United States District Court, E.D. Michigan, Southern Division
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 situation, Plaintiffs,
FCA U.S. LLC, Defendant.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO COMPEL ARBITRATION AND DENYING
DEFENDANT'S MOTION TO DISMISS AND/OR MOTION TO STRIKE
CLASS ALLEGATIONS IN THE SECOND AMENDED COMPLAINT
J. MICHELSON U.S. DISTRICT JUDGE
are current and former employees of Fiat Chrysler Automobiles
(FCA). They challenge, for themselves and others similarly
situated, an employee-evaluation policy they say has a
disparate impact on African-American employees. Plaintiffs
allege that as a result of this policy, they received lower
evaluation scores which resulted in missed career
advancements, bonuses, and other employment opportunities.
Two plaintiffs additionally bring individual claims of
retaliation and discrimination.
FCA seeks to compel arbitration pursuant to two arbitration
policies. FCA asserts that the potential class members hired
prior to the 1995 implementation of an arbitration
policy assented to the 1995 arbitration policy when they
continued to work at FCA after receiving notice of it. FCA
seeks to compel those employees pursuant to either this 1995
policy or the current policy, which was implemented in 2013.
And, FCA maintains, the potential class members hired
after the implementation of the 1995 arbitration
policy assented through their employment applications. FCA
seeks to compel those employees to arbitrate pursuant to the
current policy (or, impliedly, pursuant to the 1995 policy).
Court does not compel arbitration, FCA moves to dismiss the
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) and to strike the class allegations for failure to
meet Rule 23 prerequisites.
parties submitted extensive briefing and the Court heard oral
argument on November 8, 2017. The United States Supreme Court
recently issued an opinion that impacts the arbitration issue
and so the Court is now ready to rule. For the reasons that
follow, the Court will compel all Plaintiffs except for Leven
Weiss and Pamela Williams Carthens to arbitrate and will
allow Weiss and Carthens one additional opportunity to amend
their complaint to cure any remaining pleading defects.
1995, FCA implemented an Employment Dispute Resolution
Process (EDRP). (R. 19-4, PID 269.) Shortly before
implementing the EDRP, FCA sent non-union employees a letter
and brochure informing them of the new policy. (R. 19-4, PID
278-80.) Key to this case is that nonunion employees had to
arbitrate most disputes arising from their employment. (R.
19-4, PID 271- 77.)
plaintiffs, Leven Weiss and Pamela Williams Carthens, were
hired by FCA before the 1995 implementation of the EDRP. To
be more precise, Weiss was hired in 1985 and Carthens in
1986. (R. 8, PID 65-67.) Their employment applications stated
that if they were hired, they would comply with all of
FCA's orders, rules, and regulations. (R. 19-2, PID 250,
252.) Both signed the application and accepted employment.
remaining plaintiffs were all hired after the implementation
of the first EDRP in 1995. Dr. Jerome Thompson was hired by
FCA around 1997 (R. 8, PID 66), Anthony Hill was hired around
2000 (R. 8, PID 67), Brenda DeForrest was hired around 2002
(R. 19-2, PID 244), Michael Brown was hired around 2010 (R.
8, PID 67; R. 19, PID 196), and Cora Williams (C. Williams)
was hired around 2012 (R. 8, PID 67; R. 19, PID 196). Each
filled out employment applications stating that, if they were
hired, they would comply with the EDRP. (R. 19-2, PID 241-42,
244, 246, 248.) The applications further stated that they
agreed to bring any lawsuit arising out of their employment
with FCA within six months or 180 days. (Id.). These
five plaintiffs signed the employment applications and
accepted employment. (Id.)
FCA modified the EDRP. (See R. 19-2.) Plaintiff
Marlin Williams (“M. Williams”) was hired after
the implementation of that 2013 EDRP, around January 2015.
(R. 8, PID 65; R. 19, PID 196.) As part of her online
application, M. Williams signed a form agreeing that she
received and reviewed the EDRP and that she agreed to be
bound by and comply with the EDRP. (R. 19-2, PID 240.) Unlike
the other employment applications, this application contained
an acknowledgement form which included an electronic link to
the 2013 EDRP. (R. 19-2, PID 240.) M. Williams'
application also stated that she agreed to bring any lawsuit
arising out of her employment with FCA within six months or
180 days. (R. 19-2, PID 240.)
2015, FCA promoted M. Williams to Diversity Manager and asked
her to assume many of the duties of her predecessor,
Georgette Burrego Dulworth. (R. 8, PID 71.) M. Williams,
unlike Ms. Dulworth, is African American. (R. 8, PID 71.)
Despite taking on Dulworth's duties, FCA never gave M.
Williams the title of “Director, ” never promoted
her, nor gave her any “additional perks” that
came with a director-level position. (R. 8, PID 71.)
of her job responsibilities, M. Williams learned that FCA
employees are subject to a two-step evaluation process. (R.
8, PID 73.) First, an employee's direct supervisor rates
each employee's performance as “High, ”
“Medium, ” or “Low.” (R. 8, PID
73-74.) This is known as the Performance and Leadership
Management Rating (PLM Rating). (R. 8, PID 74.) Second,
management provides a numerical score, known as a Performance
and Leadership Management Score (PLM Score). (Id.)
this second step, termed the “calibration process,
” Plaintiffs say FCA managers can see the
employees' headshots. (R. 8, PID 79.) The PLM Score rates
employees on a one-to-nine scale.
(Id.) Scores are then adjusted according to a
recommended or “forced” distribution curve. (R.
8, PID 75.) An employee who scores below a five can be placed
on a Performance Improvement Program or be terminated. (R. 8,
PID 74.) The higher the score, the higher the bonuses,
additional pay, and chances of advancement opportunities. (R.
8, PID 75.)
Williams observed that, on a company-wide basis, the two-step
evaluation process treated salaried, non-union,
non-African-American employees more favorably overall
“as to their compensation, ratings, advancement
opportunities, terms, and conditions, than similarly-situated
African-American employees.” (R. 8, PID 75.) She also
observed that African-American employees received lower
scores, at five or below, at a disproportionate rate compared
to non- African Americans. (R. 8, PID 76.) M. Williams then
discovered that her own PLM Rating was downgraded after the
calibration process. (R. 8, PID 76.)
result of this process, it is alleged, Plaintiffs and those
similarly situated were disproportionately given lower PLM
Scores of five and below and were given lower scores overall
compared to non-African-American employees. (R. 8, PID
Williams reported the disparate impact to senior leadership.
(R. 8, PID 77.) She alleges that, in retaliation, FCA accused
her of underperforming, placed her under investigation, and
“ostracized and essentially excommunicated her from her
colleagues and upper management.” (R. 8, PID 78.) M.
Williams submitted her two-week notice on January 2, 2017,
but was terminated the next day. (R. 8, PID 78.)
Williams also questioned her score to human resources and
upper management. She says FCA retaliated by placing her on a
Performance Improvement Plan. (R. 8, PID 79.)
prompted C. Williams to seek relief from the Equal
Opportunity Employment Commission. In particular, on June 8,
2016, C. Williams filed an EEOC charge alleging racial
discrimination based upon FCA's policies and practices.
(R. 19-3, PID 266.) On December 2, 2016, she was terminated.
(R. 19-3, PID 267.) C. Williams then filed another EEOC
complaint on December 13, 2016. (R. 19-3, PID 267.) She
received her Right to Sue letters for the EEOC complaints on
February 22 and February 24, 2017. (R. 8-2, PID 103-104.)
after, M. Williams filed an EEOC complaint alleging that
“I and others have been subject to different terms and
conditions of employment and that I have been constructively
discharged due to my race, African American, and in
retaliation for having participated in a protected
activity.” (R. 19-3, PID 268.) On March 9, 2017, M.
Williams received a Right to Sue letter. (R. 8-1, PID 100.)
filed a second-amended complaint on March 16, 2017 alleging
class-wide relief for disparate impact prohibited by Title
VII and ELCRA; violations of 42 U.S.C. § 1981;
retaliation against M. Williams and C. Williams prohibited by
Title VII and ELCRA; and termination of C. Williams
prohibited by Title VII and ELCRA. (R. 8.)
have also filed, under seal, data from FCA relating to the