United States District Court, D. Maine
ORDER ON MOTION TO COMPEL ARBITRATION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
former employer moves to compel arbitration in regard to a
former employee's lawsuit asserting claims under the
Maine Whistleblowers' Protection Act and the Maine Human
Rights Act. At issue is whether the parties' prior
arbitration agreement was superseded by a subsequent
employment agreement. Concluding the parties delegated the
resolution of this gateway issue to the arbitrator and that
the defendant has not waived its right to compel arbitration,
the Court grants the motion to compel arbitration but stays
this case pending the results of the arbitration.
January 29, 2019, Matthew Clough filed a complaint against
Brock Services, LLC (Brock Services) asserting claims of
retaliation under the Maine Whistleblowers' Protection
Act (MWPA), 26 M.R.S. §§ 833 et seq., and
the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4633
et seq. Compl. (ECF No. 1). On March 29,
2019, Brock Services filed a motion to compel arbitration.
Def.'s Mot. to Compel Arbitration (ECF
No. 12) (Def's Mot.). On April 1, 2019, Mr.
Clough filed a response in opposition to Brock Services'
motion to compel arbitration. Pl.'s Opp'n to Mot.
Compel Arbitration (ECF No. 14). On April 15, 2019,
Brock Services filed its reply. Def.'s Reply in
Support of its Mot. to Compel Arbitration (ECF No. 15)
April 23, 2019, Mr. Clough filed a motion requesting the
Court hold oral argument on Brock Services' motion to
compel arbitration, which the Court granted on April 24,
2019. Mot. for Oral Argument (ECF No. 16);
Order (ECF No. 17). On July 26, 2019, the Court held
oral argument in this case along with a parallel case,
Moss v. Brock Services, 2:19-cv-00084-JAW. Min.
Entry (ECF No. 21).
Clough is a resident of Portland, Maine. Compl.
¶ 1. Brock Services is a Texas limited liability company
and is a subsidiary of the Brock Group, which is a Texas
corporation. Id. ¶ 2. Brock Services has a
branch located in Gorham, Maine. Id. Brock Services
“provides industrial services, including soft craft
services, labor support, and materials for capital projects,
maintenance, and facility turnarounds in a variety of
industries . . ..” Def.'s Mot., Attach. 1,
Aff. of Amy Beck, ¶ 6 (ECF No. 12-1) (Beck
2011, Mr. Clough was hired by Brock Services as a safety
coordinator. Compl. ¶ 6; Beck Aff.
¶ 3. Mr. Clough “met or exceeded performance
expectations, earned pay raises, and was promoted several
times, most recently to Operations Manager in 2014.”
Compl. ¶ 7. As part of Mr. Clough's
onboarding process with Brock Services, “he was
apprised of the Dispute Resolution Policy and as a condition
of his employment, [which] he signed . . . on August 10,
2011.” Beck Aff. ¶ 4. In relevant part,
the Dispute Resolution Policy states:
Each, every, any and all claims, disputes and/or
controversies now existing or later arising between or among
the Parties, or between or among the employees of The Brock
Group and any other person or entity constituting the Company
or a Company Customer, whether now known or unknown,
arising out of or related to employment or termination of
employment with The Brock Group shall be resolved only
through final and binding arbitration, pursuant to the
Federal Arbitration Act, 9 U.S.C. § 1, et seq., and not
by way of court or jury trial. Such claims, disputes,
and/or controversies, without limitation, include those
arising out of or relating to: all issues of arbitrability,
including but not limited to unconscionability and all
grounds as may exist at law or in equity for the revocation
of any contract, the interpretation or application of this
Dispute Resolution Policy . . ..
Def.'s Mot., Attach. 2, Dispute Resolution
Policy, ¶ 1 (ECF No. 12-2) (Arbitration
Agreement) (emphasis added). The Arbitration
Agreement further provides:
All Disputes shall be exclusively resolved by final and
binding arbitration exclusively conducted under the JAMS
Employment Arbitration Rules and Procedures (the
“Arbitration Rules”) in effect at the time of the
arbitration demand; provided however, any party may
require, by written notice, that non-binding mediation be
conducted in parallel with the arbitration demand process . .
Id. ¶ 3 (emphasis added).
Clough acknowledged receipt of the Brock Group's employee
handbook on August 11, 2011. Def.'s Mot.,
Attach. 4, Conditional Offer of Employment (ECF
12-4) (Acknowledgement of Receipt of Employee
Handbook); Def.'s Mot., Attach. 3,
Employee Handbook, at 5 (ECF No. 12-3).
Section 8.02 of the Employee Handbook states:
All employees of the Company shall be subject to the
Company's Dispute Resolution Policy for resolution of all
matters relating to the employee's employment with the
Company. This Dispute Resolution Policy shall be
mutually binding on the Company and the employee and is a
distinct and separate agreement from all other modifiable
Company policy provisions. The employee acknowledges that the
terms and conditions of the Dispute Resolution Policy has
been provided to the employee as a separate document either
through notice or as part of the employee's hiring
package. In addition, the employee may request a copy of this
policy at any time by contacting the Human Resources
The Dispute Resolution Policy is a binding agreement and
acceptance and/or continuation of employment with the Company
constitutes knowing and voluntary acceptance and agreement to
the terms and condition of the Dispute Resolution Policy. The
Company hereby advises the employee to consult with legal
counsel regarding the consequences of the Company's
Dispute Resolution Policy. The Dispute Resolution Policy does
not in any way alter the “at-will” status of the
Employee Handbook § 8.02 (emphasis added).
August 24, 2011, Mr. Clough signed an “Agreement for
Full-time Administrative Employee” with Brock Services.
Pl.'s Opp'n, Attach. 2, Agreement
for Full Time Administrative Employees, at 1
(ECF No. 14-2) (Employment Agreement). The Employee
Agreement does not contain an arbitration clause. See
Employment Agreement at 1-6. In paragraph
fourteen, the Employment Agreement states:
14. Miscellaneous. This Agreement constitutes the entire
agreement of the parties, and no amendments or additions to
the Agreement shall be binding unless in writing and signed
by both parties. It is expressly understood and agreed
that no oral representation, promise or condition, whether
made before or after the signing of this Agreement, shall be
binding upon any of the parties hereto. This Agreement
cancels and supersedes any prior oral or written agreement
between the parties pertaining to the subject matter
hereof. This Agreement shall be governed in all respects
by the laws of the State of Maine.
Employment Agreement ¶ 14 (emphases added).
Clough made various complaints and reports to Brock Services
from June 2016 to October 2017. Compl. ¶ 8. Mr.
Clough complained or reported the following:
a) Reports of wage and hour violations (failure to pay
employees for work-related travel costs) - first reported in
June or July of 2016 and again in September and October 2017;
b) Reports to Human Resources about Brock's violations of
the FMLA and Maine's drug-screening laws regarding a
subordinate employee “RC” - ...