DATE OF JUDGMENT: 01/30/2013.
CLAY COUNTY CIRCUIT COURT, HON. LEE J. HOWARD, TRIAL
FOR APPELLANT: JIM WAIDE, RON L. WOODRUFF.
FOR APPELLEE: J. TUCKER MITCHELL, STEPHEN DEAN STAMBOULIEH.
DICKINSON, PRESIDING JUSTICE. RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND KITCHENS, J. CHANDLER, J., NOT PARTICIPATING.
DICKINSON, PRESIDING JUSTICE.
¶1. When Express Check Advance of Mississippi, LLC, employed Lacie Smith, she agreed to submit " any employment-related dispute" to arbitration. Later, in response to her termination, Smith commenced legal proceedings against Express Check in circuit court. The trial judge compelled arbitration and Smith appealed. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2. When Express Check hired Smith for a clerical position, she signed a two-page document entitled " Non-Competition and Confidentiality Agreement." Section six of that document stated:
6.1 Injunctive Relief. Associate acknowledges that it would be difficult to fully compensate the Employer for damages resulting from any breach by Associate of the provisions of, this Agreement. Accordingly, Associate agrees that, in addition to, but not to the exclusion of, any other remedy, the Employer shall have the right to enforce the provisions of this Agreement by applying for and obtaining temporary and permanent restraining orders or injunctions from a court of competent jurisdiction without the necessity of filing a bond therefore, and without the necessity of proving actual damages, and the Employer shall be entitled to recover from Associate its reasonable attorneys' fees and costs in enforcing the provisions of this Agreement.
6.2 Settlement by Arbitration. Pursuant to the terms of this Agreement, and in valuable consideration received in exchange therefore, the parties hereto agree that any employment-related dispute, controversy or claim that Associate may have with Employer and/or any of its associates, officers, members, managers, governors, parents, subsidiaries, affiliates or agents, in their capacity as such or otherwise, or that Employer and/or any of its associates, officers, members, managers, governors, parents, subsidiaries, affiliates or agents may have with Associate, shall be resolved only through arbitration and not through litigation in federal, state or local court.
Associate agrees that he/she cannot bring any claim or lawsuit, or act as a lead plaintiff in or otherwise participate in any class action lawsuit, in any federal, state or local court involving this Agreement, application or candidacy for employment, employment, or cessation of employment with Employer, including, but in no way limited to, claims arising under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act of 1993, 42 U.S.C. § 1981, the Associate Retirement Income Security Act (ERISA), the Fair Labor Standards Act, the Occupational Health and Safety Act, the Worker Adjustment and Retraining Notification Act, the human rights act, or similar act, of any state, the public protection act, or similar act, of any state, any claim based on express or implied contract, any claims of promissory estoppel, any action arising in tort, including, but in no way limited to, libel, slander, defamation, intentional infliction of emotional distress, or negligence, any claim for wrongful discharge, any constitutional claims or any claims under all laws relating to the violation of public policy, retaliation or compensation, any claims arising under employment or disability discrimination or
whistleblower laws, or any other statutory or common-law claims under federal, state or local law. A dispute, controversy or claim is also considered subject to this policy if it arises or involves any issue pertaining to this Agreement, the formation of this Agreement, the scope of this Agreement or the Party's performance of this Agreement. Associate understands that he/she is waiving the right to a jury trial for any such claim. This provision is mutually binding upon both Employer and Associate, as indicated by the acknowledgment set forth below.
Associate understands that he/she has the right to be represented by the attorney of his/her choice in pursuing any employment-related dispute, controversy or claim under this Agreement. Associate further understands and agrees that the decision of the Arbitrator will be FINAL AND BINDING on all parties to the dispute. There is no appeal on the merits of the dispute to federal, state or local courts.
This section is to be construed pursuant to the terms of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. The provisions of any arbitration act or statute under the laws of the State of Mississippi, do not apply to this section.
¶3. Section seven included miscellaneous provisions, including a severability clause, a choice-of-law provision, and a notation that " [t]he headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement."
¶4. Smith signed the agreement and separately initialed an acknowledgment accepting the arbitration provision. She also initialed an acknowledgment that she had read the entire agreement.
¶5. After Express Check terminated Smith, she filed suit, claiming that she was fired for reporting her supervisor's illegal acts. Express Check answered, denied the allegations, and moved to compel arbitration pursuant to the " Non-Competition and Confidentiality Agreement." Smith responded to Express Check's motion by arguing that the agreement was procedurally and substantively unconscionable, that she never knowingly agreed to arbitrate her claims, and that she signed the agreement under duress.
¶6. At the hearing on its motion, Express Check introduced the agreement and Smith testified, arguing that the arbitration clause was procedurally unconscionable because no one told her to read the agreement or explained its meaning. She also argued that the agreement was substantively unconscionable because she lacks the financial resources to bear the cost of arbitration.
¶7. In his order compelling arbitration, the trial judge stated that the agreement was not procedurally unconscionable because, unless illiterate, Smith had a duty to read it, and that she could have refused to sign the agreement and sought employment elsewhere. He also found that the agreement was not substantively unconscionable ...