Gray v. Gc Services

                                 IN THE
            ARIZONA COURT OF APPEALS
                               DIVISION ONE


                  MICHELE GRAY, Plaintiff/Appellant,

                                    v.

                 GC SERVICES, LP, Defendant/Appellee.

                         No. 1 CA-CV 21-0533
                           FILED 12-14-2023


          Appeal from the Superior Court in Maricopa County
                         No. CV 2021-002228
             The Honorable Bradley H. Astrowsky, Judge

                    VACATED AND REMANDED


                            APPEARANCES

Michele Gray, Rensselaer, NY
Plaintiff/Appellant

Hassett Glasser PC, Phoenix
By Myles P. Hassett, Jamie A. Glasser, David R. Seidman
Counsel for Defendant/Appellee
                          GRAY v. GC SERVICES
                           Opinion of the Court



                                 OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.


B R O W N, Judge:

¶1             Michele Gray appeals the superior court’s order dismissing
her employment-related claims with prejudice, asserting the court erred by
failing to order arbitration under the parties’ employment agreement. We
hold that the parties explicitly agreed to resolve all disputes arising out of
Gray’s employment through arbitration, including whether Gray’s current
lawsuit is barred by claim preclusion. Thus, we vacate the dismissal order
and remand to allow the parties to participate in arbitration to address
preclusion and other issues in the exclusive forum they selected to resolve
their dispute.

                             BACKGROUND

¶2           In June 2019, GC Services, LP (“GCS”) hired Gray as a home-
based customer service representative. As a condition of employment,
Gray signed a “Mutual Agreement for Dispute Resolution” (“Agreement”)
providing for “mutually binding” arbitration. The Agreement states that it
is governed by the Federal Arbitration Act (“FAA”) and “shall survive the
termination of [Gray’s] employment” by GCS.1

¶3            The employment relationship soured, and in January 2020,
Gray sent GCS a resignation letter, which GCS immediately accepted.
Several months later, Gray sued GCS in the United States District Court for
the Northern District of New York, alleging GCS wrongfully terminated her
employment in violation of several federal and state statutes. In February
2021, Gray sued GCS in Maricopa County Superior Court, raising
substantially the same claims she had alleged in the federal lawsuit, along
with claims based on state law. Meanwhile, Gray filed a nearly identical
suit in New York state court. Regardless of the ultimate disposition of the


1      The Agreement also states that “[t]o the extent any dispute requires
the application of state law, the parties agree only the laws of the State of
Texas shall apply.” Neither party, however, has argued Texas law is
relevant in resolving the issues we address in this appeal.


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                           Opinion of the Court

suits Gray filed in New York, they have no bearing on the outcome of this
appeal.

¶4             In the case before us, GCS filed a combined motion to compel
arbitration and motion to dismiss. GCS stated it was “seeking to compel
any cognizable claims to arbitration pursuant to a valid and binding
arbitration agreement between the parties,” which required them “to
arbitrate all disputes arising out of or related to [Gray’s] employment or the
termination thereof.” GCS qualified its motion to compel, however,
asserting there was nothing the superior court could compel because Gray’s
complaint failed to state any cognizable claim and thus dismissal was
appropriate under Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). GCS
added that, even if a “cognizable claim” existed, Gray’s lawsuit would be
barred by claim preclusion.2

¶5            The superior court dismissed Gray’s complaint with
prejudice, explaining it was unnecessary to decide the “arbitration issue”
because Gray failed to state a claim under any of the grounds she had
alleged, and claim preclusion applied. After the court issued a final
judgment, Gray filed a timely notice of appeal.

                               DISCUSSION

       A.     Appellate Jurisdiction

¶6              GCS asks that we dismiss Gray’s appeal, asserting the
substantive issues raised in Gray’s opening brief go beyond her notice of
appeal. “As a general rule, our review is limited to matters designated in
the notice of appeal or cross-appeal.” Desert Palm Surgical Grp., P.L.C. v.
Petta, 

 (App. 2015). Whether the notice of appeal is
sufficient is a question of jurisdiction, and “[w]e have an independent duty
to determine whether we have jurisdiction over an appeal.” 

¶7          Although Gray’s notice of appeal included an extraneous
comment referencing her amended complaint, the notice plainly stated she
was appealing the superior court’s dismissal order. Thus, she substantially
complied with our appellate rules by identifying the correct order she
wished to appeal. See ARCAP 8(c)(3) (stating that a notice of appeal must


2      GCS cited Arizona’s arbitration statutes and the FAA as the basis for
its motion to compel arbitration. Because the parties expressly agreed the
Agreement is governed by the FAA, we need not decide the applicability of
Arizona’s arbitration statutes.


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                            Opinion of the Court

“[d]esignate the judgment or portion of the judgment from which the party
is appealing”). Moreover, GCS has made no argument it was misled as to
which order Gray intended to appeal or was otherwise prejudiced. See Hill
v. City of Phoenix, 

, 572–73, ¶ 10 (1999). We have appellate
jurisdiction under A.R.S. § 12-2101(A)(1) to decide issues relating to the
dismissal order.

       B.     Waiver

¶8              GCS argues that Gray waived all arguments on appeal
because her opening brief does not comply with ARCAP 13. Among other
things, GCS asserts that Gray failed to include a statement of the case, her
statement of the facts is incoherent, she did not provide citations to the law
or record, and her arguments are a “mishmash of perceived grievances.”
See Ramos v. Nichols, 

, 522, ¶ 8 (App. 2022) (explaining that an
appellant who fails to make a reasonable effort to comply with the rules
may waive issues on appeal due to noncompliance). Although the opening
brief is deficient in some respects, we decline to apply waiver because Gray
has adequately challenged the court’s decision to dismiss the case on the
merits without first considering whether her claims must be resolved
through arbitration. See 

       C.     Motion to Compel Arbitration

¶9            Turning to the substance of her appeal, Gray argues the
superior court erred when it failed to compel arbitration pursuant to the
Agreement. We review de novo the superior court’s decision on whether
to compel arbitration. Allstate Prop. & Cas. Ins. Co. v. Watts Water Techs., Inc.,

, 256, ¶ 9 (App. 2018). When addressing whether the parties
agreed to arbitrate a certain matter, courts generally apply state-law
principles governing contract formation. First Options of Chicago, Inc. v.
Kaplan, 

 (1995). Once it is determined that the FAA applies
to a dispute, federal substantive law regarding arbitrability controls.
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 

(1985).

¶10            In addressing “whether a dispute is subject to arbitration
governed by the FAA, a court is limited to deciding whether an arbitration
agreement exists and whether it encompasses the dispute.” United Behav.
Health v. Maricopa Integrated Health Sys., 

 (2016).
(citing Chiron Corp. v. Ortho Diagnostic Sys., Inc., 

 (9th Cir.
2000)). “If the response is affirmative on both counts, then the Act requires
the court to enforce the arbitration agreement in accordance with its terms.”



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                           GRAY v. GC SERVICES
                            Opinion of the Court

Chiron Corp., 

. The question here is whether the Agreement
encompasses the disputes between GCS and Gray.

¶11           Section 1 of the Agreement (”All Disputes Must be
Arbitrated”) states in part:

       Claims subject to arbitration include all legally cognizable
       claims in the broadest context and include, but are not limited
       to, any dispute about the interpretation, applicability,
       validity, existence, enforcement, or extent of arbitrability of or
       under this Agreement . . . This includes, by way of non-
       exhaustive illustration only, any claim of employment
       discrimination in any alleged form . . . or any other claim,
       whether contractual, common-law, statutory, or regulatory
       arising out of, or in any way related to, Individual’s
       application for employment with and/or employment with
       Company, the termination thereof, this Agreement, or any
       other matter incident or in any manner related thereto.

¶12           In interpreting a contract, we consider the language used
according to its plain and ordinary meaning, viewed in context of the entire
contract, unless “it can be shown that the parties intended a special
meaning.” Terrell v. Torres, 

 (2020). We also “attempt
to reconcile and give effect to all terms of the contract to avoid any term
being rendered superfluous.” 

¶13            “Absent some ambiguity in the agreement, . . . it is the
language of the contract that defines the scope of disputes subject to
arbitration.” Equal Emp. Opportunity Comm’n v. Waffle House, Inc., 

 (2002). Ambiguities in an agreement “should be resolved in favor
of arbitration,” but courts will not override parties’ intent, “or reach a result
inconsistent with the plain text of the contract, simply because the policy
favoring arbitration is implicated.” 

; see also Morgan v. Sundance,
Inc., 

 (2022) (noting that the federal policy favoring
arbitration is not intended to “favor arbitration over litigation[,]” but rather
to “hold a party to its arbitration contract just as the court would to any
other [contract]”). And except in limited circumstances not applicable here,
arbitration agreements in employment contracts are valid and enforceable.
See Cir. City Stores v. Adams, 

 (2001); see also Hamblen v.
Hatch, 

 (2017).




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                           GRAY v. GC SERVICES
                            Opinion of the Court

              1.      Legally Cognizable Claims

¶14           GCS argues the FAA does not apply because its dispute with
Gray is not a “legally cognizable claim” as that phrase is used in the
Agreement. But that argument overlooks the Agreement’s expansive
language requiring arbitration and the FAA’s broad applicability to
arbitration agreements. See 

 (establishing the validity and
enforceability of agreements to arbitrate disputes arising out of contract
“save upon such grounds as exist at law or in equity for the revocation of
any contract”); see also S. Cal. Edison Co. v. Peabody W. Coal Co., 

 (1999) (“The FAA preempts state law and governs all written
arbitration agreements involving interstate commerce, making such
agreements enforceable in both federal and state courts.”).

¶15            According to GCS, the phrase “legally cognizable claims”
limits the scope of the Agreement because a claim barred by claim
preclusion is not cognizable. That argument, however, presupposes a
specific resolution of a legal issue, and the question here is whether that
legal issue should be resolved in arbitration. As GCS argued in the superior
court, the parties entered into an enforceable agreement, which contained a
“mutual, broad, and unambiguous arbitration provision” mandating
arbitration of any claim arising out of Gray’s employment. GCS also
asserted “the plain terms of the arbitration clause” meant that Gray’s claims
must be arbitrated. On appeal, GCS seeks to retreat from those assertions,
arguing its motion to compel was merely an alternative theory presented to
the superior court, and in any event, it only moved to compel arbitration of
any “cognizable claims.” GCS now takes the view that, because Gray’s
claims are not cognizable, the Agreement is essentially irrelevant based on
application of claim preclusion. For several reasons, we disagree.

¶16           First, GCS does not address why Gray’s suit does not fit
squarely within the phrase “all legally cognizable disputes.”              See
Agreement, § 1 (confirming the parties’ intent “that all legally cognizable
disputes between them that cannot be resolved to the parties’ satisfaction
through use of the Company’s personnel policies, must be resolved by final
and binding arbitration” and stating that the Agreement “shall be
construed as broadly as legally possible and shall apply to any and all
legally cognizable disputes between” the parties). We presume the parties
meant something different by using “legally cognizable disputes” in certain
places in the Agreement and “legally cognizable claims” in others. See
Terrell, 

 (recognizing that courts “attempt to reconcile
and give effect to all terms of the contract to avoid any term being rendered
superfluous”). Gray has alleged she was wrongfully terminated by GCS,


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                           GRAY v. GC SERVICES
                            Opinion of the Court

and GCS provides no authority showing her allegation does not constitute
a legally cognizable dispute between them, even if it ultimately might fail.

¶17            Second, whether analyzed as a claim or a dispute, the
Agreement contemplates that any claim or dispute arising out of Gray’s
employment must be resolved through arbitration. And as our supreme
court has recognized, trial courts “must carefully avoid deciding the merits
of an arbitrable claim or any defenses to it.” United Behav. Health, 

; see also U.S. Fire Ins. Co. v. Nat’l Gypsum Co., 

, 817
(2d Cir. 1996) (recognizing that “a defense based on the issue-preclusive
effect of the prior judgment is part of the dispute on the merits”); Republic
of Nicaragua v. Standard Fruit Co., 

 (9th Cir. 1991)
(explaining that a court’s “role is strictly limited to determining arbitrability
and enforcing agreements to arbitrate, leaving the merits of the claim and
any defenses to the arbitrator”).

¶18             Third, GCS’s argument ignores the Agreement’s broad
language requiring arbitration. As noted, § 1 says that matters to be
arbitrated shall “include all legally cognizable claims in the broadest
context . . . [including] any claim arising under any federal, state, or local
statute, regulation, or ordinance, any alleged contract, or under the
common law.” That section also states that “[t]he parties jointly agree neither
may file any lawsuit to resolve any dispute between them.” (Emphasis added.)
These provisions leave no doubt what the parties agreed to and compels
the conclusion that Gray’s claims must be arbitrated. GCS’s reliance on
Charlton v. Estate of Charlton, 

 (D. Ariz. 1985), is without merit
because that case does not involve any issues relating to arbitration or the
FAA.

¶19             Fourth, we reject GCS’s attempt to narrow the scope of the
Agreement by focusing only on the term “cognizable.” Although Gray’s
amended complaint includes discussion of many irrelevant matters,
regardless of merit, her claims are nonetheless capable of being heard and
determined by a judicial officer. Given the language of the Agreement,
Gray’s claims are subject to arbitration. See Agreement, § 6 (stating that in
any dispute, “the arbitrator may grant any relief, legal or equitable, interim
or final, which could be granted by a court of competent jurisdiction”); id.,
§ 1 (stating that the Agreement applies to any claim, “whether contractual,
common-law, statutory, or regulatory arising out of, or in any way related
to, [Gray’s] . . . employment with [GCS] . . . or any other matter incident or
in any manner related thereto”).




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                           Opinion of the Court

¶20           Finally, § 2 of the Agreement provides additional support for
our analysis. It states that the Judicial Arbitration and Mediation Services
(“JAMS”) rules and procedures for employment matters “applicable to the
dispute” apply. Section 2 also says that any dispute between Gray and
GCS, including “the interpretation, applicability, validity, existence,
enforcement, or extent of arbitrability of or under this Agreement, shall be
resolved exclusively by final and binding arbitration administered by
JAMS.” Inclusion of this language further confirms the parties’ Agreement
that all disputes between them will be resolved through arbitration,
including whether claim preclusion bars Gray’s claims.

              2.     Existing Controversy

¶21           The FAA states that agreements to arbitrate “an existing
controversy arising out of such a contract” are valid and enforceable “save
upon such grounds as exist at law or in equity for the revocation of any
contract.” 

 (emphasis added). GCS contends there is no
“existing controversy” here, meaning the FAA does not apply to this
dispute, because Gray’s claims are barred by claim preclusion.

¶22            GCS relies again on Charlton. As noted, that case did not
involve arbitration; rather, the bankruptcy court held that the Declaratory
Judgment Act (“DJA”), 

, only applied to “cases of actual
controversy,” which did not exist if the issues were barred by claim
preclusion. 

. Unlike the FAA, the DJA gives judges discretion
in deciding what matters are appropriate for a declaratory action. Compare

(a) (“[A]ny court of the United States . . . may declare the
rights and other legal relations of any interested party seeking such
declaration”) (emphasis added), with 

 (When a court is satisfied
that a matter is subject to arbitration, the court “shall on application of one
of the parties stay the trial of the action until such arbitration has been had
in accordance with the terms of the agreement”) (emphasis added).
Nothing in Charlton suggests its reasoning extends to arbitration
agreements governed by the FAA.

              3.     Mootness

¶23           GCS also argues the arbitration issue became moot when the
superior court determined Gray failed to state a claim for relief. That
argument fails because the court was limited to “deciding whether an
arbitration agreement exists and whether it encompasse[d] the dispute”
and should have avoided deciding the merits of Gray’s claims. See United
Behav. Health, 

; see also AT&T Techs., Inc., v. Commc’ns



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                          GRAY v. GC SERVICES
                           Opinion of the Court

Workers of Am., 

 (1986) (recognizing “that, in deciding
whether the parties have agreed to submit a particular grievance to
arbitration, a court is not to rule on the potential merits of the underlying
claims”). Under these circumstances, the court lacked the authority to
dismiss Gray’s complaint for failure to state a claim or based on claim
preclusion because those issues must be resolved through arbitration.

              4.     Full Faith and Credit

¶24             Finally, GCS relies on the Full Faith and Credit Clause to
argue that the resolution of its motion to compel arbitration and motion to
dismiss the complaint does not depend on the FAA. See U.S. Const. art. IV,
§ 1 (“Full Faith and Credit shall be given in each State to the . . . judicial
Proceedings of every other State.”). Thus, each State must generally give
“a judgment at least the [preclusive] effect which the judgment would be
accorded in the State which rendered it.” Durfee v. Duke, 

(1963). GCS argues that because Gray’s claims were resolved in New York
litigation, if she tried to collaterally attack that resolution in a subsequent
proceeding in New York, she would be barred by claim preclusion.
Therefore, GCS concludes Arizona courts must accord the same preclusive
effect. Again, GCS fails to acknowledge the language of the Agreement.
All disputes, including whether preclusion doctrines apply, are questions
for the arbitrator.

                               CONCLUSION

¶25            We vacate the superior court’s order dismissing Gray’s claims
because they are subject to binding arbitration, which means her sole option
moving forward is to litigate those claims through arbitration. On remand
the superior court shall issue appropriate orders to implement our decision.
See 

. Because GCS has not prevailed on appeal, we deny its
request for attorneys’ fees and costs under A.R.S. §§ 12-341.01 and -349. We
also deny GCS’s request for sanctions under ARCAP 25, as nothing in
Gray’s briefing merits sanctions. Gray is awarded taxable costs subject to
compliance with ARCAP 21.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA


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