[Cite as Thomas v. Hyundai, 2020-Ohio-3030.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

SHANNON THOMAS, : 

 Plaintiff-Appellant, : 

 No. 108212 

 v. : 

 

HYUNDAI OF BEDFORD, ET AL.: 

 

 Defendants-Appellees. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 21, 2020 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-18-903250 

 

Appearances: 

Friedman & Associates, and Avery Friedman; Klebanow 

Law, L.L.C., and Jared S. Klebanow, for appellant. 

Zashin & Rich Co., L.P.A., Stephen S. Zashin, and David P. 

Frantz, for appellees. 

ON RECONSIDERATION1

 1 The original decision in this appeal, Thomas v. Hyundai of Bedford, 8th Dist. 

Cuyahoga No. 108212, 2020-Ohio-185, released on January 23, 2020, is hereby vacated. 

This opinion, issued upon reconsideration, is the court’s journalized decision in this 

appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01. 
KATHLEEN ANN KEOUGH, J.: 

Plaintiff-appellant, Shannon Thomas (“Thomas”), appeals from the 

trial court’s judgment that granted the motion of defendants-appellees, Migdal 1, 

L.L.C., d.b.a. Hyundai of Bedford, Joe Delguidice, and Kyle Pisani (“appellees”), to 

stay proceedings pending arbitration. We affirm. 

I. Background 

On December 15, 2017, Thomas signed an arbitration agreement with 

his then-employer, Migdal 1, L.L.C. The arbitration agreement provided that 

[a]s the exclusive means of initiating adversarial proceedings to resolve 

any Covered Dispute, and pursuant to the Federal Arbitration Act (9 

U.S.C. §1, either Migdal or Employee may demand that the dispute be 

resolved by final and binding arbitration using the procedures 

described in this Agreement, and each party hereby consents to all 

Covered Disputes being so resolved. 

The agreement defined “Covered Disputes” as 

any actual or alleged claim or liability, regardless of its nature, that 

Migdal or its owners, managers, members, officers, employees, agents, 

or insurers may wish to bring against Employee, or that Employee may 

wish to bring against Migdal or any of Migdal’s owners, managers, 

members, officers, employees, agents, or insurers. 

The agreement excluded from consideration as a “Covered Dispute” any claim by an 

employee for unemployment compensation or workers’ compensation benefits, any 

claim relating to a violation of the National Labor Relations Act, or any other claim 

that under law cannot be the subject of a pre-dispute arbitration agreement. 

The agreement provided that in any arbitration conducted pursuant 

to the agreement, either Migdal or the employee “may seek and recover any amount 
or type of damages or other legal or equitable relief that could have been recovered 

had the action been brought in a court.” The agreement further provided that the 

arbitrator’s award would be “final and binding forever” on both the employee and 

Migdal, and neither Migdal nor the employee could appeal the arbitrator’s decision. 

In September 2018, Thomas filed a two-count complaint against 

Migdal, Pisani, and Delguidice. Thomas’s complaint asserted claims for race 

discrimination (Count 1) and retaliation (Count 2) under Ohio Revised Code 

Chapter 4112. Count 1 alleged that Thomas was discriminated against on the basis 

of his race while he was employed by Migdal,2 and Count 2 alleged that Migdal, 

Pisani, and Delguidice retaliated against Thomas by demoting him and not paying 

him in the same manner as white employees when he complained about the 

discrimination. 

Appellees answered the complaint and then filed a motion to stay 

proceedings pending arbitration and for costs and sanctions. Thomas filed a brief 

opposing the motion. The trial court subsequently granted the motion to stay 

proceedings pending arbitration and denied the motion for costs and sanctions. 

This appeal followed. 

 2 Thomas, an African-American male, alleged in his complaint that employees 

regularly used the “N-word” around him; one employee used a water balloon to act as if 

he were spraying urine on Thomas; Thomas was paid half the pay of white managers; 

Thomas’s pay was reduced even though white managers’ pay remained the same; white 

managers were allowed to take a car from the lot home at night but Thomas was not 

afforded the same privilege; white employees were paid a revenue bonus but Thomas was 

not; management took no action when an employee told Thomas “I don’t fight n---ers, I 

kill them”; and management did not discipline the same employee when he brought a gun 

to work and was overheard threatening to shoot Thomas. 
II. Law and Analysis 

In his sole assignment of error, Thomas contends that the trial court 

erred in granting appellees’ motion to stay proceedings pending arbitration. He 

asserts that he cannot be compelled to arbitrate his discrimination and retaliation 

claims because Ohio’s public policy commitment to challenging racial bias in the 

workplace, as codified in R.C. Chapter 4112, “is so strong * * * that it permits direct 

access to the courts without any administrative prerequisite.” (Appellant’s Brief, p. 

10). He further contends that the arbitration agreement cannot be enforced because 

it is unconscionable. 

This court reviews a trial court’s decision to grant a motion to stay 

litigation pending arbitration for an abuse of discretion. Avery v. Acad. Invest., 

L.L.C., 8th Dist. Cuyahoga No. 107550, 2019-Ohio-3509, ¶ 9. 

Ohio courts recognize a presumption favoring arbitration that arises 

when the claim in dispute falls within the scope of the arbitration provision. Wallace 

v. Ganley Auto Group, 8th Dist. Cuyahoga No. 95081, 2011-Ohio-2909, ¶ 13. 

Indeed, Ohio law requires a stay of proceedings when an arbitrable dispute has been 

improperly brought before a court. See, e.g., McGuffey v. LensCrafters, Inc., 141 

Ohio App.3d 44, 50, 749 N.E.2d 825 (12th Dist.2001) (noting that a trial court 

“shall” stay proceedings pending arbitration once it is satisfied that an issue is 

arbitrable); Sasaki v. McKinnon, 124 Ohio App.3d 613, 618, 707 N.E.2d 9 (8th 

Dist.1997) (“The Ohio Arbitration Act, which strongly favors arbitration, compels 

the court to review the arbitration clause at issue and, if the court is satisfied that 
the dispute or claim is covered by the arbitration clause, give effect to the clause and 

stay the proceedings pursuant to R.C. 2711.02.”). In light of this strong presumption 

favoring arbitration, any doubts regarding arbitration should be resolved in its favor. 

Ignazio v. Clear Channel Broadcasting, Inc., 113 Ohio St.3d 276, 2007-Ohio-1947, 

865 N.E.2d 18, ¶ 18. 

Despite this strong policy favoring arbitration, Thomas contends that 

he should not be compelled to arbitrate his race discrimination and retaliation 

claims. As support for his argument, Thomas first directs us to Justice Ruth Bader 

Ginsburg’s dissent in Epic Sys. Corp. v. Lewis, 584 U.S. __, 138 S.Ct. 1612, 200 

L.Ed.2d 889 (2018), wherein Justice Ginsburg stated: 

It would be grossly exorbitant to read the FAA [Federal Arbitration Act] 

to devastate Title VII of the Civil Rights Act of 1964 * * * and other laws 

enacted to eliminate, root and branch, class-based employment 

discrimination * * *. With fidelity to the Legislature’s will, the Court 

could hardly hold otherwise. 

Id. at 1648. Thomas suggests that this statement by Justice Ginsburg stands for the 

proposition that after Epic Sys., individual, non-class action claims brought 

pursuant to R.C. Chapter 4112 are not arbitrable. 

We fail to see any connection between Epic Systems and this case. 

The issue decided in Epic Systems was whether the Federal Arbitration Act permits 

employers to include class-action waivers in arbitration agreements with their 

employees, even though the National Labor Relations Act allows employees to 

engage in “concerted activities” for their “mutual aid and protection.” Id. at 1633. 

The majority held that class-action waivers in arbitration agreements are 
enforceable; Justice Ginsburg would have answered the question with a “resounding 

no.” Id. As aptly stated in Thomas’s brief, “Epic Systems had nothing to do with 

individual, non-class action cases like Shannon Thomas’s case.” (Appellant’s Brief, 

p. 9). 

The excerpt Thomas quotes from Justice Ginsburg’s dissent does not 

support his argument that after Epic Systems, non-class action discrimination 

claims are immune from arbitration. To the contrary, reading the paragraph as a 

whole, it explains Justice Ginsburg’s belief that the majority’s holding in Epic 

Systems does not threaten an individual litigant’s ability to pursue disparate impact 

or pattern-or-practice claims, even though such claims may require proof on a 

group-wide basis. 

We also find no merit to Thomas’s assertion that this is a case of “first 

impression” after Epic Systems involving non-class action claims for workplace 

discrimination subject to an arbitration agreement. In Jones v. Carrols, L.L.C., 9th 

Dist. Summit No. 28918, 2019-Ohio-211, Jones argued that the arbitration 

agreement he had signed requiring him to arbitrate claims against his employer was 

against public policy because it contained a class-action waiver. The Ninth District 

disagreed, noting that in Epic Systems, the Supreme Court held that arbitration 

agreements requiring individualized arbitration instead of class or collective 

proceedings did not violate the National Labor Relations Act, and that the Federal 

Arbitration Act required enforcement of the agreements. Id. at ¶ 27, citing Epic 

Systems, __ U.S. __, 138 S.Ct. at 1616, 200 L.Ed.2d 889. Notably, as relevant to 
Thomas’s argument, the Ninth District also rejected Jones’s other arguments 

regarding the enforceability of the arbitration agreement, and held, even after Epic 

Systems, that Jones’s individual, non-class action claims for, among other things, 

race and age discrimination, were subject to arbitration under the arbitration 

agreement. Id. at ¶ 47. 

Thomas next contends the trial court erred in staying proceedings 

pending arbitration because there is “Ohio precedent which affords Ohio workers 

the choice to go to arbitration or to the court of common pleas under O.R.C. Section 

4112.” (Appellant’s Brief, p. 9.) But Thomas’s citations to Thomas v. GE Co., 131 

Ohio App.3d 825, 723 N.E.2d 1139 (1st Dist.1999), and Luginbihl v. Milcor L.P., 3d 

Dist. Allen No. 1-01-162, 2002-Ohio-2188, as support for this argument are not on 

point. Both Thomas and Luginbihl stand for the proposition that a union cannot, in 

a collective bargaining agreement, prospectively waive a member’s right to select a 

judicial forum for the resolution of the member’s statutory claims, even if the 

collective bargaining agreement contains a grievance procedure that culminates in 

binding arbitration. Thomas at 831; Luginbihl at ¶ 28. That is so because statutory 

discrimination rights are distinct from contractual collective bargaining rights and 

are independent of the arbitration process. Haynes v. Ohio Turnpike Comm., 177 

Ohio App.3d 1, 2008-Ohio-133, 893 N.E.2d 850, ¶ 17-18 (8th Dist.); Luginbihl at 

¶ 29. Thus, the employee is not required to proceed to arbitration under the 

collective bargaining agreement and may proceed in state court with his or her 

discrimination and retaliation claims. Thomas at 831. 
This case does not involve a collective bargaining agreement, 

however, or a union acting on Thomas’s behalf. Instead, it involves an arbitration 

agreement that Thomas signed on his own behalf in which he agreed to submit his 

claims to arbitration. Despite Thomas’s failure to so acknowledge, there are 

numerous cases from Ohio courts holding that an employee’s race discrimination 

and retaliation claims brought pursuant to R.C. Chapter 4112 are arbitrable where 

the employee has signed an arbitration agreement. See, e.g., Doe v. Contemporary 

Servs. Corp., 8th Dist. Cuyahoga No. 107229, 2019-Ohio-635; Jones, 9th Dist. 

Summit No. 28918, 2019-Ohio-211; Wolfe v. J.C. Penney Corp., 10th Dist. Franklin 

No. 18AP-70, 2018-Ohio-3881; Hay v. Summit Funding, Inc., 4th Dist. Ross No. 

16CA3577, 2017-Ohio-8261; Rivera v. Rent A Ctr., Inc., 8th Dist. Cuyahoga No. 

101959, 2015-Ohio-3765; Melia v. OfficeMax N. Am., Inc., 8th Dist. Cuyahoga No. 

87249, 2006-Ohio-4765; Butcher v. Bally Total Fitness Corp., 8th Dist. Cuyahoga 

No. 81593, 2003-Ohio-1734. 

In short, Thomas’s argument that his race discrimination and 

retaliation claims are not arbitrable is without merit. Thomas correctly asserts that 

Ohio has a strong public policy against workplace discrimination. However, 

consistent with the case law cited above and Ohio’s public policy in favor of 

arbitration, it is apparent that claims asserting workplace discrimination and 

retaliation, such as Thomas’s, are subject to arbitration when the claims fall with the 

scope of the arbitration agreement, which they do here. 
The dissent, relying on this court’s decision in Arnold v. Burger King, 

8th Dist. Cuyahoga No. 101465, 2015-Ohio-4485, finds that the arbitration 

agreement is not enforceable because Thomas’s claims “are outside the scope of the 

arbitration agreement,” and arbitration of his claims would be against public policy. 

 In Arnold, an employee asserted claims against her employer and her 

supervisor for sexual harassment, negligent retention, emotional distress, assault, 

intentional tort, and discrimination, all of which arose out of a workplace rape by 

the supervisor. Id. at ¶ 5. The defendants moved to compel arbitration, which the 

trial court denied. Id. at ¶ 8. This court affirmed on appeal, finding that the 

plaintiff’s claims were outside the scope of the arbitration agreement and, for many 

reasons, the agreement was also procedurally and substantively unconscionable. Id.

at ¶ 35, 74-77, and 85-103. 

Arnold is distinguishable from this case, however. The Arnold court 

began its analysis regarding the scope of the arbitration agreement by noting that 

“principles of equity require that greater scrutiny be given to arbitration provisions 

that do not involve parties of equal sophistication and bargaining power.” Id. at 

¶ 25. The Arnold court concluded that increased scrutiny of the arbitration 

agreement in that case was necessary because the plaintiff was an “entry-level 

employee,” as opposed to the corporate defendant, which owned and operated 

numerous Burger King franchises. Id. at ¶ 1. Such a pronounced disparity in 

bargaining power is not the situation in this case, however. Thomas was the Finance 

Manager at Migdal; thus, he was a professional with a management position who, 
unlike an entry-level employee, may be assumed to well understand the implications 

of signing an arbitration agreement. 

Continuing its analysis, the Arnold court found that in determining 

whether a cause of action is within the scope of an arbitration agreement, the Ohio 

Supreme Court has adopted the method articulated in Fazio v. Lehman Bros., Inc., 

340 F.3d 386 (6thCir.2003). Arnold at ¶ 30. “A proper method of analysis is to ask 

if an action could be maintained without reference to the contract or relationship at 

issue. If it could, it is likely outside the scope of the arbitration agreement.” Fazio

at ¶ 395. Nevertheless, “even real torts can be covered by arbitration clauses ‘[i]f the 

allegations underlying the claims “touch matters” covered by the [agreement].’” 

(Brackets sic.) Id., quoting Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 

846 (2d Cir.1987). 

Thus, we must examine the factual allegations of Thomas’s 

complaint, instead of just the causes of action, to determine whether his claims may 

be independently maintained without reference to the employment relationship. 

We conclude they cannot because, in fact, they arise directly out of that relationship. 

Thomas brings his claims pursuant to R.C. 4112.02, which prohibits discriminatory 

employment practices. Thus, Thomas’s employment with Migdal is the predicate 

upon which his claims are based; they cannot arise under R.C. 4112.02 absent his 

employment by Migdal and therefore, cannot be maintained without reference to 

the employment relationship. It is simply not true, as posited by the dissent, that 

“any individual” could assert the same claims against Migdal based upon the same 
facts because the claims are dependent upon that individual being employed by 

Migdal. 

Furthermore, this case is factually distinguishable from Arnold. The 

factual allegations of the complaint are unsupported by any police report or criminal 

investigation and rest entirely upon the assertions of the plaintiff. Moreover, the 

facts supporting the Arnold court’s conclusion that the plaintiff’s claims were 

outside the scope of the arbitration agreement because they were not a foreseeable 

result of her employment with Burger King are not present in this case. In Arnold, 

the court concluded that it was not “reasonably foreseeable that the arbitration 

contract encompassed the conduct in question” because (1) the plaintiff was not a 

professional whose education, experience, and marketability gave her an option to 

seek employment elsewhere instead of accepting employment that required 

arbitration; (2) the employer “possessed unique and superior knowledge of the 

employment environment when the [employment agreement] was executed,” 

including a class-action suit for hostile work environment and sexual harassment 

against the employer that had been ongoing for over ten years when the plaintiff was 

raped; and (3) the arbitration agreement was ambiguous. Arnold, 8th Dist. 

Cuyahoga No. 10145, 2015-Ohio-4485 at ¶ 45-47, and 57. 

None of those factors apply here. As discussed earlier, Thomas was 

an educated professional who understood the ramifications of signing an arbitration 

agreement and who could have sought employment elsewhere if he did not wish to 

sign the agreement. Furthermore, there is nothing in the record indicating that 
Migdal had unique knowledge of a racist work environment at Hyundai of Bedford. 

In fact, although the dissent concludes that Thomas had worked at Hyundai for 

seven months before signing the arbitration agreement, at oral argument, defense 

counsel asserted, and counsel for Thomas did not dispute, that Thomas worked at 

Hyundai for some months, left, and then signed the arbitration agreement when he 

was rehired. Thus, Thomas would have been very aware of the work environment 

at Hyundai when he signed the agreement. Finally, the agreement is not ambiguous; 

it specifically defines “Covered Disputes” such that a signatory to the agreement 

would easily understand the claims he was agreeing to arbitrate. Accordingly, unlike 

the dissent, we find Arnold distinguishable from this case. 

We next consider whether the agreement is unconscionable so as to 

prevent its enforcement. Although arbitration is encouraged as a way to settle 

disputes, an arbitration clause is not enforceable if it is unconscionable. Felix v. 

Ganley Chevrolet, Inc., 8th Dist. Cuyahoga Nos. 86990 and 86991, 2006-Ohio4500, ¶ 15. Questions of unconscionability are reviewed under a de novo standard 

of review. McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261, 

2012-Ohio-1543, ¶ 8. Under a de novo standard, we give no deference to the trial 

court’s decision. Brownlee v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 

97707, 2012-Ohio-2212, ¶ 9. 

Unconscionability includes both an absence of meaningful choice on 

the part of one of the parties to a contract, together with contract terms that are 

unreasonably favorable to the other party. Hayes v. Oakridge Homes, 122 Ohio 
St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 20; Collins v. Click Camera & Video, 

Inc., 86 Ohio App.3d 826, 834, 621 N.E.2d 1294 (2d Dist.1993). It consists of two 

separate concepts: (1) substantive unconscionability; and (2) procedural 

unconscionability. Olah v. Ganley Chevrolet, Inc., 8th Dist. Cuyahoga No. 86132, 

2006-Ohio-694, ¶ 14. 

Substantive unconscionability goes to the unfairness or 

unreasonableness of the contractual terms. Featherstone v. Merrill Lynch, Pierce, 

Fenner & Smith, Inc., 159 Ohio App.3d 27, 2004-Ohio-5953, 822 N.E.2d 841, ¶ 13 

(9th Dist.). When a contractual term is “so one-sided as to oppress or unfairly 

surprise” a party, the contractual term is said to be substantively unconscionable. 

Neubrander v. Dean Witter Reynolds, Inc., 81 Ohio App.3d 308, 311-312, 610 

N.E.2d 1089 (9th Dist.1992). 

Procedural unconscionability, on the other hand, concerns the 

formation of the agreement, and occurs when one party has such superior 

bargaining power that the other party lacks a “meaningful choice” to enter into the 

contract. DeVito v. Autos Direct Online, Inc., 2015-Ohio-3336, 37 N.E.3d 194, ¶ 19 

(8th Dist.), citing Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-

Ohio-938, 884 N.E.2d 12, ¶ 33. Courts have also characterized it as a lack of 

voluntary meeting of the minds due to the circumstances surrounding the execution 

of the contract. Collins at 834. In determining procedural unconscionability, courts 

should consider factors relating to the bargaining power of each party, “such as age, 

education, intelligence, business acumen and experience, relative bargaining power, 
who drafted the contract, whether the terms were explained to the weaker party, and 

whether alterations in the printed terms were possible.” Id. Generally, no one factor 

alone determines whether a contract is procedurally unconscionable. Hayes at ¶ 29. 

Instead, a court must consider the totality of the circumstances. Id. at ¶ 30. 

A finding of unconscionability requires both procedural and 

substantive unconscionability, although procedural and substantive aspects of 

unconscionability are often integrally related. DeVito at ¶ 20. Most cases of 

unconscionability involve a combination of procedural and substantive 

unconscionability, and if more of one is present, then less of the other is required. 

Id. “The more substantively oppressive the contract term, the less evidence of 

procedural unconscionability is required.” Id., citing 1 E. Allan Farnsworth, 

Farnsworth on Contracts, § 4.28, at 585 (3d Ed.2004). 

Thomas contends that the arbitration agreement is procedurally 

unconscionable because he was “forced” to sign the agreement months after he 

began his employment with Migdal, and that Migdal had him “sign off [his] rights 

as if there were some bargaining relationship, when there was not.” (Appellant’s 

Brief, p. 12.) In short, Thomas contends that he had no “meaningful choice” but to 

sign the agreement because he could not reasonably be expected to quit his job and 

find new employment. 

In its reply to Thomas’s brief in opposition to Migdal’s motion to stay 

proceedings pending arbitration, Migdal admitted that Thomas’s continued 

employment was conditioned upon his signing the arbitration agreement. (Reply 
Brief, p. 7.) Thus we find disingenuous appellees’ repeated assertions to this court 

that Thomas was not forced to sign the agreement because he could have revoked 

his signature under paragraph 22 of the agreement within seven days of signing. 

Nevertheless, the case law is clear that in an at-will employment 

situation, Ohio employers may condition employment on the employee’s agreement 

to arbitrate disputes. Dacres v. Setjo, 8th Dist. Cuyahoga No. 107638, 2019-Ohio2914, ¶ 36; Ignazio v. Clear Channel Broadcasting, Inc., 113 Ohio St.3d 276, 2007-

Ohio-1947, 865 N.E.2d 18 (enforcing arbitration agreement that conditioned 

continued employment upon signing the agreement); Overman v. Ganley Ford W., 

Inc., N.D. Ohio No. 1:15 CV 1581, 2015 U.S. Dist. LEXIS 169601, 3-4 (Dec. 17, 2015) 

(rejecting plaintiff’s argument that the arbitration agreement should not be enforced 

because, among other reasons, “he was forced to sign the Arbitration Agreement to 

keep his job”). Thus, Thomas’s argument that the agreement is procedurally 

unconscionable because he had no choice but to sign the agreement in order to keep 

his job is without merit. 

Thomas also contends that the agreement is procedurally 

unconscionable because he did not have an opportunity to understand its terms 

before signing it. Thomas’s argument is not persuasive. He cites to no evidence to 

support this assertion, and our review of the agreement reveals that Thomas signed 

the agreement directly below a paragraph, written in bold lettering and all capital 

letters, that stated: 

I UNDERSTAND THAT, BY SIGNING THIS AGREEMENT, AND 

EXCEPT WHERE PROHIBITED BY LAW, I AM GIVING UP 
FOREVER MY RIGHT TO HAVE A COURT AND A JURY DECIDE 

CLAIMS THAT I MIGHT WANT TO BRING AGAINST THE OTHER 

PARTY, IF THOSE CLAIMS ARE COVERED BY THIS AGREEMENT. 

I ALSO UNDERSTAND THAT I SHOULD CONSULT A LAWYER OF 

MY CHOICE BEFORE SIGNING THIS AGREEMENT. 

In light of the bolded, all-caps admonition that Thomas should consult a lawyer 

before signing the agreement, we cannot conclude that Thomas did not have a 

reasonable opportunity to understand the terms of the arbitration agreement before 

he signed it. 

Thomas also claims that the agreement is procedurally 

unconscionable because it provides that the arbitrator’s award is final and binding 

and not subject to appeal. Thomas cites no legal authority for this argument, but 

claims that the “final and binding” nature of the arbitration award makes the 

agreement unconscionable because he would have no ability to appeal if he 

experienced any bias from the arbitrator. Under this logic, however, almost all 

arbitration agreements would be unconscionable, given the ubiquity of agreements 

that provide for final and binding arbitration. 

Having determined that Thomas failed to establish the procedural 

unconscionability of the agreement, we need not examine whether it is substantively 

unconscionable. Jones, 9th Dist. Summit No. 28918, 2019-Ohio-211 at ¶ 21. 

Accordingly, because Thomas’s claims are arbitrable and he failed to demonstrate 

the agreement was unconscionable, the trial court did not abuse its discretion by 
staying the proceedings pending arbitration.3 Despite the dissent’s conclusion that 

it is against public policy to arbitrate claims such as Thomas’s, we note again that 

Ohio has a strong public policy in favor of arbitration, including arbitration of claims 

asserting workplace racial discrimination and unlawful retaliatory actions as a result 

of the plaintiff’s complaints about such discrimination. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 

 3 In Dacres v. Setjo, L.L.C., 8th Dist. Cuyahoga No. 107638, 2019-Ohio-2914, a 

different panel of this court considered the same arbitration agreement as at issue here 

and rejected plaintiff’s claim that it was unconscionable because, as in this case, the 

plaintiff failed to demonstrate the agreement was procedurally unconscionable. Id. at 

¶ 45. The Dacres court therefore affirmed the trial court’s judgment staying proceedings 

pending arbitration without examining whether the agreement was substantively 

unconscionable. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

KATHLEEN ANN KEOUGH, JUDGE 

EILEEN A. GALLAGHER, J., CONCURS; 

MARY EILEEN KILBANE, P.J., DISSENTS WITH SEPARATE OPINION 

MARY EILEEN KILBANE, P.J., DISSENTING: 

I respectfully dissent. I would reverse the trial court’s judgment 

granting Migdal’s motion to stay pending submission of Thomas’s claims to 

arbitration. 

The instant case presents us with a situation where an employee has 

alleged to have been repeatedly subjected to racial discrimination together with 

racially motivated death threats in a workplace with a record of racial 

discrimination. The majority finds that Thomas’s workplace discrimination claims 

are arbitrable because they fall within the scope of the arbitration agreement and 

Migdal’s arbitration agreement is not unconscionable. I respectfully disagree. In 

light of the egregious circumstances of this case, I would find that Thomas’s claims 

are outside the scope of the arbitration agreement and the enforcement of Migdal’s 

arbitration agreement is against public policy. 

In Arnold, this court recognized Ohio’s pro-arbitration stance, but 

also recognized that in order for an arbitration agreement to be enforceable, the 

agreement must apply to the disputed issue. Id., 2015-Ohio-4485, 48 N.E.2d 69 at 
¶ 27, citing Academy of Medicine. The majority finds the Arnold case 

distinguishable. I find Arnold instructive. 

Arnold is an employment dispute case arising from the alleged rape 

of Arnold (the plaintiff-employee) by her supervisor while she was cleaning the 

men’s bathroom at a Burger King restaurant. Arnold filed a complaint against 

Burger King alleging six causes of action: sexual harassment; respondent 

superior/negligent retention; emotional distress; assault; intentional tort; and 

employment discrimination. Id. at ¶ 5. In response to Arnold’s complaint, Burger 

King sought to compel arbitration, citing to the mandatory arbitration agreement 

Arnold executed as a term of her employment. The trial court denied Burger King’s 

motion. Id. at ¶ 6, 8. 

On appeal, this court affirmed the trial court’s judgment, finding that 

Arnold’s claims relating to and arising from the sexual assault exist independent of 

the employment relationship because they can be ‘“maintained without reference to 

the contract or relationship at issue.’” Id. at ¶ 65, citing Academy of Medicine. 

In determining whether a claim is within the scope of the arbitration 

agreement, the Arnold court stated that: 

“[a] proper method of analysis here is to ask if an action could be 

maintained without reference to the contract or relationship at issue. 

If it could, it is likely outside the scope of the arbitration agreement.” 

Acad. of Med., 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488 at 

¶ 35 (adopting Fazio protocol for state court arbitrability analysis). See 

also Complete Personnel Logistics, Inc. v. Patton, 8th Dist. Cuyahoga 

No. 86857, 2006-Ohio-3356, ¶ 15 (“tort claims that may be asserted 

independently, without reference to the contract, fall outside the scope 

of the arbitration provision”). 
The Academy of Medicine court elaborated on the propriety of 

employing the Fazio test in light of the presumption of arbitrability in 

Ohio: 

The Fazio test does not act as a detriment to arbitration. It 

functions as a tool to determine a key question of arbitrability — 

whether the parties agreed to arbitrate the question at issue. It 

prevents the absurdity of an arbitration clause barring a party to 

the agreement from litigating any matter against the other party, 

regardless of how unrelated to the subject of the agreement. It 

allows courts to make determinations of arbitrability based 

upon the factual allegations in the complaint instead of on the 

legal theories presented. It also establishes that the existence of 

a contract between the parties does not mean that every dispute 

between the parties is arbitrable.

(Emphasis added.) Academy of Medicine at ¶ 29. 

Id. at ¶ 30-31. 

The Arnold court also addressed foreseeability and recognized that if 

the claims were not an immediately, foreseeable result of the employment, they were 

not within the scope of the clause. Id. at ¶ 45, citing Doe v. Princess Cruise Lines, 

Ltd., 657 F.3d 1204, 1219 (11th Cir.2011). The “‘overarching issue is whether the 

parties agreed to arbitrate the issue.’” Academy of Medicine, 108 Ohio St.3d 185, 

2006-Ohio-657, 842 N.E.2d 488 at ¶ 19, quoting Mitsubishi Motors Corp., 473 U.S. 

at 626, 105 S.Ct. 3346, 87 L.Ed.2d 444. “Was it reasonably foreseeable that the 

arbitration contract encompassed the conduct in question?” Arnold at ¶ 45, citing 

Fazio, 340 F.3d 386 at ¶ 395. 

In applying this analysis to the facts in Arnold, the court examined 

the factual allegations underlying Arnold’s claim “to determine whether arbitration 

of the claims may be independently maintained without reference to the contract or 
relationship at issue, bringing them outside of the scope of arbitration.” Id. at ¶ 62, 

citing Academy of Medicine at ¶ 35. The Arnold court also determined “whether the 

acts complained of were a foreseeable result of Arnold’s employment.” Id., citing 

Doe, 657 F.3d at 1218-1219. The Arnold court stated: 

The complaint states that Arnold was constantly subjected to ongoing 

verbal and unwanted physical conduct that culminated in rape. On 

July 21, 2012, Arnold was cleaning the men’s restroom when Matthews 

[Arnold’s supervisor] entered, grabbed Arnold by her hair, pushed her 

against the door and forced her to give him oral sex. She has incurred 

and believes she will continue to incur treatment for her medical and 

psychological injuries. The complaint also states that [Burger King] 

had actual or constructive knowledge of Matthews’ tendencies and that 

he posed a hazard. 

The complaint further provides that [Burger King] and supervisor 

Matthews retaliated or threatened to retaliate against Arnold, 

including termination, due to her attempt to enforce her rights; that 

she suffered unrelenting abuse, torment, harassment, threats, and 

embarrassment; and that she will require medical care and psychiatric 

counseling. It is also asserted that [Burger King] aided, abetted, 

incited, compelled, and coerced others to engage in unlawful 

discriminatory practices and/or interfere with or to obstruct Arnold. 

Based on the underlying facts, we find that Arnold’s claims relating to 

and arising from the sexual assault exist independent of the 

employment relationship as they may be “maintained without 

reference to the contract or relationship at issue.” Academy of 

Medicine, 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488, at ¶ 

24; Fazio, 340 F.3d 386, at ¶ 395, and Winters Law Firm. L.L.C. v. 

Groedel, 8th Dist. Cuyahoga No. 99922, 2013-Ohio-5260, ¶ 14. Any 

individual could assert the same causes of action based on the 

underlying facts. 

A patron may, for example based on the asserted facts, pursue an action 

for sexual harassment per the Ohio Civil Rights Act that prohibits 

discriminatory practices by a proprietor, employer, keeper, or manager 

of a place of public accommodation (R.C. 4112.02(G)) that includes a 

restaurant. R.C. 4112.02(H)(9). In addition, R.C. 4112.02(I) prohibits 

unlawful discrimination for opposing unlawful discriminatory 

practices. 
The second step of our scope of agreement analysis is to inquire 

whether the claims are a foreseeable result of the employment. Doe, 

657 F.3d at 1218-1219. We find that ongoing verbal and physical 

contact culminating in sexual assault as well as retaliation, harassment, 

or other detrimental acts against Arnold based on the unlawful conduct 

is not a foreseeable result of the employment. 

Id. at ¶ 63-67. 

Similarly, in the instant case, Thomas alleges he was subject to racial 

slurs and taunting almost immediately after he began working at Migdal. His 

coworkers allegedly regularly used the “n-word” around him and one coworker 

allegedly acted as if he was spraying urine on Thomas with a balloon. He further 

alleges that following the settlement of two racial discrimination cases filed by 

former African-American employees against Migdal, Migdal required its employees 

to sign an arbitration agreement forever foregoing their rights in court on a “covered 

dispute.” 

Thomas had been employed for seven months at the time he was 

required to sign the arbitration agreement. After he signed the arbitration 

agreement, Thomas alleges that he was subject to the outrageous and lifethreatening conduct by his Migdal coworkers. In addition, Migdal management 

allegedly took no action after Thomas advised them that a coworker told him, “I 

don’t fight n------, I kill them,” nor did management discipline the same employee 

when he allegedly brought a gun to work and was overheard threatening to shoot 

Thomas. Instead, Thomas alleges he was demoted from finance manager to sales 

associate after reporting the life-threatening, racist events to Migdal management. 

As Finance Manager, Thomas alleges his pay was half the pay of his fellow white 
managers. Thomas claims white managers were paid a revenue bonus, but Thomas 

was not, and white managers were allowed to take home a car from the lot, but 

Thomas was not afforded the same privilege. 

Just as the majority in Arnold found, I would find, based on the 

underlying factual allegations, that Thomas’s racial discrimination claim, which 

encompasses outrageous life-threatening, criminal conduct, exists independent of 

his employment relationship with Migdal as it can be “‘maintained without 

reference to the contract or relationship at issue.’” Arnold at ¶ 65, quoting Academy 

of Medicine at ¶ 24. Indeed, “[a]ny individual could assert the same causes of action 

based on the underlying facts.” Id. The outrageous criminal conduct — death 

threats — alleged by Thomas could be asserted by anyone. Death threats are legally 

distinct from the contractual relationship between Migdal and Thomas. Arnold at ¶ 

35, citing Aiken v. World Fin. Corp., 373 S.C. 144, 644 S.E.2d 705 (2007), citing 

McMahon v. RMS Electronics, Inc., 618 F.Supp. 189, 191 (S.D.N.Y. 1985). 

Additionally, a patron at the car dealership may, based on the asserted facts, pursue 

an action for racial discrimination per the Ohio Civil Rights Act that prohibits 

discriminatory practices by a proprietor, employer, keeper, or manager of a place of 

public accommodation. R.C. 4112.02(G); R.C. 4112.01(H)(9). 

With regard to foreseeability, I would find that the alleged death 

threats and racism experienced by Thomas as well as the alleged workplace 

retaliation is not a foreseeable result of his employment. Arnold at ¶ 67. 
Moreover, the facts and circumstances of the instant case necessitate 

a finding that Migdal’s broadly drafted arbitration clause is against policy. 

A court may refuse to enforce a contract when it violates public policy. 

Marsh v. Lampert, 129 Ohio App.3d 685, 687, 718 N.E.2d 997 (12th 

Dist.1998), citing Garretson v. S.D. Myers, Inc., 72 Ohio App.3d 785, 

788, 596 N.E.2d 512 (9th Dist.1991). The court in Eagle, 157 Ohio 

App.3d 150, 2004-Ohio-829, 809 N.E.2d 1161, explained: 

A refusal to enforce a contract on the grounds of public policy may be 

distinguished from a finding of unconscionability. Rather than focus on 

the relationship between the parties and the effect of the agreement 

upon them, public policy analysis requires the court to consider the 

impact of such arrangements upon society as a whole. 

Id. at ¶ 63. 

Moreover, a contract injurious to the interests of the state will not be 

enforced. King v. King, 63 Ohio St. 363, 372, 59 N.E. 111 (1900). 17 

Ohio Jurisprudence 3d, Contracts, Section 94, at 528 (1980), states: 

Public policy is the community common sense and common 

conscience, extended and applied throughout the state to matters of 

public morals, health, safety, welfare, and the like. Again, public policy 

is that principle of law which holds that no one can lawfully do that 

which has a tendency to be injurious to the public or against the public 

good. Accordingly, contracts which bring about results which the law 

seeks to prevent are unenforceable as against public policy. Moreover, 

actual injury is never required to be shown; it is the tendency to the 

prejudice of the public’s good which vitiates contractual relations. 

(Footnotes omitted.) 

Hedeen v. Autos Direct Online, Inc., 2014-Ohio-4200, 19 N.E.3d 957, ¶ 44-45 (8th 

Dist.). 

It is true that Ohio courts have found that an employee’s race 

discrimination claims brought under R.C. Chapter 4112 are arbitrable where the 

employee has signed an arbitration agreement. I also recognize that Ohio courts, 

and indeed this court in Dacres, have found Ohio employers may condition 
employment on the employee’s agreement to arbitrate disputes. This case is 

different; the facts and circumstances here necessitate a finding that Migdal’s 

arbitration clause is against public policy. Arbitration was never intended to shield 

such threatening and possibly criminal workplace conduct. 

For these reasons, I would reverse the trial court’s ruling granting 

Migdal’s motion to stay pending arbitration.