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Clough v. Brock Services, LLC

United States District Court, D. Maine

August 13, 2019




         A 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 At issue is whether the parties' prior arbitration agreement was superseded by a subsequent employment agreement.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.

         I. BACKGROUND

         A. Procedural History

         On 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) (Def.'s Reply).

         On 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).

         B. Factual Background[1]

         Matthew 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 Aff.).[2]

         In 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).

         Mr. 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 Department.
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 employment relationship.

Employee Handbook § 8.02 (emphasis added).

         On 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).

         Mr. 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” - ...

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