Perez v. Qwest Corp. (883 F. Supp. 2d 1095, 2012)

United States District Court for the District of New Mexico 2012-07-26

Labor

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants’ Petition to Compel Arbitration and Award Attorneys’ Fees or to Dismiss Jury Demand and Demand for Punitive Damages, filed January 31, 2012 (Doc. 18) (“Motion”). The Court held a hearing on April 5, 2012. The primary issues are: (i) whether the parties have agreed to have an arbitrator decide the issue whether the dispute is arbitrable; (ii) whether the parties’ arbitration agreement covers the claims Plaintiff Leonardo Perez has asserted against Defendants Qwest Corporation and Rick Maggine; and (iii) whether the Court should award costs and attorney’s fees to the Defendants for the expenses they have incurred in bringing the Motion. The Court will grant the Motion. Because there is not a clear and unmistakable agreement to have an arbitrator decide whether the dispute is arbitrable, the arbitration agreement does not provide for an arbitrator to decide whether the case is arbitrable. Because Perez’ claims do not conflict with, or face complete preemption under, section 301 of the Labor Management Relations Act, 29 U.S.C. §§ 141-87 (“LMRA”), and are otherwise covered under the parties’ arbitration agreement, the Court will compel Perez to arbitrate his claims against the Defendants. Because the parties contractually agreed to an award of costs and attorney’s fees if either party successfully compels arbitration, the Court will award the Defendants their costs and attorney’s fees incurred in bringing this Motion.

FACTUAL BACKGROUND

The Court recites the allegations in this section in the light most favorable to Perez. Perez initially began working for U.S. West, Inc., Qwest’ predecessor. The arbitration agreement to which Perez agreed when he became employed with U.S. West in 2000 provides:

Any claim, controversy or dispute between you and U.S. WEST, unless otherwise covered by a collective bargaining agreement, whether sounding in contract, statute, tort, fraud, misrepresentation, discrimination or any other legal theory, including, but not limited to, disputes relating to the interpretation of this Attachment; claims under Title VII of the Civil Rights Act of 1964, as amended; claims under the Civil Rights Act of 1992; claims under the Age Discrimination in Employment Act of 1967, as amended; claims under 42 U.S.C. § 1981, § 1981a, § 1983, § 1985, or § 1988; claims under the Family Medical Leave Act of 1993; claims under the Americans with Disabilities Act of 1990, as amended; and, claims under the Fair Labor Standards Act of 1938, as amended, whenever brought shall be resolved by arbitration. The only legal claims between you and U S West which are not included within this Agreement for Arbitration are claims by you for workers’ compensation or unemployment compensation benefits and/or claims for benefits under a U S WEST benefit plan if the plan does not provide for arbitration of such disputes. You hereby waive and release all rights to recover punitive or exemplary damages in connection with any common law claims, including claims arising in Tort or contract against U S WEST. By signing this Attachment, you voluntarily, knowingly and intelligently waive any right you may otherwise have to seek remedies in court or other forums, including the right to a jury trial and the right to seek punitive damages on common law claims. The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”) shall govern the arbitrability of all claims, provided that they are enforceable under the Federal Arbitration Act, as it may be amended from time to time. In the event the FAA does not govern, the Colorado Uniform Arbitration Act shall apply. Additionally, the substantive law of Colorado, only to the extent it is consistent with the terms stated in this Agreement for Arbitration, shall apply to any common law claims.

Attachment A at 4 (dated June 22, 2000), filed January 31, 2012 (Doc. 18-1) (“Arbitration Agreement”) (emphasis in original).

Perez was also subject to a collective bargaining agreement as an employee in the Communications Workers of America (“CWA”) union, which signed a collective bargaining agreement with Qwest. Agreement Between Qwest Communications and Communications Workers of America at 2 (dated October 12, 2008), filed February 16, 2012 (Doc. 23-1) (“CBA”). Article 12 of the CBA provides that “[a]n employee whose Term of Employment (TOE) is one (1) or more years shall receive wage replacement during the first seven (7) consecutive calendar days of absence due to sickness” according to a formula table that the CBA specifies. CBA at 8. Article 16.3 of the CBA provides: “Neither the Company or its representative, nor the Union, its local representative or members, will attempt, by means other than the grievance procedure, to bring about the settlement of any issue which is properly a subject for disposition through grievance or arbitration procedures.” CBA at 11. The relevant provisions of article 23 of the CBA are as follows:

An employee who is unable to perform the functions determined as essential by the Company of his or her regular job as a result of an on-the-job accidental injury (as defined in the West Disability Plan) or an illness, physical or mental limitation, or off-the-job injury, will be considered for a position of equal or lower status and pay.

... If Qwest Disability Services or its designee has determined the employee can return to work with a medical restriction of one hundred eighty (180) calendar days or less, the employees shall remain in the present job title and receive the present paid rate for up to ninety (90) calendar days. If after ninety (90) calendar days the employee is still unable to perform the essential functions of his or her regular job, the employee shall remain in the present job title and the remaining ninety (90) calendar days shall be treated as non-paid excused time. A maximum of one hundred eighty (180) calendar days (paid/unpaid) will be allowed in a rolling twelve (12) month period regardless of the number or nature of the employee’s restrictions.

The Company or Union Bargaining Agents may initiate a review based on extenuating circumstances, to discuss any exceptions of the (180) calendar days prior to placement of an employee on an eighty (80) day job search as outlined in Section 28.6. Any such agreement between the parties’ Bargaining Agents shall be considered nonprecedential and non-referable.

CBA at 13. The remaining relevant portions of article 23 are as follows:

To assist in determining the abilities of an employee with medical restrictions, an assessment may be conducted at the request of the employee or the local union (if the employee concurs) or at the initiation of the Company. The employee must participate in this evaluation. The assessment tool, which may include but not be limited to, a Functional Capacity Evaluation, Independent Medical Evaluation, and/or Cognitive Testing, will be determined by Qwest Disability Services or its designee based on the employee’s condition and diagnosis. This assessment will determine the employee’s ability to remain in his/her current job or another job within the Company with or without accommodation. Utilization of the assessment tool will not alter the job search process as outlined in Article 23.6

... Following is the position to be taken regarding the option of obtaining an Independent Medical Evaluation (IME). A demotion or termination handled under the provisions of Article 16 which results from the imposition of a medical restriction, shall not be subject to arbitration. If a dispute arises concerning either the length or the scope of the medical restriction, and the employee so requests or the local union requests (if the employee concurs), Qwest Disability Services or its designee will consult with the employee’s personal physician concerning the length and scope of the restriction. If they are unable to agree, the matter will be referred to a mutually acceptable physician (in accordance with the administrative guidelines in place regarding this process) who is knowledgeable in occupational safety and health matters who shall be afforded the opportunity to review the pertinent medical data, to review the requirements of the work place, and to examine the employee. An agreement with the independent physician will ensure that the results of the examinations will be received by the Company and the Union within fifteen (15) calendar days of the examination. Both the Company and the Union will comply with the decision of this physidan as to the proper length and scope of the restriction.

CBA at 13.

“Qwest first hired Perez in 1999.” Complaint for Damages from Violations of Title VII of the Civil Rights Act and Assault and Battery ¶ 11, at 2, filed September 23, 2011 (Doc. 1) (“Complaint”). “In 2002, Qwest transferred Perez to Las Cruces, New Mexico.” Complaint ¶ 11, at 2. “Following the transfer, Perez worked as a splicer network technician.” Complaint ¶ 11, at 2. “Perez has remained in this position until the present date.” Complaint ¶ 11, at 2. “Perez has fulfilled his job duties in at least a satisfactory manner throughout the period of the Las Cruces employment and became known as one of the most capable Qwest employees in Las Cruces in his position.” Complaint ¶ 11, at 2. “Qwest consistently emphasizes with its employees the need to work in a safe and secure manner.” Complaint ¶ 12, at 2.

“In 2007, Maggine became Perez’ supervisor.” Complaint ¶ 13, at 2. “At some point in 2008, Perez learned that Maggine was altering and falsifying employee time sheets, including those of Perez.” Complaint ¶ 14, at 3. “The falsification of employee time sheets is, in accordance with Qwest policies and procedures, a serious violation of Qwest work requirements and rules.” Complaint ¶ 14, at 3. “Maggine consistently instructed Perez that Maggine would take care of filling out Perez’ time sheets — a duty the individual employee was expected to perform.” Complaint ¶ 16, at 3. “Maggine would take the extra hours allotted to jobs Perez was required to complete and distribute those hours among ‘favored’ employees under Maggine’s supervision who were not completing jobs in a timely manner.” Complaint ¶ 16, at 3. “When Perez confronted Maggine about the inappropriateness of allotting hours in this fashion, Maggine became upset and agitated and told Perez to be quiet about Maggine’s improper activities.” Complaint ¶ 17, at 3. “In 2009, Perez called a Qwest hotline to disclose Maggine’s improper behavior related to falsification of Perez’ time sheets.” Complaint ¶ 19, at 3. “Maggine learned that Perez had made this supposedly confidential disclosure.” Complaint ¶ 19, at 3. Maggine then began making a variety of racially derogatory comments to Perez and “started giving Perez the worst jobs to complete.” Complaint ¶ 20, at 3-4. “This practice of giving Perez the worst jobs continued until Perez went out on medical leave in June 2011.” Complaint ¶ 20, at 4.

“In 2010, Perez suffered an injury to his back while on a Qwest duty assignment.” Complaint ¶ 22, at 4. “The injury resulted in a ruptured disk in Perez’ lower back.” Complaint ¶22, at 4. “When Maggine learned of Perez’ injury, he called Perez and angrily stated that he was considering terminating Perez.” Complaint ¶ 22, at 4. “Maggine continued to harass and intimidate Perez. Maggine threatened Perez by shutting a laptop computer in Perez’ face.” Complaint ¶ 27, at 5. “Maggine also physically threatened Perez by leaning into him forcefully in the workplace.” Complaint ¶ 27, at 5. “Shortly afterwards, on May 27, 2011, Maggine drove his company vehicle towards Perez at a Las Cruces gas station.” Complaint ¶ 28, at 5. “Maggine drove the vehicle directly at Perez and swerved at the last moment, barely avoiding hitting Perez.” Complaint ¶28, at 5. “Maggine confronted Perez at the gas station and screamed at Perez.” Complaint ¶ 28, at 5. “Perez, afraid for his safety, then called Qwest corporate security and reported the assault Maggine inflicted on Perez.” Complaint ¶ 28, at 5.

“On May 31, 2011, Maggine ... approached Perez while Perez was seated at a work computer.” Complaint ¶ 30, at 5. “Maggine forcefully leaned into Perez, handed Perez papers that Maggine told Perez to sign, and then left.” Complaint ¶ 30, at 5. “The papers represented an unjustified disciplinary action Maggine had written up.” Complaint ¶ 30, at 5. “When Maggine exited Perez’ proximity, Perez, again fearful for his safety, left the area and went to his truck.” Complaint ¶ 30, at 5. “Maggine followed Perez and began chasing Perez as Perez entered the truck. Maggine was shouting at Perez and pulling at the door of the truck.” Complaint ¶ 30, at 5. “Perez rightly feared that Maggine was beside himself and feared that Maggine would attack him.” Complaint ¶ 30, at 5. “Maggine banged on the windows of the vehicle and repeatedly attempted to forcefully enter the truck.” Complaint ¶ 30, at 5. “Perez told Maggine to get away from the vehicle but Maggine refused. Perez then called the police to report the situation.” Complaint ¶ 31, at 5. “The police came and the situation was eventually defused.” Complaint ¶ 31, at 5-6. “Qwest management then demanded that Perez hand in his work badge and truck keys and ordered him off the property.” Complaint ¶ 31, at 6. Perez eventually “began to suffer from heart palpitations, depression, and anxiety,” as well as “panic attacks.” Complaint ¶ 36, at 7.

PROCEDURAL BACKGROUND

On September 23, 2011, Perez filed his Complaint. See Doc. 1. Perez asserts the following Counts against Qwest: (i) Count I — Violation of Title VII: National Origin Discrimination; (ii) Count II — Violation of Title VII: Hostile Work Environment; (iii) Count III — Violations of Title VII: Constructive Discharge; and (iv) Violation of Title VII: Retaliation. See Complaint at 7-11. Perez asserts the following claim against Maggine: Count V-Assault and Battery. See Complaint at 11-12.

The Defendants relate that they communicated with Perez’ counsel and informed him that they intended to compel arbitration for this dispute if Perez did not concur. See Motion at 3. On January 31, 2012, the Defendants filed their Motion seeking to compel arbitration. See Doc. 18. The Defendants assert that, as part of his employment, Perez agreed to sign an arbitration agreement that covers the claims he has brought in this case. See Motion at 1-2. The Defendants assert that “the FAA controls in this matter, but under either” federal arbitration law or Colorado arbitration law, “Plaintiff should be required to arbitrate his claims.” Motion at 4. The Defendants contend that there is a strong policy favoring arbitration under both federal and Colorado law. See Motion at 4. The Defendants assert that the Arbitration Agreement is conspicuous and unambiguous, such that Perez cannot claim it is unenforceable. See Motion at 5. The Defendants argue that, “[u]nder the terms of the Arbitration Agreement, the agreement controls discrimination claims, common law torts and any dispute between these parties regarding ‘interpretation of this Attachment.’” Motion at 5. The Defendants contend that the Arbitration Agreement makes “the question of arbitration itself subject to arbitration,” and asserts that “once this Court determines that a valid agreement to arbitrate exists, the arbitrator is vested with jurisdiction over any questions regarding the satisfaction of conditions precedent and/or enforceability of the arbitration provision.” Motion at 5. The Defendants argue that they have raised the arbitration issue in a timely manner without participating in any significant way in this federal litigation. See Motion at 6. The Defendants assert that Perez has waived his right to both have a jury trial and to seek punitive damages. See Motion at 7. The Defendants also seek their costs and attorney’s fees incurred through filing this Motion. See Motion at 7.

On February 16, 2012, Perez filed his Plaintiffs Response to Defendants’ Petition to Compel Arbitration and Award Attorney’s Fees or to Dismiss Jury Demand and Demand for Punitive Damages. See Doc. 23 (“Response”). Perez contends that the “Defendants’ petition must fail as the Agreement for Arbitration upon which Defendants rely specifically exempts Perez’ claims in this action from its terms and conditions.” Response at 1. He argues that the Arbitration Agreement “does not correspond to claims which are subsumed or ‘covered’ under the provisions of a collective bargaining agreement (CBA).” Response at 1. Perez argues that “all the factual and legal claims set forth in the original complaint are ‘covered’ by the CBA.” Response at 1. Perez concedes that he signed the Arbitration Agreement and that Qwest is a successor to U.S. West. See Response at 2-3. Perez relates that, “[djuring the entire period of his employment with Defendant Qwest[,] Perez was a member of the Communication Workers of America, a duly organized and authorized union representing Perez.” Response at 3. Perez states that, “[a]s a member of the CWA, [he] filed a number of grievances related to the facts and circumstances supporting the claims Perez makes in the instant case.” Response at 3. He notes that the “CBA includes a non-discrimination provision that expressly prohibits unlawful discrimination against any employee.” Response at 3. He asserts that the “CBA also addresses work hours, schedules, and overtime,” and that he “grounded a number of his claims in this action to discriminatory conduct related to work hours, schedules, and overtime.” Response at 4. He asserts that the “CBA further contains a number of provisions related to injured/ill employees,” and notes that the “Complaint sets forth a number of allegations related to Perez’ health, medical condition, and well-being, including threats from Defendant Maggine.” Response at 4.

Perez argues that “[e]ach and every one of the factual allegations found in Section II of the Complaint have some corollary to a CBA provision.” Response at 4. Perez relates that he recognizes that he will need to amend his Complaint to state a claim against Qwest. See Response at 5-6. He notes that he “is now in the process of finalizing an amended complaint which will include claims against the CWA for breach of a duty of fair representation.” Response at 5-6. He notes that, “[a]t that point, this action will become a hybrid § 301 action under the Labor Management Relations Act.” Response at 6. He relates that “these circumstances are not fatal to Perez’s recovery on his discrimination and common law claims against Defendants and, furthermore, have no bearing on the issue of arbitrability before the Court.” Response at 6. He argues that he has not waived his right to a jury trial or to punitive damages, because his claims are not subject to arbitration. See Response at 6-7. Perez also requests “his attorney’s fees and costs.” Response at 7.

On March 5, 2012, the Defendants filed their Defendants’ Reply in Support of Petition to Compel Arbitration and Award Attorneys’ Fees or to Dismiss Jury Demand and Demand for Punitive Damages. See Doc. 24 (“Reply”). The Defendants assert that Perez “is incorrect that the issue of ‘arbitrability’ is before the Court,” because the parties have agreed to “give the arbitrator jurisdiction to decide the question of arbitrability.” Reply at 1-2. They argue that “the only issue before the Court is whether the Arbitration Agreement is an enforceable contract, which issue Plaintiff does not dispute.” Reply at 1-2. The Defendants assert that, “[t]o the extent the Court will consider Plaintiffs argument” that “the language ‘unless otherwise covered by a collective bargaining agreement’ excludes his claim from mandatory arbitration,” Perez’ “interpretation not only contradicts the plain language of the Agreement but also belies common sense.” Reply at 3. They argue that, “[i]f Plaintiffs reading of this language was adopted, all claims between an employee and the Company would be subject to the grievance and labor arbitration process, which would be an absurd and incorrect result.” Reply at 3. They also contend that the “Plaintiffs claims cannot be ‘covered by’ the CBA,” because “[cjlaims concerning the terms of a CBA can only be pursued in an action under § 301 of the Labor Management Relations Act.” Reply at 3-4. They assert that the “Supreme Court has determined that” section 301’s “language completely preempts claims that seek to interpret the terms of collective bargaining agreements under state law.” Reply at 4. They relate that section 301 “does not preempt claims under other federal statutes, such as Title VII, but a claim under Title VII is, by definition, not a claim ‘covered’ by the CBA.” Reply at 4 n. 3 (citing Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 737-38, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981)). They argue that Perez cannot state a claim under section 301, because “he would have had to exhaust his administrative remedies and file within the six-month statute of limitations for such claims.” Reply They note that Perez has not alleged that he has done so. See Reply at 6. They also argue that, “[ejven if Plaintiff did exhaust his administrative remedies, consideration of any LMRA claim that occurred more than six months prior to his filing this suit would still be barred by the statute of limitations.” Reply at 6. They contend that the “Plaintiffs demand for attorneys’ fees is at odds with his admission that his Complaint, as pleaded, is subject to arbitration.” Reply at 7. They relate that Perez “has failed to provide even a draft amended complaint that purports to put forward a claim not subject to arbitration, as he states he will do.” Reply at 7.

At the hearing on April 5, 2012, the Defendants asserted that there is no dispute that the Arbitration Agreement is binding, but only a dispute whether the Arbitration Agreement covers the claims Perez has brought. See Transcript of Hearing at 3:3-11 (taken April 5, 2012) (Lyons) (“Tr.”). The Defendants emphasized that an arbitrator should decide the threshold question of arbitrability. See Tr. at 3:19-4:10 (Lyons). The Defendants asserted that the only limitation on parties’ ability to agree to have an arbitrator decide arbitrability are that the agreement must be clear and unmistakable. See Tr. at 3:25-4:10 (Lyons). The Defendants acknowledged that the Arbitration Agreement excludes disputes that the CBA covers, but disputed that the CBA covers Perez’ claims. See Tr. at 4:11-22 (Lyons). Perez related that, at the time he filed this suit, he was unaware of the existence of the Arbitration Agreement. See Tr. at 6:14-25 (Mozes). He noted that he signed the Arbitration Agreement approximately twelve years ago. See Tr. at 6:14-25 (Mozes). He asserted that the Defendants have not pled as an affirmative defense in their answer that the dispute is subject to arbitration such that the Court should not award attorney’s fees against Perez. See Tr. at 6:25-7:6 (Mozes). Perez stated that the Arbitration Agreement does not provide that the question of arbitrability is one for an arbitrator. See Tr. at 7:13-20 (Mozes). He asserted that courts are the ones who generally determine arbitrability. See Tr. at 7:21-8:9 (Mozes). He stated that the appropriate course of action would be for the Court to permit him to amend his Complaint to bring a section 301 claim against the CWA. See Tr. at 10: 18-21 (Mozes). The Court asked whether it had authority not to award attorney’s fees, in light of the parties’ agreement regarding those fees, if it grants the Motion seeking to compel arbitration. See Tr. at 11:2-6 (Court). Perez argued that it would be inequitable to assess attorney’s fees. See Tr. at 11:7-17 (Mozes). The Defendants stated that, if Perez wants to file an Amended Complaint asserting a section 301 claim against the CWA and Qwest, he may do so if he can meet the requirements to maintain a claim under section 301. See Tr. at 12:20-13:4 (Lyons). The Defendants asserted that this issue is not before the Court and that the Court should decide the Motion based on the claims Perez has filed. See Tr. at 12:20-13:4 (Lyons). The Defendants argued that, if Perez plans to seek amendment, he should have sought amendment before now. See Tr. at 13:21— 14:2 (Lyons). The Court stated that it was inclined to send the case to arbitration and to award attorney’s fees to the Defendants. See Tr. at 14:18-15:1 (Court).

LAW REGARDING ARBITRATION AGREEMENTS AND THE FEDERAL ARBITRATION ACT

The Federal Arbitration Act, 9 U.S.C. §§ 1 through 16 (“FAA”), governs the enforcement of arbitration clauses in commerce and maritime contracts. Section 2 of Title 9 of the United States Code provides:

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2. “The FAA thereby places arbitration agreements on an equal footing with other contracts, and requires courts to enforce them according to their terms.” Rent-A-Center, W., Inc. v. Jackson, — U.S. -, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010) (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); Volt Info. Sci., Inc. v. Bd. of Trs. of the Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). “Like other contracts, however, they may be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability.’ ” Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2776 (citing Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)). Accord AT & T Mobility LLC v. Concepcion, — U.S. -, 131 S.Ct. 1740, 1746, 179 L.Ed.2d 742 (2011). In Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the Supreme Court of the United States held that, once a court determines that a claim is subject to arbitration, the court is without authority to address the merits of the claim. See 388 U.S. at 400, 87 S.Ct. 1801 (“Section 3 requires a federal court in which suit has been brought ‘upon any issue referable to arbitration under an agreement in writing for such arbitration’ to stay the court action pending arbitration once it is satisfied that the issue is arbitrable under the agreement.”). “[T]he basic purpose of the Federal Arbitration Act is to overcome courts’ refusals to enforce agreements to arbitrate.” Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 270, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995).

Under FAA section 4, a party “aggrieved” by the failure of another party “to arbitrate under a written agreement for arbitration” may petition a federal court “for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4. If a party is aggrieved by the refusal of another to arbitrate under a written agreement, the district court, upon petition, “shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4. Section 2, the “primary substantive provision of the Act,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), provides: “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “If a party challenges the validity under § 2 of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that agreement under § 4.” Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2774.

1. Strong Federal Policy Favoring Arbitration.

“There is a strong federal policy encouraging the expeditious and inexpensive resolution of disputes through arbitration.” Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1488-89 (10th Cir.1994). See Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (“Congress declared a national policy favoring arbitration.”); Hill v. Ricoh Ams. Corp., 603 F.3d 766, 771 (10th Cir.2010) (“[T]he FAA is a ‘congressional declaration of a liberal federal policy favoring arbitration agreements.’ ”) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. at 24, 103 S.Ct. 927). Congress enacted the FAA with the express purpose of granting arbitration agreements the same enforceability as any other contract provision. See Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Junior Unir., 489 U.S. at 474, 109 S.Ct. 1248 (stating that Congress designed the FAA to “overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and place such agreements upon the same footing as other contracts.”). When the applicability of arbitration is in dispute, “as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. at 24-25, 103 S.Ct. 927).

2. Agreements to Arbitrate Arbitrability.

“[Pjarties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.” Rent-A-Center, W, Inc. v. Jackson, 130 S.Ct. at 2777. The Supreme Court has explained that this rule “merely reflects the principle that arbitration is a matter of contract.” Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2777. The Supreme Court has described the term arbitrability as “whether the parties agreed to arbitrate [a] dispute.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (Breyer, J.). Accord AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (describing arbitrability as “whether” an “agreement creates a duty for the parties to arbitrate the particular grievance”). The Supreme Court has clarified that the validity of a contract as a whole is not a question of arbitrability, including when there is a larger arbitration agreement and a more specific agreement to arbitrate issues of arbitrability. See Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2777-78 (“Thus, a party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.”); Quilloin v. Tenet HealthSystem Phila., Inc., 673 F.3d 221, 229 (3d Cir.2012) (“To eliminate the confusion caused by an agreement to arbitrate nested within another agreement to arbitrate, the Rent-A-Center Court found it necessary to distinguish between the overall arbitration agreement (the ‘contract’), and the agreement to arbitrate arbitrability (the ‘delegation clause’).”). As the Supreme Court has discussed:

The Agreement here contains multiple “written provision[s]” to “settle by arbitration a controversy.” Two are relevant to our discussion. First, the section titled “Claims Covered By The Agreement” provides for arbitration of all “past, present or future” disputes arising out of Jackson’s employment with Renb-A-Center. Second, the section titled “Arbitration Procedures” provides that “[t]he Arbitrator ... shall have exclusive authority to resolve any dispute relating to the ... enforceability ... of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.” The current “controversy” between the parties is whether the Agreement is unconscionable. It is the second provision, which delegates resolution of that controversy to the arbitrator, that Rent-A-Center seeks to enforce. Adopting the terminology used by the parties, we will refer to it as the delegation provision.

The delegation provision is an agreement to arbitrate threshold issues concerning the arbitration agreement. We have recognized that parties can agree to arbitrate “gateway” questions of “arbitrability,” such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy. This line of cases merely reflects the principle that arbitration is a matter of contract. An agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other. The additional agreement is valid under § 2 “save upon such grounds as exist at law or in equity for the revocation of any contract,” and federal courts can enforce the agreement by staying federal litigation under § 3 and compelling arbitration under § 4. The question before us, then, is whether the delegation provision is valid under § 2.

Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2777-78. When an agreement to arbitrate arbitrability appears in the larger arbitration clause, there is no delegation clause that would require a court to distinguish between multiple agreements to arbitrate. See Quilloin v. Tenet HealthSystem Phila., Inc., 673 F.3d at 229-30 (“There was no need to distinguish between multiple agreements to arbitrate; all that Quilloin needed to do was challenge the validity of the only agreement to arbitrate.”). A district court must resolve the question of arbitrability before submitting a dispute to arbitration. See Oil, Chem. & Atomic Workers Int’l Union (AFL-CIO) v. Conoco, Inc., 241 F.3d 1299, 1305 (10th Cir.2001) (“The possibility that the district court might revisit the arbitrability question at the conclusion of the arbitration proceedings is not an adequate substitute for a pre-arbitration ruling.”); Parrish v. Valero Retail Holdings, Inc., 727 F.Supp.2d 1266, 1273 (D.N.M.2010) (Browning, J.) (“In the Tenth Circuit, and in the courts of New Mexico, the ‘existence of an agreement to arbitrate is a threshold matter which must be established before the FAA. can be invoked.’ ” (quoting Avedon Eng’g Inc. v. Seatex, 126 F.3d 1279, 1287 (10th Cir.1997)).

The Supreme Court has held that “courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘elea[r] and unmistakabl[e]’ evidence that they did so.” Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2777 (alterations in original). In other words:

In this manner the law treats silence or ambiguity about the question “who (primarily) should decide arbitrability” differently from the way it treats silence or ambiguity about the question “whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement” — for in respect to this latter question the law reverses the presumption.

First Options of Chi., Inc. v. Kaplan, 514 U.S. at 944, 115 S.Ct. 1920 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. at 626, 105 S.Ct. 3346). The Tenth Circuit has stated that, “[o]f course, the most ‘clear and unmistakable’ agreement to arbitrate the issue of arbitrability would be an express statement to that effect in the parties’ contractual agreement to arbitrate disputes arising between them.” Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 968 (10th Cir.2001), rev’d 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). The Tenth Circuit has held that the phrase in an “arbitration clause” that referred to the arbitrator handling “any and all disputes arising out of or relating to the contract” was not clear and unmistakable, because “there is no hint in the text of the clause or elsewhere in the contract that the parties expressed a specific intent to submit to an arbitrator the question whether an agreement to arbitrate exists.” Riley Mfg. Co., Inc. v. Anchor Glass Container Corp., 157 F.3d 775, 780 (10th Cir.1998).

The United States Court of Appeals for the Eighth Circuit found the following language to be clear and unmistakable regarding arbitrability: “Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s).” Sadler v. Green Tree Servicing, LLC, 466 F.3d 623, 624 (8th Cir.2006). The United States Court of Appeals for the Ninth Circuit found the following language to be clear and unmistakable regarding arbitrability:

If a dispute arises out of or relates to this Agreement, the relationships that result from this Agreement, the breach of this Agreement or the validity or application of any of the provisions of this Section I, and, if the dispute cannot be settled through negotiation, the dispute shall be resolved exclusively by binding arbitration.

Momot v. Mastro, 652 F.3d 982, 988 (9th Cir.2011) (emphasis in original).

The United States Court of Appeals for the Second Circuit rejected a party’s argument that “a general arbitration clause covering all issues of interpretation would no longer be regarded as sufficiently clear and unmistakable, absent precise language that issues of arbitrability should be arbitrated,” stating that it did “not read” the Supreme Court’s decision in “First Options so expansively.” Abram Landau Real Estate v. Bevona, 123 F.3d 69, 73 (2d Cir.1997). In that case, the Second Circuit was interpreting a provision that stated that “[a] Contract Arbitrator shall have the power to decide all differences arising between the parties to this agreement as to interpretation, application or performance of any part of this agreement.” Abram Landau Real Estate v. Bevona, 123 F.3d at 73. The United States Court of Appeals for the Fourth Circuit has held that “an arbitration clause committ[ing] all interpretive disputes relating to or arising out of the agreement does not satisfy the clear and unmistakable test.” Peabody Holding Co., LLC v. United Mine Workers of Am., Int’l Union, 665 F.3d 96, 102 (4th Cir.2012) (alteration in original). The United States Court of Appeals for the Seventh Circuit concluded that the following language was not clear and unmistakable, specifically a provision requiring arbitration of “all differences arising out of the interpretation or application of any provision of [the] agreement.” Local 744, Int’l Broth. of Teamsters v. Hinckley & Schmitt, Inc., 76 F.3d 162, 163-65 (7th Cir.1996) (alteration in original). In an unpublished opinion, the United States Court of Appeals for the Sixth Circuit concluded that the following language was not clear and unmistakable: “[T]he arbitrators shall be empowered to interpret and determine the applicability of all provisions under this Code which interpretation shall be final and binding upon the parties.” Sec. Serv. Network, Inc. v. Cromwell, 62 F.3d 1418, 1995 WL 456374, at *3 (6th Cir.1995) (unpublished table decision).

LAW REGARDING LMRA PREEMPTION

In Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), the Supreme Court articulated the doctrine of complete preemption:

On occasion, the Court has concluded that the pre-emptive force of a statute is so “extraordinary” that it “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Ins. Co. [v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ]. Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. See Franchise Tax Bd. [of State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ] (“If a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law”).

482 U.S. at 393, 107 S.Ct. 2425. The Supreme Court has held that section 301 of the LMRA has complete preemptive force. See Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal, 463 U.S. at 23, 103 S.Ct. 2841. “Section 301 of the LMRA governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement, although it does not contain an explicit preemption provision.” Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1163-64 (10th Cir.2004) (footnote omitted) (citation omitted) (internal quotation marks omitted).

1. General Preemption Principles Under the LMRA.

Section 301 of the LMRA provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or •without regard to the citizenship of the parties.

29 U.S.C. § 185(a). The Tenth Circuit has explained that section 301 “preempts questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, ... whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort.” Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1302 (10th Cir.2000) (citations omitted) (internal quotation marks omitted). Accord Carroll v. City of Albuquerque, 749 F.Supp.2d 1216, 1223-24 (D.N.M.2010) (Browning, J.).

In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), the Supreme Court set forth the standard for determining when section 301 completely preempts a state law claim: “[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim or dismissed as pre-empted by federal labor-contract law.” 471 U.S. at 220, 105 S.Ct. 1904 (citation omitted). In Allis-Chalmers Corp. v. Lueck, the plaintiff brought a state tort claim against his employer for the bad-faith processing of an insurance claim. See 471 U.S. at 206, 105 S.Ct. 1904. The Supreme Court concluded that section 301 completely preempted the cause of action, because “the duties imposed and rights established through the state tort ... derive from the rights and obligations established by the [collective-bargaining] contract,” and resolution of the dispute would therefore “inevitably ... involve contract interpretation.” 471 U.S. at 217-18, 105 S.Ct. 1904. The Supreme Court noted, however, that “it would be inconsistent with congressional intent under [section 301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” 471 U.S. at 212, 105 S.Ct. 1904.

Subsequently, in Caterpillar Inc. v. Williams, the Supreme Court considered whether section 301 permitted employees, who were covered by a collective-bargaining agreement, to bring state-law contract claims for breach of individual contracts between each employee and their employer. After reiterating that section 301 “governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective bargaining agreement,” the Supreme Court concluded that the employees’ state claims for breach of their individual employment contracts were not preempted. 482 U.S. at 394, 107 S.Ct. 2425 (internal quotation marks omitted). The Supreme Court reasoned:

Section 301 says nothing about the content or validity of individual employment contracts. It is true that respondents, bargaining unit members at the time of the plant closing, possessed substantial rights under the collective agreement, and could have brought suit under § 301. As masters of the complaint, however, they chose not to do so.

Moreover, ... respondents’ complaint is not substantially dependent upon interpretation of the collective-bargaining agreement. It does not rely upon the collective agreement indirectly, nor does it address the relationship between the individual contracts and the collective agreement.

482 U.S. at 394-95,107 S.Ct. 2425. Accord Voilas v. Gen. Motors Corp., 170 F.3d 367, 373-74 (3d Cir.1999) (stating that, “under Caterpillar, employees have the option of vindicating their interests by means of either a section 301 action or an action brought under state law, as long as the state-law action as pleaded does not require interpretation of the collective bargaining contract”).

2. Determining Whether Claims Are Inextricably Intertwined with Existing Provisions of a Collective-Bargaining Agreement.

“Preemption arises only when an ‘evaluation of the ... claim is inextricably intertwined with consideration of the terms of the labor contract.’ ” Mowry v. UPS, 415 F.3d 1149, 1152 (10th Cir.2005) (emphasis in original) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. at 213, 105 S.Ct. 1904). “As long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption purposes.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).

In Lingle v. Norge Division of Magic Chef, Inc., the Supreme Court considered whether section 301 completely preempted an employee’s state-law retaliatory discharge claim against her employer. See 486 U.S. at 401, 108 S.Ct. 1877. The Supreme Court’s analysis focused first upon the elements necessary to make a primafacie retaliatory discharge claim under the relevant state law: (i) discharge or a threat of discharge; and (ii) a motive to deter the employee from exercising her rights. See 486 U.S. at 407, 108 S.Ct. 1877. These elements, the Supreme Court noted, constituted “purely factual questions pertain[ing] to the conduct of the employee and the conduct and motivation of the employer,” neither of which “require[d] a court to interpret any term of a collective-bargaining agreement.” 486 U.S. at 407, 108 S.Ct. 1877. Accordingly, the Supreme Court concluded that the employee’s state claim was “independent” of the relevant collective-bargaining agreement for purposes of section 301, because “resolution of the state-law claim did not require construing the collective-bargaining agreement.” 486 U.S. at 407, 108 S.Ct. 1877. Moreover, the Supreme Court found it irrelevant that “the state-law analysis might well involve attention to the same factual considerations as the contractual determination of whether [the employee] was fired for just cause [under her collective-bargaining agreement].” 486 U.S. at 408, 108 S.Ct. 1877. “[S]uch parallelism,” according to the Supreme Court, would not “render[ ] the state-law analysis dependent upon the contractual analysis.” 486 U.S. at 408, 108 S.Ct. 1877. The Supreme Court opined that the reason for this principle was that

[Section] 301 pre-emption merely ensures that federal law will be the basis for interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements. In other words, even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is “independent” of the agreement for § 301 pre-emption purposes.

486 U.S. at 409-10,108 S.Ct. 1877.

In Mowry v. UPS, the Tenth Circuit evaluated each of the plaintiffs claims “to determine whether they [were] ‘inextricably intertwined’ with existing provisions of his collective-bargaining agreement and, as a result, preempted by § 301 of the LMRA.” 415 F.3d at 1152. The plaintiffs first claim — retaliatory discharge in violation of public policy — was based on his allegation that UPS terminated him for refusing to drive when weather and road conditions posed a risk of injury, in violation of statutory regulations stating that commercial drivers must discontinue operation of vehicles in dangerous conditions. See 415 F.3d at 1152-53. The plaintiff argued that, based on the statutory and regulatory provisions, his retaliatory discharge claim was subject to evaluation independent of any interpretation of the collective-bargaining agreement and, as a result, section 301 did not preempt the retaliatory discharge claim. See 415 F.3d at 1153. The defendant countered that the claim was preempted, because: (i) each of the statutory and regulatory provisions on which the plaintiff relied were expressly incorporated into the collective-bargaining agreement, and thus resolution of his retaliation claim necessarily would involve an interpretation of the collective-bargaining agreement; and (ii) each element of the retaliation claim required or was substantially dependent on interpretation of the collective-bargaining agreement, and thus the claim and the collective-bargaining agreement were inextricably intertwined. See 415 F.3d at 1153. The Tenth Circuit was not persuaded by the defendant’s assertion that resolution of the plaintiffs retaliatory discharge claim involved interpretation of the collective-bargaining agreement solely because it expressly incorporated the statutory provisions upon which the plaintiff relied. See 415 F.3d at 1153. “To the contrary, it actually makes the [collective-bargaining agreement] dependent on interpretations of federal and state safety regulations.” 415 F.3d at 1153. The Tenth Circuit concluded that the plaintiffs state-law retaliation claim was not preempted solely because the collective-bargaining agreement incorporated the safety regulations upon which he based his claim. See 415 F.3d at 1153. The Tenth Circuit, nevertheless, found that section 301 of the LMRA preempted the plaintiffs second claim — that the defendant “shorted his [pay]checks and he was discharged,” because he complained about inadequate pay. 415 F.3d at 1157. The Tenth Circuit explained:

In order to resolve the claim, a court would have to determine what work [the plaintiff] performed, when he worked, whether delays occurred and, if so, whether he was entitled to be paid for those delays. The court would also have to determine what wages he should have been paid, what wages he actually was paid, whether he was underpaid, and, if so, the amount of the shortfall. All of these issues are regulated by the [collective-bargaining agreement] and, thus, require consideration of the collective bargaining agreement. Article 17 of the [collective-bargaining agreement] expressly assures full payment for all hours worked and specifically addresses rates of pay, computation of time worked, credit for certain delays that occur through no fault of the employee, and procedures for obtaining full payment of wages. In sum, because [the plaintiffs] wage and compensation claim is substantially dependent on analysis of the wage and compensation provisions of the collective bargaining agreement, that claim is preempted by federal labor law.

415 F.3d at 1157. The Tenth Circuit also found that section 301 preempted the plaintiffs third claim — that the termination constituted intentional infliction of emotional distress. See 415 F.3d at 1157. The Tenth Circuit found that “determining whether [the defendant’s] conduct in terminating [the plaintiff] was ‘outrageous’ requires construction of [the defendant’s] rights and obligations under the [collective-bargaining agreement], as that is the reference point against which [the defendant’s] action must be scrutinized.” 415 F.3d at 1158 (internal citation and quotation omitted).

3. Distinction Between Interpretation of the Collective-Bargaining Agreement and Consultation of the Collective-Bargaining Agreement.

“The Supreme Court has outlined a key distinction between a claim that involves interpretation of [collective-bargaining agreement] terms and one that involves mere reference to those terms, with only the former requiring complete preemption under § 301 of the LMRA.” Felix v. Lucent Techs., Inc., 387 F.3d at 1164. “The mere need to ‘look to’ the collective-bargaining agreement for damages computation is no reason to hold the state-law claim defeated by § 301.” Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (citing Lingle v. Norge Div. of Magic Chef, 486 U.S. at 413 n. 2, 108 S.Ct. 1877). “Especially when the terms [of the collective-bargaining agreement] are undisputed, the court’s limited reference to the collective-bargaining agreement to confirm damages is not sufficient to remove a state law claim on the ground that it is completely preempted by § 301 of the LMRA.” Felix v. Lucent Techs., Inc., 387 F.3d at 1165. See Foy v. Pratt & Whitney Group, 127 F.3d 229, 233 (2d Cir.1997) (emphasizing difference between interpretation of a collective-bargaining agreement and consultation of a collective-bargaining agreement).

ANALYSIS

Because there is not a clear and unmistakable agreement to have an arbitrator decide whether the dispute is arbitrable, the Arbitration Agreement does not provide for an arbitrator to decide whether the case is arbitrable. Because Perez’ claims do not conflict with, or face complete preemption under, section 301 of the LMRA, and are otherwise covered under the parties’ Arbitration Agreement, the Court will compel Perez to arbitrate his claims against the Defendants. Because the parties contractually agreed to an award of costs and attorney’s fees if either party successfully compels arbitration, the Court will award the Defendants their costs and attorney’s fees incurred in bringing this Motion.

I. THE FAA GOVERNS THE PARTIES’ ARBITRATION AGREEMENT.

The Defendants contend that federal arbitration law or, alternatively, Colorado arbitration law, governs the arbitration rules the Court must apply based on the contract provisions in the arbitration agreement. See Motion at 2. Parties can generally agree by contract to have a particular forum’s law govern arbitration, absent some conflict with federal arbitration policy:

In recognition of Congress’ principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre-empts state laws which “require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” But it does not follow that the FAA prevents the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself. Indeed, such a result would be quite inimical to the FAA’s primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms. Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, so too may they specify by contract the rules under which that arbitration will be conducted. Where, as here, the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the Act would otherwise permit it to go forward. By permitting the courts to “rigorously enforce” such agreements according to their terms, we give effect to the contractual rights and expectations of the parties, without doing violence to the policies behind by the FAA.

Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Junior Univ., 489 U.S. at 478, 109 S.Ct. 1248. Here, the parties have agreed by contract that the FAA will apply to arbitration. The Arbitration Agreement provides:

The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”) shall govern the arbitrability of all claims, provided that they are enforceable under the Federal Arbitration Act, as it may be amended from time to time. In the event the FAA does not govern, the Colorado Uniform Arbitration Act shall apply. Additionally, the substantive law of Colorado, only to the extent it is consistent with the terms stated in this Agreement for Arbitration, shall apply to any common law claims.

Arbitration Agreement at 4. Furthermore, as the Tenth Circuit has acknowledged, the FAA generally applies to disputes concerning employment relationships:

Lewis argues that the FAA does not apply to employment relationships or to jobs not related to interstate commerce. But the Supreme Court has determined that the FAA applies to agreements to arbitrate employment disputes; indeed, the Court specifically has done so with respect to a Circuit City arbitration agreement with a sales counselor. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 ... (2001). The Court decided that the reference to “transaction” in Section 2 of the FAA is broad enough to apply to employment contracts, and held that the exceptions to FAA applicability at Section 1 of the Act apply only to employees who work directly in a channel of interstate commerce, such as the sea or railroad. Id. at 118,121 S.Ct. 1302.... The Court so ruled without reference to a test for whether a particular employee’s job was related to interstate commerce, consistent with its prior holding that Section 2’s coverage of transactions “involving commerce” is co-extensive with the broad reach of the U.S. Constitution’s Commerce Clause. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 274, 115 S.Ct. 834, 130 L.Ed.2d 753 ... (1995).

Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1145 n. 6 (10th Cir.2007). The dispute in this case arises out of Perez’ employment relationship with Qwest. Thus, the FAA governs the parties’ arbitration agreement.

II. THE ARBITRATION AGREEMENT DOES NOT CLEARLY AND UNMISTAKABLY PROVIDE THAT AN ARBITRATOR WILL DECIDE ARBITRABILITY.

The Defendants argue that, “[u]nder the terms of the Arbitration Agreement, the agreement controls discrimination claims, common law torts and any dispute between these parties regarding ‘interpretation of this Attachment.’ ” Motion at 5. The Defendants contend that the Arbitration Agreement makes “the question of arbitration itself subject to arbitration,” and asserts that, “once this Court determines that a valid agreement to arbitrate exists, the arbitrator is vested with jurisdiction over any questions regarding the satisfaction of conditions precedent and/or enforceability of the arbitration provision.” Motion at 5.

The Supreme Court has held that “courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so.” Rent-A-Center, West, Inc. v. Jackson, 130 S.Ct. at 2777 (alterations in original). In other words:

In this manner the law treats silence or ambiguity about the que