IN THE UNITED STATES DISCTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

 

REGINA HUBBELL : 

 : Case No. 2:17-cv-807 

 Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Deavers 

NCR CORPORATION, : 

 : 

 Defendant. :

OPINION AND ORDER 

 This matter comes before the Court on Defendant NCR Corporation’s (“NCR”) Motion 

to Dismiss Plaintiff’s Complaint and Compel Arbitration (ECF No. 3). For the reasons set forth 

below, the Court GRANTS IN PART Defendant’s Motion and compels arbitration. 

I. BACKGROUND 

 Plaintiff Regina Hubbell worked as a Customer Engineer II for Defendant NCR from 

August 2016 to April 2017. (ECF No. 1 at ¶ 1). Ms. Hubbell was the only woman on her team 

at NCR. (ECF No. 8-1 at ¶ 3). She alleges that while employed at NCR, she was denied training 

to perform her job duties, while male employees received adequate training. (Id. at ¶ 8). She 

further alleges that she was disciplined and ultimately terminated for allegedly not meeting work 

performance requirements, while male employees who failed to meet the requirements were not 

terminated. (Id.). Finally, Ms. Hubbell alleges that as a result of reporting the discrimination she 

was facing to her employer, she was retaliated against. (Id. at ¶ 17). 

 Prior to beginning her employment with NCR, Ms. Hubbell was required to complete 

numerous online documents. (ECF No. 8-1 at ¶ 2). Among the online documents Ms. Hubbell 
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signed is a “Mutual Agreement to Arbitrate All Employment Related Clams” (“Arbitration 

Agreement”) (ECF No. 8-2). The Arbitration Agreement reads in relevant part: 

[I]n the unlikely event an employment related dispute arises which cannot be resolved 

informally, and given our mutual desire to establish a speedy, impartial and cost effective 

way to solve disputes, we mutually agree that, instead of going to court or a jury, we will 

submit the unresolved matter to final and binding arbitration. 

This agreement to arbitrate includes every possible claim . . . arising out of or relating in 

any way to my employment. This includes but is not limited to all claims for any form of 

illegal discrimination under state or federal law, improper or unfair treatment or 

dismissal, and all tort claims. I understand that while I still have the right to file a 

discrimination charge with a state or federal agency, I will submit the final resolution of 

any discrimination claim to an arbitrator instead of a court or jury. 

Id. The Arbitration Agreement further states that “[a]ny issue or dispute concerning the 

interpretation or enforceability of this Agreement shall be resolved by the arbitrator.” Id. 

 Ms. Hubbell filed a discrimination claim with the Equal Employment Opportunity 

Commission and received a Notice of Right to Sue on June 22, 2017. (ECF No. 1 at ¶¶ 5, 6). On 

September 13, 2017, she filed the instant action. (ECF No. 1). NCR filed its Motion to Dismiss 

and Compel Arbitration on November 10, 2017. (ECF No. 3). The Motion is fully briefed and 

ripe for decision. 

II. LAW AND ANALYSIS 

Under the Federal Arbitration Act (“FAA”), arbitration contracts “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. If a party who signed an arbitration contract fails or 

refuses to arbitrate, the aggrieved party may petition the court for an order directing the parties to 

proceed in arbitration in accordance with the terms of an arbitration agreement. 9 U.S.C. § 4. 

The Court must then “determine whether the parties agreed to arbitrate the dispute at issue.” 

Ackison Surveying, LLC v. Focus Fiber Sols., LLC, No. 2:15-CV-02044, 2016 WL 4208145, at 

*1 (S.D. Ohio Aug. 10, 2016) (citing Stout v. J.D. Byrider, 228 F.3d 09, 714 (6th Cir. 2000)). 
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Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. 

Id. at *1. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). In 

evaluating motions to compel arbitration, “courts treat the facts as they would in ruling on a 

summary judgment motion, construing all facts and reasonable inferences that can be drawn 

therefrom in light most favorable to the non-moving party.” Jones v. U-Haul Co. of 

Massachusetts & Ohio Inc., 16 F. Supp. 3d 922, 930 (S.D. Ohio 2014). The court has four tasks: 

[F]irst, it 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. 

Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2000). 

Here, NCR moves the Court to dismiss the Complaint and compel arbitration, pointing to 

the Arbitration Agreement Ms. Hubbell signed electronically. (ECF No. 3-1). In opposing 

NCR’s motion, Ms. Hubbell does not challenge any of the four Stout factors.1

 Instead, Ms. 

Hubbell argues that the Arbitration Agreement is unenforceable because it is unconscionable. 

(ECF No. 8). Specifically, she contends that the Arbitration Agreement is procedurally 

unconscionable because signing it was a condition of employment and the parties had unequal 

                                                      

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 The Court agrees that the Stout factors are satisfied here. First, NCR and Ms. Hubbell agreed 

to arbitrate future disputes as evidenced by the Arbitration Agreement. (ECF No. 8-2) (“[W]e 

mutually agree that, instead of going to court or a jury, we will submit the unresolved matter to 

final and binding arbitration.”). Second, the scope of the agreement covers the claims at issue 

here, as the Arbitration Agreement plainly states “all claims for any form of illegal 

discrimination under state or federal law” are covered. Id. Third, the Sixth Circuit has 

specifically stated that Title VII discrimination claims are arbitrable. Cooper v. MRM Inv. Co., 

367 F.3d 493, 499 (6th Cir. 2004) (“Indeed, Title VII claims may be subjected to binding 

arbitration”). In regards to the fourth factor, all of the claims are subject to arbitration. 

 
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bargaining power. (Id. at 4). She argues that the Arbitration Agreement is substantively 

unconscionable because it limits fact depositions to two individuals and additional depositions 

are not permitted unless the arbitrator finds a “compelling need” and it is impossible to conduct a 

fair hearing without them. (Id. at 6). In response to Ms. Hubbell’s unconscionability arguments, 

NCR contends that the arbitrator, not this Court, must resolve her unconscionability claim. (ECF 

No. 14 at 2-3). NCR is correct. 

 In Rent-A-Center, West, Inc. v. Jackson, the Supreme Court held that under the FAA, a 

district court may not decide a claim that an arbitration agreement is unconscionable, where the 

agreement explicitly assigns that decision to the arbitrator. 561 U.S. 63, 75 (2010). In that case, 

Jackson filed an employment-discrimination suit in district court, and his former employer, RentA-Center, filed a motion under the FAA to dismiss or stay the proceedings and to compel 

arbitration. Id. at 65. Jackson opposed the motion, arguing that the Mutual Agreement to 

Arbitrate Claims (“Agreement”) he signed as a condition of his employment with Rent-A-Center 

was unenforceable because it was unconscionable. Id. at 65-66. The Agreement contained a 

“delegation provision” that stated: 

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive 

authority to resolve any dispute relating to the interpretation, applicability, enforceability 

or formation of this Agreement including, but not limited to any claim that all or any part 

of this Agreement is void or voidable. 

Id. at 66, 68. The Supreme Court held that the delegation provision was valid under § 2 of the 

FAA, and found that “unless Jackson challenged the delegation provision specifically, we must 

treat it as valid under § 2, and must enforce it under §§ 3 and 4, leaving any challenge to the 

validity of the Agreement as a whole for the arbitrator.” Id. at 72. 

 The Jackson Court then found that Jackson challenged only the validity of the contract as 

a whole, and did not mention the delegation provision specifically anywhere in his opposition to 
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the motion to compel arbitration. Id. at 72. The Court turned to Jackson’s specific 

unconscionability arguments—that the contract was procedurally unconscionable because it was 

imposed as a condition of employment and that it was substantively unconscionable in part 

because of discovery limitations—and found that it need not even consider the procedural 

unconscionability argument because none of Jackson’s substantive unconscionability challenges 

was specific to the delegation provision. Id at 73-74. 

In analyzing the argument regarding the discovery limitations, the Court noted it would 

have to consider the unconscionability argument if Jackson challenged the delegation provision 

by arguing that the discovery limitations “as applied to the delegation provision rendered that 

provision unconscionable.” Id. at 74 (emphasis in original). The Court found that such an 

argument would be “a much more difficult argument to sustain than the argument that the same 

limitation renders arbitration of his factbound employment-discrimination claim 

unconscionable.” Id. Because Jackson did not even attempt to make any arguments specific to 

the delegation provision, however, the Court found that the delegation provision was valid and 

that the arbitrator, not the court, must resolve the challenges to the validity of the Agreement. Id.

So too here. Just as in Jackson, Ms. Hubbell argues that the Arbitration Agreement is 

procedurally unconscionable because it was a condition of employment and non-negotiable. 

This Court need not address her substantive unconscionability argument, however, because none 

of her procedural unconscionability arguments specifically mentions the delegation provision. 

Ms. Hubbell’s entire argument regarding the discovery limitations focuses on her actual 

employment discrimination claim—she contends that four to nine individuals would need to be 

deposed at a minimum in order for her to explore properly her underlying discrimination claim. 

(ECF No. 8 at 6). She makes no argument, and indeed it would be “a much more difficult 
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argument to sustain”, that the two deposition limit is unconscionable as applied to the delegation 

provision. Jackson, 561 U.S. at 74. 

At bottom, Ms. Hubbell agreed that “[a]ny issue or dispute concerning the interpretation 

or enforceability of this Agreement shall be resolved by the arbitrator.” (ECF No. 8-2). Because 

she does not challenge that provision specifically, the dispute about whether the agreement is 

unconscionable must be resolved by an arbitrator. See Jackson, 561 at U.S. at 72; see also 

Danley v. Encore Capital Grp., Inc., 680 F. App’x 394, 398 (6th Cir. 2017) (finding the 

arbitrator must rule on enforceability issues when “as in Rent-A-Center, the parties ‘clearly and 

unmistakably’ provided for an arbitrator to determine various ‘gateway issues’ relative to their 

claims” and the plaintiffs “did not acknowledge their delegation provisions, let alone challenge 

them”); Milan Exp. Co. v. Applied Underwriters Captive Risk Assur. Co., 590 F. App’x 482, 485 

(6th Cir. 2014) (finding parties “manifestly intended to submit the threshold question of 

arbitrability to the arbitrator” and such agreement is “enforceable like any other contract in 

accordance with its terms”). This Court, therefore, will not resolve the unconscionability 

dispute. Instead, it will compel arbitration so the matter can be resolved by an arbitrator. 

The only remaining dispute is whether this litigation should be stayed or dismissed 

pending arbitration. Ms. Hubbell argues that under the language of §3 of the FAA, the case 

should be stayed. (ECF No. 8). NCR contends that because all of the claims are subject to 

arbitration, the case should be dismissed. (ECF No. 14). This “Court has discretion to stay or 

dismiss the instant matter.” Champness v. J.D. Byrider Sys., LLC, No. 1:14-CV-730, 2015 WL 

247924, at *12 (S.D. Ohio Jan. 20, 2015) (citing 9 U.S.C. § 3 (mandating courts to stay 

proceedings pending completion of arbitration) and Hensel v. Cargill, Inc., No. 9-3199, 199 WL 

994775, at *4 (6th Cir. Oct. 1, 1999) (permitting courts to dismiss actions in which all claims are 
7

referred to arbitration)). In its discretion, the Court finds that staying the case would promote 

judicial efficiency, given the possibility that the arbitrator could find the Arbitration Agreement 

unenforceable, in which event this litigation may proceed.2

 

III. CONCLUSION 

For the reasons stated above, the Court GRANTS IN PART Defendant’s Motion to Dismiss 

Plaintiff’s Complaint and Compel Arbitration (ECF No. 3) and hereby COMPELS 

ARBITRATION. The Motion is denied in so far as it requested dismissal of the case, and the 

above-captioned case is hereby STAYED. 

IT IS SO ORDERED. 

 

 /s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

DATED: June 14, 2018     UNITED STATES DISTRICT JUDGE

                                                      

2

 The Court notes it is not passing any judgment on the merits of either party’s unconscionability 

arguments.