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Myers v. TRG Customer Solutions, Inc.

United States District Court, M.D. Tennessee, Columbia Division

August 24, 2017

MYLEE MYERS, individually and on behalf of all others similarly situated, Plaintiff,
v.
TRG CUSTOMER SOLUTIONS, INC. d/b/a IBEX GLOBAL SOLUTIONS, Defendant.

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge.

         Plaintiff Mylee Myers brings this action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., individually and on behalf of all similarly situated current and former employees of the defendant, TRG Customer Solutions, Inc., doing business as IBEX Global Solutions (“IBEX”). Now before the court is the plaintiff's Motion for Conditional Certification and for the Issuance of Court-Authorized Notice (Doc. No. 8) (hereafter, “Motion to Certify”), in which Myers seeks leave to pursue this case as a collective action, under 29 U.S.C. § 216(b), and court authorization to issue notice to potential class members of this action and of their right to join it.

         The motion has been fully briefed and is ripe for review. The court finds, however, that the question of whether the plaintiffs' claims must be arbitrated individually is a threshold question which, in the interest of preserving party and court resources, should be resolved before the court addresses whether conditional certification is warranted. In addition, the court is also aware that, in the related case, Andrews v. TRG Customer Solutions, No. 1:14-cv-00135 (M.D. Tenn.), the parties successfully avoided litigating the issues of (1) whether arbitration agreements signed by the plaintiffs were enforceable and (2) whether the arbitration agreements precluded collective action by agreeing to collective action arbitration. The parties are strongly encouraged to engage in discussions to determine whether a similar agreed resolution is feasible in this case. Accordingly, the court will defer ruling on the Motion to Certify and direct the parties to submit a joint status report within fourteen days to notify the court of any progress regarding such discussions.

         I. Factual and Procedural Background

         Myers filed her Motion to Certify on June 2, 2017, seeking to certify a collective action class defined as:

All current and former hourly-paid, FLSA non-exempt call center workers at Defendant's United States call centers who at any time from June 1, 2014 through the present have worked in positions in which employees handle telephone calls on behalf of IBEX clients (for example, AT&T, Apple, DirecTV, etc.), including without limitation current and former employees who provide or provided customer service and/or technical support.

(Doc. No. 9, at 1.) Myers stipulates that this definition excludes “any employee who both received notice and opted into the nationwide class and collective action currently pending in this Court as case number 1:14-cv-00135, Andrews et al. v. TRG Customer Solutions, Inc., which, as of June 1, 2017 is being actively litigated in collective arbitration.” (Doc. No. 9, at 2.)

         Myers avers that she received a notice in the mail about her right to join Andrews, and she brought the notice with her to work. She was told by senior management in the Operations Department and Human Resources Department not to join the Andrews case. She saw the same senior management discouraging other employees from joining the case. She states that she was intimidated and, therefore, did not join the Andrews case. Eventually, she did contact the lawyers representing the Andrews plaintiffs but was told that it was too late to opt into that case. She states that she wishes to pursue claims on her own behalf and on behalf of other IBEX employees who were dissuaded from joining the Andrews case or were otherwise unable to join. She is aware of “many other IBEX workers who want to pursue their claims in this lawsuit.” (Decl. of Mylee Myers, Doc. No. 10 ¶ 18.)

         Defendant IBEX is a privately held company that operates more than twenty call centers across at least seven countries, including ten call centers in the United States. (Compl. ¶ 12; Decl. of Paul Inson, Doc. No. 27-1 ¶ 4.) IBEX asserts that the plaintiff signed an acknowledgement on November 3, 2013, in which she purportedly agreed to arbitrate any employment-related disputes with IBEX, specifically including any claims under the FLSA. (Doc. No. 27-6.) In addition, according to IBEX, beginning in 2015, all new customer service representatives and technical support staff members have been required to sign a revised Direct Dialogue Program and Mutual Agreement to Arbitrate (“Revised DDP”), which, besides requiring arbitration of any employment-related claims, also expressly states that each employee waives “any right” to pursue any claim on a class basis or as a collective or representative action and purports to require that all claims “be mediated and arbitrated as individual claims.” (Doc. No. 27, at 4.)

         Myers filed her Motion to Certify and supporting Memorandum on June 2, 2017. (Doc. Nos. 8, 9.) IBEX opposes the Motion to Certify, arguing that the arbitration agreements signed by the plaintiff and most or all of the employees she seeks to represent bar collective action. It also argues that the plaintiff fails to carry her burden of demonstrating that she is similarly situated to the putative class of other call center employees throughout the United States. (Doc. No. 27.) In the plaintiff's Reply and the defendant's Surreply (Doc. Nos. 33, 42), the parties heatedly dispute the impact on this case of a recent Sixth Circuit decision, National Labor Relations Board v. Alternative Entertainment, Inc., 858 F.3d 393 (6th Cir. 2017).

         II. Discussion

         For purposes of her Motion to Certify, the plaintiff apparently does not dispute that she signed the DDP on November 3, 2013. She does not dispute that the DDP does not contain any language either expressly permitting or prohibiting a collective action arbitration. She also does not dispute IBEX's assertion that it has required all new customer service representatives and technical support staff members hired since late 2015 to sign the Revised DDP, which expressly states that each employee waives “any right” to pursue any claim on a class basis or as a collective or representative action and purports to require that all claims “be mediated and arbitrated as individual claims.” (Doc. No. 27, at 4.)

         On the basis of these agreements, IBEX argues that the plaintiff and most of the class of plaintiffs she seeks to represent are barred from pursuing a collective action in any forum. To be clear: at this stage the parties are not litigating the enforceability of the DDP and Revised DDP themselves, and the defendant has not filed a motion to compel arbitration. The defendant simply presumes the validity of the agreements and argues, based on that presumption, that the plaintiff's Motion to Certify should be denied. In response, the plaintiff argues that, even assuming the DDP and Revised DDP are otherwise valid, any provision-express or implied- prohibiting employees from pursuing an FLSA collective action in any forum is invalid as a matter of Sixth Circuit law.

         Regarding the DDP, which does not include an express waiver of the right to bring a collective action, the Supreme Court has held that “it cannot be presumed the parties consented to [classwide arbitration] by simply agreeing to submit their disputes to an arbitrator.” Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 680 (2010). The Court ultimately concluded that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. at 684. Based on Stolt-Nielsen, the Sixth Circuit has held that, when an arbitration agreement is silent regarding the availability of classwide arbitration, the agreement must be construed as prohibiting classwide arbitration. Reed Elsevier, Inc. ex rel. LexisNexis Div. ...


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