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Pankey v. Defendant Hi-Tek Manufacturing, Inc.

United States District Court, S.D. Ohio, Western Division

September 6, 2019

Orlando Pankey, Plaintiff,
v.
Defendant Hi-Tek Manufacturing, Inc., et al., Defendants.

          ORDER

          HON. MICHAEL R. BARRETT UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Aerotek, Inc.'s (“Aerotek”) Motion to Compel Individual Arbitration and Dismiss or Stay Proceedings. (Doc. 11). Plaintiff responded[1] (Doc. 16) and Defendant Aerotek replied (Doc. 21). Defendant Hi-Tek Manufacturing, Inc. (“Hi-Tek”) did not join Defendant Aerotek's Motion.

         I. BACKGROUND

         Plaintiff brings this purported class action against Defendants for alleged violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”). He asserts that “Defendants took an adverse action based on [his] consumer report without providing a copy of the report and his notice of rights as required by 15 U.S.C. § 1681b(b).” (Doc. 1).

         Defendant Aerotek is a temporary employment agency and Plaintiff worked for Aerotek as a temporary employee starting January 2018. (Id.). On January 18, 2018, Plaintiff and Defendant Aerotek entered into a Mutual Arbitration Agreement (“Agreement”). (Doc. 11, Attachment 1, PageID 72-74). The Agreement includes a class-action waiver provision. (Id.). Defendant Hi-Tek is a corporation and was hiring full-time employees around April 2018. (Doc. 1). “Defendant Aerotek processed [Plaintiff]'s application for fulltime employment with Defendant Hi-Tek.” (Id.). In April 2018, Defendant Hi-Tek offered Plaintiff full-time employment subject to a background check.[2] (Id.). A few weeks later, Defendant Hi-Tek rescinded Plaintiff's employment offer allegedly due to the results of his background check. (Id.). Plaintiff requested that Defendants provide him a copy of his consumer report and Defendants allegedly refused. (Id.).

         In October 2018, Plaintiff filed his Complaint with the Court. In November 2018, Defendant Aerotek requested that Plaintiff voluntarily stipulate to dismiss his claims against it in favor of individual arbitration in light of the Agreement. (Doc. 11, Attachment 2). Plaintiff declined. (Id.). Defendant Aerotek moves to dismiss Plaintiff's claims against it and compel individual arbitration pursuant to the Agreement and the Federal Arbitration Act (“FAA”). (Doc. 11).

         II. The Agreement

         The opening paragraph of the Agreement states that:

As consideration for my application for and/or my employment with Aerotek, Inc and for the mutual promises herein, I and the Company (as defined below) (each a “party” and collectively “the parties”) agree that:
Except (i) as expressly set forth in the section, “Claims Not Covered by this Agreement, ” all disputes, claims, complaints, or controversies (“Claims”) that I may have against Aerotek, Inc and/or any of its subsidiaries, affiliates, officers, directors, employees, agents, and/or any of its clients or customers (collectively and individually “the Company”), or that the Company may have against me, including contract claims; tort claims; discrimination and/or harassment claims; retaliation claims; claims for wages, compensation, penalties or restitution; and any other claim under any federal, state, or local statute, constitution, regulation, rule, ordinance, or common law, arising out of and/or directly or indirectly related to my application for employment with the Company, and/or my employment with the Company, and/or the terms and conditions of my employment with the Company, and/or termination of my employment with the Company (collectively “Covered Claims”), are subject to confidential arbitration pursuant to the terms of this Agreement and will be resolved by Arbitration and NOT by a court or jury. The parties hereby forever waive and give up the right to have a judge or jury decide any Covered Claims.

(Doc. 11, Attachment 1, PageID 72) (emphasis omitted). The Agreement includes the following provision: “[t]o the maximum extent permitted by applicable law, the parties agree that: No. Covered Claims may be initiated or maintained on a class action, collective actions, or representative basis either in court or arbitration.” (Id.)

         III. ANALYSIS

         a. Standard of Review

         The burden of proving that a claim is non-arbitrable rests on the party refusing arbitration. See American Exp. Co. v. Italian Colors Restaurant, 570 U.S. 228, 243, 133 S.Ct. 2304, 2315, 186 L.Ed.2d 41 (citing Green Tree Fin. ...


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