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Whitten v. Apria Healthcare Group, Inc.

United States District Court, D. Maryland, Southern Division

May 11, 2015



PAUL W. GRIMM, District Judge.

Plaintiff Olivia Whitten filed suit, alleging that her former employer, Apria Healthcare Group, LLC ("Apria"), violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., by interfering with her FMLA rights and terminating her in retaliation for her taking FMLA leave. Compl., ECF No. 1. Plaintiff also alleges that Apria wrongfully terminated her in violation of Maryland public policy.[1] Id. Apria seeks to dismiss the complaint and arbitrate the claims under an alleged arbitration agreement ("Arbitration Agreement" or "Agreement") that Plaintiff purportedly entered into during the course of her employment. Def.'s Mot. to Compel Arbitration & Dismiss Compl. ("Def.'s Mem."), ECF No. 17.[2] Alternatively, Apria seeks to dismiss the common law wrongful termination claim, arguing that it is precluded by the statutory civil remedy contained in the FMLA. Id. As Plaintiff sees it, the Arbitration Agreement is not valid because she never agreed to arbitrate her employment disputes with Apria. As for the viability of her common law claim, Plaintiff contends that it should not be dismissed because she bases it not only on public policy stated in the FMLA but also on public policy stated in the Federal Occupational Safety and Health Act ("OSHA"), 29 U.S.C. §§ 651 et seq. and the Maryland Occupational Safety and Health Act ("MOSHA"), Md. Code Ann., Lab. & Empl. §§ 5-101 et seq. Because I must treat Defendant's Motion to Compel Arbitration as a motion for summary judgment, and a genuine dispute exists as to the validity of the Arbitration Agreement, I will deny the motion, without prejudice to being resubmitted on request, as this case will proceed with discovery on the validity of the Arbitration Agreement, and I will hold a jury trial to determine this discrete matter of fact. Additionally, because Plaintiff identified only the FMLA as the basis for her common law wrongful discharge claim, I will grant Defendant's motion with respect to dismissal of the wrongful discharge claim.


A. Standard of Review

Defendant moves to compel arbitration under the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-15. Congress enacted the FAA "to promote the enforceability of arbitration agreements and to make arbitration a more viable option to parties weary of the ever-increasing costliness and delays of litigation.'" Saturn Distribution Corp. v. Williams, 905 F.2d 719, 722 (4th Cir. 1990) (quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 220 (1985) (quoting H.R. Rep. No. 96, 68th Cong., 1st Sess. 2 (1924) (quotation marks omitted))). It "reflects a liberal federal policy favoring arbitration agreements.'" Adkins v. Labor Ready, Inc., 303 F.3d 496, 500 (4th Cir. 2002) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). If an issue is "referable to arbitration under an agreement in writing for such arbitration, '" then a stay is mandatory and a motion to compel must be granted. Id. (quoting 9 U.S.C. § 3).

Relevantly, "even though arbitration has a favored place, there still must be an underlying agreement between the parties to arbitrate.'" Adkins, 303 F.3d at 501 (quoting Arrants v. Buck, 130 F.3d 636, 640 (4th Cir. 1997)). Here, Plaintiff challenges the very existence of the Arbitration Agreement, rather than its scope. See Pl.'s Opp'n 3, 6. When a party moves to compel arbitration and the validity of the purported arbitration agreement between the parties is disputed, the motion is treated as one for summary judgment. See Rose v. New Day Fin., LLC, 816 F.Supp.2d 245, 251 (D. Md. 2011); see also id. at 252 n.5 ("If the parties dispute the existence of an arbitration agreement, the court must hear the parties' on the issue, and the party alleged to have violated the arbitration agreement is entitled to a jury trial on the existence of an agreement. Standard summary judgment rules apply." (quoting 9 U.S.C. § 4 and citing Shaffer v. ACS Gov't Servs., Inc., 321 F.Supp.2d 682, 684 n.1 (D. Md. 2004))). Therefore, I will treat Defendant's Motion to Compel as one for summary judgment on the validity of the Arbitration Agreement. See id.; see also Fed.R.Civ.P. 12(d) (requiring conversion of motion to dismiss to motion for summary judgment where, as here, movant attaches affidavits in support that are not integral to the pleadings).

Summary judgment is proper when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials, " that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). The question here is "whether a contract to arbitrate was formed, " and "unless there is no genuine issue of fact as to whether a contract was formed, the court must submit the question to the jury." Galloway v. Santander Consumer USA, Inc., No. CCB-13-3240, 2014 WL 4384641, at *2 (D. Md. Sept. 3, 2014). To determine whether an arbitration agreement exists, "[c]ourts apply ordinary state-law principles that govern the formation of contracts.'" Id. (quoting Noohi v. Toll Bros., Inc., 708 F.3d 599, 607 (4th Cir. 2013) (internal quotation marks and citations omitted)).

B. Discussion

Under Maryland law, [3] a contract exists where there is "mutual assent (offer and acceptance), an agreement definite in its terms, and sufficient consideration.'" Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769 (4th Cir. 2013) (quoting CTI/DC, Inc. v. Selective Ins. Co. of Am., 392 F.3d 114, 123 (4th Cir. 2004)). Here, the parties dispute whether Plaintiff accepted the Arbitration Agreement. Apria contends that "Plaintiff entered into the Arbitration Agreement when she received a copy of the Agreement on July 15, 2014 via Apria's online training [Workplace Resolutions'] course about its Arbitration Program, " and the Arbitration Agreement "made clear that Plaintiff was bound by the Agreement if she did not opt out of it within 30 days." Def.'s Mem. 8. According to Apria, Plaintiff became bound by the Arbitration Agreement when she did not opt out of it within 30 days. Id.

In support, Defendant attached the November 17, 2014 Affidavit of Helena Kohistani, Senior Talent Management Systems Administrator for Apria, to which are attached (i) the Arbitration Agreement assertedly provided to Plaintiff during Apria's Workplace Resolutions course; (ii) a copy of the Acknowledgement screen for the Workplace Resolutions course; (iii) Plaintiff's Learning Central Transcript Report reflecting her completion of the Workplace Resolutions course and her acknowledgement of receiving the Agreement; and (iv) Plaintiff's Learning Central Transcript reflecting the time and date stamps for her completion of the Workplace Resolutions course. Kohistani Aff. & Att. (i)-(iv), Def.'s Mem. Ex. 1, ECF No. 17-2. According to Ms. Kohistani

[i]n connection with Ms. Whitten's employment at Apria in Maryland, on July 15, 2014, Ms. Whitten participated in a training session entitled APR702 Apria Workplace Resolutions' via Apria's online training system, Learning Central. That training informed Ms. Whitten about the Arbitration Program and provided her with an electronic copy of the Arbitration Agreement.

Kohistani Aff. ¶ 5, Nov. 17, 2014. She also stated:

During the training session, Ms. Whitten acknowledged that she received the Arbitration Agreement by clicking Yes' on the Acknowledgement screen stating: I acknowledge that I have reviewed APR702 in its entirety. I further acknowledge that I received a copy of Apria's Employee Arbitration Program Agreement and the AAA Rules and Mediation Procedures document.' This positive acknowledgement is reflected as a score' of 100' on Learning Central Transcript Report for this course and as progress' of 100%' on the Learning Central Transcript Details for this course."

Id. In her Affidavit, Carol Stokes, Legal Secretary of Apria, states that she "never received... any request to opt out of the Apria Workplace Resolutions Program from an individual named Olivia ...

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