United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
Lawrence L. Piersol United States District Judge
Douglas Rahm ("Rahm"), claims he suffered
retaliation by his former employer, TCF National Bank
("TCF"), when he was fired for reporting sexual
harassment allegations made by a female coworker at TCF, and
for supporting her in the investigation of those claims. Rahm
also alleges that TCF fired him because he was approaching
retirement age. He seeks relief under Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act,
and the South Dakota Human Rights Act. He also asserts claim
for wrongful termination and intentional infliction of
emotional distress. TCF moves to compel arbitration of
Rahm's claims. (Doc. 11.) Rahm resists the motion. For
the following reasons, the motion to compel arbitration will
be granted, and the case will be stayed pending arbitration.
parties generally agree to the core facts in this case which,
taken in the light most favorable to Rahm, are as follows:
a national banking association wholly-owned by TCF Financial
Corporation. On October 30, 2011, Rahm applied online for an
Operations Manager position that was posted on a website
called Careerbuilder.com. Rahm did not know he was
applying to TCF because TCF did not disclose its identity
when it advertised for the Operations Manager position on
Careerbuilder.com. Rahm submitted a cover letter and
resume through Careerbuilder.com. He did not agree
to arbitration of any disputes at that time.
in the day on October 30, 2011, Rahm applied directly to TCF
for an Investigator Position through
Careerbuilder.com by filling out an online
employment application. TCF has submitted a document showing
that Rahm electronically signed the job application at 7:16
PM on October 30, 2011. (Doc. 13-2.) TCF also has submitted a
copy of the relevant language from the e-Signature Statement
in TCF's employment application, showing the terms to
which applicants agree by electronically signing the
application. TCF does not require employees to have
completed an employment application for the specific TCF
position they were offered or hold; it simply requires that
employees have completed at least one TCF application. (Doc.
21, ¶ 4.) The application is used by TCF "to
consider candidates for whatever open position TCF thinks may
be the best match with the candidate, consistent with the
candidate's qualifications and interest. (Id. at
¶ 5.) TCF's online employment application states, in
part, "You acknowledge that you understand TCF may
consider you for a position other than the position you
directly applied for, and that your electronic consent below
will also be binding to that position." (Id. at
¶ 2 and Exhibit A.)
November 14, 2011, a recruiting manager for TCF contacted
Rahm regarding the resume that he submitted for the
Operations Manager position. This was the first time he
became aware that the Operations Manager job was with TCF.
Later in November of 2011, Rahm was offered and accepted the
Operations Manager position. The Dispute Resolution Policy
("DRP") was not mentioned to him in the oral or
written communications regarding that particular position.
Rahm says that he informally began working for TCF on
December 13, 2011, and that his formal start date was January
addition to electronically signing the e-Signature Statement
which states, in part, "By applying for employment or
accepting employment, you agree with TCF, and TCF agrees with
you, to resolve all Covered Claims pursuant to TCF's
Dispute Resolution Policy, " on approximately December
24, 2011, TCF provided Rahm a copy of its Employee Policy
Highlights ("Policy Highlights "). The thirty-nine
page Policy Highlights provides a three-page summary of the
DRP. (Doc. 21, Ex. B.) The second-to-last page of the Policy
Highlights is an Acknowledgment of Receipt in which the
recipient confirms that he will read TCF's policies. The
Acknowledgment states, "I acknowledge receipt of copies
of the TCF National Bank Employee Policy Highlights. I
understand that it is my responsibility to read the material
and become familiar with the policies explained since I will
be expected to comply with them." Id. The three
page DRP section of the Policy Highlights explains the
process for handling of disputes, describes an employee's
"Right to Reject Arbitration, " and states that
"the entire TCF Dispute Resolution Policy is available
for viewing on the company's intranet" Id.
On December 26, 2011, Rahm acknowledged receipt of the Policy
Highlights. (See Doc. 13-3.) The DRP allows
employees to opt out of binding arbitration during their
first sixty days of employment. (Doc. 13, ¶5.) Rahm had
sixty days fromhis start date on January 2, 2012, to reject
the arbitration agreement, but he did not.
alleges that, on June 22, 2015, a TCF employee reported to
him that she was being stalked and harassed by other TCF
employees. (See Complaint, Doc. 1 at ¶ 14.) The
Complaint describes the actions Rahm took to address these
allegations starting in June 2015 and continuing through
September 2015. On September 16, 2015, Rahm's employment
with TCF was terminated.
February 13, 2017, Rahm filed a six-count Complaint against
TCF for retaliation, age discrimination, wrongful termination
and intentional infliction of emotional distress. On May 5,
2017, TCF filed the current motion requesting the Court to
compel arbitration of all counts pursuant to the Federal
Arbitration Act, 9 U.S.C. § 1 et seq.
Rahm's main argument opposing arbitration is that TCF
hired him for the Operations Manager position and not the
Investigator position. Because he agreed to arbitration only
when he applied for the Investigator position, Rahm asserts
that he is not contractually bound to arbitrate the claims
arising from termination of his employment as the Operations
Federal Arbitration Act does not identify what evidentiary
standard a party seeking to avoid arbitration must meet.
Neb. Mack Co. v. Cargotec Solutions, LLC, 762 F.3d
737, 741-42 (8th Cir. 2014); see also Henry Techs.
Holdings, LLC v. Giordano, 2014 WL 3845870, at *3 (W.D.
Wis. Aug. 5, 2014) ("The FAA does not define a standard
for a district court's determination of a motion to
compel arbitration[.]"). Courts that have addressed the
issue have used a summary judgment standard. Id.; see
also Schwalm v. TCF Natl Bank, 226 F.Supp.3d 937, 940
(D.S.D. 2016); Technetronics, Inc. v. Leybold-Graeus
GmbH, 1993 WL 197028, at *2 (E.D. Pa. June 9, 1993)
("[I]n a motion to stay proceedings and/or compel
arbitration, the appropriate standard of review for the
district court is the same standard used in resolving summary
judgment motions pursuant to [Federal Rule of Civil
Procedure] 56(c).")- Therefore, the court may consider
all evidence in the record, viewing that evidence in the
light most favorable to the non-moving party. Id.; see
also Lee v. Credit Acceptance Corp., 2015 WL 7176374, at
*1 (W.D. Wis. Nov. 12, 2015).
initial matter, the Court will grant Rahm's motion to
take judicial notice of filings in the case of Schwalmv.
TCF Nat'l Bank, CW 16-4074. See Kern v. Tri-Statelns.
Co., 386 F.2d 754, 755-56 (8th Cir. 1967) (district
court may take judicial notice of other proceedings in same
state and federal governments have strong policies favoring
arbitration. See Green Tree Fin. Corp.-Alabama v.
Randolph,531 U.S. 79, 89-90 (2000); Rossi Fine
Jewelers, Inc. v. Gunderson,648 N.W.2d 812, 814 (S.D.
2002) ("We have consistently favored the resolution of
disputes by arbitration."). Questions of arbitration are
governed by the Federal Arbitration Act (or "FAA"),
9 U.S.C. § 1 et seq. The FAA was enacted to
"reverse the longstanding judicial hostility to
arbitration agreements" and treat arbitration agreements
like any other ...