DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROSS DRESS FOR LESS, INC. and ROBERT KMET,
Appellants,
v.
ANNIE HIGGINS, KEENA MURRAY-BAILEY, KATIE SEYMOUR and
QUINTAVIA THOMAS,
Appellees.
No. 4D18-3798
[June 26, 2019]
Appeal of nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case
No. CACE18012045.
Steven A. Siegel and Michael A. Holt of Fisher & Phillips LLP, Fort
Lauderdale, for appellants.
Chris Kleppin and Chelsea A. Lewis of Glasser & Kleppin, P.A.,
Plantation, for appellees.
GERBER, C.J.
The defendant-employer and the defendant-supervisor appeal from the
circuit court’s nonfinal order denying the defendants’ motion to compel
arbitration of, and stay judicial proceedings on, the plaintiff-employees’
claims. The defendants argue that the circuit court erred in finding that
the plaintiffs’ claims – for discrimination, retaliation, and hostile work
environment in violation of the Florida Civil Rights Act, and for negligent
infliction of emotional distress – were outside the scope of the plaintiffs’
arbitration agreement with the employer. According to the defendants, the
plaintiffs’ claims fall within the scope of the parties’ arbitration agreement.
Applying de novo review, we agree with the defendants and reverse. See
Am. Mgmt. Servs., Inc. v. Merced,
186 So. 3d 612, 614 (Fla. 4th DCA 2016)
(“On appeal from the denial of a motion to compel arbitration, the trial
court’s factual findings are reviewed for competent substantial evidence,
but the court’s legal analysis is reviewed de novo.”) (emphasis added).
The Three Elements in Ruling on a Motion to Compel Arbitration
“Under both federal statutory provisions and Florida’s arbitration code,
there are three elements for courts to consider in ruling on a motion to
compel arbitration of a given dispute: (1) whether a valid written agreement
to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether
the right to arbitration was waived.” Seifert v. U.S. Home Corp.,
750 So. 2d
633, 636 (Fla. 1999). Here, all three elements favor the defendants.
First, a valid written agreement to arbitrate exists between the plaintiffs
and the defendants. In 2011, all four plaintiffs electronically agreed to the
defendant-employer’s Dispute Resolution Agreement providing, in
pertinent part:
This Agreement sets forth the procedures that you and [the
employer] mutually agree must be used to resolve disputes
arising out of or relating to your employment with [the employer]
or its termination. Disputes subject to this Agreement will be
resolved by mediation or final and binding arbitration and not
by a court or jury.
This Agreement covers disputes both between you and [the
employer] or you and any other . . . agent or employee of
[employer], regardless of who initiates the claim. Covered
disputes include, but are not limited to . . . termination,
harassment, discrimination and claims based on the Civil
Rights Act of 1964 . . . and similar state statutes and any
related common law claims.
(emphasis added).
Second, an arbitrable issue exists. The plaintiffs’ claims – for
discrimination, retaliation, and hostile work environment in violation of
the Florida Civil Rights Act, and for negligent infliction of emotional
distress – all arise out of and relate to their employment with the
defendant-employer, involve disputes between the plaintiffs and the
defendants, and fall squarely within the “covered disputes” quoted above.
See Seifert,
750 So. 2d at 637 (“[T]he phrase ‘arising out of or relating to’
the contract has been interpreted broadly to encompass virtually all
disputes between the contracting parties, including related tort claims.”);
Santos v. Gen. Dynamics Aviation Servs. Corp.,
984 So. 2d 658, 660 (Fla.
4th DCA 2008) (rejecting plaintiff’s argument that “claims brought under
the Florida Civil Rights Act are not subject to arbitration because the
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legislature set up a statutory right for individuals to have their day in
court”).
Third, the defendants have not waived their right to arbitration. The
plaintiffs argue that the defendants waived their right to arbitration by
seeking a no-cause determination in response to the plaintiffs’ charges
of discrimination made to the EEOC before the plaintiffs filed this action.
However, we disagree with the plaintiffs’ argument. We recently have held
that “[a]n employer does not waive arbitration by participating in EEOC
proceedings.” Darden Rests., Inc. v. Ostanne,
255 So. 3d 382, 385 (Fla.
4th DCA 2018). See also Brown v. ITT Consumer Fin. Corp.,
211 F.3d
1217, 1222-23 (11th Cir. 2000) (employer did not waive its right to arbitrate
by not raising the arbitration issue with the EEOC).
Conclusion
Based on the foregoing, we reverse the circuit court’s nonfinal order
denying the defendants’ motion to compel arbitration of, and stay judicial
proceedings on, the plaintiff-employees’ claims. We remand for the circuit
court to grant the motion.
Reversed and remanded to grant motion to compel arbitration.
TAYLOR and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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