R. DAVID PROCTOR, District Judge.
This case is before the court on Defendant's Renewed Motion to Dismiss (Doc. #21), filed January 12, 2012. By agreement of the parties at the April 5, 2012 telephone conference, the court determined that it would treat Defendant's Motion as a motion for summary judgment, pursuant to Rule 12(d) of the Federal Rules of Civil Procedure. (Doc. #28). The court will refer to Defendant's Motion (Doc. #21) throughout this opinion as a Motion for Summary Judgment. Defendant's Motion for Summary Judgment has been fully briefed. (Docs. #25, 26, 29).
Having considered the briefs and evidentiary submissions, the court finds that Defendant's Motion for Summary Judgment (Doc. #21) is due to be denied for the reasons set out below.
On June 30, 2011, Plaintiff John R. Graham initiated this suit against his former employer, Defendant Trugreen Landcare of Alabama, LLC,
On January 12, 2012, Defendant renewed its Motion to Dismiss (Doc. #21), seeking to dismiss Plaintiff's Complaint under Federal Rule 12(b)(6) and sections 3 and 4 of the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 3-4. (Doc. #22). Defendant argues that Plaintiff agreed to arbitrate all employment-related disputes by executing the "We Listen" Acknowledgment Form on February 1, 2010 and signing the Handbook Acknowledgment Form on February 10, 2010. Defendant submitted the following evidence in support of its arguments: a declaration from Roy Cohen, the Human Resources Business Partner for Defendant (Doc. #6-1 at 1-3); an affidavit from Michael Dunkin, a Branch Administrator for Defendant (Doc. #22-1 at 1-4); the arbitration agreement and other documents Plaintiff allegedly signed (Docs. #22-1 at 5-25, #22-2, #6-1 at 4-22); and the transcript of Cohen's telephone deposition (Doc. #22-3). The only evidence Plaintiff submitted was his affidavit (Doc. #9-1), where he denied ever agreeing to the arbitration agreement.
Because the parties submitted evidence outside of the pleadings, the court conducted a telephone conference on April 5, 2012 on whether Defendant's Motion should be treated as a Motion for Summary Judgment. The parties agreed that it should, and consistent with that agreement the court ruled pursuant to Rule 12(d), that Defendant's Motion (Doc. #21) would be treated as a Rule 56 motion for summary judgment. (Doc. #28). The court gave the parties an opportunity to submit supplemental material, but only Defendant did so — it filed its Sur-Reply on May 10, 2012. (Doc. #29).
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Affidavits or declarations "used to support or oppose a motion must be made on personal knowledge." Fed. R. Civ. P. 56(c)(4). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that the moving party believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. No genuine issue of material fact exists when there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Id. Accordingly, only "when there is no genuine issue of fact concerning the formation of the [arbitration] agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement." Magnolia Capital Advisors, Inc. v. Bear Sterns & Co., 272 F. App'x 782, 785-786 (11th Cir. 2008) (citations omitted). Once the moving party has met its burden, Rule 56(a) requires the nonmoving party to go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Chapman, 229 F.3d at 1023. All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. Chapman, 229 F.3d at 1023. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; Chapman, 229 F.3d at 1023. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. The method used by the party moving for summary judgment to discharge its initial burden depends on whether that party bears the burden of proof on the issue at trial. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-1117 (11th Cir. 1993) (citing United States v. Four Parcels of Real Prop., 941 F.2d 1428 (11th Cir. 1991) (en banc)). If the moving party bears the burden of proof at trial, then it can only meet its initial burden on summary judgment by coming forward with positive evidence demonstrating the absence of a genuine issue of material fact (i.e., facts that would entitle it to a directed verdict if not controverted at trial), Fitzpatrick, 2 F.3d at 1115, and by showing that "on all the essential elements of its case . . . no reasonable jury could find for the nonmoving party," Four Parcels of Real Prop., 941 F.2d at 1438. Once the moving party makes such a showing, the burden shifts to the nonmoving party to produce significant, probative evidence demonstrating a genuine issue for trial.
On the other hand, if the moving party does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in at least one of two ways. First, the moving party may produce affirmative evidence negating a material fact, thus demonstrating that the nonmoving party will be unable to prove its case at trial. Once the moving party satisfies its burden using this method, the nonmoving party must respond with positive evidence sufficient to resist a motion for directed verdict at trial. Second, a moving party who does not bear the burden of proof at trial can satisfy its initial burden on summary judgment by affirmatively showing the absence of evidence in the record to support a judgment for the nonmoving party on the issue in question. This method requires more than a simple statement that the nonmoving party cannot meet its burden at trial but does not require evidence negating the nonmovant's claim; it simply requires the movant to point out to the district court that there is an absence of evidence to support the nonmoving party's case. Fitzpatrick, 2 F.3d at 1115-16. If the movant meets its initial burden by using this second method, the nonmoving party may either point out to the court record evidence, overlooked or ignored by the movant, sufficient to withstand a directed verdict, or the nonmoving party may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. However, when responding, the nonmovant can no longer rest on mere allegations, but must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
When Defendant hires an employee to join its workforce, it routinely provides the employee with many documents to review and/or sign. (Doc. #22-1 at 1-2). Included in these documents are the "We Listen" booklet, "We Listen Acknowledgment" form, and "Handbook Acknowledgment" form. (Id.) It is undisputed that, if properly agreed to and executed, the We Listen Acknowledgment form and Handbook Acknowledgment form constitute an arbitration agreement for all employment-related disputes arising out of an employee's employment with Defendant.
After Defendant filed the We Listen Acknowledgment Form and the Handbook Acknowledgment Form, both of which bear what Defendant argues are Plaintiff's signatures (Doc. #6-1 at 21-22), Plaintiff submitted an affidavit. Plaintiff testified that he "recall[s] neither seeing nor signing such documents, and do[es] not believe the signatures are [his]."
Dunkin, a Branch Administrator for Defendant, stated that he conducted orientation for Plaintiff and another employee, Alan Fetter. (Doc. #22-1 at 1-2). Dunkin presented Plaintiff and Fetter with all of the standard paperwork, which included the documents containing the arbitration agreement. (Id.) Dunkin stated that he sat with Plaintiff and Fetter while they completed their paperwork, and once they completed their paperwork, they passed it to him. (Id. at 1-3). Dunkin specifically remembered going through their documents to ensure that they signed everything, but "do[es] not recall whether there were any missing signatures." (Id. at 3) Dunkin attached the documents to his affidavit that he alleged are the documents that Plaintiff and Fetter signed during their new hire orientation. (Id. at 3, 5-46). Dunkin did not provide the dates on which he conducted orientation for Plaintiff and Fetter, nor did he provide any dates for the events discussed in his affidavit. Dunkin stated that he has never observed an employee's signature being forged and has never heard of Defendant encouraging the forging of employees' signatures. (Id. at 3).
The documents that Dunkin testified Plaintiff signed during new hire orientation are attached to his affidavit as "Exhibit A." (Id. at 3, 5-25). These documents include standard forms that employees are typically required to sign, as well as the documents that comprise the arbitration agreement. (Id. at 5-25). The Handbook Acknowledgment form bears the name "John R. Graham" and a corresponding signature, and is dated February 10, 2010. (Id. at 15). The We Listen Acknowledgment form contains Plaintiff's printed name and a corresponding signature, and is dated February 1, 2010. (Id. at 21).
The fact that the dates on the Handbook Acknowledgment form and We Listen Acknowledgment form are different is inconsistent with Dunkin's affidavit, where Dunkin indicated that the documents Plaintiff allegedly signed during new hire orientation were all signed on the same day. What is more, the documents that Fetter allegedly signed on this same day also bear different dates. (Doc. #22-1 at 26-46). Fetter's documents are dated January 26, February 1, February 9, and February 11, 2010. Neither party has offered its position on the discrepancy between (1) the dates on the documents (Doc. #22-1 at 15, 21) and (2) Dunkin's sworn statement providing that he watched Plaintiff sign all of the documents in one sitting (Doc. #22-1 at 1-4). It is not clear whether Dunkin was mistaken (deliberately or not) in his affidavit about when these documents were allegedly received and signed, or whether there is an allegation that the dates on the documents are incorrect. Dunkin's affidavit creates genuine issues of fact regarding whether Dunkin actually witnessed Plaintiff receive and sign any of documents containing the arbitration agreement, whether the dates on these documents reflect the actual dates on which they were signed and received, and consequently, whether Plaintiff actually signed all (or some) of the documents in question.
The resolution of this dispute turns on whether Plaintiff has placed the validity of the arbitration agreement at issue. If the court finds that Plaintiff has done so, the issue of whether the arbitration agreement is enforceable will be decided by a jury.
The Federal Arbitration Act ("FAA"), 9 U.S.C. § § 1-16 (2006), controls the validity and enforcement of covered arbitration agreements. "The FAA embodies a liberal federal policy favoring arbitration agreements." Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir. 2005) (citation and quotation marks omitted). When a party moves a court to compel arbitration pursuant to an arbitration agreement:
Id. § 4. A review of this statutory provision makes clear that Congress expressly assigned the duty of deciding issues concerning the "making of the arbitration agreement" to the courts. Id.
The Supreme Court, in analyzing the role of the courts in enforcing arbitration agreements under the FAA, has noted that "[a]rbitration under the Act is a matter of consent, not coercion. . .." Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 479 (1989). The Court has further explained that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). "The question whether the parties have submitted a particular dispute to arbitration, i.e., the `question of arbitrability,' is `an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.'" Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 649 (1986)). Thus, it is incumbent upon a court to decide "certain gateway matters, such as whether the parties have a valid arbitration agreement at all. . . ." Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003); see also Chastain v. Robinson-Humphrey Co., 957 F.2d 851, 853-56 (11th Cir.1992).
When confronted with a question related to the validity of an arbitration agreement, a court must consider both federal policy and applicable state contract law. As the Eleventh Circuit has explained:
Caley, 428 F.3d at 1367-68 (citations and quotation marks omitted); see also Employers Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1322 (11th Cir.2001) ("Federal law establishes the enforceability of arbitration agreements, while state law governs the interpretation and formation of such agreements.").
Taking into account the general federal policy favoring arbitration, the Eleventh Circuit has found that when a party denies the existence of a valid arbitration agreement, "that party must substantiate the denial of the contract with enough evidence to make the denial colorable." Chastain, 957 F.2d at 855. "A party cannot place the making of the arbitration agreement in issue simply by opining that no agreement exists." Id. Rather, the Eleventh Circuit held, "To make a genuine issue entitling the party seeking to avoid arbitration to a trial by jury on the arbitrability question, an unequivocal denial that the agreement had been made is needed, and some evidence should be produced to substantiate the denial." Id. at 854 (alterations omitted) (quoting T & R Enters., Inc. v. Cont'l Grain Co., 613 F.2d 1272, 1278 (5th Cir.1980)). Thus, in order to place the making of an arbitration agreement in issue, the party seeking to avoid arbitration must (1) unequivocally deny that an agreement to arbitrate was made and (2) provide some evidence to substantiate the denial. Chastain, 957 F.2d at 854 (adopting the former Fifth Circuit's two-part test as described in T & R Enters. v. Cont'l Grain Co., 613 F.2d 1272, 1278 (5th Cir. 1980)); Wheat First Securities, Inc. v. Green, 993 F.2d 814, 817 (11th Cir. 1993).
Plaintiff has denied that he is bound to arbitrate his claims and testified that he does not recall ever seeing or signing the arbitration agreement. There is no question that Plaintiff has unequivocally denied that he consented to the arbitration agreement, and his affidavit substantiates his denial. Although Defendant provided Dunkin's affidavit in attempt to refute Plaintiff's affidavit, Dunkin's affidavit, read in conjunction with the accompanying documents, actually muddles the issues. The inconsistencies between Dunkin's affidavit and the attached documents create disputes of material fact regarding whether Dunkin witnessed Plaintiff sign certain documents and if so, which documents and when. Defendant has thus failed to produce any affirmative evidence establishing that Plaintiff received and signed the arbitration agreement.
Further, Defendant challenges whether Plaintiff's "mushily worded" affidavit actually constitutes an unequivocal denial. To prevail on summary judgment, however, Defendant must do more than quibble over the semantics of Plaintiff's affidavit. The court concludes that Plaintiff's affidavit contains a clear denial of ever agreeing to an arbitration agreement.
For the reasons discussed above, Defendant's Motion for Summary Judgment (Doc. #21) is due to be denied. The issue of whether there was a valid arbitration agreement must therefore be resolved by a jury. The court will enter a separate order denying the Motion.
