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Rahm v. TCF National Bank

United States District Court, D. South Dakota, Southern Division

August 21, 2017

DOUGLAS RAHM, Plaintiff,
v.
TCF NATIONAL BANK, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO COMPEL ARBITRATION

          Lawrence L. Piersol United States District Judge

         Plaintiff, 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.

         BACKGROUND

         The parties generally agree to the core facts in this case which, taken in the light most favorable to Rahm, are as follows:

         TCF is 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.

         Later 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.[1] 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.)

         On 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 2, 2012.

         In 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.

         Rahm 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.

         On 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 Manager.

         STANDARD OF REVIEW

         The 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).

         DISCUSSION

         As an 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 court).

         Both 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 ...


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