Submitted: March 20, 2019
Arinderjit Dhali, Esq., Dhali & Reimer PLLC, Washington
D.C., Kristen S. Swift, Esq., Tybout, Redfearn & Pell,
Wilmington, DE, Attorneys for Plaintiff.
T. McBride, Esq., Jonathan C. Wilson, Esq., Ogletree,
Deakins, Nash, Smoak & Stewart, P.C., Dallas, TX,
Patricia R. Urban, Esq., Pinckney, Weidinger, Urban &
Joyce LLC, Greenville, DE, Attorneys for Defendant.
SHELDON K. RENNIE, JUDGE
Jessica Hurtt ("Hurtt"), brought this action
against defendant Sullivan's of Delaware,
("Sullivan's"), Hurtt's former employer.
Hurtt alleges that Sullivan's violated the Delaware
Discrimination in Employment Act. Now before the Court is
Sullivan's Motion to Dismiss and Compel Arbitration. In
its Motion, Sullivan's contends that the case should be
dismissed for lack of subject matter jurisdiction, based on
an arbitration agreement between Hurtt and Sullivan's.
FACTUAL AND PROCEDURAL BACKGROUND
23, 2018, Hurtt filed this action against Sullivan's,
alleging various violations of her civil rights under
Delaware's Discrimination in Employment Act, including
racial and sex discrimination, hostile work environment,
retaliation, and failure to accommodate religious beliefs.
was employed by Sullivan's as a server/bartender from
January 2016 to January 2017. Sullivan's requires every
job applicant to fill out an Employment Application, and
every new employee, as a precondition to their employment, to
execute a number of documents. All of these documents are
accessed and executed via an electronic on-boarding system
called talentReef. An affidavit (the "talentReef
Affidavit") from talentReef s Enterprise Account
Manager, the custodian of records for talentReef, states that
every potential employee of talentReef s customers, such as
Sullivan's, must create a unique account to apply for
open jobs, including filling out the Employment
Application. Once hired, the new employee is required
to complete new hire paperwork through that unique
account.To create a unique account, the employee
must set up her own "log in credentials," which
includes a password known solely by the
employee. The password is required every time the
employee logs into her account. Also, the password is required in
each instance that the employee's electronic signature is
requested for a specific document.
the various documents that a new employee is required to sign
when hired by Sullivan's is a Mandatory Arbitration
Agreement and Procedure for Resolving Disputes Arising Out of
Its Employees' Employment or Termination of Employment
(the "Arbitration Agreement"). The Arbitration
Agreement contains a provision which states that the new
employee and Sullivan's agree to resolve claims under
Delaware's Discrimination in Employment Act through
binding arbitration, and the parties are precluded from
raising such claims in any federal or state
court.In addition to the Arbitration Agreement,
the Employment Application references binding arbitration.
That document specifically requires a job applicant, such as
Hurtt, to confirm that she understands that the employment
with Sullivan's is "conditioned upon [her] agreement
to abide by the [Arbitration Agreement]."
27, 2018, Sullivan's moved to dismiss the case for lack
of subject matter jurisdiction pursuant to Superior Court
Civil Rule 12(b)(1). In its Motion, Sullivan's contends
that Hurtt signed the Arbitration Agreement when she was
initially employed by Sullivan's. Sullivan's asserts
that, by signing the Arbitration Agreement, Hurtt agreed to
arbitrate any disputes arising out of her employment with
Sullivan's, including the claims pending in this case.
filed an Opposition to Sullivan's Motion. Hurtt does not
dispute that the claims raised in her Complaint are
encompassed by the Arbitration Agreement. Hence, if the
Arbitration Agreement is found to be applicable, Hurtt would
be unable to pursue her claims in this Court. Rather, Hurtt
contends that she was not aware of the Arbitration Agreement
and did not sign it. As a result, Hurtt asserts that there is
no binding arbitration agreement that precludes the Court
from hearing her case. On March 20, 2019, the Court held an
evidentiary hearing to resolve the factual disputes
surrounding whether or not Hurtt signed the Arbitration
Agreement. After considering the testimony and documentary
evidence received at the hearing, the Court finds that the
Arbitration Agreement is applicable to Hurtt, and therefore
deprives the Court of subject matter jurisdiction in this
STANDARD OF REVIEW
motion to dismiss based on an arbitration clause goes to the
Court's subject matter jurisdiction over the
dispute." In Delaware, the power to compel
arbitration lies exclusively with the Court of Chancery, but
this Court has the authority to determine whether a valid and
enforceable arbitration agreement exists for purposes of
determining whether it has subject matter
jurisdiction. The burden of establishing the
Court's jurisdiction rests with the
plaintiff. In reviewing such a motion, the Court
may consider documents outside the complaint. And
"where the plaintiffs jurisdictional allegations are
challenged through the introduction of material extrinsic to
the pleadings, [the plaintiff] must support those allegations
with competent proof."
produced, among other documents, the Arbitration Agreement
purportedly signed by Hurtt. The Arbitration Agreement bears
an electronic signature of "Jessica Hurtt-Dunkley,"
and a date and time of January 26, 2016, at 5:05:22 P.M. EST.
Hurtt acknowledged that, upon her employment with
Sullivan's, she filled out and signed all the forms and
documents that were introduced by Sullivan's at the
hearing, with the exception of the Arbitration Agreement and
the W-4 Form. Hurtt asserted that she had never seen
the Arbitration Agreement, and thus could not have signed it.
indicated above, the burden is on Hurtt to provide
"competent proof that she did not sign the Arbitration
Agreement. Throughout Hurtt's testimony at the hearing,
she suggested that a document with an electronic signature
could easily be fabricated. In her own affidavit, Hurtt
stated that "[i]t [wa]s my belief that someone else
typed in [my name] without my authorization [sic] in the
Arbitration Agreement." However, Hurtt did not produce
any affirmative evidence to demonstrate that the signature
was fabricated. On the contrary, the talentReef affidavit
states that the Arbitration Agreement could only be signed
through a unique account accessible solely to Hurtt herself.
In lieu of providing direct evidence that her signature was
fabricated, Hurtt raised certain suspicions about the
signature as it appears on the Arbitration Agreement, and
attempted to invalidate the Agreement on those bases.
Hurtt stated that she would never have signed the Arbitration
Agreement with the name "Jessica Hurtt-Dunkley."
Specifically, Hurtt contends that, although "Jessica
Hurtt-Dunkley" is her legal name, she uses it only when
completing official (federal or state) documents or when
asked to provide her full legal name. For example,
in official documents such as the 1-9 Form and W-4 Form,
"Jessica Hurtt-Dunkley" was entered in the name
section; and in the "Pay Selection Sign-Up/
Authorization Form," although an unofficial document,
because her full name was requested, Hurtt also entered
"Jessica Hurtt-Dunkley." But in unofficial
documents such as the "Availability Sheet" and the
"Employee Setup Worksheet," it was "Jessica
Hurtt" that was used. However, this alleged habit of
reserving "Jessica Hurtt-Dunkley" only to official
documents, even if true, does not bolster Hurtt's
contention that she did not sign the Arbitration Agreement.
Because the Arbitration Agreement, except for the signature
section, does not contain another field that requested
Hurtt's name, the Court cannot verify whether Hurtt
signed it or not based solely on whether the name used to
complete the document complied with Hurtt's alleged
also stated that she would never have electronically signed
her name as "Jessica Hurtt-Dunkley" in any
documents. Hence, Hurtt suggests that the signature
of "Jessica Hurtt-Dunkley" on the Arbitration
Agreement would not have been authored by her. Notably, the
1-9 Form, which Hurtt admitted that she had signed, clearly
bears the signature of "Jessica Hurtt-Dunkley."
This expressly contradicts Hurtt's testimony. Hurtt then
provided an explanation for this inconsistency. She testified
that, when electronically signing the new hire documents, she
did not type in the signatures letter-by-letter, but rather
they auto-populated. For example, when she had typed
"Jessica Hurtt-Dunkley" in the name section in a
particular document, "Jessica Hurtt-Dunkley" would
auto-populate in the signature section where she was required
to sign. The same auto-pupulation occurred when she typed
"Jessica Hurtt" in the name section. Therefore,
Hurtt contends that those "Jessica Hurtt-Dunkley"
signatures were there solely because that name had been
previously entered in the same document.
Court is not persuaded by Hurtt's explanation of the
existence of the "Jessica Hurtt-Dunkley"
signatures. The logical conclusion to be drawn from
Hurtt's explanation is that the signature in a document
would always be consistent with the name she previously typed
in that same document. But this is not the case here. For
example, in the "Pay Selection Sign-Up/Authorization
Form, " Hurtt was first requested to fill in her
full name in the name section, where she typed "Jessica
Hurtt-Dunkley." Based on Hurtt's theory, the
signature in that document would have auto-populated as
"Jessica Hurtt-Dunkley." However, the signature
appearing there is actually "Jessica Hurtt."
Because the auto-population theory fails in at least this one
instance, there is no reason to believe that it can explain
those "Jessica Hurtt-Dunkley" signatures.
Therefore, the mere existence of a "Jessica
Hurtt-Dunkley" signature could not be an indicator of
whether a particular document, such as the Arbitration
Agreement, was signed by Hurtt or not.
addition to questioning the name she purportedly used to sign
the Arbitration Agreement, Hurtt also questioned the time she
purportedly signed it. The Arbitration Agreement shows that
it was signed on January 26, 2016, at 5:05:22 P.M. EST.
During cross-examination of Hurtt, Sullivan's attorney
asked her whether she worked on that day. Hurtt initially
denied that she worked that day. Sullivan's then
produced a time sheet from its payroll system which shows
that Hurtt attended a training session that day from 3:38 P.M
to 8:52 P.M. Hurtt finally admitted that she attended that
only reluctantly admitted that she was at Sullivan's on
January 26, 2016 from 3:38 P.M. to 8:52 P.M., but she
thereafter attempted to use this fact to support her
contention that she did not sign the Arbitration Agreement.
Specifically, Hurtt contends that she could not have signed
the Arbitration Agreement at 5:05 P.M., because she would be
in the middle of the training and had no time to sign the
Agreement. Hurtt stated that the first part of the
training consisted of reading training materials and taking
quizzes. She further testified that, at
approximately 4:45 P.M., after her initial training, she and
the other servers conducted a "pre-shift," which
was to prepare for the opening of the
restaurant. After the restaurant opened, which was
between 5:00 P.M. and 5:30 P.M.,  Hurtt shadowed another
server, as part of her ...