Boyer v. Aetna Medicaid Administrators, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

PATRICIA BOYER, Case No. 1:23-cv-00141

Plaintiff,

v.

JUDGE DAVID A. RUIZ

AETNA MEDICAID

ADMINISTRATORS, LLC, MEMORANDUM OPINION & ORDER

Defendant.

I. Procedural Background

On January 24, 2023, Plaintiff Patricia Boyer (Plaintiff) filed a complaint against her former

employer, Defendant Aetna Medicaid Administrators, LLC (Defendant), alleging claims under Title

VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2 et seq.), the Age Discrimination in

Employment Act (ADEA), and Ohio Revised Code § 4112.02. (R. 1). Plaintiff seeks damages for

front and back pay, compensatory damages for emotional pain and suffering, interest, and

attorneys’ fees and costs. Id. On March 2, 2023, Defendant filed a “Motion to Dismiss Plaintiff’s

Complaint and to Compel Arbitration of Her Claims.” (R. 4). Defendant asserts that, as a condition

of Plaintiff’s employment, Plaintiff voluntarily agreed that any employment claims (excluding

claims under ERISA, for workers’ compensation, and unemployment benefits) must be brought and

decided only in binding arbitration administered by the American Arbitration Association (AAA).

(R. 4-1, PageID# 28).

As of today’s date, Plaintiff has failed to file any response.1

II. Factual Allegations

Plaintiff alleges that her employer failed to grant her a religious accommodation from the

company’s COVID-19 vaccine mandate, resulting in a violation of Title VII of the Civil Rights Act.

(R. 1, PageID# 1). Plaintiff asserts that she completed an Accommodation Application, in which

she was asked to “specify your Religious Belief or Practice for which you are requiring an

accommodation.” Id. at ¶12. Plaintiff responded by stating that: “[m]y strongly held religious

conviction/belief does not support, justify, condone (directly or indirectly) [sic] from innocent

human life by abortion, and that to do so is sinning against God!” Id. at 13. Plaintiff’s Complaint

indicates that her employer denied the request for accommodation because she had failed to

describe why her religious beliefs were contrary to receiving the COVID-19 vaccinations and that a

manager informed her she had one month to obtain the vaccination or face termination. Id. at ¶¶15-

16. Plaintiff asserts that she had not received any guidance indicating what was expected by her

employer in order to qualify as a sufficient description of her religious beliefs. Id. at ¶17. Plaintiff

was terminated after she did not obtain the COVID-19 vaccine. Id. at ¶22.

Plaintiff also alleges that, after she requested a religious accommodation, Defendant

subjected her to a hostile work environment and retaliated against her by terminating her

1 It is “well established” that the Court has the authority to grant a motion to dismiss because it is

unopposed, as a failure to respond to the motion may be treated “as a confession to” its merit. Demsey

v. R.J. Reynolds Tobacco Co., 2005 WL 1917934, at *2 (N.D. Ohio Aug. 10, 2005) (citing Cacevic

v. City of Hazel Park, 226 F.3d 483, 492 (6th Cir. 2000)); see also Brown v. Panther Premium

Logistics, Inc., 2017 WL 6502822, at *1 (N.D. Ohio Sept. 12, 2017) (Gaughan, C.J.) (“This Court

may interpret the absence of a response to a motion to dismiss as a waiver of opposition.”).

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employment. Id. at ¶¶ 19, 38-39, 47-48. Finally, Plaintiff asserts Defendant engaged in age

discrimination when she was not hired for a position that would have enabled her to work from

home. Id. at ¶¶ 22, 56.

III. Analysis

A. Applicable Law

The Federal Arbitration Act (FAA) “embodies the national policy favoring arbitration and

places arbitration agreements on equal footing with all other contracts.” Buckeye Check Cashing,

Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); accord In re: Auto.

Parts Antitrust Litig., 951 F.3d 377, 381 (6th Cir. 2020). The Sixth Circuit has explained:

It provides that a “written provision in ... a contract evidencing a transaction

involving commerce to settle by arbitration a controversy thereafter arising out of

such contract or transaction, ... or an agreement in writing to submit to arbitration an

existing controversy arising out of such a contract, ... shall be valid, irrevocable, and

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

any contract.” 9 U.S.C. § 2. Courts must, consistent with this text, “‘rigorously

enforce’ arbitration agreements according to their terms.” Am. Express Co. v. Italian

Colors Rest., 570 U.S. 228, 233, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013) (citation

omitted). And we resolve “any doubts concerning the scope of arbitral issues ... in

favor of arbitration.” Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 298,

130 S.Ct. 2847, 177 L.Ed.2d 567 (2010).

In re: Auto. Parts Antitrust Litig., 951 F.3d at 381.

As explained by a recent decision from this District:

The Sixth Circuit has set forth four tasks a court must engage in when considering a

motion to stay proceedings and compel arbitration:

First, it must determine whether the parties agreed to arbitrate; second, it must

determine the scope of that agreement; third, if federal statutory claims are

asserted, it must consider whether Congress intended those claims to be non-

arbitrable; and fourth, if the court concludes that some, but not all, of the

claims in the action are subject to arbitration, it must determine whether to stay

the remainder of the proceedings pending arbitration.

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McGee v. Armstrong, 941 F.3d 859, 856 (6th Cir. 2019) (quoting Stout v. J.D.

Byrider, 228 F.3d 709, 714 (6th Cir. 2000)). “[A]ny ambiguities in the contract or

doubts as to the parties’ intentions should be resolved in favor of arbitration.” Stout,

228 F.3d at 714.

Reulbach v. Life Time Fitness, Inc., No. 1:21 CV 1013, 2021 WL 2581565, at *4 (N.D. Ohio June

23, 2021) (Gaughan, J.).

B. The Arbitration Agreement

Defendant’s motion incorporates a declaration from its Lead Director, HR Policy,

Compliance and Workforce Reduction that includes multiple documents pertaining to Plaintiff’s

employment. In particular, Defendant has produced an offer letter to Ms. Boyer dated March 30,

2015, that “supersedes … [an] offer letter of March 23, 2015.” (R. 4-3, PageID# 44, Exh. 1). The

offer letter contains the following provision:

Arbitration Agreement: This offer and your acceptance are contingent upon

your agreement to use the Company’s mandatory/binding arbitration program

rather than the courts to resolve employment-related legal disputes. In arbitration,

an arbitrator instead of a judge or jury resolves the dispute, and the decision of the

arbitrator is final and binding.

The enclosed materials should answer any questions you have about Aetna's

Employment Dispute Arbitration Program. With respect to claims subject to the

arbitration requirement, arbitration replaces your right and the company’s right to

sue or participate in a lawsuit. You are advised to, and may take the opportunity

to, obtain legal advice before final acceptance of the terms of this offer. You will

be required to complete an electronic version of the enclosed Employment

Dispute Arbitration Acknowledgement form on your start date.

Id. at PageID# 45.

Defendant has also produced a document entitled “Description of Aetna’s Employment

Dispute Arbitration Program,” a two-page, sixteen paragraph document that begins with the

“[f]ollowing are provisions of Aetna’s Employment Dispute Arbitration Program:”

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1. Except as otherwise specified, all employment-related legal disputes between

employees and the Company will be submitted to and resolved by binding

arbitration, and neither the employee nor the company will file or participate as

an individual party or member of a class in a lawsuit in any court against the

other with respect to such matters. This shall apply to claims brought on or after

the date the employee becomes subject to this Program, even if the facts and

circumstances relating to the claim occurred prior to that date and regardless of

whether the employee or the Company previously filed a complaint/charge with

a government agency concerning this claim.

3s 2 3

3. ***A dispute as to whether this Program applies must be submitted to the

binding arbitration process set forth in this Program.

5. Unless otherwise agreed to, the arbitration will be administered by the

American Arbitration Association (the ‘AAA’) and will be conducted pursuant to

the AAA’s Employment Arbitration Rules and Mediation Procedures (the

‘Rules’), as modified in this Program in effect at the time the request for

arbitration is filed. For more information, visit the AAA website.

(R. 4-4, PageID# 48; Exh. 2).

Finally, Defendant also submitted an electronic form entitled “Aetna Employment Dispute

Arbitration Program Acknowledgement” which identifies Plaintiff by name (Boyer, Patty A) and by

her Aetna ID. (R. 406, PageID# 56, Exh. 4). The form contains the following acknowledgment:

Employee Acknowledgement

Lacknowledge that:

[X] *T have read the Arbitration Description and accompanying Questions and Answers and was offered an opportunity to review these

materials

[X] *T was advised that with respect to claims subject to arbitration, arbitration replaces my right and the Company’s right to sue or

participate in a lawsuit. I was further advised of my right toJobtain legal advice about arbitration before accepting the terms of my

offer.

[x] *My offer of employment was contingent upon my agreement to use Aetna’s mandatory/binding arbitration program rather than the

courts to resolve employment-related legal disputes. I agree to do so.

(R. 4-6, PageID# 56, Exh. 4).

C. Analysis

The Court finds it must enforce the terms of the arbitration agreement entered into by

Plaintiff and Defendant. Plaintiff has not filed a response and, thus, has not challenged the existence

or validity of the arbitration agreement, nor her assent to be bound by it. She has not challenged the

assertion that her complaint contains “employment-related legal disputes,” nor does it appear she

could credibly do so. According to the arbitration agreement, the only claims excluded from the

Arbitration Program are “workers’ compensation claims, unemployment compensation claims, and

claims under the Employee Retirement Income Security Act of 1974 (‘ERISA’) for employee

benefits.” (R. 4-4, PageID# 48, Exh. 2, ¶3).

Further, assuming arguendo that a good faith dispute could exist as to whether the

Complaint contains “employment-related legal disputes,” the Arbitration agreement unambiguously

states that “[a] dispute as to whether this Program applies must be submitted to the binding

arbitration process set forth in this Program.” Id. at ¶3.

In addition, the arbitration agreement explicitly states that “[u]nless otherwise agreed, the

arbitration will be administered by the American Arbitration Association (the ‘AAA’) and will be

conducted pursuant to the AAA’s Employment Arbitration Rules and Mediation.” Id. at ¶5. The

application of the AAA rules is significant, as it undercuts any potential argument that it is this

Court’s role to determine whether the claims in the Complaint are arbitrable.

The threshold question of arbitrability, often referred to as a “gateway issue,” may itself be a

question reserved to the arbitrator to decide. The Supreme Court has held that under the FAA

“parties may agree to have an arbitrator decide not only the merits of a particular dispute but also

gateway questions of arbitrability, such as whether the parties have agreed to arbitrate or whether

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their agreement covers a particular controversy.” Henry Schein, Inc. v. Archer & White Sales, Inc.,

202 L. Ed. 2d 480, 139 S. Ct. 524, 529 (2019) (“an agreement to arbitrate a gateway issue is simply

an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce,

and the FAA operates on this additional arbitration agreement just as it does on any other”) (internal

quotation marks and citations omitted). Nevertheless, courts “should not assume that the parties

agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so.”

Henry Schein, Inc., at 139 S. Ct. at 531.

Defendants argue that where an arbitration agreement expressly calls for arbitration to be

governed by the rules of the AAA, that provision is tantamount to an express delegation to the

arbitrator to decide the gateway issue of arbitrability. (R. 4-1, PageID# 35-36, citing Rule 6(a) of

the AAA rules). The Sixth Circuit Court of Appeals has addressed this issue as follows:

That brings us to the question in this case. In his arbitration agreement, Piersing

agreed that “[t]he American Arbitration Association (‘AAA’) will administer the

arbitration and the arbitration will be conducted in accordance with then-current

[AAA Rules].” … And those Rules provide that “[t]he arbitrator shall have the

power to rule on his or her own jurisdiction, including any objections with respect to

the existence, scope or validity of the arbitration agreement.” … The question for us

is whether that’s “clear and unmistakable” evidence that Piersing agreed to arbitrate

“arbitrability.”

There are good reasons to think it is. To start, the AAA Rules clearly empower an

arbitrator to decide questions of “arbitrability”—for instance, questions about the

“scope” of the agreement. And it’s long been settled that parties can incorporate

outside documents into a contract if their agreement says as much. Piersing’s

agreement says as much: it expressly incorporates the AAA Rules into the agreement

and even helpfully includes a link to the AAA’s website, from which one can easily

access the Rules. On its own terms, that’s pretty compelling evidence that Piersing

agreed to arbitrate “arbitrability.”

What the text suggests the case law confirms. The Supreme Court has itself said that

the AAA Rules “provide that arbitrators have the power to resolve arbitrability

questions.” And the Court has itself relied on the incorporation of the AAA Rules to

determine what the parties agreed to. It’s true that the Court has yet to put these

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pieces together so as to resolve the question in this case. But there’s no reason for

our court to wait to finish the puzzle. There’s little doubt about the final picture.

Our own circuit’s precedent counsels—and perhaps compels—the same outcome. In

a recent decision, our court relied on the incorporation of the AAA Rules to find that

the parties had “clearly and unmistakably” agreed to arbitrate “arbitrability.”

***

What’s more, district courts in our circuit have long found that the incorporation of

the AAA Rules provides “clear and unmistakable” evidence that the parties agreed to

arbitrate “arbitrability.” Just another persuasive reason for us to do the same. Finally,

consider that every one of our sister circuits to address the question—eleven out of

twelve by our count—has found that the incorporation of the AAA Rules (or

similarly worded arbitral rules) provides “clear and unmistakable” evidence that the

parties agreed to arbitrate “arbitrability.” And the one remaining circuit has

precedent suggesting that it would join this consensus. But to the extent that there’s

any ambiguity in our prior decisions, we officially do so today.

Blanton v. Domino’s Pizza Franchising LLC, 962 F.3d 842, 844-46 (6th Cir. 2020) (citations

omitted); accord Ciccio v. SmileDirectClub, LLC, 2 F.4th 577, 582 (6th Cir. 2021) (“By

incorporating the AAA rules, the parties agreed that an arbitrator would decide gateway questions

of arbitrability.”); Kentucky Peerless Distilling, LLC v. Fetzer Vineyards Corp., 2022 WL 1156963

at *4 (W.D. Ky. Apr. 19, 2022).

Therefore, assuming for the sake of argument that a gateway issue concerning the

arbitrability of Plaintiff’s claims exists, that is an issue to be addressed by the arbitrator. Under the

above cited binding authority, the parties’ agreement, by expressly stating that AAA rules will

apply, have clearly and unmistakably agreed to arbitrate arbitrability. Reinforcing this delegation to

the arbitrator is the express language of the arbitration agreement stating that “[a] dispute as to

whether this Program applies must be submitted to the binding arbitration process set forth in this

Program.” (R. 4-4, PageID# 48, Exh. 2 at ¶3).

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Given the above authority, the Court finds a binding and enforceable arbitration agreement

exists and, therefore, GRANTS Defendant’s Motion to Compel Arbitration.

IV. Conclusion

For the foregoing reasons, Defendants’ Motion to Enforce Arbitration and Dismiss this

action (R. 4) is GRANTED. This matter is hereby DISMISSED in its entirety.

IT IS SO ORDERED.

s/ David A. Ruiz

DAVID A. RUIZ

Date: August 15, 2023 UNITED STATES DISTRICT JUDGE

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