UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) BLYDEN A. DAVIS, ) ) Plaintiff, ) ) v. ) Civ. Action No. 08-290 (EGS) ) JOSEPH J. MAGNOLIA, INC., ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Blyden A. Davis has filed discrimination and

retaliation claims against defendant Joseph J. Magnolia, Inc., his

former employer, pursuant to Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the District of

Columbia Human Rights Act (“DCHRA”),

et seq.

After conducting limited discovery, the parties filed cross-

motions for summary judgment on the question of whether they

entered a binding agreement to arbitrate plaintiff’s claims. Upon

consideration of the motions, the responses and replies thereto,

the applicable law, and the entire record, and for the reasons

stated herein, the Court GRANTS plaintiff’s motion for summary

judgment on the issue of arbitration and DENIES defendant’s cross-

motion for summary judgment and dismissal pursuant to the Federal

Arbitration Act (“FAA”).

1 I. BACKGROUND

Plaintiff, an African-American male, was employed as an

equipment operator by defendant, a for-profit Maryland corporation

headquartered in the District of Columbia. Compl. ¶¶ 2, 12. He

began his employment with defendant in March 2005 and worked

continuously for the company through his termination in May 2006.

Compl. ¶ 12. Plaintiff alleges that in July 2005, he heard his

Caucasian supervisor refer to him as a “Nigger.” Compl. ¶ 13. On

or about October 17, 2005, he complained to defendant’s human

resources office about the alleged incident and the hostile work

environment he believed he was being subjected to based on his

race. Compl. ¶ 14. Approximately one week later, plaintiff was

transferred to work under a different supervisor. Compl. ¶ 15.

Around January 6, 2006, plaintiff filed a complaint with the

District of Columbia Office of Human Rights (“OHR”) alleging

discrimination and retaliation. The complaint was cross-filed

with the U.S. Equal Employment Opportunity Commission (“EEOC”)

pursuant to a work-sharing agreement between those agencies.

Compl. ¶ 5. Plaintiff alleges that he was reprimanded and issued

warnings by defendant for unfounded reasons as a result of the

complaints he made to defendant’s human resources office and the

OHR. Compl. ¶ 17. Defendant admits that plaintiff was

reprimanded, but maintains that the warnings were performance-

related. Answer at 7.

2 Around April 20, 2006, plaintiff was summoned at the end of

the workday to collect his paycheck and sign a two-page document

titled “Receipt and Acknowledgment of The Magnolia Companies

Employment Benefits and Guidelines Manual” (“Form”). Mem. P. & A.

Supp. Pl.’s Mot. Summ. J. (“Pl.’s Mem.”) at 2. The arbitration

policy was referenced on the first page of the Form only, and

plaintiff claims that he was only shown the second page. See

Pl.’s Mem. at 3; Def.’s Mem. Supp. Summ. J. & Dismissal (“Def.’s

Mem.”) at Ex. 1. Nevertheless, plaintiff does not dispute that he

did sign the Form. Def.’s Mem. at Ex. 2; Reply Br. Further Supp.

Def.’s Mot. Summ. J. & Dismissal (“Def.’s Reply”) at 7.

Plaintiff alleges that human resources refused to release his

paycheck unless he immediately signed the Form. Pl.’s Opp’n

Def.’s Mot. Dismiss at Ex. 1 (“Davis Aff.”) ¶ 5; Pl.’s Mem. at 2.

Defendant’s human resources director and manager both state,

however, that they did not overhear their assistant, who

distributed the paychecks, demand a signature in return for the

paycheck and that plaintiff did not approach them to complain

about a withheld paycheck. Def.’s Mem. at Ex. 5 (“Tormo Aff.”) ¶

10; Def.’s Mem. at Ex. 7 (“Woldemichael Aff.”) ¶ 10.

Plaintiff contends, and defendant does not dispute, that on

all other occasions he received his paycheck at the beginning of

the day. Davis Aff. ¶ 11. Defendant asserts the late paycheck

distribution was timed to coincide with the distribution of the

3 revised Employee Manual (“Manual”) for administrative efficiency.

Tormo Aff. ¶ 5; Woldemichael Aff. ¶ 4. Moreover, defendant

asserts that, upon request, employees were given additional time

to review the Manual before signing the Form. Tormo Aff. ¶¶ 6-7;

Woldemichael Aff. ¶¶ 5-6. In support of this assertion, defendant

points to evidence of one employee who requested and received

additional time.1 Tormo Aff. ¶ 8; Woldemichael Aff. ¶ 7.

Around May 4, 2006, two weeks after plaintiff signed the

Form, defendant terminated plaintiff’s employment. Davis Aff. ¶

12. Plaintiff subsequently supplemented his OHR complaint to

include an additional retaliation claim based on his termination.

. In December 2006, the OHR mailed a Letter of

Determination to plaintiff dismissing his claims, and the EEOC

adopted the OHR’s decision. Compl. ¶¶ 7, 9.

On February 20, 2008, plaintiff filed a three-count complaint

in this Court alleging violations of Title VII and the DCHRA.

Defendant filed a motion to dismiss the complaint pursuant to the

FAA, which the Court denied on the basis that plaintiff was

entitled to some discovery on the issue of whether a binding

arbitration agreement exists. The parties have conducted that

1 Defendant does not indicate whether this employee’s paycheck was withheld, but the employee apparently took approximately one month to return the signed Form. See Woldemichael Aff. ¶ 7.

4 discovery and filed cross-motions for summary judgment.2 Those

cross-motions are now ripe for decision by this Court.

II. LEGAL FRAMEWORK

A. The FAA

The FAA provides that

[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contractor transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

. The FAA’s purpose was to “reverse the longstanding

judicial hostility to arbitration agreements that had existed at

English common law and had been adopted by American courts, and to

place arbitration agreements upon the same footing as other

contracts.” Gilmer v. Interstate/Johnson Lane Corp.,

(1991). As such, public policy favors arbitration. See EEOC

2 Plaintiff objects to what he describes as defendant’s late-filed opposition to plaintiff’s motion for summary judgment, and urges the Court to disregard any of the arguments advanced in that filing. See Pl.’s Combined Mem. Opp’n Def.’s Mot. Summ. J. & Reply (“Pl.’s Combined Mem.”) at 2 n.1. In addition, plaintiff points to defendant’s failure to file a separate statement of material facts as required by Local Civil Rule 7 and Federal Rule of Civil Procedure 56.1. The Court recognizes that - contrary to the briefing schedule put in place by the Court, which required defendant to submit a combined cross-motion and opposition to plaintiff’s motion - defendant filed its opposition and cross-motion separately. Because defendant’s opposition was filed through the electronic case filing system only ten minutes after midnight on the date its filing was due, the Court will overlook this delay. The Court will also reluctantly excuse defendant’s noncompliance with the briefing schedule ordered by the Court and its failure to attach a separate statement of material facts in dispute. Defendant is cautioned, however, that future failures to comply with the rules and orders of this Court will not be tolerated.

5 v. Waffle House, Inc.,

(2002). Employment

contracts, moreover, are covered under the FAA. Circuit City

Stores, Inc. v. Adams,

(2001). The FAA,

however, “does not operate without regard to the wishes of the

contracting parties.” Mastrobuono v. Shearson Lehman Hutton,

Inc.,

(1995). To the contrary, because

“[a]rbitration under the Act is a matter of consent, not

coercion,” it is well-established that “the FAA does not require

parties to arbitrate when they have not agreed to do so.” Volt

Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior

Univ.,

(1989).

B. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett,

(1986);

Waterhouse v. District of Columbia,

(D.C. Cir.

2002). In determining whether a genuine issue of material fact

exists, the court must view all facts in the light most favorable

to the non-moving party. See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp.,

(1986). Likewise, in ruling

on cross-motions for summary judgment, the court shall grant

summary judgment only if one of the moving parties is entitled to

6 judgment as a matter of law upon material facts that are not

genuinely disputed. See Rhoads v. McFerran,

(2d

Cir. 1975).

III. DISCUSSION

The parties agree that Title VII claims are a legitimate

matter for arbitration, but dispute whether a valid agreement to

arbitrate exists between them and whether the existence of such an

agreement is more appropriately ascertained by a court or

arbitrator. In order to resolve these questions, the Court must

address whether (1) a judicial or arbitral forum is appropriate

for resolving the present dispute, (2) the agreement should apply

retroactively to claims plaintiff raised with the OHR before he

signed the Form, and (3) there was consideration for the agreement

to arbitrate.3

A. The Proper Forum

As a preliminary matter, defendant argues that an arbitrator,

not this Court, must resolve plaintiff’s claim that there is no

enforceable arbitration agreement. Defendant cites Buckeye Check

Cashing, Inc. v. Cardegna,

(2006), for the

proposition that when a party challenges the validity of the

entire contract, rather than an arbitration provision

specifically, that challenge must be heard by an arbitrator. See

3 Plaintiff also argues that the agreement was either unconscionable or the result of economic duress. But because the Court concludes that the arbitration provision is unenforceable for other reasons, it declines to address this issue.

7 Def.’s Mem. Opp’n Pl.’s Mot. Summ. J. (“Def.’s Opp’n”) at 6. In

Buckeye, the petitioner asserted that a contract, signed on each

occasion that he had cashed a check with respondent and which

included an arbitration provision, was illegal because of usurious

charges.

. Relying on earlier cases addressing

the body of federal substantive law governing arbitration, the

Court held that “a challenge to the validity of the contract as a

whole, and not specifically to the arbitration clause, must go to

the arbitrator.”

; see also Qwest Commc’ns Corp. v.

Ansari, No. 05-1836,

, at *3 (D.D.C. Jan. 23, 2007)

(holding that arbitration was required where the contract as a

whole, not the arbitration clause, was questioned).

Plaintiff distinguishes Buckeye and Qwest by arguing that he

is challenging both the Form and Manual as a whole and the

specific language of the arbitration policy. Pl.’s Combined Mem.

Opp’n Def.’s Mot. Summ. J. & Reply (“Pl.’s Combined Mem.”) at 7.

Furthermore, plaintiff asserts that defendant “ignores the

hundreds, if not thousands, of federal cases in this circuit and

others, which decide whether a dispute must be arbitrated.” Pl.’s

Combined Mem. at 7; see, e.g., Howsam v. Dean Witter Reynolds,

Inc.,

(2002) (“[A] gateway dispute about whether

the parties are bound by a given arbitration clause raises a

‘question of arbitrability’ for a court to decide.” (citation

omitted)); First Options of Chicago, Inc. v. Kaplan,

,

8 944 (1995) (“Courts should not assume that the parties agreed to

arbitrate arbitrability unless there is ‘clea[r] and

unmistakabl[e]’ evidence that they did so.” (alterations in

original) (quoting AT&T Techs., Inc. v. Commc’ns Workers of Am.,

(1986)))); AT&T Techs., 475 U.S. at 649

(explaining, in the context of a collective bargaining agreement,

that “the question of arbitrability . . . is undeniably an issue

for judicial determination. Unless the parties clearly and

unmistakably provide otherwise, the question of whether the

parties agreed to arbitrate is to be decided by the court, not the

arbitrator.”); Nur v. K.F.C., USA, Inc.,

(D.D.C. 2001) (noting that before ruling on a motion to dismiss,

the court had to determine whether parties entered into a binding

arbitration agreement).

The cases cited above demonstrate that disagreements between

parties over whether they intended particular issues to be

arbitrated – and whether they are bound by an arbitration clause

at all – are questions for judicial determination. This Court,

not an arbitrator, must resolve whether there was a meeting of the

minds with respect to arbitration of plaintiff’s discrimination

claims.

B. Retroactive Application of the Arbitration Policy

Plaintiff contends that he should not be obligated to

arbitrate the hostile work environment claim he filed with the OHR

9 before he signed the Form. Pl.’s Mem. at 9. Relying on Bailey v.

Federal National Mortgage Association,

(D.C.

Cir. 2000), plaintiff maintains that he “clearly signal[ed]” his

rejection of arbitration and put defendant “on notice” of his

preference for a judicial forum. Pl.’s Mem. at 9 (quoting Bailey,

); see

(affirming the district

court’s factual finding that the parties never contractually

agreed to arbitrate where the employee filed his claims with the

EEOC before the execution of the arbitration agreement).

Moreover, plaintiff argues that it would be inequitable to expect

him to have understood that the Form would impact his rights

related to a pending matter. Id. at 10.

Defendant does not directly address the reasonableness of

applying the arbitration policy retroactively, nor does it respond

to plaintiff’s claim that the decision to file his complaint with

the OHR constituted a rejection of defendant’s contract terms.

Defendant does, however, distinguish Bailey by pointing out that

the employee in that case, in contrast to plaintiff, never

executed a written agreement with his employer to arbitrate.

Def.’s Reply at 5; see Bailey,

.

Under District of Columbia law, “the party asserting the

existence of the contract has the burden of proving its existence”

by showing that there was a meeting of the minds as to all

material respects. Shelton v. Ritz Carlton Hotel Co.,

Supp. 2d 74, 79 (D.D.C. 2008) (citing Bailey,

).

Neither party cited the recent decision in Shelton, but this Court

nevertheless finds its reasoning persuasive as applied to the

present facts. In Shelton, the court considered whether an

arbitration clause in an employment agreement signed in June 2005

applied to a discrimination claim arising out of an incident that

occurred the previous month. Id. at 79-80. The Shelton court

viewed with skepticism the employer’s attempt to apply the

arbitration clause retroactively, finding no language in the

employment agreement that indicated intent to enforce the

arbitration clause in this manner. Id. As a result, the court

held that arbitration was enforceable only with respect to claims

arising after the execution of the agreement. Id.

As in Shelton, neither the Manual nor the Form contain any

language expressing an intent to apply the arbitration policy to

past claims. Likewise, plaintiff’s initial discrimination claim,

though not his retaliatory termination claim, preceded the

execution of the revised Manual containing the new arbitration

policy. The alleged incidents that gave rise to the parties’

dispute in this case, moreover, are what prompted plaintiff to

file a claim with the OHR four months before he signed the Form.

As such, the principle against retroactive application articulated

in Shelton applies with even greater force in the present case.

11 Defendant cites no case in support of the proposition that

the arbitration agreement should be applied retroactively, and the

legal principles discussed above support the contrary proposition.

See, e.g., First Options,

(affirming “the

principle that a party can be forced to arbitrate only those

issues it specifically has agreed to submit to arbitration”);

Shelton, 550 F. Supp. 2d at 79-80. For these reasons, this Court

concludes that the arbitration clause is unenforceable as to

plaintiff’s claims that arose prior to the signing of the Form on

April 20, 2006. As the next section demonstrates, however, the

arbitration provision is unenforceable as claims that were filed

after that date as well.

C. Consideration

Plaintiff argues that he is not required to arbitrate any of

the claims raised in his complaint because the Form and Manual

contain conflicting language that renders defendant’s promise to

arbitrate illusory and the arbitration provision void for lack of

consideration. Pl.’s Mem. at 4-7; Pl.’s Combined Mem. at 5-6.

Defendant, however, responds that its mutual agreement to

arbitrate, pay all costs, and comply with the arbitration policy

constitutes sufficient consideration to support the agreement.4

4 Only defendant’s final argument merits any extended discussion. First, the Court rejects defendant’s contention that plaintiff has not responded to, and thus has conceded, the argument that defendant’s promise to participate in arbitration and abide by its arbitration policy provided consideration. See Def.’s Reply at 1. Plaintiff devotes significant space to arguing that this promise to arbitrate was illusory, and defendant’s assertion that the argument is conceded is therefore wholly without merit. The Court

12 Def.’s Mem. at 3; Def.’s Reply at 3-4. The Court agrees with

plaintiff.

A contract lacks consideration when one party’s promise is

illusory, and a promise is illusory when performance of that

promise is optional. See Restatement (Second) of Contracts § 77

(1981). Defendant notes that mutual agreements to arbitrate are

not illusory; rather, they are “independently sufficient forms of

consideration.” Sapiro v. Verisign,

(D.D.C. 2004) (citing Morrison v. Circuit City Stores, Inc.,

(6th Cir. 2003)). The essential question here is

whether the language of defendant’s Form and Manual created a

mutual agreement or permitted optional performance by defendant.

The Form signed by plaintiff explicitly states under the

heading “Arbitration,” that “I understand that Magnolia and I

entered into an agreement to abide by this policy.” Def.’s Mem.

at Ex. 1. Additionally, the Manual provides:

also rejects defendant’s position – articulated in both its Manual and its briefing on the pending motions - that its commitment to pay all costs of arbitration supplies consideration for the arbitration policy. Plaintiff argued in his opening brief that defendant was already obligated by law to pay all costs of arbitration, a point that defendant did not rebut. Indeed, the D.C. Circuit has made clear that as a matter of law, defendant was under a pre-existing duty to pay the costs of arbitration. See Cole v. Burns Int’l Sec. Servs.,

(D.C. Cir. 1997) (holding that an employer cannot require an employee to pay all or part of an arbitrator’s fees through an arbitration provision). Complying with this legal obligation does not supply consideration. Finally, the Court emphasizes that defendant does not contend that plaintiff’s employment, which was terminated two weeks after he acknowledged receipt of the Manual, served as consideration for the agreement to arbitrate. Accordingly, the only question before the Court is whether defendant’s alleged promise to be bound by the arbitration constitutes consideration to support the agreement.

13 “Magnolia reciprocally and in consideration of same will initiate or participate in arbitration . . . .”

* * * *

“Magnolia has agreed . . . to be bound by the arbitration procedure set forth in this Arbitration Policy.”

* * * *

“Unlike the other policies and procedures in this Employee Handbook, this Arbitration Policy is a legal agreement.”

* * * *

“Except for the Arbitration Policy, the statements and language in this Employee Handbook are not intended to create . . . a contract between the company and any of its employees.”

Def.’s Mem. at Exs. 3-4.

Defendant argues that because the disclaimers clearly exclude

the arbitration policy and defendant cannot unilaterally change or

cancel its arbitration policy, as a matter of law, the agreement

to arbitrate is not illusory. Def.’s Opp’n at 5-6; Def.’s Reply

at 1-2. Plaintiff, in turn, contends that defendant’s disclaimers

in the Form and Manual constitute an “escape route” by which

defendant’s agreement to abide by its arbitration policy is

rendered illusory. Pl.’s Mem. at 5; Pl.’s Combined Mem. at 3. In

particular, plaintiff points to two provisions:

“I understand that the policies and benefits described in it are subject to change at the sole discretion of Magnolia at any time.”

* * * *

14 “[T]he policies contained in this employee handbook . . . are [not] intended to create a contract of employment or a warranty of benefits. In addition, circumstances will obviously require that policies, practices, and benefits described in this handbook periodically change. As such changes occur, updated pages of this Employee Handbook will be distributed to you.”

Def.’s Mem. at Exs. 1, 3.

Plaintiff cites numerous cases from other circuits holding

that a disclaimer in an employee manual renders an arbitration

provision unenforceable, but defendant effectively distinguishes

most of those cases on the facts. Compare Pl.’s Mem. at 4-8, with

Def.’s Reply at 4-6. The case most analogous to the present one

is Diaz v. Arapahoe (Burt) Ford, Inc.,

, 1193-

94 (D. Colo. 1999). In Diaz, an employer sought to enforce an

arbitration provision in its employee manual based on the

employee’s signature on an “acknowledgment and receipt” form. See

. The arbitration provision included a sentence that

it “does not constitute an employment agreement . . . and does not

make any other provision of the Employee Manual contractual or

otherwise legally enforceable.”

(alteration and

emphasis in original). The court concluded that the “disclaimer

in the handbook that nothing other than the arbitration provision

is ‘legally enforceable’ [was] fatal to the defendant’s position,”

because an employer should not have the power to select which

representations in its manual an employee’s “acknowledgment and

receipt” will make binding.

15 Defendant relies on Lumuenemo v. Citigroup, Inc., No. 08-830,

, at *1 (D. Colo. Feb. 12, 2009), in which another

judge on the same court rejected the Diaz court’s reasoning.

. In Lumuenemo, the court held that an employer could

include in an employee manual a subset of policies not subject to

unilateral revocation or modification that would be enforceable.

See

. Citing Tenth Circuit caselaw, the Lumuenemo

court acknowledged that an arbitration agreement allowing one

party the unfettered right to alter the arbitration agreement’s

existence or its scope would render that agreement illusory.

. The court reasoned, however, that an arbitration

agreement permitting the drafting party to modify the agreement

only under certain restrictions might not be illusory.

Importantly, in Lumuenemo, the court held that the arbitration

agreement in that case was not illusory because of the employer’s

self-imposed restrictions incorporated into the contract: a

thirty-day notice period before the arbitration provision would

take effect and the explicit commitment that the arbitration

provision applied prospectively only. See

Defendant’s reliance on Lumuenemo, therefore, is misplaced.

Defendant asserts that its disclaimers clearly indicate that

defendant is bound by the arbitration policy. But unlike the

employer in Lumuenemo, it is far from clear that defendant lacks

the power under the terms of the Form and Manual to alter its

16 arbitration policy. To the contrary, the Manual states that

policies therein may “periodically change,” and that those changes

may occur “at the sole discretion of Magnolia.” Def.’s Mem. at

Exs. 1, 3. The Manual also provides no mention of a notice period

or other safeguards that in other cases have allowed disclaimers

to exist without rendering the agreement illusory. See Lumuenemo,

, at *5 (citing cases).

For these reasons, the Court concludes that conflicting

language in the Manual makes defendant’s performance optional.

Cf. Cole v. Burns Int’l Sec. Servs.,

(D.C.

Cir. 1997) (explaining that close questions in the interpretation

of contract provisions are to be resolved against the drafter).

And because no other form of consideration supports the agreement

to arbitrate, the purported agreement to arbitrate is

unenforceable for lack of consideration.

IV. CONCLUSION

For the reasons set forth above, plaintiff’s motion for

summary judgment is GRANTED. Defendant’s motion for summary

judgment and dismissal pursuant to the FAA is DENIED. An

appropriate Order accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan United States District Judge July 31, 2009

17