MEMORANDUM
Before the court is the Motion to Compel Arbitration- and to Stay All Proceedings (Doc. No. 12) filed by defendant BAH Shoney’s Corp.
I. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff Tamika Hudson was hired on May 31, 2014 as a cashier at a Shoney’s Restaurant operated by the defendant. She alleges that her supervisor subjected her to sexual harassment and a sexually hostile work environment beginning immediately after she was hired and continuing despite numerous complaints directly to her shift leader, assistant manager, and BAH’s Human Resources Department. She filed an EEOC Charge on October 31, 2013, after which, she alleges, she was subjected to retaliation, culminating in her retaliatory discharge on March 19, 2014.
The plaintiff filed her Complaint on November 22, 2016 (Doc. No. 1), asserting claims of discrimination and retaliation under Title VII of the Civil Rights Act as amended, 42 U.S.C. §§ 2000e et seq., and state law. In lieu of an answer, BHA has
In support of its motion, BAH submitted the Declaration of Catherine Hite (Doc. No. 14-1), currently BAH Executive Vice President and General Counsel of Sho-ney’s; the Shoney’s Restaurant Team Member Employee Handbook (“Employee Handbook”) (Doc. No. 14-2); and an Employee Acknowledgment (Doc. No. 14-3) executed by the plaintiff on May 31, 2013. In her Declaration, Hite avers that, when BAH hires new employees, it provides them with a copy of the Employee Handbook, which contains the company’s Arbitration Policy and Procedures (“Arbitration Policy”). (Hite Decl. ¶ 4; Employee Handbook § 108, Doc. No. 14-2, at 11-15.)
The second paragraph of the Arbitration Policy states, in boldface:
THIS IS A LEGALLY BINDING AGREEMENT: By accepting employment at BAH, and by continuing your employment with BAH, after you have been provided a copy of or otherwise received notice of this Arbitration Policy and Procedures, you and BAH consent to and accept all of the terms of the Arbitration Policy and Procedures. The terms of this Arbitration Policy and Procedures are conditions of your employment.
(Doc. No. 14-2, at 11.) The Arbitration Policy thereafter provides that proceeding under the Arbitration Policy “shall be the exclusive, final and binding method by which employment related legal disputes are resolved.... BAH and its employees shall have no right to litigate a dispute in any other forum.” (Id. at 12.) More specifically, it provides that all claims “arising from or related to the employee’s employment relationship with BAH,” including— but not limited to — claims arising from allegations of discrimination based on sex, sexual harassment, and retaliation for exercising legal rights, must be resolved through arbitration. (Id.)
The Arbitration Policy states that the Arbitration Policy itself,' as embodied in § 108 of the Employee Handbook, constitutes the complete agreement between employee and employer regarding arbitration. (Id. at 13.) The Arbitration Policy then describes the procedures governing arbitration and covers such matters as the allocation of fees, costs, and attorneys’ fees, and appellate procedure. (Id. at 13-15.) Finally, the provision states that the Federal Arbitration Act (“FAA”), Title 9 of the United States Code, “will govern the interpretation, enforcement, and all other judicial proceedings under and/or with respect to this Arbitration Policy and Procedures.” (Id. at 15.)
The Employee Acknowledgement is a one-page document consisting of four paragraphs. By signing it, a newly hired employee acknowledges receipt of the Employee Handbook and ■ purportedly consents to be bound by BAH’s Arbitration Policy contained therein:
Employee’s Acknowledgment of Receipt of Shoney’s Restaurants’ Arbitration Policy and Procedures. I have been provided a copy of the Shoney’s Restaurants’ Arbitration Policy and Procedures contained in the Employee Handbook. The updated document is available for review on the Centemet. I understand that the Arbitration Policy and Procedures is a binding contract between me and BAH Shoney’s Corp. d/b/a Shoney’s Restaurants and that it is a condition of my employment and'of my continued and future employment with BAH Shoney’s Corp. d/b/a Shoney’s Restaurants. I further understand that, by continuing my employment with BAH Shoney’s Corp. d/b/a Shoney’s Restaurants, I agree to submit to binding arbitration under. Shoney’s Restaurants’ Arbitration Policy and Procedures of any and all claims, disputes or controversies that exist now or arise later between me and BAH....
(Doc. No.-14-3.) The Employee Acknowledgment submitted by BAH was signed by Tamika Hudson on May 31, 2013. (Id.)
In her Corrected Affidavit, the plaintiff describes the circumstances under which she was employed by BAH and signed the Employee Acknowledgment.
The plaintiff does not indicate when she was notified that she was hired, but she began working on May 31, 2013. At the end of her first shift, she received a copy of the Employee Handbook and was asked to sign numerous documents, including the Employee Acknowledgment. She states: “I had to sign all the paper that they gave me that day in order to keep the job.” (Id. ¶8.) She asserts that she did not know that she was signing an arbitration agreement, did not understand that she was giving up her right to go to court if she had a problem, and “did not have a lot of time” to look over the documents she was signing. (Id. ¶¶ 10-12.) She asserts that she - did not have time to read all the documents, including the Employee Acknowledgment, (Id. ¶20.) N« one mentioned arbitration as she signed the forms; the store manager did not tell her what was in the documents she was signing— she was just told to sign the papers. (Id. ¶¶ 10, 15.) She claims that BAH did not inform her orally or in writing that she was giving up her right to go to court and. that she does not know what the word “forum” means. (Id. ¶¶ 17, 26.) The entire interview and paperwork-completion process took less than thirty minutes. She accepted a job making $8.25 per hour, which equates to approximately $17,000 annually, working 35 to 40 hours per week. (Id. ¶ 22.) The allegations in the plaintiffs: affidavit are not rebutted by the defendant.
In her Complaint, the plaintiff alleges that, after she complained of sexual harassment, she was suspended without pay for approximately a month during the investigation into her claims and was later discharged in retaliation for having filed an EEOC charge.
II. ANALYSIS
A. Legal Standard
As noted above, the Arbitration Policy provides that it is to be governed by the FAA (Doc. No. 14-2, at 15), and’the parties apparently, do not dispute that the Arbitration Policy is governed by the FAA. Accord Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ.,
Generally, however, before • the court can send a case to arbitration,' it must first determine whether a valid agreement to arbitrate exists under state law. 9 U.S.C. § 2. An arbitration agreement may be voided for the same reasons for which ’any contract may be invalidated under state law, “provided the contract law applied is general and not specific to arbitration clauses.” Fazio,
In addition, a party’s waiver of the constitutional right to a jury trial inherent in any agreement to arbitrate, to be valid, must be knowing and voluntary. Hergenreder v. Bickford Senior Living Grp., LLC,
B. Whether the Waiver Was Knowing and Voluntary ■
BAH, in its Motion to Compel-Arbitration, asserts that the agreement to arbitrate is valid and enforceable and that the claims raised in the litigation clearly fall within the scope of the agreement to arbitrate. In response, the plaintiff argues that (1) she did not knowingly and voluntarily waive her constitutional right to a jury trial; (2) the arbitration agreement is prqcedurally and substantively unconscionable; and (3) the arbitration provision is pot binding and enforceable due. to ambiguity, in the language.of the Employee Handbook. Because the court finds, as set forth herein, that the plaintiffs waiver of her right, to a jury trial was not knowing and voluntary, the court will deny the defendant’s motion without, ■ reaching the plaintiffs other arguments.
“It is elementary that the Seventh Amendment right to a jury is fundamental and that its protection can only be relinquished knowingly and intentionally.... Indeed, a presumption exists against its "waiver.” Nat’l Equip. Rental, Ltd. v. Hendrix,
Turning to the first factor enumerated by the Sixth Circuit in Morrison and elsewhere, the plaintiff here states that she has a tenth-grade education and never received her diploma or a GED; she informed the defendant of this fact in her employment application. (Pl.’s Corr. Aff. ¶¶4-5, Doc. No. 27.) She attests that, at the time she accepted the job at Shone/s, she “needed any job,” was “desperate to work” to support herself and her new baby, and therefore accepted the job in which she expected to make approximately $17,000 annually. (Id. ¶¶ 3, 22.) She states that she has “not seen many contracts in [her] lifetime” and, in fact, had only previously signed rental contracts; she has never purchased a home, and she does not know what the word “forum” means. (Id. ¶¶ 23-26.) Based on these allegations, the court finds that the first factor — the consideration of the plaintiffs experience, education, and background — weighs against enforcing the waiver. Accord Walker v. Ryan’s Family Steak Houses, Inc.,
Regarding this factor, this case is readily distinguishable from the authority on which the defendant relies. In Schnaudt v. Johncol, Inc., No. 2:15-CV-2619,
Similarly, in Allen v. Tenet Healthcare Corp.,
As for the second factor, the plaintiff applied for the job on May 25, 2013 and worked her first shift on May 31, but she did not sit down with the store manager and sign paper work until the end of her shift. At that time, she “signed numerous documents and received an employee handbook.” (Pl.’s Corr. Aff. ¶¶ 2, 6, 7.) She was told that she had to sign everything handed to her in order to keep the job.
Based on these facts, the court finds that this factor, too, weighs against a finding that the waiver was knowing and voluntary. Accord Walker,
Admittedly, merely being rushed or having little time, standing alone, is not typically sufficient to find in favor of the plaintiff on this factor. See, e.g., Porter v. MC Equities, LLC, No. 1:12 CV 1186,
Turning to the third factor, the court finds-that the waiver was not sufficiently clear to put an unsophisticated em
Moreover, while it certainly would be reasonable to expect a job applicant to read the one-page, four-paragraph Employee Acknowledgment before signing it, the Acknowledgment itself does not incorporate a clear waiver of the right to a jury trial. In signing it, the plaintiff acknowledged only that she was consenting “to binding arbitration under Shoney’s Restaurants’ Arbitration Policy and Procedures of any and all claims, disputes.or controversies, that exist now or arise later between me and BAH.” (Doc. No. 14-2.) The term “binding arbitration” is not in any way defined or described in the Employee Acknowledgment, and the .court finds it unrealistic to expect a young person lacking a high school education to understand the full import of that term. The Employee Acknowledgment does.not .pair usage of the term with an express identification of the types of legal claims that were implicated or with notice that consent to binding arbitration necessarily entails waiver of the right to a jury trial in a court of law. Nor did the restaurant manager or any other BAH employee explain to the plaintiff what arbitration means or even point out to her that, by signing the Employee Acknowledgment, she was agreeing to arbitrate,
In contrast, in Allen v. Tenet Healthcare, the Employee Acknowledgment Form conveyéd substantially more information about the arbitration agreement that was incorporated in the Employee Handbook. That acknowledgment stated, in relevant part:
I acknowledge that I have received a copy of the Tenet Fair Treatment Process brochure. I hereby voluntarily agree' to use the Company’s Fair Treatment Process and to submit to final and binding arbitration any and all claims and disputes that are related in any way to my employment or the termination of my employment with Tenet.... I understand that final and binding arbitration will be the sole arid exclusive remedy for any such claim or dispute against Tenet ...,'and that, by agreeing to use arbitration to resolve my dispute, both the Company and I agree to forego any right we each may have had to a jury trial on issues covered by the Fair Treatment Process.
Id, Thus, the plaintiff in Allen, besides being better educated and more sophisticated than the plaintiff here, was presented with a better summary of the company’s arbitration agreement. Likewise, in Porter, the arbitration agreement was a short, stand-alone document titled “Dispute Resolution Agreement,”
The conclusion that the language in the' Employee Acknowledgment in the present
We are not entirely persuaded by the district court’s reasoning because the Arbitration Agreement does refer'to the fact that the signatory agrees to arbitrate claims “which would otherwise be decided in court,” conveying the key point that the signatory will not be .able to bring a claim in court. And,, although the waiver provision does not refer to relinquishing the right to a jury trial, this Court has held that “a party who enters an arbitration agreement necessarily consents to the clear and obvious consequence: the surrender of his right to go to trial.”
Id. (quoting Cooper v. MRM Inv. Co.,
The fourth factor asks whether the agreement was supported by consideration. Under Tennessee law, “Mutuality of promises is ample consideration for a contract. A mutual promise in itself would constitute a sufficient consideration.” Pyburn v. Bill Heard Chevrolet,
As indicated above, however, the first, second, ¿nd third factors weigh strongly against enforcement. The fact that the obligation to arbitrate was mutual does not outweigh those factors. Considered in their totality, the circumstances here dictate the result: the plaintiffs waiver of the right to a jury trial was not knowing and voluh-tary. The court, therefore, will not enforce the arbitration agreement.
HI. CONCLUSION
For the reasons set forth herein, the defendant’s Motion to Compel Arbitration will be denied. An appropriate order is filed herewith.
Notes
. The defendant asserts that BAH Shoney's Corp. is incorrectly identified in the case caption as ‘‘BAH Shoney’s Corporation” and that the case caption incorrectly states that BAH Shoney’s Corp. does business as Shoney’s Restaurant.
. The original Affidavit (Doc, No, 22-1) contained numerous typographical errors, including an error in paragraph 16, which stated: “Shoney’s did let me know in writing or verbally that I was giving up my right to go to court.” After the defendant pointed out that statement in its Reply, in support of its own arguments, the plaintiff submitted a Corrected Affidavit, which, besides correcting other typographical and formatting issues, modified that paragraph to state, "Shoney's did not let me know in writing or verbally that I was giving up my right to go to court,” (Doc. No, 27 ¶ 17 (emphasis added),)