Filed: Oct. 30, 2014
Latest Update: Oct. 30, 2014
Summary: REPORT AND RECOMMENDATION G. R. SMITH, Magistrate Judge. Pro se plaintiff Faustin Kidibu brought this employment discrimination case against his ex-employer, The Fresh Market, Inc. (TFM). Doc. 1-1 at 2. He alleges that TFM "wrongfully terminated his employment effective August 14, 2012 on the ground that he purported[ly] applied for Family Medical Leave of Absence (FMLA)[,] which he never did." Id. at 3. Moving to dismiss, TFM cites as a litigation bar the arbitration agreement Kidibu sign
Summary: REPORT AND RECOMMENDATION G. R. SMITH, Magistrate Judge. Pro se plaintiff Faustin Kidibu brought this employment discrimination case against his ex-employer, The Fresh Market, Inc. (TFM). Doc. 1-1 at 2. He alleges that TFM "wrongfully terminated his employment effective August 14, 2012 on the ground that he purported[ly] applied for Family Medical Leave of Absence (FMLA)[,] which he never did." Id. at 3. Moving to dismiss, TFM cites as a litigation bar the arbitration agreement Kidibu signe..
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REPORT AND RECOMMENDATION
G. R. SMITH, Magistrate Judge.
Pro se plaintiff Faustin Kidibu brought this employment discrimination case against his ex-employer, The Fresh Market, Inc. (TFM). Doc. 1-1 at 2. He alleges that TFM "wrongfully terminated his employment effective August 14, 2012 on the ground that he purported[ly] applied for Family Medical Leave of Absence (FMLA)[,] which he never did." Id. at 3. Moving to dismiss, TFM cites as a litigation bar the arbitration agreement Kidibu signed upon his employment. Doc. 5-1; see also doc. 5-2 at 4. TFM's motion thus relies on that agreement, even though it is not part of the parties' pleadings. But it is attached to TFM's motion and is integral to the parties' contract,1 so it may be considered. In pertinent part the arbitration agreement says:
To the extent permitted by law, and without changing the at-will nature of the employee's employment, the Company and the undersigned employee agree to the following dispute resolution procedure with respect to any dispute relating to a term or condition of employment or the breach thereof that could otherwise be pursued in a court proceeding under a particular federal, state or local statute or common law theory, but excluding worker's compensation and unemployment compensation claims. Doc. 5-2 at 4. Under the agreement both parties must attempt settlement, then resort to arbitration rather than the courts, on any covered claims:
With respect to any dispute covered by this agreement the parties shall first use reasonable efforts to settle the dispute, claim, question, or disagreement. . . . If the parties do not reach such solution within a period of 60 days, the parties agree to submit to arbitration, administered by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes. . . .
Id.
FTM says Kidibu did not arbitrate his FMLA claim, which does not involve "worker's compensation and unemployment compensation claims." Doc. 5-1 at 5. In substance, Kidibu agrees. He insists that the FTM "and Management refused to discuss or talk with [p]laintiff when they know that there was an Arbitration Agreement between Employer and Employee. Plaintiff, Faustin Kidibu, contacted TFM by certified mails, by phone calls and in person in the store, but nobody agreed to talk with Plaintiff (Faustin Kidibu)." Doc 7 at 1.
Plaintiff's factual response is unsworn and otherwise not subject to a perjury-penalty declaration under 28 U.S.C. § 1746. Ordinarily, then, such "briefing assertions" cannot be considered as facts to support a court ruling. But his response may be construed as a judicial admission that the arbitration agreement exists and applies to him. See McCorvey v. United States, 2014 WL 4594475 at *9 (S.D. Ala. Sept. 11. 2014) (collecting judicial admission cases). So viewed, the Court concludes that Kibidu wants to arbitrate, otherwise presents no "gateway" matters,2 and thus consents to TFM's dismissal motion. Accordingly, TFM's motion to dismiss should be GRANTED, and it is not necessary to reach its argument that Kidibu failed to perfect service of process. Doc. 5.
SO REPORTED AND RECOMMENDED.
