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Keyes v. Dollar General Corp.

Supreme Court of Mississippi, En Banc

April 12, 2018

REBECCA KEYES
v.
DOLLAR GENERAL CORPORATION

          DATE OF JUDGMENT: 12/15/2016

          SMITH COUNTY CIRCUIT COURT STANLEY ALEX SOREY, TRIAL JUDGE

          TRIAL COURT ATTORNEYS: MARK K. TULLOS, JAKLYN LEIGH WRIGLEY, EDWARD FRANCIS HAROLD, TIMOTHY M. FARRIS

          ATTORNEYS FOR APPELLANT: MARK K. TULLOS, CRAIG N. ORR

          ATTORNEYS FOR APPELLEE: EDWARD FRANCIS HAROLD JAKLYN LEIGH WRIGLEY

          RANDOLPH, PRESIDING JUSTICE

         ¶1. Rebecca Keyes, a former employee of Dollar General, filed suit against Dollar General Corporation; DG Mize, LLC; Dolgencorp, LLC d/b/a Dollar General Store #11775 (collectively "Dollar General"), alleging counts of malicious prosecution, infliction of emotional distress, defamation, false imprisonment, fraud, deceit, and misrepresentation, after Dollar General filed a criminal affidavit against Keyes in the Municipal Court of Mize, Mississippi, causing Keyes to be arrested for embezzlement. Dollar General filed a motion to dismiss and compel arbitration, which was granted by the Circuit Court of Smith County. With the exception of the defamation claim, we find that the trial court erred in compelling arbitration, for Keyes's remaining claims are not within the scope of the arbitration agreement. We affirm the trial court's order as to the defamation claim and reverse its judgment as to the remaining claims, remanding for proceedings consistent with this opinion.

         STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

         ¶2. The underlying facts of Keyes's alleged embezzlement are not at all clear from the record. In the Complaint, Keyes alleged that:

on or about May 28, 2015, Plaintiff, Rebecca Keyes, was an employee of Dollar General in Mize, Smith County, Mississippi. On said date, Rebecca performed a cash reload to a money network card in the amount of $500.00, which did not go through properly. Rebecca Keyes informed her manager of the problem and placed the receipt on the office desk. Rebecca was told not to worry about the problem and that it would be fixed. On June 2, 2015, Rebecca Keyes was arrested for embezzlement. Thereafter, on July 16, 2015, Rebecca was found not guilty of the charges.

Keyes moved to have the charges dismissed for failure of a Dollar General representative to appear and prosecute the claims. Her motion was granted. She then filed the instant lawsuit.

         ¶3. Dollar General filed its Motion to Dismiss and Compel Arbitration, requesting that all of Keyes's claims be dismissed or alternatively stayed, and that she be compelled to submit her claims to binding arbitration. Michael Rusie, Senior Director, Labor and Employment Law at Dollar General Corporation, provided sworn testimony that all employees hired by Dollar General in and after August 2014 were presented with Dollar General's Employee Arbitration Agreement. Each employee had the option of consenting to the agreement or opting out. When Keyes was hired in November 2014, she checked the box indicating that she "agree[d] to the terms of the Agreement. I understand and acknowledge that by checking this box, both Dollar General and I will be bound by the terms of this Agreement." Pertinent parts of the agreement read as follows:

You agree that, with the exception of certain excluded claims described below, any legal claims or disputes that you may have against Dollar General, its parent and subsidiary corporations, employees, officers and directors arising out of your employment with Dollar General or termination of employment with Dollar General ("Covered Claim" or "Covered Claims") will be addressed in the manner described in this Agreement. You also understand that any Covered Claims that Dollar General may have against you related to your employment will be addressed in the manner described in this Agreement.
. . .
The procedures in this Agreement will be the exclusive means of resolving Covered Claims relating to or arising out of your employment or termination of employment with Dollar General, whether brought by you or Dollar General. This includes, but is not limited to, claims alleging violations of wage and hour laws, state and federal laws prohibiting discrimination, harassment, and retaliation, claims for defamation or violation of confidentiality obligations, claims for wrongful termination, tort claims, and claims alleging violation of any other state or federal laws, except claims that are prohibited by law from being decided in arbitration, and those claims specifically excluded in the paragraph below.
Covered Claims do not include claims for unemployment insurance benefits, workers' compensation benefits [workers' compensation discrimination and retaliation claims are Covered Claims], whistleblower claims under the Sarbanes-Oxley Act, and claims for benefits under the Employee Retirement Income Security Act. Covered Claims also do not include claims pending in court as of the date this Agreement is signed by you, and claims concerning the scope or enforceability of this Agreement.

(Emphasis added.)

         ¶4. Keyes did not dispute the existence of the Arbitration Agreement, but she argued the agreement was unconscionable, that Dollar General had waived its right to arbitrate by filing criminal proceedings against Keyes, and that her claims were not covered within the scope of the Arbitration Agreement.

         ¶5. Dollar General argued that it did not file charges against Keyes; it simply "reported something to the police. . . . It simply exercised its right to make a criminal complaint to the police department, and the police department kind of got the ball rolling, and then the rest is history, so to speak." It further argued that the agreement inherently applied to civil, not criminal matters. Dollar General admitted that it had the option of seeking recoupment of its lost money through arbitration but did not pursue it because its goal was to bring "an offender to justice." Dollar General argued ...


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