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Guest v. Air Liquide America Specialty Gasses, LLC

United States District Court, D. Oregon

August 13, 2018




         United States Magistrate Judge John V. Acosta issued Findings and Recommendation in this case on June 28, 2018. ECF 24. Judge Acosta recommended that Defendants' motion to compel arbitration (ECF 5) be granted. For the reasons discussed below, the Court grants Defendants' motion to compel arbitration and dismisses this action.


         Plaintiff Christopher Guest filed this action against his former employer and associated entities, asserting claims for age discrimination and interference with prospective employment benefits. Plaintiff worked for the predecessor in interest of Defendant Air Liquide America Specialty Gases, LLC (“America Specialty”), beginning in 1989. In 1997, Plaintiff began working for Air Liquide America Corporation (“Air Liquide”), and, as part of this transfer, signed an application for employment that included an Alternative Dispute Resolution (“ADR”) agreement (“1997 ADR Agreement”). In 2006, Air Liquide sent all employees an “Executive Announcement” (“Announcement”) describing the company's code of conduct and ADR agreement (“2006 ADR Agreement”). The Announcement noted that every employee was required to review the 2006 ADR Agreement on an annual basis. The 2006 ADR Agreement provides:

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.

         The Announcement asked all employees to review the agreement and “indicate his or her agreement to comply with the principles contained” in the agreement. Indicating agreement was a condition of Plaintiff's continued employment. Plaintiff electronically signed the agreement.

         In December 2015, Plaintiff worked for America Specialty and was told that another company, Praxair, was planning to purchase America Specialty's business. Plaintiff was told that he would be terminated by America Specialty but could accept a position with Praxair. Plaintiff ultimately accepted a position with Praxair that paid less than his previous job with America Specialty. On March 31, 2016, Air Liquide offered employees a voluntary separation program (the “Separation Program”) to America Specialty employees 55 years of age or older. Plaintiff would have been eligible for the Separation Program had he still been employed by America Specialty through May 6, 2016.

         Plaintiff filed suit with the Oregon Bureau of Labor and Industries (“BOLI”) and the Equal Employment Opportunity Commission (“EEOC”), alleging that America Specialty terminated him due to his age and to prevent him from benefitting from the Separation Program. Plaintiff received right-to-sue letters from each agency between May and June 2017. Shortly thereafter, Plaintiff entered into a tolling agreement with Defendants, which tolled “[t]he running of all statutes of limitations, laches, or arguments of estoppel, or any defense” by or against Defendants and related entities. The tolling agreement applied to “any of the claims by [Plaintiff] arising out of or related to his employment with [Air Liquide] and all affiliated entities, ” and specifically included the time period affected by Plaintiff's right-to-sue letters. At no point during negotiations for this tolling agreement did Defendants mention either the 1997 or 2006 ADR Agreements. When the tolling agreement expired on December 11, 2017, Plaintiff filed this action asserting violations of the Age Discrimination in Employment Act (“ADEA”) and the Employee Retirement Income Security Act of 1974 (“ERISA”). Before the Court is Defendants' motion to compel arbitration pursuant to the 2006 ADR Agreement or, alternatively, under the 1997 ADR Agreement.


         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         For those portions of a magistrate judge's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate judge's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed, ” the Court review the magistrate judge's recommendations for “clear error on the face of the record.”


         Plaintiff timely filed an objection (ECF 26) to Judge Acosta's F&R, to which Defendants responded. ECF 27. Plaintiff objects to Judge Acosta's F&R on several grounds. First, Plaintiff argues that the 2006 ADR Agreement did not validly waive Plaintiff's right to a jury trial because it failed to comply with certain procedural requirements in the ADEA. Second, Plaintiff argues that his ERISA claim is not within the scope of the 2006 ADR Agreement. Third, Plaintiff objects that he is not subject to the 2006 ADR Agreement because there was no meeting of the minds establishing that the agreement would last longer than one year. Fourth, Plaintiff argues that the 2006 ADR Agreement is procedurally and substantively unconscionable. Finally, Plaintiff objects to Judge Acosta's finding that Defendants have not waived their right to enforce the 2006 ADR Agreement. Plaintiff also objects to Judge Acosta's recommendation that the case be dismissed, rather than stayed, if the Court compels arbitration.

         A. Whether the 2006 ADR Agreement Validly Waived ...

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