United States District Court, D. South Carolina, Charleston Division
ANDREW GORDON, TAVIS MCNEIL, DONALD WRIGHTON, NICHOLAS COLE, JACOB GRISSON, AND DAWN DEWEY, on behalf of themselves and others similarly situated, Plaintiffs,
TBC RETAIL GROUP, INC. d/b/a TIRE KINGDOM, Defendant.
C. NORTON, UNITED STATES DISTRICT JUDGE
following matters are before the court on Andrew Gordon,
Tavis McNeil, Donald Wrighton, Jacob Grissom, Dawn Dewey, and
Nicholas Cole's (collectively, “plaintiffs”)
motion for reconsideration, ECF No. 113, of the court's
prior order granting in part and denying in part TBC Retail
Group, Inc.'s (“defendant”) motions to compel
arbitration and motion for summary judgment, ECF No. 112. For
the reasons set forth below, the court denies the motion.
August 20, 2014, plaintiffs filed the instant action on
behalf of themselves and “all other similarly situated
employees.” Compl. at ¶ 2. Plaintiffs allege that
defendant violated the minimum wage and overtime provisions
of the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. (“FLSA”), by utilizing a compensation
plan that did not provide plaintiffs one and one-half times
their regular rate of pay when they worked more than forty
hours in a workweek. Id. at ¶ 23.
was employed by defendant as a mechanic at the Tire Kingdom
located at 7201-900 Two Notch Road in Columbia, South
Carolina, from approximately May 2013 until April 2014.
Id. ¶ 1. Between February 2013 and October
2013, defendant drafted and developed a Mutual Agreement to
Arbitrate Claims and Waiver of Class/Collective Actions (the
“Agreement”). ECF No. 32-2, Filoon Dec.
¶¶ 2-8; ECF No. 81-2, Third Filoon Dec.
¶¶ 2-4. Defendant finalized the Agreement in
October 2013, and began requiring all new hires to sign the
Agreement as of October or November 2013. Filoon Dec.
¶¶ 3, 4. Between October 2013 and March 2014,
defendant made the Agreement available for “electronic
signature” through the employee portal-a password
protected, computer-based document system. Id.
¶ 5; see also ECF No. 39-1, Second Filoon Dec.
¶ 9 (describing access and navigation of the employee
portal). In March 2014, defendant circulated a company-wide
communication notifying its employees that the Agreement and
a related memorandum (the “Memorandum”) were
available via the employee portal. Filoon Dec. ¶¶
7, 8; ECF No. 33-4, Memorandum 2.
Memorandum explained that the portal now allowed employees to
“review and acknowledge [defendant's] policies,
processes, and documents, ” and that this feature was
being implemented with two important documents, one being the
Agreement. Id. The Memorandum further explained that
the Agreement was “a contract” intended “to
allow any [employee] to bring any legal claim(s) against
[defendant] in a quicker, less formal, and typically less
expensive forum than the traditional filing of a lawsuit in
court.” Id. All employees hired before October
15, 2013, were “required to acknowledge” the
Agreement no later than Friday March 21, 2014. Id.
Agreement provides that, except in certain circumstances not
[A]ny and all disputes, claims, complaints or controversies
(“Claims”) between you and TBC Corporation and/or
any of its parents, subsidiaries, affiliates, agents,
officers, directors, employees and/or any of its benefit
plans, benefit plan fiduciaries, sponsors or administrators
(collectively and individually the “Company”),
that in any way arise out of or relate to your employment,
the terms and conditions of your employment, your application
for employment and/or the termination of your employment will
be resolved by binding arbitration and NOT by a court or
jury. As such, the Company and you agree to forever waive and
relinquish their right to bring claims against the other in a
court of law.
ECF No. 33-3, Arbitration Agreement. The final page of the
Agreement informs the reader as follows:
YOUR SIGNATURE BELOW ATTESTS TO THE FACT THAT:
1. YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND
TO ALL OF THE ABOVE TERMS.
2. YOU ARE SIGNING THIS AGREEMENT VOLUNTARILY.
3. YOU ARE NOT RELYING ON ANY PROMISES OR REPRESENTATIONS BY
THE COMPANY EXCEPT THOSE CONTAINED IN THIS AGREEMENT.
4. YOU UNDERSTAND THAT BY SIGNING THIS AGREEMENT, YOU ARE
GIVING UP THE RIGHT TO HAVE CLAIMS DECIDED ...