United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Susan
M. Bazis United States Magistrate Judge
This
matter is before the Court on Petitioner's Motion to
Compel Arbitration. (Filing No. 18.) For the reasons
set forth below, the undersigned will recommend that the
motion be denied.
BACKGROUND
Petitioner
hired Respondent Raul Alvarez (“Alvarez”) as a
custodial supervisor in October, 2014. (Filing No.
1.) When he was hired, Alvarez signed an arbitration
agreement in which he agreed to submit “any and all
claims arising out of or related to [his] employment that
could be filed in a court of law, including but not limited
to, claims of unlawful harassment or discrimination . . .
[and] wrongful discharge” to binding arbitration.
(Filing No. 20.) On or about November 16, 2015,
Alvarez was suspended without pay. His employment was
terminated in December, 2015.
On or
about December 4, 2015, Alvarez filed a charge of
discrimination with the Lincoln Commission on Human Rights
(“LCHR”), the Nebraska Equal Opportunity
Commission (“NEOC”), and the Equal Employment
Opportunity Commission (“EEOC”), asserting that
he was “subjected to different terms and conditions of
employment and a hostile work environment, denied a promotion
. . . and suspended without pay due to [his] national origin
. . . and [his] age . . . in violation of Title 11 of the
Lincoln Municipal Code, the Nebraska Fair Employment
Practices Act, Title VII of the Civil Rights Act of 1964 as
[a]mended, the Age Discrimination in Employment Act of 1967
and the Nebraska Age Discrimination in Employment Act.”
(Filing No. 1-2.)
The
LCHR investigated Alvarez's claims and facilitated
mediation between Petitioner and Alvarez. However, the
mediation was unsuccessful. On January 6, 2017, Alvarez
requested that the LCHR set the matter for public hearing.
(Filing No. 20-2.)
On
January 26, 2017, the LCHR issued a Charge of Discrimination
(Filing No. 20-2) and scheduled the matter for
hearing. On March 2, 2017, Petitioner filed a Petition to
Compel Arbitration (Filing No. 1) in this Court,
requesting that Alvarez be compelled to “arbitrate his
employment disputes against [Petitioner], ” and that
the LCHR proceedings be enjoined. (Filing No. 1.) In
the LCHR proceeding, Petitioner moved to adjourn the public
hearing and stay the matter pending a ruling on the Petition
filed in this Court. The hearing officer granted
Petitioner's request and issued an order staying all
proceedings pending the outcome of this case. (Filing No.
20-2.)
Petitioner
filed its Motion to Compel Arbitration (Filing No.
18) on August 9, 2017. The motion requests that Alvarez
be compelled to “arbitrate his claims pursuant to the
arbitration agreement he signed.” (Filing No. 18.)
Alvarez opposes the motion.
DISCUSSION
Under
the Federal Arbitration Act (“FAA”), “[a]
party aggrieved by the alleged failure, neglect, or refusal
of another to arbitrate under a written agreement for
arbitration may petition . . . for an order directing that
such arbitration proceed in the manner provided for in such
agreement.” 9 U.S.C. § 4. The FAA was
enacted “to reverse the longstanding judicial hostility
to arbitration agreements . . . and to place arbitration
agreements upon the same footing as other contracts.”
Gilmer v. Interstate/Johnson Lane Corporation, 500
U.S. 20, 24 (1991). The FAA evinces a “liberal federal
policy favoring arbitration agreements.” Moses H.
Cone Memorial Hospital v. Mercury Construction Corporation,
460 U.S. 1, 24 (1983). “[A]ny doubts concerning
the scope of arbitrable issues should be resolved in favor of
arbitration, whether the problem at hand is the construction
of the contract language itself or an allegation of waiver,
delay, or a like defense to arbitrability.” Id. at
24-25. Nevertheless, “arbitration is a matter of
contract and a party cannot be required to submit to
arbitration any dispute which he has not agreed so to
submit.” Howsam v. Dean Witter Reynolds, Inc.,
537 U.S. 79, 83 (2002) (quoting Steelworkers v. Warrior
& Gulf Nav. Co., 363 U.S. 574, 582 (1960)).
A court
asked to compel arbitration under the FAA must address two
questions: (1) whether a valid agreement to arbitrate exists
and (2) whether the arbitration agreement encompasses the
issues in dispute. Larry's United Super, Inc. v.
Werries, 253 F.3d 1083, 1085 (8th Cir. 2001). The Court
must grant a petition to compel arbitration “if a valid
arbitration clause exists which encompasses the dispute
between the parties.” 3M Co. v. Amtex Sec.,
Inc., 542 F.3d 1193, 1198 (8th Cir. 2008).
In this
case, the existence of an arbitration agreement between
Petitioner and Alvarez is not in question.[1] The real issue
presented is whether Alvarez can be compelled to arbitrate
the claims scheduled for hearing before the LCHR. The
undersigned concludes that he cannot.
The
LCHR administers Title 11 of the City of Lincoln,
Nebraska's Municipal Code (“Title 11”). Title
11 delineates certain unlawful employment practices,
including refusal “to hire, or to discharge any
individual, or otherwise to discriminate against any
individual . . . because of such individual's race,
color, religion, sex, disability, national origin, ancestry,
age, or marital status.” Lincoln Mun. Code §
11.08.40. The purpose of Title 11 is to effectuate the City
of Lincoln's policy of fostering “employment of all
employable persons in the city on the basis of merit
regardless of their race, color, religion, sex, disability,
national origin, ancestry, age, or marital status.”
Lincoln Mun. Code § 11.08.010. Among other things, the
LCHR is authorized to request that the City Attorney
institute legal proceedings to protect the rights and
privileges of complainants. Lincoln Mun. Code §
11.02.040.
An
individual alleging an unlawful discriminatory practice under
Title 11 may file a verified complaint with the LCHR. Lincoln
Mun. Code § 11.02.060. After the complaint is filed, the
LCHR notifies the individual named in the complaint
(“respondent”) and conducts an investigation. If
the LCHR determines, after the investigation, that there is
reasonable cause to believe the allegations in the complaint
are true, the LCHR uses informal methods of conference,
conciliation, or persuasion to eliminate the unlawful
practice. Lincoln Mun. Code § 11.02.060. If the unlawful
practice is not resolved by informal methods, the LCHR must
“cause to be issued and served in the name of the
[LCHR] a charge requiring the person or persons named in
the charge . . . to answer the allegations . . . and appear
at a public hearing.” Lincoln Mun. Code §
11.02.070 (emphasis added). If the hearing officer concludes
that a discriminatory practice as defined by Title 11 has
occurred, the hearing officer will prepare a written findings
of fact, which is submitted to the LCHR “for entry of
an appropriate order.” Lincoln Mun. Code §
11.02.070. The LCHR thereafter issues an order directing ...