Fatemeh Johnmohammadi v. Bloomingdale's, Inc. , 755 F.3d 1072 ( 2014 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    FATEMEH JOHNMOHAMMADI,                             No. 12-55578
    individually and on behalf of other
    persons similarly situated,                          D.C. No.
    Plaintiff-Appellant,            2:11-cv-06434-
    GW-AJW
    v.
    BLOOMINGDALE’S, INC.,                                OPINION
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Central District of California
    George H. Wu, District Judge, Presiding
    Argued and Submitted
    December 6, 2013—Pasadena, California
    Filed June 23, 2014
    Before: John T. Noonan and Paul J. Watford, Circuit
    Judges, and William E. Smith, Chief District Judge.*
    Opinion by Judge Watford
    *
    The Honorable William E. Smith, Chief District Judge for the U.S.
    District Court for the District of Rhode Island, sitting by designation.
    2           JOHNMOHAMMADI V. BLOOMINGDALE’S
    SUMMARY**
    Arbitration / Class Action
    The panel affirmed the district court’s order granting the
    motion of Bloomingdale’s, Inc. to compel arbitration under
    the Federal Arbitration Act, and dismissing without prejudice
    the putative class action brought by a former employee to
    recover unpaid overtime wages.
    The arbitration agreement, contained in Bloomingdale’s
    employment documents, provided that employees who fail to
    opt out waive their right to pursue employment-related claims
    on a collective basis in any forum, judicial or arbitral.
    The panel held that the district court correctly held that
    the arbitration agreement was valid, and under the Federal
    Arbitration Act it must be enforced according to its terms.
    The panel held that the employee had the right to opt out of
    the arbitration agreement, and had she done so she would be
    free to pursue this class action in court. The panel further
    held that having freely elected to arbitrate employment-
    related disputes on an individual basis, without interference
    from Bloomingdale’s, the employee could not claim that
    enforcement of the arbitration agreement violated either the
    Norris-LaGuardia Act or the National Labor Relations Act.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    JOHNMOHAMMADI V. BLOOMINGDALE’S                    3
    COUNSEL
    Dennis F. Moss (argued), Sherman Oaks, California; Ira
    Spiro, Spiro Moore, LLP, Los Angeles, California; Sahag
    Majarian II, Law Offices of Sahag Majarian II, Tarzana,
    California, for Plaintiff-Appellant.
    David E. Martin (argued) and Catherine E. Sison, Macy’s
    Inc., St. Louis, Missouri; John S. Curtis, Law Offices of Julia
    Azrael, North Hollywood, California, for Defendant-
    Appellee.
    Andrew J. Pincus (argued), Evan M. Tager, Archis A.
    Parasharami, and Richard B. Katskee, Mayer Brown LLP,
    Washington, D.C.; Robin S. Conrad and Shane B. Kawka,
    National Chamber Litigation Center, Inc., Washington, D.C.,
    for Amicus Curiae Chamber of Commerce of the United
    States of America.
    Cliff Palefsky and Scott Stillman, McGuinn, Hillsman &
    Palefsky, San Francisco, California, for Amicus Curiae
    California Employment Lawyers Association.
    Jeffrey A. Berman and James M. Harris, Seyfarth Shaw LLP,
    Los Angeles, California, for Amicus Curiae California
    Employment Law Council.
    4         JOHNMOHAMMADI V. BLOOMINGDALE’S
    OPINION
    WATFORD, Circuit Judge:
    This is a class action brought by plaintiff Fatemeh
    Johnmohammadi to recover unpaid overtime wages from
    defendant Bloomingdale’s, Inc., her former employer. All of
    Johnmohammadi’s claims arise under state law and are
    asserted on behalf of similarly situated current and former
    California employees. Johnmohammadi initially filed the
    action in state court, but Bloomingdale’s removed the action
    to federal court under the Class Action Fairness Act of 2005.
    See 
    28 U.S.C. §§ 1332
    (d)(2), 1453(b).
    Once in federal court, Bloomingdale’s moved to compel
    arbitration under the Federal Arbitration Act (FAA), 
    9 U.S.C. § 1
     et seq., and asked the district court to stay the action
    pending completion of arbitration. The court granted the
    motion to compel. It determined that shortly after being hired
    by Bloomingdale’s, Johnmohammadi entered into a valid,
    written arbitration agreement and that all of her claims fall
    within the scope of that agreement.
    In these circumstances § 3 of the FAA, 
    9 U.S.C. § 3
    ,
    seems to direct that the action “shall” be stayed pending
    completion of arbitration, as two other circuits have held.
    Lloyd v. Hovensa, LLC, 
    369 F.3d 263
    , 268–69 (3d Cir. 2004);
    Adair Bus Sales, Inc. v. Blue Bird Corp., 
    25 F.3d 953
    , 955
    (10th Cir. 1994). We have held that, notwithstanding the
    language of § 3, a district court may either stay the action or
    dismiss it outright when, as here, the court determines that all
    of the claims raised in the action are subject to arbitration.
    Sparling v. Hoffman Constr. Co., 
    864 F.2d 635
    , 638 (9th Cir.
    1988). The choice matters for purposes of appellate
    JOHNMOHAMMADI V. BLOOMINGDALE’S                     5
    jurisdiction: An order compelling arbitration and staying the
    action isn’t immediately appealable, 
    9 U.S.C. § 16
    (b)(1)–(2);
    Green Tree Fin. Corp.-Ala. v. Randolph, 
    531 U.S. 79
    , 87 n.2
    (2000), but an order compelling arbitration and dismissing the
    action is. § 16(a)(3); Green Tree, 
    531 U.S. at 89
    . The district
    court chose to dismiss Johnmohammadi’s action without
    prejudice, so we have jurisdiction to hear this appeal. See
    Interactive Flight Techs., Inc. v. Swissair Swiss Air Transp.
    Co., 
    249 F.3d 1177
    , 1179 (9th Cir. 2001).
    The relevant facts aren’t in dispute.                 When
    Bloomingdale’s hired Johnmohammadi as a sales associate,
    she received a set of documents describing the company’s
    dispute resolution program. Those documents informed her
    that she agreed to resolve all employment-related disputes
    through arbitration unless she returned an enclosed form
    within 30 days electing, as the form put it, “NOT to be
    covered by the benefits of Arbitration.” Johnmohammadi did
    not return the opt-out form. She does not contest the district
    court’s findings that she made a fully informed and voluntary
    decision, and that no threats of termination or retaliation were
    made to influence her decision. By not opting out within the
    30-day period, she became bound by the terms of the
    arbitration agreement. See Circuit City Stores, Inc. v. Ahmed,
    
    283 F.3d 1198
    , 1199–1200 (9th Cir. 2002).
    The arbitration agreement is quite detailed, but the
    provision that matters here is the one that forbids arbitration
    on a class-wide basis: “The Arbitrator shall not consolidate
    claims of different Associates into one (1) proceeding, nor
    shall the Arbitrator have the power to hear an arbitration as a
    class action . . . .” Employees who fail to opt out waive their
    right to pursue employment-related claims on a collective
    basis in any forum, judicial or arbitral. The only question
    6               JOHNMOHAMMADI V. BLOOMINGDALE’S
    before us is whether this provision is enforceable; if it is,
    Johnmohammadi may not proceed with this action.
    Johnmohammadi can’t argue that the class-action waiver
    is unenforceable under California law. See AT&T Mobility
    LLC v. Concepcion, 
    131 S. Ct. 1740
    , 1750–51 (2011). She
    argues instead that federal law renders the waiver
    unenforceable, relying on provisions in two federal labor
    statutes. The first statute, the Norris-LaGuardia Act,
    
    29 U.S.C. § 101
     et seq., states that, as a matter of public
    policy, employees “shall be free from the interference,
    restraint, or coercion of employers of labor, or their agents, in
    the designation of . . . representatives [of their own choosing]
    or in self-organization or in other concerted activities for the
    purpose of collective bargaining or other mutual aid or
    protection.” § 102 (emphasis added).1 The Act declares that
    1
    Section 102 currently provides:
    In the interpretation of this chapter and in determining
    the jurisdiction and authority of the courts of the United
    States, as such jurisdiction and authority are defined
    and limited in this chapter, the public policy of the
    United States is declared as follows:
    Whereas under prevailing economic conditions,
    developed with the aid of governmental authority for
    owners of property to organize in the corporate and
    other forms of ownership association, the individual
    unorganized worker is commonly helpless to exercise
    actual liberty of contract and to protect his freedom of
    labor, and thereby to obtain acceptable terms and
    conditions of employment, wherefore, though he should
    be free to decline to associate with his fellows, it is
    necessary that he have full freedom of association,
    self-organization, and designation of representatives of
    his own choosing, to negotiate the terms and conditions
    JOHNMOHAMMADI V. BLOOMINGDALE’S                          7
    any “undertaking or promise in conflict with the public policy
    declared in section 102 . . . shall not be enforceable in any
    court of the United States.” § 103.
    The second statute, the National Labor Relations Act
    (NLRA), 
    29 U.S.C. § 151
     et seq., says essentially the same
    thing. Section 7 of the NLRA grants covered employees, see
    § 152(3), certain substantive rights, among them the right “to
    engage in other concerted activities for the purpose of
    collective bargaining or other mutual aid or protection.”
    § 157 (emphasis added).2 Section 8(a)(1), in turn, makes it
    of his employment, and that he shall be free from the
    interference, restraint, or coercion of employers of
    labor, or their agents, in the designation of such
    representatives or in self-organization or in other
    concerted activities for the purpose of collective
    bargaining or other mutual aid or protection; therefore,
    the following definitions of and limitations upon the
    jurisdiction and authority of the courts of the United
    States are enacted.
    
    29 U.S.C. § 102
    .
    2
    Section 7 currently provides:
    Employees shall have the right to self-organization, to
    form, join, or assist labor organizations, to bargain
    collectively through representatives of their own
    choosing, and to engage in other concerted activities for
    the purpose of collective bargaining or other mutual aid
    or protection, and shall also have the right to refrain
    from any or all of such activities except to the extent
    that such right may be affected by an agreement
    requiring membership in a labor organization as a
    8          JOHNMOHAMMADI V. BLOOMINGDALE’S
    illegal for an employer “to interfere with, restrain, or coerce
    employees in the exercise of rights guaranteed in section
    157.” § 158(a)(1).
    Johnmohammadi contends that filing this class action on
    behalf of her fellow employees is one of the “other concerted
    activities” protected by the Norris-LaGuardia Act and the
    NLRA. There is some judicial support for her position. See,
    e.g., Eastex, Inc. v. NLRB, 
    437 U.S. 556
    , 565–66 (1978);
    Brady v. Nat’l Football League, 
    644 F.3d 661
    , 673 (8th Cir.
    2011); Mohave Elec. Coop, Inc. v. NLRB, 
    206 F.3d 1183
    ,
    1189 (D.C. Cir. 2000); Salt River Valley Water Users’ Ass’n
    v. NLRB, 
    206 F.2d 325
    , 328 (9th Cir. 1953). But we need not
    decide whether Johnmohammadi has correctly interpreted this
    statutory phrase. To prevail, she must still show that
    Bloomingdale’s interfered with, restrained, or coerced her in
    the exercise of her right to file a class action. In our view,
    Bloomingdale’s did none of these things.
    We can quickly dismiss any notion that Bloomingdale’s
    coerced Johnmohammadi into waiving her right to file a class
    action. Bloomingdale’s did not require her to accept a class-
    action waiver as a condition of employment, as was true in In
    re D.R. Horton, Inc., 357 N.L.R.B. No. 184, 
    2012 WL 36274
    (Jan. 3, 2012), enforcement denied in part, 
    737 F.3d 344
     (5th
    Cir. 2013). Bloomingdale’s gave her the option of
    participating in its dispute resolution program, which would
    require her to arbitrate any employment-related disputes on
    an individual basis.         As the district court found,
    condition of employment as authorized in section
    158(a)(3) of this title.
    
    29 U.S.C. § 157
    .
    JOHNMOHAMMADI V. BLOOMINGDALE’S                      9
    Johnmohammadi was fully informed about the consequences
    of making that election, and she did so free of any express or
    implied threats of termination or retaliation if she decided to
    opt out of arbitration. She has not challenged those findings.
    There is thus no basis for concluding that Bloomingdale’s
    coerced Johnmohammadi into waiving her right to file a class
    action.
    Nor is there any basis for concluding that Bloomingdale’s
    interfered with or restrained Johnmohammadi in the exercise
    of her right to file a class action. If she wanted to retain that
    right, nothing stopped her from opting out of the arbitration
    agreement. Bloomingdale’s merely offered her a choice:
    resolve future employment-related disputes in court, in which
    case she would be free to pursue her claims on a collective
    basis; or resolve such disputes through arbitration, in which
    case she would be limited to pursuing her claims on an
    individual basis. In the absence of any coercion influencing
    the decision, we fail to see how asking employees to choose
    between those two options can be viewed as interfering with
    or restraining their right to do anything.
    Johnmohammadi attempts to analogize the choice
    Bloomingdale’s offered her to other types of employer
    misconduct that violate § 8(a)(1) of the NLRA. Specifically,
    she invokes cases in which the employer offered its
    employees a benefit, such as a raise, in exchange for the
    employee’s agreement to refrain from protected activity. See,
    e.g., Nat’l Licorice Co. v. NLRB, 
    309 U.S. 350
    , 360 (1940);
    NLRB v. Stone, 
    125 F.2d 752
    , 754, 756 (7th Cir. 1942); In re
    Ishikawa Gasket Am., Inc., 
    337 N.L.R.B. 175
    , 175–76 (2001).
    She contends Bloomingdale’s did the same thing by offering
    employees the “benefit” of resolving all employment-related
    10        JOHNMOHAMMADI V. BLOOMINGDALE’S
    disputes through arbitration in exchange for the employee’s
    agreement not to file or join a class action.
    To prevail on this argument, Johnmohammadi would need
    to show that offering the arbitration agreement constitutes
    “conduct immediately favorable to employees,” which
    Bloomingdale’s undertook with the express purpose of
    impinging upon its employees’ “freedom of choice” in
    deciding whether to waive or retain their right to participate
    in class litigation. NLRB v. Exch. Parts Co., 
    375 U.S. 405
    ,
    409 (1964); see also NLRB v. Anchorage Times Pub’g Co.,
    
    637 F.2d 1359
    , 1367 (9th Cir. 1981). We don’t doubt that
    offering the arbitration agreement could be viewed as conduct
    favorable to employees, since the benefits of having an
    arbitral forum available to resolve workplace disputes can be
    substantial. For certain types of disputes the speed,
    informality, and lower costs of arbitration provide real
    advantages over litigating in court. See Concepcion, 
    131 S. Ct. at 1749, 1751
    . But arbitration comes with disadvantages
    of its own, which, depending on the nature of the dispute,
    may make it a less attractive forum for employees. At the
    outset of the employment relationship, before an employee
    knows what types of workplace-related disputes she may later
    encounter, the benefits (and costs) of prospectively agreeing
    to arbitrate all such disputes are decidedly uncertain, even
    putting aside the class-action waiver. We don’t think the
    offer of those benefits is of such a character that it would tend
    to interfere with an employee’s freedom of choice about
    whether to forgo future participation in class actions. And
    Johnmohammadi has offered no evidence that
    Bloomingdale’s offered those benefits with the express
    purpose of curtailing its employees’ freedom of choice.
    Indeed, it would be difficult for Johnmohammadi to make
    such a showing here, given that the presumed benefits of
    JOHNMOHAMMADI V. BLOOMINGDALE’S                  11
    agreeing to arbitrate all employment-related disputes would
    largely be lost if the agreement permitted class-wide
    arbitration. See 
    id.
    Johnmohammadi also argues that, whether procured by
    way of inducement or not, an employee may never waive the
    right to participate in class litigation by negotiating an
    individual contract with her employer. She relies principally
    on J. I. Case Co. v. NLRB, 
    321 U.S. 332
     (1944), but that case
    does not support the broad proposition she urges us to adopt.
    The Court held in J. I. Case that an employer may not
    negotiate individual contracts with employees and then refuse
    to engage in collective bargaining with the employees’
    designated union representatives on the ground that doing so
    would violate the terms of the individual contracts. 
    Id. at 337
    . The Court reasoned that any collective bargaining
    agreement reached between the union and the employer
    would necessarily supersede an employee’s individual
    contract, to the extent that the terms of the collective
    bargaining agreement were more favorable to the employee.
    
    Id.
     at 338–39. But the Court also stressed that nothing
    prevents an employee from making an individual contract
    with her employer, “provided it is not inconsistent with a
    collective agreement or does not amount to or result from or
    is not part of an unfair labor practice.” 
    Id. at 339
    . Here,
    Johnmohammadi was not covered by a collective bargaining
    agreement, and for the reasons discussed above, we do not
    believe her decision to enter into the arbitration agreement
    amounted to or resulted from an unfair labor practice.
    In sum, Johnmohammadi had the right to opt out of the
    arbitration agreement, and had she done so she would be free
    to pursue this class action in court. Having freely elected to
    arbitrate employment-related disputes on an individual basis,
    12        JOHNMOHAMMADI V. BLOOMINGDALE’S
    without interference from Bloomingdale’s, she cannot claim
    that enforcement of the agreement violates either the Norris-
    LaGuardia Act or the NLRA. The district court correctly
    held that the arbitration agreement is valid. Under the FAA
    it must be enforced according to its terms. See Am. Express
    Co. v. Italian Colors Rest., 
    133 S. Ct. 2304
    , 2309 (2013).
    AFFIRMED.
    

Document Info

Docket Number: 12-55578

Citation Numbers: 755 F.3d 1072, 22 Wage & Hour Cas.2d (BNA) 1428, 199 L.R.R.M. (BNA) 3769, 2014 U.S. App. LEXIS 11743, 2014 WL 2808135

Judges: Noonan, Watford, Smith

Filed Date: 6/23/2014

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (16)

Eastex, Inc. v. National Labor Relations Board , 98 S. Ct. 2505 ( 1978 )

American Express Co. v. Italian Colors Restaurant , 133 S. Ct. 2304 ( 2013 )

Circuit City Stores, Inc., a Virginia Corporation v. ... , 283 F.3d 1198 ( 2002 )

Adair Bus Sales, Inc. v. Blue Bird Corporation , 25 F.3d 953 ( 1994 )

National Licorice Co. v. National Labor Relations Board , 60 S. Ct. 569 ( 1940 )

National Labor Relations Board v. Stone , 125 F.2d 752 ( 1942 )

Salt River Valley Water Users Ass’n v. National Labor ... , 206 F.2d 325 ( 1953 )

National Labor Relations Board v. Exchange Parts Co. , 84 S. Ct. 457 ( 1964 )

National Labor Relations Board v. Anchorage Times ... , 637 F.2d 1359 ( 1981 )

Brady v. National Football League , 644 F.3d 661 ( 2011 )

michael-j-sparling-jean-sparling-active-erectors-installers-inc-v , 864 F.2d 635 ( 1988 )

At&T Mobility LLC v. Concepcion , 131 S. Ct. 1740 ( 2011 )

Bruno Lloyd v. Hovensa, LLC Wyatt, V.I., Inc. Bruno Lloyd v.... , 369 F.3d 263 ( 2004 )

Interactive Flight Technologies, Inc. v. Swissair Swiss Air ... , 249 F.3d 1177 ( 2001 )

J. I. Case Co. v. National Labor Relations Board , 64 S. Ct. 576 ( 1944 )

Mohave Electric Cooperative, Inc. v. National Labor ... , 206 F.3d 1183 ( 2000 )

View All Authorities »