ORDER

LEE R. WEST, District Judge.

Plaintiff Shamyra Talley brought this action on May 2, 2016, seeking relief under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. Talley named as defendants Brinker Oklahoma, Inc., also known as Chili's Oklahoma, Inc., Brinker International Payroll Company, L.P., doing business as Chili's Grill & Bar and Chili's Hamburger Grill and Bar, Inc. ("Brinker Payroll"), and Brinker International, Inc., which operate several restaurants in the State of Oklahoma. Talley alleged in her complaint that during her employment as a server at one particular restaurant, she was subjected to a hostile work environment because of her gender and retaliation because she protested the harassment, offensive comments and sexual assaults and advances.

Talley was first hired by the defendants in January 2006, and she remains employed by the defendants at a restaurant other than the one at which the alleged discriminatory and retaliatory conduct occurred.1 Each time Talley applied for employment, she completed certain paperwork. Applications dated January 10, 2006,2 December 9, 2006, and June 19, 2008, see Doc. 5-1 at 7, 9, 11, required Talley to read and sign the accompanying Agreement to Arbitrate, and each advised that execution of the Agreement to Arbitrate was a condition of employment. See id. at 8, 10, 14.

On June 4, 2014, Talley again applied for employment with the defendants. See Doc. 1 at 4, ¶ 10. An Agreement to Arbitrate dated that same day reflects Talley's electronic signature, see Doc. 5-1 at 17, and provides in pertinent part that if an employee is

Id. at 16. The employee's electronic signature on that document "affirm[s] that. . . [the employee] ha[s] read the . . . Agreement to Arbitrate and agree[s] to resolve all [employment-related] disputes . . . through formal, mandatory arbitration. . . ." Id. at 17.

The defendants distribute or make available to their employees a document, which since 2010 has been known as the "Hourly Team Member Policies and Procedures Manual ('Manual')." See id. at 26. An employee indicates receipt of the Manual through his or her signature, which is an acknowledgement that the employee not only has "read, understand[s] and [is] . . . in compliance with each policy[] [set forth] in the Manual[, including that section pertaining to the Agreement to Arbitrate,] . . .[but also understands that such compliance] is a condition of. . . employment with [the defendants]. . . ." Id. A papertitled "Receipt of Brinker's Hourly Team Member Policies & Procedures Manual" and dated June 4, 2014, bears Talley's electronic signature. See id.

The matter now comes before the Court on the defendants' Motion to Dismiss and Compel Arbitration filed pursuant to the Federal Arbitration Act ("Act"), 9 U.S.C. § 1 et seq. Talley has responded, and the defendants have filed a reply.

Section 2 of the Act, which has been described by the United States Supreme Court as "the `primary substantive provision of the Act,'" AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)(quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 24 (1983)), and "as reflecting both a `liberal federal policy favoring arbitration,'" id. (quoting Moses H. Cone, 460 U.S. at 24), "and the `fundamental principle that arbitration is a matter of contract,'" id. (quoting Rent-A-Center, West. Inc. v. Jackson, 561 U.S. 63, 67 (2010)), provides in relevant part that

9 U.S.C. § 2.

Sections 3 and 4 of the Act "establish[] [the] procedures by which federal courts implement [section] 2's substantive rule." Rent-A-Center, 561 U.S. at 68. Under section

9 U.S.C. § 3.

Section 4 further provides that

Id. § 4.

Before "the [C]ourt shall make an order directing the parties to proceed to arbitration," id., the Court must find that a valid written agreement to arbitrate exists between the parties and that the parties are therefore "bound by a contractual duty to arbitrate. . . ." ARW Exploration Corporation v. Aguirre. 45 F.3d 1455, 1460 (10th Cir. 1995); e.g., Avedon Engineering, Inc. v. Seatex. 126 F.3d 1279, 1283 (10th Cir. 1997).

The crucial document in the instant case is the Agreement to Arbitrate dated June 4, 2014. See Doc. 5-1 at 16-17. There can be no dispute that this document, if executed by Talley, clearly constitutes "an agreement in writing to submit to arbitration an[y] existing controversy arising out[,]" 9 U.S.C. § 2, Talley's employment with the defendants, and Talley has not argued otherwise.

The issue rather is whether Talley executed the arbitration agreement.3 Talley has not denied that she did so; rather, she has stated only that she "do[es] not recall reviewing and/or signing the . . . [Agreement [to Arbitrate] dated June 4, 2014[.]" Affidavit and Declaration of Shamyra T. Talley (August 2, 2016) at 2, ¶ 12 (hereafter "Talley Affidavit").

Under Rule 406, F.R.E., "[e]vidence of. . . an organization's routine practice may be admitted to prove that on a particular occasion the . . . organization acted in accordance with th[at] . . . practice. . . . [T]his evidence [is admissible] regardless of whether it is corroborated

As the Tenth Circuit has held, the Court may accept such evidence at this stage of the litigation and may draw the inference therefrom that this routine practice was implemented in this instance. E.g., Hancockv. American Telephone & Telegraph Co., 701 F.3d 1248, 1261-63 (10th Cir. 2012); Morris v. Travelers Indemnity Co. of America, 518 F.3d 755, 761 (10th Cir. 2008)(affidavit from agent that it was his usual practice to explain various coverage options constitutes relevant evidence that his conduct on the relevant occasion was in conformity with that routine practice); Federal Kemper Life Assurance Co. v. Ellis. 28 F.3d 1033, 1040 (10th Cir. 1994)(testimony regarding organization's "standard operating procedure" admissible to show adherence to procedure on particular occasion). See Rule 406, supra, Advisory Committee Notes (generally agreed "that habit evidence is highly persuasive as proof of conduct on a particular occasion.").

In response to Talley's assertions, the defendants have submitted the sworn statement of Brandon Loeffler, Brinker Payroll's Talent Systems Analyst. See Declaration of Brandon Loeffler (August 9, 2016). Loeffler has explained the defendants' hiring process, which includes completion by new hires of "onboarding" paperwork and execution and submission by these individuals of "electronic signature agreements"4 and agreements to arbitrate. Because Talley has not disputed the defendants' standard-practice evidence, the Court finds even giving Talley "the benefit of all reasonable doubts and inferences that may arise[,]'" Hancock, 701 F.3d at 1261 (quotation and further citation omitted), from the evidence, as the Court is required to do, that the defendants have shown that an agreement to arbitrate exists between the parties.

Accordingly, the Court must next inquire, e.g., Cummings v. FedEx Ground Package System, Inc., 404 F.3d 1258, 1261 (10th Cir. 2005), whether Talley's dispute with the defendants falls within the scope of that arbitration agreement. E.g., Granite Rock Co. v. International Brotherhood of Teamsters, 561 U.S. 287, 2856 (2010)(court may order arbitration of particular dispute only where court is satisfied that "parties agreed to arbitrate that dispute")(emphasis deleted). Talley has advanced no strong objection to the applicability or enforceability of arbitration clauses in lawsuits involving Title VII claims, such as the case-at-bar. Indeed, it is well-established "that federal statutory claims can be appropriately resolved through arbitration," Green Tree Financial Corp.-Alabama v. Randolph. 531 U.S. 79, 89 (2000), and that Title VII claims in particular may be subject to mandatory arbitration. E.g., Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1487 (10th Cir. 1994).

Finally, the Court has considered Talley's remaining challenge: she "cannot effectively vindicate her statutory rights under Title VII . . .," Doc. 14 at 2, because she cannot afford the costs of arbitration or the costs of legal representation. See Talley Affidavit at 4, fflf 24-28. As stated, Section 2 permits agreements to arbitrate "to be declared unenforceable upon such grounds as exist at law or in equity for the revocation of any contract.'" AT&T Mobility. 563 U.S. at 339. Agreements may therefore "be invalidated by `generally applicable contract defenses, such as fraud, duress, or unconscionability,'" id., or, as Talley has invoked in this case, the judge-made exception to the Act which permits the Court "to invalidate, on `public policy' grounds, arbitration agreements that `operat[e] . . . as a prospective waiver of a party's right to pursue statutory remedies.'" American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2310 (2013)(quotinq Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.. 473 U.S. 614,637 n.19 (1985))(emphasis deleted); e.g., Nesbitt v. FCNH. Inc.. 811 F.3d 371 (10th Cir. 2016).

The Tenth Circuit has held that while an arbitral forum is presumptively adequate to resolve federal statutory claims, this presumption falters "if the terms of [the] . . . arbitration agreement actually prevent [the employee] . . . from effectively vindicating . . . her statutory rights." Shankle v. B-G Maintenance Management of Colorado, Inc., 163 F.3d 1230, 1234 (10th Cir. 1999)(citations omitted). Because "an arbitration agreement that prohibits use of the judicial forum as a means of resolving statutory claims must also provide for an effective and accessible alternative forum[,]" id. (footnote omitted), this "effective vindication" exception has been applied to deny enforcement of an arbitration agreement that required a plaintiff seeking relief against an employer under federal anti-discrimination laws to pay certain arbitration costs. E.g., id.

In Shankle, each party had to pay one-half of the arbitrator's fees-an amount estimated to be "between $1,875 to $5,000[.]" Id. Because the employee could not afford this expense, the circuit found that the employer through imposition of this "prohibitive cost[,]" id. at 1235, had "failed to provide an accessible forum in which [its employee]. . . could resolve his statutory rights[,]" id.—"a result [that] clearly undermine[d] the remedial and deterrent functions of the federal anti-discrimination laws." Id. (citations omitted).

The Agreement to Arbitrate dated June 4, 2014, is silent regarding payment of arbitrator fees and administrative expenses. The defendants have not challenged Talley's assertion that she cannot afford to pay these fees and expenses, if she is required to do so; they have in fact "agree[d] to pay in full the arbitrator's fees, as well as the arbitrator's administrative expenses and travel costs, if any."5 Declaration of Chris Gravens (July 13, 2016) at 5, ¶ 13. Thus, assuming the defendants' offer pertains to the upfront payment of all arbitration costs and fees, and not reimbursement after Talley's payment of the same, the Court finds the concern expressed in Shankle that arbitration agreements that require employees to pay arbitration costs effectively preclude pursuit of statutory claims is arguably not present in this case.6

Talley has also argued that the Agreement to Arbitrate should not be enforced due to its fee-shifting language. While Talley "is entitled to representation by an attorney throughout the arbitration proceedings," Doc. 5-1 at 16, the instant arbitration agreement mandates that such representation is "at [her]. . . own expensef,]" Id., and that she must "bear . . . [her] own [legal] fees and expenses[.]" Id. In response, the defendants have focused on the qualifying phrase to that requirement: "unless otherwise awarded by the arbitrator." id.

Title VII authorizes the Court to "allow the prevailing party . . . a reasonable attorney's fee. . . ." 42 U.S.C. § 2000e-5(k). "[W]hen a plaintiff [has] secure[d] an `enforceable judgment[] on the merits . . .,'" CRST Van Expedited, Inc. v. Equal Employment Opportunity Commission. 136 S.Ct. 1642, 1646 (2016)(quotation omitted), "that plaintiff is the prevailing party[,]" id., for purposes of Title VII. "When a defendant is the prevailing party on a civil rights claim, . . . [a] district court[] may [exercise its discretion and] award attorney's fees if the plaintiff's `claim was frivolous, unreasonable, or groundless,' or if `the plaintiff continued to litigate after it clearly became so.'" Id. (quotation and further citation omitted).

Under the instant Agreement to Arbitrate, Talley runs the risk that even if she prevails before the arbitrator she will "bear . . . [her] own [legal] fees and expenses[.]" Doc. 5-1 at 16. This is so despite the fact the agreement does not require Talley to "surrender. . . any substantive statutory . . . benefits[] [or] protection[,]" id., a provision which appears to conflict with the document's language governing legal fees and costs.

Because Talley has sufficiently shown that she could likely face prohibitive legal fees and expenses if arbitration is compelled and that she is financially incapable of paying the same, the Court finds that the Agreement to Arbitrate prevents Talley from effectively vindicating her rights under Title VII. Accordingly, the Court DENIES the defendants' Motion to Dismiss and Compel Arbitration [Doc. 5] filed on July 13, 2016.