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Filing # 79266190 E-Filed 10/12/2018 01:34:23 PM
IN THE CIRCUIT COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT, IN
AND FOR WASHINGTON COUNTY,
FLORIDA
CARRIE LYNN MCSWAIN,
Plaintiff, Case No. 18-CA-66
v.
COMMUNITY SOUTH CREDIT UNION,
Defendant.
/
DEFENDANT’S MOTION TO STAY AND COMPEL ARBITRATION
Defendant, COMMUNITY SOUTH CREDIT UNION (“CSCU” or “Defendant’), by
and through its undersigned counsel and pursuant to the Federal Arbitration Act
(‘FAA’), 9 U.S.C. § 1 et seg. and the Revised Florida Arbitration Code (“RFAC’),
Section 682.03, Florida Statutes, and Rule 1.700(a) of the Florida Rules of Civil
Procedure, moves this Court for an Order staying the instant action and compelling
arbitration of this dispute. As grounds for this Motion, Defendant states:
1. On or about May 25, 2018, Plaintiff, CARRIE LYNN MCSWAIN
(‘Plaintiff’), filed a Complaint alleging violations of Chapter 760, Florida Statutes, the
Florida Civil Rights Act (“FCRA”), and Section 448.101, Florida Statutes, the Florida
Private Whistleblower Act, alleging Defendant discriminated against her on the basis of
her gender in violation of the FCRA and retaliated against her for engaging in activity
protected under the FCRA and the Florida Private Whistleblower Act. Each claim
concerns, and arises out of, Plaintiff's former employment with Defendant.
Electronically Filed Washington Case # 18000066CAAxMx 10/12/2018 12:34:23 PM2. Plaintiff formerly worked for CSCU, as a teller. On February 5, 2016,
Plaintiff signed a “Dispute Resolution Policy” (“Policy”), under which Plaintiff agreed to
submit “all disputes or claims... relating to or arising out of matters pertaining to [her]
employment” with CSCU to binding arbitration. Specifically, the Policy provides, in
pertinent part, that:
If not resolved by mediation, the dispute will be resolved by binding
arbitration ... by an impartial arbitrator selected in compliance with the
voluntary arbitration rules of the American Arbitration Association. The
arbitrator shall have the authority to award all statutory remedies.
See Policy (attached as Exhibit 1) at 3.
3. The Policy covers a broad range of potential causes of action related to
employment including those in the instant lawsuit. The Policy provides in this regard:
The terms of this policy apply to all disputes or claims, including statutory
or common law claims, relating to or arising out of matters pertaining to
employment, including unlawful employment, discrimination,
harassment and/or retaliation prohibited under state and federal civil
rights laws. The policy also applies to retaliation claims under state
workers’ compensation and whistle-blower laws, failure to hire claims,
and claims of retaliation, wrongful termination, and contract,
compensation, benefits claims, and wage and hour disputes.
See Policy (attached as Exhibit 1) at ]4 (emphasis added).
4. As the Policy makes clear, arbitration under the Policy is the exclusive
procedure for resolving disputes covered under it that are not resolved through the
mediation procedure in the Policy. See Policy (attached as Exhibit 1) at 95.
5. As evident from the plain language of the Policy, claims of alleged
retaliation in violation of state whistleblower and anti-discrimination laws are subject to
binding arbitration. So too are claims of harassment, employment discrimination, anddisparate treatment on the basis of gender in violation of state anti-discrimination law.
This encompasses the claims Plaintiff seeks to vindicate in the instant lawsuit.
6. Under both federal statutory provisions and Florida's Revised Arbitration
Code, there are three elements for courts to consider in ruling on a motion to compel
arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists;
(2) whether an arbitrable issue exists; and (3) whether the right to arbitration was
waived. Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999); Duty Free World
Inc. v. Miami Perfume Junction, Inc., No. 3D18-478, 2018 WL 3747725, at *3 (Fla. 3rd
DCA Aug. 8, 2018).
7. Here, there is a valid agreement to arbitrate, executed by the Plaintiff, who
is bringing claims in the instant lawsuit that are arbitrable and clearly covered under the
agreement to arbitrate, and Defendant has not yet answered the Complaint nor taken
any affirmative action which would waive the right to obtain the relief requested.
8. By executing the Policy, and agreeing to work pursuant to and under
these conditions and deriving benefits therefrom, Plaintiff agreed to forego a judicial
forum for the resolution of the claims she has lodged in this Court, in favor of binding
arbitration before the American Arbitration Association. See Policy (attached as Exhibit
1) at 6.
9. Defendant is expressly referenced in the Policy, which contemplates that
suits like this one lodged against it are subject to binding arbitration, and the Policy
evinces an intention to directly and primarily benefit Defendant in requiring Plaintiff to
arbitrate disputes with respect to her employment with Defendant. Accordingly,
Defendant has the right to compel arbitration in accordance with the terms of the Policy.WHEREFORE, Defendant respectfully requests this Court grant the instant
motion and enter an Order staying this action and compelling the parties to arbitration.
Dated this 12th day of October 2018.
Respectfully submitted,
/siJeffrey D. Slanker
JEFFREY D. SLANKER
FL Bar No.: 0100391
jslanker@sniffenlaw.com
MICHAEL P. SPELLMAN
FL Bar No.: 0937975
mspellman@sniffenlaw.com
SNIFFEN & SPELLMAN, P.A.
123 North Monroe Street
Tallahassee, Florida 32301
Telephone: (850) 205-1996
Facsimile: (850) 205-3004
Counsel for Defendant
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by Florida Courts E-Filing portal and electronic mail to all counsel of record
this 12th day of October, 2018.
/siJeffrey D. Slanker
JEFFREY D. SLANKERLandrum! vofessional
Dispute Resolution Policy
(Updated March 2011)
Landrum Professional and your jobsite employer hope that all employment-related disputes, claims and
complaints can be resolved through Landrum Professional's Open Door Policy. This gives you, your
jobsite employer, and Landrum Professional a fair chance to resolve any problems promptly and
efficiently. However, if a dispute, claim, or complaint cannot be resolved Informally through the Open
Door Policy, Landrum Professional's Dispute Resolution Policy must be followed,
The policy requires that any employment-related dispute or claim involving either your jobsite employer or
Landrum Professional not resolved through the Open Door procedure, including but nat limited to claims
related to harassment, discrimination and/or retaliation, must first utilize voluntary non-binding mediation
through a mutually agreeable mediator. Each party has the right to be represented by counsel of their
choosing at the mediation. Unless otherwise mutually agreed, all mediation shall be held in Pensacola,
Florida.
If not resolved by mediation, the dispute will be resolved by binding arbitration in Escambia County,
Florida (or other county mutually agreed to) by an impartial arbitrator selected in compliance with the
voluntary arbitration rules of the American Arbitration Association. The arbitrator shall have the authority
to award all statutory remedies.
The terms of this policy apply to all disputes or claims, including statutory or common law claims, relating
to or arising out of matters pertaining to employment, including unlawful employment, discrimination,
harassment and/or retaliation prohibited under state and federal civil rights laws. The policy also applies
to retaliation claims under state workers' compensation and whistle-blower laws, failure to hire claims,
and claims of retaliation, wrongful termination, and contract, compensation, benefits claims, and wage
and hour disputes.
This policy is to be interpreted in accordance with the substantive law of the State of Florida and does not
alter the at-will nature of an employee's employment. These are the exclusive procedures for resolving
such disputes, other than as required by law.
Ihave received and read the above policy regarding resolution of employee disputes. | agree to
abide by the terms of the above policy and understand that If | have any questions or need to
make a complaint or report pursuant to this policy, | must contact Landrum Professional's Human
Resources Department at 850-476-5100 or 800-888-0472.
Employee Name (Print): Carrie McSwain
Employee Signature: Cand Wied main
Client Name: Community South Credit Union
Date: 2/5/2016
HRD-30 (REV 03/11)
Exhibit]
Lo
Preview
Filing # 79266190 E-Filed 10/12/2018 01:34:23 PM IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT, IN AND FOR WASHINGTON COUNTY, FLORIDA CARRIE LYNN MCSWAIN, Plaintiff, Case No. 18-CA-66 v. COMMUNITY SOUTH CREDIT UNION, Defendant. / DEFENDANT’S MOTION TO STAY AND COMPEL ARBITRATION Defendant, COMMUNITY SOUTH CREDIT UNION (“CSCU” or “Defendant’), by and through its undersigned counsel and pursuant to the Federal Arbitration Act (‘FAA’), 9 U.S.C. § 1 et seg. and the Revised Florida Arbitration Code (“RFAC’), Section 682.03, Florida Statutes, and Rule 1.700(a) of the Florida Rules of Civil Procedure, moves this Court for an Order staying the instant action and compelling arbitration of this dispute. As grounds for this Motion, Defendant states: 1. On or about May 25, 2018, Plaintiff, CARRIE LYNN MCSWAIN (‘Plaintiff’), filed a Complaint alleging violations of Chapter 760, Florida Statutes, the Florida Civil Rights Act (“FCRA”), and Section 448.101, Florida Statutes, the Florida Private Whistleblower Act, alleging Defendant discriminated against her on the basis of her gender in violation of the FCRA and retaliated against her for engaging in activity protected under the FCRA and the Florida Private Whistleblower Act. Each claim concerns, and arises out of, Plaintiff's former employment with Defendant. Electronically Filed Washington Case # 18000066CAAxMx 10/12/2018 12:34:23 PM2. Plaintiff formerly worked for CSCU, as a teller. On February 5, 2016, Plaintiff signed a “Dispute Resolution Policy” (“Policy”), under which Plaintiff agreed to submit “all disputes or claims... relating to or arising out of matters pertaining to [her] employment” with CSCU to binding arbitration. Specifically, the Policy provides, in pertinent part, that: If not resolved by mediation, the dispute will be resolved by binding arbitration ... by an impartial arbitrator selected in compliance with the voluntary arbitration rules of the American Arbitration Association. The arbitrator shall have the authority to award all statutory remedies. See Policy (attached as Exhibit 1) at 3. 3. The Policy covers a broad range of potential causes of action related to employment including those in the instant lawsuit. The Policy provides in this regard: The terms of this policy apply to all disputes or claims, including statutory or common law claims, relating to or arising out of matters pertaining to employment, including unlawful employment, discrimination, harassment and/or retaliation prohibited under state and federal civil rights laws. The policy also applies to retaliation claims under state workers’ compensation and whistle-blower laws, failure to hire claims, and claims of retaliation, wrongful termination, and contract, compensation, benefits claims, and wage and hour disputes. See Policy (attached as Exhibit 1) at ]4 (emphasis added). 4. As the Policy makes clear, arbitration under the Policy is the exclusive procedure for resolving disputes covered under it that are not resolved through the mediation procedure in the Policy. See Policy (attached as Exhibit 1) at 95. 5. As evident from the plain language of the Policy, claims of alleged retaliation in violation of state whistleblower and anti-discrimination laws are subject to binding arbitration. So too are claims of harassment, employment discrimination, anddisparate treatment on the basis of gender in violation of state anti-discrimination law. This encompasses the claims Plaintiff seeks to vindicate in the instant lawsuit. 6. Under both federal statutory provisions and Florida's Revised Arbitration Code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999); Duty Free World Inc. v. Miami Perfume Junction, Inc., No. 3D18-478, 2018 WL 3747725, at *3 (Fla. 3rd DCA Aug. 8, 2018). 7. Here, there is a valid agreement to arbitrate, executed by the Plaintiff, who is bringing claims in the instant lawsuit that are arbitrable and clearly covered under the agreement to arbitrate, and Defendant has not yet answered the Complaint nor taken any affirmative action which would waive the right to obtain the relief requested. 8. By executing the Policy, and agreeing to work pursuant to and under these conditions and deriving benefits therefrom, Plaintiff agreed to forego a judicial forum for the resolution of the claims she has lodged in this Court, in favor of binding arbitration before the American Arbitration Association. See Policy (attached as Exhibit 1) at 6. 9. Defendant is expressly referenced in the Policy, which contemplates that suits like this one lodged against it are subject to binding arbitration, and the Policy evinces an intention to directly and primarily benefit Defendant in requiring Plaintiff to arbitrate disputes with respect to her employment with Defendant. Accordingly, Defendant has the right to compel arbitration in accordance with the terms of the Policy.WHEREFORE, Defendant respectfully requests this Court grant the instant motion and enter an Order staying this action and compelling the parties to arbitration. Dated this 12th day of October 2018. Respectfully submitted, /siJeffrey D. Slanker JEFFREY D. SLANKER FL Bar No.: 0100391 jslanker@sniffenlaw.com MICHAEL P. SPELLMAN FL Bar No.: 0937975 mspellman@sniffenlaw.com SNIFFEN & SPELLMAN, P.A. 123 North Monroe Street Tallahassee, Florida 32301 Telephone: (850) 205-1996 Facsimile: (850) 205-3004 Counsel for Defendant CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Florida Courts E-Filing portal and electronic mail to all counsel of record this 12th day of October, 2018. /siJeffrey D. Slanker JEFFREY D. SLANKERLandrum! vofessional Dispute Resolution Policy (Updated March 2011) Landrum Professional and your jobsite employer hope that all employment-related disputes, claims and complaints can be resolved through Landrum Professional's Open Door Policy. This gives you, your jobsite employer, and Landrum Professional a fair chance to resolve any problems promptly and efficiently. However, if a dispute, claim, or complaint cannot be resolved Informally through the Open Door Policy, Landrum Professional's Dispute Resolution Policy must be followed, The policy requires that any employment-related dispute or claim involving either your jobsite employer or Landrum Professional not resolved through the Open Door procedure, including but nat limited to claims related to harassment, discrimination and/or retaliation, must first utilize voluntary non-binding mediation through a mutually agreeable mediator. Each party has the right to be represented by counsel of their choosing at the mediation. Unless otherwise mutually agreed, all mediation shall be held in Pensacola, Florida. If not resolved by mediation, the dispute will be resolved by binding arbitration in Escambia County, Florida (or other county mutually agreed to) by an impartial arbitrator selected in compliance with the voluntary arbitration rules of the American Arbitration Association. The arbitrator shall have the authority to award all statutory remedies. The terms of this policy apply to all disputes or claims, including statutory or common law claims, relating to or arising out of matters pertaining to employment, including unlawful employment, discrimination, harassment and/or retaliation prohibited under state and federal civil rights laws. The policy also applies to retaliation claims under state workers' compensation and whistle-blower laws, failure to hire claims, and claims of retaliation, wrongful termination, and contract, compensation, benefits claims, and wage and hour disputes. This policy is to be interpreted in accordance with the substantive law of the State of Florida and does not alter the at-will nature of an employee's employment. These are the exclusive procedures for resolving such disputes, other than as required by law. Ihave received and read the above policy regarding resolution of employee disputes. | agree to abide by the terms of the above policy and understand that If | have any questions or need to make a complaint or report pursuant to this policy, | must contact Landrum Professional's Human Resources Department at 850-476-5100 or 800-888-0472. Employee Name (Print): Carrie McSwain Employee Signature: Cand Wied main Client Name: Community South Credit Union Date: 2/5/2016 HRD-30 (REV 03/11) Exhibit] Lo