United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
YIM YOU, UNITED STATES MAGISTRATE JUDGE.
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
is a citizen 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.
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
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
[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.
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