UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Alan L. Myers,

Plaintiff,

Case No. 14-13316

v.

HONORABLE DENISE PAGE HOOD

Darden Restaurant Group,

Defendant.

_________________________________/

ORDER REGARDING VARIOUS MOTIONS

Before the Court is Plaintiff Alan Myer’s Motion requesting appointment of

counsel [Docket No. 3, filed August 26, 2014], Motion for leave to amend

complaint [Docket No. 12, filed October 7, 2014], and Motion for Summary

Judgment [Docket No. 13, filed October 7, 2014]. Also before the Court is

Defendant Darden Restaurant Group’s Motion to Compel Arbitration and Dismiss

Plaintiff's Complaint [Docket No. 8, filed October 2, 2014].

I. BACKGROUND

Plaintiff alleges in his complaint as follows: While Plaintiff was employed by

the Olive Garden as a chef, he was verbally harassed by four employees. The

employees were Kyle, Richard, Terry, and Drew. Plaintiff identifies as a bisexual

black male. On January 10, 2014, when Plaintiff removed his coat from a rack in

the employee coatroom, he found a pair of women’s underpants on the hook

beneath where his coat was placed. 

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Plaintiff filed a grievance with General Manager Seth Petty after being sexually

harassed three times. On January 14, 2014, Manager Fredrica Stephen contacted

Plaintiff to notify him that he would be permitted to take “stress leave” with pay. 

Petty investigated the women’s underpants incident for two weeks and determined

that the women’s underpants were placed by another employee, but could not

determine which employee. Petty gave Plaintiff the option to return to work or to

remain on “stress leave” without pay until Plaintiff could find another Olive

Garden to transfer to.

Plaintiff did not feel safe working at the same branch. Plaintiff filed a police

report and a grievance with the Olive Garden’s Corporate Office. The Corporate

Office suggested the same as Petty- Plaintiff could return to work or stay on leave

without pay. When Plaintiff filed a complaint with the Equal Employment

Opportunity Commission, his pay stopped and he was told he would be transferred

to the Livonia branch, but the transfer is still pending. 

Plaintiff claims Defendant violated of Title VII of the Civil Rights Act of 1964

by failing to address sexual harassment and race discrimination, creating a hostile

work environment, and retaliating.

II. ANALYSIS

a. Plaintiff’s Motion Requesting Appointment of Counsel

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This matter comes before the Court on Plaintiff’s Request for Appointment of

Counsel, filed August 26, 2014 [Docket No. 3]. 28 U.S.C. § 1915 governs in

forma pauperis proceedings. “[A]ppointment of counsel in a civil case is . . . a

matter within the discretion of the court. It is a privilege and not a right.” Childs v.

Pelligrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (quoting United States v. Madden,

352 F.2d 792, 793 (9th Cir. 1965)). Plaintiff has demonstrated an ability to

communicate with the Court. Therefore, the Court will not appoint counsel at this

stage of the proceedings.

b. Defendant’s Motion to Compel Arbitration and Dismiss Plaintiff's

Complaint

Defendants filed a Motion to Compel Arbitration and Dismiss Plaintiff's

Complaint on October 2, 2014 [Docket No. 8]. The Motion was referred to

Magistrate Judge R. Steven Whalen. Magistrate Judge Whalen ordered the

Plaintiff to respond to the Motion by October 30, 2014. Since then, Plaintiff has

failed to respond and this Court rescinded the Order of Reference to Magistrate

Judge Whalen on October 9, 2014 [Docket No. 15].

Plaintiff argues in the Motion for Summary Judgment that Defendant’s failure

to participate in the EEOC mediation process and Defendant’s silence on the

constitutional violations is an admission of guilt. Defendant is not required to

participate in mediation. The Defendant has not admitted guilt by remaining silent

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on the violations. Instead, Defendant properly filed a Motion to Compel

Arbitration and Dismiss Plaintiff’s Complaint on October 2, 2014, in lieu of an

Answer, which filing was within the allotted time. Fed. R. Civ. P. 12(a)(1)(A)(i). 

After filing a Motion to Dismiss, Defendant is not required to file an answer until

14 days after notice of the court’s action. Fed. R. Civ. P. 12(a)(4)(A). In the

answer, Defendant may admit or deny the allegations brought against it Plaintiff.

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 2 states:

A written provision in . . . a contract evidencing a

transaction involving commerce to settle by arbitration a

controversy thereafter arising out of such contract . . ., 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. Section 1 of the FAA provides the sole exception to the

enforceability of arbitration agreements, stating that Section 2 “shall [not] apply to

contracts of employment of seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce.” See 9 U.S.C. § 1; See, Circuit

City Stores, Inc. v. Adams, 532 U.S. 105 (2001) and Gilmer v. Interstate/Johnson

Lane Corp., 500 U.S. 20 (1991). The Sixth Circuit has reiterated the strong

presumption in favor of arbitration on more than one occasion. See, e.g., Stout v.

J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2001) (stating that the FAA promotes a

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“strong federal policy in favor of arbitration” and “was designed to override

judicial reluctance to enforce arbitration agreements, to relieve court congestion,

and to provide parties with speedier and less costly alternative litigation”); Willis v.

Dean Witter Reynolds Inc., 948 F.2d 305, 311 (6th Cir. 1991) (“Congress passed

the FAA to ensure that courts honor the contractual agreement of parties who

choose to resolve their disputes by arbitration.”). “Courts are to examine the

language of the [Arbitration Agreement] in light of the strong federal policy in

favor of arbitration.” Stout, 228 F.3d at 714. “[A]ny ambiguities in the

[Arbitration Agreement] or doubts as to the parties’ intentions should be resolved

in favor of arbitration.” Id.

 Defendant’s Dispute Resolution Process (hereinafter “DRP”) is the means

through which an employee may seek redress for an employment related claim. 

The DRP handbook states in pertinent part:

The DRP, instead of court actions, is the sole means for

resolving covered employment related disputes. Disputes

eligible for DRP must be resolved only through DRP,

with the final step being binding arbitration heard by an

arbitrator. This means DRP-eligible disputes will not be

resolved by a judge or jury. Neither the Company nor the

Employee may bring DRP eligible disputes to court. The

Company and the Employee waive all rights to bring a

civil court action for these disputes...

Examples of legal claims covered by DRP include but are

not limited to: claims that arise under the Civil Rights

Act of 1964, Americans With Disabilities Act, Fair Labor

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Standards Act, Age Discrimination in Employment Act,

and Family Medical Leave Act.

Def.’s Mot. to Compel Arbitration and Dismiss Pl.’s Comp., Exhibit A-1, Dispute

Resolution Process handbook. The only exceptions to the arbitration requirement

are disputes “that do not state a legal claim,” that cannot be subjected to mandatory

arbitration under federal law, or “are legally required under controlling federal law

to be arbitrated or resolved under a different process.” Id. 

On November 18, 2013, Plaintiff signed the DRP acknowledgment form

agreeing to submit any eligible disputes to the DRP. Id. at Exhibit A-2. In the

Sixth Circuit, to compel arbitration, “first, [the district court] must determine

whether the parties agreed to arbitrate; second, it must determine the scope of that

agreement; third, if federal statutory claims are asserted, it must consider whether

Congress intended those claims to be nonarbitrable; and fourth, if the court

concludes that some, but not all, of the claims in the action are subject

to arbitration, it must determine whether to stay the remainder of the proceedings

pending arbitration.” Fazio v. Lehman Bros., Inc., 340 F.3d 386, 392 (6th

Cir.2003) (citation omitted).

Under Michigan law, the elements of a valid contract are (1) parties

competent to enter into a contract, (2) a proper subject matter; (3) legal

consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Thomas

v. Leja, 187 Mich.App. 418, 422, 468 N.W.2d 58, 60 (1991). The parties entered

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into a contract and the arbitration of employment matters for a restaurant employee

is proper subject matter. The legal consideration was the exchange of wages for

Plaintiff’s work. The parties mutually agreed by signing and are mutually

obligated to arbitrate claims such as the one before us.

The scope of the agreement is to arbitrate all claims that are permitted to be

arbitrated under federal law. There is nothing to indicate that Congress intended

employment disputes brought under Title VII of the Civil Rights Act of 1964 to be

nonarbitrable. The Title VII claims are the only claims brought by Plaintiff and

therefore, the Court compels arbitration.

Since the parties are compelled to arbitration, Plaintiff’s Motion for Leave to

Amend Complaint [Docket No. 12, filed October 7, 2014] and Motion for

Summary Judgment [Docket No. 13, filed October 7, 2014] are MOOT.

III. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendant Darden Restaurant Group’s Motion to

Compel Arbitration [Docket No. 8, filed October 2, 2014] is GRANTED, and

Defendant’s Motion to Dismiss [Docket No. 8, filed October 2, 2014] is

DENIED. 

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IT IS FURTHER ORDERED that this action is STAYED until the

conclusion of any arbitration proceedings and this action is CLOSED on the

Court’s docket for statistical purposes. 

IT IS FURTHER ORDERED that the Court shall retain jurisdiction in

accordance with the Federal Arbitration Act, 9 U.S.C. §§ 1-16, for the purpose of

confirming, vacating or correcting any arbitration award. Any party may move to

do so at the conclusion of arbitration proceedings.

IT IS FURTHER ORDER Plaintiff’s Motion for Leave to Amend

Complaint [Docket No. 12, filed October 7, 2014] is deemed MOOT.

IT IS FURTHER ORDER Plaintiff’s Motion for Summary Judgment

[Docket No. 13, filed October 7, 2014] is deemed MOOT.

IT IS FURTHER ORDERED Plaintiff’s Motion requesting appointment of

counsel [Docket No. 3, filed August 26, 2014] is DENIED without prejudice.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: February 13, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of

record on February 13, 2015, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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