Morel v. U.S. Xpress, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MICHAEL MOREL, ET AL. CIVIL ACTION

VERSUS NO. 20-1348-WBV-JVM

U.S. XPRESS, INC., ET AL. SECTION: D (1)

ORDER AND REASONS

Before the Court is Co-Defendant U.S. Xpress, Inc.’s Motion to Compel

Arbitration and Dismiss All Claims.1 The Motion is opposed,2 and U.S. Xpress, Inc.

has filed a Reply.3 After careful consideration of the parties’ memoranda and the

applicable law, the Motion is GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case involves claims of employment discrimination brought by Michael

and Teresa Morel (collectively, “Plaintiffs”), arising out of Mr. Morel’s employment

with U.S. Xpress, Inc. (“Xpress”). Plaintiffs allege that Mr. Morel began working at

Xpress on or around July 28, 2018 as a Transportation Supervisor II, earning $50,000

a year.4 Plaintiffs assert that during his initial interview, Mr. Morel notified Clayton

Zieglor, Depot Manager at Xpress, of his limitations due to past knee replacements.

Plaintiffs allege that Mr. Morel suffers from a non-paralytic orthopedic disability

which, among other things, prevents Mr. Morel from traversing stairs more than two

1 R. Doc. 15.

2 R. Doc. 23.

3 R. Doc. 29.

4 R. Doc. 1 at ¶ 17.

or three times a day without substantial pain and causing further damage to his

knees.5 Plaintiffs assert that Mr. Ziegler never informed Mr. Morel that the position

for which he was applying required climbing flights of stairs multiple times a day.6

Plaintiffs allege that after weeks of traversing the office stairs approximately

25 to 30 times per day, he requested an accommodation from Xpress regarding his

disability, including a downstairs office.7 Plaintiffs assert that Xpress had the

resources and opportunity to accommodate Mr. Morel’s disability, but refused to do

so.8 Plaintiffs allege that on September 28, 2018, while walking up the stairs after

using the restroom, Mr. Morel’s left knee buckled and gave way.9 Mr. Morel contacted

the human resources department and was instructed to go to the emergency room.10

Mr. Morel drove himself to the emergency room and began physical therapy soon

thereafter.11 Plaintiffs allege that this injury, and the refusal to accommodate Mr.

Morel’s disability, has led to multiple surgeries on Mr. Morel’s knee and leg, and has

left him reliant upon a cane to walk for the rest of his life.12

On May 5, 2020, Plaintiffs filed a Complaint in this Court against Xpress and

Walmart Inc. (“Wal-Mart”) (collectively, “Defendants”), 13 asserting that Xpress

violated Mr. Morel’s rights under the Americans With Disabilities Act (the “ADA”),

5 Id. at ¶ 19.

6 Id. at ¶ 20.

7 Id. at ¶¶ 22-28.

8 Id. at ¶¶ 32-33.

9 Id. at ¶¶ 36-37.

10 Id. at ¶¶ 39-40.

11 Id. at ¶¶ 40-44.

12 Id. at pp. 5-12.

13 Plaintiffs allege that Xpress is a carrier for Walmart and that, upon information and belief, Walmart

owns the distribution center where Mr. Morel was primarily located while employed by Xpress. Id. at

¶¶ 25-26 & 133

42 U.S.C. § 12101, et seq., Defendants violated the Louisiana Employment

Discrimination Law, La. R.S. 23:301, et seq., and Wal-Mart violated The

Rehabilitation Act, 29 U.S.C. § 794(a).14 Teresa Morel also asserts a loss of

consortium claim.15 Plaintiffs seek injunctive relief, including an order restraining

Defendants from engaging in further discriminatory conduct, compensatory and

consequential damages, punitive damages, pre-judgment and post-judgment interest,

and attorney’s fees.16

Xpress filed the instant Motion to Compel Arbitration and Dismiss All Claims

on August 4, 2020, seeking an order pursuant to the Federal Arbitration Act (the

“FAA”), 9 U.S.C. § 1, et seq., and Federal Rule of Civil Procedure 12(b), compelling

Mr. Morel to arbitrate all of his claims against Xpress and dismissing all of the claims

asserted by Plaintiffs against Xpress.17 Xpress asserts that, as part of the hiring

process, Mr. Morel signed a Nondisclosure and Nonsolicitation Agreement (the

“Agreement”) containing an arbitration clause, in which he agreed to submit legal

claims related to his employment to binding arbitration.18 Xpress attached to its

Motion the Declaration of Kelly McGraw, Director of Human Resources for Xpress.19

Ms. McGraw attests that as part of the hiring process, Mr. Morel electronically

submitted and digitally signed the Agreement on July 12, 2018, containing the

14 Id. at pp. 12-19. On December 10, 2020, Plaintiffs moved to dismiss without prejudice all of their

claims against Walmart. (R. Doc. 35). The Court granted the Motion on December 11, 2020, dismissing

Walmart from the suit. (R. Doc. 36).

15 R. Doc. 1 at ¶¶ 138-142.

16 Id. at p. 20.

17 R. Doc. 15.

18 R. Doc. 15-3 at p. 1.

19 R. Doc. 15-1, pp. 1-4.

following arbitration clause:

Arbitration Program Agreement

I acknowledge that USX has provided me a copy of the Xpress Resolution

Program and Rules for Arbitration (attached hereto and hereinafter

referred to as the “Program”) and that I have reviewed the Program. In

exchange for the legal consideration referenced in the Program,

including USX’s agreement to employ me, I consent to, and agree to be

bound by, the terms of the Program. In particular, and without

limitation, I confirm my understanding and agreement that work

disputes in which I am involved that fall within the Program’s definition

of “Legal Dispute” will be resolved exclusively through final and binding

arbitration rather than before a judge or jury in court or before an

administrative adjudicative body. Within thirty (30) days after

becoming subject to the Program, I may inform the Program Director in

writing that I am electing to “Opt Out” of that portion of the Program

that would prohibit my pursuing a Class Action in a court of law. By

not exercising the “Opt Out” right, I would voluntarily agree not to

pursue a Class Action in arbitration or in a court of law.20

Ms. McGraw states that, as part of the hiring process, Mr. Morel was also provided

with the “Xpress Resolution Program and Rules for Arbitration” (the “Arbitration

Program”).21 Ms. McGraw asserts that Mr. Morel specifically acknowledged in

writing that Xpress provided him with a copy of the Arbitration Program and that

Mr. Morel reviewed and agreed to its terms.22 Ms. McGraw states that if Mr. Morel

had not digitally signed the Agreement, or if he had not acknowledged receipt of and

his agreement to the terms of the Arbitration Program, Xpress would not have

allowed him to begin his employment.23

20 Id. at p. 2, ¶ 7.

21 Id. at p. 3, ¶ 8.

22 Id.

23 Id. at ¶ 9.

Xpress argues that because Mr. Morel previously agreed to arbitrate all of the

claims asserted against Xpress in his Complaint, the FAA and controlling Supreme

Court authority require that the Court compel him to arbitrate those claims pursuant

to the FAA and to dismiss or, alternatively, stay Mr. Morel’s claims against Xpress

pursuant to the FAA and Federal Rule of Civil Procedure 12(b).24 Xpress further

asserts that Mrs. Morel’s loss of consortium claim should be dismissed for failure to

state a claim under Fed. R. Civ. P. 12(b) or, alternatively, stayed pending arbitration

of Mr. Morel’s claims against Xpress, since the loss of consortium claim derives from

Mr. Morel’s employment discrimination claims.25

Plaintiffs oppose the Motion, asserting that Mr. Morel’s claims are excluded

from arbitration because they do not fall within the definition of “Legal Dispute” set

forth in the Arbitration Program.26 The Arbitration Program provides the following

definition:

“Legal Dispute” means any dispute between a Participant and the

Company that involves any legal or equitable claim, regardless of when

the events on which it is based occurred, including events before or after

a Participant’s employment and events before a Participant became

subject to this Program (unless such Legal Dispute was already asserted

in a court or before an administrative adjudicative body).27

Plaintiffs argue that the definition of “Legal Dispute” contains a “carveout” for legal

disputes already asserted in a court or before an administrative adjudicative body,

including the United States Equal Employment Opportunity Commission (the

24 R. Doc. 15-3 at p. 2.

25 Id.

26 R. Doc. 23.

27 Id. at p. 3 (quoting R. Doc. 15-1 at p. 7) (emphasis added by Plaintiffs).

“EEOC”).28 Plaintiffs assert that Mr. Morel timely filed a Charge of Discrimination

with the EEOC against Xpress on January 24, 2020, based upon the same allegations

contained in the Complaint.29 Plaintiffs argue that because Mr. Morel filed a Charge

of Discrimination with the EEOC before filing suit in federal court, all of his claims

fall within the “carveout” set forth in the arbitration clause and, therefore, are not

subject to arbitration.30

Plaintiffs further assert that Mr. Morel’s discrimination claims are not subject

to arbitration because he could not have consented to arbitrate future claims that

were unknown at the time of executing the Agreement and the Arbitration Program.31

Finally, Plaintiffs argue the arbitration clause is not enforceable under Louisiana law

because there is insufficient evidence that Mr. Morel’s consent was freely given.32

Plaintiffs contend that mutual consent is lacking because Xpress was in a position of

greater bargaining power and had the ability to unilaterally dictate the terms of the

arbitration clause without any negotiation.33

In response, Xpress maintains that Mr. Morel’s claims are covered by the

arbitration clause because the claims asserted in the Complaint were not already in

court or before an adjudicative body at the time Mr. Morel signed the Agreement

containing the arbitration clause. 34 Xpress asserts that Plaintiffs’ strained

interpretation of the term “Legal Dispute” makes no sense, and that any doubts

28 R. Doc. 23 at p. 4.

29 Id. at pp. 2 & 3-4.

30 Id.

31 Id. at p. 5.

32 Id. at p. 6.

33 Id. at pp. 6-7.

34 R. Doc. 29 at pp. 2-3.

concerning the scope of arbitrable issues should be resolved in favor of arbitration.35

Xpress points out that Plaintiffs cite no legal authority for their assertion that Mr.

Morel could not consent to arbitrate future claims, and further assert that the

arbitration clause indisputably is an agreement to arbitrate future claims.36 Finally,

Xpress asserts there is nothing unconscionable about the arbitration clause, noting

that Mr. Morel was given the opportunity to opt-out of certain aspects of the

Arbitration Program and he chose not to. 37 Xpress argues that Plaintiffs’

unsupported assertions regarding unequal bargaining power have repeatedly been

rejected as grounds for not enforcing arbitration agreements.38

II. LEGAL STANDARD

A. Motion to Compel Arbitration

The Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), governs the

enforceability of arbitration agreements in federal court. The FAA provides that an

arbitration agreement in writing “shall be valid, irrevocable, and enforceable, save

upon such grounds as exist at law or in equity for the revocation of any contract.”39

Additionally, a party to an arbitration agreement “may petition any United States

district court . . . for an order directing that such arbitration proceed in the manner

provided for in such agreement.”40 “The underlying purpose of the FAA was to create

a policy in favor of arbitration, such that ‘any doubts concerning the scope of

35 Id. at pp. 3-4 (citations omitted).

36 R. Doc. 29 at pp. 4-5.

37 Id. at p. 5 (citing R. Doc. 15-1 at p. 3, ¶ 12)

38 R. Doc. 29 at pp. 5-6 (citations omitted).

39 9 U.S.C. § 2.

40 9 U.S.C. § 4.

arbitrable issues should be resolved in favor of arbitration.’”41 “By its terms, the Act

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 on issues as to

which an arbitration agreement has been signed.”42

Under § 3 of the FAA, if a federal court finds the dispute is subject to

arbitration, the court “shall on application of one of the parties stay the trial of the

action until such arbitration has been had in accordance with the terms of the

agreement . . . .” 43 The Fifth Circuit has construed this provision as providing for a

mandatory stay of litigation.44 This Court recently recognized, however, that the

Fifth Circuit has not provided clear guidance regarding whether claims should be

dismissed or stayed pending arbitration.45 In Alford v. Dean Witter Reynolds, Inc.,

the Fifth Circuit held that, “The weight of authority clearly supports dismissal of the

case when all of the issues raised in the district court must be submitted to

arbitration.”46 However, the Fifth Circuit subsequently clarified the language in the

41 Iheanacho v. Air Liquide Large Industries U.S. L.P., Civ. A. No. 19-532-SDD-SDJ, 2020 WL 3451689,

at *2 (M.D. La. June 24, 2020) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.

1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

20, 25, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991); Primerica Life Ins. Co. v. Brown, 304 F.3d 469,

471 (5th Cir. 2002); D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 360 (5th Cir. 2013)).

42 Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S. Ct. 1238, 1241, 84 L. Ed. 2d 158 (1985)

(citation omitted).

43 9 U.S.C. § 3.

44 Waste Management, Inc. v. Residuos Industriales Multiquim, S.A. de C.V., 372 F.3d 339, 342 (5th

Cir. 2004) (quoting 9 U.S.C. § 3).

45 Hanberry v. First Premier Bank, Civ. A. No. 2:19-CV-00898, 2019 WL 4415267, at *7 (E.D. La.

Sept. 16, 2019).

46 Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992) (citing Sea-Land Service,

Inc. v. Seal-Land of P.R., Inc., 636 F. Supp. 750, 757 (D. Puerto Rico 1986); Sparling v. Hoffman Const.

Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988) (expressly holding that 9 U.S.C. § 3 does not preclude

dismissal); Hoffman v. Fidelity and Deposit Co. of Maryland, 734 F. Supp. 192, 195 (D.N.J. 1990);

Dancu v. Coopers & Lybrand, 778 F. Supp. 832, 835 (E.D. Pa. 1991)) (emphasis in original)..

Alford opinion, noting that, “Alford held merely that dismissal was not an abuse of

discretion,” but that it “did not hold that dismissal was required . . . much less that

failure to dismiss would have been an abuse of discretion.”47 Thus, district courts

have discretion to stay or dismiss a case when all of the claims asserted are subject

to arbitration.48

In determining whether a party should be compelled to arbitrate, the Court’s

inquiry consists of three steps.49 First, the Court must determine whether a valid

agreement to arbitrate exists between the parties.50 The Court must then determine

whether the dispute in question falls within the scope of the arbitration clause.51 If

the first two steps are answered affirmatively, the Court must determine “whether

any federal statute or policy renders the claims nonarbitrable.”52

III. ANALYSIS

A. There was a valid agreement to arbitrate between the parties.

1. Mr. Morel consented to the arbitration clause.

In determining whether the parties in this case entered a valid arbitration

contract, the Court must apply state contract law.53 Here, the parties agree that

47 Apache Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 311 n.9 (5th Cir. 2003) (citing Alford,

975 F.2d at 1164).

48 Alford, 975 F.2d at 1164; See Fedmet Corp. v. M/V BUYALYK, 194 F.3d 674, 676 (5th Cir. 1999)

(interpreting Alford to mean “district courts have discretion to dismiss cases in favor of arbitration”).

49 Hill v. Hornbeck Offshore Services, Inc., 799 F. Supp. 2d 658, 661 (E.D. La. 2011) (citing Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353-54, 87 L.Ed.2d

444 (1985); Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002)).

50 JP Morgan Chase & Co. v. Conegie ex rel. Lee, 492 F.3d 596, 598 (5th Cir. 2007) (quoting Will–Drill

Res., Inc. v. Samson Res. Co., 352 F.3d 211, 214 (5th Cir. 2003)) (internal quotation marks omitted);

Hill, 799 F. Supp. 2d at 661 (citing Gaskamp, 280 F.3d at 1073).

51 Conegie ex rel. Lee, 492 F.3d at 597 (quoting Will–Drill Res., Inc., 352 F.3d at 214).

52 Hill, 799 F.3d at 661 (quoting Jones v. Halliburton Co., 583 F.3d 228, 234 (5th Cir. 2009)) (internal

quotation marks omitted); Washington Mut. Fin. v. Bailey, 364 F.3d 260, 263 (5th Cir. 2004).

53 Kubala v. Supreme Prod. Serv.s, Inc., 830 F.3d 199, 202 (5th Cir. 2016) (citation omitted).

Louisiana contract law governs.54 This Court has previously recognized that

Louisiana law’s favorable treatment of arbitration agreements echoes the FAA.55

Louisiana law provides that arbitration agreements are “valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity for the revocation of

any contract.”56 Louisiana law also gives legal effect to both electronic contracts and

signatures.57 Thus, “in the absence of fraud, misrepresentation, or deceit, one is

bound under Louisiana law to the terms of a contract, signed electronically or

otherwise.”58

54 See, R. Doc. 15-3 at pp. 6-7; R. Doc. 23 at pp. 5-6. The Court recognizes that the Agreement, which

contains the arbitration clause, includes a “Choice of Law and Venue” provision, which states that the

Agreement shall be governed by Tennessee law. R. Doc. 15-1 at p. 6, ¶ 9. However, because both

parties have briefed the application of Louisiana law to the arbitration clause and neither party has

made any argument concerning the application of Tennessee law, the Court is of the opinion that the

parties have mutually consented to waive this choice-of-law provision. See, Al-Soud v. Youtoo Media,

L.P., Civ. A. No. 3:15-CV-3074-C, 2017 WL 3841197, at *2 (N.D. Tex. Mar. 15, 2017). Additionally, the

Court notes that the rules of contract interpretation in Tennessee mirror those of Louisiana. See,

Moody Realty Co., Inc. v. Huestis, 237 S.W.3d 666 (Tenn. Ct. App. 2007) (“A contract ‘must result from

a meeting of the minds of the parties in mutual assent to the terms, must be based upon a sufficient

consideration, free from fraud or undue influence, not against public policy and sufficiently definite to

be enforced.’”) (quoting Staubach Retail Servs. Southeast, LLC v. H.G. Hill Realty Co., 160 S.W.3d 521,

524 (Tenn. 2005)); Cooper v. Terminix Int’l Co., 2018 WL 1998973, at *3 (S.D. Tex. App. 11, 2018)

(“Under Tennessee law, ‘mutual promises to be bound under an arbitration agreement can constitute

adequate consideration.’”) (quoting Walker v. Ryan’s Family Steak Houses, Inc., 289 F. Supp. 2d 916,

929 (M.D. Tenn. 2003)). The Court is also cognizant of the forum selection clause in the Agreement,

which provides that, “Employee and [Xpress] hereby submit unconditionally to jurisdiction of, and

agree that venue shall lie exclusively in, the federal and state courts located in the [sic] Hamilton

County, Tennessee for purposes of the resolution of any disputes arising under this Agreement.” R.

Doc. 15-1 at p. 6, ¶ 19. Although not addressed by the parties and not raised by Xpress, the Court

notes that another Section of this Court has previously held that, “[A] party cannot avail itself of its

right under such a clause after it has manifested its intention to waive, and has acted to waive, its

right by pursuing substantive relief in a forum other than the one selected in the clause.” Global Oil

Tools, Inc. v. Expeditors Int’l of Washington, Inc., 429 F. Supp. 3d 221, 230 (E.D. La. 2019) (Ashe, J.).

The Court finds that by filing the instant Motion, Xpress has manifested its intention to waive, and

has acted to waive, its right by pursuing substantive relief in this Court.

55 Hill v. Hornbeck Offshore Servs, Inc., 799 F. Supp. 2d 658, 661 (E.D. La. 2011) (quoting Aguillard v.

Auction Mgmt. Corp., 2004-2804 (La. 6/29/05); 908 So.2d 1) (internal quotation marks omitted). See

also, La. R.S. 9:4201 & 9:4202.

56 La. R.S. 9:4201.

57 Hill, 799 F. Supp. 2d at 661 (citing La. R.S. 9:2607).

58 Hill, 799 F. Supp. 2d at 661 (citing In re Cajun Elec. Power Co-op, Inc., 791 F.2d 353, 359 (5th Cir.

1986)).

Under Louisiana law, the formation of a valid contract requires: (1) capacity to

contract; (2) mutual consent; (3) a certain object; and (4) a lawful purpose.59 “A

contract is formed by the consent of the parties established through offer and

acceptance.”60 “Consent may be vitiated by error, fraud, or duress.”61 “When a

contract is unambiguous and internally consistent on its face, interpretation of the

contract remains within the ‘four corners’ of the written documents.”62 Additionally,

the Fifth Circuit has held that, “To be enforceable, a contract requires mutual assent,

and ‘[e]vidence of mutual assent in written contracts generally consists of signatures

of the parties and delivery with the intent to bind.’”63

Here, Plaintiffs argue that the arbitration clause is not valid and enforceable

due to a lack of mutual consent. Plaintiffs claim that Mr. Morel could not consent to

arbitrate future claims related to his disability that were not reasonably foreseeable

at the time he signed the Agreement containing the arbitration clause.64 Plaintiffs

cite no legal authority to support this position.

Xpress has provided affidavits and documentation showing that Mr. Morel

electronically signed the Agreement and received a copy of the Arbitration Program

before his hiring.65 Plaintiffs did not submit any evidence in support of their

59 Wallace v. Shreve Memorial Library, 79 F.3d 427, 430 n.4 (5th Cir. 1996) (citing Keller v. Sisters of

Charity, 597 So.2d 1113, 1115 (La. App. 2 Cir. 1992); La. Civ. Code arts. 1918, 1927, 1966 & 1971).

60 La. Civ. Code art. 1927.

61 La. Civ. Code art. 1948.

62 Boxley v. Family Dollar Stores, Inc., Civ. A. No. 5:19-CV-00568, 2020 WL 2104945, at *4 (W.D. La.

May 1, 2020) (quoting In re Cajun Elec. Power Co-op, Inc., 791 F.2d 353, 359 (5th Cir. 1986)).

63 Lyda Swinerton Builders, Inc. v. Oklahoma Surety Co., 903 F.3d 435, 445-46 (5th Cir. 2018) (quoting

Baylor Univ. v. Sonnichsen, 221 S.W. 3d 632, 635 (Tex. 2007)) (emphasis in original).

64 R. Doc. 23 at p. 5.

65 See, R. Doc. 15-1, pp. 1-6.

Opposition brief to dispute the evidence submitted by Xpress. Thus, the undisputed

evidence before the Court shows that, as part of the hiring process, Mr. Morel

electronically signed the Agreement on July 12, 2018, which provides, in pertinent

part, that, “I confirm my understanding and agreement that work disputes in which

I am involved that fall within the [Arbitration] Program’s definition of ‘Legal Dispute’

will be resolved exclusively through final and binding arbitration rather than before

a judge or jury in court or before an administrative adjudicative body.”66 The

Arbitration Program defines the term “Legal Dispute” as “any legal or equitable

claim, regardless of when the events on which it is based occurred, including events

before or after a Participant’s employment and events before a Participant became

subject to this Program . . . .”67 The undisputed evidence shows that Mr. Morel

specifically acknowledged in writing that Xpress provided him with a copy of the

Arbitration Program, that he had reviewed it, and that he agreed to it.68

The Court finds that the arbitration clause is a valid, enforceable contract

between Mr. Morel and Xpress. The undisputed evidence shows that the arbitration

clause is a written contract and neither party has pointed to any ambiguity in the

clause. The undisputed evidence also shows that the Agreement, which contains the

arbitration clause, was electronically signed by Mr. Morel on July 12, 2018, and that

Mr. Morel subsequently worked at Xpress from July 30, 2018 until approximately

66 R. Doc. 15-1 at p. 2, ¶ 7.

67 Id. at p. 7, ¶ I.

68 Id. at p. 3, ¶ 8.

May 24, 2019.69 The Court further notes that the arbitration clause contains an “Opt-

Out” provision, which provides the following:

Within thirty (30) days after becoming subject to the [Arbitration]

Program, I may inform the Program Director in writing that I am

electing to “Opt Out” of that portion of the Program that would prohibit

my pursuing a Class Action in a court of law. By not exercising the “Opt

Out” right, I would voluntarily agree not to pursue a Class Action in

arbitration or in a court of law.70

The Arbitration Program contains an identical “Opt-Out” provision. 71 The

undisputed evidence shows that Mr. Morel never exercised the “Opt-Out” provision.72

Moreover, by signing the Agreement, Mr. Morel represented that he consented to,

and agreed to be bound by, the terms of the Arbitration Program, “In exchange for

the legal consideration referenced in the Program, including [Xpress]’s agreement to

employ me . . . .”73 Mr. Morel also represented that, “I acknowledge that I have had

the opportunity to carefully read this Agreement and consult legal counsel of my

choice. I understand this Agreement and accept it.”74

Based on the foregoing undisputed evidence, the Court finds that the

arbitration clause is a valid, enforceable contract.

69 R. Doc. 15-1 at p. 3. The Court notes that even if Mr. Morel’s electronic signature was insufficient

to show express written acceptance, his continued employment with Xpress after signing the

Agreement has been deemed sufficient to constitute acceptance under Louisiana law. Boxley v. Family

Dollar Stores, Inc., Civ. A. No. 5:19-CV-00568, 2018 WL 2104945, at *4, n.5 (W.D. La. May 1, 2020)

(citing Marino v. Dillard’s, Inc., 413 F.3d 530, 532-33 (5th Cir. 2005)).

70 R. Doc. 15-1 at p. 3, ¶ 12 & p. 6, ¶ 9

71 Id. at p. 9, ¶ 10.

72 Id. at p. 3, ¶ 12.

73 Id. at p. 6, ¶ 10.

74 Id.

2. The arbitration clause is not unconscionable.

Plaintiffs further assert that the arbitration clause is not binding because Mr.

Morel’s consent was not freely given due to the lack of equal bargaining power

between the parties. Plaintiffs argue that the arbitration clause is unconscionable

because Mr. Morel was not given the opportunity to negotiate the terms of arbitration

and he was instructed that if he did not sign the Agreement, he would not be

employed.75 Plaintiffs, however, fail to cite any Fifth Circuit authority to support

their arguments that the arbitration clause is unconscionable.

This Court has previously recognized that, “Where a party h[as] no power to

negotiate a contract, state law permits courts to strike an unconscionable arbitration

clause if it is found to be unduly burdensome or extremely harsh.”76 Additionally,

“Louisiana courts have considered such factors as the clause’s physical

characteristics, its mutuality, and the bargaining strength of the respective

parties.”77

The Court recognizes that although prospective employees may have unequal

bargaining power, Mr. Morel could have had the arbitration clause reviewed by an

attorney or other knowledgeable person prior to signing it. In fact, by signing the

75 R. Doc. 23 at pp. 5-7.

76 Hill v. Hornbeck Offshore Servs., Inc., 799 F. Supp. 2d 658, 662 (E.D. La. 2011) (quoting Costanza v.

Allstate Insurance Co., Civ. A. No. 02-1492, 2002 WL 31528447, at *5 (E.D. La. Nov. 12, 2002)). The

Court notes that, “Under Tennessee law, a contract is unconscionable when the ‘inequality of the

bargain is so manifest as to shock the judgment of a person of common sense, and where the terms are

so oppressive that no reasonable person would make them on the one hand, and no honest and fair

person would accept them on the other.’” Lagrone Const., LLC v. Landmark, LLC, 40 F. Supp. 3d 769,

778-79 (N.D. Miss. 2014) (quoting Huan v. King, 690 S.W.2d 869, 872 (Tenn. Ct. App. 1984)).

77 Hill, 799 F. Supp. 2d at 662 (citing Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 2007-146

(La. App. 3 Cir. 12/12/07); 971 So.2d 1257, 1266.

Agreement, which contains the arbitration clause, Mr. Morel explicitly represented

that, “I acknowledge that I have had the opportunity to carefully read this Agreement

and consult legal counsel of my choice. I understand this Agreement and accept it.”78

Additionally, Plaintiffs did not submit any evidence indicating that other similar jobs

were not available to Mr. Morel and that he was required to take the job even though

he did not approve of the arbitration clause.79 In fact, there is no evidence that Mr.

Morel even objected to the arbitration clause and/or that he signed the Agreement

containing the arbitration clause under protest.80 Further, Mr. Morel could have

exercised the “Opt-Out” provision contained in the arbitration clause within 30 days

of signing the Agreement.81 The undisputed evidence before the Court shows that

Mr. Morel never exercised the “Opt-Out” provision or otherwise voiced any objection

to the terms of the arbitration clause.82 Additionally, there is no evidence before the

Court indicating that Mr. Morel’s consent was not freely given.

Based on the foregoing facts and evidence, the Court cannot say that it would

be unconscionable to enforce the terms of the arbitration clause.83

B. The claims against Xpress fall within the scope of the arbitration

clause.

78 R. Doc. 15-1 at p. 6, ¶ 10.

79 See, Rogers v. Brown, 986 F. Supp. 354, 359 (M.D. La. 1997) (finding the difference in bargaining

positions was lacking where plaintiff failed to submit any evidence that other similar jobs were not

available and that plaintiff was required to take the job even though she did not approve of the

arbitration provision).

80 R. Doc. 15-1 at p. 6, ¶ 10.

81 Id. at ¶ 9.

82 Id. at p. 3, ¶ 12.

83 See, Banks v. Waitr-Holdings, Inc., 2:19-CV-008998, 2019 WL 6883672, at *4 (W.D. La. Dec. 17,

2019).

The Court must next determine whether the claims asserted against Xpress

fall within the scope of the arbitration clause. By signing the Agreement, Mr. Morel

agreed that, “work disputes in which I am involved that fall within the [Arbitration]

Program’s definition of ‘Legal Dispute’ will be resolved exclusively through final and

binding arbitration rather than before a judge or jury in court or before an

administrative adjudicative body.”84 The Arbitration Program defines the term

“Legal Dispute,” in pertinent part, as, “any dispute between a Participant and the

Company that involves any legal or equitable claim, regardless of when the events on

which it is based occurred . . . (unless such Legal Dispute was already asserted in a

court or before an administrative adjudicative body).”85 The Arbitration Program

further provides that, “A Legal Dispute does not include . . . (iii) a Participant’s claim

filed in a court or an administrative adjudicative body before the Participant signed

the Agreement . . . .”86

Plaintiffs insist that their claims are not subject to arbitration because they

fall within the “carveout” set forth in the definition of “Legal Dispute” for disputes

already asserted in a court or before an administrative adjudicative body.87 Plaintiffs

argue this “carveout” applies to Mr. Morel’s claims because they are identical to the

claims asserted in his Charge of Discrimination filed with the EEOC, which is an

84 R. Doc. 15-1 at p. 6, ¶ 8.

85 R. Doc. 15-1 at p. 7, ¶ I.

86 Id.

87 R. Doc. 23 at pp. 3-4.

administrative adjudicative body.88 Plaintiffs, however, cite no legal authority for

their position and the Court has found none.

The Court finds that, even if the EEOC is considered an administrative

adjudicative body, the “carveout” provision relied upon by Plaintiffs would not apply

to Mr. Morel’s discrimination claims because the provision applies only to claims that

were filed “in a court or an administrative body before the Participant signed an

Agreement.”89 A plain reading of the provision (“. . .a Participant’s claim filed in a

court or an administrative adjudicative body before the Participant signed the

Agreement”) clearly reflects that any such carve out claim must have been filed before

the Participant signed the Agreement. Plaintiff signed the Arbitration Agreement on

July 12, 2018. The undisputed evidence shows that Mr. Morel did not file his Charge

of Discrimination with the EEOC until January 24, 2020,90 long after he had agreed

to the Arbitration Program. 91 Thus, Mr. Morel did not file his Charge of

Discrimination with the EEOC until after he became subject to the Arbitration

Program. As such, Mr. Morel’s claims do not fall within the alleged “carveout” set

forth in the definition of “Legal Dispute” set forth in the Arbitration Program. The

Court finds that Mr. Morel’s claims against Xpress fall squarely within the scope of

the arbitration clause and subject to arbitration.92

88 Id. at p. 4.

89 R. Doc. 15-1 at p. 7, ¶ 2(I). The Arbitration Program defines the term “Agreement” to mean “a

written or electronic agreement by which a Participant agrees to the Program,” and defines “Program”

as “the terms of this document (as amended from time to time).” Id. at pp. 7-8, ¶¶ 2(A) & (O).

90 R. Doc. 23 at p. 2.

91 R. Doc. 15-1 at pp. 2-3 & 5-11.

92 Because the Court finds that Plaintiffs’ claim does not fall within the carve out provision, the Court

need not determine whether the EEOC is an “administrative adjudicative body,” as set forth in the

Agreement. However, the Court notes that the Supreme Court has held that the EEOC does not have

C. No federal statute or policy renders Plaintiffs’ claims nonarbitrable

Finding that the arbitration clause is valid and that Mr. Morel’s claims fall

within the scope of the arbitration clause, the Court must determine whether the

claims are rendered nonarbitrable by federal statute or policy. Neither party has

identified any federal statute or policy that renders Mr. Morel’s claims nonarbitrable,

and the Court knows of none. Accordingly, this matter must be referred to arbitration.

D. Mrs. Morel’s loss of consortium claim against Xpress must be

dismissed under Fed. R. Civ. P. 12(b)(6).

Xpress further asserts that Mrs. Morel’s loss of consortium claim against it

should be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim because

Plaintiffs have asserted only conclusory allegations.93 Xpress asserts that the loss of

consortium claim also fails as a matter of law because such claims are not cognizable

in employment discrimination cases.94 Plaintiffs did not address these arguments in

their Opposition brief.95

Mrs. Morel’s loss of consortium claim is set forth in one sentence in the

Complaint, wherein Plaintiffs allege that, “as a result of Defendants’ refusal to

accommodate Mr. Morel’s disability and his subsequent wrongful termination,

Plaintiffs’ marriage has been adversely affected, resulting in loss of services, loss of

“direct powers of enforcement” and “cannot adjudicate claims or impose administrative sanctions.”

Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S. Ct. 1011, 1018, 39 L.Ed.2d 147 (1974). Instead,

“final responsibility for enforcement of Title VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et.

seq.] is vested with federal courts.” Id.

93 R. Doc. 15-3 at pp. 9-10

94 R. Doc. 15-3 at p. 10 (quoting Barker v. Halliburton Co., 645 F.3d 297, 299-300 (5th Cir. 2011))

(internal quotation marks omitted).

95 See, generally, R. Doc. 23.

support, and loss of quality in the relationship.”96 Thus, Mrs. Morel’s loss of

consortium claim clearly derives from Mr. Morel’s employment discrimination claims

against Defendants. Specifically, the loss of consortium claim derives from Mr.

Morel’s claims against Xpress under the ADA and the Louisiana Employment

Discrimination Law, as well as his claims against Wal-Mart under the Louisiana

Employment Discrimination Law and the Rehabilitation Act.97

This Court has consistently held that loss of consortium claims are not

cognizable in employment discrimination cases.98 “Title VII protects employees from

employment discrimination and provides a cause of action to the employee only. Title

VII does not grant derivative claims to the family of the employee who has suffered

the employment discrimination.”99 This Court has also held that loss of consortium

claims that derive from a spouse or family member’s discrimination claims brought

under the ADA, the Rehabilitation Act, and the Louisiana Employment

Discrimination Law, as in this case, also fail because the spouse or family member

can point to no violation of their personal rights.100 In doing so, this Court previously

explained that, “It is well established that a plaintiff who claims a deprivation of

96 Id. at ¶. 142.

97 R. Doc. 1 at pp. 12-19.

98 Alderman v. Great Atl. & Pac. Tea Co., 332 F. Supp. 2d 932, 937 (E.D. La. 2004) (citing Pellerin-

Mayfield v. Goodwill Industries, Inc., Civ. A. No. 02-3774, 2003 WL 22174279 (E.D. La. Feb. 12, 2003));

See, O’Bear, Civ. A. No. 12-0019, 2012 WL 1802432 at *4 (quoting Barker v. Halliburton Co., 645 F.3d

297, 300 (5th Cir. 2011)).

99 Pellerin-Mayfield, Civ. A. No. 02-3774, 2003 WL 22174279 at *4 (citing Jackson v. Entergy

Operations, Civ. A. No. 96-4111, at *7 n.49, 1998 WL 101690 (E.D. La. Mar. 4, 1998); Reed v. Chemlink,

Civ. A. No. 90-3942, at *6, 1991 WL 161475 (E.D. La. Aug. 8, 1991)).

100 Purcell v. Tulane Univ. of Louisiana, Civ. A. No. 16-1834, 2016 WL 6649220, at *8 (E.D. La. Nov.

10, 2016) (citing authority); Narcisse v. Turner Industries Group, LLC, Civ. A. No. 11-2659, 2012 WL

1565292, at *7 (E.D. La. Apr. 30, 2012).

rights must prove some violation of his or her personal rights.”101 Here, Plaintiffs

have failed to point the Court to any violation of Mrs. Morel’s personal rights by

Xpress. Accordingly, Mrs. Morel’s loss of consortium claim against Xpress is

dismissed with prejudice.102

E. A stay is appropriate in this case.

Lastly, Xpress asks this Court to dismiss all of Mr. Morel’s claims against it if

the Court finds that such claims must be referred to arbitration.103 Citing Fifth

Circuit authority, primarily Alford v. Dean Witter Reynolds, Inc., Xpress argues that

Mr. Morel’s claims should be dismissed, rather than stayed, because all of the claims

are subject to arbitration.104 Plaintiffs do not address these arguments in their

Opposition brief.105

Although not mentioned by Xpress, another Section of this Court recently

recognized that the Fifth Circuit has not provided clear guidance regarding whether

claims should be dismissed or stayed pending arbitration.106 In Hanberry v. First

Premier Bank, this Court acknowledged that the Fifth Circuit in Alford indicated that

dismissal is appropriate when all of the issues are referred to arbitration.107 This

101 Purcell, . A. No. 16-1834, 2016 WL 6649220 at *8 (citing Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th

Cir. 1986)).

102 To the extent that Mrs. Morel has alleged a loss of consortium claim against Wal-Mart, that claim

is not the subject of the instant Motion and, therefore, remains pending.

103 R. Doc. 15-3 at pp. 13-14.

104 Id. at p. 13 (citing Fedmet Corp. v. M/V Buyalyk, 194 F.3d 674, 678 (5th Cir. 1999); Alford v. Dean

Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992)).

105 See, generally, R. Doc. 23.

106 Hanberry v. First Premier Bank, Civ. A. No. 2:19-CV-00898, 2019 WL 4415267, at *7 (E.D. La. Sept.

16, 2019) (Brown, C.J.).

107 Civ. A. No. 2:19-CV-00898, 2019 WL 4415267 at *7 (quoting Alford, 975 F.2d 1161, 1164 (5th Cir.

1992)) (internal quotation marks omitted).

Court then pointed out that the Fifth Circuit subsequently clarified in Apache Bohai

Corp. LDC v. Texaco China, B.V. that Alford does not require dismissal when all of

the claims are subject to arbitration, and that district courts also have discretion to

stay the case.108 This Court in Hanberry ultimately stayed the proceedings pending

arbitration based upon the mandatory language in Section 3 of the FAA and the lack

of clear guidance from the Fifth Circuit.109 One of our sister courts, relying on the

Hanberry decision, has concluded that a third option, administrative closure, is

appropriate when all of the claims are subject to arbitration.110 Our sister court

reasoned that administrative closure is appropriate because it removes the case from

the court’s active docket, but provides the parties an opportunity to move to re-open

the case if necessary.111 As explained by the Fifth Circuit:

The effect of an administrative closure is no different from a simple stay,

except that it affects the count of active cases pending on the court’s

docket . . . . This case still exists on the docket of the district court and

may be reopened upon request of the parties or on the court’s own

motion. That situation is the functional equivalent of a stay, not a

dismissal, and is thus not an appealable order under the FAA.112

The Court agrees with our sister court that an administrative closure, rather

than dismissal or a stay, is appropriate in this case. The Court has determined that

108 Civ. A. No. 2:19-CV-00898, 2019 WL 4415267 at *7 (quoting Apache Bohai Corp., LDC, 330 F.3d

307, 311 n.9 (5th Cir. 2003)).

109 Civ. A. No. 2:19-CV-00898, 2019 WL 4415267 at *7 (citing 9 U.S.C. § 3).

110 Boxley v. Family Dollar Stores, Civ. A. No. 5:19-cv-00568, 2020 WL 2104945, at *5-6 (W.D. La. May

1, 2020); Sewell v. Wair Holdings, Inc., Civ. A. No. 2:19-CV-00698, 2020 WL 208929, at *6-7 (W.D. La.

Jan. 13, 2020); Banks v. Waitr Holdings, Inc., 2:19-CV-008998, 2019 WL 6883672 (W.D. La. Dec. 17,

2019).

111 Boxley, Civ. A. No. 5:19-cv-00568, 2020 WL 2104945 at *6 (citing Mire v. Full Spectrum Lending

Inc., 389 F.3d 163, 167 (5th Cir. 2004)); Sewell, Civ. A. No. 2:19-CV-00698, 2020 WL 208929 at *7

(citing Mire, 389 F.3d at 167); Banks, 2:19-CV-008998, 2019 WL 6883672 (citing Mire, 389 F.3d at

167).

112 More, 389 F.3d at 167.

all of Mr. Morel’s employment discrimination claims against Xpress fall within the

scope of the arbitration clause and, therefore, must be referred to arbitration. The

Court has also determined that the only other claim asserted against Xpress, Mrs.

Morel’s loss of consortium claim, must be dismissed under Fed. R. Civ. P. 12(b)(6).

Accordingly, the Court finds that administrative closure is appropriate, removing the

case from the Court’s active docket, but providing the parties an opportunity to

reopen the case if necessary. To the extent that Xpress seeks a dismissal of this case

pending arbitration, the Motion is denied.

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that Defendant’s Motion to

Compel Arbitration and Dismiss All Claims113 is GRANTED in part and DENIED

in part. The Motion is GRANTED to the extent that Xpress moves to compel

arbitration of Mr. Morel’s employment discrimination claims asserted against Xpress

and seeks dismissal of Mrs. Morel’s loss of consortium claim asserted against Xpress.

The Motion is DENIED to the extent that Xpress seeks a dismissal with prejudice of

Mr. Morel’s discrimination claims.

IT IS FURTHER ORDERED that this civil matter is STAYED in its entirety

pending arbitration of Mr. Morel’s employment discrimination claims against Xpress.

IT IS FURTHER ORDERED that all motions pending before the

undersigned and the assigned United States Magistrate Judge are DISMISSED

113 R. Doc. 15.

WITHOUT PREJUDICE, reserving to the parties the right to re-urge any motion

when the matter is re-opened.

IT IS FURTHER ORDERED that the Clerk of Court CLOSE the above-

captioned civil case for administrative and statistical purposes, pending further order

from the Court. The Court shall retain jurisdiction and the case shall be restored to

the trial docket upon motion of a party if circumstances change, so that Plaintiffs’

claims may be heard to final disposition.

New Orleans, Louisiana, December 11, 2020.

WENDY B. fi

United States District Judge