United States District Court, S.D. Indiana, Evansville Division
WILLIAM GRANT and GRANT PROFESSIONAL PAINTING SERVICES, LLC, Plaintiffs,
PERFORMANCE CONTRACTING, INC., HUNT CONSTRUCTION GROUP, INC., and HCW EVANSVILLE HOTEL, LLC, Defendants.
ENTRY ON DEFENDANTS' MOTION TO COMPEL
RICHARDX. YOUNG, JUDGE United State District Court
Performance Contracting, Inc. (“PCI) and Hunt
Construction Group, Inc., move to compel arbitration and to
stay proceedings as to Counts I-VII of the Complaint filed by
Plaintiffs, William Grant and Grant Professional Painting
Services, LLC (“GPPS”). For the reasons that
follow, Defendants' Motion is GRANTED in part and DENIED
seven-count Complaint against the Defendants arises out of
the construction of the Doubletree Hotel & Conference
Center facility located in downtown Evansville. Hunt was the
project General Contractor and subcontracted a portion of the
work to PCI, which in turn subcontracted a portion of the
work to Plaintiff GPPS. The Subcontract between PCI and GPPS
relating to the Project contained an arbitration clause which
provides, in relevant part:
All disputes arising under this Subcontract shall be
determined in accordance with the dispute resolution
mechanism set forth in the Contract Documents, including
without limitation, any requirements for joinder and
consolidation of claims. Unless the parties mutually agree
otherwise, in the absence of any such dispute resolution
mechanism provided in the Contract Documents, all claims,
disputes, and other matters in question between Contractor
and the Subcontractor shall be decided by arbitration and in
accordance with the Construction Industry Arbitration Rules
of the American Arbitration Association then in effect, . . .
. In any such event, the Subcontractor shall not be entitled
to recover any greater amount from the Contractor as the
Contractor shall obtain from the Upper Tier Contractor(s) or
Owner with respect to the Subcontractor's Work.
(Filing No. 1-5, Subcontract Agreement, Art. 32) (emphasis
added). Plaintiffs consent to submitting Counts
II-VII of their Complaint to arbitration.
However, Plaintiffs object to Defendants' Motion as it
pertains to Count I for race discrimination under 42 U.S.C.
Federal Arbitration Act, 9 U.S.C. § 1, et seq.,
states that arbitration provisions in commercial contracts
“shall be valid, irrevocable, and enforceable, save
upon grounds such as exist at law or in equity for the
revocation of any contract.” 9 U.S.C. § 2.
“[I]f the parties have a valid arbitration agreement
and the asserted claim is within the scope of the agreement,
” the arbitration clause must be enforced. Sharif
v. Wellness Int'l Network, Ltd., 376 F.3d 720, 726
(7th Cir. 2004) (citing Kiefer Specialty Flooring, Inc.
v.Tarkett, Inc., 174 F.3d 907, 909 (7th Cir. 1999)).
“Although it is often said that there is a federal
policy in favor of arbitration, federal law places
arbitration clauses on equal footing with other contracts,
not above them.” Janiga v. Questar Capital
Corp., 615 F.3d 735, 740 (7th Cir. 2010) (citing
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63,
Motion to Compel Arbitration
compel arbitration, a party must show: “(1) an
agreement to arbitrate, (2) a dispute within the scope of the
arbitration agreement, and (3) a refusal by the opposing
party to proceed to arbitration.” Zurich Am. Ins.
Co. v. Watts Indus., Inc., 466 F.3d 577, 580 (7th Cir.
2006). “The party seeking to invalidate or oppose the
arbitration agreement bears the burden of demonstrating that
the arbitration agreement is unenforceable and that the
claims are unsuitable for arbitration.” Paragon
Micro, Inc. v. Bundy, 22 F.Supp.3d 880, 887 (N.D. Ill.
2014). Under the FAA, however, “any doubts concerning
the scope of arbitrable issues should be resolved in favor of
arbitration.” Moses H. Cone Mem'l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).
present case, Plaintiffs argue the arbitration clause at
issue is not enforceable for two reasons: (1) their Section
1981 race discrimination claims are not within the scope of
the arbitration agreement, and (2) the arbitration clause
impermissibly limits the remedies and monetary award
available to them. Because the court resolves this Motion on
the basis of the first argument above, it will not address
terms of Article 32 provide that “all claims, disputes,
and other matters in question between Contractor and the
Subcontractor shall be decided by arbitration and in
accordance with the Construction Industry Arbitration
Rules.” The court interprets Article 32 under state
laws of contract interpretation-here, the law of Indiana
applies. Stone v. Doerge, 328 F.3d 343, 345 (7th
Cir. 2003). Under Indiana law, the court is required to
consider the contract as a whole, and accept an
interpretation of the contract that harmonizes its provisions
and not one which places the provisions in conflict.
Whitaker v. Brunner, 814 N.E.2d 288, 294
in this circuit compel arbitration where the arbitration
clause encompasses claims that relate to the employee's
employment or termination of employment. See Koveleskie
v. SBC Capital Markets, Inc., 167 F.3d 361, 363 (7th
Cir. 1999) (finding discrimination claim subject to
arbitration where securities representative's Form U-4
required arbitration of all disputes, including employment
disputes, between members and registered representatives);
Wright v. Washington Mut. Home Loans, Inc., No. 08 C
4423, 2009 WL 2704577, at *2 (N.D. Ill. Aug. 20, 2009)
(finding discrimination claim fell within the scope of an
arbitration clause that included “[a]ny and all
disputes that involve or relate in any way to
[plaintiff's] employment (or termination of employment)
with Washington Mutual”). See also Michalski v.
Circuit City Stores, Inc., 177 F.R.D. 634, 635 (7th Cir.
1999) (finding policy which asked all employees to agree to
have employment related disputes, including Title VII
discrimination suits, decided in binding arbitration subject
to binding arbitration); Farris v. Western and Southern
Life Ins. Co., 1:14-cv-421-WTL-DML, 2014 WL 5465947, at
*3 (S.D. Ind. Oct. 28, 2014) (finding discrimination claim
within the scope of arbitration clause where it included
claims for discrimination); Chambliss v. Darden Rest.,
Inc., No. 1:12-cv-485-SEB-MJD, 2012 WL 4936400, at *3
(S.D. Ind. Oct. 15, 2012) (finding discrimination claim fell
within arbitration clause that applied to “all
employment-related disputes or claims brought by the Employee
against the Company, ” including disputes about
“discrimination and harassment”); Westmeier
v. Meijer Grocery Store, No. 4:10-cv-46-TWP-WGH, 2010 WL
5104825, at * 2 (S.D. Ind. Dec. 7, 2010) (finding
discrimination subject to arbitration where Meijer's
Dispute Resolution Policy included “all claims that
arise out of or relate to the team member's employment
and/or separation from employment with Meijer” and
noted that claims subject to arbitration included
“claims of employment discrimination”).
by contrast, the arbitration clause applies to claims
“arising under” the Subcontract, thus limiting
the reach of the provision to the terms of the contract
itself. Sweet DreamsUnlimited, Inc. v.
Dial-A-Mattress Int'l, Ltd., 1 F.3d 639, 642 (7th
Cir. 1993) (noting that the term “‘arising
under' may denote a dispute somehow limited to the
interpretation and performance of the contract”;
whereas the phrase ‘arising out of' reaches all