1:18-cv-00373
W.D. Tex.Dec 10, 2018Background
- Plaintiff James W. Robertson Sr., an Intratek employee from 2011–2015, alleges he was terminated in retaliation after reporting CEO Allan Fahami’s unlawful conduct in obtaining VA contracts and refusing to participate in NDAs violations.
- Robertson reported his concerns to the VA Office of Inspector General and alleges post-termination tortious interference with his business opportunities.
- Robertson signed Intratek’s Employee Handbook acknowledgment agreeing to its arbitration policy, which covers "any controversy, dispute or claim ... related to employment," including tort and federal-law claims.
- Defendants Intratek and Fahami moved to compel arbitration under the Federal Arbitration Act (FAA); Robertson conceded he signed the policy but argued it does not cover his claims.
- The magistrate judge assessed whether (1) 41 U.S.C. § 4712 (whistleblower statute) bars arbitration, (2) the arbitration clause covers post-termination tortious interference claims, and (3) the clause survives termination.
- Recommendation: grant motion to compel arbitration, dismiss case without prejudice for arbitration rather than stay proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 4712 precludes arbitration of plaintiff’s whistleblower claim | Robertson: § 4712(c)(2) grants a jury-trial right and § 4712(c)(7) prohibits waiver of rights, so claims are non-arbitrable | Defs: FAA governs; § 4712 contains no clear congressional command to override FAA | Court: § 4712 does not clearly prohibit arbitration; statutory waiver language is procedural and does not override FAA — arbitration allowed |
| Whether tortious interference claims (post-termination) are within arbitration scope | Robertson: post-employment acts are not "related to employment," so outside clause | Defs: clause is broad ("related to employment"; includes torts), so covers disputes touching employment relationship | Court: broad arbitration language covers tortious interference claims arising from the employment relationship — arbitrable |
| Whether arbitration obligation survives termination of employment | Robertson: clause applies only to current employees; post-termination claims not covered | Defs: silence as to post-termination disputes implies continuing duty to arbitrate disputes arising from relationship | Court: consistent with Nolde Bros. and related authority, arbitration survives termination absent express exclusion — arbitrable |
| Disposition: stay vs. dismissal pending arbitration | Robertson: requested stay or court resolution | Defs: move to compel arbitration and request stay/dismissal | Court: all federal claims subject to arbitration; recommends compelling arbitration and dismissing without prejudice rather than staying |
Key Cases Cited
- CompuCredit Corp. v. Greenwood, 565 U.S. 95 (2012) (FAA requires enforcement of arbitration agreements absent clear congressional intent to the contrary)
- AT&T Techs., Inc. v. Communications Workers, 475 U.S. 643 (1986) (presumption of arbitrability; doubts resolved in favor of arbitration)
- Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (arbitration of federal statutory claims valid absent express congressional prohibition)
- 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) (agreeing to arbitrate statutory claims waives judicial forum but not substantive rights)
- D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) (courts require clear evidence to find Congress intended to preclude arbitration)
- Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061 (5th Cir. 1998) (distinguishes broad vs. narrow arbitration clauses; broad clauses cover disputes related to contract)
- Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers, 430 U.S. 243 (1977) (arbitration clauses can reach post-termination disputes arising from the contractual relationship)