United States District Court, N.D. Illinois, Eastern Division
Karina Moreno, on behalf of herself and other plaintiffs similarly situated, Plaintiff,
Progistics Distribution, Inc., Defendant.
MEMORANDUM OPINION AND ORDER
HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE.
Karina Moreno (“Moreno) filed a collective action
lawsuit against defendant Progistics Distribution, Inc.
(“Progistics”) alleging gender-based pay
discrimination and failure to pay overtime wages in violation
of state and federal wage laws. R. 1. Currently before the
Court is Progistics's motion to compel arbitration and
stay proceedings. R. 19. For the following reasons, the Court
grants Progistics's motion.
employed Moreno, an Illinois resident, as a semi-truck driver
delivering goods in Illinois from November 2016 until she
resigned in March 2018. R. 1 at 3-4; R. 19-1 ¶ 3. On
November 14, 2016, Moreno signed a document titled
“Employee Acknowledgment of Receipt”
(“Acknowledgment”). R. 19-1 at 8. The first
paragraph of the Acknowledgement states:
This is to acknowledge that I have received a copy of the
Employee Handbook. This Handbook sets forth the terms and
conditions of my employment as well as the rights, duties,
responsibilities, and obligations of my employment with
Progistics Distribution Inc. I understand and agree that it
is my responsibility to read and familiarize myself with all
of the provisions of the Handbook. I further understand and
agree that I am bound by the provisions of the Handbook,
particularly the provision relating to the mandatory, binding
arbitration of any employment related dispute. I understand
that by agreeing to arbitration, I am waiving the right to a
trial by jury of the matters covered by the
‘Arbitration' provisions of the Handbook.
R. 19-1 at 8.
Vice President of Human Resources Lisa Smith explains that
the Acknowledgment Moreno signed was “located at the
end of” Progistics's October 2015 Employee Handbook
for Illinois (“2015 Illinois Handbook”). R. 19-1
¶ 5. Section 1.5 of the 2015 Illinois Handbook is titled
“Arbitration Policy.” R. 22-3 at 6. It states:
In consideration of your employment with Progistics
Distribution, its promise to arbitrate all employment-related
disputes, and your receipt of the compensation, pay raises,
and other benefits paid to you by the company, at present and
in the future, you agree that any and all controversies,
claims, or disputes with anyone (including the company and
any employee, officer, director, or benefit plan of the
company, in their capacity as such or otherwise), whether
brought on an individual, group, or class basis, arising out
of, relating to, or resulting from your employment with
Progistics Distribution, or the termination of your
employment with the company, including any breach of this
agreement, shall be subject to binding arbitration under the
terms and conditions set forth in the at-will employment,
confidential information, invention assignment, and
arbitration agreement between you and Progistics Distribution
(or such other confidentiality agreement between you and the
company, each the “confidentiality agreement”).
In the event the confidentiality agreement between you and
the company does not contain an arbitration provision, then
you nevertheless agree to arbitrate any and all claims set
forth above in a neutral, mutually agreeable forum according
to the applicable minimum standards for arbitration.
Id. Moreno did not enter into any separate
confidentiality agreement with Progistics regarding
arbitration. R. 19-1 ¶ 5.
2015 Illinois Handbook also provides the following disclaimer
in Section 1.2:
The Company reserves the right to modify, rescind, delete, or
add to the provisions of this Handbook from time to time in
its sole and absolute discretion. This Employee Handbook is
not a binding contract between the Company and its employees,
nor is it intended to alter the at-will employment
relationship between the Company and its employees. The
Company reserves the right to interpret the policies in this
Handbook and to deviate from them when, in its discretion, it
determines it is appropriate.
R. 22-3 at 5.
affidavit filed in support of her opposition to arbitration,
Moreno disputes receiving a copy of the 2015 Illinois
Handbook. R. 22-1 ¶¶ 5-6. Another Progistics
employee, Christian Moreno, also filed an affidavit in
support of Moreno's opposition stating that he was told
by general manager Ralph Scumacci that there was no employee
handbook for Illinois. R. 22-4 ¶ 2. Christian Moreno
states that he was given a May 2016 Handbook instead for
“California locations only” (“2016
California Handbook”) that did not contain an
arbitration policy. R. 22-4 ¶ 2; R. 22-5.
responds to these assertions in her own affidavit explaining
that the 2015 Illinois Handbook “was in effect at the
location where Plaintiff and Christian Moreno were employed,
” and that both of them would have received it when
they began their employment in November 2015. R. 24-1
¶¶ 4-5; R. 19-1 ¶¶ 4-5. Smith further
states that “Site Managers such as Mr. Scumacci are
typically not able to advise Progistics's employees
concerning the applicability of employee handbooks”
because they “are employed by a different entity and,
as such, their employment is subject to a different employee
handbook.” R. 24-1 ¶ 4. And Smith explains that
“[a]fter Progistics entered into a relationship with
Avitus Group, which was after the issuance of the October 1,
2015 Employee Handbook and after Plaintiff began her
employment, any employee handbooks issued in conjunction with
Avitus Group contained an acknowledgment of receipt form that
was different from” the Acknowledgment signed by
Moreno. Id. ¶ 6.
March 2, 2018, Progistics distributed by email to Moreno and
other employees an updated Employee Handbook, which does not
specify that it applies to any particular state (“2018
Handbook”). R. 22-1 ¶¶ 2-3. The 2018 Handbook
states that “[a]ll previously issued Employee Handbooks
and any inconsistent policy statements or memoranda are
superseded.” Id. ¶ 3. The 2018 Handbook
does not contain an arbitration policy section or otherwise
address arbitration. Smith explains that “[a]t the time
of the issuance of the 2018 Progistics Distribution Employee
Handbook on March 2, 2018, Progistics no longer included
reference to its arbitration program in its employee
handbooks. However, Progistics maintained its pre-existing
arbitration program with its employees and continued to enter
into arbitration agreements with its employees separate from
that handbook.” R. 24-1 ¶ 2. Moreno resigned two
weeks after the 2018 Handbook was issued.
filed this lawsuit on March 13, 2018. R. 1. Progistics's
counsel subsequently provided Moreno's counsel with the
Acknowledgement and 2015 Illinois Handbook and requested that
Moreno stipulate to arbitration. R. 19-2 ¶¶ 3-8.
Progistics offered to submit the dispute to the American
Arbitration Association (“AAA”) under the
AAA's Employment Arbitration Rules and offered to pay
filing and other arbitration fees. Id. ¶ 12.
After Moreno's counsel declined to stipulate to
arbitration (id. ¶ 11), Progistics moved to
compel arbitration under the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 2 (2012). R. 19.
to compel arbitration are reviewed under a summary judgment
standard. Tinder v. Pinkerton Sec., 305 F.3d 728,
735 (7th Cir. 2002). The “opposing party must
demonstrate that a genuine issue of material fact warranting
a trial exists.” Id. “[T]he evidence of
the non-movant ...