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Guest v. Air Liquide America Specialty Gases, LLC

United States District Court, D. Oregon, Portland Division

June 28, 2018

CHRISTOPHER GUEST, Plaintiff,
v.
AIR LIQUIDE AMERICA SPECIALTY GASES, LLC, AIRGAS USA, LLC, AMERICAN AIR LIQUIDE HOLDINGS, INC., DefendantS.

          FINDINGS AND RECOMMENDATION

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Plaintiff Christopher Guest (“Guest) filed this action against his prior employers, Air Liquide America Specialty Gases, LLC (“America Specialty”), Airgas USA, LLC (“Airgas”), and American Air Liquide Holdings, Inc. (“Air Liquide”)(collectively “Defendants”), asserting claims for age discrimination and interference with prospective employment benefits. Defendants move to compel arbitration pursuant to the terms of an arbitration clause governing disputes arising out of the employment relationship.

         The court finds the arbitration provision is valid and encompasses all of the claims asserted by Guest, and Defendants have not waived their right to compel arbitration. Accordingly, Defendants' motion to compel arbitration should be granted and this case dismissed.

         Background

         America Specialty's predecessor in interest hired Guest in April 1989. (Compl., ECF No. 1, ¶ 7.) On September 15, 1997, Guest, who was then working for Air Liquide Canada, executed an employment application for a new position with Air Liquide America Corporation (the “Application”). (Cole Decl. dated February 7, 2018, ECF No. 7 (“First Cole Decl.”), ¶¶ 3, 4; Guest Decl., ECF No. 15, ¶ 3.) The Application was one of many documents given to Guest for execution as part of the transfer. (Guest Decl. ¶ 4.) The Application provided:

IN THE EVENT I SHOULD BE INVOLUNTARY TERMINATED, I AGREE TO ABIDE BY THE TERMS OF THE COMPANY'S ALTERNATIVE DISPUTE RESOLUTION PROCEDURE.
I UNDERSTAND THAT THE AGREEMENT TO ARBITRATE UNDER THE CORPORATION'S ALTERNATIVE DISPUTE RESOLUTION POLICY PREEMPTS MY RIGHT TO PURSUE REMEDIES IN ANY COURT AGAINST EITHER THE COMPANY OR AN INDIVIDUAL SUPERVISOR OR MANAGER.
I ALSO UNDERSTAND THAT THE CORPORATION'S OFFER OF EMPLOYMENT IS IN CONSIDERATION FOR AND CONTINGENT UPON ACCEPTANCE OF THE ABOVE.
I CERTIFY THAT I HAVE READ, UNDERSTAND AND ACCEPT THE COMPANY'S ALTERNATIVE DISPUTE RESOLUTION POLICY.

         (First Cole. Decl. Ex. 1, at 3.) This language is located directly above the signature line bearing Guest's signature. (First Cole Decl. Ex. 1, at 3.)

         The alternate dispute resolution policy in effect on the date Guest signed the Application (the “1997 ADR Agreement”) provided, in pertinent part:

Policy Statement
The Company actively encourages use of an “open door” policy with regard to resolving work related issues. In accordance with this philosophy of amicable problem resolution, all disputes over involuntary termination of employment at Air Liquide America Corporation shall be resolved through alternative dispute resolution, including arbitration if necessary. Alternative dispute resolution has been instituted in order to provide a neutral, faster and cost efficient forum for employees who disagree with a decision by the Company to end the employment relationship. The Company has instituted the following procedures as the exclusive remedy for all disputes over termination of employment.
Authority of Arbitrator
The arbitrator has the authority to determine whether the termination violated the employee's federal or state statutory, common law or contractual rights.
Available Remedies
The arbitrator has the authority to provide remedies to an employee who prevails in the arbitration which are available under applicable law including but not limited to reinstatement, back pay, arbitrator's and attorney's fees.
Cost of Arbitration
Prior to the arbitration, the employee will pay the sum of $100 to the arbitrator. The Company will pay the remaining fees and expenses for the arbitrator. Each side will be responsible for expenses associated with its own witnesses, including travel. Employees may be represented by an attorney at his or her own expense. Employees who serve as witnesses will be compensated for time spent in such capacity at arbitration.

         (First Cole Decl. Ex. 2.) No. one reviewed the Application with Guest, its terms were not subject to negotiation, Guest did not read the Application before signing, and Guest was not aware of the 1997 ADR Agreement before filing this action. (Guest Decl. ¶ 4.)

         On March 1, 2006, Air Liquide forwarded an “Executive Announcement” by email to all employees based in the United States entitled “CODE OF CONDUCT AND ALTERNATIVE DISPUTE RESOLUTION ANNUAL REVIEW AGREEMENT” (the “Announcement”). (Hess Decl., ECF No. 8, Ex. A at 1.) The Announcement explained:

American Air Liquide Holdings, Inc., and its affiliated companies strive to apply high ethical, moral and legal principles in every aspect of business conduct, and we rely on our employees to achieve these goals. In addition, and today more than ever, we want our values to consist of integrity, honesty, respect and trust.
For these reasons, we have a formal Code of Conduct and the Alternative Dispute Resolution (ADR) Agreement that every employee, including officers and directors, are required to review on an annual basis. It is important that we understand and agree with the principles contained in the company's Code of Conduct and ADR Agreement. In order to accomplish this, and consistent with past practice, we are asking all employees to review the Code of Conduct and ADR Agreement and indicate his or her agreement to comply with the principles contained therein.
We are again using an electronic method for obtaining agreement from all employees. This method will provide a documented, organized way to ensure 100% compliance with our policies and agreements. Your agreement to comply with the Code of Conduct and ADR Agreement continues to be a condition of employment.

         (Hess Decl. Ex A at 1.)

         The Alternative Dispute Resolution Agreement referred to in the Announcement (the “2006 ADR Agreement”) contained the following relevant language:

1.0 PURPOSE
1.1 This document outlines the Alternative Dispute Resolution (“ADR”) Agreement between you and American Air Liquide Holdings, Inc. and its U.S. subsidiaries (hereinafter collectively referred to as “Air Liquide”).
2.0 INTRODUCTORY STATEMENT
2.1 All disputes arising out of or relating to the interpretation and application of this ADR Agreement or the employee's employment with Air Liquide or the termination of employment, including for example and without limitation, any claims for unfair competition, theft of trade secrets, wrongful termination, unlawful discrimination, sexual harassment or other unlawful harassment, or retaliation, shall be resolved through ADR, including binding arbitration if necessary. ADR has been instituted in order to provide a neutral, faster and more cost efficient forum for Air Liquide and an employee who has a dispute as outlined in this Agreement. This ADR Agreement provides the exclusive means for formal resolution of all such disputes between an employee and Air Liquide and is binding upon both Air Liquide and the employee.
NOTE: THIS ADR AGREEMENT IS A WAIVER OF THE PARTIES' RIGHTS TO A CIVIL COURT ACTION.
2.2 Disputes within the scope of this Agreement shall include, but not be limited to, the following: alleged violations of federal, state and/or local constitutions, statutes or regulations, including, without limitation, any claims alleging any form of employment discrimination of harassment; claims based on any purported breach of contractual obligation, including breach of the covenant of good faith and fair dealing; and claims based on any purported breach of duty arising in tort, including violations of public policy. Disputes related to workers' compensation and unemployment insurance are not arbitrable hereunder. Claims for benefits covered by a separate benefit plan that provides for arbitration are not covered by this ADR Agreement. Charges that are filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) are not arbitrable under this Agreement while being processed. Nothing in this ADR Agreement shall be deemed to prevent an employee or Air Liquide from filing a charge or other claim with the National Labor Relations Board. This Agreement does not supplant Air Liquide's discretion to evaluate, discipline or terminate its employees with in the normal course of business, although disputes arising out of such actions may, as described herein, be subject to the Agreement.
2.3 “Employee” as used herein refers to a present or former employee of Air Liquide.
2.9 This Agreement does not prevent or excuse Air Liquide or any employee from satisfying any applicable statutory conditions precedent or jurisdictional prerequisites to pursuing their disputes by, for example, obtaining right to sue notices from federal, state, or local agencies. However, final and binding arbitration as described in this Agreement is the sole and exclusive remedy or formal method of resolving the dispute.
2.10 This Agreement, any arbitration proceedings held pursuant to this Agreement, and any proceedings concerning arbitration under the Agreement are subject to and governed by the Federal Arbitration Act, 9 U.S.C. section 1 et seq.
2.11 During any arbitration proceedings held under or pursuant to the Agreement, the parties will have the right to conduct normal civil discovery and bring motions, as provided by the Federal Rules of Civil Procedure (as implemented by the local rules of the United States District Court for the federal judicial district of the geographic area in which the arbitration proceedings are pending) and determined or enforced by the Arbitrator, prior to, during, and after the arbitration hearing or award. However, there is no right or authority for any dispute covered by this Agreement to be heard or arbitrated on a class or collective action basis, as a private attorney general, or on bases involving claims for disputes brought in a representative capacity on behalf of the general public, of other Air Liquide employees (or any of them), or of other persons similarly situated. Any action or proceeding brought against Air Liquide by any person (whether an employee bound by this Agreement or not) or entity in a representative capacity on behalf of or for the benefit of any employee bound by this Agreement is designated as a “Representative Action” in this Agreement. Any dispute of or by an employee for a remedy pursuant to or under the authority of the Representative Action is governed by and subject to this Agreement. Thus even though some of the Federal Rules of Civil Procedure apply as set forth above, there are no judge or jury trials and there are no class or collective actions or Representative Actions permitted under this Agreement.
2.12 Prior to an arbitration initiated by an employee's notice of dispute, an employee will contribute a sum equal to the then-current filing fee in the applicable State or Federal Court for a complaint or first appearance, whichever is lower, toward the arbitrator's fee. Air Liquide will pay the remaining fees and expenses, including court reporting fees and fees for the arbitrator. In an arbitration proceeding on Air Liquide's notice of dispute, Air Liquide will pay the entirety of the arbitrator's fees, including court reporting fees, and all other fees unique to arbitration. Each side will be responsible for expenses associated with its own witnesses, including travel and shall advance its own costs for witness fees, service and subpoena charges, copying and other incidental costs that each party would bear during the course of a civil lawsuit, subject to any remedies to which that party may later be entitled. Each side will pay its own costs for court reporter transcripts. A party may be represented by an attorney at his/her/its own expense, subject to any remedies to which that party may later be entitled. Employees who serve as witnesses will be compensated for time spent in such capacity at arbitration in accordance with applicable law.
2.12.1 The arbitrator has the authority to provide to a party who prevails in the arbitration all remedies and costs that are available under applicable law, including but not limited to legal and equitable relief, and arbitrator's and attorney's fees, but only if such remedies and costs would have been ...

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