Harper v. Charter Communications, LLC

          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. ¶ 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 ...