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Moss v. Brock Services, LLC

United States District Court, D. Maine

August 13, 2019

ADRIAN MOSS, Plaintiff,
v.
BROCK SERVICES, LLC, Defendant.

          ORDER ON MOTION TO COMPEL ARBITRATION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         A former employer moves to compel arbitration in regard to a former employee's lawsuit asserting claims under the Civil Rights Act of 1964, the Civil Rights Act of 1991, and the Maine Human Rights Act. Concluding the parties clearly and unmistakably delegated the gateway issue of the agreement's validity to the arbitrator, and that the defendant has not waived its right to compel arbitration, the Court grants the motion but stays this case pending the results of the arbitration.

         I. BACKGROUND

         A. Procedural History

         On February 22, 2019, Adrian Moss filed a complaint against Brock Services, LLC (Brock Services) asserting claims under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981, and the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4633 et seq. Compl. (ECF No. 1). On April 11, 2019, Mr. Moss moved for an entry of default against Brock Services, which was granted the next day. Pl.'s Mot. for Entry of Default (ECF No. 6); Order Granting Mot. for Entry of Default (ECF No. 7). On April 22, 2019, Brock Services moved to set aside the entry of default and requested additional time to answer or otherwise respond to Mr. Moss's complaint. Def.'s Mot. to Set Aside Default J. and Mot. for Additional Time to Answer or Otherwise Respond to Pl.'s Compl. (ECF No. 8).[1] On May 8, 2019, Mr. Moss consented to Brock Services' motion to set aside the entry of default and for additional time to respond to his Complaint. Pl.'s Resp. Consenting to Def.'s Mots. to Set Aside Default and for Additional Time to Answer or Respond to Compl. (ECF No. 9). On May 9, 2019, the Court granted Brock Services' motion. Order Granting Mot. to Set Aside Default J. (ECF No. 10).

         On May 30, 2019, Brock Services filed a motion to compel arbitration and to dismiss the lawsuit. Def.'s Mot. to Compel Arbitration (ECF No. 13) (Def.'s Mot.). On June 20, 2019, Mr. Moss filed an opposition to Brock Services' motion to compel arbitration and to dismiss the lawsuit. Pl.'s Resp. Opposing Def.'s Mot. to Compel Arbitration and Dismiss or Stay Action (ECF No. 16) (Pl.'s Opp'n). On July 3, 2019, Brock Service filed a reply. Def.'s Reply in Support of its Mot. to Compel Arbitration (ECF No. 17) (Def.'s Reply). On July 10, 2019, Mr. Moss requested the Court hold oral argument on Brock Services' motion to compel arbitration, which the Court granted the same day. Pl.'s Req. for Oral Arg. (ECF No. 18); Order (ECF No. 19). On July 26, 2019, the Court held oral argument in this case along with oral argument for a parallel lawsuit, Clough v. Brock Services, LLC, 2:19-cv-00050-JAW. Min. Entry. (ECF No. 23).

         B. Factual Background[2]

         Mr. Moss is a resident of Winter Haven, in Polk County, Florida. Compl. ¶ 3. Mr. Moss is African American and black. Id. ¶ 16. Brock Services is a limited liability company that is “organized under the laws of the State of Texas[.]” Id. ¶ 4. Brock Services is “registered with the Maine Secretary of State, and does business in industrial services in Maine, with an office in Portland, Cumberland County, Maine.” Id. From about August 2010 to July 2015, and from July 2016 to July 2017, Mr. Moss was employed at Brock Services as a scaffold builder. Id. ¶ 17.

         1. August 2010 to July 2015

         While employed at Brock Services, Mr. Moss “was continually subjected to racially demeaning comments and taunts by . . . supervisors, foremen and co-workers.” Id. ¶ 18. Mr. Moss reported these comments and taunts to Brock Services' Operations Manager, but no action was taken. Id. ¶¶ 29-33. As a result of these incidents and the inaction on the part of management, in June 2015, Mr. Moss requested that he be transferred to Brock Services' operations in Florida. Id. ¶ 34. In July 2015, Mr. Moss transferred to Florida. Id. ¶ 35. In October 2015, Brock Services terminated Mr. Moss's employment. Id. ¶ 37.

         2. July 2016 to July 2017

         In July 2016, Mr. Moss moved back to Maine, reapplied, and was hired back by Brock Services. Id. ¶ 38; Def.'s Mot., Attach. 1, Aff. of Amy Beck, ¶ 4 (ECF No. 13-1) (Beck Aff.). As a condition of employment, Mr. Moss signed Brock Services' Dispute Resolution Policy on July 27, 2016. Beck Aff. ¶ 5. 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. 13-2) (Arbitration Agreement) (emphasis added). The Arbitration Agreement also states:

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).

         On November 29, 2016, Mr. Moss signed an Employment Agreement as part of his employment with Brock Services. Pl.'s Opp'n, Attach. 3, Agreement for Full Time Employees (ECF No. 16-3) (Employment Agreement). The Employment Agreement states:

The Company has hired the Employee as a Full Time Employee, either on, or prior to, the effective date of this Agreement. It is expressly understood that this Agreement governs the terms and conditions of wage and benefit payments of the Employee. This Agreement is not a guarantee of continued employment. The terms and conditions of the Employee's employment are as follows . . ..

Id. (emphasis added). The Employment Agreement further provides,

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.

Id. ¶ 14 (emphasis added).

         Once back at Brock Services, Mr. Moss's “supervisors, and co-workers repeatedly and continually made racial comments and slurs in Mr. Moss's presence.” Id. ¶ 39. Mr. Moss reported this conduct to the Brock Services' Operations Manager in February 2017. Id. ¶ 47. On March 22, 2017, the Brock Services' Operation Manager “sent an e-mail to supervisors, among other things, relaying a concern about not treating employees in a ‘respectful manner.'” Id. ¶ 49. Mr. Moss continued to endure racial comments and belittling. Id. ¶¶ 50-53. In June 2017, Mr. Moss informed Brock Services that he wanted to leave its Maine operation. Id. ¶ 55. Mr. Moss sent Brock Services' Operations Manager a message explaining why he wanted to transfer and met with Brock Service's Operations Manager and expressed his concerns and frustrations. Id. ¶¶ 58-59. Mr. Moss told “Brock [Services'] Operations Manager that he was so frustrated and angry that he was about to lay his hand on these people who were making racist comments.” Id. ΒΆ 59. Brock ...


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