FINAL REPORT AND RECOMMENDATION

RUSSELL G. VINEYARD, Magistrate Judge.

Pending before the Court is a motion to compel arbitration filed by defendants Art Institute of Atlanta ("AIA") and EDMC Marketing and Advertising, Inc., a/k/a Education Management Corporation and Education Management, LLC ("EDMC"), jointly referred to as "defendants," [Doc. 7],1 which plaintiff Robert Albertson ("Albertson") opposes,2 [Doc. 8]. For the reasons that follow, it is RECOMMENDED that defendants' motion to compel arbitration, [Doc. 7], be GRANTED, but their request for attorneys' fees be DENIED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 20, 2016, Albertson, a white male over the age of 50, filed the instant complaint against defendants, alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981 ("§ 1981"). [Doc. 1 ¶¶ 13-29]. According to the complaint, Albertson was hired by defendants as a faculty member at EDMC's AIA campus in January 2001, and he became the Academic Director of Media for AIA in 2003. [Id. ¶¶ 5-6]. He alleges that following the hiring of Newton Myvett ("Myvett") as President of AIA in 2011, he opposed certain discriminatory practices by another AIA professor against AIA students and began being treated with hostility by Myvett, which ultimately led to his termination without cause in January 2016. [Id. ¶¶ 8-9, 11].

In July 2012, EDMC instituted an Alternative Dispute Resolution Policy ("ADR Policy"), which utilizes a multi-step process for resolving employment-related disputes between EDMC and its employees and requires binding arbitration as the final step. See [Doc. 7-2 (the ADR Policy)].3 In particular, the ADR Policy provides in pertinent part:

Purpose of Policy

Authority

Policy Coverage

Effective Date

This Policy is effective on and after July 1, 2012.

[Id. at 2 (footnote omitted)]. The ADR Policy also provides that Level One Disputes may be processed through all four steps of the dispute resolution procedures, consisting of informal resolution, submission to the company's senior management, mediation, and binding arbitration, and Level One Disputes include the following:

[Id. at 2-6].

On October 3, 2012, at approximately 9:00 a.m., EDMC sent an e-mail to Albertson's work e-mail address, stating:

[Doc. 7-3 (Thalman Decl.) at 3 ¶ 4]. This e-mail included two links: one that would direct Albertson to a copy of the ADR Policy and another that would direct Albertson to a login screen, where he would be required to enter his unique username and password,4 in order to enter the ADR Policy Acceptance page, which stated:

Alternative Dispute Resolution Policy Acceptance

[Id. at 3-4 ¶¶ 5-7, 9-10; Doc. 7-4 at 2; Doc. 7-5 at 2]. This screen provided a box to click "Accept" at the bottom, and if clicked, the screen would display a "Next" button, which, if clicked, would then display the ADR Policy Acceptance Summary Screen, which stated, "Thank you. Your acceptance has been successfully recorded." [Doc. 7-3 at 4-5 ¶¶ 10-11; Doc. 7-5 at 2; Doc. 7-6 at 2]. At approximately 11:31 a.m. on October 3, 2012, an employee with the Employee Profile Number 27558, later identified as Albertson, accepted the ADR Policy as shown by a"Results" message generated by the system. [Doc. 7-3 at 5 ¶¶ 12-13; Doc. 7-7 at 2; Doc. 7-8 at 2].5

On October 20, 2016, Albertson filed the instant complaint against defendants, [Doc. 1], and on December 22, 2016, defendants filed the pending motion to compel arbitration, [Doc. 7], in which they request an order compelling arbitration and dismissing this case, or alternatively, staying judicial proceedings pending the arbitration. Defendants also seek to recover reasonable attorneys' fees and expenses incurred in bringing their motion to compel. [Doc. 7-1 at 5, 14-15]. The pending motion, [Doc. 7], having been fully briefed, is now ripe for ruling.

II. DISCUSSION

Defendants argue that Albertson entered into a valid and binding agreement to arbitrate all disputes arising out of his employment with defendants, including the claims brought in this lawsuit, and that the Court should compel arbitration pursuant to this agreement. See [Docs. 7 & 9]. In response, Albertson argues that defendants have failed to "present a valid written agreement to arbitrate," that "he never signed or agreed to the arbitration agreement," that "no signed agreement is before the Court," and that his "simple review of an e-mail should not create a binding arbitration contract." [Doc. 8 at 4, 7]. He also argues that any arbitration agreement was unconscionable since "the parties did not have equal bargaining power, as [he] was required to give up the federal right to bring an employment discrimination jury trial while [d]efendants could never have brought a similar lawsuit against [him]," [id. at 7], and that there was no consideration between the parties, [id. at 9]. Albertson advances several other arguments opposing the motion, including that arbitration cannot be compelled because the Federal Arbitration Act ("FAA") is unconstitutional, the FAA does not apply to him, he has a fundamental right to a jury trial, and the arbitration agreement does not evince a transaction involving interstate commerce. [Id. at 10-16]. The Court will address each of these arguments.

A. Legal Standard

There is a strong presumption in favor of arbitration under federal law and the FAA, which provides:

9 U.S.C. § 2. The arbitration agreement in this case is governed by the FAA. See Kong v. Allied Prof'l Ins. Co., 750 F.3d 1295, 1303 (11th Cir. 2014) (citing 9 U.S.C. §§ 1-2)) ("The FAA applies to all contracts involving interstate commerce."); Wilson v. O'Charley's, LLC, Civil Action File No. 1:14-CV-1983-TWT, 2014 WL 5716295, at *1 (N.D. Ga. Nov. 4, 2014), adopted at *1 (citations omitted) (quoting Circuit City v. Adams, 532 U.S. 105, 119 (2001)) (noting that the FAA "applies generally to all employment contracts except those involving `transportation workers'").6

The FAA evinces "a strong federal policy in favor of arbitration." Picard v. Credit Sols., Inc., 564 F.3d 1249, 1253 (11th Cir. 2009) (per curiam) (citation omitted). "Accordingly, courts `rigorously enforce' arbitration agreements," id. (citations omitted), and "`[a]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration,'" Chambers, 41 F. Supp. 3d at 1334 (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)). Federal statutory claims of employment discrimination are also subject to arbitration under the FAA. See Wallace v. Rick Case Auto, Inc., 979 F.Supp.2d 1343, 1347 (N.D. Ga. 2013), adopted at 1345 (citation omitted) ("`[I]t is not an unlawful employment practice for an employer to require an employee to arbitrate, rather than litigate, rights under various federal statutes, including employment-discrimination statutes.'"); Alexander v. Nissan, No. 4:10-cv-270, 2011 WL 1557852, at *1 (S.D. Ga. Apr. 25, 2011) (quoting Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 699 (11th Cir. 1992) (per curiam)) ("`Title VII claims are subject to compulsory arbitration.'").

In resolving a motion to compel arbitration, the Court must determine whether: "(1) there is a valid written agreement to arbitrate; (2) the issue [sought to be arbitrated] is arbitrable under the agreement; and (3) the party asserting the claims has failed or refused to arbitrate the claims."7 Wallace, 979 F. Supp. 2d at 1347 (alteration in original) (internal marks omitted) (citing Lomax v. Woodmen of the World Life Ins. Soc'y, 228 F.Supp.2d 1360, 1362 (N.D. Ga. 2002)). To determine whether there is a binding agreement to arbitrate, the Court "appl[ies] the contract law of the particular state that governs the formation of contracts." Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1368 (11th Cir. 2005). The law of Georgia applies here. "The basic requirements for a binding contract under Georgia law are (1) a definite offer and (2) complete acceptance (3) for consideration." Caley v. Gulfstream Aerospace Corp., 333 F.Supp.2d 1367, 1374 (N.D. Ga. 2004), aff'd, 428 F.3d 1359 (11th Cir. 2005) (citing Moreno v. Strickland, 567 S.E.2d 90, 92 (Ga. Ct. App. 2002)).

B. Merits of Defendants' Motion to Compel Arbitration, [Doc. 7]

1. Valid Agreement to Arbitrate

The preliminary issue to be addressed is whether the parties entered into a valid agreement to arbitrate. This inquiry is based on Georgia contract law governing offer, acceptance, and consideration. See Johnson v. Macy's S., LLC., No. 1:07-cv-1256-WSD, 2007 WL 2904126, at *3 (N.D. Ga. Sept. 27, 2007) (citation omitted). Albertson has not contested the offer element, but he contends that "there is no acceptance or consideration[.]"8 [Doc. 8 at 9]. The Court will address these contested elements.

a. Acceptance of Offer

Defendants have presented evidence establishing that they sent a mass e-mail to EDMC employees, advising them of the new ADR Policy and providing them a direct link to the policy for their review. [Doc. 7-3 at 3 ¶¶ 4-5]. This e-mail also provided a second link to a login screen, where, after logging in, the recipient would view the ADR Policy Acceptance screen. [Id. at 3-4 ¶¶ 6-7, 9-10; Docs. 7-4 & 7-5]. This acceptance screen provided a box at the bottom for the recipient to click "Accept," and upon clicking it, the screen would display a "Next" button, which, if clicked, would then display a screen that confirmed the acceptance by stating, "Thank You. Your acceptance has been successfully recorded." [Doc. 7-3 at 4-5 ¶¶ 10-11; Docs. 7-5 & 7-6]. Defendants have specifically proffered evidence showing that on October 3, 2012, such an e-mail was sent to Albertson's work e-mail address. [Doc. 7-3 at 3 ¶ 4]. To confirm that Albertson accepted the agreement, defendants submitted the "Results" message, which shows that Alberton, with his assigned Employee Profile Number, acknowledged receipt of the ADR Policy and accepted it at 11:31 a.m. on October 3, 2012, agreeing to be bound by the terms of the policy. [Id. at 6 ¶¶ 12-15; Doc. 7-7].

Albertson maintains that he never signed or agreed to an arbitration agreement. [Doc. 8 at 4]. However, in his declaration, he never specifically denies that he received and reviewed the e-mail containing the ADR Policy, see generally [Doc. 8-1], and in fact, he asserts that his "simple review of an e-mail should not create a binding arbitration contract" and that "no signed agreement is before the Court," [Doc. 8 at 4, 7].9 However, "[t]he Eleventh Circuit Court of Appeals has stated that a party seeking to avoid arbitration must unequivocally deny that an agreement to arbitrate was reached and must offer some evidence to substantiate the denial. . . . More specifically, [the court] require[s] a party resisting arbitration to substantiate[ ] the denial of the contract with enough evidence to make the denial colorable." Dixon, 2015 WL 12720290, at *4 (all but first alteration in original) (citations and internal marks omitted). Although Albertson denies signing any arbitration agreement,10 the Court "finds that [he] has not unequivocally denied the existence of any arbitration agreement with [d]efendants and, in light of the evidence presented by [d]efendants, that []he has failed to produce `some evidence' to establish a `colorable' denial of the existence of the agreement in this case." Id. at *5.

Albertson's "argument that he is not bound by the Arbitration Agreement because he never signed any agreement . . . is also unavailing." Athon v. Direct Merchs. Bank, No. 5:06-CV-1 (CAR), 2007 WL 1100477, at *4 (M.D. Ga. Apr. 11, 2007) (emphasis omitted). "[T]he FAA only requires that the agreement to arbitrate be written, not that it be signed." Id. (emphasis and citation omitted). As such, "[b]ecause arbitration agreements need only be in writing and need not be signed, the evidence before the court need not demonstrate that [Albertson] signed the acknowledgment of the [ADR Policy], which is undeniably in writing." Dixon, 2015 WL 12720290, at *7 (citation omitted); see also Athon, 2007 WL 1100477, at *4 (citations and internal marks omitted) ("[I]t is well-established that a written agreement to arbitrate need not be signed by the parties as a prerequisite to the enforcement of the agreement."). And, "under Georgia contract law, [a]n offer may be accepted . . . either by a promise to do the thing contemplated therein, or by the actual doing of the thing." Dixon, 2015 WL 12720290, at *7 (alterations in original) (citations and internal marks omitted). That is, "the parties to an arbitration agreement may demonstrate their assent to be bound by the agreement by acting upon or accepting benefits under the contract containing the arbitration agreement even though they do not sign it." Athon, 2007 WL 1100477, at *4 (citations omitted).

The e-mail sent to EDMC employees, including Albertson, set forth the terms governing acceptance of the contract, namely that the ADR Policy was a "term and condition of your continued employment with EDMC," and the ADR Policy itself states, "Accepting or continuing employment . . . after receipt of this Policy constitutes agreement to abide by its terms." [Doc. 7-2 at 2; Doc. 7-3 at 3 ¶ 4]; see also [Doc. 7-5 (the ADR Policy Acceptance screen advising the employee that the policy was a "term and condition of [] continued employment with EDMC")]. In fact, Albertson does not dispute that he was informed of the terms of the agreement, see generally [Docs. 8 & 8-1], and "being aware of the [ADR Policy] and that continued employment constituted acceptance, [Albertson] elected to continue [his] employment," and therefore, "even if [he] did not sign the arbitration agreement, his continued employment after acknowledging receipt of the policy, constituted acceptance of the arbitration agreement," Dixon, 2015 WL 12720290, at *7 (citation omitted); see also Caley, 428 F.3d at 1374-76 (finding plaintiffs accepted the arbitration agreement by their continued employment where an arbitration agreement was announced as a new condition of employment that gave employees the option of either continuing employment, thereby accepting the agreement, or terminating employment); Pope v. Dillard's Inc., CIVIL ACTION NO. 1:14-CV-1793-AT, 2014 WL 12323688, at *3 (N.D. Ga. Nov. 26, 2014) (finding plaintiff "demonstrated her acceptance of the terms of the Rule of Arbitration through her continued employment and electronic acceptance of the binding Agreement to Arbitrate"); Wilson, 2014 WL 5716295, at *2.

b. Consideration

"To satisfy the consideration requirement under Georgia law, an accepting party to a contract can either tender bargained-for performance or make a mutual promise." Shubert v. Scope Prods., Inc., Civil Action No. 2:10-CV-00101-RWS, 2011 WL 3204677, at *2 (N.D. Ga. July 27, 2011) (citations and internal marks omitted). Despite defendants' assertion that "[p]ursuant to both federal and state law, [Alberton's] continued employment clearly established the . . . consideration necessary to form a binding contract," [Doc. 7-1 at 9 (citations omitted), Albertson argues that because he was an at-will employee of defendants, "no consideration exists" and that the arbitration agreement is therefore "not an enforceable contact under Georgia law," [Doc. 8 at 9]. The Court disagrees with Albertson, and finds that "[d]efendants' continued employment of [Albertson] (who was an at-will employee) constitutes bargained for performance in exchange for [Albertson's] assent." Shubert, 2011 WL 3204677, at *2 (citing Hiers v. Choicepoint Servs. Inc., 606 S.E.2d 29, 31 (Ga. Ct. App. 2004)).

In addition, under Georgia law, "mutual promises and obligations are sufficient consideration to support a contract." Caley, 428 F.3d at 1376 (citing Atlanta Six Flags P'ship v. Hughes, 381 S.E.2d 605, 607 (Ga. Ct. App. 1989)). Here, the agreement was supported by valid consideration because it was based on a mutual promise to submit claims between the parties to final, binding arbitration, and provided that defendants would bear the costs associated with arbitration. See [Doc. 7-2 at 2, 5]. Accordingly, the Court finds that there was "consideration in that [d]efendant[s] conditioned [Albertson's] employment on [his acceptance] of the arbitration agreement and made a reciprocal promise to arbitrate and be bound by the outcome for the types of claims described in the agreement." Wilson, 2014 WL 5716295, at *2 (citations omitted).

2. Unconscionable Agreement

"In Georgia, a contract can be challenged for procedural unconscionability, which addresses the `process of making the contract,' or `substantive unconscionability,' which `looks to the contractual terms themselves.'" Jones v. TitleMax of Ga., Inc., No. Civ.A. 105CV1154TWT, 2006 WL 562189, at *7 (N.D. Ga. Mar. 7, 2006), adopted at *1 (footnote and citation omitted) (quoting Caley, 428 F.3d at 1377). "In analyzing this issue, the Court still must apply general state contract law rather than s[t]ate laws governing arbitration clauses specifically." Id. at *7 n.7 (citations omitted).

Albertson argues that the agreement to arbitrate, which he refers to as a "contract[] of adhesion,"11 is unconscionable and is therefore not enforceable due to the "unequal bargaining power" between the parties since he "was required to give up the federal right to bring an employment discrimination jury trial[.]" [Doc. 8 at 7-9]. He "submits that the proposed arbitration agreement is both procedurally and substantively unconscionable and is itself evidence of [d]efendants' scheme to deprive [him] of a day in court." [Id. at 8]. "Yet [Albertson] do[es] not bring to this Court's attention a single case from Georgia or within the Eleventh Circuit where a court found an agreement to arbitrate unconscionable for the reason[] advanced here," and his "argument is not sufficient to render an agreement to arbitrate unconscionable in the employment context." Wallace, 979 F. Supp. 2d at 1351-52 (citation omitted).

As to Alberton's argument that he was required to give up his federal rights while defendants were not, the ADR policy clearly states: "This policy is intended to create the exclusive means by which all work-related disputes between [EDMC] (and its related entities . . .) and its employees will be promptly addressed and fairly resolved." [Doc. 7-2 at 2 (footnote omitted)]. The terms of the ADR Policy do not favor one party "as evident by their neutrality." Marotta v. Toll Bros., Inc., Civil Action No. 09-2328, 2010 WL 744174, at *5 (E.D. Pa. Mar. 3, 2010). Furthermore, even were one party favored, "[i]nequality in bargaining power is itself insufficient for finding an arbitration agreement unenforceable in the employment context." Id. (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991)); see also Caley, 428 F.3d at 1377; Drawdy, 2015 WL 12591774, at *2. Indeed, "[r]elationships between employers and employees may involve unequal bargaining power, but the Supreme Court has nonetheless upheld agreements to arbitrate in this context." Haluska v. RAF Fin. Corp., 875 F.Supp. 825, 828 (N.D. Ga. 1994) (citation omitted). Therefore, Albertson's arguments that the arbitration agreement is unconscionable are without merit.

C. Attorneys' Fees under 28 U.S.C. § 1927

Defendants seek an award of reasonable attorneys' fees and expenses incurred in bringing their motion to compel arbitration, pursuant to 28 U.S.C. § 1927. [Doc. 7-1 at 14-15]. Section 1927 "provides that `[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.'" Peterson v. BMI Refractories, 124 F.3d 1386, 1395 (11th Cir. 1997) (alterations in original) (quoting 28 U.S.C. § 1927)). However, "[t]his section is not a `catch-all' provision for sanctioning objectionable conduct by counsel," Miccosukee Tribe of Indians of Fla. v. Cypress, No. 12-22439-Civ, 2015 WL 235433, at *9 (S.D. Fla. Jan. 16, 2015), aff'd in part, No. 15-11223, 2017 WL 908187 (11th Cir. Mar. 8, 2017) (per curiam) (unpublished) (internal marks omitted) (quoting Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003)), and "`[s]anctions are not warranted . . . simply because counsel's performance did not rise to the highest standards of the profession,'" id. at *9 (citation omitted) (quoting Smith v. Grand Bank & Trust of Fla., 193 F. App'x 833, 836 (11th Cir. 2006) (per curiam) (unpublished)); see also Peterson, 124 F.3d at 1395 (citations omitted) (noting that "the provisions of § 1927, being penal in nature, must be strictly construed"). Indeed, unreasonable and vexatious conduct warranting sanctions under § 1927 "occurs `only when the attorney's conduct is so egregious that it is tantamount to bad faith[.]'" Wandner v. Am. Airlines, No. 14-22011-CIV, 2015 WL 145019, at *12 (S.D. Fla. Jan. 12, 2015) (quoting Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1239-42 (11th Cir. 2007)); see also Cypress, 2015 WL 235433, at *9 (alteration in original) (citation and internal marks omitted) ("[S]omething more than a lack of merit is required; `[b]ad faith' is the touchstone."); Daniels v. Sodexo, Inc., No. 8:10-cv-00375-T-27AEP, 2013 WL 4008744, at *7 (M.D. Fla. Aug. 5, 2013) (citations omitted) ("[M]ere negligent conduct alone does not support a finding of bad faith under Section 1927.").

Defendants allege that they provided Albertson's counsel with a copy of the ADR Policy and requested that this action be dismissed, but that Albertson's counsel has refused to submit the claims to arbitration. See [Doc. 7-1 at 14]. The Court finds that there is insufficient evidence that the refusal by Albertson's counsel to withdraw the complaint and initiate arbitration, even if based on flawed legal arguments, constituted such egregious misconduct as to amount to bad faith warranting sanctions under the exacting standard of § 1927. Similarly, the Court's finding that Albertson's claims are subject to arbitration in this case is based on the merits of defendants' motion to compel and does not establish any unreasonable or vexatious conduct on the part of Alberton's counsel. Accordingly, it is RECOMMENDED that defendants' request for attorney's fees and expenses pursuant to 28 U.S.C. § 1927 be DENIED. See Stephan v. Brookdale Sr. Living Cmtys., Inc., Civil No. 12-cv-00989-LTB, 2013 WL 673292, at *2 (D. Colo. Feb. 25, 2013) (defendant was not entitled to attorney's fees upon successfully moving to compel arbitration since the mere fact that plaintiff's objections to arbitration proved unavailing did not suffice to demonstrate sanctionable misconduct under § 1927); Serv. Emps. Int'l Union, Local 105 v. Mental Health Ctr. of Denver, Civil Action No. 10-cv-01416-CMA-MEH, 2010 WL 2985619, at *3 (D. Colo. July 23, 2010) (citation omitted) (granting motion to compel arbitration while denying movant's request for costs and attorney's fees incurred in bringing the motion, and noting that "fee awards under [§ 1927] are granted `only in instances evidencing a serious and standard disregard for the orderly process of justice'"); Josie-Delerme v. Am. Gen. Fin. Corp., No. 08-CV-3166 (NG), 2009 WL 2366591, at *5 (E.D.N.Y. July 31, 2009) (granting defendants' motion to compel arbitration but denying their request for fees under § 1927, despite defendants' representation that plaintiff refused to withdraw her complaint after defense counsel sought to enforce the parties' arbitration agreement through conversations with plaintiff's counsel).

III. CONCLUSION

For the reasons stated, it is RECOMMENDED that defendants' motion to compel arbitration, [Doc. 7], be GRANTED, that their request for attorneys' fees be DENIED, and that this action be DISMISSED.12

The Clerk is DIRECTED to terminate this reference.

IT IS SO RECOMMENDED.