The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MICHAEL N. HANNA CIVIL ACTION
VERSUS 19-887-SDD-EWD
J.P. MORGAN CHASE & CO.
RULING
This matter is before the Court on the Motion to Dismiss, Motion to Compel
Arbitration1 by Defendant J.P. Morgan Chase & Company (“Defendant”). Plaintiff Michael
Hanna (“Plaintiff”) filed an Opposition2 to this motion, to which Defendant filed a Reply.3
For the following reasons, Defendant’s Motion is GRANTED.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff was an employee of Defendant beginning on June 17, 2016 as a
Senior Home Mortgage Advisor, CPC.4 Defendant alleges that Plaintiff electronically
signed an arbitration agreement on the first day of employment;5 Plaintiff denies
having done so.6 Plaintiff’s alleged supervisor was Colin Wallace (“Wallace”)
throughout his employment with Defendant.7 Beginning shortly after the start of
Plaintiff’s employment, Plaintiff alleges that Wallace engaged in unwelcome sexual
behaviors directed at Plaintiff, including the following:
- “making continued sexual passes at [Plaintiff], which were
repeatedly rejected,”;
1 Rec. Doc. 7.
2 Rec. Doc. 11.
3 Rec. Doc. 17.
4 Rec. Doc. 11 p. 1.
5 Rec. Doc. 7-1 p. 3.
6 Rec. Doc. 11 p. 2.
7
- “inviting [Plaintiff] to his home, which Wallace presented
as an opportunity for the two of them to engage in sexual
behavior,”;
- “repeatedly inviting [Plaintiff] on dates, including for drinks
and/or dinner, which [Plaintiff] rebuffed,”;
- “repeatedly grabbing, fondling, pinching, and rubbing
[Plaintiff’s] nipples in a sexual manner,”;
- “attempting to kiss [Plaintiff] on repeated occasions,”; and
- “inquiring about [Plaintiff’s] sexuality while [clearly] seeking
to engage in a sexual relationship with [Plaintiff]”.8
Plaintiff alleges that he reported Wallace’s harassment to Defendant to no avail
and that Wallace’s harassment intensified throughout 2017.9 Wallace allegedly
responded to Plaintiff’s rejection of his advances by placing Plaintiff in unnecessary
training programs and by forcing Plaintiff to shadow Wallace.10 In late 2017, Plaintiff
alleges that he reported Wallace’s behavior again to Defendant through Vice
President Stephen Smith (“Smith”), who responded by telling Plaintiff to ask Wallace
to stop, or to call Human Resources.11 According to Plaintiff, no action was taken by
Smith.12 Again, in October of 2017, Wallace allegedly grabbed Plaintiff’s nipples in
front of Plaintiff’s co-workers; further, at a Christmas party in 2017, Wallace allegedly
“began making blowjob gestures toward [Plaintiff] and then approached [Plaintiff] and
grabbed his penis.”13 Plaintiff alleges that he responded to Wallace’s behavior by
forcibly grabbing Wallace’s arm, twisting it, and yelling at Wallace to stop touching
him.14
8 Rec. Doc. 1-1 ¶3.
9 Id. at ¶4-5.
10 Id. at ¶6.
11 Id. at ¶7.
12 Id.
13 Id. at ¶9.
14
Plaintiff reported the alleged harassment the day after the Christmas party in
2017 to Smith and also to Steve Cook (“Cook”), who was Wallace’s and Plaintiff’s
supervisor.15 Cook “advised [Plaintiff] to talk with Wallace and warned [Plaintiff]
against contacting Human Resources.”16 Wallace ordered Plaintiff to meet with him
after discovering that Plaintiff had reported his behavior. At the meeting, Plaintiff “told
Wallace he was not gay, was not sexually interested in Wallace, and that Wallace
should never touch him again.”17 When Wallace responded angrily and “started
screaming” at Plaintiff, Plaintiff again reported Wallace to Cook, “to no avail.”18
Plaintiff alleges that Wallace “began openly retaliating against [Plaintiff] by
belittling him in front of his peers, singling him out for unfounded/warranted criticism,
attempting to set [Plaintiff] up and falsely accusing him of misconduct, threatening
disciplinary action, and micromanaging [Plaintiff].”19 The continued sexual
harassment and retaliation interfered with Plaintiff’s employment by increasing the
difficulty of performing his job.20 Further sexual harassment by Wallace alleged by
Plaintiff includes “making sexual passes at [Plaintiff], including by text messages
suggesting sexual contact,” and requesting that Plaintiff “send him ‘a hot picture of
you,’ which [Plaintiff refused].”21 Plaintiff alleges that Wallace changed Plaintiff’s work
documents and impersonated Plaintiff in employment-related matters.22 Plaintiff’s
employment with Defendant was ultimately terminated after Billie Adams (“Adams”)
15 Rec. Doc. 1-1 at ¶10.
16 Id.
17 Id. at ¶11.
18 Id.
19 Id. at ¶12.
20 Id.
21 Id. at ¶13.
22
became Plaintiff’s new manager in September 2018.23 Plaintiff alleges that when a
different employee failed to “lock” a loan, Wallace falsely represented to the new
supervisor that the failure was Plaintiff’s fault.24 Plaintiff was terminated on November
6, 2018.25
Plaintiff filed suit against Defendant on November 5, 2019 in the 19th Judicial
District Court for East Baton Rouge Parish, alleging claims of sexual harassment and
retaliation under LA. REV. STAT. 23:301 and reprisal under LA. REV. STAT. 23:967.26
Defendant removed the case to this Court on the basis of diversity of citizenship
under 28 U.S.C. § 1332(a).27 On January 1, 2020, Defendant filed the present Motion
to Dismiss, Motion to Compel Arbitration, asking the Court to dismiss Plaintiff’s claims
and compel arbitration of the dispute.28 The Court now turns to Defendant’s Motions.
II. LAW AND ANALYSIS
A. Motion to Compel Arbitration
The Federal Arbitration Act (“FAA”) governs the enforceability of arbitration
agreements in federal courts. Section 2 of Chapter 1 of 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.”29
This provision requires federal courts to “place [arbitration] agreements ‘upon the
same footing as other contracts.’”30 The underlying purpose of the FAA was to create
23 Rec. Doc. 1-1 at ¶15.
24 Id.
25 Id. at ¶16.
26 Rec. Doc. 7-1 p. 3; see also Rec. Doc. 1.
27 Id.
28 Rec. Doc. 7.
29 9 U.S.C. § 2.
30 Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 474 (1989) (quoting
a policy in favor of arbitration, such that “any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration.”31
Courts undertake a two-step inquiry in evaluating motions to compel
arbitration.32 First, the parties must have an agreement to arbitrate the dispute at
issue.33 Second, if and only if the first step is satisfied, the Court “must consider
whether any federal statute or policy renders the claims non-arbitrable.”34 If the
dispute is referred to arbitration, the FAA requires the Court to stay or dismiss the
proceedings,35 and the Court “shall make an order directing the parties to proceed to
arbitration in accordance with the terms of the agreement.”36
Because Plaintiff does not argue that his claims are non-arbitrable under a
federal statute or policy, the Court need not consider the second prong of the FAA
test. Consequently, the Court need only consider whether there is a valid agreement
to arbitrate between the parties.
In considering the first prong of the FAA test, the Court considers (1) whether
there is a valid agreement to arbitrate between the parties, and (2) whether the
dispute in question is covered by the agreement.37 Plaintiff only presents argument
31 Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983); Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (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).
32 Ameriprise Fin. Servs. v. Etheredge, 277 F.Appx. 447, 449 (5th Cir. 2008); Washington Mut. Finance
Group v. Bailey, 364 F.3d 260, 263 (5th Cir. 2004); see also Hadnot v. Bay, Ltd., 344 F.3d 474, 476 (5th
Cir. 2003); Fleetwood Enters. Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002); Webb v.
Investacorp, Inc., 89 F.3d 252, 258 (5th Cir. 1996).
33 Etheredge, 277 F.Appx. at 449; Bailey, 364 F.3d at 263; Will-Drill Res., Inc. v. Samson Res. Co., 352
F.3d 211, 214 (5th Cir. 2003).
34 Will-Drill, 352 F.3d at 214 (quoting R.M. Perez & Assocs., Inc. v. Welch, 960 F.2d 534, 538 (5th Cir.
1992)); Etheredge, 277 F.Appx. at 449; Bailey, 364 F.3d at 263.
35 Holts v. TNT Cable Contractors, Inc., 2020 WL 1046337 at *5 (E.D. La. 2020) (citing Tittle v. Enron Corp.,
463 F.3d 410, 417 n.6 (5th Cir. 2006); Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th
Cir. 1992)).
36 9 U.S.C. § 4. See also Holts, 2020 WL at *2; Sedco, Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co.,
767 F.2d 1140, 1147 n.20 (5th Cir. 1985).
37
on the first element regarding the validity of the Agreement; consequently, the second
element regarding the scope of the Agreement is deemed unopposed by the Court.
The Court’s analysis of the first prong of the FAA test shall be limited only to whether
there was a valid agreement to arbitrate.
Defendant contends that Plaintiff’s claims are subject to a valid and binding
arbitration agreement.38 Defendant argues that, by signing a Binding Arbitration
Agreement (the “Agreement”), Plaintiff agreed to arbitrate the present dispute.39
Plaintiff argues the Agreement is not enforceable because (1) Plaintiff did not sign
the Agreement, and (2) the Agreement was a contract of adhesion.40
1. Plaintiff’s Signature
Signature is not required for acceptance under La. Civ. Code art. 1927, which
states that:
A contract is formed by the consent of the parties established
through offer and acceptance. Unless the law prescribes a
certain formality for the intended contract, offer and
acceptance may be made orally, in writing, or by action or
inaction that under the circumstances is clearly indicative of
consent. Unless otherwise specified in the offer, there need
not be conformity between the manner in which the offer is
made and the manner in which the acceptance is made.41
However, the Agreement specifies that acceptance may be done by signature:
When such disputes are not resolved internally, JPMorgan
Chase provides for their resolution by binding arbitration as
described in this Binding Arbitration Agreement
("Agreement"). By signing this Agreement you acknowledge
that you waive your right to bring claims in court or to resolve
them before a jury. . .
38 Rec. Doc. 7-1 p. 6.
39 Id. at p. 2.
40 See generally Rec. Doc. 11.
41
By signing this Agreement, I acknowledge that I am waiving
my right to bring claims in court or resolve them before a
jury.42
The Agreement provides two blanks at the end of the document labeled “Signature”
and “Date”. Further, Plaintiff’s Employment Offer was conditional upon the
acceptance of the Agreement, which the Employment Offer specified could be
accepted by signature:
I understand my employment is subject to my and JPMorgan
Chase's agreement to submit employment-related disputes
that cannot be resolved internally to binding arbitration, as set
forth in the Binding Arbitration Agreement detailed below. By
signing below I acknowledge and agree that I have read and
understand the Binding Arbitration Agreement, have accepted
its terms and understand that it is a condition of my
employment with JPMorgan Chase.43
The Agreement and the Employment Offer, therefore, clearly indicate that
acceptance of the Agreement may be done by signature.
Plaintiff argues that Defendant “cannot prove [Plaintiff] actually signed the
Agreement” and “has not provided any evidence showing that [Plaintiff], himself,
actually signed the Agreement.”44 Thus, Plaintiff argues, the Court should not grant
the Motion to Compel because Defendant has not met its burden of proving the
existence of a valid, enforceable agreement to arbitrate.45 Plaintiff submits his own
affidavit in support of his position, in which he testifies that he does not recall and
does not believe that he signed an arbitration clause when filling out his onboarding
42 Rec. Doc. 7-2 p. 3, 6.
43 Rec. Doc. 7-2 p. 3.
44 Rec. Doc. 11 p. 4.
45
documents.46 In its Reply, Defendant attaches the Declarations of Karen Muscella
(“Muscella”) and Chayanee Ubol (“Ubol”), who each testify that the electronic
signatures appearing on the Agreement are attributable to Plaintiff.47 Plaintiff contests
the Muscella Declaration in a Motion to Strike, arguing that Muscella’s testimony
contains inadmissible legal conclusions and defective expert opinions that she is not
qualified to render.48
All of the parties’ factual and legal discussion regarding whether Plaintiff did or
did not electronically sign the Agreement is unavailing for the present Motion to
Compel.49 Applying Fifth Circuit jurisprudence to this matter, regardless of whether
Plaintiff signed the Agreement, Plaintiff accepted the conditions of his employment
contained in the Agreement by beginning and continuing his employment with
Defendant. Indeed, continued employment is an action that is “clearly indicative of
consent” as required by La. Civ. Code art. 1927.50 Thus, because it is uncontested
that Plaintiff was an employee of Defendant for over two years, the Court finds that
Plaintiff accepted the Agreement through conduct that clearly indicated his consent.
46 Rec. Doc. 11-1.
47 Rec. Doc. 17 p. 3.
48 Rec. Doc. 20-1 p. 2.
49 Plaintiff’s Motion to Strike the Muscella Declaration, Rec. Doc. 20, shall therefore be denied as moot, as
the Court need not consider Muscella’s testimony in reaching its conclusion.
50 Boxley v. Family Dollar Stores, Inc., 2020 WL 2104945 at *6 n.5 (W.D. La. 2020) (“Even if Boxley's
electronic signature were insufficient to show express written acceptance, her continued employment
after receipt of the Arbitration Agreement has been deemed sufficient to constitute acceptance under
Louisiana law.”) (citing Marino v. Dillard’s, Inc., 413 F.3d 530, 532-33 (5th Cir. 2005)). See also Banks
v. Waitr Holdings, Inc., 2019 WL 6883672 at *5 (W.D. La. 2019) (“Banks has never denied that she
received the email and attachments and she continued her employment with Waitr after receipt. Under
Louisiana law, Banks’ continued employment is sufficient to constitute acceptance of the Agreement to
2. Contract of Adhesion
Plaintiff argues that the Agreement is unenforceable as a contract of adhesion.
A contract of adhesion is a contract, usually in printed from, prepared by a party of
superior bargaining power for adherence or rejection by the weaker party.51 These
contracts often raise a question as to whether the contract is unenforceable due to a
lack of consent by the weaker, non-drafting party or by error.52 In applying the
standard from Aguillard v. Auction Mgmt. Corp, the Louisiana Supreme Court focused
on four factors that can signify an adhesionary contract:
(1) the physical characteristics of the arbitration clause, (2) the
distinguished features of the arbitration clause, (3) the
mutuality of the arbitration clause, in terms of the relative
burdens and advantages conferred by the clause upon each
party, and (4) the relative bargaining strength of the parties.53
Further, a party seeking to invalidate the contract as adhesionary must demonstrate
that the non-drafting party either did not consent to the terms in dispute or his consent
was vitiated by error, which in turn, renders the contract or provision unenforceable.54
The Court finds that an analysis of the Aguillard factors demonstrates that the
Agreement is not an adhesionary contract. The first and second Aguillard factors, the
physical characteristics and the distinguishable features of the arbitration clause,
weigh strongly against adhesion. The section of the document containing the
Agreement is set off by a bold, capitalized header and separate signature block55 and
the text of the Agreement is equivalently sized to the rest of the document.56 The text
51 Aguillard v. Auction Mgmt. Corp., 2004-2804 (La. 7/29/2005); 908 So. 2d 1, 9.
52 Id.
53 Dunn v. JP Morgan Chase Bank, 2020 WL 1984328 at *11 (E.D. La. 2020).
54 Aguillard, 908 So. 2d at 11.
55 Rec. Doc. 7-2 p. 3-6, See Dunn, 2020 WL at *12 (finding that a Binding Arbitration Agreement header
set off with bolding and underlining was sufficient to meet this factor).
56
of the Agreement appears to be a different font, but the chosen font does not render
the document illegible or unreasonably small.57 As for the third Aguillard factor, the
Agreement is mutually applicable. Nowhere in the Agreement does the Defendant
reserve the right to litigate any of the covered claims specified in the Agreement that
the Plaintiff is bound to arbitrate.58 Indeed, the Agreement expressly states that “[a]ny
and all ‘Covered Claims’ . . . between me and JPMorgan Chase . . . shall be submitted
to and resolved by final and binding arbitration in accordance with this Agreement.”59
Finally, the relative bargaining strength of the parties was not unequal. If Plaintiff did
not wish to sign the Agreement, then he could have negotiated for its removal or
sought employment elsewhere.60 Thus, the Court finds that the Agreement is not a
contract of adhesion and is enforceable.
B. Motion to Dismiss
Defendant moves to dismiss Plaintiff’s claims pending arbitration.61 Plaintiff
does not argue against dismissal in the event that the Court compels arbitration.62
The Court therefore deems Defendant’s Motion to Dismiss unopposed. Moreover, the
Fifth Circuit has held that dismissal may be ordered when all of the plaintiff’s claims
are subject to arbitration.63 Defendant’s Motion to Dismiss shall be GRANTED.
57 See Rec. Doc. 7-2; Dunn, 2020 WL at *12.
58 Rec. Doc. 7-2 p. 5, See Aguillard, 908 So. 2d at 17.
59 Rec. Doc. 7-2 p. 4.
60 Velazquez v. Brand Energy & Infrastructure Servs., 781 F.Supp. 2d 370, 377 (W.D. La. 2011) (citing
Simpson v. Pep Boys-Manny Moe & Jack, Inc., 2003-0358 (La. App. 4 Cir. 4/10/03); 847 So.2d 617,
622. See also Aguillard, 908 So. 2d at 16-17; Potier v. Morris Bart, L.L.C., 214 So. 2d 116, 123 (La. Ct.
App. 4 Cir. 3/15/17).
61 Rec. Doc. 7.
62 See Rec. Doc. 11.
63 Griggs v. S.G.E. Mgmt. L.L.C., 905 F.3d 835, 839 (5th Cir. 2018) (citing Alford v. Dean Witter Reynolds,
Inc., 975 F.2d 1161, 1164 (5th Cir. 1992)) (“Some circuits have held that district courts must stay a case
when all claims are submitted to arbitration, but this circuit allows district courts to dismiss such claims
III. CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss, Motion to Compel
Arbitration64 is GRANTED. Plaintiff’s claims against Defendant are dismissed without
prejudice pending arbitration between the parties.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on August 24, 2020.
S
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
64