Terrell v. TravelCenters of America

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE NAKESHIA TERRELL, 8 Plaintiff, v. C21-353 RAJ 10 TA OPERATING LLC d/b/a ORDER TRAVELCENTERS OF AMERICA, et al.

12 Defendants.

THIS MATTER comes before the Court on a Motion to Compel Arbitration and Stay Claims, docket no. 22, brought by Defendant TA Operating LLC d/b/a TravelCenters of America. Having reviewed the motion, to which Plaintiff Nakeshia Terrell did not file a response, the Court enters the following Order.

Background Defendant owns and operates over 275 travel centers/truck stops across the United States. Ratica Decl. at | 2 (docket no. 23). On July 1, 2020, Defendant hired Plaintiff as a store cashier. Ex. 1 to Ratica Decl. (docket no. 23-1 at 2). That same day, Plaintiff signed a Mutual Agreement to Resolve Disputes and Arbitrate Claims (“Agreement”).

ORDER - 1 || Id. (docket no. 23-1 at 3-9). The Agreement stated that an employee’s disagreement with || Defendant needed to follow specific grievance and arbitration procedures: 3 You and the Company may have disagreements during or following your employment with the Company. To simplify and reduce the cost of resolving 4 disputes that may arise that are not resolved in the ordinary course of your employment, the Company has adopted the following grievance and 5 arbitration procedures. It is a condition of your continued employment by the Company that you agree to be bound by the grievance and arbitration 6 procedures set forth below.

7 | Id. at 3. The Agreement further stated that these procedures applied to “any and all || disputes, claims or controversies arising out of your employment or the termination of || your employment which could be brought in a court” including claims brought under || Title VII of the Civil Rights Act of 1964. Id. The Agreement also contained a clause | specifying that the Federal Arbitration Act (“FAA”) governs it. Id. at 7. Finally, the || Agreement provided that “[a]ll challenges to the interpretation or enforceability of any || provision of this Agreement shall be brought before the arbitrator, and the arbitrator shall | rule on all questions regarding the interpretation and enforceability of this Agreement.”

15 | Id. at 6.

16 Plaintiff filed this action for employment discrimination under Title VII of the | Civil Rights Act of 1964 on March 15, 2021.' Although Plaintiffs’ operative complaint | is mostly blank, her Motion to Appoint Counsel accused her employer of failing to treat || her with “dignity and respect” because she is African American. Mot. to Appoint Although Plaintiffs original Complaint, docket no. 1-1, alleged claims under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990, her Amended Complaint, docket || no. 9, asserts only a claim under Title VII of the Civil Rights Act of 1964.

ORDER - 2 || Counsel (docket no. 5 at 5). That motion also alleged that some of her coworkers made || derogatory statements. Id. Defendant now moves to compel arbitration.

3 || Discussion 4 The Agreement explicitly states that the FAA governs it. Agreement (docket no. 23-1 at 7). Under the FAA, when deciding whether to compel arbitration courts || generally “must determine two ‘gateway’ issues: (1) whether there is an agreement to || arbitrate between the parties; and (2) whether the agreement covers the dispute.”

8 || Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). Parties, however, may || delegate these gateway issues to an arbitrator if they clearly and unmistakably provide for it. Id. “Clear and unmistakable evidence of an agreement to arbitrate arbitrability ‘might || include . . . a course of conduct demonstrating assent... or... an express agreement to | do so.”” Mohamed v. Uber Techs.. Inc., 848 F.3d 1201, 1208 (9th Cir. 2016) (quoting || Momot v. Mastro, 652 F.3d 982, 988 (9th Cir. 2011)). The Ninth Circuit has “held that || language ‘delegating to the arbitrators the authority to determine the validity or | application of any of the provisions of the arbitration clause constitutes an agreement to || arbitrate threshold issues concerning the arbitration agreement.’” Mohamed, 848 F.3d at 17 || 1208 (quoting Momot, 652 F.3d at 988).

18 Defendant asserts that the Agreement’s language that “[a]ll challenges to the || interpretation or enforceability of any provision of this Agreement shall be brought || before the arbitrator” constitutes clear and unmistakable evidence of an agreement to | arbitrate arbitrability. The Court agrees. The Ninth Circuit has held that similar language || constituted clear and unmistakable evidence that the parties delegated threshold ORDER - 3 | arbitrability questions to an arbitrator. See Mohamed, 848 F.3d at 1209; Momot, 652 || F.3d at 988. In Mohamed, the Ninth Circuit determined the parties had clearly and | unmistakably agreed to arbitrate arbitrability where their agreements “delegated to the || arbitrators the authority to decide issues relating to the ‘enforceability, revocability or || validity of the Arbitration Provision or any portion of the Arbitration Provision.’”

6 || Mohamed, 848 F.3d at 1209. Likewise, in this matter, the language in the Agreement || states that an arbitrator shall decide any challenges relating to its enforceability. As such, || the parties have clearly and unmistakably agreed to have an arbitrator decide any || threshold disputes on arbitrability.

10 Even if the parties had not delegated the gateway issues to an arbitrator, the Court || would still compel arbitration. First, there is an agreement to arbitrate between the | parties. Plaintiff signed the Agreement the day she began her employment with || Defendant and the Agreement states that any disagreements would be subject to the || grievance and arbitration procedures outlined in the Agreement. Second, the Agreement || covers the dispute in this matter. Based on the Amended Complaint and Motion to | Appoint Counsel, Plaintiff is asserting a claim for employment discrimination under || Title VII of the Civil Rights Act of 1964, The Agreement applies to “all disputes, claims || or controversies arising out of your employment or the termination of your employment | which could be brought in a court” and explicitly includes claims under Title VII of the || Civil Right Act of 1964. Agreement (docket no. 23-1 at 3). For these reasons, the Court || GRANTS Defendant’s Motion to Compel Arbitration and Stay Claims, docket no. 22.

ORDER - 4 || Conclusion 2 For the foregoing reasons, the Court ORDERS: 3 (1) Defendant’s Motion to Compel Arbitration and Stay Claims, docket no. 22, is GRANTED. Plaintiff's claims shall be ARBITRATED in the manner set forth in the || parties’ Agreement, docket no. 23-1. The Court STAYS the proceedings pending the || outcome of arbitration pursuant to 9 U.S.C. § 3. See Ekin v. Amazon Servs.. LLC, || No. C14-0244-JCC, 2015 WL 11233144, at *1 (W.D. Wash. Feb. 10, 2015) (noting that || the Ninth Circuit has “expressed a strong preference that arbitrable cases be stayed rather || than dismissed”); 10 (2) The parties are DIRECTED to file a Joint Status Report within fourteen | (14) days after the completion of arbitration or by June 30, 2022, whichever occurs || earlier; and 13 (3) The Clerk is directed to send a copy of this Order to all counsel of record.

14 IT IS SO ORDERED.

15 Dated this 18% of October, 2021.

17 Richard A. Jones United States District Jutige ORDER - 5