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CEFCO v. Odom

Florida Court of Appeals, First District

September 9, 2019

CEFCO d/b/a Which Wich Superior Sandwiches, Appellant,
Jaime Odom, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Santa Rosa County. David Rimmer, Judge.

          Scott A. Cole and Lissette Gonzalez of Cole, Scott & Kissane, P.A., Miami, for Appellant.

          Bradley S. Odom and Richard D. Barlow of Odom & Barlow, P.A., Pensacola, for Appellee.

          Lewis, J.

         Appellant, CEFCO d/b/a Which Wich Superior Sandwiches, appeals the trial court's order denying its motion to compel arbitration and motion to stay proceedings and, in the alternative, petitions for a writ of certiorari. For the reasons that follow, we affirm the trial court's ruling and deny the petition.


         Appellee, Jaime Odom, filed an amended complaint against Appellant, alleging that she was hired as a marketing manager for Appellant's Milton, Florida store and worked there from around January 30 to April 29, 2017, during which time she was sexually harassed, retaliated against for complaining about the harassment and other unlawful conduct, and not paid the wages she earned. Appellee filed interrogatories and a request for production of documents.

         Appellant, in turn, filed a motion to compel arbitration and motion to stay proceedings, in which it argued that Appellee's claims must be resolved through arbitration pursuant to the Mutual Arbitration Agreement ("Agreement") she entered into as a requirement of her employment and sought a stay of all proceedings until the arbitration proceedings were completed. Appellant attached to its motion a copy of the Agreement, which sets forth the disputes and claims to be resolved by binding arbitration, specifies that it is governed by the Federal Arbitration Act ("FAA"), and provides that the applicant "will electronically sign this agreement as part of the onboarding process" and "by checking the confirmation box and clicking the 'next' button," the applicant acknowledges reading and understanding the Agreement and agrees to its terms and to the use of an electronic signature. The Agreement does not contain a confirmation box, a date, Appellee's name, or her signature. Appellant filed a supplemental motion to stay proceedings including discovery pending resolution of the motion to compel arbitration.

         In her memorandum in opposition to the motion to compel arbitration, Appellee argued that the motion must be denied because Appellant failed to establish the existence of a valid written agreement to arbitrate. Appellee submitted her affidavit, attesting that she was hired by General Manager Justin Croxton and did not go through an on-boarding process, she was never presented with the Agreement and did not see it until Appellant filed its motion, she never entered into the Agreement or agreed to its terms, and "[i]f anyone purportedly entered into the agreement on [her] behalf, he or she did so without [her] knowledge or consent."

         Appellant filed a reply, contending as follows: Michael Raisbeck serves as Appellant's Vice President of Human Resources, Custodian of Employment Records and Related Documents, and Systems Administrator for the PeopleMatter Applicant Tracking System, and he provided an affidavit "outlining [Appellant's] employment and application procedures as applied at the time of [Appellee's] application for employment." In order to apply for a position with Appellant, one must complete an application electronically. On January 22, 2017, Appellee electronically signed Appellant's E-Signature Disclosures & Consent, thereby agreeing to electronically receive, access, review, and/or sign materials related to her employment application. When a store manager decides to hire an applicant, an email is sent to the prospective employee with a conditional offer of employment and a link that takes him or her "into the system to complete additional required On-Boarding hiring documents." The prospective employee must enter a unique username and password, which no one within the company can access unless the employee shares it. Upon signing in, the prospective employee is taken to the on-boarding, where he or she must view and complete eighteen items, including the Agreement. The person must click a link to download each document and check the box to consent, authorize, and confirm understanding thereof before clicking "Next" to move onto the next item. On January 31, 2017, Appellee completed the eighteen on-boarding items required for employment, including the Agreement.

         In his affidavit, Raisbeck explained Appellant's application and on-boarding process as Appellant did in its reply. Raisbeck attested in part that to the best of his knowledge, Appellee completed the on-boarding items on January 31, 2017, and the task log shows she completed the Agreement.

         Appellee filed a second affidavit, attesting as follows: Appellee never met or interacted with Raisbeck and, to her knowledge, he had no involvement in her employment. Raisbeck was not at the store at any time Appellee was there; thus, he has no personal knowledge about her hiring and whether she received the alleged documents. Prior to applying, Appellee knew the store's manager, Croxton, and he offered her a job. Appellee then applied online from the store while Croxton was sitting next to her. A few days later, Appellee received a conditional job offer with a start date of January 30, 2017. When Appellee arrived on January 30th, Croxton asked her for information such as her social security number, driver's license, voided check for direct deposit, and tax form and said he would "take it from there," and she "was promptly then put to work." Appellee did not go through any on-boarding process and was not informed about any of the various forms Raisbeck referred to in his affidavit. Croxton later told Appellee that he had established a password and user ID for her, which she never used. Croxton may have entered the on-boarding information without Appellee's knowledge, but she did not authorize or consent to his doing so. Appellee "never saw or agreed to anything regarding arbitration."

         The trial court entered an order on Appellant's motion to compel arbitration and motion to stay proceedings, whereby it denied the motion without prejudice and gave Appellant twenty days to respond to the complaint and outstanding discovery requests. The trial court stated that by responding to the complaint and discovery requests, Appellant "is not waving its ability to file a motion to compel arbitration at a later date" and "[s]hould [Appellant] uncover competent evidence in the course of discovery that [Appellee] executed a purported agreement to arbitrate, [it] may promptly ...

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