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March 8, 2004.


The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Plaintiff David Reineke filed this action against his former employer, Defendant Circuit City Stores, Inc., alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. Defendant moves to dismiss or stay the action and to compel arbitration pursuant to a Dispute Resolution Agreement that both parties signed at the time Plaintiff submitted his employment application,

Plaintiff argues that the court should deny Defendant's motions because Defendant failed to produced Plaintiff's complete personnel file, including his employment application, upon request, as required by the Illinois Personnel Record Review Act, 820 ILCS 40/1 et seq. In Plaintiff's view, the court should construe Defendant's failure to produce the personnel file as a concealment of a material fact, raising an equitable estoppel to the arbitration request In the alternative, Plaintiff argues that the court should decline to enforce the arbitration agreement because it denies him a forum to vindicate his statutory rights.

  For the reasons set forth here, the court concludes that Defendant's loss of Plaintiff's personnel file, while disappointing, does not defeat its right to compel arbitration of Plaintiff's claims. Defendant's motion is granted and this case is dismissed without prejudice. BACKGROUND

  Courts treat motions to compel arbitration as assertions that they are deprived of subject matter jurisdiction during the course of arbitration. Robert Half lnt'l, Inc. v. Thompson, No. 98 C 1080, 1999 WL 138849, at *1 (N.D. III. Mar. 5, 1999) (citing Evans v. Hudson Coal Co., 165 F.2d 970, 972 (3d Cir. 1948)). Accordingly, for purposes of this motion, the court draws the background facts from the parties' pleadings, but will also consider attached exhibits and affidavits. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Where the facts are disputed, the court accepts Plaintiff's version, Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987), but here the facts are largely undisputed.

  Plaintiff submitted an application for employment with Circuit City Stores on May 5, 1995. (Plaintiff's Employment Application, Exhibit 1 to Affidavit of Teri C. Miles (hereinafter, "Miles Aff."), Exhibit A to Defendant's Motion to Dismiss.) Plaintiff does not challenge Defendant's assertion that in 1995, its form employment application incorporated a Dispute Resolution Agreement ("DRA") calling for arbitration of "any and all . . . claims, disputes or controversies arising out of or relating to [the prospective employee's] application or candidacy for employment, employment and/or cessation of employment with Circuit City. . . ." including claims under federal or state statutes or at common law. (Id.) The DRA provided, further, that it could be used in support of a motion to dismiss and to compel arbitration. (Id.) Defendant furnished a copy of its Dispute Resolution Rules and Procedures to each job applicant. (Miles Aff. ¶ 5.) There is no genuine dispute that Plaintiff executed the DRA. A copy of the first page of Plaintiff's employment application, as well as the third page, which refers to the DRA and on which his signature appears, is attached as Exhibit 3 to the Miles Affidavit. (Employment Application pages, Exhibit 3 to Miles Aff.)

  Plaintiff nevertheless contends that Defendant lost its right to enforce the arbitration agreement because, at some point between 1995 and 2001, Defendant's managers misplaced Plaintiff's personnel file, and with it, the original signed copy of Plaintiff's application. In August 2001, Plaintiff went on medical leave due to a work-related eye injury (Complaint ¶ 8), and when he returned to work in October, he alleges, he learned he had been demoted to a position incompatible with accommodations he needed. (Complaint ¶¶ 13-16.) On November 2, 2001, Plaintiff's attorney requested that Defendant furnish a copy of Plaintiffs "entire personnel file," including, specifically, his employment application. (Nov. 2, 2001 Letter of Michael Delaney to Heather Crawford, Exhibit A to Plaintiff's Answer to Defendant's Motion to Dismiss (hereinafter, "Plaintiffs Response.").) Donna Hughes Latta of Defendant's legal department responded by letter dated November 14, 2001, advising Mr. Delaney that Defendant was "in the process of scanning personnel files" and that Mr. Reineke's file was missing; Ms. Latta promised to provide the file when it was available. (Nov. 14, 2001 Letter of Donna Hughes Latta to Michael Delaney, Exhibit B to Plaintiff's Response.)

  On December 5, 2001, Plaintiff filed a complaint with the Illinois Department of Labor under the Personnel Records Review Act, seeking access to his personnel file. (Department of Labor Complaint, Exhibit C to Plaintiff's Response.) Donna Hughes Latta responded to the complaint in a letter dated December 21, 2001 in which she explained that Defendant had not yet been able to locate Plaintiffs personnel file. (December 21, 2001 Letter of Donna Hughes Latta to Illinois Department of Labor, Exhibit E to Plaintiff's Response.) Plaintiff alleges that he was constructively discharged from his position with Defendant on May 22, 2002. (Complaint ¶ 20.) As of July 10, 2002, his personnel file was still missing. (July 10, 2001 Letter of Donna Hughes Latta to Michael Delaney, Exhibit K to Plaintiffs Response.) Plaintiff filed this lawsuit on May 13, 2003 (Complaint), and Defendant promptly moved to dismiss or stay the case and compel arbitration.


  The Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., governs the enforceability, validity, and interpretation of a contract's arbitration clause when the contract "evidenc[es] a transaction involving commerce." 9 U.S.C. § 2; see Jain v. de Mere, 51 F.3d 686, 688 (7th Cir. 1995). Arbitration agreements executed between employers and employees are enforceable under the FAA. Indeed, Defendant here won an important victory on this issue in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), where the Court held that, except where transportation workers' rights are at issue, employment contracts that include arbitration agreements are generally subject to enforcement pursuant to the FAA. Id. at 121-22. In a case such as this, where the rights invoked by Plaintiff are governed by federal law, the court has jurisdiction over Defendant's petition to compel arbitration of the dispute. 9 U.S.C. § 4, If the court determines that the parties have entered into an arbitration agreement and one party has failed to comply, the court "shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." Id.

  Longstanding federal policy strongly favors arbitration. Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 91 (2000) (citing Moses H. Cone Mem'l Hosp, v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)), and doubts concerning the scope of an arbitration clause should be resolved in favor of arbitration. Moses H. Cone, 460 U.S. at 25. Significantly, the party opposing the motion to compel arbitration bears the burden of establishing that Congress intended to preclude arbitration of the respective statutory claims. Id. at 92. With respect to issues of contract formation concerning the arbitration agreement, the court will rely on state law. Koveleskie v. SBC Capital Mkts., Inc., 167 F.3d 361, 367 (7th Cir. 1999); Gibson v. Neighborhood Health Clinics, Inc. 121 F.3d 1126, 1130 (7th Cir. 1997). In this case, the court looks to Illinois contract law because the agreement was signed and the dispute arose in Illinois. See Koveleskie, 167 F.3d at 367.

  Notably, Plaintiff does not argue that Congress has expressed an intention that FMLA or ADA claims may not be the subject of arbitration.*fn1 Instead, Plaintiff contends that Defendant's failure to meet its obligations under state law, specifically, the Illinois Personnel Record Review Act, 820 ILCS 40/1 et seq., estops it from seeking enforcement of the arbitration agreement. The Personnel Record Review Act guarantees Illinois workers the right, upon request, to review the personnel records maintained by their employers. An employer who fails willfully to provide such records on request is barred from using them in state court proceedings:
Personnel record information which was not included in the personnel record but should have been as required by this Act shall not be used by an employer in a judicial or quasi-judicial proceeding. However, personnel record information which, in the opinion of the judge in a judicial proceeding or the hearing officer in a quasi-judicial proceeding, was not intentionally excluded from the personnel record may be used by the employer in the proceeding if the employee agrees or has been given a reasonable time to review the information.
820 ILCS 40/4.

  For several reasons, this court concludes that the Personnel Record Review Act does not bar Defendant from seeking enforcement of the arbitration agreement here. First, as the Seventh Circuit explained in Park v. City of Chicago, 297 F.3d 606, 611-12 (7th Cir. 2002), it is the Federal Rules of Evidence, not state law principles, that control the admissibility of evidence in federal court. In Park, a Title VII case, plaintiff cited the Personnel Record Review Act in her motion to bar the introduction in evidence of documents that the defendant had produced in discovery but had not disclosed in response to plaintiff's earlier request for inspection of her personnel files. The district court denied that motion, and the Court of Appeals affirmed, citing Hanna v. Plumer, 380 U.S. 460 (1965), for the proposition that the admissibility of evidence and matters of practice and procedure are governed by federal law, not state law. This court is even less inclined to bar Defendant Circuit City from introducing the arbitration agreement which, unlike the documents at issue in Park, does not constitute substantive evidence relating to the merits of Plaintiff's statutory claims.

  In Park, the district court noted that there was no evidence that the defendant had intentionally withheld the documents at issue. The Personnel Record Review Act itself provides that where the court finds that personnel record information was not intentionally withheld from disclosure, such information is admissible if the employee is provided an opportunity to review the information. That test is clearly met in this case. There is no logical or factual basis here for a finding that Defendant's inability to produce the original personnel file was intentional. Further, although it is undisputed that Defendant has never produced Plaintiff's personnel file, it has in fact produced a copy of the arbitration agreement at issue in this case, Presumably from a source other than Plaintiff's personnel file, Defendant has located copies of certain pages of the arbitration agreement, including the signature page, Although Defendant did not retain a copy of page two of the agreement, it has provided a copy of that page from its form ...

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