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
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.
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.
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).
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
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.
August 2010 to July 2015
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.
July 2016 to July 2017
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
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).
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
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).
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. ¶ 59. Brock ...