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Dale Mecherle v. Trugreen

September 14, 2012

DALE MECHERLE, PLAINTIFF,
v.
TRUGREEN, INC., A DELAWARE CORPORATION, TRUGREEN COMPANIES, LLC, A DELAWARE CORPORATION, AND THE SERVICEMASTER COMPANY, A DELAWARE CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Dale Mecherle sued Defendants Trugreen, Inc., Trugreen Companies, LLC, and The Servicemaster Company (collectively "Defendants") for violations of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12117, and for retaliatory discharge under Illinois law, based on Defendants' alleged failure to accommodate his disability and termination of his employment. Now before the court is Defendants' Motion to Compel Arbitration pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 3, and Federal Rule of Civil Procedure 12(b)(6). Defendants argue that Mecherle is a party to a dispute resolution program that requires him to arbitrate his claims. The court agrees and grants Defendants' Motion to Compel Arbitration.

I. BACKGROUND

A. Mecherle's Allegations

Mecherle was employed by TruGreen Limited Partnership ("TruGreen"), a subsidiary of The ServiceMaster Company ("ServiceMaster"), beginning in approximately 1989. According to the Complaint, Mecherle began working as a service manager for Defendants in approximately 2005. In 2007 and 2010, as a result of work related injuries, Mecherle had surgery on his shoulders. This limited his ability to lift, perform manual tasks, push and pull, and do repetitive overhead work. According to Mecherle, however, he was able to perform the essential functions of his job.

Prior to 2010, Mecherle was allowed to continue to work despite his limitations. Mecherle alleges that, after a medical leave in June 2010, he was released by his physician to perform his managerial duties, but Defendants refused to allow him to return to work. In January 2011, after Mecherle's second shoulder surgery, Defendants again refused to allow him to return to work or to consider any accommodations for him.

In or about February 2011, Defendants told Mecherle that his service manager position had been filled and that there were no open manager positions, but that he could apply for a position if one became available in the future. Mecherle alleges that he subsequently applied for open manager positions, but Defendants told him there were no open positions-despite posted vacancies-or told him that he could not perform the jobs for which he applied. Defendants formally terminated Mecherle's employment on March 5, 2012. Mecherle alleges that Defendants accommodated other managers who had physical and weight-lifting restrictions similar to or more restrictive than Mecherle's, and that Defendants' refusal to accommodate him violated the ADA. Mecherle further alleges that Defendants terminated him, in violation of Illinois common law, in retaliation for incurring a work-related injury and for filing a claim under the Worker's Compensation Act for his work-related injury.

B. The "We Listen" Program

Defendants argue that, effective January 1, 2009, ServiceMaster implemented an alternative dispute resolution program known as "We Listen" to be utilized by its subsidiaries, including Mecherle's employer, TruGreen. Under the program, employees agreed as a term and condition of their employment to use the program to address any employment-related complaints, including discrimination on the basis of disability, retaliation, and wrongful discharge. The program entails an internal dispute resolution procedure, followed, if necessary, by arbitration.

Defendants contend that Mecherle was made aware of the "We Listen" program and voluntarily agreed to submit his employment-related disputes to arbitration. Defendants submit as evidence of the fact that Mecherle was on notice of the program the declaration of Roy Cohen, ServiceMaster's Vice President of Human Resources. Cohen states that Mecherle was given access to and a copy of the "We Listen" program on or about December 15, 2008. (Defs.' Mem. in Supp. of Mot. to Compel Ex. 1 (Cohen Decl.) ¶ 10, ECF No. 15; Ex. 1-B ("We Listen" Program).) The packet of "We Listen" materials dated December 15, 2008, submitted as an exhibit to Cohen's declaration, states that the plan covers all "associates" employed by ServiceMaster. ("We Listen" Program 7.) It further states that employees "are automatically required to use th[e] program if after January 1, 2009," they continue their employment with ServiceMaster. (Id.) A section of the packet entitled "Questions and Answers" states:

After January 1, 2009, all ServiceMaster associates . . . in the United States are required to use the We Listen program: administrative support staff, professionals, technicians, laborers, sales associates, managers and senior executives. In addition, all ServiceMaster associates who leave ServiceMaster employment after January 1, 2009, are required to use We Listen to resolve ServiceMaster employment-related issues.

(Id. at 13.) According to Defendants, on October 27, 2009, Mecherle completed an online training course on the "We Listen" program, as evidenced by a copy of his training log, which indicates that the "We Listen" training module was accessed and completed on that date. (Id. at ¶ 11; Ex. 1-D (Training Log).)

Defendants further claim that in 2010, Mecherle received a copy of the TruGreen Associate Handbook, dated January 1, 2010, which referenced the "We Listen" program and informed employees that the complete program was available for online review. (Defs.' Mem. in Supp. of Mot. to Compel Ex. 1-E (Handbook).) On February 22, 2010, Mecherle electronically signed and acknowledged receiving the Handbook. By clicking a box, Mecherle indicated that he "agree[d] with the conditions specified" in the Handbook, including the requirement that he utilize the "We Listen" program "to resolve any and all work-related disputes/concerns and to arbitrate such disputes if they are not resolved." (Defs.' Mem. in Supp. of Mot. to Compel Ex. 1-F (Handbook Acknowledgement Form).) A revised version of the "We Listen" program was mailed to Mecherle's home on December 14, 2011. (Cohen Decl. ¶ 14; Defs.' Mem. in Supp. of Mot. to Compel Ex. 1-C (2012 Revision).)

In response, Mecherle states in an affidavit that in or about October 2009, he "was told that as a manager," he was to undergo online training on the "We Listen" program, but that "[t]o the best of [his] memory, [he] did not receive any information at that time about having to resolve any complaints . . . through any arbitration process." (Pl.'s Resp. to Defs.' Mot. to Compel Ex. 1 (Mecherle Aff.) ΒΆ 2, ECF No. 18-1.) He further states that he "was not told in either ...


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