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Thick v. Dolgencorp of Texas, Inc.

United States District Court, E.D. Texas, Sherman Division

January 11, 2017

MICHELLE M. THICK
v.
DOLGENCORP OF TEXAS, INC.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant's Motion to Stay Pending Action and to Compel Arbitration (Dkt. #3). Having considered the pleadings, the Court finds the motion should be granted.

         BACKGROUND

         Plaintiff Michelle Thick (“Plaintiff”) worked for Defendant Dolgencorp of Texas, Inc. (“Dollar General”) from November 2014 until Dollar General terminated her employment on April 4, 2015. Plaintiff filed suit on September 20, 2016, alleging that Dollar General discriminated against her because of her disability in violation of the American with Disabilities Amendments Act of 2008 (Dkt. #1). Dollar General contends that Plaintiff's claims are subject to the Dollar General Employee Arbitration Agreement (the “Agreement”) and should be abated until the completion of arbitration. Plaintiff states that she “does not believe she ever viewed; was informed of; or was presented” the Agreement (Dkt. #4 at p. 5).

         The Agreement provides that Plaintiff agrees to participate in binding arbitration and that:

with the exception of certain excluded claims described below, any legal claims or disputes that you may have against Dollar General, its parent and subsidiary corporations, employees, officers and directors arising out of your employment with Dollar General or termination of employment with Dollar General (“Covered Claim” or “Covered Claims”) will be addressed in the manner described in this Agreement. You also understand that any Covered Claims that Dollar General may have against you related to your employment will be addressed in the manner described in this Agreement.

         Under the Agreement, Covered Claims include claims alleging violations of “state and federal laws prohibiting discrimination, harassment, and retaliation . . . claims for wrongful termination.” The Agreement further states that Plaintiff expressly waives the right to file a lawsuit in court against Dollar General asserting any Covered Claims.

         The Agreement contains an acknowledgment box including Plaintiff's name, the last four digits of her social security number, her initials and is dated November 13, 2014. The acknowledgment box is checked, and states “I agree to the terms of the Agreement. I understand and acknowledge that by checking this box, both Dollar General and I will be bound by the terms of this Agreement.” The Agreement also includes a box stating that Plaintiff may take up to thirty days to review and consider the Agreement and expressly opt out of the Agreement. This option in the Agreement was not selected.

         Dollar General's Human Resources Shared Services Supervisor, Lynne Poole, provided an affidavit stating that based on her records, on November 13, 2014, Plaintiff accepted the Agreement through the online Express Hiring System. In order to access the Agreement

Dollar General candidates, including Plaintiff, must enter their unique login identification number, which is their social security number . . . and their password, which is the month and day of their birth . . . The candidate must then immediately create a unique password containing up to sixteen (16) numbers. The candidate must then provide their telephone number and email address and must set up six (6) security question and answers to be used if a password reset is requested.

         Other than stating that she does not recall ever electronically acknowledging and agreeing to be bound or participate in the Agreement, Plaintiff has not produced evidence that she did not complete the Agreement.

         On October 13, 2016, Dollar General filed the pending motion to stay and compel arbitration (Dkt. #3). On December 31, Plaintiff filed a response (Dkt. #4). Dollar General replied on November 16, 2016 (Dkt. #7).

         LEGAL STANDARD

         “The Federal Arbitration Act (“FAA”) expresses a strong national policy favoring arbitration of disputes, and all doubts concerning the arbitrability of claims should be resolved in favor of arbitration.” Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 263 (5th Cir. 2004). The FAA, “leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration ...


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