United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, CHIEF JUDGE.
Court has for its consideration the Motion to Dismiss or Stay
and to Compel Arbitration (Doc. 13) filed by the defendants,
Shadow Mountain Behavioral Health System, LLC, Universal
Health Services, Inc., and UHS of Delaware, Inc., seeking to
compel arbitration of the claims asserted by plaintiff, Tarin
Keener, and to dismiss or stay the action pending
to the Complaint, plaintiff began employment as a Registered
Nurse with defendants in June 2014. (Doc. 4). On or around
June 4, 2014, plaintiff and defendants executed an
Alternative Resolution for Conflicts Agreement (the
“Agreement”), which requires submission to
arbitration of “any dispute arising out of or related
to Employee's employment with Shadow Mountain Behavioral
System or one of its affiliates, subsidiaries or parent
companies  or termination of employment and survives after
the employment relationship terminates.” (Doc 13 at 5).
The Agreement provides that “all such disputes [are] to
be resolved only by an arbitrator through final and binding
arbitration, ” according to the following pertinent
[T]his Agreement is intended to apply to the resolution of
disputes that otherwise would be resolved in a court of law
or before a forum other than arbitration. . . Such disputes
include without limitation disputes arising out of or
relating to interpretation or application of this Agreement.
[T]his Agreement also applies, without limitation to disputes
regarding the employment relationship, compensation, breaks,
and rest periods, termination, or harassment and claims
arising under . . . Americans With Disabilities Act . . .
Family Medical Leave Act . . . and state statues, if any,
addressing the same or similar subject matters, and all other
state statutory and common law claims . . .
All claims in arbitration are subject to the same statutes of
limitation that would apply in court. The party bringing the
claim must demand arbitration in writing and deliver the
written demand . . . to the other party within the applicable
statute of limitations period. . .
Arbitration is not a mandatory condition of employee's
employment at the Company, and therefore an Employee may
submit a form stating that the Employee wishes to opt out and
not be subject to this Agreement.
(Id. at 9-13).
was terminated on March 3, 2017. On May 26, 2017 plaintiff
issued a settlement demand to defendants. (Doc. 16-1).
Defendants responded to Plaintiff's demand on June 9,
2017, requesting plaintiff submit her claims to arbitration
pursuant to the Agreement. (Doc. 16 at 2). Plaintiff argues
that the Agreement should not apply to her claims because she
waived her right to demand arbitration and elected to proceed
to district court instead. Further, she contends
defendants' demand for arbitration is untimely and should
be denied. Plaintiff then “rejected Defendants [sic]
request and opted to pursue her claims in district court as
outlined in her demand.” (Id.) After
completing the administrative requirements for her
employment-related claims, plaintiff filed a complaint (Doc.
4) in this Court on September 21, 2018. Plaintiff alleges
claims of disability discrimination under the Americans with
Disabilities Act (ADA), Family and Medical Leave Act (FMLA)
interference, and retaliation. (Doc. 4, ¶¶ 13-35).
courts have “long recognized and enforced a liberal
federal policy favoring arbitration agreements.”
Dish Network L.L.C. v. Ray, 900 F.3d 1240, 1243
(10th Cir. 2018) (citing Howsam v. Dean Witter
Reynolds, 537 U.S. 79, 83 (2002)). Arbitration should be
compelled “unless it may be said with positive
assurance that the arbitration clause is not susceptible of
an interpretation that covers the asserted dispute.”
United Steel, Paper & Forestry, Rubber, Mfg., Energy,
Allied Indus. & Serv. Workers Int'l Union v. Phillips
66 Co., 839 F.3d 1198, 1204-05 (10th Cir. 2016) (quoting
United Steelworkers v. Warrior & Gulf Nav. Co.,
363 U.S. 574, 582-83, (1960)). “The question whether
the parties have submitted a particular dispute to
arbitration i.e. the ‘question of arbitrability' is
‘an issue for judicial determination [u]nless the
parties clearly and unmistakably provide otherwise.”
Howsam, 537 U.S. at 83 (quoting AT & T
Tech., Inc. v. Comms. Workers, 475 U.S. 643, 649 (1986))
(original emphasis omitted).
motion to compel arbitration calls for a two-step inquiry
regarding the arbitrability of the dispute. AT & T
Techs. Inc., 475 U.S. at 649. First, the Court must
determine whether there is a valid arbitration agreement.
Id. Plaintiff concedes that she executed the
arbitration agreement voluntarily and did not exercise her
option to opt out of the arbitration agreement. (Doc. 16 at
1). The FAA provides that written arbitration agreements
“shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the
revocation of any contract.” 9 U.S.C. § 2. The
Supreme Court has described the FAA as reflecting the
“fundamental principle that arbitration is a matter of
contract, ” and so an arbitration agreement is
enforceable “on equal footing with other
contracts.” Rent-A-Ctr., W., Inc. v. Jackson,
561 U.S. 63, 67 (2010). The final phrase of the FAA § 2,
often referred to as the “saving clause, ”
“permits agreements to arbitrate to be invalidated by
generally applicable contract defenses, such as fraud,
duress, or unconscionability, but not by defenses that apply
only to arbitration or that derive their meaning from the
fact that an agreement to arbitrate is at issue.”
AT & T Mobility LLC v. Concepcion, 563 U.S. 333,
339 (2011). In the present case, plaintiff has made no claim
and offered no evidence of a contract defense that would
invalidate the Agreement. In fact, plaintiff signed an
express acknowledgement of her understanding that she could
“opt-out” of the Agreement and the Agreement was
“not a mandatory condition of employment.” (Doc.
13 at 9).
second step in determining the arbitrability of a dispute
requires the Court to determine whether the particular
dispute falls within the scope of the Agreement. AT &
T Techs. Inc. 475 U.S. at 649. Neither party disputes
that plaintiff's claims “arise out of or relate
to her employment” and fall within the scope of the
Agreement. (Doc.13 at 10). According to the Agreement, the
parties agreed “to resolve any formal dispute through
arbitration instead of litigation.” (Doc. 13 at 9).