Plaintiffs' Motion for Reconsideration

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1178

Page 1 of 37

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MARLIN WILLIAMS, PAMELA WILLIAMS CARTHENS, et. al., on behalf of themselves and all others similarly situated, Plaintiffs,

Case No. 17-10097 Hon. Laurie J. Michelson

vs

CLASS ACTION

FCA US LLC, Defendant.

AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam S. Akeel (P81328) Attorneys for Plaintiff 888 W. Big Beaver Road, Suite 420 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com adam@akeelvalentine.com

MILLER CANFIELD Jerome R. Watson (P27082) Misbah Shahid (P73450) Attorneys for Defendant 150 W. Jefferson Ave., Suite 2500 Detroit, MI 48226 watson@millercanfield.com shaid@millercanfield.com

PITT, MCGEHEE, PALMER & RIVERS Michael L. Pitt (P24429) Megan A. Bonanni (P52079) Robert W. Palmer (P31704) Beth M. Rivers (P33614) Attorneys for Plaintiff 117 W. Fourth Street, Ste. 200 Royal Oak, MI 48067 (248) 398-9800 rpalmer@pittlawpc.com mbonanni@pittlawpc.com mbonanni@pittlawpc.com

LITTLER MENDELSON, P.C. Tasha K. Inegbenebor (GA 382905) Daniel E. Turner (GA 719330) Attorneys for Defendant 3344 Peachtree Rd. NE, Ste. 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com tinegbenebor@litller.com

i

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1179

Page 2 of 37

MOTION FOR RECONSIDERATION NOW COMES, Plaintiffs, MARLIN WILLIAMS, PAMELA WILLIAMS CARTHENS, JEROME THOMSON, PhD, BRENDA DEFORREST, LEVEN WEISS, J.D., MICHAEL D. BROWN, J.D., CORA WILLIAMS, and ANTHONY HILL, on behalf of themselves and all others similarly situated (“Plaintiffs”), by and through their attorneys, AKEEL & VALENTINE, PLC, and PITT, MCGEHEE, PALMER, AND RIVERS, and hereby move this Court, pursuant to Local Rule 7.1(h) for a reconsideration of this Court’s May 24, 2018 Opinion and Order Granting In Part and Denying In Part Defendant’s Motion to Compel Arbitration, for the reasons stated in the accompanying brief in support.

Respectfully submitted, AKEEL & VALENTINE, PLC

By:

/s/: SHEREEF H. AKEEL Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam S. Akeel (P81328) Attorneys for Plaintiffs 888 West Big Beaver Road, Ste. 420 Troy, MI 48084 Michael L. Pitt (P24429) Megan A. Bonanni (P52079) Robert W. Palmer (P31704) Cary S. McGehee (P42318) Beth M. Rivers (P33614) Attorneys for Plaintiffs

ii

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1180

Page 3 of 37

117 W. Fourth Street, Ste. 200 Royal Oak, MI 48067 (248) 398-9800 Dated: June 7, 2018

iii

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1181

Page 4 of 37

TABLE OF CONTENTS ISSUES PRESENTED……………………………………………………………..v TABLE OF AUTHORITIES……………………………………………………...vii BRIEF IN SUPPORT………………………………………………………………1 INTRODUCTION………………………………………………………………….1 APPLICABLE FACTS……………………………………………………………..1 APPLICABLE LAW AND ARGUMENT…………………………………………3 I.

EPIC DOES NOT APPLY TO TITLE VII PATTERN-OR-PRACTICE AND/OR DISPARATE IMPACT CLAIMS; SUCH CLAIMS CANNOT BE ARBITRATED INDIVIDUALLY…………......................................4

II.

EVEN IF DISPARATE IMPACT CLAIMS CAN BE SUBJECTED TO INDIVIDUAL ARBITRATION, SUCH CLAIMS ARE NOT COVERED BY THE 1995 EDRP……………………………………...12

III.

EVEN IF PLAINTIFFS MUST SUBMIT TO ARBITRATION, THE 1995 EDRP PERMITS THEM TO PROCEED TO CLASS ARBITRATION………………………………………………………16

CONCLUSION…………………………………………………………………25

iv

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1182

Page 5 of 37

PRESENTED I.

In a disparate impact claim, employees seek to identity a policy or practice that has caused a widespread racial disparity. Such a claim permits employees to use company-wide statistics to challenge a company-wide policy. Such a claim, by its nature, is class based, and individualized considerations are irrelevant. If employees are successful in demonstrating that an employment policy or practice has resulted in a company-wide disparity, then Title VII permits those employees to remedy the disparity and seek company-wide declaratory and injunctive relief. Such class-wide relief however, is only readily obtainable in class actions. An employee cannot effectively challenge, or remedy, a company-wide policy under a Title VII disparate impact claim if that employee is limited to only pursuing his or her claim individually.

Courts will only enforce arbitration agreements that allows an employee to effectively vindicate his claims his or her statutory cause of action in the arbitral forum, and the statute will continue to serve both its remedial and deterrent function. Prohibiting employees from asserting their Title VII disparate impact claim as a class not only interferes with the deterrent function of Title VII, but it also limits the remedies available, as an individual employee cannot seek class-wide injunctive relief if he or she is restricted to litigating his or her claim in an individualized forum.

Should this Court reconsider its decision to compel individualized arbitration of Plaintiffs’ Title VII disparate impact claim?

ANSWER:

II.

YES.

Before compelling arbitration, a court must first assess the scope of the arbitration agreement and determine whether the parties agreed to arbitrate the specific claims now being brought before the court. A court can only compel arbitration of a claim if an employee clearly and unmistakably agreed to arbitrate such a claim. On May 24, 2018, this Court discussed the two Employment Dispute Resolution Procedures (“EDRP”) that are at issue in this case. This Court determined that certain employees (hired before the implementation of the 2013 EDRP) were bound by the 1995 EDRP, and certain employees (hired after v

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1183

Page 6 of 37

implementation of the 2013 EDRP) were bound by the 2013 EDRP. Notably, the 1995 EDRP specifically limits the scope of the agreement to claims relating to 1) permanent separation of employment, 2) layoff, 3) demotion, 4) handicap accommodation, and 5) sexual harassment. None of the claims covered by the scope of the 1995 EDRP are at issue in this case. Should this Court reconsider its decision to compel those bound by the 1995 EDRP to arbitrate their disparate impact claims?

ANSWER: III.

YES.

Courts apply state law contract principles to determine the intent of the contracting parties. In Michigan, in order to determine the intent of the parties, a court reads the agreement as a whole, giving effect to all of its provisions. A court should endeavor to enforce a contract based on the expectations of the contracting parties. To do so, a court should look to all agreements pertaining to the same subject matter to deduce the intention of the contracting parties. Courts must avoid interpretations that would render any part of a contract surplusage or nugatory and must also, if possible, seek an interpretation that harmonizes potentially conflicting terms. Here, there are two EDRP policies at issue (the 1995 EDRP and the 2013 EDRP). The 1995 EDRP pertains to all U.S. employees, while the 2013 EDRP pertains to each individual employee and their individual dispute. The 1995 EDRP does not contain a class waiver, while the 2013 EDRP does. Michigan contract construction requires courts to enforce contractual agreements based on the expectations and intentions of the contracting parties. Based on the plain language of the 1995 EDRP, it is evident that the contracting parties did not intend to limit arbitration to only individualized proceedings, as the policy pertains to all employees collectively. Rather, in applying Michigan contract construction, it is evident that the contracting parties intended to compel arbitration (for certain claims), but to permit class arbitration. Should this Court reconsider its decision to require those subject to the 1995 EDRP to submit their claims to individual arbitration?

ANSWER:

YES. vi

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1184

Page 7 of 37

TABLE OF AUTHORITIES Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ....................................................................................... 6, 7, 9 Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ..................................................................................7 Aluminum Workers Int'l Union Local Union No. 215 v. Consol. Aluminum Corp., 696 F.2d 437 (6th Cir.1982) ...................................................................................9 AT&T Techs. v. Commc’ns Workers of Am., 475 U.S. 643 (1986) ..............................................................................................13 Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir. 2004) ..................................................................................7 Bianchi v. Auto. Club of Mich., 437 Mich. 65 (1991) ...................................................................................... 18, 21 Blair v. Rent-A-Ctr., Inc., 2017 WL 4805577 (N.D. Cal. Oct. 25, 2017) ......................................................11 Brown v. Nucor Steel-Berkeley, 785 F.3d 895 (4th Cir. 2015) ..................................................................................7 Brown v. Trustees of Boston University, 891 F.2d 337 (1st Cir.1989) ....................................................................................9 Carter v. Robinson, 211 F.R.D. 549 (E.D. Mich. 2003) .....................................................................3, 4 Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (C.A.2 2012) .....................................................................................6 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ................................................................................................10 Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (U.S. 1984)........................................................................................6 Cooper v. S. Co., 390 F.3d 695 (11th Cir. 2004) ................................................................................7 D'Avanzo v. Wise & Marsac, P.C., 223 Mich. App. 314 (1997) ..................................................................................18 Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955 (11th Cir. 2008) ................................................................................9 vii

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1185

Page 8 of 37

DIRECTV, Inc. v. Imburgia, 136 S.Ct. 463 (2015) ...................................................................................... 17, 18 Dothard v. Rawlinson, 433 U.S. 321 (1977) ................................................................................................7 Gavitt v. Ionia Cty., 67 F. Supp. 3d 838 (E.D. Mich. 2014) ...................................................................9 Gay v. Waiters' and Dairy Lunchmen's Union, 549 F.2d 1330 (9th Cir.1977) .................................................................................9 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ................................................................................................7 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ..............................................................................................12 Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977) ................................................................................................7 Hernandez v. Reno, 91 F.3d 776 (5th Cir. 1996) ..................................................................................10 Hollon v. Mathis Independent School District, 491 F.2d 92 (5th Cir.1974) .....................................................................................9 Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324 ...........................................................................................................7 Javitch v. First Union Sec., Inc., 315 F.3d 619 (6th Cir. 2003) ......................................................................... 13, 15 Lowery v. Circuit City Stores, Inc., 158 F.3d 742 (4th Cir. 1998) ..................................................................................7 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) ....................................................................................... 10, 11 Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir. 2003) ................................................................................11 NL Industries, Inc. v. Commercial Union Ins. Co., 65 F.3d 314 (3rd Cir.1995) .....................................................................................4 Old Kent Bank v. Sobczak, 243 Mich. App. 57 (2000) ....................................................................................17 Omnicom of Mich. v. Giannetti Investment Co, 221 Mich.App 341 (1997) ....................................................................................15 viii

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1186

Page 9 of 37

Oxford Health Plans LLC v. Sutter, 569 U.S. 564 (2013) ...................................................................................... passim Perez v. Globe Airport Sec. Servs., Inc., 253 F.3d 1280 (11th Cir.2001) .............................................................................11 Performance Contracting, Inc. v. Seaboard Sur. Co., 163 F.3d 366 (6th Cir.1998) .......................................................................... 18, 23 Phipps v. Wal-Mart Stores, Inc., 792 F.3d 637 (6th Cir. 2015) ..................................................................................8 Reed Elsevier, Inc v Crockett, 734 F.3d 594 (6th Cir. 2013) ......................................................................... 17, 24 Richmond Health Facilities v. Nichols, 811 F.3d 192 (6th Cir. 2016) ......................................................................... 13, 15 Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc., 267 Mich. App. 708 (2005) ..................................................................................18 Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) ..............................................................................7 Semsroth v. City of Wichita, 304 F. App'x 707 (10th Cir. 2008)..........................................................................8 Sharpe v. Cureton, 319 F.3d 259 (6th Cir.2003) ...................................................................................8 Stolt-Nielsen v AnimalFeed Int’l Corp., 559 U.S. 662 (2010) ..............................................................................................17 Epic Sys. Corp. v. Lewis, 584 U.S. _____ (2018) .................................................................................. passim Sutter v. Oxford Health Plans LLC, 675 F.3d 215 (3d Cir. 2012) .................................................................................19 Wells Fargo Bank, NA v. Cherryland Mall Ltd. Partnership, 295 Mich. App. 99 (2011) ............................................................................. 15, 18 Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 (1998) ......................................................................................... 13, 16 Zepeda v. U.S. I.N.S., 753 F.2d 719 (9th Cir. 1983) ................................................................................10 Statutes

42 U.S.C. 2000e-2(k) ...............................................................................................10 ix

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1187

Page 10 of 37

42 U.S.C. ยง 2000e ......................................................................................................6 Other Authorities

H.R. REP. 102-40,1991 U.S.C.C.A.N. 694 .............................................................15

x

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1188

Page 11 of 37

BRIEF IN SUPPORT INTRODUCTION Plaintiffs filed this instant action with eight Class Representatives (“Class Reps”). This Court recently ruled that five of the eight Class Reps must arbitrate their claims individually under the 1995 Employment Dispute Resolution Policy (1995 EDRP), while one Class Rep (M. Williams) is to arbitrate her claims individually under the 2013 EDRP. (Dkt. 37). The Court further ruled that the 1995 EDRP “impliedly” requires arbitration on an individual basis based on federal law. The Court also ruled that the Supreme Court’s recent decision in Epic Sys. Corp v Lewis 584 U.S. ___(2018), barred class arbitration all together.

For reasons stated below, Epic does not apply, and manifest injustice will occur if the six Class Reps are compelled to arbitrate their disparate impact discrimination claims, as it is contrary to federal law. Further, the 1995 EDRP does not cover the claims asserted in this case. Alternatively, if the Court deems that arbitration is still warranted, class-wide arbitration is available to the five Class Reps compelled to arbitrate their claims under the terms of the 1995 EDRP. APPLICABLE FACTS The Court is well acquainted with the facts. For purposes of this motion, certain facts need to be highlighted with respect to the six Plaintiffs that are being compelled to arbitrate their claims. Putative Class Reps, Dr. Jerome Thompson,

1

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1189

Page 12 of 37

Brenda Deforrest, Michael D. Brown, Cora Williams, and Anthony Hill were all hired after May 15, 1995, but before 2013. (1995 Class). Putative Class Rep, Marlin Williams, was hired after 2013. (2013 Class) On or around May 15, 1995, FCA allegedly implemented a new Employment Dispute Resolution Process (“EDRP”) (Dkt. 19-4). In pertinent part, the 1995 EDRP provided the following: The Employee Dispute Resolution Process (EDRP) provides a fair, timely, and impartial method to resolve employment disputes of eligible employees of Chrysler Corporation. This process provides the exclusive, final and binding method to resolve eligible employment disputes.

Scope. All US Chrysler Corporation and Chrysler Financial Corporation (collectively called “Chrysler”) employees except supplemental workers, temporary employees, and bargaining unit employees…Eligible Issues Disputes: This EDRP covers all legal issues relating to claims of: • • • • •

Permanent separation of employment Layoff Demotion (a Salary Band reduction) Handicap accommodation Sexual harassment (see p. 2)

Exclusive Remedy. The EDRP provides the exclusive, final and binding method to resolve eligible employment disputes. The scope of this EDRP extends to all eligible disputes whether based on federal, state or local law including breach of contract, discrimination, or retaliation claims. (Emphasis added) In 2013, FCA amended the 1995 EDRP and implemented the 2013 EDRP. Using the same template as the 1995 EDRP, FCA modified the 1995 EDRP’s “Scope” and “Exclusive Remedy” clauses in three significant ways. First for the

2

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1190

Page 13 of 37

“Scope” clause, FCA limited the scope of the agreement to an individual rather than all employees collectively, as reflected in the 1995 EDRP which applied to, “All US Chrysler Corporation and Chrysler Financial Corporation (collectively called “Chrysler”) employees.” Second, FCA extended the “Scope” of the EDRP to cover claims regarding “Refusal to promote”, “Harassment and/or discrimination based upon sex, age, race, national origin, disability, or any other legally protected class”, and “Compensation”. Third, for the “Exclusive Remedy” clause, FCA specified that the 2013 EDRP recognizes the “Individual Nature of Covered Claims” and prohibits class claims. (Dkt. 19-2, PgID #253).

In its May 24, 2018 ruling, this Court recognized three categories of Class Reps and issued different rulings for each category: 1) Pre-1995 Class Reps1, 2) 1995 Class, and 3) 2013 Class. The Court allowed the Pre-1995 Class Reps to remain in court, ordered the 1995 Class to arbitrate their claims individually under the 1995 EDRP policy, and ordered the 2013 Class to individual arbitration under the 2013 EDRP policy.

APPLICABLE LAW AND ARGUMENT Generally, and without restricting the court's discretion, the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court. The movant must not only demonstrate a palpable defect

1

The Pre-1995 Class are Pamela Williams Carthen and Leven Weiss 3

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1191

Page 14 of 37

by which the court and the parties have been misled but also show that correcting the defect will result in a different disposition of the case. Carter v. Robinson, 211 F.R.D. 549, 550 (E.D. Mich. 2003). However, courts will generally entertain a motion for reconsideration “when there has been an intervening change in the controlling law, when new evidence has become available, or when there is a need to correct a clear error or prevent manifest injustice.” Id. (quoting NL Industries, Inc. v. Commercial Union Ins. Co., 65 F.3d 314, 324 n. 8 (3rd Cir.1995)).

I.

EPIC DOES NOT APPLY TO TITLE VII PATTERN-ORPRACTICE AND/OR DISPARATE IMPACT CLAIMS; SUCH CLAIMS CANNOT BE ARBITRATED INDIVIDUALLY On May 15, 2017, FCA filed its motion to compel arbitration on an

individual basis. (Dkt. 19). In support, FCA directed this Court to the language contained in the 2013 EDRP which stated, “Covered Disputes under the EDRP must be brought on an individual basis…an employee may not participate as a class or collective action representative or as a member of any class, collective, or representative action…” (Dkt. 19, PgID #195).

Plaintiffs argued that such a

provision is unenforceable in the context of their Title VII disparate impact class claims as it “do[es] not allow for the effective vindication of rights under Title VII…” (Dkt. 37, PgID #1170). On May 24, 2018, this Court addressed the parties’ arguments and determined that the Supreme Court’s recent decision in Epic Sys. Corp. v. Lewis, 584 U.S. _____ (2018) requires the Court to enforce 4

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1192

FCA’s class-waiver and ordered six Class Reps to arbitration.

Page 15 of 37

However, for the

reasons discussed below, the Epic holding does not apply to this case, as disparate impact claims and/or pattern-or-practice claims cannot be effectively asserted on an individual basis.

In Epic, employees “sought to litigate Fair Labor Standards Act and related state law claims through class or collective actions in federal court” although the employees had previously agreed to arbitrate such claims individually. Epic, 2018 WL 2292444, at *1.

The Supreme Court determined that the NLRA is not

implicated by class-waivers, and that employees can be compelled to waive their ability to pursue class actions under the FLSA. That holding does not apply here.

First, as ordered by this Court, the 1995 Class (comprised of five Class Reps) is subject to the 1995 EDRP, which does not have a class-waiver provision.

Thus, unlike Epic, which did involve a waiver provision, the 1995 EDRP has no such class-waiver provision. As such, since the 1995 Class never agreed to waive their right to be part of a class, Epic simply does not apply.

Moreover, Plaintiffs here are asserting class claims under the disparate impact theory of Title VII, and not under the FLSA. This difference is significant as the former calls for proof on a group-wide basis, which could not be fulfilled individually.

As specifically addressed by Justice Ginsburg in her dissenting

opinion (to which three justices concurred), 5

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1193

Page 16 of 37

I do not read the Court's opinion to place in jeopardy discrimination complaints asserting disparate-impact and pattern-or-practice claims that call for proof on a group-wide basis, see Brief for NAACP Legal Defense & Educational Fund, Inc., et al. as Amici Curiae 19–25, which some courts have concluded cannot be maintained by solo complainants, see, e.g., Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 147 (C.A.2 2012) (pattern-or-practice method of proving race discrimination is unavailable in non-class actions). It would be grossly exorbitant to read the FAA to devastate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other laws enacted to eliminate, root and branch, class-based employment discrimination, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 421, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). With fidelity to the Legislature's will, the Court could hardly hold otherwise.

Epic, 2018 WL 2292444, at 31 (emphasis added); (see also Ex. A, Brief for NAACP Legal Defense & Educational Fund, Inc., et al. as Amici Curiae 19–26). 2 This concept of pursing disparate impact and/or pattern-or-practice claims challenging company-wide discriminatory policies on a group wide-basis is supported under federal law. To explain, “[t]he crucial difference between an individual's claim of discrimination and a class action alleging a general pattern or practice of discrimination is manifest. The inquiry regarding an individual's claim is the reason for a particular employment decision, while at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.” Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (U.S. 1984) (citations and quotation omitted). In Of note as well, is that the author of the majority opinion, Justice Gorsuch responded at length to Justice Ginsburg’s Dissent but was silent regarding her opinion that class waivers do not apply to disparate impact claims under Title VII. 2

6

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1194

Page 17 of 37

other words, individualized questions are not relevant to either disparate impact or pattern-or-practice claims, and because “pattern and practice and disparate impact claims depend on the same body of statistical evidence...these claims stand or fall in concert.” Cooper v. S. Co., 390 F.3d 695, 726 (11th Cir. 2004) (emphasis added); Brown v. Nucor Steel-Berkeley, 785 F.3d 895, 914 (4th Cir. 2015); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 409 (5th Cir. 1998) (“Disparate impact cases in particular, which challenge specific, facially-neutral policies with proof of statistical disparities resulting from their uniform application to an employer's workforce, by their very nature implicate class-based claims.”).

This is also consistent with the Sixth Circuit’s holding that Title VII patternor-practice claims (or claims “focused on establishing a policy of discrimination”) cannot be asserted individually, but only as a class. 3 Bacon v. Honda of Am. Mfg.,

Pattern-or-practice claims typically rely on the same proof as disparate impact claims; however, the main distinction is that pattern-or-practice claims typically require proof of illicit motive (which can be inferred through statistics), while disparate impact claims do not require proof of such a motive. Segar v. Smith, 738 F.2d 1249, 1272 (D.C. Cir. 1984); Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307–08 (1977). However, in both pattern-or-practice and disparate impact claims, employees must identify a specific policy or practice that is allegedly causing a racial disparity, and in both claims employees then use statistical evidence to establish a prima facie case under Title VII. Int'l Bhd. of Teamsters, 431 U.S. 324; Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975); Dothard v. Rawlinson, 433 U.S. 321 (1977).

In both cases, employees then engage in burden-shifting methods of proof whereby the employer must proffer legitimate non-discriminatory business reasons for the disparity, and the employee must then demonstrate that such reasons are pretextual, or have no basis in fact. Id. In both cases, the employees are alleging Title VII 3

7

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1195

Page 18 of 37

Inc., 370 F.3d 565, 575 (6th Cir. 2004), relying on Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), cert. granted, judgment vacated, 527 U.S. 1031, (1999) (citations omitted) (“In a class action pattern or practice case, the plaintiffs first litigate the common question of fact, i.e., whether the employer utilized a pattern or practice which discriminated against the class…[C]lass action pattern or practice suits differ from disparate treatment suits in the nature of their remedies. Class action pattern or practice suits primarily seek to redress widespread discrimination and the harm suffered by the group of individuals subjected to that discrimination. Accordingly, the relief typically sought in class action pattern or practice suits is injunctive and may include such aspects as, for example, affirmative action plans and the altering of a seniority system.”)

As also explained by the Sixth Circuit in a case where employees challenged their employer’s policies under Title VII, such suits cannot be pursued on an individual basis, especially if the employees are seeking injunctive relief, as “the dismissal of the class allegations impairs the plaintiffs' ability to secure the scope of injunctive relief that may be necessary to address region-wide gender discrimination, if plaintiffs ultimately prove their claims. Broad injunctive relief to benefit an entire class is ‘rarely justified’ in an individual suit.” Phipps v. Wal-

violations on behalf of an entire class, and individualized questions are not relevant. Id. 8

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1196

Page 19 of 37

Mart Stores, Inc., 792 F.3d 637, 643 (6th Cir. 2015) (quoting Sharpe v. Cureton, 319 F.3d 259, 273 (6th Cir.2003)); Semsroth v. City of Wichita, 304 F. App'x 707, 716–17 (10th Cir. 2008) (“[W]e agree with the strong majority of our sister circuits. The disparities between both of these methods of proof and the remedies available demonstrate that the pattern-or-practice method should be reserved for…plaintiffs in class actions to establish the presence of a discriminatory policy, rather than to prove an individual claim.”); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 968 (11th Cir. 2008) (“What we have said in the preceding text indicates why a plaintiff cannot prosecute a pattern or practice claim alone.

When proceeding alone, the plaintiff lacks third-party standing to represent the absent class members, and unless he can demonstrate a genuine likelihood that the pattern or practice will continue and deprive him of a protected right, he lacks constitutional standing.”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975) (Noting that broad injunctive relief is the cornerstone to eliminating discrimination in society.) 4

Typically, an individual plaintiff lacks standing to seek relief on behalf of unnamed third parties. Gavitt v. Ionia Cty., 67 F. Supp. 3d 838, 862–63 (E.D. Mich. 2014), aff'd sub nom. Gavitt v. Born, 835 F.3d 623 (6th Cir. 2016). Any injunctive relief sought by an individual plaintiff must be “narrowly tailored” and “class-wide relief such as [an] injunction” is “appropriate only where there is a properly certified class.” Brown v. Trustees of Boston University, 891 F.2d 337– 361 (1st Cir.1989); Aluminum Workers Int'l Union Local Union No. 215 v. Consol.

Aluminum Corp. 696 F.2d 437, 446 (6th Cir.1982) (“Precisely because equitable relief is an extraordinary remedy to be cautiously granted, it follows that the scope 4

9

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1197

Page 20 of 37

Simply put, the right to bring a disparate impact claim to challenge an employer’s policy is a substantive federal right under Title VII that is specifically codified in 42 U.S.C. 2000e-2(k). Like pattern-or-practice claims, such a claim seeks to identify a policy or practice that has caused a widespread racial disparity which cannot be effectively litigated on an individual basis; it also permits the employees to seek company-wide injunctive relief (a remedy not available through individual arbitration) to remedy the policy or practice that is being challenged. As explained by the Supreme Court, courts will only enforce arbitration provisions “so

of relief should be strictly tailored to accomplish only that which the situation specifically requires...”); Gay v. Waiters' and Dairy Lunchmen's Union, 549 F.2d 1330, 1331 (9th Cir.1977) (“[D]enial of class certification foreclose[d] the broad injunctive relief sought on behalf of the class.”); Hollon v. Mathis Independent School District, 491 F.2d 92, 93 (5th Cir.1974) (per curiam) (portion of injunction restraining enforcement of school regulation as to similarly situated students was an abuse of discretion and not necessary to preserve the status quo in the absence of a class certification); Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983) (“[T]he injunction must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs. A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.”); Hernandez v. Reno, 91 F.3d 776, 781 (5th Cir. 1996) (injunction can apply only to the named plaintiff until class is certified). As explained by the Supreme Court, an injunction is “unavailable” unless the plaintiff can show “any real or immediate threat that plaintiff will be wronged again.” City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Given the fact that a disparate impact claim pertains to the harm that a company-wide policy had caused on a class (and not on an individual), it is only the class (and not the individual) that will be able to seek company-wide injunctive relief by showing a “real or immediate threat that” they will be wronged again. Accordingly, requiring Plaintiffs to pursue their disparate impact claim individually deprives them of the ability to seek companywide injunctive relief otherwise permitted under Title VII. 10

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1198

Page 21 of 37

long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, [and] the statute will continue to serve both its remedial and deterrent function.” Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 637 (1985).

An arbitration provision is

unenforceable when it results in the limitation of remedies otherwise available under federal law. Id.; Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 673 (6th Cir. 2003) (“Because the limitation on remedies…significantly undermines Title VII's remedial purpose of making victims of discrimination whole and its deterrent purposes of forcing employers to eliminate and prevent discriminatory practices in the workplace, we hold that the provision at issue in this case was not enforceable.”); Perez v. Globe Airport Sec. Servs., Inc., 253 F.3d 1280, 1286 (11th Cir.2001) (“[F]ederal statutory claims are arbitrable only when arbitration can serve the same remedial and deterrent functions as litigation, and an agreement that limits the remedies available cannot adequately serve those functions.”) Blair v.

Rent-A-Ctr., Inc., 2017 WL 4805577, at *4 (N.D. Cal. Oct. 25, 2017) (“A contract precluding public injunctive relief in any forum…runs afoul of the generally applicable contract defense that a law established for a public reason cannot be contravened by a private agreement.”)

Here, Plaintiffs have filed this instant action challenging the company-wide PLM evaluation policy and its adverse impact on African Americans. As echoed 11

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1199

Page 22 of 37

by Justice Ginsburg, Plaintiffs will not be able to effectively vindicate their statutory rights under Title VII to challenge the PLM policy if they are prohibited from asserting their disparate impact claim as a class. Prohibiting Plaintiffs from asserting their class-claims will certainly interfere with the remedies available in disparate impact claims, such as the declaratory and injunctive relief sought in the Complaint for all those affected (Dkt. 8, PgID #85), including barring continued use of the discriminatory, company-wide evaluation policy.

Finally, Title VII’s

disparate impact challenges to an employer’s policy or practice, like the PLM evaluation policy are by their very nature, class-based claims.5 Allison, supra.

As this Court may recall, FCA has also asserted a statute of limitations defense, contending that Plaintiffs’ claims are untimely. (Dkt. 19, PgID #206). Plaintiffs responded by arguing that their claims are timely under the “continuing violation” doctrine. (Dkt. 25, PgID #511) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-381 (1982). To satisfy a continuing violation doctrine, a plaintiff need only establish that an unlawful discriminatory practice is continuing and that one act of discrimination as a result of that practice occurred within the statute of limitations, but need not show that the act was perpetrated against the plaintiff specifically. (Id.). As explained in the House Report issued with the amendments made to the Civil Rights Act in 1991 (which specifically involved the codification of disparate impact), “[t]he ‘continuing violation’ theory generally arises where the employer's continuing conduct or pattern of ongoing discrimination causes multiple or repeated injuries to members of the groups protected under the statute.”

H.R. REP. 102-40, 24, 1991 U.S.C.C.A.N. 694, 717. This further supports Plaintiffs’ contention, and Justice Ginsburg’s dissent, that Title VII disparate impact claims are particularly unsuited for individualized litigation, as an individual employee cannot demonstrate “multiple or repeated injuries to members of the group” if they are restricted to only litigating their claims individually.

5

12

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1200

Page 23 of 37

Therefore, for the reasons discussed above, Plaintiffs respectfully request that this Court reconsider its decision requiring the six Plaintiffs to litigate their Title VII disparate impact claims on an individual basis. Carter, supra.

II.

EVEN IF DISPARATE IMPACT CLAIMS CAN BE SUBJECTED TO INDIVIDUAL ARBITRATION, SUCH CLAIMS ARE NOT COVERED BY THE 1995 EDRP As explained by this Court (Dkt. 37, PgID #1162), “[a]rbitration is a ‘matter

of contract’ and ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’” Richmond Health Facilities v. Nichols, 811 F.3d 192, 195 (6th Cir. 2016) (quoting AT&T Techs. v. Commc’ns Workers of Am., 475 U.S. 643, 648 (1986)). Therefore, “[b]efore compelling an unwilling party to arbitrate, the court must engage in a limited review to determine whether the dispute is arbitrable; meaning…that the specific dispute falls within the substantive scope of that agreement.” Javitch v. First Union Sec., Inc., 315 F.3d 619, 624 (6th Cir. 2003) (emphasis added); Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 (1998) (“In order for a union to waive employees' rights to a federal judicial forum for statutory antidiscrimination claims, the agreement to arbitrate such claims must be clear and unmistakable.”) (emphasis added). This Court determined that “[t]he parties…do not appear to dispute that the policies cover Plaintiffs’ claims.” (Dkt. 37, PgID #1163). To the contrary, however, for the reasons stated below, Plaintiffs do dispute that the 1995 EDRP covers Plaintiffs’ claims.

13

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1201

Page 24 of 37

As alleged in Plaintiffs’ Complaint, this case involves a Title VII disparate impact challenge of an employment policy or practice that “subjected companywide salaried, non-union African American employees to less favorable and disproportionate adverse ratings and evaluations in comparison to salaried, nonunion, non-African American employees, resulting in reduced compensation, chances of promotion, and other terms, conditions, and benefits.” (Dkt. 3, PgID #43). The 1995 EDRP simply does not pertain to these claims.

To explain, the 1995 EDRP specifically states, “This process provides exclusive, final and binding method to resolve eligible employment disputes.”

(Dkt. 19-4, PgID #271). The 1995 EDRP then identifies the “Scope” of the EDRP and defines the “Eligible Issues” to which the agreement pertains. FCA then identifies the five “eligible employment disputes” that are covered within the scope of the 1995 EDRP agreement: 1) “Permanent separation of employment”, 2) “Layoff”,

3)

“Demotion

(a

Salary

Band

reduction)”,

4)

“Handicap

accommodation”, and 5) “Sexual harassment”. 6 The 1995 EDRP then clarifies that “The scope of this EDRP extends to all eligible disputes whether based on federal, state or local law including breach of contract, discrimination or retaliation The 2013 EDRP, on the other hand, included additional disputes within the “Scope” of the agreement. Specifically, the scope of the 2013 EDRP specifically included claims pertaining to “Refusal to promote”, “Harassment and/or discrimination based upon sex, age, race, national origin, disability, or any other legally protected class”, and “Compensation”. (Dkt. 19-2, PgID #253). None of these disputes are included within the “Scope” of the 1995 EDRP. 6

14

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1202

Page 25 of 37

claims.” (Dkt. 19-4, PgID #273). In other words, based on the plain language of the 1995 EDRP, the only discrimination claims that are within the scope of the agreement are the five “eligible employment disputes” that are specifically enumerated on the first page. None of these “eligible disputes” are at issue in this case, and accordingly, this Court should not compel the 1995 Class to arbitrate their claims as “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’” Richmond Health Facilities, supra.

Certainly, based on the plain language of the 1995 EDRP, the “specific dispute” that is being litigated here does not “fall[] within the substantive scope of that agreement.” Javitch, supra.

More telling is that the 2013 EDRP vastly expanded the “Scope” of the eligible disputes to “any disputes arising out of or relating to the eligible employee’s employment…except for those disputes expressly ‘excluded’ below”.

(Dkt. 19-2, PgID #253). Then there is an expansive list of the Covered Disputes which includes “discrimination based upon…race”, “refusal to promote” and “compensation”. Michigan contract construction compels the finding that the 1995 class did not agree to arbitrate the discrimination claims raised in this case.

To explain, courts must avoid interpretations that would render any part of a contract surplusage or nugatory and must also, if possible, seek an interpretation that harmonizes potentially conflicting terms. Wells Fargo Bank, NA v. Cherryland 15

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1203

Page 26 of 37

Mall Ltd. Partnership, 295 Mich. App. 99, 111 (2011), remanded for reconsideration on other grounds by 493 Mich. 859 (2012). Further, “[w]hen there are several agreements relating to the same subject matter, the intention of the parties must be gleaned from all the agreements.” Omnicom of Mich. v. Giannetti Investment Co, 221 Mich.App 341, 346 (1997).

Here, with the expanded list in the 2013 EDRP which enlarges the “Scope” of the agreement to claims involving “discrimination based upon…race”, “refusal to promote” and “compensation” (the claims asserted in this case), it is clear that the parties did not intend for those claims to be covered by the “Scope” of the 1995 agreement. In fact, the “Covered Disputes” added to the “Scope” of the 2013 EDRP would be rendered a surplusage or nugatory if somehow these additional disputes are inferred to have existed within the “Scope” of the 1995 EDRP. Additionally in viewing the two agreements pertaining to the “Scope” of FCA’s EDRP policies, it is clear that the parties did not intend the claims that were added to the 2013 EDRP to be included in the 1995 EDRP. In fact, the plain language of the 1995 EDRP is clear there was never an agreement to arbitrate the claims in this case. Accordingly, Plaintiffs respectfully request that this Court reconsider its decision to dismiss the 1995 Class and compel individualized arbitration, as the 1995 Class did not “clearly and unmistakably” agree to waive their right to a judicial forum with regards to the claims asserted in this case. Wright, supra.

16

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

III.

PageID.1204

Page 27 of 37

EVEN IF PLAINTIFFS MUST SUBMIT TO ARBITRATION, THE 1995 EDRP PERMITS THEM TO PROCEED TO CLASS ARBITRATION

As stated above, the 1995 Class is pursuing disparate impact claims which cannot be limited to an individual basis under federal law. Thus, the 1995 Class claims should remain before this Court.

Alternatively, if the Court is not

persuaded that Plaintiffs’ Complaint should remain in federal court, and instead believes that Plaintiffs must adjudicate their claims under the 1995 EDRP Agreement before an arbitrator, then class action arbitration should be afforded based on the terms of the 1995 EDRP policy, and as dictated by federal law.

In its May 24, 2018 ruling, the Court relied on Reed Elsevier, Inc v Crockett, 734 F.3d 594 (6th Cir. 2013) and ruled that the 1995 EDRP policy “impliedly” requires arbitration on an individual basis. The Court further ruled that class action arbitration cannot be inferred, citing Stolt-Nielsen v AnimalFeed Int’l Corp., 559 U.S. 662 (2010). As discussed below, based on a subsequent Supreme Court decision distinguishing Stolt-Nielson, class arbitration can be inferred based on the terms of the 1995 EDRP policy, and is therefore available to the 1995 Class.

First, questions regarding whether an arbitration agreement permits classwide arbitration is a gateway matter reserved for judicial determination unless the parties clearly and unmistakably provide otherwise. Crockett, 734 F.3d at 599.

17

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1205

Page 28 of 37

Also, interpretation of a contract is ordinarily a matter of state law DIRECTV, Inc. v. , 136 S.Ct. 463 (2015).

The primary goal in interpreting

contracts is to determine and enforce the parties' intent. Old Kent Bank v. Sobczak, 243 Mich. App. 57, 63 (2000). “To do so, this Court reads the agreement as a whole and attempts to apply the plain language of the contract itself.” Id. The language of a contract is to be given its ordinary, plain meaning; technical, constrained constructions should be avoided. Bianchi v. Auto. Club of Mich., 437 Mich. 65, 71 n. 1 (1991). The construction of the terms of a contract is generally a question of law for the court; however, where a contract's meaning is ambiguous, the question of interpretation should be submitted to the fact-finder. D'Avanzo v.

Wise & Marsac, P.C., 223 Mich. App. 314, 319 (1997). A contract is ambiguous when its words can reasonably be understood in different ways. Id. Contracts must be construed as a whole, giving effect to all provisions. Royal Prop. Group, LLC v.

Prime Ins. Syndicate, Inc., 267 Mich. App. 708, 715 (2005). Any imperfection or ambiguity in a contract must be construed most strongly against the drafter.

Performance Contracting, Inc. v. Seaboard Sur. Co., 163 F.3d 366, 370 (6th Cir.1998). Whether enforcing an agreement to arbitrate or construing an arbitration clause, courts and arbitrators must give effect “to the contractual rights and expectations of the parties.” Volt, supra, at 479. In this endeavor, “as with any

18

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

other contract, the parties' intentions control.”

PageID.1206

Page 29 of 37

Stolt-Nielsen, supra at 173

Imburgia.

Here, the 1995 EDRP is clear in its “Scope” clause that it applies to “All” U.S. Chrysler employees (not just the individual employee, as explicitly stated in the 2013 EDRP), and that in its “Exclusive Remedy” clause it actually “extends to all eligible disputes whether based on federal, state or local law including breach of contract, discrimination or retaliation claims.”(Dkt. 19-4).

As seen above, the Exclusive Remedy clause provides no limitations as to federal claims, but instead extends to all eligible disputes for all U.S employees based on federal or state law. Class action is one form of civil action or dispute that can be brought under federal or state law to handle all eligible disputes for many employees. In fact, the Supreme Court recently reviewed a simple one sentence arbitration clause, absent of any class arbitration language, but still observed by contract construction how an arbitrator gleaned or inferred that there existed an intent between the parties to permit class arbitration.

In Sutter v. Oxford Health Plans LLC, 675 F.3d 215 (3d Cir. 2012), the third circuit explained that when the contract is silent as to class actions, an arbitrator can permit class-wide arbitration after determining the parties implicitly agreed to class-wide arbitration. The Supreme Court affirmed in Oxford Health Plans LLC v. Sutter, 569 U.S. 564 (2013). Importantly, the Supreme Court’s analysis 19

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1207

Page 30 of 37

provides additional guidance for this Court to consider in inferring the authorization of class arbitration in arbitration clauses that are silent about that issue. For example, in Oxford, the one-sentence clause stated the following: No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the rules of the American Arbitration Association with one arbitrator.

The Supreme Court dissected the arbitrator’s construction of this simple clause to determine whether class arbitration could be authorized. The Court observed: The parties agreed that the arbitrator should decide whether their contract authorized class arbitration, and he determined that it did.

Noting that the question turned on “construction of the parties' agreement,” the arbitrator focused on the text of the arbitration clause quoted above. He reasoned that the clause sent to arbitration “the same universal class of disputes” that it barred the parties from bringing “as civil actions” in court: The “intent of the clause” was “to vest in the arbitration process everything that is prohibited from the court process.” And a class action, the arbitrator continued, “is plainly one of the possible forms of civil action that could be brought in a court” absent the agreement. Accordingly, he concluded that “on its face, the arbitration clause ... expresses the parties' intent that class arbitration can be maintained.” Id. at 570 Likewise, here, this Court in answering the gateway question (as opposed to the arbitrator in Oxford) can determine whether the parties intended to permit class arbitration under the 1995 EDRP. Like the arbitration clause found in Oxford, the “Exclusive Remedy” clause in the 1995 EDRP contemplates “the same universal class of disputes” that would bar the 1995 Class from bringing them in federal court. And the “intent of the clause was to vest in the arbitration process 20

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1208

Page 31 of 37

everything that is prohibited from the court process.” Id. Additionally, “a class action is plainly one of the possible forms of civil action that could be brought in court.” Id. Thus, “on its face the arbitration clause expresses the parties’ intent that class arbitration can be maintained.” Id. Moreover, given the multiple references to “employees” and “disputes” in the plural form, and with “All” employees being privy to the 1995 EDRP policy with a common employer, with assurance that all employment disputes can be handled by arbitration, the Exclusive Remedy clause provides an even stronger indication of the intent of the parties to permit class arbitration than the intent reflected in the clause that was at issue in the Oxford matter.

More telling is FCA’s subsequent conduct in its 2013 EDRP by: 1) limiting the “Scope” to each individual employee (as opposed to “All U.S Employees”), 2) adding class waiver language, and 3) limiting the scope to the “Individual Nature of Covered Claims”. As stated above, courts must avoid interpretations that would render any part of a contract surplusage or nugatory and must also, if possible, seek an interpretation that harmonizes potentially conflicting terms. Wells Fargo Bank, supra. And, “[w]hen there are several agreements relating to the same subject matter, the intention of the parties must be gleaned from all the agreements.”

Omnicom of Mich., supra.

21

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1209

Page 32 of 37

Again, here, the additional 2013 provisions (including class waivers) would be rendered a surplusage if somehow it is found to have existed in the 1995 EDRP. The fact that FCA decided to explicitly limit each employee to litigate their employment claims individually in the 2013 EDRP demonstrates that they did not intend to be limited to individualized arbitration in the 1995 EDRP. Accordingly, in order to properly harmonize the contract and not render any word a nugatory, this Court should find that the parties intended to allow class arbitration in the 1995 EDRP, as the additional class waiver language and individualized scope of the 2013 EDRP permits this Court to glean such intent.

Additionally, the two cases that this Court referenced (Stolt-Nielson, and Reed Elsevier) to find that class action arbitration cannot be inferred are distinguishable and, respectfully, do not apply. For example, as to Stolt-Nielsen, the Supreme Court in Oxford actually made a thorough distinguishing analysis to support the inference made by the arbitrator that class arbitration was in fact authorized (although it was silent regarding that issue): The contrast with this case is stark. In Stolt–Nielsen, the arbitrators did not construe the parties' contract, and did not identify any agreement authorizing class proceedings. So in setting aside the arbitrators' decision, we found not that they had misinterpreted the contract, but that they had abandoned their interpretive role. Here, the arbitrator did construe the contract (focusing, per usual, on its language), and did find an agreement to permit class arbitration.

Oxford, supra at 571.

22

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1210

Page 33 of 37

We overturned the arbitral decision there because it lacked any contractual basis for ordering class procedures, not because it lacked, in Oxford's terminology, a “sufficient” one. The parties in Stolt– Nielsen had entered into an unusual stipulation that they had never reached an agreement on class arbitration. In that circumstance, we noted, the panel's decision was not—indeed, could not have been— “based on a determination regarding the parties' intent.” Id. Unlike in Stolt–Nielsen, the arbitrator explained, the parties here disputed the meaning of their contract; he had therefore been required “to construe the arbitration clause in the ordinary way to glean the parties' intent.” And in performing that task, the arbitrator continued, he had “found that the arbitration clause unambiguously evinced an intention to allow class arbitration.” Id. at 567–68.

Here, unlike Stolt, but similar to Oxford, the parties never stipulated that they did not agree to class arbitration. In fact, the parties here dispute the meaning of the 1995 EDRP policy. Thus, through contract construction, it is evident that the parties intended the 1995 EDRP to allow class action. And to the extent the Court finds any ambiguity in the 1995 EDRP policy, such ambiguity should be ruled “strongly against the drafter.” Performance Contracting, Inc, supra.7 Additionally, unlike the 1995 EDRP language, the arbitration clause that was at issue in Stolt-Nielson expressed terms in singular form to provide support that class arbitration was not authorized: Arbitration. Any dispute arising from the making, performance or termination of this Charter Party shall be settled in New York…Such Indeed to infer that only individual arbitration , not class actions, is authorized in the 1995 EDRP policy – where neither proceeding is expressly mentioned – would run contrary to the principle that any ambiguity should be strongly ruled against the drafter – here FCA. 7

23

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1211

Page 34 of 37

arbitration shall be conducted in conformity with the provisions and procedure of the United States Arbitration Act [i.e., the FAA…” This also hold true in the second case this Court referenced in Reed Elsevier, Inc (decided 5 months before Oxford). The arbitration clause that was at issue in Reed provided the following: Except as provided below, any controversy, claim or counterclaim (whether characterized as permissive or compulsory) arising out of or in connection with this Order…will be resolved by binding arbitration… (Emphasis added) Here, unlike the 1995 EDRP which specifically pertains to “disputes” and “employees” in plural form, the clause above only pertained to one “Order” or one transaction. Indeed, the Sixth Circuit held: The principal reason to conclude that this arbitration clause does not authorize classwide arbitration is that the clause nowhere mentions it.

A second reason, as the district court correctly observed, is that the clause limits its scope to claims “arising from or in connection with this Order,” as opposed to other customers' orders. Reed Elsevier, Inc, supra.

In addressing the “principal reason” above, the Reed case was decided five months before the Oxford case which addressed authorizing class arbitration where the agreement is silent as to class claims. But importantly, Reed involved one Order, in contrast to the multiple disputes referenced in the 1995 EDRP policy.

Epic, which is new, controlling law regarding class waivers, does not change the result that class arbitration is available in the 1995 EDRP. To explain, Epics involved a clause with a class waiver. As stated above, the 1995 EDRP does not contain class waiver language. As this Court ordered, the 1995 Class is subject to 24

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1212

Page 35 of 37

the 1995 EDRP. The 1995 EDRP contains no prohibition against class arbitration – which is explicitly prohibited in the 2013 EDRP. If this Court were to read an agreement to waive class rights into the 1995 EDRP, then the explicit class wavier contained in the 2013 EDRP would be rendered nugatory. Wells Fargo, supra.

Finally, the AAA rules (which is incorporated as the arbiter in the 1995 EDRP policy) provides that its own rules should not be a factor used by the arbitrator to either favor or prohibit arbitration to proceed on a class basis, leaving the Courts to actually interpret the contract to determine the intent of the parties as stated above. (Ex. B). Interestingly, however, in addressing arbitration clauses that are silent to class action proceedings, AAA published the following: The AAA administers class arbitrations for cases where the underlying agreement specifies that disputes arising out of the parties’ agreement should be resolved by arbitration and the agreement is silent with respect to class claims.

Although this publication above should not be relied up on as binding, it is consistent with the result derived in the Oxford court when it analyzed how the arbitrator gleaned or inferred that class action was authorized in an agreement that was “silent with respect to class claims.” Id. For the reasons stated, in the event the Court is convinced that the 1995 Class should have their claims arbitrated, this Court should order class, rather than individual arbitration to prevent manifest injustice and correct a clear error.

25

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1213

Page 36 of 37

CONCLUSION WHEREFORE, based on the foregoing, Plaintiffs respectfully request that this Honorable Court reconsider its May 24, 2018 Opinion and Order Granting In Part and Denying In Part Defendant’s Motion to Compel Arbitration, and permit Plaintiffs to proceed in federal court as a class, or in the alternative if the Court finds that arbitration is appropriate to submit to arbitration as a class.

Respectfully submitted, AKEEL & VALENTINE, PLC

By:

/s/: SHEREEF H. AKEEL Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) Adam S. Akeel (P81328) Attorneys for Plaintiffs 888 West Big Beaver Road, Ste. 420 Troy, MI 48084

Michael L. Pitt (P24429) Megan A. Bonanni (P52079) Robert W. Palmer (P31704) Cary S. McGehee (P42318) Beth M. Rivers (P33614) Attorneys for Plaintiffs 117 W. Fourth Street, Ste. 200 Royal Oak, MI 48067 (248) 398-9800 Dated: June 7, 2018

26

Case 2:17-cv-10097-LJM-EAS ECF No. 39 filed 06/07/18

PageID.1214

Page 37 of 37

CERTIFICATE OF SERVICE The undersigned says that on June 7, 2018 (s)he electronically filed a copy of the following document in the above-captioned matter by filing into the Eastern District Court Website: DOCUMENT(S): Plaintiffs’ Motion for Reconsideration and that same is being served upon counsel of record via the court’s electronic filing and electronic mail notification system as follows: Jerome R. Watson M. Misbah Shahid Daniel E. Turner Jacqueline Phipps Polito Tasha K. Inegbenebor Michael L. Pitt Megan A. Bonanni Robert W. Palmer Carey S. McGehee

Watson@millercanfield.com Shahid@millercanfield.com dturner@littler.com jpolito@littler.com tinegbenebor@littler.com mpitt@pittlawpc.com mbonanni@pittlawpc.com rpalmer@pittlawpc.com cmcgehee@pittlawpc.com Respectfully submitted, AKEEL & VALENTINE, PLC By: /s/: Shereef H. Akeel SHEREEF H. AKEEL (P54345) HASAN KAAKARLI (P81099) ADAM AKEEL (P81328) Attorneys for Plaintiffs 888 W. Big Beaver Road, Ste. 420 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com

o:\fca class action\@williams, marlin-race\pleadings-draft\motion for reconsidertaion.docx

27