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Employee Resource Group, LLC v. Collins

Supreme Court of West Virginia

June 3, 2019

EMPLOYEE RESOURCE GROUP, LLC, DAVID CURRY and JAMES MOLLETTE, Defendants Below, Petitioners
v.
ANITA COLLINS, Plaintiff Below, Respondent

          Mingo County 16-C-214

          MEMORANDUM DECISION

         Petitioners Employee Resource Group, LLC (sometimes referred to as "ERG"), David Curry, and James Mollette (referred to collectively as "petitioners"), by counsel Bradley K. Shafer, appeal the December 5, 2017, order entered by the Circuit Court of Mingo County, denying their motion to enforce an arbitration agreement. Respondent Anita Collins, by counsel Nathan D. Brown, filed a response. On appeal, petitioners contend that the circuit court erred in refusing to enforce the parties' arbitration agreement because it found they failed to produced a signed copy of the agreement.

         The Court has considered the parties' briefs, oral arguments and appendix record on appeal. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the circuit court is reversed and this case is remanded for further proceedings consistent with this memorandum decision.

         I. Facts

         On April 24, 2016, respondent was employed by petitioner ERG to work at a Wendy's restaurant located in South Williamson, Kentucky. As part of the hiring process, respondent was sent an e-mail containing an "Agreement and Receipt for Dispute Resolution Program" (hereinafter "Arbitration Agreement"), in addition to a document entitled "Dispute Resolution Program, Program Booklet." Respondent was asked to review these documents, as well as other employment-related documents, and to sign the various documents digitally, or electronically, including the Arbitration Agreement. A copy of the Arbitration Agreement at issue, which was submitted to the circuit court, reflects respondent's digital signature on the agreement as follows: "Digitally Signed By: Anita Collins; Date: Apr-24-2016 1:12:25 PM EDT" on the line above "Associate Signature."

         The Arbitration Agreement expressly provides, in relevant part:

MUTUAL PROMISE TO RESOLVE CLAIMS BY BINDING ARBITRATION. The Company and I agree that all legal claims or disputes covered by the Agreement must be submitted to binding arbitration and that this binding arbitration will be the sole and exclusive final remedy for resolving any such claim or dispute. I also agree that any arbitration between the Company and me is of an individual claim and that any claim subject to arbitration will not be arbitrated on a collective or class-wide basis.
The mutual obligations set forth in this Agreement shall constitute a contract between the Employee and the Company but shall not change an Employee's at-will relationship or any term of any other contract or agreement between the Company and Employee. This Policy shall constitute the entire agreement between the Employee and Company for the resolution of Covered Claims. The submission of an application, acceptance of employment or the continuation of employment by an individual shall be deemed to be acceptance of the dispute resolution program. No signature shall be required for the policy to be applicable.
Legally protected rights covered by this Arbitration Agreement are all legal claims, including: . . . tort claims (including, but not limited to, claims for physical, mental or psychological injury, but excluding statutory workers compensation claims); claims for wrongful termination; sexual harassment; [and] discrimination (including, but not limited to, claims based on race, sex, religion, national origin, age, medical condition or disability, whether under federal, state or local law) . . . .
I understand and agree that by entering into this Agreement, I anticipate gaining the benefits of a speedy, impartial dispute resolution procedure. This procedure is explained in the Dispute Resolution Program Booklet, which I acknowledge I have received and read or have had an opportunity to read.
. . . This Agreement and the Dispute Resolution Program Booklet are the complete agreement of the parties on the subject of arbitration of disputes. . . .
VOLUNTARY AGREEMENT. I acknowledge that I have carefully read this Agreement, I understand its terms, that all understandings and agreements between the Company and me relating to the subjects covered in this Agreement are contained in it, and that I have entered into the Agreement voluntarily and not in reliance on any other promises or representations by the Company other than those in the Agreement itself and the Dispute Resolution Program.
I further acknowledge and agree that I have been given the opportunity to discuss this Agreement with my own private lawyer and have used that opportunity to the extent that I wish to do so. . . .

         On November 3, 2016, respondent was terminated from Wendy's. Following her termination, respondent filed a complaint in the circuit court against petitioners alleging that she was sexually harassed and that she was terminated from her employment, because she reported the ongoing sexual harassment that she suffered. Respondent's claims included: 1) violation of the Kentucky Civil Rights Act, Kentucky Revised Statute § 344.040 (LexisNexis 2011); 2) retaliation in violation of the Kentucky Civil Rights Act; 3) wrongful termination; 4) extreme and outrageous conduct; 5) hostile work environment; and 6) negligent supervision/retention.[1]

         In response to the complaint, petitioners filed answers and a motion to enforce the Arbitration Agreement. Petitioners argued that respondent was presented with and endorsed the Arbitration Agreement and that the claims raised by respondent's lawsuit were subject to that agreement. Respondent opposed petitioners' motion by arguing, in part, that the Arbitration Agreement was not enforceable because she "did not in fact sign the document." Specifically, respondent contended that "[w]ithin the three (3) page document, there are multiple places in which the employee is asked to 'digitally sign.' Those places have a typed name of Anita Collins; however, there is no signature on the document. Further, the plaintiff indicates that she has never seen nor signed the document." In response, petitioners argued, inter alia, that the Arbitration Agreement was an enforceable contract and that respondent signed the agreement with her digital signature.[2]

         In an order entered on May 22, 2017, the circuit court denied petitioners' motion to enforce arbitration, finding that "no evidence was tendered regarding when . . . [respondent] was presented with said agreement and how much time she was afforded to review said document prior to the alleged electronic signing of the same[;]" that respondent "contends she did not sign" the agreement; and, that "no enforceable contract exists between" respondent and petitioners. The circuit court, ...


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