Gonzalez v. Menard, Inc. (534 F. Supp. 2d 815, 2008)

MEMORANDUM OPINION AND ORDER

MILTON I. SHADUR, Senior District Judge.

This Court has sought, over an extended series of status hearings, to get counsel for defendant Menard, Inc. (“Menard”) to face up to the special problem that is posed by its standard inclusion of a mandatory arbitration clause in its employment contracts when an employee charging employment discrimination actionable under Title VII seeks to raise those issues in a class action' — rather than that employee’s separate individual lawsuit — because of the widespread nature of the asserted harms. But Menard has previously proved intransigent, apparently seeking to transmute its ubiquitous TV slogan directed to its customers, “Save big money at Menard’s,” to a message to its employees: “Spend big money to sue Menard’s.”

Because this Court has expounded at length on the subject over the course of the numerous status hearings, the transcripts of those hearings would best serve to set out a comprehensive statement of the full scope of its reasoning. More recently the parties have submitted their respective drafts of an opinion reflecting this Court’s orally expressed views, and Menard’s draft (like that submitted in plaintiffs’ behalf) finally seems to have recognized the principle that this Court has been urging without success. Nonetheless it seems best, in the interest of completeness, to issue this memorandum opinion and order to provide a less discursive summary of the unreasonableness of Menard’s oft-repeated position.

This Court has long honored and enforced contractual undertakings that have chosen the alternative dispute resolution process via arbitration in preference to in-court proceedings. Hence wherever either party to an action on this Court’s calendar invokes a contractual arbitration provision, this Court looks to the Federal Arbitration Act. There is one judicially recognized potential exception articulated by the Supreme Court in Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000):

It may well be that the existence of large arbitration costs could preclude a litigant such as Randolph from effectively vindicating her federal statutory rights in the arbitral forum.

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[W]e believe that where, as here, a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.

And that has, of course, triggered examination of that policy by lower courts (at the appellate level (see, e.g., Livingston v. Assocs. Fin., Inc., 339 F.3d 553 (7th Cir. 2003) and Cooper v. MRM Inv. Co., 367 F.3d 493 (6th Cir.2004)).

Here Menard has responded to the employment discrimination charges advanced by Gonzalez and Stanley, both individually and as putative class representatives, by moving to refer the dispute to binding arbitration before the American Arbitration Association (“AAA”), relying on the attached Employee Agreements (Exs. A and B) that those employees respectively signed (and that Menard requires of all its employees). As Paragraph 6 of that Employee Agreement reflects, such arbitration must proceed under AAA’s “current version of the National Rules for the Resolution of Employment Disputes,” which are also said to “govern the fees in this matter.” Moreover, in what appears to be a commendable effort by Menard to avoid the potential problem identified in Green Tree, the contractual provision goes on to state “that the costs of filing a demand for arbitration will not exceed the costs of filing a civil complaint in federal court.”

But a sharply different prospect appears when AAA’s Employment Arbitration Rules are examined in the context of a case such as this one. Parenthetically, even in the arbitration of individual claims where such arbitration is called for in an individual employment agreement rather than pursuant to an employer-promulgated plan, the AAA schedule of fees and expenses imposes financial burdens on the employee that are substantially above the cost of filing a federal lawsuit (see attached Ex. C, which reproduces a portion of the AAA Employment Arbitration Rules indicated by the marginal marking). But because this opinion focuses on the existence of class-based claims in this action, it is unnecessary to inquire further as to whether the AAA provision is trumped by the limitation on employee-borne expenses specified in Menard’s Employee Agreement.

As for the critical issue for purposes of the present ruling, this Court has previously pointed cut to both sides’ counsel that the AAA not only has a separate set of Supplementary Rules for Class Arbitra-tions, but that those Supplementary Rules are expressly made applicable to any dispute that arises out of an agreement that provides for arbitration pursuant to any AAA rules — indeed, those Supplementary Rules are just as expressly said to govern in the case of any inconsistency between those Rules and any other AAA rules (see the marginally marked provisions of Ex. D attached to this opinion). And in this instance, the costs that would be chargeable to Gonzalez and Stanley for pursuing their existing class claims before the AAA are staggering in relation to their financial circumstances as set out in their affidavits submitted to this Court: Those Supplementary Rules provide for a $3,250 preliminary filing fee and then a supplementary filing fee that, if the Complaint’s statement as to the amount in controversy is considered, amounts to an additional $14,000.

When that situation came to light as a result of the submissions that the parties provided in response to this Court’s inquiries, this Court sought a possible path to accommodate Menard’s desire for arbitration by asking its counsel whether his client would be prepared to treat the very modest limit on an employee’s financial exposure in the Employee Agreement as extending to the class claims here, with Menard committing itself to pick up the balance of the AAA tab. That inquiry was met with a flat-out refusal, with Menard’s counsel offering the response that a division of those very large class action expenses among the members of a certified class would not be onerous for any individual member of the class, including Gonzalez and Stanley as class representatives. But the short answer to that “generous” response is that AAA costs are incurred up front, so that Menard’s proposed “solution” would force Gonzalez and Stanley to gamble on being successful in obtaining class certification, a highly unfair risk to impose on persons of such modest means (and a risk that does not exist in any federal class action lawsuit where the class-based claim is non-frivolous).

Thus Menard’s response equates to an in terrorem effort to discourage this or any other proposed class action, an effort that runs counter to the basic principles that are implicit in Fed.R.Civ.P. 23. This Court has nonetheless afforded the parties an opportunity to consider whether conventional principles of severability might save the potential validity of the contractual arbitration provisions only as to the individual claims by Gonzalez and Stanley (even though that would create the awkward and expensive scenario of contemporaneous legal proceedings in both forums — before the AAA as to the individual claims and before this Court as to the class claims). But in this instance the document that Menard has drafted and requires its employees to sign is unitary and all-encompassing in referring all employment disputes to the AAA, and the AAA’s rules are similarly unitary. Severability is really not an appropriate option in this instance, even apart from the relevant considerations of duplicative activity and the need to tilt lances in two different forums at the same time.

In sum, Menard’s motion for referral to AAA arbitration must be and is denied. Gonzalez and Stanley have satis-fíed the test of demonstrating “prohibitively expensive” arbitration within the teaching of Green Tree. Because Employee Agreement ¶ 6’s arbitration requirement is invalid and unenforceable in the circumstances of this case, the action will go forward in this District Court. This Court’s previously-set February 18 status hearing date will remain in effect to discuss further proceedings.

EXHIBIT A

Case 1:07-cv-02507 Document 17-2 Filed 07/! 1/2007 Page 2 of 39 EMPLOYE^ AGREEMENT (n ccnsfdaraffon of employment, continued crnpfoym(*l",L pronto ¡ion or salary inctoaiti by Mmafo, Inc,, of any division thereof, and in fuither consideration of the compensation paid of to b* paid lo one. I agree os follows. -j. Nntuia of Employment I understand that my employment wHh Menard. Inc. is “ai vuilT and It ma' be terminated at any lima for any reason, or fox no ma-sen at ad, wiih or without cause, by Menard, Inc or me. 2. ContWinlfnl Information. Menard, Inc. owns and bos 3 valuable properly internal In its Conflder Hal information, which Indudet. but is ijot limited to, mat* lata particularly relating lo operatic^ of Menard, inefe retail business sudh as customer, supplier and pr-oe lists and agraomants, distribution plans, requlri? mente or costs, customer service-requirements, costs of providing serróos, equipment and equipment maíñtór anco costs, materials or records of a proprietary nature, erglnnor ng or technical data, end records and policy matters relating to research, finance, accounting, sates, personnel, managtrnenl, marketing and operations, i understand that Mepatd, Inc. has expanded significant tima, effort and expense in developing its Confidential Information and building its business and custom» relationships, Afi afi employee of Menard, Inc., I will receive extensivo training and bec'ome personally a-xjuainied wiift Menard. Inc'» Confidential Information. By signing tn.s Agreement, I am agreeing .lo abide by. certain legal obligations and responsibilities with especl to Monarri locfs cuslomeie and Ms Confidential fnfomvali.tn lq'order tó'prelecl Monard, Inc's investment and my fellow employees. ' line of Confidential Information. I admowfsdge that during me term of fny empfoymant, I w/l be making use of. acquiring or adding to Menard, Ink's Confidential Information, to order to protect (ho Confidantiat Information'. I wll nol, during ihe term ot my 1 imptoyment vrtth Menard, Inc. or therealter. in anyway utilize or.y 01 the CctoWential Information skcepi.cn connection with my employment by Menard, (nc I will ntl copy, reproduce or ternewe from Menard, Inc.'s premises ihe orfglwl or any copies of the Confidential Information, and I wili not tísdoaó any of tho -Confidential !r formation to anyone. I further agree and represent Suri fcy comp' rin<] with this non-dlectosure, to vihicb Menard^ Inaisenitled, my ability lo earn a livelihood m not and will not bo impaired My agreement ol non-disclosure v/H su-vive the lermnatfon of ihía Agreement I agree that I will comply wiih tho most restrictive provision1, specified above v/Wch Is allowed by appficiibtf slate lew. <1. Corn putei Equipment and Software. 1 undeistand toe! in the coursa of my employment, 1 may Lsp computer equipment provided try Menard, Inc. end may eraatr- cr tise computa» software and related documentation that aro the property of Menard. Inc. or at 1 licensed and copyrighted by another individual or firm. I agree thallvrijl not reproduce, use or acquire suchsoUware without prgpsr authorization arid will only iso such software to aecocdonce'wito relevant and appro-prlale licensing and purchase agreement*. I agrae.nol lomlreduce any software oí any type into any oí ihe computer equipment belonging to Menard; Inc. without the a-pruss written consent of jrty division computer department manager, the Chief Information ‘Office • or the Presiden! of Monard, Ine. I.undorslend lhal cither the (rr.pfuper'oso or-reproduction of toe soltwa re or use of computer equipment supplied lo meto podo m my dubas for Menard, Inc. may resuUin.dvtimd criminal joéna'tós ás.wsll as appropriate disciplinary action, including termination. I understand end agree that ¡hers 1» no guarantee of privacy, and Monard, Inc. reservos the ri;,hi to foap'oet the computer equipment 1 use, the tiles I keepon that equipment', thó massages 1 se id ot receive, and to audit mV activitfei in tiny and all fashion w* 1 ting any computer rbsoerces. Under no instenco may It be construed that any activity Invoking the computer and networking equipment, owned by Menard toe,, and supplied to motor the purpose of completing the objectives of Menard, inc., be clap srsonal or private nature nó m'atter the nature, purpose, or circunstante 0! Hurt licllvity. ti'. !nl«U«ctu*t Property. I agree to dtecloso and assign to Menard, Inc. any and all material of a >roprte(ary nature, particularly including, but not limited to. malarial subject to protection such as trade-secrets, trademarks,-patentabic Ideas, processes 01 inven: ons or copyrightable vwirks.'whieh l may conceive, lrwqnl, author or discover» either solely or jplntiy with anothor or others during ihe teem ot this Agreement and vhlch relates lo or Is capátte of use in connection with tho subject matter ol.thls Agreectionl end with Ute business cf Menard, Inc. or any services or producís otters J, manufactured, used, sold or being developed by Manato, Inc. atino tinte Ihe material te developed, which shall bo considered Avorkmado for hire/ and shall beco he and remain the sole property 0! Mepard, Inc. I vriil, upon reqgj/at of.'Manajd, inc,*ito*r during oral any timo after tho termination of this Agreement, execute a td deliver, all papers, including application» for palenls and registrations forccpyrighte, and do such other legal acts (entirely at Menard, Inc.'s expanse) as may be necessary lo obtain and maintain proprielary rights in any and nil toUnfrfe's'end lo vest title thereto In Menard, Inc. 6. llemody. 1 agree that all problems, claims, and disputes experienced v/ithuv my woikaxaa chati 'irsl be resolved as oulUnerf In the Team Member ReJst/Cnt section of toe Grow With Menards Team Mombsr Information Booklet which 1 have received, if 1 am un jpte to resolve the dispute by those means, i agre* lo submit to final and binding arbitration. Problems, claims, ot disputes subject to binding arbitration indude bo) are not limited to: statutory claims under 42 U.S.C: & 1 Sat, the Age Olsofjmlniiion In Employment Act, Farr Labor Standards Act, Title VII of the Civil Rights Act oí Í964, Title I of the Civil Rights Act of 19&7, Amaneara will? Otsabinjia* Act, Family Medien) laavo Act, and noo-slaiutory claims ssufch as contractual claims. q mi-contractual claims, tort claims, and any and ay pauses of action arising under state law» or common taw. Tnaso claims ¿halt h*. resobrad by binding arbitration with the American Arbitration Association *AAA'} located at 225 North Michigan Avenue, Suite 252, Chicago, piinots 60601-7601 Under its currant version of the National Rules for lha Resolution ot Empf jyment Oispules. I understand that the AAA National Rules ter Vie Rssptulfoo of Employment Disputes shall govern too foes in this matter, and that the costa of h irig a demand for arbitration will not exceed the’eotfs ol.il-. ing .-t cMl complafo) «1 fedint) court.* A copy of Ihe National Rules for fhe Resolution to Emplcyrm ni Disputes and fee schedule to the Amaricen Arbitration AsSs<.c>atiOQmay.ba obtened by contacting it at the address listed above. I sgroo that áll arbfVators setoctod shall be atiornsys. Thts provision shall supereed* enycontiaq rule or provision of ihe forum steto. Nothlng’tn Ihte Agreemenl Infringe* on my ability to tile a claim or charge of df ¿crimination v-ilh the U.5, Equal Empfsymorrt Opportunity Coremlf'afon or comparable slate or local aga'nelea.Thesi eganclMhave the euthorlty.lo ceny out Ihalraltoutsry dutlaa by thvoal'getlng tha charge. Issuing a ttetermV naticm,flitog a lawsuit In Fedsral or «tale court In their own nemo, or taking any other action authorized under (hese statutes. 1 understand thoi (have ihe rlghffa» perUdp«ta ln such action. ManaM, Inb. ^ engaged in commerce using U.$. Mail and telephone service.Therafoie, the Agree nanl Is subject to the Federal Arbitration Act. U.S.C. SocSons 1 -1 amendsd from tima to lime. 7. Sevtra&uJty, I agre* that If the scope or snlorcaabitlty of any part of this Agreement Is in any way disputed at any lima,* court or arbitrator may modify and enforce the Agreement to toe oxlent that It beitaros to be reasonable under the circumstances exsHr )- '-'Áddresa- /% /y./i A Arlrf/y ykzál A. i-//. /,r.:TA5 survive the termination of this Agreement. I agree that I will comply with the most restrictive provis ons specified above whfch is allowed by eppicabla state (aw. 4. Computar Equipment and Software, t understand that In the course of my employment, I m¿y use computer equipment prewdad by Manará, I no. and may cream or use oomputer software and rotated documentation (halare foe properly of Menard, Inc. or are licensed end copyrighted by another Individual or firm. I ag¡ eo that < will not reproduce» uie or acquire such software without proper aulhorfeatlon and will or ly use such software in accordance» with retaran! and appropriate Ifcanalng and purchase agreanteols. I egree not to Introduce any software ot any type into any of the computer equipment belonging to Menard, Inc. without Ihti express wriUen consent of my division computer department manager, the Chief Information Officer or lha President oí Manará,Trie. I uniere land that either ihn Improper use or reproduction of the software or use of oomputer equipment supplied to me to pe rform my duties for Menard, Inc. may result In dvH and criminal penalties as wall as appropriate disciplinary action. Including termination. I understand and agree t> ot there is no guaranteeof privacy, and Menard, fnc. reserve* thn npht to Inspect the computer equipment I use, the files I keep on that equipment, the messages J send or recorre, and to tudlt my activities Ir* any and oil fashion voile using any computer resourcos. Under no Instance may ¡I be construed that any activity fovofvirrg lha computer and networking equipment, owned by Mcniud, Inc., and supplied to mo for th« purpose of completing the objectives of Monard, Inc., bo of u personal or private nature no matter foe nature, purpose, ot circumstance of that activity. f>. Intellectual Property. 1 agree to disclose and assign to Monard, Inc. any and alt material of a proprietary nature, particularly including, but not limited to, material subject to protection such as trade secrets, trademerts. patentable Ideas, prooessos or Jnvr-rrtions or copyrightable works, vyhfoh I may conceive, invent, suthc-r or discover, either solely or "jointly with another or ofoora during tho term of Ihrs Agreement ard which relates to or is capable oí use fn oomection wUh the subject matter of this Agreement and with the business of Menard, Inc. or any services or products offered, manufactured, used, sold or being developed by Menard, fnc. <11 lha timo tho material I» developed, which shall be considered "work made for hire * and shall become and remain tho sola property of Monard, Inc. I wtl, upon request of Menard, Inc., either during or at any time alter (he leimlnatfon of this Agreement, oxoctrio and deliver all popera, including application* for patents and registrations for oopyrighta, and do such other legal ads (entirely at Menard, Ine.ta rapan**) as may*-re necessary to obtain end mainUVr proprietary righi* fn any anil oil countrias and to vast tille thereto In Menard, Inc. i. Remedy, (agree that all problems, claims, and disputes experienced within my work area stufl first d© resolved as outlined in tho Team Member Relations section of foe Grow With Menard* Team Member Information BooWet which I have received. III am unable to resolve the dispute by these means, I agree to submit to final and binding arbitration. Problems, claims, or disputes subject to binding arbitration induce, but arc not timfcod to: statutory defms under 42 U.S.C. $ 19fn, the Age Discrimination in Employment Act, Fair Labor Standards Act, Title VII of tho Civil Aiflhls Act of 1064, Tille I of tho Civil Rights Act of (091, Americans wflh Pliabilities Act, Family Medical Leave Act, and norvstatulory claims such as contractual claims, quast-contractua! claims, tort claims, and any and all cause* of notion arising under state laws or common few. 1 hese ciarme shall be resolved by binding arbitration with the American Arbitration Assodatior. (“AAX'i located at 225 North Michigan Avenue, Suite 552, Chscuja Illinois 60801 -7601 undor II* current version of the National Rules for tho Resolution of Emj>foym«it Disputes. I underetondthat foe AAA National Rulo* for the Resolution o! Employment Disputes shall govern foe fees in this matter, and that tea costs ot 'ifing a demand for arbitration will not exceed the costs of filing a civil complaint In federal courL A copy of foe National Rules for tho Resolution of Employment Disputes and fea schoduta of the Amaricen Arbitration Asportation may bn obtained by contacting it at the address listed above. . agree that all arbitrators «afectad shat! be attorneys. This provision shall supersede any central y rule or provision of the fortim slate. Nothing In Nile Agreement Infringes on my ability to fita a claim or charge of discrimination with foe U.S. Equal Employment Opportunity Commteeton or cctnparabia atete or loca) agencies. These agencies have the authority to carry oul their statutory duties by Investigating the charge, Issuing a determl-nailon, filing a tawaslt In Federal or state court In their own name, or taking any other action authorised under these statutes. I understand that I have the right to particípete (n aueh action. Menard, Inc. is engaged In commerce using U.S. Mail and telephone service. Therefore, the Agree merrl is subject to foe Federal Arbitration Act, U.S.C. Sections M 4 as amencted from lime to time. /. Severability. I agree that If tho scope or enforceability of any pari of dría Agreement Is fn any vay disputed at any time, a court or arbitrator may modify anc entorno iho Agroamont to the extent that it belevas to be reasonable under the crrcumsfancee exislln j at that tima. THIS DOCUMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. I HAVE READ THIS ENTIRE AGREEMENT ANO I FULLY UNDERSTAND THE LIMITATIONS WHICH IT IMPOSES UPON ME, AMD IUNDERSTANDTHATTHIS AGREEMENT CANNOT BE MODIFIED EXCEPT BYTHE PRESIDENT OF MENARD, INC. f __ Accepted this j£. ñbr. */V .sn Sé l -C.— MEWAHO, INC. Úmj/U¡— iryiahvo eTtmotyM — .S-L. By., ( \r**r*rtm s Tensón (__ Address: *b lg->