United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO COMPEL ARBITRATION
E. SCHREIER UNITED STATES DISTRICT JUDGE.
LaVae Schwalm, brought this lawsuit against defendant, TCF
National Bank (TCF). TCF moves to compel arbitration and to
dismiss the complaint. Docket 7. Schwalm objects to
defendant's motions. Docket 9. For the reasons stated
below, the court grants defendant's motion to compel
facts, viewed in the light most favorable to Schwalm, the
non-moving party, are:
2013, LaVae Schwalm began using Indeed.com to search for
accounting positions in eastern South Dakota. Indeed.com is
an online service that utilizes an algorithm to match
applicants to potential employment opportunities and
recommends certain employment opportunities to applicants.
Indeed.com recommended several positions to Schwalm based on
her geographical location and interests. After looking
through Indeed.com's recommendations, Schwalm picked jobs
that interested her. Then, using information from
Schwalm's previously uploaded resume, Indeed.com would
populate the job applications and Schwalm would correct any
errors and answer the prescreening questions before approving
and submitting the application.
November 2013, Schwalm states that she recalls Indeed.com
recommending an account services position at TCF to her.
Schwalm admits that she indicated to Indeed.com that she was
interested in the position, but she denies that she ever
submitted an application. In November of 2013, Schwalm had an
in-person interview at TCF where she presented a physical
copy of her resume. She was not hired. In January of 2014,
Schwalm had another in-person interview at TCF. Schwalm avers
that during the interview one of the interviewers indicated
that TCF did not have an application for her. But TCF
determined that her resume was sufficient and offered her a
job. Schwalm began working at TCF on February 3, 2014.
Dispute Resolution Policy (DRP) allows employees to opt out
of the agreement within 60 calendar days of their start date.
Schwalm states that she did not opt out of the policy because
she did not know about or understand the policy. She claims
that TCF never gave her a copy of the DRP and never explained
the DRP to her. TCF, however, submitted a copy of its
“Employee Acknowledgement Receipt” dated February
6, 2014, that was signed by LaVae Schwalm. Docket 8-1 at 16.
The Acknowledgment Receipt indicates that Schwalm received a
copy of the “Employee Highlights” and
“Dispute Resolution Policy.” Id.
Schwalm's employment, she made three discrimination and
harassment complaints against her supervisor to TCF
supervisors and its Human Resources representatives. The
complaints were dated February 16, 2015, March 13, 2015, and
March 14, 2015. On March 20, 2015, Schwalm met with TCF
supervisors about her complaints. Afterwards, TCF informed
Schwalm that her supervisor had been disciplined for his
behavior. In May 2015, Schwalm again reported to TCF's
Human Resources that she remained in a hostile work
environment and required medical leave because of ongoing
discriminatory treatment. Human Resources granted the medical
leave. On June 1, 2015, TCF terminated Schwalm's
then filed this action against TCF alleging age
discrimination and retaliation. TCF asserts that these claims
must be resolved under its arbitration agreement. Schwalm
denies that she entered into the arbitration agreement.
or not parties entered into an arbitration agreement falls to
judicial determination. Neb. Mach. Co. v. Cargotec
Solutions, LLC, 762 F.3d 737, 741 (8th Cir. 2014). The
Federal Arbitration Act does not specify what evidentiary
standard parties seeking to avoid arbitration must meet.
Id. at 742. But courts have analyzed the issue using
a summary judgment standard- viewing the evidence in the
light most favorable to the non-moving party. Id.
case deals with a question of law as to whether the
controversy between Schwalm and TCF is covered by a valid
arbitration agreement and should therefore be dismissed and
directed to proceed to arbitration. Through the Federal
Arbitration Act (FAA), Congress established a policy in favor
of arbitration. Shearson/Am. Exp., Inc. v. McMahon,
482 U.S. 220, 226 (1987).
“provides that written agreements to arbitrate
controversies arising out of an existing contract
‘shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the
revocation of any contract.' ” Dean Witter
Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985)
(quoting 9 U.S.C. § 2). The FAA “mandates that
district courts shall direct the parties to proceed to
arbitration on issues as to which an arbitration agreement
has been signed.” Id. (citing 9 U.S.C.
§§ 3, 4). The “court's role under the FAA
is therefore limited to determining (1) whether a valid
agreement to arbitrate exists and, if it does, (2) whether
the agreement encompasses the dispute.” ProTech Indus. Inc. v. URS Corp., 377 F.3d 868, 871
(8th Cir. 2004). “However, a party who has not agreed