate his claim.

A. THE EFFECT OF THE CIRCUIT CITY DECISION

In Circuit City the Supreme Court reversed the Ninth Circuit and held that the Federal Arbitration Act's (FAA) coverage provision includes employment contracts and the FAA's exemption provision is limited to contracts of employment of transportation workers. Therefore, the FAA is applicable to the Pre-Dispute Resolution Agreement ("PDRA") and the stipulation to stay the federal action pursuant to the PDRA at issue in this case. Accordingly, the Court had authority to stay the federal action pursuant to § 3 of the FAA in accordance with the parties stipulation. Additionally, the Circuit City decision brought into doubt the Ninth Circuit holding in Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir.1998) that compulsory agreements for arbitration of Title VII, and by analogy ADA, claims are unenforceable.

Just like the PDRA at issue here, the Dispute Resolution Agreement in Circuit City was a mandatory prerequisite to employment with Circuit City Stores and any employee who did not sign it would "no longer be eligible for employment at Circuit City." Circuit City, 194 F.3d at 1071. The Agreement stated that the employee agreed to settle:

"all previously unasserted claims, disputes or controversies arising out of or relating to my application or candidacy for employment, employment and/or cessation of employment with Circuit City, exclusively by final and binding arbitration before a neutral Arbitrator. By way of example only, such claims include claims under federal, state, and local statutory or common law, such as Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, including the amendments to the Civil Rights Act of 1991, the Americans with Disabilities Act, the law of contract and law of tort." (emphasis in original).

Id. at 1071 n. 1. In finding that under the FAA this provision could be enforced, the Supreme Court stated that "there are real benefits to the enforcement of arbitration provisions." Circuit City, 532 U.S. 105, 121 S.Ct. 1302, 1312-13, 149 L.Ed.2d 234 (2001). Further, although the underlying dispute was a state law claim of discrimination, the Supreme Court reiterated its findings in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) and stated that "the Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law." Id.

This explication of the holding of Gilmer runs contrary to the holding of the Ninth Circuit in Duffield. In Duffield the Ninth Circuit refused to extend the holding of Gilmer, that compulsory arbitration agreements could be enforced under the FAA, to include arbitration of claims arising...