Employment: Disability Discrimination-Arbitration

Defendant appealed the order overruling its motion to stay the proceedings and compel arbitration of plaintiff’s disability discrimination suit. Plaintiff claimed that she had vision issues and had her store’s assistant manager complete electronic documents for her upon plaintiff’s hiring, including an arbitration agreement binding the parties to arbitration. The trial court did not make any factual findings but denied the motion to compel arbitration.

Where the controlling issue was whether plaintiff assented to the arbitration agreement, the issue was one for the courts to decide because in the absence of an arbitration agreement any delegation provision would not be effective.

Breckenridge, J., concurring: “This principle requires courts to determine the existence of a contract that is within the coverage of the FAA and, therefore, requires this Court to affirm the circuit court’s holding in this case.”

Powell, J., dissenting: “The circuit court, therefore, erred by proceeding to decide whether the mutual agreement was formed and enforceable and overruling Dollar Tree’s motion to compel arbitration.  This Court should reverse the circuit court’s order and remand the case with instructions to stay further proceedings and order the parties to submit threshold issues of arbitrability to the arbitrator.”

Fischer, J., dissenting: “The issue raised by Theroff is one of contract formation, which is a “gateway question of arbitrability” that is properly delegated to the arbitrator. Rent-A-Ctr. West Inc. v. Jackson, 561 U.S. 63, 68-69 (2010). By the delegation clause’s plain terms, this is a matter for the arbitrator to decide.”

Judgment is affirmed.

Theroff v. Dollar Tree Stores Inc. (MLW No. 74417/Case No. SC97235 – 29 pages) (Supreme Court of Missouri, Russell, J.) Appealed from circuit court, Cole County, Joyce, J. (James F. Bennett, Elizabeth C. Carver, Michelle D. Nasser and Arsenio L. Mims, St. Louis, for appellant) (Jerome J. Dobson and Gregory A. Rich, St. Louis, for appellee)