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Andre v. Dollar Tree Stores, Inc.

United States District Court, D. Delaware

June 26, 2019

DEBRA ANDRE, Plaintiff,



         Presently pending in this employment discrimination matter is Defendant Dollar Tree Stores, Inc.'s ("DTS" or "Defendant") Renewed Motion to Compel Arbitration (the "Motion"). (D.I. 23) For the reasons set forth below, the Court GRANTS the Motion.

         I. BACKGROUND

         A. Factual Background

         1. The Parties

         Plaintiff Debra Andre is a resident of Dover, Delaware. (D.I. 1 at ¶ 1; D.I. 10 at 1 n.1) Defendant DTS is a Virginia corporation that operates thousands of retail stores across the nation, in which various retail products are sold. (D.I. 1 at ¶ 2; D.I. 6 at ¶ 3)

         Plaintiff was most recently employed by Defendant as Assistant Store Manager ("ASM") at Defendant's retail store #1563, which is located in Dover. (D.I. 1 at ¶ 11; D.I. 24, ex. A at 12) Plaintiff was employed by Defendant from on or about September 2011 until on or about June 30, 2016, at which point Plaintiffs employment was terminated. (D.I. 1 at ¶ 12; D.I. 5 at 1-2)

         2. The Events Leading to Plaintiffs Termination

         In her Complaint, Plaintiff alleges that in March 2016, a new Store Manager, Chris Stewart, was assigned to oversee the DTS store where Plaintiff served as ASM. (D.I. 1 at ¶ 14) Approximately two months after Mr. Stewart began working at Plaintiffs assigned store, Plaintiff received complaints from female and male employees at the store about Mr. Stewart; the employees asserted that Mr. Stewart made sexual remarks about them or about other workers. (Id. at ¶ 15) Plaintiff then notified (via e-mail) District Manager Marcella Leathern about the complaints, but Plaintiff did not receive a response. (Id. at ¶¶ 16-17)

         Approximately a week and a half after Plaintiff sent the e-mail to Ms. Leathern, at a time when Plaintiff was bent over stocking shelves with another co-worker, Mr. Stewart is alleged to have grabbed Plaintiffs waist from behind and pulled Plaintiff into his groin while making sexual remarks. (Id. at ¶ 18) Plaintiff again e-mailed Ms. Leathern complaining about Mr. Stewart's conduct, but once again, Plaintiff did not receive a response from Ms. Leathern. (Id. at ¶¶ 19-20)

         Approximately two days later, Plaintiff was in a store office when Mr. Stewart reached towards Plaintiff and grabbed her buttocks, at which point Plaintiff forcibly pushed Mr. Stewart away. (Id. at ¶ 21) Plaintiff once more e-mailed Ms. Leathern complaining about Mr. Stewart's conduct but again did not receive a response. (Id. at ¶¶ 22-23) Plaintiff then reported this incident to "numerous Human Resource personnel." (Id. at ¶ 24)

         Approximately one week later, Plaintiff was called into work on her day off to meet with Ms. Leathern regarding Mr. Stewart's conduct. (Id. at ¶ 26) Ms. Leathern explained to Plaintiff that if Plaintiff had provided any inaccurate facts to Defendant about Mr. Stewart's conduct, then Plaintiffs employment would be terminated. (Id. at ¶ 27)

         On another work day in this general time frame, Plaintiff was scheduled to work a 5.5 hour shift. (Id. at ¶ 31) Plaintiff alleges that during this shift she was notified by Mr. Stewart that he was going to be late for work. (Id.) Defendant's policy states that an employee will be reprimanded if they do not take a lunch break after six hours of work. (Id. at ¶ 30) Realizing that because Mr. Stewart was going to be late for work, this would mean that Plaintiff would be required to work for over six hours on that day, Plaintiff took a 32-minute lunch break on that day. (Id. at ¶¶ 29, 31)

         On June 30, 2016, Plaintiff alleges that she was terminated for taking this "unscheduled lunch break." (Id. at ¶¶ 12, 33; see also D.I. 5 at 2) Plaintiff contends that this reason proffered by Defendant for her firing (i.e., that Plaintiff was fired because she took the unscheduled lunch break) is pretextual; instead, Plaintiff asserts that she was really terminated due to discriminatory and retaliatory conduct on the basis of her sex, stemming from the incidents described above regarding Mr. Stewart. (D.I. 1 at ¶ 35)

         3. The Arbitration Program and the Arbitration Agreement

         In 2014, during the term of Plaintiffs employment, Defendant implemented its Arbitration Program; the program was officially introduced to Store Managers on February 23, 2015. (D.I. 24 at 3; id, ex. C; see also id., ex. B at 46) At this time, the Store Manager at Plaintiffs store was Frank Smith. (Id., ex. B at 46) Mr. Smith received an e-mail explaining the program from DTS's President on this date. (Id., ex. C)

         DTS Associates hired on or after October 6, 2014 were required to participate in the Arbitration Program as a condition of their employment. (D.I. 27 at ¶ 4) Those Associates were provided with a Mutual Agreement to Arbitrate Claims (hereinafter, the "Arbitration Agreement") during their onboarding process with DTS. (Id.) However, all Associates hired before October 6, 2014 (like Plaintiff) were provided with the option of opting out of the Arbitration Program. (Id. at ¶ 5) To do so, an Associate was required to submit an opt-out form either electronically or by mail, prior to May 31, 2015. (Id.; see also id., ex. 2 at 4)

         The Arbitration Agreement provides, inter alia:

The Parties agree to the resolution by arbitration of all claims or controversies ("claims"), past, present or future, that can be raised under applicable federal, state, or local law, arising out of or related to Associate's employment (or its termination), that... the Associate may have against... Dollar Tree .... Claims subject to arbitration include but are not limited to, claims for: ... retaliation or discrimination (including, but not limited to, ... sex ....)[.]

(D.I. 27, ex. 2 at 1) Moreover, the Arbitration Agreement provides that it survives the termination of an associate's employment and that it constitutes the full and complete agreement pertaining to the formal resolution of disputes between parties. (Id. at 4) The opt-out procedure is also set out in the Arbitration Agreement, which states that "Associate must opt out by May 31, 2015. Associate's decision not to opt out by May 31, 2015 constitutes Associate's assent to, and agreement to be bound by, this Agreement." (Id. (emphasis in original))

         The arbitration materials, including the Arbitration Agreement and information on how to opt out of the agreement ("arbitration materials"), were located on a DTS arbitration website. In order to access that website, each Associate was required to input his or her name, the last 4 digits of his or her Social Security Number, his or her Employee ID number (also referred to as a "time clock ID") or Compass ID, [1] his or her store number, and his or her work address. (D.I. 27 at ¶ 9; see also id., ex. 5) Once these credentials were submitted electronically, a "pop-up box" appeared, stating that by clicking on the "Review Documents" button, the Associate was acknowledging that they had been provided with access to the Arbitration Agreement, opt-out instructions, and other important information about arbitration. (D.I. 27 at ¶ 9; id., ex. 5) After then being prompted to and clicking on a "Continue" box, the Associate would be directed to DTS's "Arbitration home page"-a page with links to, inter alia, the Arbitration Agreement and opt-out information. (D.I. 27 at ¶ 10; see also id., ex. 6) With regard to opt-out information, the Arbitration home page included a bolded heading titled "Opting Out of Arbitration[;]" that, section explained that for DTS employees hired before October 6, 2014 who did not wish to participate in arbitration, the employee should either file an Electronic Opt-Out Form online or a Printable Opt-Out Form that would be mailed to the corporate office. (Id., ex. 6) The home page provided hyperlinks to these forms, emphasized that the deadline for opting out was May 31, 2015 and explained that if an employee did not opt out by that date, they were agreeing to arbitration. (Id.)

         On April 6, 2015 at 12:51 p.m. each DTS Store Manager, including Mr. Smith, was notified by e-mail that the Arbitration Program was now being rolled out to hourly Associates (like Plaintiff) who were hired before October 6, 2014. (D.I. 27 at ¶ 6; see also id., ex. 1) This e-mail explained that such Associates were required to: (1) review the arbitration materials, including the Arbitration Agreement, prior to April 17, 2015; and (2) do so on a DTS store computer while on the clock during regular work hours. (Id., - ex. 1) The e-mail also provided Smith with: (1) a list of his store's employees who had to review and acknowledge the materials; (2) a set of instructions for Store Managers to help them ensure that Associates acknowledged receipt of the materials; and (3) a flyer about the Arbitration Program (which contained instructions about the opt-out procedures, including the opt-out deadline) that could be posted in an associate break area in the store. (Id., ex. 1 & Attachment C)

         4. Evidence Relating to Plaintiffs Engagement with the Arbitration Website and Arbitration Materials

         Mr. Smith testified that after he received the April 6, 2015 e-mail, he spoke to his three ASMs (including Plaintiff) about the rollout of the Arbitration Program. (D.I. 24, ex. B at 49-50, 52) Mr. Smith stated that he believes that he also took other steps to inform store Associates, including the ASMs, about the program, including: (1) placing a copy of the flyer in a hanging sleeve system in the Store Manager's office (which he and ASMs frequently accessed); (2) communicating with ASMs on an in-store messaging program about the need to have Associates review the arbitration materials; and (3) hanging the flyer in the store break room. (Id. at 53-55, 60, 62-63)

         Defendant provided company records indicating that on April 6, 2015 (the same day as Mr. Smith was advised to begin rolling out the Arbitration Program to employees hired before October 6, 2014), Plaintiff acknowledged accessing the arbitration website and being provided with access to the Arbitration Agreement and opt-out forms. More specifically, Defendant provided a one-page acknowledgement form ("the acknowledgement") that reads as follows:

You [debra andre] electronically acknowledged on 04/06/2015 that Dollar Tree gave you the opportunity to read the Arbitration Agreement and other important information relating to Dollar Tree's arbitration program.
Store Number: ...

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