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Gordon v. TBC Retail Group, Inc.

United States District Court, D. South Carolina, Charleston Division

July 19, 2018

ANDREW GORDON, TAVIS MCNEIL, DONALD WRIGHTON, NICHOLAS COLE, JACOB GRISSON, AND DAWN DEWEY, on behalf of themselves and others similarly situated, Plaintiffs,
v.
TBC RETAIL GROUP, INC. d/b/a TIRE KINGDOM, Defendant.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

         The 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.

         I. BACKGROUND

         On 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.

         Cole 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.[1] 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.

         The 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.

         The Agreement provides that, except in certain circumstances not applicable here,

[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 ...

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