STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Employee Resource Group, LLC and Dawn Wiley, FILED 

Defendants Below, Petitioners November 18, 2016 

RORY L. PERRY II, CLERK 

vs) No. 16-0150 (Boone County 15-C-17) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Brandi Adkins,
 

Plaintiff Below, Respondent
 

MEMORANDUM DECISION 

Petitioners Employee Resource Group, LLC (“ERG”) and Dawn Wiley, by counsel 

Bradley K. Shafer, appeal the January 19, 2016, order of the Circuit Court of Boone County 

denying petitioners’ motion to enforce an arbitration agreement. Respondent Brandi Adkins, by 

counsel Paul Frampton, Jr., and Matthew Hatfield, filed a summary response in support of the 

circuit court’s order. Petitioners argue that the circuit court erred in failing to find that an 

enforceable arbitration agreement existed between the parties. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, we find that the circuit court did not err with respect to its denial of petitioners’ 

motion to enforce arbitration agreement. For these reasons, a memorandum decision affirming 

the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. 

In April of 2013, respondent began working for ERG as a general laborer at the Wendy’s 

restaurant in Danville, West Virginia.1 During the course of her employment, respondent 

experienced physical problems due to various disabling medical conditions and missed work. On 

July 5, 2014, respondent’s employment with ERG was terminated. 

On January 28, 2015, respondent filed, in the Circuit Court of Boone County, a complaint 

against petitioners. In her complaint, respondent alleged that her employment was “willfully, 

maliciously and unlawfully” terminated in violation of West Virginia Code § 5-11-9, the West 

Virginia Human Rights Act. In their answer, petitioners sought to dismiss respondent’s 

complaint and filed a motion to enforce arbitration. 

In their motion, petitioners argued that ERG had an alternative dispute resolution 

program that applied to all employees and required the mandatory arbitration of workplace 

disputes. Petitioners stated that all new hires of ERG (including respondent) were provided with 

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Petitioner Dawn Wiley was respondent’s supervisor during the tenure of her 

employment with ERG. 

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various documents to review and sign upon the inception of their employment. One of those 

documents was Dispute Resolution Program Handbook, which included the mandatory 

arbitration agreement.2 However, petitioners acknowledged that they could not locate the copy of 

the agreement signed by respondent. 

In support of their motion, petitioners presented an affidavit from ERG’s Director of 

Human Resources.3 While the affidavit details the usual procedures implemented by ERG when 

a new employee is hired (including the employee’s endorsement of an arbitration agreement), the 

affidavit contained no specific information as to whether the arbitration agreement was actually 

signed by respondent herein. The affidavit further referenced a “Human Resources Information 

Center” poster (approximately 3 feet by 4 feet in size) hanging in the Danville Wendy’s 

restaurant that outlined the dispute resolution program and noted that the program was the 

“mandatory, exclusive process for resolution of problems in this Company.” Petitioners argued 

that the arbitration agreement and poster show the existence of a contract between the parties 

herein to resolve their legal claims or disputes through binding arbitration. Conversely, 

respondent contends that she never signed any agreement to arbitrate any claims against 

petitioners and was never informed of the existence of any such agreement. 

Following a hearing, the circuit court, by order entered January 19, 2006, denied 

petitioners’ motion to enforce arbitration and found that no enforceable arbitration agreement 

existed between the parties. Specifically, the circuit court noted that petitioners failed to 

introduce any evidence, specific to respondent, to indicate that she agreed to arbitrate her claims. 

It is from the circuit court’s January 19, 2016, order that petitioners now appeal. 

“An order denying a motion to compel arbitration is an interlocutory ruling which is 

subject to immediate appeal under the collateral order doctrine.” Syl. Pt. 1, Credit Acceptance 

Corp., v. Front, 231 W.Va. 518, 745 S.E.2d 556. We have further held that “[w]hen an appeal 

from an order denying a motion to dismiss is properly before this Court, our review is de novo.” 

Evans v. Bayles, 237 W.Va. 269, --, 787 S.E.2d 540, 543 (2016) (citing Syl. Pt. 4, Ewing [v. Bd. 

of Educ.], 202 W.Va. 228, 503 S.E.2d 541 [(1998)] (“When a party, as part of an appeal from a 

final judgment, assigns as error a circuit court’s denial of a motion to dismiss, the circuit court’s 

disposition of the motion to dismiss will be reviewed de novo.”) 

The sole issue raised by petitioners on appeal is whether the circuit court erred in denying 

their motion to enforce arbitration. We have held that 

[w]hen a trial court is required to rule upon a motion to compel arbitration 

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The mandatory arbitration agreement language read as follows: “I hereby acknowledge 

that I received a copy of the Company’s Dispute Resolution Program Booklet effective April 1, 

2005 and a copy of Theresa Johnson’s letter of February 9, 2005. I understand and agree that the 

Dispute Resolution Program shall apply to me.” 

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The affidavit states, in pertinent part, that as a condition of employment at ERG, all 

employees are required to sign an arbitration agreement. 

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. . . the authority of the trial court is limited to determining the threshold issue of 

(1) whether a valid arbitration agreement exists between the parties; and (2) 

whether the claims averred by the plaintiff fall within the substantive scope of that 

arbitration agreement. 

Syl. Pt. 3, in part, Schumacher Homes of Circleville, Inc., v. Spencer, 237 W. Va. 379, 787 

S.E.2d 650 (citing Syl. Pt. 2, State ex rel. TD Ameritrade, Inc., v. Kaufman, 225 W. Va. 250, 692 

S.E.2d 293 (2010)). 

In the instant case, while petitioners acknowledge that they are unable to locate the copy 

of the arbitration agreement that was allegedly signed by respondent, they argue that 

respondent’s signature on such agreement was unnecessary. Petitioners contend that 

respondent’s employment was “proof in and of itself that [she] agreed to arbitration,” as the 

arbitration agreement was a “mandatory requirement” of her continued employment with ERG. 

Conversely, respondent argues that she had no knowledge of the arbitration agreement and that 

respondents’ evidence about what occurred in the normal course of events (as noted in the 

affidavit of ERG’s Human Resources Director) was insufficient in establishing that “a valid, 

enforceable contract of arbitration was entered into by the parties.” 

Based upon our review of the record herein and the limited circumstances of this case, we 

find that the petitioners failed to establish that a valid arbitration agreement exists between the 

parties. We have previously held that “[t]he proponent of a lost or missing instrument must prove 

its existence and contents with clear and convincing evidence.” Syl. Pt. 2, Estate of Bossio v. 

Bossio, 237 W. Va. 130, 785 S.E.2d 836 (2016). While we note that petitioners proffered 

documentation as to what allegedly occurs in the normal course of their business transactions, 

they failed to offer any direct evidence that respondent actually executed or had knowledge of 

the arbitration agreement at issue. In the affidavit presented by petitioners, their representative 

did not allege that he had personal knowledge that respondent was presented with the arbitration 

agreement or even that she had direct knowledge of the same. Rather, petitioners asked the 

circuit court to simply assume what petitioners’ representative states was done with new 

employees was actually done with respect to respondent. Such was insufficient to meet 

petitioners’ burden of proof. Accordingly, we find that the circuit court did err in denying 

petitioners’ motion to enforce arbitration agreement. 

For the foregoing reasons, we affirm the circuit court’s January 19, 2016, order denying 

petitioners’ motion to compel arbitration. 

Affirmed. 

ISSUED: November 18, 2016 

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CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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