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Iysheh v. Cellular Sales of Tennessee, LLC

United States District Court, E.D. Tennessee, Knoxville

May 14, 2018

ASSAM IYSHEH, Plaintiff,



         This civil action arises from plaintiff Assam Iysheh's employment as a Dealer (a.k.a. Sales Representative) with defendant Cellular Sales of Tennessee, LLC (“Cellular Sales”). Plaintiff claims that he was subjected to religious discrimination, a hostile work environment, and retaliation because of his race, color, religion, and national origin [Doc. 1 at ¶¶ 1, 42; Doc. 14-3 at ¶ 13]. Cellular Sales has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) and to compel the arbitration of all claims. After carefully considering the motion, supporting exhibits, and briefs [Docs. 10, 11, 19] and plaintiff's response in opposition [Doc. 14], the motion is ripe for determination.

         For the reasons set forth herein, defendant's motion to compel arbitration [Doc. 10] will be GRANTED.

         I. Relevant Facts[1]

         Cellular Sales is an authorized Verizon Wireless dealer [Doc. 10-1 at ¶ 3]. Cellular Sales operates a number of retail stores in Tennessee, offering wireless equipment, accessories, and Verizon Wireless services to consumers [Id.]. All of these activities involve the sale of goods or services through interstate commerce by Dealers employed by the company [Id.].

         Plaintiff obtained his GED in 2011 and attended Southwest Community College in Memphis for one semester [Doc. 14-3 at ¶ 2]. He sold electronics at HH Gregg in Knoxville for approximately three years until he was recruited to work for Cellular Sales [Id.; Doc. 1 at ¶ 18]. Cellular Sales hired plaintiff as a Dealer in the Knoxville, Tennessee area, on September 9, 2015 [Doc. 10-1 at ¶ 4].[2] Plaintiff generally worked in the company's stores located at Deane Hill, Cedar Bluff, Farragut, and West Town Mall [Id.].

         Although he “do[es] not recall signing” it [Doc. 14-3 at ¶ 3], defendant's records show that plaintiff received a Dealer Compensation Agreement (the “Agreement”) and electronically signed it at 6:13 a.m. on September 9, 2015 [Doc. 10-1 at ¶ 5].[3] Execution of the Agreement was a term and condition of plaintiff's employment with Cellular Sales [Id.].

         Relevant to the instant motion, the Agreement contains an arbitration clause. The Agreement contains the following admonition prior to the arbitration provision: “READ THIS NEXT SECTION CAREFULLY AS IT AFFECTS YOUR RIGHT TO PURSUE CLAIMS AGAINST CELLULAR SALES” [Doc. 10-1 at p. 11]. The pertinent terms of the arbitration clause, entitled “DISPUTE RESOLUTION, ” are as follows:

a. Applicable Rules. Any controversy or dispute between Dealer and Cellular Sales or any of its owners, employees, officers, agents, affiliates, or benefit plans, arising from or in any way related to Dealer's employment by Cellular Sales, or the termination thereof, including but not limited to the construction or application of this Agreement, shall be resolved exclusively by final and binding arbitration administered by JAMS under its Employment Arbitration Rules & Procedures and the JAMS Policy on Employment Arbitration Minimum Standards of Procedural Fairness then applicable to the dispute. …The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, validity, applicability, enforceability, or formation of this Agreement.
b. All Disputes Must Be Arbitrated. It is the intent of the parties hereto that all disputes between them must be arbitrated, expressly including, but not limited to, (i) any dispute about the interpretation, validity or enforcement of this Agreement, (ii) any claim of employment discrimination under federal or state law, such as, but not limited to, discrimination based on age, disability, national origin, race, or sex, … and (vii) any other claim of any nature, whether contractual, tortious, common-law, statutory, or regulatory, arising out of, or in any way related to, Dealer's employment with Cellular Sales, the termination thereof, or any other matter incident thereto. The intent of this provision is that all disputes between the Parties, of any nature, touching on or relating to this Agreement or any aspect of Dealer's employment with Cellular Sales, including the termination thereof, must be resolved solely by arbitration… .

[Id. at pp. 11-12].

         Cellular Sales utilizes an online software system called ExactHire to complete its onboarding process for new employees [Doc. 19-1 at ¶ 3]. Through ExactHire, new employees complete and agree to their onboarding forms and employment policies, including the Agreement [Id.]. Employees are required to review each of these forms online by scrolling to the bottom of each document, and then to electronically sign the document by entering their name and password to ensure authentication and completion [Id.]. At that time, an electronic timestamp is created for the document [Id.].

         Cellular Sales' records reveal that plaintiff received the email link to complete his pre-employment forms from ExactHire on September 8, 2016 [Id. at ¶ 4]. On that date, plaintiff and Shannon Twilla, Operations Manager of the Knoxville Market of Cellular Sales, engaged in an email conversation in which he confirmed receiving the email link [Id. at ¶ 4]. Ms. Twilla also informed plaintiff that he only needed to complete the forms online, rather than print and bring them to her [Id.]. Plaintiff and Ms. Twilla had another email conversation on September 9, 2015, shortly after he had completed most of his forms, including the Agreement [Id.]. Plaintiff was required to complete these forms prior to his final, on-site onboarding meeting on September 10, 2015, when he received his dealer code and badge [Id. at ¶ 5]. Plaintiff had continued access to all of these forms, including the Agreement, and the ability to print them at any time by logging into ExactHire [Id. at ¶ 8]. Plaintiff never requested additional time to review or confer with legal counsel regarding the forms or the Agreement [Id. at ¶ 10]. He never protested or objected to the arbitration provision in the Agreement, nor did he ask any questions regarding the arbitration provision [Id.].

         Plaintiff states “[i]f I did electronically sign the Dealer Compensation Agreement on September 9, 2015, it would have been done under significant time pressure upon presentment by Cellular Sales amidst on-site training while completing final on boarding paperwork and immediately before getting my badge printed” [Doc. 14-3 at ¶ 4]. Plaintiff says he had no time to consider the arbitration provision in the Agreement and he was not told about it [Id. at ¶¶ 5-6]. Plaintiff never received a copy of the Agreement until after this case was filed [Id. at ¶ 7]. Plaintiff never received a copy of any rules, procedures, or forms to take home and read, or to keep for his records [Id. at ¶ 8]. Indeed, plaintiff did not know he “may have signed an arbitration agreement until after this lawsuit was filed” [Id. at ¶ 9]. Plaintiff further complains that the JAMS fee schedule is not available or accessible to him and he believes that “arbitration would be prohibitively expensive” for him [Id. at ¶ 12].

         Plaintiff was very successful at Cellular Sales. He was “first on the leaderboard for sales” in the Knoxville market from October 2015 through February 2016 [Doc. 1 at ¶ 21]. Plaintiff led training sessions for other employees, and he received awards and commendations for his accomplishments [Id. at ¶¶ 22-23]. From his start date on September 15, 2015 to December 21, 2015, plaintiff received gross compensation in the amount of $22, 919.84 from Cellular Sales [Doc. 19-1 at ¶ 12]. From January 1, 2016 through the end of his employment on March 6, 2016, plaintiff received gross compensation in the amount of $41, 380.92 [Id.]. Plaintiff was terminated on or about March 7, 2016 [Doc. 10-1 at ¶ 6].[4]

         Plaintiff filed this case on December 22, 2017, asserting claims pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; and the Tennessee Human Rights Act (the “THRA”), Tenn. Code Ann. § 4-21-101, et seq. [Doc. 1 at ¶ 42].

         II. Analysis[5]

         The Federal Arbitration Act (“FAA”) represents a strong public policy in favor of arbitration. Cooper v. MRM Inv. Co., 367 F.3d 493, 498 (6th Cir. 2004). An arbitration agreement must satisfy two conditions for the FAA to apply: (1) it must be in writing; and (2) it must be part of a “contract evidencing a transaction involving commerce.” 9 U.S.C. § 2. The parties do not dispute that the arbitration provision in the Agreement is in writing and that it affects interstate commerce. See United ...

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