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Ben-Salah v. Sterling Jewelers Inc.

United States District Court, D. Oregon, Portland Division

November 15, 2017

NIDHAL BEN-SALAH, Plaintiff,
v.
STERLING JEWELERS INC. OF DELAWARE, a Delaware corporation dba Jared Galleria of Jewelry, Defendant.

          FINDINGS AND RECOMMENDATIONS

          YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Plaintiff, Nidhal Ben-Salah (“Ben-Salah”), filed this action against his former employer, Sterling Jewelers Inc. of Delaware, dba Jared Galleria of Jewelry (“Sterling”), on June 8, 2017. Ben-Salah alleges two claims under ORS 659A.030(1)(b) for discrimination and retaliation based on religion (First Claim) and race (Second Claim).

         Ben-Salah is a citizen[1] of Washington. Complaint, ¶ 4. Sterling is a Delaware corporation with a principle place of business in Ohio, registered to do business in Oregon. Id., ¶ 5. Sterling has a retail location in Clackamas, Oregon, where Ben-Salah was employed. Id. The prayer does not specify the exact amount of damages Ben-Salah seeks, but the pleadings allege that the amount in controversy exceeds $75, 000. Id., ¶ 2. Accordingly, this court has jurisdiction over Ben-Salah's claims under 28 USC § 1332.

         Now before the court is Sterling's Motion to Dismiss or in the Alternative Motion to Stay Proceedings and Compel Arbitration (ECF #5). Sterling asserts that this case is subject to mandatory arbitration under the Federal Arbitration Act (“FAA”), 9 USC §§ 1-16, based on Ben-Salah's act of electronically signing-prior to starting his job with Sterling-an online “Acknowledgement of Receipt” that stated he was “responsible for reading and understanding” and “agree[d] to the[] provisions” of 10 documents, including one titled “RESOLVE Arbitration Agreement.” See Declaration of Jamie Broadhead (ECF #7) (“Broadhead Decl.”), ¶ 4 and Ex. 1. For the reasons that follow, the motion should be GRANTED and this action should be DISMISSED in favor of mandatory arbitration as dictated under the terms of the “RESOLVE Arbitration Agreement, ” the provisions of which Ben-Salah agreed to at the inception of his employment with Sterling.

         BACKGROUND FACTS

         Ben-Salah commenced employment with Sterling on October 16, 2014. Broadhead Decl., ¶ 4. On that same date, Ben-Salah claims he was told he could not work for Sterling before electronically signing documents, which his manager represented contained “company policies.” Declaration of Nidhal Ben-Salah in Support of Plaintiff's Response (ECF #13) (“Ben-Salah Decl.”), ¶ 4. Ben-Salah claims he was presented with “hundreds of pages of boilerplate documents, ” and he was “told to simply scroll through them.” Id., ¶ 3. He was not asked to sign copies of the individual documents, but instead was directed to click on 10 individual boxes next to the titles of the documents and then electronically sign the Acknowledgment of Receipt (“Acknowledgement”), which stated:

Acknowledgement of Receipt: The Company requires each employee to acknowledge receipt of the company policy summaries listed below. The documents were distributed electronically and you have acknowledged, by clicking the “Acknowledgement” checkbox, that you are responsible for reading and understanding all of the documents.
[List of 10 documents.]
Electronic Signature I confirm that I am responsible for reading and understanding all of these documents, and I agree to adhere to their provisions. I understand that these policies are extremely important and agree to seek immediate clarification of any issues unclear to me.

Broadhead Decl., Ex. 1.[2]

         Ben-Salah asserts that he “was not aware of the existence of an arbitration agreement” because he “was not allowed to review the documents” at hire. Ben-Salah Decl., ¶ 2. However, the list of 10 documents referenced in the Acknowledgement included a document clearly titled “RESOLVE Arbitration Agreement” (“RAA”), and evidence shows that Ben-Salah clicked on the box next to the RAA on October 16, 2014, at 4:49 PM. Broadhead Decl., Ex. 1. The RAA, a two-page document, sets forth a series of terms pertaining to the use of the “RESOLVE Program, ” Sterling's dispute resolution program, which involves a multi-step review culminating in binding arbitration. Id., Ex. 2. Specifically, the RAA:

• States the employee agrees to “utilize the Sterling RESOLVE Program to pursue any pre-employment, employment, or post-employment dispute, claim or controversy . . . against Sterling, ” regarding “any alleged unlawful act” regarding the employee's employment, including “claims under . . . any . . . state or federal law. . . .”
• States that as “consideration” for the employee signing the RAA, Sterling agrees to use the RESOLVE Program for any claims against the employee and pay $25 of the employee's arbitration filing fee.
• Waives “the parties['] rights to obtain any legal or equitable relief . . . through any court [and] to commence any court action . . . provided that either party may seek equitable relief to preserve the status quo pending final disposition under the RESOLVE Program.”
• Allows the parties to “seek and be awarded any remedy through the RESOLVE Program that they could receive in a court of law” and allows parties to file charges or complaints with appropriate governmental administrative agencies, but waives their right to any remedy or relief as a result of such charges to the extent permissible by law and provides that “the time limitation set forth in RESOLVE ...

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