Biglow v. Dell Techs., Inc.

KEVIN LEE BIGLOW, Plaintiff, v. DELL TECHNOLOGIES, INC., Defendant.

CIVIL ACTION No. 20-2563-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

May 5, 2021

MEMORDANDUM AND ORDER

Kevin Lee Biglow filed suit pro se against his former employer, Dell Technologies, Inc., alleging that Dell discriminated against him based on race. Specifically, plaintiff alleges violations of Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. §§ 2000e, the Civil Rights Act of 1871, 42 U.S.C. §§ 1981 and 1983, the Equal Pay Act, 29 U.S.C. § 206, the Americans with Disabilities Act, 42 U.S.C. § 12203, the National Labor Relations Act, 28 U.S.C. § 158, and unspecified "Kansas Labor Laws And Retaliation." Complaint (Doc. #1) at 7, 82-84. This matter is before the Court on Motion Of Defendant Dell Technologies, Inc. To Compel Arbitration And Request For Stay (Doc. #5) filed December 14, 2020 and Plaintiff's Motion For Leave To File Surreply To Defendant Dell Technologies, Inc.'s Motion To Compel Arbitration And Request For Stay (Doc. #13) filed February 23, 2021. For reasons set forth below, the Court sustains defendant's motion and overrules plaintiff's motion.

Factual Background

Below, the Court summarizes only the facts relevant to the arbitration agreement:

On January 27, 2012, Dell sent plaintiff an offer of employment by email. In the offer, Dell stated that plaintiff would be eligible for an annual bonus of three per cent of his salary. On January 31, 2012, plaintiff signed a Dell Employee Agreement. On September 16, 2017, Dell promoted plaintiff to a management position at the M6 level.

On November 27, 2018, Dell emailed its employees an updated arbitration agreement and employee agreement. The email contained a link to a list of FAQs that explained the new agreements. Employees had until January 31, 2019 to sign the agreements. The email stated that beginning in spring of 2019, employees who did not sign the agreements would be ineligible for future Long-Term Incentive ("LTI") grants.

On November 28, 2018, another Dell employee emailed Dell managers, including plaintiff. The title of the email was "Profit Sharing at Risk!!!" The email explained that managers needed to share the new agreements with their direct reports as "[s]ome of our folks don't read their Dell email." The email explained that signing the agreements would need "to be PUSHED from the top to insure [sic] everyone completes this task." The email stated that Dell wanted to address any issues with the software application used to sign agreements ASAP because "we don't want to put anyone's pay at risk." Finally, the email included the FAQs.

The next day, November 29, 2018, plaintiff signed the arbitration agreement. The agreement applied "to any and all dispute(s) arising out of or related to [plaintiff's] employment and/or separation form employment with Dell." The agreement specified that it applied "without limitation, to all disputes or claims arising out of or relating to [plaintiff's] employment relationship with the Company, including, but not limited to: (i) discrimination or harassment based on any characteristic protected by law; (ii) retaliation; (iii) torts; [and] (iv) all employment related laws."

On April 14, 2020, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On August 12, 2020, the EEOC issued plaintiff a Notice of Right to sue. On November 9, 2020, plaintiff filed suit against Dell alleging discrimination based on his race and retaliation.

Legal Standard

Federal policy favors arbitration agreements and requires the Court to rigorously enforce them. Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226 (1987); see also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119, 122-23 (2001) (arbitration agreements in employment contracts generally enforceable). Normally, on a motion to compel arbitration under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., the Court applies a strong presumption in favor of arbitration. ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1462 (10th Cir. 1995) (FAA evinces strong federal policy in favor of arbitration); see Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) (court should resolve any doubts concerning scope of arbitrable issues in favor of arbitration).

The question of arbitrability—whether the parties agreed to arbitrate a particular dispute—is an issue for judicial determination. AT&T Techs., Inc. v. Comm'n Workers of Am., 475 U.S. 643, 649 (1986). The enforceability of an arbitration agreement "is simply a matter of contract between the parties; [arbitration] is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995); see also PaineWebber Inc. v. Elahi, 87 F.3d 589, 594-95 (1st Cir. 1996) (arbitration is matter of contract law). Generally, state law principles of contract formation govern whether an enforceable arbitration agreement exists. Hardin v. First Cash Fin. Servs.,Inc., 465 F.3d 470, 475 (10th Cir. 2006). Here, neither party disputes that Kansas law applies, and both use Kansas law to support their positions.

The Court applies a summary-judgment-like standard in deciding whether to compel arbitration. Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir. 2012). The party seeking to compel arbitration bears the initial burden to present evidence that demonstrates that the arbitration agreement applies to plaintiff's claims to arbitrate. See id. Once this burden is met, the party opposing arbitration must show a genuine issue of material fact as to the validity or enforceability of the agreement. See id. Parties cannot avoid arbitration by generally denying facts upon which the arbitration rests. Felling v. Hobby Lobby, Inc., No. Civ.A.04-2374-GTV, 2005 WL 928641, *2 (D. Kan. Apr. 19, 2005).

While the Court liberally construes pleadings from a pro se plaintiff, it does not assume the role of plaintiff's advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Analysis

I. Plaintiff's Surreply

The local rules of this Court limit briefing on motions, aside from a memorandum in support, to a response and a reply. D. Kan. Rule 7.1(c). Surreplies are disfavored, and are permitted only in exceptional circumstances, such as when new material is raised for the first time in a movant's reply. See Locke v. Grady Cnty., 437 F. App'x 626, 633 (10th Cir. 2011).

Plaintiff's proposed surreply is largely a reiteration of the allegations presented in his response to defendant's motion for arbitration. Plaintiff asserts that defendant made new arguments in its reply but fails to identify which arguments are new. For the first time in its reply, Dell did note that plaintiff signed an arbitration agreement in 2015. Dell did so to rebutplaintiff's argument that the 2018 agreement was the first arbitration agreement which he had signed. Plaintiff asserts that Dell fabricated the 2015 agreement, but most of his proposed surreply restates arguments from his response brief. Given that plaintiff's arguments are largely a reiteration of prior arguments, that plaintiff does not identify which of defendant's arguments are new and that the Court does not rely on the 2015 arbitration agreement in rendering its decision, the circumstances do not warrant a surreply. Plaintiff's motion for leave to file a surreply is therefore overruled.

II. Whether Plaintiff Is Bound By The Arbitration Agreement

Here, the record reveals an enforceable agreement to arbitrate. The Arbitration Agreement states that the parties will arbitrate "any and all dispute(s) arising out of or related to [plaintiff's] employment and/or separation from employment with Dell" including claims of discrimination or retaliation. See Mutual Agreement To Arbitrate Claims, attached as Exh. 1 to Suggestions In Support Of Defendant Dell Technologies, Inc.'s Motion To Compel Arbitration And Request For Stay (Doc. #6). Plaintiff does not dispute that he signed this agreement, nor does he dispute that it covers his claims of employment discrimination and retaliation.

Based on alleged defects in contract formation, plaintiff makes four arguments why he should not be compelled to arbitrate: (1) he signed the agreement under duress; (2) Dell impermissibly conditioned his continued employment on signing the agreement; (3) Dell misrepresented the agreement by stating that it was similar to prior agreements and, as a result, plaintiff did not know that he was signing an arbitration agreement; and (4) Dell exercised undue influence over him. Additionally, plaintiff argues that the arbitration agreement is illusory and unconscionable.

As to duress, plaintiff argues that because he had been receiving long-term incentive ("LTI") grants, he acted under duress when signing the agreement because Dell conditioned future LTI grants on execution of the agreement. This argument is unsupported by the record. To support his contention that he was eligible for and received LTI grants, plaintiff attaches his offer of employment from Dell. This offer letter states that plaintiff is eligible for an annual bonus of three per cent of his salary but makes no mention of LTI grants. See Exhibit 4, (Doc. #10-4) at 1. Plaintiff argues that because he received a bonus, he received LTI grants. As Dell explains in its reply and by affidavit of Brooke Flores, Senior Advisor Legal Counsel for Dell, the LTI grant program and plaintiff's bonus program are two distinct programs and plaintiff never received LTI grants. Reply Suggestions In Support Of Defendant Dell Technologies, Inc.'s Motion To Compel Arbitration And Request For Stay (Doc. #12) at 10-11; Declaration Of Brooke Flores In Support Of Defendant's Motion To Compel Arbitration (Doc. #12-1). Thus, as a factual matter, the record contains no evidence that plaintiff received LTI grants or that he would miss out on future...