UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DOROTHY POTEAT, 

Plaintiff-Appellee,

v.  No. 03-1497

RICH PRODUCTS CORPORATION,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Rock Hill.

Matthew J. Perry, Jr., Senior District Judge.

(CA-03-123-0)

Submitted: December 31, 2003

Decided: January 23, 2004

Before NIEMEYER and SHEDD, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion. 

COUNSEL

Sue Erwin Harper, William C. Wood, Jr., Debbie Whittle Durban,

NELSON, MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appellant. Thomas B. Smith, SMITH LAW

FIRM, P.A., Easley, South Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Rich Products Corp. ("Rich Products") appeals a district court’s

order denying its Motion to Compel Arbitration and Dismiss or Stay

Claims.1 Rich Products, headquartered in New York, hired Dorothy

Poteat, a South Carolina resident, in 2000 as a bakery trainer/consultant. On January 13, 2003, Poteat filed a complaint against

Rich Products under the Fair Labor Standards Act ("FLSA"), 29

U.S.C. §§ 201-219 (2000), alleging that for the past three years she

worked an average of at least sixty hours per week, that she was entitled to overtime compensation of at least one and one-half times her

regularly hourly rate for all hours worked in every work week in

excess of forty hours, and that Rich Product’s failure to give her such

compensation violated the FLSA. 

Rich Products moved to compel arbitration based on an arbitration

provision in an Associate Agreement ("Agreement") signed by Poteat

in New York in October 2000, approximately three months after she

commenced employment. Poteat opposed the motion, maintaining

that the agreement to arbitrate never came into effect because the

Agreement was not signed by Rich Products, and that even assuming

it was valid, the arbitration provision violates public policy because

it forces her to relinquish certain statutory rights afforded under the

FLSA. For the following reasons, we vacate the district court’s order

and remand with instructions to grant the motion to compel arbitration

and dismiss the action. 

As a threshold matter, we note that we have jurisdiction over this

appeal. We may exercise jurisdiction only over final orders under 28

U.S.C. § 1291 (2000), and certain interlocutory and collateral orders

1We previously granted the parties’ joint motion to submit this case on

briefs. 

2 POTEAT v. RICH PRODUCTS CORP.
under 28 U.S.C. § 1292 (2000). See also Fed. R. Civ. P. 54(b); Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The Federal

Arbitration Act ("FAA"), however, expressly permits an immediate

appellate challenge to a district court’s denial of a motion to compel

arbitration and motion to stay proceedings pending the outcome of

arbitration. 9 U.S.C. § 16(a)(1)(A)-(B) (2000); Am. Cas. Co. v. L-J,

Inc., 35 F.3d 133, 135 (4th Cir. 1994); see also Kansas Gas & Elec.

Co. v. Westinghouse Elec. Corp., 861 F.2d 420, 422 (4th Cir. 1988)

(finding district court order denying motion to compel arbitration an

appealable interlocutory order under 28 U.S.C. § 1292(a)(1) (1994)).

We review the district court’s denial of the motion de novo. Johnson

v. Circuit City Stores, 148 F.3d 373, 377 (4th Cir. 1998). 

In the Fourth Circuit, a litigant can compel arbitration under the

FAA if he can demonstrate (1) the existence of a dispute between the

parties, (2) a written agreement that includes an arbitration provision

which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign

commerce, and (4) the failure, neglect or refusal of the defendant to

arbitrate the dispute.2 Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-

01 (4th Cir. 2002). Agreements to arbitrate are construed according

to ordinary rules of contract interpretation, as augmented by a federal

policy requiring that all ambiguities be resolved in favor of arbitration. Choice Hotels Int’l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d

707, 710 (4th Cir. 2001). Whether a party agreed to arbitrate a particular dispute is a question of state law governing contract formation.

Adkins, 303 F.3d at 501. 

We must first determine which state’s law must be applied in determining whether the agreement to arbitrate is enforceable. We find that

under either New York law or South Carolina law, the agreement to

arbitrate is enforceable. See Crawford v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 319 N.E.2d 408, 412 (N.Y. 1974) (holding that

employer who had not signed employment agreement containing arbitration clause could enforce the arbitration clause); Rudolph & Beer,

LLP v. Roberts, 688 N.Y.S.2d 553, 555 (N.Y. App. Div. 1999) (noting that there is no requirement that an agreement to arbitrate be

signed by a party against whom arbitration is sought and that, presum2Poteat does not dispute that these requirements have been met. 

POTEAT v. RICH PRODUCTS CORP. 3
ably, it is even clearer that it is unnecessary that it be signed by the

party seeking enforcement); see also Jaffe v. Gibbons, 351 S.E.2d

343, 346 (S.C. 1986) ("A contract does not always require the signature of both parties; it may be sufficient, if signed by one and

accepted and acted on by the other"); Peddlar, Inc. v. Rikard, 221

S.E.2d 115, 117 (S.C. 1975) (holding that when a contract signed by

one party only is accepted by the other party, it becomes binding upon

both just as if it were signed by both); Bishop Realty and Rentals, Inc.

v. Perks, Inc., 355 S.E.2d 298, 300 (S.C. Ct. App. 1987) (holding contract was enforceable by party who did not sign the contract in light

of fact that non-signatory party drafted the entire sales contract, its

logo appeared at the top, and it retained a copy of the signed instrument in its files). We therefore find that the agreement to arbitrate is

valid. 

Last, we turn to the issue of whether the arbitration provision in the

subject Agreement violates public policy. Specifically, Poteat argues

on appeal, as she did below, that if the Agreement is otherwise

deemed valid, arbitration should not be compelled because its terms

force her to relinquish many of her statutory rights under the FLSA,

thereby violating public policy. 

Poteat relies on the Supreme Court’s decision in Barrentine v.

Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981), for the

proposition that a plaintiff’s FLSA rights are not waivable. However,

Barrentine was limited to the case of collective-bargaining arbitration. Adkins, 303 F.3d at 506. Furthermore, subsequent to Barrentine,

the Supreme Court has made clear that statutory claims may be made

subject to arbitration by agreement of the parties. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) ("By agreeing to

arbitrate a statutory claim, a party does not forgo the substantive

rights afforded by the statute; it only submits to their resolution in an

arbitral, rather than a judicial forum."); see also Adkins, 303 F.3d at

506 (holding that FLSA claims may properly be resolved in mandatory arbitration proceedings). We further find Poteat’s arguments that

the arbitration provision strips away certain statutory rights under the

FLSA without merit. 

Because the arbitration provision is valid under either New York

or South Carolina law, FLSA claims may be subject to arbitration,

4 POTEAT v. RICH PRODUCTS CORP.
and the arbitration provision does not take away Poteat’s statutory

rights under the FLSA, the district court erred in denying Rich Product’s motion to compel arbitration and dismiss or stay proceedings.

Accordingly, we vacate the court’s order denying Rich Product’s

motion to compel and remand with instructions to grant the motion

to compel arbitration and dismiss the action. See Choice Hotels, 252

F.3d at 709-10 (holding that dismissal is a proper remedy when all of

the issues presented in a lawsuit are arbitrable). 

VACATED AND REMANDED WITH INSTRUCTIONS

POTEAT v. RICH PRODUCTS CORP. 5