United States District Court, D. Colorado
NICOLE Q. MCGEE, Plaintiff,
NORDSTROM CHERRY CREEK RACK, Defendant.
T. BABCOCK, JUDGE.
employment discrimination case is before me on defendant
Nordstrom, Inc.'s (improperly named “Nordstrom
Cherry Creek Rack” in the caption) Motion to Dismiss
and for Order Compelling Arbitration, or in the Alternative,
to Stay Action Pending Arbitration. (ECF No. 13.) Plaintiff
Nicole McGee, an African American woman, alleges that
Nordstrom discriminated against her on the basis of her race
and gender. Nordstrom argues that because Ms. McGee agreed to
have any disputes resolved in arbitration when she signed a
dispute resolution agreement, this case should be dismissed,
and I should compel Ms. McGee to participate in arbitration.
with Nordstrom that the parties agreed to arbitrate the
issues raised in Ms. McGee's complaint, and I accordingly
order the parties to arbitrate this case and dismiss this
action without prejudice.
following facts are taken from Ms. McGee's complaint (ECF
No. 1) unless otherwise noted. Ms. McGee, an African American
woman, worked as an associate at Nordstrom in Denver,
Colorado for two and a half years, beginning in 2013. She was
the only full-time African American woman in her department.
Before she started working, Ms. McGee signed a dispute
resolution agreement with Nordstrom, which provided in
This Agreement is intended to apply to the resolution of
past, present, and future disputes that would otherwise be
resolved in a court of law and requires that all such
disputes be resolved only by an arbitrator through final and
binding arbitration and not by way of court or jury trial
except as otherwise stated in this Agreement. The Agreement
applies without limitation to disputes regarding the
employment relationship, trade secrets, unfair competition,
compensation, breaks and rest periods, termination,
discrimination, retaliation (including retaliation under the
Employee Retirement Income Security Act of 1974) or
harassment and claims arising under the Uniform Trade Secrets
Act, Civil Rights Act of 1964, Americans With Disabilities
Act, Age Discrimination in Employment Act, Family Medical
Leave Act, Fair Labor Standards Act, Genetic Information
Non-Discrimination Act, and other state and local statutes,
addressing the same or similar subject matters, and all other
state statutory and common law claims.
(Frampton Dec. Ex. H, ECF No. 13-1 at 17.)
promoted white employees over Ms. McGee, even though the
white associates had less experience. And despite expressing
her work availability to her supervisors, she was frequently
scheduled to work shifts she could not, denied hours, and
scheduled at the last minute. She also had her shifts
cancelled. She told her supervisor about her concerns with
these practices to no avail.
February 2015, Ms. McGee began to plan her upcoming maternity
leave. After speaking with someone at Nordstrom's
benefits department, she learned she would not receive paid
maternity leave because she had not worked sufficient hours
during the relevant measurement period. During the
measurement period, Ms. McGee suffered from hyperemesis
gravidarum (severe nausea during pregnancy), which impacted
her ability to work.
McGee eventually resigned from her position from Nordstrom,
and on July 13, 2016, she filed a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC). The
EEOC provided her with a Notice of Right to Sue on August 5,
2016. On November 3, 2016, Ms. McGee filed her complaint in
this Court, alleging that Nordstrom discriminated against her
based on race and gender by failing to promote her, giving
her fewer hours, and giving her less responsibility.
moved for an order compelling arbitration and dismissing the
case or staying the proceedings pending arbitration. (ECF No.
13.) When Ms. McGee did not respond, I issued a scheduling
order directing a response. (ECF No. 16.) Nevertheless, Ms.
McGee never filed any response to the motion.
Federal Arbitration Act (the “FAA”) provides that
“[a] written provision in any . . . contract evidencing
a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or
transaction . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.” 9 U.S.C.
§ 2. “The court shall hear the parties, and upon
being satisfied that the making of the agreement for
arbitration or the failure to comply therewith is not in
issue, the court shall make an order directing the parties to
proceed to arbitration in accordance with the terms of the
agreement.” 9 U.S.C. § 4. Courts must interpret
arbitration clauses liberally, and all doubts must be
resolved in favor of arbitration. Armijo v. Prudential
Ins. Co. of America, 72 F.3d 793, 798 (10th Cir. 1995).
Thus, “[h]aving made the bargain to arbitrate, the
party should be held to it unless Congress itself has evinced
an intention to preclude a waiver of judicial remedies for
the statutory rights at issue.” Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 628