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Taylor v. Tree

United States District Court, N.D. Indiana

November 3, 2016

CURTIS D. TAYLOR, Plaintiff,



         Curtis D. Taylor, a Plaintiff proceeding pro se, has sued his former employer, the Dollar Tree, and Bret Bertram (erroneously sued as Bret Berham) for discrimination and retaliation under Title VII of the Civil Rights Act of 1964. This matter is before the Court on the Defendants' Motion to Dismiss, or in the Alternative to Stay, and to Compel Arbitration [ECF No. 17]. The Defendants request that the Court dismiss all claims against the Defendants or, in the alternative, stay this action pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. and Rule 12 of the Federal Rules of Civil Procedure, and compel the parties to pursue arbitration. For the reasons stated herein, the Court dismisses the Plaintiff's Amended Complaint [ECF No. 4].


         As evidence in support of its Motion, the Defendants have included the Declarations of David McDearmon, Steven Pearson, and Steven F. Pockrass, with accompanying exhibits. In the spirit of Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982), the Defendants provided a Notice [ECF No. 23] to the Plaintiff to explain the nature of its Motion and the Plaintiff's obligation to respond, including his obligations if the Court treated the Motion as a summary judgment motion. The Notice advised the Plaintiff that if he disagreed with the facts in Defendants' Motion, he was required to submit affidavits or other evidence to dispute those facts. Additionally, during a combined show cause and status conference held on August 11, 2016, the Court gave the Plaintiff until October 11, 2016, to response to the Defendants' Motion.

         While the FAA does not expressly identify the evidentiary standard a party seeking to avoid compelled arbitration must meet, courts have analogized the standard to that required of a party opposing summary judgment under Rule 56. Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th Cir. 2002). That is, “the opposing party must demonstrate that a genuine issue of material fact warranting a trial exists.” Id. “Just as in summary judgment proceedings, a party cannot avoid compelled arbitration by generally denying the facts upon which the right to arbitration rests; the party must identify specific evidence in the record demonstrating a material factual dispute for trial.” Id. The Court also notes that the summary judgment standard is appropriate because the Defendants have presented matters outside the pleadings in support of their Motion to Dismiss. See Fed. R. Civ. P. 12(d). The Plaintiff was given a reasonable opportunity to present material pertinent to the Defendants' Motion, but has not filed a response. Accordingly, the Court will consider whether the facts presented by the Defendants support the conclusion that the parties have entered into an arbitration agreement that is applicable to the Plaintiff's claims.


         The Defendants maintain that Dollar Tree and the Plaintiff entered into an arbitration agreement to arbitrate all claims arising out of or related to the Plaintiff's employment at Dollar Tree, including claims against Dollar Tree and against other Dollar Tree employees.

         According to the designated evidence, Dollar Tree implemented an Arbitration Program in 2014. On April 23, 2015, the Plaintiff electronically accessed information regarding Dollar Tree's Arbitration Program, including the Arbitration Agreement. The Plaintiff could choose to opt out of the Arbitration Program because he was hired before implementation of the Program.[1] The opt-out procedures and deadline were communicated to the Plaintiff. For example, page 4 of the Arbitration Agreement set forth the opt-out procedure, with the opt-out deadline printed in bold:

Associate is not required to agree to arbitration. Associate may opt out of (that is, decline to be bound by) this Agreement by (i) completing an electronic Opt-Out Form at or (ii) postmarking and mailing (by registered or certified mail) a paper Opt-Out Form, which can also be found at, to Dollar Tree Arbitration c/o Chief Legal Officer, 500 Volvo Parkway, Chesapeake, VA 23320. 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.
Once Dollar Tree receives the Opt-Out Form from Associate, either by mail or electronically, Dollar Tree will acknowledge receipt of it in writing, either by email or by first class mail, at the address set forth by Associate on the Opt-Out Form. Associate's decision not to opt out must be confirmed in writing by Dollar Tree before the Opt-Out decision can be effective. If Associate files an Opt-Out Form and does not receive a written acknowledgment from Dollar tree within three weeks, the Associate should immediately send an email to

(Pearson Decl. Ex. C, ECF No. 19-2 at 26.) Additionally, a Flyer was distributed to employees. It advised employees hired before October 6, 2014, of their right to opt out of the Arbitration Program:

         While Dollar Tree believes arbitration is a good idea, Associates hired before

October 6, 2014 have a one-time right to opt out of (that is, decline to participate in) Dollar Tree's Arbitration Program. The deadline for opting out of arbitration is May 31, 2015. Information about how to opt out is in the Arbitration Agreement and ...

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