## SUPERIOR COURT of the STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse Resident Judge 38 The Green Dover, DE 19901 Telephone (302)735

- 2111

April 1 3 , 2023

Ms. Kerriann Shelley Ms. Marla S. Benedek , Esquire 134 Brenford Station Road Cozen O’Connor Smyrna, DE 19977 1201 North Market Street

, Suite 1001 Wilmington, DE 19801

Mr. Jason A. Carbrera, Esquire Cozen O’Connor One Liberty Place, 1650 Market Street

, Suite 2800 Philadelphia, PA 19103

RE: Kerriann Shelley v. Barrett Business Services, Inc. K22C

- 12

- 013 JJC

Dear Ms. Shelley and Counsel :

This letter provides the Court’s decision and reasoning regarding Defendant

Barrett Business Services

, Inc. ’s m otion to d ismiss Plaintiff Kerriann Shelley’s
complaint

. In Ms. Shelley’s complaint, she alleges that a fellow employee at Barre t t

harassed and intimidated her, and that Barrett took no action to address the matter.

Barrett counters that the Court must dismiss her suit pursuant to Superior Court Civil

Rule 12(b)(1) because she and Barrett agreed to arbitrate any such matters

. For the2

reasons that follow , Ms. Shelley agreed to submit her claims to arbitration . That, in
turn, divests the Court of subject matter jurisdiction over her claims.

Background and Facts of Record

For this Rule 12(b)(1) motion

, the record includes Ms. Shelley’s complaint, a

record custodian’s affidavit that authenticates Ms. Shelley’s personnel documents,

the arbitration agreement between the parties, and Ms. Shelley’s employment

agreement

. 1 Together, they provide the following relevant facts.

I n July 2018, Ms. Shell e y began her job at Barrett. 2 On her first day, she
signed a mandatory arbitration agreement. 3 That stand

- alone agreement covered
any and all claims arising out of her employment, 4 and required both her and Barrett

to arbitrate any such claims through Judicial Arbitration and Mediation Services,
Inc. (“JAMS”). 5 Later , in December 2018

, Ms. Shell e y signed an e mployment

a greement with Barrett with an effective date of January 7, 2019

. 6 T he employment

agreement also contained a separate mandatory arbitration provision that
encompassed all employment

- related claims

. 7 Unlike the stand

- alone agreement

, however, it did not require the parties to use a JAMS arbitrator

. Rather, it set s forth

a separate process to select one

. 8

1 See Appriva S’holder Litig. Co., LLC v. EV3, Inc

. , 937 A.2d 1275, 1284 n.14 (Del. 2007) (recognizing that for purposes of a Rule 12(b)(1) motion, the Court may consider matters outside of the complaint ).

2 Def. ’s Mot. t o Dismiss , Ex. 1 A [hereinafter “Arbitration Agreement”]

. 3 Def. ’s Mot. to Dismiss, Ex. 1, ¶ 4 [hereinafter “Sheehan Aff.”]

. 4 Arbitration Agreement ¶ 1.

5 See Arbitration Agreement ¶ 2 ( providing that “a neutral arbitrator from JAMS will administer any such arbitration(s) pursuant to its Employment Arbitration Rules and Procedures ” ).

6 Sheehan Aff. ¶ 6.

7 Def.’s Mot. to Dismiss, Ex. 1 B, ¶ 13 [hereinafter “Employment Agreement”].

8 Id

.3

Ms. Shelley’s complaint d oes not explain how she alleges Barrett
discriminated against her. In her response to Barr e tt’s motion, however, she alleges

that a co

- worker harassed and bullied her, and that Barrett failed to take action to

address his conduct. 9

In November 2021, Ms. Shelley left Barrett

. 10 She then filed a complaint

with the United States Equal Employment Opportunity Commission (“EEOC”)

. 11

The EEOC dismissed her claim on September 22, 2022, and when it did, it included

a right to sue notice in the letter. 12 Ms. Shelley then filed her Superior Court
complaint.

The Parties’ Arguments

Barrett asks the Court to dismiss the action because Ms. Shelley agreed to
submit any claims related to her employment to binding arbitration. In fact , Barrett
relies upon two separate arbitration provisions, one contained in a stand

- alone

document and one contained in a broader employment agreement. Barrett contends

that eit her provision independently require s the parties to resolve any legal dispute

that relates to her employment through arbitration

. Barrett further contends that

th ose provisions divest the Court of subject matter jurisdiction over Ms. Shelley’s

claims.

Ms. Shell e y co unters that the arbitration agreements are “null and void” f o r

four reasons. 13 First, she alleges that although she signed the stand

- alone arbitration

agreement when Barrett hired her

, it is invalid because her manager did not

9 See Pl. ’s

. Resp. to Def

. ’s Mot. to Dismiss at 1 ( describing alleged instances of harassment, bullying, and discrimination by a co

- worker and contending that her supervisor was aware of his conduct)

. 10 Tr

. Oral Arg . at 10.

11 Compl., Ex

. at 1.

12 Id

. at 2

. 13 Compl

. at 1 ; Pl. ’s Resp. to Def.’s Mot. to Dismiss at 1

.4

countersign it for more than one year after she signed it

. 14 Second, she conten ds

that the agreements are invalid because Barrett failed to provide her copies of the

documents after she executed them

. 15 Third, Ms. Shell e y argues that the arbitration
provision contained in the employment agreement is void because it recites the

wrong employee’s name in one location

, even though she acknowledges signing the
agreement and then working for Barrett for many months thereafter

. 16 Fourth , she

contend s that both provisions are void because the two arbitration provisions provide

different methods to select an arbitrator

. 17

Standard of Review
Delaware Superior Court Civil Rule 12(b)(1) requires the Court to dismiss an
action if it lacks subject matter jurisdiction over that matter

. Subject matter
jurisdiction is

, in essence

, a question of the power of a court to hear and decide the

case before it. 18 Unlike the standards governing a motion to dismiss under Rule
12(b)(6), the Court’s review of a Rule 12(b)(1) motion is more demanding on the

non

- movant. If a defendant challen ges the Court’s jurisdiction by introducing

material s extrinsic to the pleadings, the plaintiff must respond by supporting the
Court’s jurisdiction with competent proof. 19 In other words, the Court considers

extrinsic sources from outside the pleadings th at bear on the Court’s power to hear

the case

. 20

14 Pl. ’s Resp. to Def.’s Mot. to Dismiss at 1

. 15 See Tr. Oral Arg

. at 9 ( contending that the first agreement is unenforceable because she did not receive a copy of the agreement to confirm its accuracy)

. 16 Pl. ’s Resp. to Def.’s Mot. to Dismiss at 1.

17 Tr. Oral Arg. at 9.

18 Abbott v. Vavala , 2022 WL 453609, at *5 (Del. Ch. Feb. 15, 2022)

, aff’d, 284 A.3d 77, 2022 WL 3642947 (Del. Aug. 22, 2022) (TABLE).

19 Id

. 20 Id

.5 Discussion
A written agreement to submit claims to arbitration is enforceable and binding

upon the parties to the agreement. 21 The Court of Chancery has exclusive
jurisdiction , by statute, to compel parties to arbitrate a matter pursuant to such an

agreement. 22 Nevertheless, a significant amount of Superior Court decision al
authority has examined the arbitrability of issues in a single context

– namely, when
determining whether an agreement to arbitrate divests the Superior Court of
jurisdiction to consider a claim. 23 For that limited purpose , the Court undertakes

two focused inquiries : (1) whether a valid agreement exists

, and (2) whether the
scope of the agreement covers the plaintiff’s claim. 24 If the answers to both
questions is yes, the Court has no subject matter jurisdiction over the claim.

Here, the stand

- alone arbitration agreement conclusively resolves both issues.
Namely, Ms. Shelle y signed the document that requires her to submit any
employment

- related claims to arbitration

. The agreement defines “arbitrable

claims” as any matters “arising out of, related to or connected with the Employee’s
employment with [Barrett], including, but by no means limited to, claims of
discrimination, harassment, unpaid wages, [and] breach of contract.” 25

D iscrimination claims are causes of action that permissively f all within the scope of
mandatory arbitration agreements between employers and employees

. 26 Although

21 10 Del

. C

. § 5701

. 22 Id

. 23 See Geraci v. Uber Tech., Inc. , 2021 WL 5028368, at *2 (Del. Super. Oct. 29, 2021) ( explaining

t hat t he Superior Court has limited jurisdiction to determine if a valid

, enforceable arbitration agreement exists for purposes of determining whether it has subject matter jurisdiction over a claim ) ; s ee also Jones v. 810 Broom St. Operations, Inc. , 2014 WL 134774 6 , at *1 (Del. Super. Apr. 7, 2014) ( recognizing similarly that the Superior Court’s jurisdiction is limited to determining whether a valid agreement exists for purposes of exercising the Court’s subject matter jurisdiction ).

24 Jones , 2014 WL 1347746, at *1.

25 Arbitration Agreement ¶ 1.

26 Hurtt v. Del Frisco’s Rest. Grp. , 2019 WL 2516763, at *6 (Del. Super. Jun. 18, 2019). Ms. Shelley has not alleged sexual harassment. Nevertheless, the Court recognizes that

, if she had,6

Ms. Shell e y’s complaint does not fully explain how she believes Barrett
discriminated against her , the Court infers that she alleges some nature of

discrimination

. Because the discrimination and harassment that she alleges flows
from her employment relationship, the Court has no jurisdiction over the matter if
the agreem ent was valid.
As to validity

, Ms. Shelley incorrectly contends that the arbitration agreement
and the employment agreement are void. First, her argument that the stand

- alone

agreement is “null and void” because Barrett’s Area Manager did not counter

- sign
the document until many months after she signed it is contrary to contact law. A

written contract binds a part y after he or she signs it, even under circumstances where
the other party did not, as long as both parties enjoy the benefit s of the bargain. 27 In

other words , a n agreement signed by one party binds that party if the course of

conduct between the two demonstrates mutual assent. 28 Here, Ms. Shelley signed
the arbitration agreement

, performed work at Barrett for almost four years, and
received pay and other benefits for that work. Accordingly, a Barrett
representative ’s failure to sign the a rbitration a greement contemporaneous ly wit h
Ms. Shelley does not render it void

.

the Court would ne ed to consider whether the recently enacted Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117

- 90 136 Stat. 26 (2021) (codified as amended at 9 U.S.C . § 402) would make the arbitration agreement unenforceable. In this case, even if Ms. Shelley had alleged sexual harassment, the Act would not apply because it is not retroactive

. See Woodruff v. Dollar Gen

. Corp

. , 2022 WL 17752359, at *3 (D. Del. Dec. 19, 2022) (exp laining that the Act does not apply retroactively to remove claims of sexual harassment and assault from mandatory arbitration). Ms. Shelley’s employment with Barrett ended in November 2021. Tr. Oral Arg. at 10. The Act’s effective date followed on Ma rch 3, 2022

. 27 Elia v. Hertrich Fam

. of Auto. Dealerships, Inc. , 103 A.3d 514 , 2014 WL 5410723 , at *1 n.3 (Del. Oct. 23, 2014) (TABLE) ( citing 2 Samuel Williston & Richard A. Lord Williston on Contracts § 6:44 (4th ed. 2003)).

28 He r trich , 2014 WL 5410723, at *1 n.3 ( citing 7 Phillip L. Bruner & Patrick J. O’Connor Construction Law § 21:46 (2014)).7

The remainder of Ms. Shelley’s contentions are also incorrect. Namely, there

is no basis in contract law to support the contention that the agreements became
unenforceable because she did not retain copies of them. 29 Nor is there a basis to
deem both agreements unenforceable because the employment agreement listed the

wrong name in one location

. Here, s he does not contend that she was unaware of
either provision. Moreover , she worked for Barrett for years and received pay fo r

her work.
Finally

, although the two agreements provide different methods to select an

arbitrator, the two documents define arbitrable disputes in the same way. Namely,
they include discrimination and harassment claims within the definition of arbitrable

matters. Ultimately, if the parties cannot agree regarding who should arbitrate the

matter, the differences in the two documents may leave a n open question. That
question, if it arises, would fall to the Court of Chan cery. 30 For purposes of this
Court’s review, however, the stand

- alone a rbitration a greemen t was valid, and its

scope encompasse d Ms. Shelley’s claims

.

Conclusion

For the reasons explained above, (1) t he parties entered a valid a rbitration

a greement
, and (2) Ms. Shelley’s claims fall within the scope of that agreemen t.
Accordingly, the Court lacks subject matter jurisdiction to consider her claims . As

a result, Barrett’s Motion is GRANTED , with prejudice as to this Court ’s

29 James & Jackson, LLC v. Willie Gary, LLC , 906 A.2d 76, 7 8

– 79 (Del. 2006) ( citing Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79 (2002))

. 30 See AffiniPay, LLC

, v. West , 2021 WL 4262225, at *5 (Del. Ch. Sept. 17, 2021) ( recognizing that the Court of Chancery has jurisdiction to evaluate and reconcile two competing arbitration clauses); see also Willie Gary, 906 A.2d at 79

– 80 (providing the proper framework for a court with jurisdiction to determine the arbitrability of a cause of action).8

jurisdiction , but without prejudice on the merits, so as to preserve Ms. Shelley’s
right to submit her claims to arbitration

. 31

IT IS SO ORDERED.

Very truly yours,

/s/ Jeffrey J Clark Resident Judge JJC:klc Via File & ServeXpress U.S. Mail to Plaintiff Kerriann Shelley

31 The Court recognizes the requirements of 10 Del. C. §1902

. Here, neither party has sought to submit the matter to arbitration. In fact, Barrett represented that it would not oppose arbitrating the matter. Accordingly, there is presently nothing to compel , leav ing Section 1902’s process for removal to the Court of Chancery untriggered. Under the se circumstances, the Court dismisses Ms. Shelley’s suit w ith prejudice as to any claims in this Court, with the intent to not prejudice the parties ’ abilit y to arbitrate the matter.