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Harris v. TAP Worldwide, LLC.

California Court of Appeals, Second District, Fifth Division

June 22, 2016

DWAYNE HARRIS, Plaintiff and Respondent,
v.
TAP WORLDWIDE, LLC, et al., Defendants and Appellants.

         [CERTIFIED FOR PARTIAL PUBLICATION[*]]

         APPEAL from an order of the Superior Court of Los Angeles County, No. TC027966, William P. Berry, Judge.

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[Copyrighted Material Omitted]

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         COUNSEL

         Fernald Law Group, Rachel D. Stanger, Brandon C. Fernald and Gina McCoy for Defendants and Appellants.

         Cummings & Franck, Scott O. Cummings and Lee Franck for Plaintiff and Respondent.

         OPINION

         TURNER, P. J.

         I. INTRODUCTION

         Defendants, TAP Worldwide, LLC, Eddie Rivera and Alex Dominguez, appeal from an order denying their motion to compel arbitration. Plaintiff, Dwayne Harris, filed a complaint against defendants alleging wrongful termination and violations of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) and the Labor Code. Defendants moved to compel arbitration relying upon an arbitration agreement which plaintiff

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acknowledged receiving. Plaintiff asserted there was no arbitration agreement and alternatively argued any agreement was unconscionable. Defendants’ motion to compel arbitration was denied.

         Defendants assert the trial court erred because the arbitration agreement attached as Appendix A to the employee handbook (Employee Handbook is enforceable. The undisputed facts demonstrate: there is a valid arbitration agreement; the agreement to arbitrate is not illusory; and, as discussed in the unpublished part of our opinion, the arbitration agreement is not unconscionable to the degree that it is unenforceable. Accordingly, we reverse the order under review.

         II. BACKGROUND

         A. Plaintiff’s Complaint

         On October 10, 2014, plaintiff filed his complaint. Plaintiff alleges he was employed by TAP Worldwide, LLC which utilizes the fictitious business name of 4 Wheel Parts Performance Center at a warehouse located in Compton, California. Mr. Rivera was the warehouse manager for TAP Worldwide, LLC. Mr. Dominguez was the lead for the department and a supervisor and manager for TAP Worldwide, LLC. Plaintiff is African-American.

         Plaintiff alleges racial discrimination, harassment and retaliation towards himself and other African-American employees by defendants. Plaintiff alleges he and other employees were denied meal and rest breaks and overtime pay and other Labor Code violations. Plaintiff is married and requested leave under the Moore-Brown-Roberti Family Rights Act (Gov. Code, §§ 12945.1, 19702.3) due to the serious health condition of a family member. TAP Worldwide, LLC denied him his Moore-Brown-Roberti Family Rights Act rights and his requested time off. Plaintiff alleges Mr. Dominguez used a forklift in an unsafe manner. Mr. Dominguez pushed plaintiff with a forklift. This occurred while plaintiff was operating another unidentified vehicle. Plaintiff reported these health and safety issues to TAP Worldwide, LLC. TAP Worldwide, LLC terminated plaintiff’s employment on December 18, 2013.

         Plaintiff brought 12 causes of action: racial discrimination in violation of the California Fair Employment and Housing Act; marital status discrimination and retaliation in violation of the California Fair Employment and Housing Act; association discrimination and retaliation in violation of the California Fair Employment and Housing Act; interference with Moore-Brown-Roberti Family Rights Act rights and retaliation; retaliation for opposing practices forbidden by the California Fair Employment and Housing

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          Act; hostile work environment in violation of the California Fair Employment and Housing Act; violation of Labor Codes sections 233 and 234 for denial of kin care; wrongful termination in violation of public policy; non-payment of wages, including overtime, in violation of the Division of Labor Standards Enforcement and the Labor Code; failure to provide meal and rest breaks in violation of the Labor Code; intentional severe emotional distress infliction; and failure to do everything reasonably necessary to prevent discrimination, harassment and retaliation in violation of the California Fair Employment and Housing Act. Plaintiff sought as relief damages, costs of suit including attorney fees, lost wages, declaratory relief, waiting time penalties, and other injunctive and equitable relief.

         B. Defendants’ Motion to Compel Arbitration

         On November 17, 2014, defendants moved to compel arbitration. Defendants relied on three documents: the Employee Handbook; the Current Employment Alternative Dispute Resolution Policy (the arbitration agreement); and the “CURRENT EMPLOYMENT ALTERNATIVE DISPUTE RESOLUTION AGREEMENT” which was attached as Appendix A to the Employee Handbook. Plaintiff acknowledged in writing receiving the Employee Handbook with the attached arbitration agreement on September 16, 2012, when he became an employee of TAP Worldwide, LLC. He had previously worked at TAP Worldwide, LLC but as an employee of a temporary employment service. The written acknowledgement states: “ACKNOWLEDGEMENT OF RECEIPT [¶] I hereby confirm and acknowledge receipt of [defendant’s]: [¶] [] Alternative Dispute Resolution Agreement for current employees; and [] Personnel Policy Handbook.” The parties do not dispute that the Personnel Policy Handbook is the Employee Handbook. Plaintiff declared he actually signed the acknowledgement of receipt of the documents on September 16, 2012, but the year was erroneously listed as 2010.

         Page one of the Employee Handbook states, “It is each employee’s responsibility to read, understand and follow the provisions of this Handbook; accordingly, you will find it to your advantage to read promptly the entire Handbook.” Page nine of the handbook is entitled, “MANDATORY ALTERNATIVE DISPUTE RESOLUTION BINDING ARBITRATION OF CLAIMS.” Page nine of the employee handbook then states: “The Company has adopted mandatory binding arbitration as a means of dispute resolution regarding any and all employment related claims that may exist between the Company and an employee, and vice versa. Confirmation of receipt and agreement to this policy is an absolute prerequisite to your hiring by, and continued employment with, the Company. [¶] Under this policy, should any employment related dispute arise between you and the Company, for whatever reason, both you and the Company will be required to resolve the

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          dispute through binding arbitration. This means that neither you nor the Company can file a civil lawsuit against the other to seek redress for any employment related grievances. [¶] Binding arbitration has proven itself to be a highly useful and cost effective means to resolving disputes which may arise between employer and employee. We hope that through this policy, any claims that may arise between you and the Company can be resolved quickly, efficiently and to the satisfaction of everyone involved. [¶] For a complete summary of the Company’s policy on mandatory binding arbitration, please see Appendix A to this Handbook, as well as the Agreement to Arbitrate, a copy of which you will be required to execute prior to employment with the Company. [¶] If, for ...


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