Jennings v. Ed Napleton Elmhurst Imports Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDRE JENNINGS, )

)

Plaintiff, ) No. 1:23-cv-14099

)

v. ) Judge John J. Tharp, Jr.

)

ED NAPLETON ELMHURST

)

IMPORTS INC.,

)

)

Defendant.

)

MEMORANDUM OPINION AND ORDER

Andre Jennings argues that this Court should determine whether his former employer, Ed

Napleton Elmhurst Imports Inc. (“Napleton”), engaged in unlawful discrimination and/or

retaliation. But Jennings signed a valid and binding arbitration agreement covering his claims, so

those questions are for an arbitrator, not the Court, to decide. For the reasons that follow, the Court

(1) grants Napleton’s motion to compel, and (2) stays these proceedings pending arbitration.

I. BACKGROUND

In April 2019, Jennings began working as a car salesman at Napleton’s Kia dealership in

Elmhurst, Illinois. The job involved three main responsibilities. First, and perhaps unsurprisingly,

Jennings was responsible for selling cars. Jennings would greet customers and show them around

the lot; after making a sale he would execute paperwork and “prepare the purchased [vehicle] for

departure.” See Jennings Decl. 2 ¶¶ 17-18, ECF No. 21-1 (preparation involved cleaning, retrieving

keys, assembling documents, and sometimes installing “add-on goods” at the dealership). Second,

Jennings was sometimes tasked with transporting cars from place to place. “If a customer did not

take the vehicle with them at the time of sale because they ordered custom work to be performed

at the dealership, for example,” salesmen would “at times . . . deliver the vehicle” directly to the

customer when ready. Id. ¶ 19. They would also transport cars as part of “dealer trades,” inventory

swaps aimed to help different dealerships “meet their respective [sales] needs.” Id. ¶ 20. Third and

finally, Jennings “assist[ed] in the loading and unloading process” for cars, driving new vehicles

from the car carrier to the lot and moving “auction-bound [unsold] vehicles” from the lot to the

carrier. Id. ¶¶ 23-24.

In practice, selling cars was the largest responsibility of the three. Jennings was not often

needed to transport cars; customers typically “pick[ed] up [their cars] at the dealership,” and if

they could not, the dealership would ask external vendors and non-sales employees for delivery

assistance before asking salespeople. Second Grayson Decl. 1 ¶ 4, ECF No. 25-1; see id. ¶ 3 (“[F]or

most vehicles . . . sold at Napleton, it [was] not necessary for a salesperson . . . to physically deliver

the car.”). The dealership followed a similar practice—asking external vendors and non-sales

employees for delivery assistance before asking salespeople—for dealer trades. And although it is

not clear how often Jennings helped load and unload car carriers,1 it is hard to imagine this

responsibility taking up more than a sliver of Jennings’ working time.

As Jennings tells it, the dealership was not a welcoming workplace. Jennings, an African

American man, was one of “two or three” African American employees out of the “sixty to

seventy-five employees” who worked at the dealership, and he alleges that he was “subjected to

an ongoing, racially hostile culture where frequent racial slurs, comments, stereotypes, and jokes”

were the norm. Compl. 4 ¶¶ 28-29, 32, ECF No. 1; see id. at 4-6 ¶¶ 34-54 (providing examples).

He also alleges that African American employees at the dealership faced more scrutiny and

1 Jennings indicates that the dealership “regularly” sent unsold inventory “to out-of-state

car auctions,” Jennings Decl. 2 ¶ 24, but “regularly” could reasonably mean every day, every

month, or every year, among other intervals. The record is silent on (1) how often the dealership

received shipments of new cars, and (2) how often salesmen, as opposed to non-sales employees,

were asked to help load and unload.

monitoring than white employees, that the dealership withheld commission payments due to

African American employees, and that the dealership retaliated against him for reporting these

problems. See id. at 6-8 ¶¶ 56-62, 66-68 (scrutiny and monitoring); id. at 8 ¶¶ 69-74

(compensation); id. at 9-11 ¶¶ 88-102 (retaliation).

The dealership fired Jennings in November 2022.2 Jennings then obtained a right-to-sue

letter from the EEOC and filed the instant suit in federal court.3 Jennings’ complaint asserts claims

of (1) a hostile work environment, (2) disparate treatment, and (3) retaliation in violation of 42

U.S.C. § 1981, Title VII, and the Illinois Human Rights Act (IHRA), and it seeks damages,

declaratory relief, and injunctive relief.

The complaint makes no mention of an arbitration agreement. Napleton, however, states

that Jennings signed a “Non-Solicitation Agreement and Agreement to Arbitrate Employment

Claims” (the “Agreement”) in September 2020 as a “condition of [his] continued employment.”

First Grayson Decl. 1 ¶ 4, ECF No. 9-2. The Agreement, as presented by Napleton, contains the

following language:

I AND THE COMPANY AGREE to utilize binding arbitration as the sole

and exclusive means to resolve all disputes that may arise out of or be related in

any way to my employment with the Company, its affiliates, parents, subsidiaries,

divisions and/or related companies. I and the Company each specifically waive and

relinquish our respective rights to bring a claim against the other in a court of law

and to have a trial by jury. . . . Included within the scope of this Agreement are all

disputes, whether based on tort, contract, statute (including, but not limited to, any

claims of discrimination, harassment and/or retaliation, whether they be based

2 The firing stemmed from an incident where an employee sat “within earshot” of Jennings

and a customer “providing sensitive information” related to a sale, apparently in violation of

Napleton policy. Compl. 8 ¶ 76. When Jennings asked the dealership’s general manager why the

employee was present, the manager provided what Jennings viewed as a “demeaning and

aggressive response,” and Jennings “responded in kind.” Id. at 9 ¶¶ 80, 83.

3 Jennings filed a complaint with both the EEOC and the Illinois Department of Human

Rights. The complaint indicates that Jennings “is in the process of obtaining a right to sue notice

from the Illinois Department of Human Rights.” Compl. 2 ¶ 9. To the extent Jennings obtained

such a notice since filing the complaint, it does not appear to have been docketed.

on... Title VII of the Civil Rights Act of 1964, as amended, or any other state or

federal law or regulation), equitable law, or otherwise. The only exceptions to

binding arbitration shall be for claims arising under the National Labor Relations

Act which are brought before the National Labor Relations Board, claims for

medical and disability benefits under state workers’ compensation laws, claims for

unemployment insurance, or other claims that are not subject to arbitration under

current federal law. . . . [NJothing herein shall prevent me from filing and pursing

proceedings before the United States Equal Employment Opportunity Commission

or similar state government agency that enforces state fair employment laws

(although if I choose to pursue a claim following the exhaustion of such

administrative remedies, that claim would be subject to the provisions of this

Agreement).

Agreement 1, ECF No. 9-3. Although Jennings says he has “no recollection of ever being presented

with, receiving, reviewing, or signing” the Agreement, he acknowledges that “[t]he signature on

the [Agreement] . . . appears to be [his] signature.” Jennings Decl. 1 8, 10. Nonetheless, Jennings

points to “writing on the [Agreement] in blue ink” that is not his handwriting, insisting that he

“would not have signed the [Agreement] . . . if it contained writing from someone other than

[himself] in sections of the document reserved for [his] completion, such as dates or printed

names.” /d. 4§ 10, 12. For reference, the following portions of the Agreement contain blue ink:

THIS NON-SOLICITATION AGREEMENT AND AGREEMENT TO ARBITRATE EMPLOYMENT

CLAIMS (“Agreement”) made between ED NAPLETON DEALERSHIP GROUP, defined herein as any business

owned and/or operated by and/or affiliated directly or indirectly with North American Automotive Services, Inc.

including, but not limited to, any and all affiliated operating entities running the day to day operations of any dealerships

which/are payt of and/pr,which may by e part of the Ed Napleton Dealership Group (“Employer” or the “Company”)

and a (“Employee”) (collectively, the “Parties”).

MY SIGNATURE BELOW ATTESTS TO THE FACT THAT I HAVE READ, UNDERSTAND,

AND AGREE TO BE LEGALLY BOUND TO ALL OF THE ABOVE TERMS. I FURTHER

UNDERSTAND THAT THIS AGREEMENT REQUIRES ME TO ARBITRATE ANY AND ALL

DISPUTES THAT ARISE OUT OF MY EMPLOYMENT AND TO ABIDE BY THE TERMS OF MY NON-

SOLICITATION AGREEMENT AS ABOVE.

EMPLOYEE □ ED NAPLETON DEALERSHIP GROUP

BY: BY: daz ot a _

Name: _/ At Name: | Bruce Etheridge

Date: “7? Title: | Chief Operating Officer

Date, 09/21/2020

Agreement 1-2. Jennifer Brown, a payroll administrator employed by Napleton from April 2019

to September 2021, has filed a declaration indicating that she “printed . . . Jennings’ name and the

date in blue ink” on the Agreement and watched Jennings sign the form. Brown Decl. 1 ¶ 5, ECF

No. 25-2.

In view of the Agreement, Napleton moves for an order (1) compelling arbitration under

section 4 of the Federal Arbitration Act (FAA), 9 U.S.C. § 4, and (2) dismissing the complaint for

lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1). If the Court does not dismiss the action

altogether, Napleton alternatively requests that the Court “stay the current proceedings pending

the outcome of binding arbitration.” Mot. 1 n.1, ECF No. 9; see 9 U.S.C. § 3. Jennings opposes

the motion, although he argues that a stay is more appropriate than dismissal if the Court finds his

claims to be arbitrable.

II. DISCUSSION4

A court may compel arbitration under the FAA “if the following three elements are shown:

a written agreement to arbitrate, a dispute within the scope of the arbitration agreement, and a

refusal to arbitrate.” Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 687 (7th Cir. 2005).

“Courts review motions to compel arbitration under a summary judgment standard,” meaning they

may consider evidence “beyond the pleadings” but “must accept the complaint’s allegations as

true[] and draw all justifiable inferences in the non-movant’s favor.” Lukis v. Whitepages Inc., 535

F. Supp. 3d 775, 790 (N.D. Ill. 2021); Varma v. TCC Wireless, LLC, 478 F. Supp. 3d 724, 729

(N.D. Ill. 2020) (quotation marks omitted) (citing Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th

4 The Court has jurisdiction over Jennings’ complaint pursuant to 28 U.S.C. §§ 1331 and

1343 (Title VII and § 1981 claims) and 28 U.S.C. § 1367 (IHRA claims), and it has jurisdiction

over Napleton’s motion to compel because it has jurisdiction over the “actual controversy between

the parties.” Vaden v. Discover Bank, 556 U.S. 49, 66 (2009) (quotation marks omitted); 9 U.S.C.

§ 4.

Cir. 2002)). That said, “[t]he party opposing arbitration bears the burden of establishing why the

arbitration provision should not be enforced.” Young v. Shipt, Inc., 563 F. Supp. 3d 832, 836 (N.D.

Ill. 2021) (citing Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91-92 (2000)). If the party

opposing arbitration identifies “a triable issue of fact concerning the existence of the [arbitration]

agreement,” then the motion to compel must be denied. Tinder, 305 F.3d at 735.

Napleton argues that the Court should compel arbitration because all three Zurich factors

are met. Jennings, on the other hand, argues that Zurich is inapposite because he is exempt from

the FAA. And regardless, Jennings says, the Court should not compel arbitration because (1) the

Agreement’s arbitration provisions are void under Illinois law, (2) there are genuine disputes of

material fact as to the Agreement’s authenticity, and (3) the Agreement does not cover “the bulk

of his claims.” Resp. 14, ECF No. 21. The Court, finding Jennings’ arguments unpersuasive, agrees

with Napleton.

A. The FAA

While the FAA “governs the enforcement, validity, and interpretation of arbitration

clauses . . . in both state and federal courts,” Jain v. de Méré, 51 F.3d 686, 688 (7th Cir. 1995), it

specifically exempts from its reach the employment contracts of transportation workers, Cir. City

Stores, Inc. v. Adams, 532 U.S. 105, 113-19 (2001) (interpreting 9 U.S.C. § 1). Jennings argues

that he qualifies as such a worker, and that this alone warrants denial of Napleton’s motion to

compel. See, e.g., Saxon v. Sw. Airlines Co., 993 F.3d 492, 503 (7th Cir. 2021) (reversing an order

compelling arbitration on this ground), aff’d, 142 S. Ct. 1783 (2022).5 “As the party opposing

5 Even if Jennings were deemed to be a member of a class of transportation workers, that

would not necessarily provide a “get out of arbitration free” card. Indeed, on remand of Saxon, the

defendant successfully moved to compel arbitration under the Illinois Uniform Arbitration Act.

See Saxon v. Sw. Airlines Co., No. 19-cv-00403, 2023 WL 2456382, at *2-5 (N.D. Ill. Mar. 10,

2023). The Court notes that the Agreement refers to “binding arbitration under the Federal

arbitration,” Jennings “bear[s] the burden of establishing that the [transportation-worker]

exemption applies.” Fli-Lo Falcon, LLC v. Amazon.com, Inc., 97 F.4th 1190, 1194 (9th Cir. 2024);

Young, 563 F. Supp. 3d at 836; see also, e.g., Osvatics v. Lyft, Inc., 535 F. Supp. 3d 1, 9 (D.D.C.

2021) (Jackson, J.).

To qualify as a transportation worker, an individual must belong to a class of workers that

“play[s] a direct and necessary role in the free flow of goods” and is “actively engaged in [the]

transportation of those goods across borders via the channels of foreign or interstate commerce.”

Saxon, 142 S. Ct. at 1790 (quotation marks omitted); see Wallace v. Grubhub Holdings, Inc., 970

F.3d 798, 800-01 (7th Cir. 2020).6 “To determine whether a class . . . meets [this] definition,” the

Court must “consider whether the interstate movement of goods is a central part of the class

members’ job description.” Wallace, 970 F.3d at 801. That requires not only an assessment of the

class’s responsibilities, but also a definition of the class itself. See Saxon, 142 S. Ct. at 1788-89.

In Jennings’ view, the interstate movement of goods is central to the job description of the

relevant class: “auto sales workers who buy, sell, and transport vehicles in foreign and interstate

commerce.” Resp. 4. Recall that, as a car salesman, Jennings was responsible for (1) selling cars,

(2) transporting cars to customers and other dealerships, and (3) removing new cars from, and

loading old cars onto, car carriers. See supra section I. All three responsibilities, Jennings says, are

common to the class and involve the interstate movement of goods. As to the first, “auto sales

Arbitration Act,” Agreement 1, but it takes no position on how this language would affect a non-

FAA motion to compel.

6 As then-Judge Barrett wrote in the Wallace opinion: “[I]n determining whether the

[transportation-worker] exemption applies, the question is not whether the individual worker

actually engaged in interstate commerce, but whether the class of workers to which the

complaining worker belonged engaged in interstate commerce.” 970 F.3d at 800 (cleaned up). This

means “that a member of the class qualifies for the exemption even if she does not personally

engage in interstate commerce.” Id. (quotation marks omitted).

workers who buy, sell, and transport vehicles in foreign and interstate commerce” regularly

“contract[] around [interstate] commerce” and prepare inventory for at least interstate delivery.

Resp. 4-5; see Jennings Decl. 1 ¶¶ 14-15 (workers receive cars “from other states and

internationally,” sell to customers located in other states, and prepare vehicles “for out of state

travel”). As to the second, transportation requires driving vehicles to out-of-state customers and

dealers.7 Jennings Decl. 1-2 ¶¶ 15, 19-22 (workers “physically transport[] vehicles” across

borders). And as to the third, loading and unloading cars traveling in interstate commerce is no

different than loading and unloading “cargo on a plane bound for interstate transit.” See Saxon,

142 S. Ct. at 1790 (holding that workers “who load cargo on and off airplanes” are transportation

workers); Jennings Decl. 1-2 ¶¶ 15, 23-25 (workers “assist[] in the loading and unloading of

vehicles onto [and from] incoming and outgoing car carriers”).

Napleton disagrees. The responsibilities above may be common to the class of auto sales

workers, it says, but “common to the class” should not be confused for “central part of the job

description.” Just as Uber drivers are “in the general business of giving passengers rides, not [in]

the particular business of offering interstate transportation to passengers,” auto sales workers are

in the general business of selling cars. Reply 3, ECF No. 25; see Mahwikizi v. Uber Techs., Inc.,

No. 22-cv-03680, 2023 WL 2375070, at *4-5 (N.D. Ill. Mar. 6, 2023) (“[I]nterstate transport is not

a central feature of Uber drivers’ jobs. The data reflects that Uber drivers are in the general business

of giving people rides, not in the particular business of offering interstate transportation to

passengers. . . . [The] Court concludes that Uber drivers like [the plaintiff] do not fall within

7 Although Napleton faults Jennings for failing to establish “the number of occasions he

was [personally] involved in transporting automobiles across state lines related to customer sales

or dealership trades,” Reply 4, ECF No. 25, the analysis here focuses on the class to which Jennings

belongs, not Jennings himself, see supra note 6.

Section 1 of the FAA . . . .” (quotation marks omitted)). To the extent auto sales workers interact

with interstate commerce, that interaction is either (1) infrequent and incidental, or (2) irrelevant

to the Court’s inquiry.

To determine which side is correct, the Court must first define the relevant class of workers.

The parties seem to agree that the class encompasses “auto sales workers who do what Jennings

did,” and the Court finds this definition appropriate.8 See Saxon, 142 S. Ct. at 1788 (class is “based

on what [an individual] does” for the company). But what, exactly, did Jennings do? It is

undisputed that, at a high level, Jennings’ job responsibilities included selling, transporting, and

loading and unloading cars. It is also undisputed, however, that Jennings transported cars only

rarely (if at all).9 And even viewing the facts in the light most favorable to Jennings, the Court

cannot “justifiabl[y] infer[]” that someone employed as a car salesman was primarily focused on

driving vehicles to and from car carriers (as opposed to selling cars). Varma, 478 F. Supp. 3d at

729 (quotation marks omitted); see supra note 1 and accompanying text (noting that the record

lacks detail in this regard).10 Jennings therefore belongs to a class of workers who (1) sell cars,

8 Although the parties use slightly different terms to describe the class—Napleton uses

“auto sales employees,” Reply 2-4, and Jennings prefers the lengthier “auto sales workers who

buy, sell, and transport vehicles in foreign and interstate commerce,” Resp. 4—they both engage

with all of the job responsibilities Jennings describes. To the extent Napleton believes a more

generic definition is appropriate (perhaps just auto sales workers, who may or may not drive cars

to customers, interact with carriers, and so on), the Court views the specific definition as the better

one. Nonetheless, the Court observes that if “auto sales workers who do what Jennings did” are

not transportation workers, then “auto sales workers responsible only for selling cars” are a fortiori

not transportation workers.

9 Jennings does not take issue with the dealership’s “order of operations” as to transporting

vehicles (vendor, non-sales employee, salesman) as articulated in the second Grayson declaration,

and he does not attest to how frequently Napleton salesmen (1) actually transported cars, or

(2) were asked to do so. In fact, Jennings acknowledges—at least in the context of customer

deliveries—that sales workers would only transport vehicles “at times.” Jennings Decl. 2 ¶ 19.

10 Not only is an inference that Jennings spent the majority of his time loading and

unloading cars unjustified, but it would also invert the burden of proof on the transportation-worker

issue. Jennings could have, if true, stated in his declaration that car salesmen loaded and unloaded

(2) occasionally transport vehicles to customers and other dealers, and (3) occasionally load and

unload car carriers. Cf. Saxon, 142 S. Ct. at 1789 (concluding that the plaintiff “belongs to a class

of workers who physically load and unload cargo on and off airplanes on a frequent basis”). For

readability, the Court refers to this class as the “auto sales class” going forward.

Is the interstate movement of goods a “central part” of this class’s job description? Wallace,

970 F.3d at 801. To define the class is more or less to answer the question. Central to the job

description of the auto sales class is, as the name suggests, selling cars; other activities, like

transporting vehicles and loading and unloading carriers, are ancillary. Thus, even assuming those

activities involve interstate commerce,11 they do not make members of the auto sales class

transportation workers. See id. at 800 (“[S]omeone whose occupation is not defined by its

engagement in interstate commerce does not qualify for the exemption just because she

occasionally performs that kind of work.”); see also, e.g., Hill v. Rent-A-Center, Inc., 398 F.3d

1286, 1289-90 (11th Cir. 2005) (account manager “who as part of his job duties transports

merchandise across the Georgia/Alabama border” is not “within a class of workers within the

transportation industry”); Mahwikizi, 2023 WL 2375070, at *4 (“That drivers like [the plaintiff]

sometimes incidentally take riders across state lines does not make their occupations centered on

the interstate movement of goods . . . .” (quotation marks omitted)). Jennings’ arguments that

cars traveling in interstate commerce at some frequent interval. That he did not, and that the record

is silent on the matter, can only work against him.

11 And it is not clear from the record that they do. The second Grayson declaration, for

example, indicates that Napleton was even more inclined to use a vendor for customer and

dealership deliveries “over long distances and/or across state lines.” Second Grayson Decl. 1 ¶ 3.

Insofar as the auto sales class is defined by the work Jennings performed, then, “occasional

transportation” does not necessarily involve any interstate transportation. It might be reasonable

to infer that Napleton’s new and auction-bound cars usually (1) came from, or (2) were destined

for another state, but given that Jennings was employed as a car salesman, not a car-carrier loader,

that question is of little consequence.

members of the auto sales class are transportation workers because they (1) deliver cars, and

(2) load and unload carriers therefore come up short.

Jennings’ remaining argument—that members of the auto sales class are transportation

workers because they sell and prepare cars traveling in interstate commerce—fails as well. True,

as noted, selling cars is central to the job description of the auto sales class. And true, some of the

cars sold and prepared in one state (here, Illinois) may be bound for another.12 But the FAA’s

transportation-worker exemption “is about what the worker does, not just where the . . . goods

have been,” Mahwikizi, 2023 WL 2375070, at *4, and selling and preparing cars that will travel

out of state does not actually involve “moving those goods across state or national borders,”

Wallace, 970 F.3d at 802; cf. id. (rejecting the argument that Grubhub drivers are transportation

workers because they deliver goods that may have traveled from another state or country). Put

differently, selling and preparing cars on a dealership lot does not “actively engage[]” members of

the auto sales class in transportation “via the channels of foreign or interstate commerce.” Saxon,

142 S. Ct. at 1790 (quotation marks omitted). So even though selling cars is “central” to what

workers in the auto sales class do, it does not involve “the interstate movement of goods” for

purposes of the transportation-worker exemption. Wallace, 970 F.3d at 801.

Jennings pushes back against this conclusion. “It is not in dispute,” he notes, that the FAA

generally applies to the Agreement because Napleton “is [involved] in interstate commerce.” Resp.

5; see 9 U.S.C. § 2 (provisions of the FAA have force for “contract[s] evidencing . . . transaction[s]

involving commerce”); First Grayson Decl. 1 ¶ 2 (“The dealership sells cars and goods that are

received from various other states and internationally . . . [and] sells cars to and services customers

12 Although again, it is not clear from the record how often Napleton sold to and/or prepared

cars for out-of-state customers, as opposed to residents of Illinois. As noted, silence in the record

can only work against Jennings on this point. See supra note 10.

who are residents of states other than Illinois . . . .”). How can it be that Napleton is involved in

interstate commerce, but its salespeople—the “very feet on the ground for all aspect[s] of

[that] . . . commerce”—are not? Resp. 5. It is “illogical,” Jennings maintains, to say that “a business

[can] be [involved] in interstate commerce, but somehow none of its [sales] workers [can] be

considered to be actually engaged in interstate commerce.” Id. at 6.

But that analysis misses the mark, largely because it construes “engaged in interstate

commerce” too broadly. The transportation-worker exemption is a “narrow” one, Wallace, 970

F.3d at 803, and again, it applies only to those workers “actively engaged in [the] transportation

of . . . goods across borders” via relevant channels, Saxon, 142 S. Ct. at 1790 (quotation marks

omitted). A company can be involved in interstate commerce and employ salesmen who do not

fall into this narrow category: Perhaps, as here, the salesmen facilitate interstate sales but stay

almost entirely local. As the Seventh Circuit wrote in rejecting an argument nearly identical to the

one advanced by Jennings, “[t]here is . . . nothing remarkable” about a business engaged in

interstate commerce employing someone who fails to meet the “stringent” transportation-worker

test. Wallace, 970 F.3d at 803; see id. at 802-03 (noting that “involving commerce,” 9 U.S.C. § 2,

is much broader than “engaged in . . . commerce,” 9 U.S.C. § 1, the language on which the

transportation-worker exemption is based).

Given the above, the Court agrees with Napleton. More specifically, the Court agrees that,

to the extent members of the auto sales class interact with interstate commerce, that interaction is

either (1) incidental rather than central (transporting, loading and unloading), or (2) irrelevant to

the Court’s inquiry, which focuses on the actual, physical movement of goods rather than where

the goods have been or are going (selling). Members of the auto sales class are not transportation

workers, and the FAA’s provisions apply to Jennings.13

B. The Agreement

Even so, Jennings says, the Court should deny Napleton’s motion to compel for three

reasons. First, the Agreement’s arbitration provisions are void under the Illinois Workplace

Transparency Act (IWTA), 820 Ill. Comp. Stat. 96/1-1 et seq. Second, and in any case, “the making

of the [Agreement] is seriously disputed.” Tinder, 305 F.3d at 735. And third, even assuming no

issue of material fact, the Agreement does not cover many of Jennings’ claims. See Zurich, 417

F.3d at 687. All three arguments fail.

1. The IWTA

The IWTA, which aims to “protect the interest of [the] State in ensuring all workplaces are

free of unlawful discrimination and harassment,” declares certain types of employment agreements

unenforceable. 820 Ill. Comp. Stat. 96/1-5. As relevant here, the Act states the following:

Any agreement, clause, covenant, or waiver that is a unilateral condition of

employment or continued employment and requires the employee or prospective

employee to waive, arbitrate, or otherwise diminish any existing or future claim,

13 This conclusion accords with common sense, as few would say that car salesmen

“perform[] work analogous to that of seamen and railroad employees.” Wallace, 970 F.3d at 802;

see 9 U.S.C. § 1 (“[N]othing herein contained shall apply to contracts of employment of seamen,

railroad employees, or any other class of workers engaged in foreign or interstate commerce.”);

Cir. City, 532 U.S. at 114-15 (deriving the transportation-worker exemption in part from the canon

of ejusdem generis, which says that “where general words follow specific [ones] in a statutory

enumeration, the general words are construed to embrace only objects similar in nature to those

objects [previously] enumerated” (cleaned up)). It is also accords with the holdings of other courts,

which have “uniformly enforced the arbitration agreements entered into by the employees of car

dealerships under the FAA.” Tran v. Tex. Lincoln Mercury, Inc., No. 07-cv-01815, 2007 WL

2471616, at *5 (S.D. Tex. Aug. 29, 2007); see, e.g., id. at *5-6 (salesman and manager);

Doucette v. CarMax Auto Superstores Inc., No. 19-cv-10031, 2020 WL 1332836, at *3-5 (D.

Mass. Mar. 23, 2020) (salesman who occasionally arranged interstate transportation); Galarza v.

Greenway Auto., Inc., No. 16-cv-01251, 2016 WL 11430952, at *1 (M.D. Fla. Dec. 19, 2016)

(manager who routinely drove cars to other states); Drawdy v. Don Jackson Chrysler Dodge Jeep,

Inc., No. 14-cv-03490, 2015 WL 12591774, at *3 (N.D. Ga. Feb. 5, 2015) (salesman).

right, or benefit related to an unlawful employment practice to which the employee

or prospective employee would otherwise be entitled under any provision of State

or federal law, is against public policy, void to the extent it denies an employee or

prospective employee a substantive or procedural right or remedy related to alleged

unlawful employment practices, and severable from an otherwise valid and

enforceable contract under this Act.

Id. 96/1-25(b). Jennings argues that this language effectively voids the Agreement’s arbitration

provisions: Napleton imposed those provisions (and the Agreement as a whole) as a unilateral

condition of continued employment,14 and they require Jennings to arbitrate any claim related to

an unlawful employment practice. See id. 96/1-15 (defining “[u]nilateral condition of . . . continued

employment” as something “an employer requires an employee . . . to accept as a non-negotiable

material term in order to . . . retain employment,” and “[u]nlawful employment practice” as “any

form of unlawful discrimination, harassment, or retaliation” actionable under, among other

statutes, Title VII and/or Article 2 of the IHRA). The provisions are thus “against public policy,”

and Illinois courts will not enforce them. Id. 96/1-25(b); Dowd & Dowd, Ltd. v. Gleason, 693

N.E.2d 358, 370 (Ill. 1998); see also, e.g., Swanson v. Sw. Airlines Co., No. 21-cv-05595, 2023

WL 5509357, at *4 (N.D. Ill. Aug. 26, 2023). Alternatively, Jennings argues that the above

language voids the arbitration provisions outright. Those provisions, after all, deprive Jennings “of

his . . . right[] to a jury trial by demanding [that] he pursue his claims in arbitration.” Resp. 8.

14 Napleton disputes this assertion, arguing instead that the arbitration provisions were a

mutual condition of continued employment. 820 Ill. Comp. Stat. 96/1-25(c); see id. 96/1-15

(defining “[m]utual condition of . . . continued employment” as something “negotiated between

an employer and an employee . . . in good faith for consideration in order to . . . retain

employment”). But because the Agreement does not explicitly acknowledge certain employee

rights, the IWTA creates a “rebuttable presumption” that Napleton acted unilaterally. See id. 96/1-

25(c)-(d). Napleton has not rebutted that presumption: The record shows no evidence of good-faith

negotiation, and Napleton itself indicates that it merely “presented” the Agreement to Jennings for

signature. First Grayson Decl. 1 ¶ 4; see also Brown Decl. 1-2 ¶¶ 4, 6. Jennings is therefore correct

that (1) a unilateral condition of employment is at issue, and (2) the portion of the IWTA cited

above applies.

Jennings’ claims, even if correct as a matter of Illinois law,15 run headlong into the FAA.

That law applies here, and as an apparent matter of first impression,16 it preempts the relevant

language of the IWTA. See supra section II.A; Preston v. Ferrer, 552 U.S. 346, 353 (2008) (noting

that “[t]he FAA’s displacement of conflicting state law,” which “forecloses state . . . attempts to

undercut the enforceability of arbitration agreements,” is well established “and has been repeatedly

reaffirmed” (cleaned up)).

The Supreme Court laid out the test for FAA preemption in AT&T Mobility LLC v.

Concepcion, where it distinguished between two categories of state laws: those that “prohibit[]

outright the arbitration of a particular type of claim,” and those that are “generally applicable” but

can be “applied in a fashion that disfavors arbitration.” 563 U.S. 333, 341 (2011). The analysis for

laws in the second category is case specific,17 but as a general rule, they “are preempted if in

15 Given the discussion that follows, the Court need not decide whether the Agreement’s

arbitration provisions are unenforceable or otherwise void under the IWTA. The parties do not

dispute that Illinois law governs the Agreement.

16 To the Court’s knowledge, all prior decisions to consider both the IWTA and the FAA

either found the IWTA inapplicable or the preemption argument forfeited. See Saxon, 2023 WL

2456382, at *5 (no unlawful employment practice at issue); Swanson, 2023 WL 5509357, at *4

(agreement signed before IWTA’s effective date); Nanberg v. 21st Century Flooring, LLC,

No. 21-cv-06623, 2022 WL 4482761, at *2-3, *3 n.3 (N.D. Ill. Sept. 27, 2022) (same); Budzyn v.

KFC Corp., No. 21-cv-04152, 2022 WL 595735, at *3 (N.D. Ill. Feb. 28, 2022) (same); Snow v.

Pepsi MidAmerica Co., No. 21-cv-01206, 2022 WL 2106249, at *6 (S.D. Ill. June 10, 2022)

(question delegated to arbitrator); Wembi v. Gibson’s Rest. Grp. Mgmt. Co., No. 21-cv-00586,

2021 WL 2272399, at *2 (N.D. Ill. May 13, 2021) (argument forfeited). In this case, however, the

IWTA applies and Jennings has not forfeited his preemption argument. Regarding the former,

Jennings signed the Agreement after the IWTA’s effective date, there are unlawful employment

practices at issue, and the Agreement specifies that disputes “regarding . . . scope or

enforceability . . . shall be resolved by a court.” Agreement 1-2; see 820 Ill. Comp. Stat. 96/1-

10(c), 96/99-99 (effective date of IWTA is January 1, 2020). Regarding the latter, although

Jennings does not specifically reference preemption, the Court considers his argument that the

motion to compel should be denied under the IWTA sufficient to preserve the issue. Jennings

implicitly argues that the IWTA is not preempted, perhaps because it falls within the FAA’s

savings clause. See infra note 17.

17 The FAA states that “[a] written provision in any . . . contract evidencing a transaction

involving commerce to settle by arbitration a controversy thereunder . . . shall be valid,

practice they have a disproportionate impact on arbitration or interfere with fundamental attributes

of arbitration and thus create a scheme inconsistent with the FAA.” Mortensen v. Bresnan

Commc’ns, LLC, 722 F.3d 1151, 1159 (9th Cir. 2013) (cleaned up); see Concepcion, 563 U.S. at

341-44. The analysis for laws in the first category, on the other hand, “is straightforward: The

conflicting rule is displaced.” Concepcion, 563 U.S. at 341.

The IWTA, as Jennings attempts to apply it, falls squarely into the first category. By

making unenforceable (either via public policy or voidness) “[a]ny [unilateral] agreement . . . [to]

arbitrate” claims of workplace misconduct, the IWTA categorically prohibits “the arbitration of a

particular type of claim.” 820 Ill. Comp. Stat. 96/1-25(b); Concepcion, 563 U.S. at 341. Its

language to that effect is therefore preempted by the FAA, and Jennings cannot rely on that

language in opposing Napleton’s motion to compel. Cf. Marmet Health Care Ctr., Inc. v. Brown,

565 U.S. 530, 532-33 (2012) (per curiam) (finding preempted a West Virginia law prohibiting

“agreements to arbitrate personal-injury or wrongful-death claims against nursing homes”). His

argument that the IWTA prevents arbitration is unavailing.

2. Formation

IWTA aside, Jennings argues that compelling arbitration in response to Napleton’s motion

would be premature. That is so, in Jennings’ view, because there are “genuine disputes of material

fact concerning” the formation, and thus the validity, of the Agreement. Resp. 10. Those disputes

“at minimum” require discovery to resolve, so the motion must—at least for the time being—be

irrecoverable, and enforceable, save upon such grounds as exist at law or in equity for the

revocation of any contract.” 9 U.S.C. § 2. The second portion of this sentence—the FAA’s savings

clause—allows individuals to resist arbitration using “generally applicable” contract defenses

“such as duress or . . . unconscionability.” Concepcion, 563 U.S. at 341. The Supreme Court

clarified in Concepcion that while the savings clause preserves such generally applicable defenses,

“nothing in it suggests an intent to preserve [ostensibly generic] state-law rules that stand as an

obstacle to the accomplishment of the FAA’s objectives.” Id. at 343.

denied. Id.; see Tinder, 305 F.3d at 735 (“A district court must promptly compel arbitration once

it is satisfied that the parties agreed to arbitrate. But if the . . . court determines that the making of

the arbitration agreement is seriously disputed, the court shall proceed summarily to the trial

thereof.” (cleaned up)).

Jennings flags two specific disputes “that [any] reasonable fact finder would need

[resolved] before wholesale accepting” that the Agreement is valid. Resp. 12. First, Jennings points

to the text in blue ink. That text contains someone else’s handwriting, he notes, and his declaration

indicates “under no uncertain terms that he would not have signed a contract if it contained writing

that was not his.” Id. at 13. Additionally, the declaration states that Jennings “would not have

signed any contract” with Napleton without first (1) entering the date below the signature line, and

(2) printing his name where required. Id. But those are the precise areas of the Agreement where

the blue text appears. See supra section I. Second, Jennings emphasizes that he “has no memory

of discussing arbitration with [Napleton] or ever signing an arbitration agreement.” Reply 12.

Taken together, Jennings argues, these disputes create a triable issue of fact as to whether he

actually signed the Agreement.18

18 Jennings also argues that Napleton “fail[ed] to properly authenticate the Agreement”

because, in support of the Agreement’s validity, it proffered only a secondhand account of the

signing not based on personal knowledge. Resp. 11; see First Grayson Decl. 1 ¶ 4 (“In September

2020, as a condition of continued employment, Napleton presented Jennings with a Non-

Solicitation Agreement and Agreement to Arbitrate Employment Claims . . . .”); Fed. R. Civ.

P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on

personal knowledge, set out facts that would be admissible in evidence, and show that the affiant

or declarant is competent to testify on the matters stated.”). Napleton filed a new declaration

addressing this argument, however, and the Court sees no reason to consider the argument in detail

here. See Brown Decl. 1-2 ¶¶ 4-7; Lyon Fin. Servs., Inc. v. Jude’s Med. Ctr., Ltd., No. 10-cv-

06957, 2011 WL 6029195, at *3 (N.D. Ill. Dec. 5, 2011) (“Because [the non-movant] contested

the basis for the affidavit in his response brief, it was appropriate for [the movant] to include

additional support with its reply.”).

Not so. As Napleton points out, Jennings “carefully avoids outright denying” that he signed

the Agreement. Reply 8. He does not affirmatively state, in other words, that he did not sign the

Agreement; he simply asserts, speculatively, that he (1) would not have signed the Agreement, and

(2) does not remember doing so. The case law in this District draws a clear line between a

plaintiff’s testimony that “he or she does not remember receiving or executing an arbitration

agreement” (insufficient to create a genuine dispute of fact) and a plaintiff’s testimony

“unequivocally den[ying] ever receiving or signing” such an agreement (sufficient to create such

a dispute), and Jennings falls on the “does not remember” side of the line.19 See Muhammad v.

Dollar Tree, No. 18-cv-04192, 2020 WL 1530750, at *4 (N.D. Ill. Mar. 31, 2020) (emphasis

omitted) (citing cases); compare, e.g., Tinder, 305 F.3d at 735-36 (affidavit stating that plaintiff

“does not recall seeing or reviewing” arbitration agreement does not raise factual issue (quotation

marks omitted)), with Wembi v. Gibson’s Rest. Grp. Mgmt. Co., No. 21-cv-00586, 2021 WL

2272399, at *2 (N.D. Ill. May 13, 2021) (affirmative statement by plaintiff that he “never signed

the arbitration agreement . . . [or] knew of its existence,” rooted in firsthand knowledge and “made

under threat of penalty of perjury,” sufficient to create dispute).

Jennings’ assertions, therefore, are not enough to create a genuine issue of material fact.

Jennings avers “only that [he] does not remember” signing (or would not have signed) the

Agreement, “whereas the uncontroverted” declaration of Jennifer Brown indicates that, on

September 30, 2020, Brown “printed . . . Jennings’ name and the date in blue ink on the . . .

Agreement,” personally handed the Agreement to Jennings, and watched him sign. Tinder, 305

19 In the Court’s view, the “would not have signed” statement carries no more weight than

the “does not remember” statement for purposes of the relevant analysis. To the extent the

statements differ, however, Jennings offers no explanation as to why he would have refused to

sign a document merely because his name was already printed on it. The signature, not the text in

blue ink, bound Jennings to the Agreement.

F.3d at 736; Brown Decl. 1 ¶ 5; see id. at 1-2 ¶¶ 4-6. Perhaps Jennings now (1) believes he would

not have signed the Agreement, or (2) has forgotten that he signed. But Jennings’ signature is on

the document, a Napleton employee witnessed him sign it on the relevant date, and no record

evidence casts doubt on either of those facts. Because Jennings has not “identif[ied] specific

evidence in the record demonstrating a material factual dispute” as to whether he and Napleton

“are bound by a contract to arbitrate,” his argument regarding formation, too, is unavailing.20

Tinder, 305 F.3d at 735.

3. Scope

All of the above notwithstanding, Jennings still insists that Napleton’s motion to compel

arbitration should be denied, at least in part. The FAA may apply, and the Agreement may be valid

and enforceable. But compelling arbitration requires “a dispute within the scope of the arbitration

agreement,” Zurich, 417 F.3d at 687, and Jennings maintains that the Agreement does not cover

“the bulk of [the relevant] claims,” Resp. 14. To support that argument, Jennings cites Hendrick v.

Brown & Root, Inc., a case from the Eastern District of Virginia, for the proposition that “an

arbitration agreement may not be used to reach back to cover disputes arising before the agreement

was executed.” 50 F. Supp. 2d 527, 537 (E.D. Va. 1999) (quotation marks omitted). Jennings

signed the Agreement in September 2020, but the complaint alleges “that he was subjected to racial

harassment and disparate treatment based on his race” beginning in 2019; under Hendrick, it would

20 Jennings does not argue that the Agreement is invalid for any other reason, such as lack

of consideration. See Mem. 8-11, ECF No. 9-1 (explaining that the Agreement “is a valid and

enforceable contract” because it “consists of an offer, an acceptance, and consideration”). That is

probably wise, as there is no dispute that Napleton offered the Agreement to Jennings, and

“continued employment is sufficient consideration for the enforcement of employment

agreements” under Illinois law. Melena v. Anheuser-Busch, Inc., 847 N.E.2d 99, 109 (Ill. 2006);

see also, e.g., Muhammad, 2020 WL 1530750, at *3 (mutual promises to arbitrate can act as

consideration).

be “inappropriate to compel . . . arbitration on claims that accrued” before the Agreement’s

effective date. Resp. 14.

But Jennings omits key language from Hedrick. Here is the remainder of the sentence just

quoted: “[A]n arbitration agreement may not be used to reach back to cover disputes arising before

the agreement was executed, unless such preexisting disputes are brought within the scope of the

clause.” Hendrick, 50 F. Supp. 2d at 537 (quotation marks omitted). That addition is critical here,

as the Agreement clarifies that it applies to “all disputes . . . aris[ing] out of or . . . related in any

way to” Jennings’ employment with Napleton.21 Agreement 1. Clauses that “speak[] in terms of

relationships and not timing” encompass all claims, past and future, and it follows that the

Agreement explicitly brings “preexisting disputes . . . within [its] scope.” Whisler v. H.J.

Meyers & Co., 948 F. Supp. 798, 802 (N.D. Ill. 1996) (quotation marks omitted); Hendrick, 50 F.

Supp. 2d at 537 (cleaned up). Jennings’ argument to the contrary lacks merit, and to the extent

claims arising after September 2020 must be submitted to arbitration, claims arising before that

date must be submitted to arbitration as well.

So, are claims arising after September 2020 within the scope of the Agreement? The answer

is a clear (and undisputed) yes. Jennings’ claims intuitively arise out of and/or relate to his

employment at Napleton, and as Napleton points out, “harassment, discrimination, and retaliation

claims are specifically identified as the type of claims covered by the . . . Agreement.” Mem. 12,

21 And Hendrick, which concerned “four discrete and separate . . . agreements spanning

specific periods of time and with lengthy gaps between each agreement,” is distinguishable in any

event. See Levin v. Alms & Assocs., 634 F.3d 260, 269 (4th Cir. 2011) (cabining Hendrick and

holding that an arbitration clause applying to “any dispute between the parties” has retroactive

effect (quotation marks omitted)); Zink v. Merrill Lynch Pierce Fenner & Smith, Inc., 13 F.3d 330,

332 (10th Cir. 1993) (stating the more general rule that “arbitration agreements are . . . to be

broadly construed . . . in favor of coverage” and rejecting the assertion that “an agreement to

arbitrate a dispute must pre-date the actions giving rise to the dispute” to be enforceable).

ECF No. 9-1 (quotation marks omitted); see Agreement 1 (“Included within the scope of this

Agreement are all disputes, . . . including, but not limited to, any claims of discrimination,

harassment and/or retaliation . . . [under] Title VII . . . or any other state or federal law or

regulation . . . .”). All of the claims asserted by Jennings are therefore covered by the Agreement

and arbitrable.

* * *

To recap: Because (1) Jennings is not a transportation worker, and (2) the FAA preempts

the language in the IWTA barring arbitration, the FAA governs the Agreement. There is no

genuine dispute that the Agreement is valid and binding, and all of Jennings’ claims (regardless of

accrual date) fall within the scope of the Agreement itself. And finally, as evidenced by the filing

of this suit and Jennings’ opposition brief, there has been “a refusal to arbitrate.” Zurich, 417 F.3d

at 687. All three Zurich factors are met, and the Court grants Napleton’s motion to compel

arbitration under the FAA. See 9 U.S.C. § 4.

C. Motion to Dismiss

Napleton asserts that, in light of its decision to compel arbitration, the Court must (or at

least should) dismiss Jennings’ complaint pursuant to Fed. R. Civ. P. 12(b)(1). Napleton does not

elaborate on or provide case law in support of its assertion; instead, it implies that a finding of

arbitrability deprives the Court of jurisdiction and requires dismissal with prejudice on that ground.

See, e.g., Mot. 2 ¶ 4 (“Thus, in light of the mandates of the [FAA] and [the] contractual

agreement, . . . this Court should compel arbitration of this matter and order [the claims] to be

heard exclusively in an arbitral forum. In doing so, this Court should dismiss [the] Complaint, with

prejudice, for lack of jurisdiction . . . .”).

Napleton’s implication is incorrect. “An arbitration clause is a type of forum-selection

clause,” and an agreement to arbitrate “does not affect a district court’s subject-matter

jurisdiction.” Grasty v. Colo. Tech. Univ., 599 F. App’x 596, 597 (7th Cir. 2015). Because the

Court has jurisdiction over this case, see supra note 4, and because its jurisdiction persists

regardless of whether there is a valid, enforceable arbitration agreement, the Court finds dismissal

under Fed. R. Civ. P. 12(b)(1) inappropriate.22 Napleton’s motion to dismiss for lack of jurisdiction

is denied.

Napleton’s request for a stay, however, is granted. See Mot. 1 n.1 (requesting a stay as an

alternative to dismissal). The Court is “satisfied that the issue[s] involved in [this] suit . . . [are]

referable to arbitration,” and the FAA requires the Court to issue a stay “on application of one of

the parties” when that is the case. 9 U.S.C. § 3; see Smith v. Spizzirri, 144 S. Ct. 1173, 1178 (2024)

(“When a district court finds that a lawsuit involves an arbitrable dispute, and a party requests a

stay pending arbitration, § 3 of the FAA compels the court to stay the proceeding.”). This matter

is accordingly stayed “until . . . arbitration has been had in accordance with the terms of the

[A]greement.” 9 U.S.C. § 3. Should Jennings choose not to arbitrate his claims, the Court will lift

the stay and take further action as appropriate.

III. CONCLUSION

For the foregoing reasons, Napleton’s motion to compel arbitration and dismiss the

complaint is granted in part and denied in part. The motion is granted insofar as it seeks an order

compelling arbitration, and denied insofar as it seeks dismissal of the complaint. This case is stayed

22 Perhaps, had Napleton moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(3), the Court’s

dismissal analysis would be different. See, e.g., Grasty, 599 F. App’x at 597; Jackson v. Payday

Fin., LLC, 764 F.3d 765, 772-73 (7th Cir. 2014). Regardless, as discussed below, the Court must

issue a stay here.

pending arbitration of Jennings’ claims. Within 60 days, Jennings is directed to submit his claims

to individual arbitration or notify the Court of his intention not to do so.

Date: February 11, 2025 John J. Tharp,

United States District Judge

23