United States District Court, E.D. California
ORDER RE: MOTION TO COMPEL ARBITRATION AND DISMISS OR
STAY JUDICIAL PROCEEDINGS
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
Plaintiff
Lionel Harper brought this action against defendants Charter
Communications, LLC and Charter Communications, Inc.
(collectively “Charter”), alleging, inter alia,
violation of California's Fair Employment and Housing Act
(“FEHA”), Cal. Gov. Code § 12900 et seq.
Before this court is Charter's motion to compel
arbitration and dismiss or stay judicial proceedings. (Mot.
to Compel Arbitration (Docket No. 10).)
I.
Facts & Procedural History
Plaintiff
worked for Charter as a salesperson in California from
September 2017 to March 2018. (Compl. ¶ 9 (Docket No.
1).) Upon hire, plaintiff signed an agreement to arbitrate
“any and all claims, disputes, and/or controversies
between [plaintiff] and Charter arising from or related to
[plaintiff's] employment with Charter” before a
single arbitrator from the Judicial Arbitration and
Mediations Services, Inc. (“JAMS Arbitration
Agreement”). (Decl. of Chance Cassidy (“Cassidy
Decl.”), Ex. B (Docket No. 10-3); Decl. of Lionel
Harper (“Harper Decl.”) ¶ 2 (Docket No.
22-1).) According to the agreement, JAMS Employment
Arbitration Rules & Procedures and JAMS Policy on
Employment Arbitration Minimum Standards of Procedural
Fairness would govern the arbitration of any claims between
plaintiff and Charter. (Cassidy Decl., Ex. B.) Under these
rules, Charter would “bear all costs unique to
arbitration, except for the Case Initiation Fee, which would
be split between [plaintiff] and Charter.” (Cassidy
Decl., Ex. B.) The agreement provided the arbitrator's
decision would be “final and binding” on both
parties. (Cassidy Decl., Ex. B.)
On
October 6, 2017, Charter adopted a new arbitration agreement
that required arbitration of claims via “Solution
Channel, ” Charter's employment-based legal dispute
resolution program. (See Decl. of John Fries (“Fries
Decl.”), Ex. A (Docket No. 10-2).) Unlike the JAMS
Arbitration Agreement, the Solution Channel Arbitration
Agreement provided for arbitration under the rules of the
American Arbitration Association and instituted an internal
review process before claims proceeded to arbitration. (See
generally Fries Decl., Ex. C.) Charter announced this change
via e-mail to all active non-Union employees below the level
of Executive Vice President, plaintiff among them. (Fries
Decl. ¶ 5, Ex. E.) The Solution Channel announcement
email notified employees that “[b]y participating in
Solution Channel, [employees] and Charter both waive the
right to initiate or participate in court litigation.”
(Fries Decl., Ex. A.) Additionally, the announcement warned
employees that they would be enrolled into Solution Channel
unless they “opt[ed] out of participating in Solution
Channel within the next 30 days.” (Fries Decl., Ex. A.)
The email directed employees interested in opting out to go
to Panorama, Charter's intranet site, for more
information. (Fries Decl., Exs. A, B.) Plaintiff did not opt
out. (Fries Decl. ¶ 21.)
Around
January 2018, Harper allegedly developed acute pain in his
lower back and was advised by a medical professional to take
several days off work. (Compl. ¶ 10.) Plaintiff contends
he continued to work from home during his leave.
(Id. ¶ 11.) On February 14, 2018,
plaintiff's manager placed plaintiff on involuntarily
unpaid leave. (Id. ¶ 12.) Representatives from
Charter's third-party administrator and human resources
department contacted plaintiff, but plaintiff's attempts
to respond allegedly went ignored. (Id. ¶¶
12-13.) Charter terminated plaintiff on March 12, 2018.
(Id. ¶ 14.) Plaintiff remained unemployed until
March 2019, at which point he was able to secure part-time
work at a reduced hourly rate. (Id. ¶ 17.)
On
November 19, 2018, plaintiff filed a Demand for Arbitration
against Charter alleging various wage and hour claims
pursuant to the JAMS Arbitration Agreement. (Decl. of Kathryn
McGuigan (“McGuigan Decl.”), Ex. 1 (Docket No.
10-1).) Although plaintiff had been enrolled in the Solution
Channel Arbitration Agreement in October 2017, at all
relevant times Charter relied upon the JAMS Arbitration
Agreement as binding on the parties. Harper v. Charter
Commc'ns, LLC, 2:19-cv-902-WBS-DMC, 2019 WL 3683706,
at *8 (E.D. Cal. Aug. 6, 2019) (hereinafter Harper I).
Accordingly, the parties proceeded through the JAMS process,
and the JAMS arbitrator issued an Order Dismissing
Arbitration after finding she had no jurisdiction over the
action on April 25, 2019. (McGuigan Decl., Ex. 2.)
Following
the arbitrator's order in his wage and hour claim
dispute, plaintiff filed a separate Demand for Arbitration
with JAMS alleging eight additional employment-related claims
against Charter, including (1) discrimination and wrongful
discharge under FEHA; (2) failure to make a reasonable
accommodation under FEHA; (3) failure to engage in a timely
and good faith interactive process under FEHA; (4) age
discrimination under FEHA; (5) retaliation under FEHA; (6)
wrongful termination in violation of public policy; (7)
violation of Investigative Consumer Reporting Agencies Act,
Cal. Civ. Code § 1786; and (8) violation of
California's Unfair Competition Law, Cal. Bus. &
Prof. Code § 17200, (collectively, “FEHA
claims”) on April 30, 2019.[1] (McGuigan Decl., Ex. 3.)
Pursuant to the JAMS Arbitration Agreement, plaintiff paid
his share of the Case Initiation Fee to bring his FEHA claims
to arbitration. (Decl. of Jamin Soderstrom (“Soderstrom
Decl.”) ¶ 8 (Docket No. 22-2).) Plaintiff and JAMS
then asked Charter to pay its share of the fees so
arbitration could commence. (Soderstrom Decl. ¶ 9, Exs.
6-9.) Charter refused. (Id.)
After
the JAMS arbitrator had rendered her decision as to
plaintiff's wage and hour claims but before arbitration
had commenced over plaintiff's FEHA claims, Charter
attempted to compel plaintiff to arbitrate his wage and hour
claims under the Solution Channel Arbitration Agreement.
(McGuigan Decl., Exs. 4-5.) Plaintiff refused, and instead
moved to confirm the arbitrator's finding of
non-arbitrability in this court. (See Mot. to Confirm
Arbitration Award and Enter Judgment in Harper v. Charter
Commc'ns, LLC, 2:19-cv-00902-WBS-DMC (Docket No.
9).) This court affirmed the arbitrator's finding that
the wage and hour claims were not arbitrable on August 6,
2019. See Harper I, 2019 WL 3683706, at *8.
However,
plaintiff's FEHA claims remained unresolved before JAMS
because Charter had still not paid its portion of the filing
fee. After this court's confirmation of the arbitration
award, JAMS contacted the parties on August 7, 2019 and
advised them if JAMS did not receive the funds by August 15,
plaintiff would “ha[ve] the option to pay to
proceed” on his FEHA claims. (Soderstrom Decl. ¶
9, Ex. 7.) On August 29, 2019, JAMS demanded payment from
Charter one final time, threatening to close the case's
file on September 16, 2019 if it did not receive full
payment. (McGuigan Decl., Ex. 6.) Unable to pay the JAMS fees
on his own, plaintiff voluntarily withdrew his Demand for
Arbitration on his FEHA claims on September 4, 2019.
(McGuigan Decl., Ex. 7.) Plaintiff proceeded to file those
claims before this court. (See Compl.) Charter now seeks to
compel plaintiff to arbitrate his FEHA claims under the
Solution Channel Arbitration Agreement. (Docket No. 10.)
II.
Motion to Compel Arbitration
A.
Arbitration Agreement Applicable to FEHA Claims
In this
court's previous order regarding plaintiff's wage and
hour claims against Charter, the court found the JAMS
Arbitration Agreement governed the dispute because the
parties agreed to its use. Harper I, 2019 WL
3683706, at *4. This agreement effectively acted as a
novation, replacing the parties' obligations under the
Solution Channel Arbitration Agreement with those set forth
under the JAMS Arbitration Agreement. Id. at *6-8.
Plaintiff contends that the JAMS Arbitration Agreement should
also govern the adjudication of his FEHA claims. (Soderstrom
Decl. ¶ 13-14.) The court disagrees.
Charter
fully arbitrated plaintiff's wage and hour claim in
accordance with the JAMS Arbitration Agreement, and at all
relevant times adhered to its terms to inform the resolution
of plaintiff's claim. See Harper I, 2019 WL
3683706, at *4. But here, Charter did not engage with
plaintiff's FEHA claims in a similar way. An arbitrator
did not render a decision; indeed, arbitration had not yet
commenced. Plaintiff claims he did not bring his FEHA claims
in conjunction with the wage and hour action because the
arbitrator said he could pursue the FEHA claims in a separate
arbitration and Charter did not object. (Soderstrom Decl.
ΒΆ 6.) But that does not change the fact that these are
two separate actions. The facts supporting the novation this
court found in the wage and hour action are wholly absent
here. Charter did not engage in any conduct that was
inconsistent with its right to arbitrate these claims under
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