United States District Court, D. Oregon, Portland Division
D. WILSON ERIC WILSON, P.C.1500 S.W. FIRST AVE., SUITE 1170
PORTLAND, OREGON 97201 ATTORNEY FOR PLAINTIFF
D. CHENOWITH CHENOWITH LAW GROUP, P.C. 510 S.W. FIFTH AVENUE,
FIFTH FLOOR PORTLAND, OREGON 97204 ATTORNEY FOR DEFENDANTS
OPINION & ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE
Garry Siggelkow brings this employment-related action against
his former employer Northwest Group, Inc. (NGI) and NGI's
President Rajeev Gupta. Defendants move to compel arbitration
pursuant to an alternative dispute resolution agreement. I
deny the motion.
Amended Complaint, Plaintiff alleges that Defendants employed
him to work at their Jack-in-the-Box fast food restaurants
throughout Oregon. Am. Compl. ¶ 5. Although he was hired
as NGI's "Director of Service Delivery,"
id. ¶ 6, his job was to travel to the
restaurants to perform maintenance work. Siggelkow Decl.
¶ 3. He had a written employment contract, signed by
Gupta, in which Defendants promised to reimburse Plaintiff
for mileage, travel expenses, and other reasonable expenses
associated with his work. Am. Compl. ¶ 7 & Ex. 1.
Plaintiff alleges that Defendants did not fully reimburse him
for these expenses. Id. ¶¶ 8. As a result,
when his employment ended, Plaintiff alleges he was owed
"considerable amounts" for unpaid mileage, travel,
and other reasonable expenses. Id. ¶ 9; see
also Id. ¶¶ 14-17 (breach of contract claim
allegations seeking $3, 805.04 in damages on that claim).
further alleges that Defendants misclassified him as an
exempt employee under the Fair Labor Standards Act and Oregon
statutes, paying him a salary of $60, 000 per year with no
opportunity for overtime pay. Id. ¶¶ 20,
43. He alleges he should have been classified as a non-exempt
hourly employee and paid overtime for hours worked in excess
of forty per week as required by the wage statutes.
Id. ¶¶ 21, 44. He alleges that Defendants
denied him at least 1, 160 hours of overtime work during his
period of employment from January 9, 2017 through January 4,
2018. Id. ¶¶ 23, 24; see also Id.
¶¶ 36, 45 (unpaid wages owed on overtime claim at
least $36, 238.40).
support of their motion, Defendants submit a copy of an offer
of employment ("Employment Agreement") by
Defendants to Plaintiff which was signed by Gupta and
Plaintiff, as well as Michele Smith, NGI's Human
Resources Manager. Gupta Decl., Ex. B, ECF 9 at 16. Plaintiff
was offered the position of Director of Service Delivery,
with a start date of January 9, 2017. Id. Other
benefits and employment terms are recited in the employment
agreement. Id. There is no mention of any employee
or personnel handbook or dispute resolution policy.
also rely on a "Mediation/Arbitration Agreement
Acknowledgement [sic]," ("Arbitration
Agreement") signed by Plaintiff and dated January 9,
2017. Id., Ex. C, ECF 9 at 18. Because its terms are
relevant to the motion, I recite them here:
My signature on this document acknowledges that I understand
the Dispute Resolution Policy as specified in the Employee
Handbook and agree to abide by its conditions. I also
acknowledge that I understand that my employment is at-will
and may be terminated at any time, with or without reason, by
either NGI or myself. I further agree that, in accordance
with NGI's Dispute Resolution Policy, I will submit any
dispute arising under or involving my employment or
termination of employment with NGI within one (1) year from
the date the dispute first arose. I agree that arbitration
shall be the exclusive forum for resolving all disputes
arising out of or involving my employment or termination with
NGI. I agree that I will be entitled to legal representation,
at my own cost, during arbitration. I further understand that
I will be responsible for half of the cost of the arbitrator
and any incidental costs of arbitration.
I acknowledge that I have received or have had the
opportunity to read this arbitration agreement. I understand
that this arbitration agreement requires that disputes
involving matters subject to the agreement be submitted to
mediation or arbitration pursuant to the Dispute Resolution
Process rather than to a judge or jury in court.
Declaration opposing the motion, Plaintiff states that he did
not see the Dispute Resolution Policy referred to in the
Arbitration Agreement until his attorney received a copy of
it during this litigation in October 2018. Siggelkow Decl.
¶ 11. Although he does not deny that he signed the
Arbitration Agreement on his first day of work, he states
that he signed it sometime during the day after he had
actually begun working. Id. According to Plaintiff,
Gupta told Plaintiff he needed to sign it. Id.
Plaintiff states he requested a copy of the Dispute
Resolution Policy at that time. Id. ¶ 13. When
he had not received it later that week, he asked for it
again. Id. Plaintiff states that in response, he was
told by NGI's Director of Training that NGI did not
provide copies of the employee handbook or Dispute Resolution
Policy to employees because Gupta did not want to pay the
costs associated with photocopying the documents.
states that Plaintiff signed his Employment Agreement on
January 7, 2017. Smith Decl. ¶ 3, ECF 20. This
contradicts the January 9, 2017 date on the Employment
Agreement itself. Gupta Decl., Ex. B, ECF 9 at 16 (date shown
at top of Employment Agreement is January 9, 2017 and
underneath each of the three signatures of Gupta, Smith, and
Siggelkow, the date is printed as January 9, 2017, with the
exception of the date under Smith's signature which shows
the year as 2016 and which I assume is a typographical
error). Given the dates shown on the Employment Agreement, I
assume the January 7, 2017 date recited by Smith in her
Declaration is a mistake and that she meant to state that
Plaintiff signed the Employment Agreement on January 9, 2017.
Smith also states that Plaintiff went through orientation
where he was provided a copy of the employee handbook
containing the Dispute Resolution Policy. Smith Decl. ¶
3. She asserts that Plaintiff had notice of the entire
Dispute Resolution Policy "since he started working at
[NGI]." Id. ¶ 5.
Dispute Resolution Policy is not in the record. On October
25, 2018, ten days after Defendants filed the instant motion
to compel arbitration, Defendants' then-counsel filed a
Declaration in which he stated that he was submitting a copy
of the "company manual and ADR policy" to the Court
in camera. Hoover Oct. 25, 2018 Decl. 3, ECF 14. A
hard copy of the document was delivered to the Court on or
about the day the Declaration was filed. In a November 7,
2018 Minute Order, I explained that parties may not
unilaterally submit in camera documents. ECF 18
(citing case law regarding the presumption of access to court
records and the general right to inspect and copy public
records, including judicial records and documents). Because
there was no court order allowing submission of in
camera documents, I stated that I would disregard the
in camera submission of the company handbook and ADR
policy. Id. I ordered Defendants to file the
document as an exhibit to a declaration or to file a properly
supported motion to file the document under seal.
Id. Defendants did neither. Thus, there is no copy
of the company handbook and ADR policy in the record.
first initiated this case against Defendants in "Small
Claims Court" in Multnomah County on May 11, 2018,
seeking reimbursement for $3, 805.04 in unclaimed travel
expenses, and $400 in costs. Wilson Decl., Ex. 1, ECF 17 at
4-7. In response, Defendants filed a General Notice of
Appearance. Id., Ex. 2, ECF 17 at 8-10. Defendants
then filed several motions. Tr. of State Ct. Procdgs. (Small
Claims Court), ECF 3 at 18-20 (motion to allow attorney to
represent Defendants in Small Claims Court); at 62-63 (motion
to dismiss Gupta due to corporate shield); at 86-87 (motion
to dismiss for lack of personal jurisdiction due to
insufficient process); at 96-97 (motion to dismiss due to
improper venue). The motions were denied. Id. at 28
(denying Defendants' request that they be represented by
counsel); Wilson Decl., Ex. 3, ECF 17 at 12-14 (denying
motions to dismiss due to corporate shield, insufficient
process, and improper venue).
also moved for an order of abatement to allow them to submit
the matter to arbitration pursuant to contract. Tr. of State
Ct. Procdgs., ECF 3 at 60-61. This motion was also denied.
Wilson Decl., Ex. 4, ECF 17 at 15. The Small Claims Court
explained that Defendants waived any contractual right to
avoid a court disposition of this civil dispute by filing a
general appearance. Id.
next week, Defendants filed a breach of contract counterclaim
against Plaintiff, seeking $9, 835.91 plus attorney's
fees and costs, based on allegations that Plaintiff had
breached a contract by "poor execution of job
performance" and causing NGI lost profits and expenses.
Id., Ex. 5, ECF 17 at 16-18. Defendants demanded a
jury trial "if any of their motions are not granted and
the case is not dismissed." Id., ECF 17 at 17.
Because of the counterclaim and jury trial demand, the case
was transferred out of Small Claims Court and to Circuit
Court. Plaintiff hired counsel to defend the counterclaim.
Wilson Decl. ¶ 8; Siggelkow Decl. ¶ 10, ECF 16.
filed an Amended Complaint in Multnomah County Circuit Court
on July 30, 2018, alleging breach of contract for unpaid
travel expenses and violations of the FLSA and Oregon wage
laws. Wilson Decl. ¶ 11; Tr. of State Ct. Procdgs.
(Circuit Court), ECF 4 at 11-19. Defendants then removed the
case to this Court on August 13, 2018. Notice of Removal, ECF
1. They filed an Answer on August 27, 2018, in which they
again demanded a jury trial "if any of their motions are
not granted and the case is not dismissed." Answer to
Am. Compl. at p. 5, ECF 6. As an affirmative defense, they
alleged that the Complaint was prematurely filed because the
employment contract required arbitration before filing suit.
Id. at p. 6. And, they also brought the same
counterclaim for breach of contract based on allegations that
Plaintiff breached the employment agreement which required
him "to act in manner to not cause excess cost and
expense on the defendant NGI[.]" Id. at 6-7.
This time, they sought lost profits of over $30, 000, along
with attorney's fees and costs. Id.
to Plaintiff, after Defendants filed their Answer to the
Amended Complaint, the parties held a Rule 26 discovery
conference on September 26, 2018, and Plaintiff served
discovery requests on Defendants on October 2, 2018. Wilson
Decl. ¶ 12. ...