United States District Court, M.D. Tennessee, Columbia Division
MYLEE MYERS, individually and on behalf of all others similarly situated, Plaintiff,
TRG CUSTOMER SOLUTIONS, INC. d/b/a IBEX GLOBAL SOLUTIONS, Defendant.
A. TRAUGER, United States District Judge
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”). She seeks to recover unpaid
wages owed to her and similarly situated employees who have
worked at IBEX's call centers in the United States. Now
before the court is IBEX's Motion to Compel Arbitration
and to Dismiss the Action. (Doc. No. 57.) Also still pending
is the plaintiff's Motion for Conditional Certification
and the Issuance of Court-Supervised Notice (Doc. No. 8), the
resolution of which the court previously deferred.
reasons set forth herein, the court will grant the
defendant's motion to compel plaintiff Mylee Myers to
pursue individual arbitration of her claims but will deny the
motion to dismiss the case in its entirety. The Motion for
Conditional Certification will be denied without prejudice.
Procedural and Factual Background
a privately held company that operates more than twenty call
centers in at least seven countries, including ten call
centers in the United States. (Compl. ¶ 12; Decl. of
Paul Inson, Doc. No. 27-1 ¶ 4.) Myers resides in
Steubenville, Ohio. She worked for IBEX as a customer service
representative at its Pittsburgh, Pennsylvania call center
from November 2013 through September 2014. She worked as a
supervisor at the same call center from September 2014
through June 2015. (Compl. ¶ 6.) The Complaint does not
include factual allegations regarding the circumstances under
which the plaintiff's employment ended.
purposes of the defendant's Motion to Compel, Myers does
not dispute that she signed a document titled Direct Dialogue
Program and Mutual Agreement to Mediate/Arbitrate
Acknowledgment and Acceptance on November 3, 2013, in which
she “acknowledge[d] that [she had] received and read
the Direct Dialogue Program and Mutual Agreement to
Mediate/Arbitrate and will abide by it as a condition of
[her] employment.” (Doc. No. 27-6, at 7.) The Direct
Dialogue Program and Mutual Agreement to Mediate/Arbitrate
(“DDP”), to which the Acknowledgment and
Acceptance is attached, contains the following language:
The Company and Employee mutually consent to the
resolution, by final and binding arbitration, of any and all
claims or controversies (“claim”) that the
Company may have against Employee or that Employee may have
against the Company . . ., whether or not arising out of the
employment relationship (or its termination), including but
not limited to, any claims arising out of or related to this
Agreement to Arbitrate (this “Agreement”) or the
(Doc. No. 27-6, at 2 (emphasis in original).) The DDP states
that it shall survive the termination of the employee's
employment. (Id. at 3.) The DDP does not contain any
language either expressly permitting or prohibiting a
collective action arbitration.
filed her Collective Action Complaint initiating this lawsuit
on June 1, 2017. The next day, she filed a Motion for
Conditional Certification and for the Issuance of
Court-Supervised Notice to members of the conditionally
certified class (Doc. No. 8). During the pendency of that
motion, several putative collective-action plaintiffs filed
Notices of Consent to Become Party Plaintiff. (See
Doc. Nos. 13-1, 17-1, 23-1, 24-1, 43-1, 46-1, 51-1, 52-1
(“I hereby consent . . . to become a party plaintiff in
the above-captioned FLSA lawsuit. I understand that I will be
bound by the judgment of the Court to all issues in this
lawsuit, including the fairness of any settlement.”).)
August 24, 2017, the court entered an Order deferring ruling
on the Motion for Conditional Certification and directing the
parties to confer and discuss the possibility of reaching an
agreement regarding collective action and arbitrability. The
parties were directed to file a Joint Status Report within
fourteen days of entry of that Order. The court noted that,
if the parties concluded by that time that they would be
unable to reach an agreement, the court would set a briefing
schedule for the defendant's anticipated motion to compel
arbitration. In the Memorandum accompanying that Order, the
court notified the parties that it did not read the Sixth
Circuit's ruling in National Labor Relations Board v.
Alternative Entertainment, Inc., 858 F.3d 393 (6th Cir.
2017), as barring waivers of the right to bring a collective
action under the FLSA.
after the entry of that Order, the parties notified the court
that they would not be able to reach an agreement on the
issues of conditional certification and arbitrability. In
light of that conclusion, the defendant filed its Motion to
Compel and supporting documentation (Doc. Nos. 57, 58). In
accordance with a scheduling Order entered by the court (Doc.
No. 60), the plaintiff filed her Response in Opposition (Doc.
No. 62), and the defendant filed a Reply (Doc. No. 65).
the plaintiff submitted a Notice of Filing (Doc. No. 66),
giving notice of IBEX's alleged failure to comply with
filing deadlines in two arbitration proceedings commenced by
individuals who did not opt into this case. The plaintiff,
through counsel, alleges that “IBEX's
conduct” in these arbitrations “is not an
isolated matter” and that IBEX has “exhibited a
pattern of failing to abide by its agreements to
arbitrate.” (Doc. No. 66, at 2.) IBEX filed a Response
to the Notice of Filing, objecting to the Notice as an
attempt to “subvert this Court's rules by
disguising an unauthorized sur-reply . . . as a nebulous
‘Notice of Filing'” and also generally
objecting to the substance of the Notice of Filing. (Doc. No.
67.) The plaintiff responded by filing a Motion for Leave to
File Reply and Notice of Filing or, in the Alternative, for
Leave to File Sur-Reply and Supplemental Argument, with the
attached proposed Reply. (Doc. No. 68.) This motion requests
leave to reply to IBEX's Response to the plaintiff's
Notice of Filing and, alternatively, requests that the court
grant leave retroactively to file the Notice of Filing as a
sur-reply, and to file the Reply to the Response to the
Notice of Filing as a supplemental argument. The Reply itself
(Doc. No. 70) responds to the factual allegations in the
the court already granted the Motion for Leave to File Reply,
the court finds that the Notice of Filing (Doc. No. 66),
Response (Doc. No. 67), and Reply (Doc. No. 70) are
irrelevant to consideration of the Motion to Compel and
generally improper. The court has not relied on any of these
filings in ruling on the Motion to Compel Arbitration.
Standard of Review
the Federal Arbitration Act (“FAA”), 9 U.S.C.
§§ 1-16, where a litigant establishes the existence
of a valid agreement to arbitrate, the district court must
grant the litigant's motion to compel arbitration and
stay or dismiss proceedings until the completion of
arbitration. Glazer v. Lehman Bros., Inc., 394 F.3d
444, 451 (6th Cir. 2005) (citing 9 U.S.C. §§ 3-4).
The FAA creates a strong presumption in favor of arbitration,
O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d
345, 355 (6th Cir. 2003), and any doubts regarding
arbitrability must be resolved in favor of arbitration.
Fazio v. Lehman Bros., Inc., 340 F.3d 386, 392 (6th
an arbitration agreement may be voided for the same reasons
for which any contract may be invalidated under state law,
“provided the contract law applied is general and not
specific to arbitration clauses.” Id. at 393.
“In order to show that the validity of the agreement is
in issue, the party opposing arbitration must show a genuine
issue of material fact as to the validity of the agreement to
arbitrate, a showing that mirrors the summary ...