United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE
Farmer, a former employee of Macy's, Inc., has filed this
civil action against Macy's, Inc. and Macy's Retail
Holdings (collectively, "Macy's") in which she
alleges discrimination on the basis of age, in violation of
the Age Discrimination in Employment Act of 1967
("ADEA",, 29 U.S.C. SS 621-634 (2018), and on the
basis of race, in violation of 42 U.S.C.
§ 1981 (2012). Pending before the Court
is Defendants' Motion to Compel Arbitration and Dismiss,
or Alternatively Stay, the Proceeding.. Having reviewed the
submitted materials, the Court finds that no hearing is
necessary. See D. Md. Local R. 105.6. For the
reasons set forth below, the Motion is GRANTED.
Farmer began working at the Macy's department store in
Alexandria, Virginia on February 17, 2011.
According to Farmer, during her employment at Macy's, she
was subjected to discrimination, harassment,, and a hostile
work environment on the basis of age and race. This alleged
mistreatment culminated in the termination of her employment
on November 5, 2015.
Farmerss employment at the Alexandria, Virginia location,
Macy's used a four-step employee dispute resolution
system called Solutions InSTORE ("SIS"). The first
three steps of the program are internal to Macy's,
allowing employees to raise complaints with, respectively, a
local supervisor, the regional Office of Senior Human
Resources Management, and the Office of Solutions InSTORE.
The fourth step consists of binding arbitration through the
American Arbitration Association. Macy's employees are
deemed to have agreed to the fourth step, and thereby to have
forfeited the right to bring employment disputes in state or
federal court, unless they opt out of binding arbitration at
the outset of their employment. Specifically, new employees
receive from Macy's a New Hire Brochure that includes an
opt-out form that, to be effective, must be completed and
mailed back to the Office of Solutions InSTORE within 30 days
of starting employment at Macy's. The opt-out form, and
several other documents in the new hire packet, provide that
to opt out of arbitration, an employee must mail the form to
a specific address in Ohio. In particular, new hires must
electronically sign a form ("the Acknowledgment
Form") acknowledging that they have received the SIS
documents and affirming that "I understand that if I do
not wish to be covered by Step 4, Arbitration, the only way
to notify the Company about my choice is by postmarking my
election form within 30 days of hire and mailing it to the
Office of Solutions InSTORE." Acknowledgment Form, Reply
Mot. Compel Arbitration Ex. I at 91, ECF No. 72-1.
initiated a Step 1 complaint on January 6, 2015 and then
pursued this complaint through Steps 2 and 3. While it is
unclear what results Steps 1 and 2 produced, at Step 3 her
complaints were denied by Cindy Ripak, the Senior Manager of
SIS, who informed Farmer that after investigation, she was
not able to substantiate Farmerss claims of "harassment,
discrimination and defamation of character." Ripak
Letter (Dec. 22, 2055), Opp'n Mot. Compel Arbitration Ex.
5, ECF No. 60-ll.
the completion of the third SIS step in December 2015,
Macy's informed Farmer that if she was not satisfied with
this resolution, she could proceed to arbitration. Instead,
however, on July 21, 206,, Farmer filed an adversary
proceeding against Macy's relating to this issue as part
of the proceedings on her personal bankruptcy in the United
States Bankruptcy Court for the District of Maryland. In
February 2017, Farmer filed a motion to withdraw the
reference from the bankruptcy court. After the motion was
granted, Farmer filed the currently operative Amended
Complaint in this Court. Macy's then filed a Motion to
Dismiss, which was granted in February 2019 as to Farmerss
Americans with Disabilities Act claims. Macy's has now
filed the pending Motion to Compel Arbitration and Dismiss,
or Alternatively Stay, the Proceeding..
claims that Farmer "previously agreed to have all
employment-related legal disputes with Defendants resolved
exclusively by final and binding arbitration under the
Solutions InSTORE Program" and so asks this Court to
"compel Plaintiffs claims to arbitration" and
"dismiss this action." Mot. Compel Arbitration 1-2,
ECF No. 55-1. Farmer disputes the claim that she agreed to
arbitration and that the arbitration agreement encompasses
her discrimination claims.
in this District have recognized that "motions to compel
arbitration exist in the netherworld between a motion to
dismiss and a motion for summary judgment." Caire v.
Conifer Value Based Care, LLC, 982 F.Supp.2d 582, 589
(D. Md. 2013) (quoting Shaffer v. ACS Gov't Servs.,
Inc., 321 F.Supp.2d 682, 683 (D. Md. 2004)); PC
Canst. Co. v. City of Salisbury, 871 F.Supp.2d 475, 477
(D. Md. 2012). Treating a motion to compel arbitration as a
motion for summary judgment is proper where "the
formation or validity of the arbitration agreement is in
dispute," Caire, 982 F.Supp.2d at 589, or where
documents outside the pleadings must be considered "to
effectively assess the merits of [the] motion,"
Shaffer v. ACS Gov 't Servs., Inc., 321
F.Supp.2d 682, 683-84 (D. Md. 2004); accord PC Const.
Co., 871 F.Supp.2d at 477 ("Whether the motion [to
compel arbitration] should be treated as a motion to dismiss
or a motion for summary judgment turns on whether the court
must consider documents outside the pleadings.").
See also Galloway v. Santander Consumer USA, Inc.,
819 F.3d 79, 85 & n.3 (4th Cir. 2016) (stating that under
the Federal Arbitration Act, a party seeking a jury trial
"must show genuine issues of material fact regarding the
existence of an agreement to arbitrate," a standard that
is "akin to the burden on summary judgment""
(quoting Chorley Enters. v. Dickey's Barbecue
Rests., 807 F.3d 553, 564 (4th Cir. 2015))). Here, the
Court will apply the summary judgment standard both because
the parties dispute whether an arbitration agreement was
formed and because resolving this dispute requires
consideration of materials beyond the pleadings.
Federal Rule of Civil Procedure 56(a), the Court grants
summary judgment if the moving party demonstrates that there
is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). In assessing the Motion, the Court
views the facts in the light most favorable to the nonmoving
party, with all justifiable inferences drawn in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). The Court may rely only on facts supported
in the record, not simply assertions in the pleadings.
Bouchat v. Bah. Ravens Football Club, Inc., 346 F.3d
514, 522 (4th Cir. 2003). A fact is "material" if
it "might affect the outcome of the suit under the
governing law." Anderson, 477 U.S. at 248. A
dispute of material fact is only "genuine" if
sufficient evidence favoring the nonmoving party exists for
the trier of fact to return a verdict for that party. Mat
asserts that Farmer agreed to be bound by arbitration because
at the time she was hired, she accepted the Macy's SIS
and failed to opt out of arbitration by mailing back the
opt-out form within the allotted 30 days, as required by the
terms of the SIS Acknowledgment Form and the opt-out form
itself. Farmer, however, disputes that there was a mail-in
requirement to opt out of arbitration and asserts that she
completed a paper ...