Olivia Covington for www.theindianalawyer.com
A former Indiana Cracker Barrel manager who sued the restaurant chain for disability discrimination and retaliation must arbitrate her claims against the restaurant after a federal judge compelled the employee to comply with an arbitration agreement she claims she never signed.
Heather Hulwick worked as a Cracker Barrel manager from 2005 until October 16, 2016, when she was discharged. Following her termination, Hulwick filed a discrimination complaint against the restaurant with Equal Employment Opportunity Commission, then filed a lawsuit in the Indiana Northern District Court alleging unlawful discrimination in violation of the Americans with Disabilities Act and the Family Medical Leave Act. She also claimed Cracker Barrel retaliated against her for filing a sexual harassment claim with the EEOC.
In response, Cracker Barrel moved to dismiss the case and to compel arbitration, pointing to Hulwick’s electronic signature on a 2015 arbitration agreement, which all Cracker Barrel employees were asked to sign within the Cracker Barrel University online training program. The restaurant presented evidence that Hulwick signed the agreement at 5:36 a.m. on Nov. 5, 2015.
Hulwick, however, argued she never logged into CBU on Nov. 5 and, thus, could not have signed the agreement. Instead, she said each employee’s CBU username and password were posted in a place accessible by all managers. She surmised that somebody else used her password to sign into CBU and provide her electronic signature, an action Hulwick said: “would be consistent with the pressure that the general manager would feel to ensure that each employee successfully completed the training modules.”
But Cracker Barrel maintained that its managers were never asked to complete CBU training modules, including one with the arbitration agreement, on behalf of their employees, nor would the managers suffer penalties if all of their employees did not complete the modules. The restaurant also argued that Hulwick was the only manager working at the store until 7 a.m. on Nov. 5, so even if the passwords were posted for the managers to see – a fact the restaurant disputed – she would have been the only person who could have accessed them at the time in question.
After likening Hulwick’s case to Versmesse v. AT&T Mobility LLC, 3:13 CV 171, 2014 WL 856447 (N.D. Ind. Mar. 4, 2014), Chief Judge Theresa L. Springmann agreed with Cracker Barrel that the arbitration agreement must be enforced. Like Hulwick, the plaintiff in Versmesse claimed she did not see or know of the disputed electronic arbitration agreement but did not present any evidence to support her position other than to say that somebody else accessed her account.
“As in Vermesse, there is no dispute that the ADR module through CBU was accessed and completed ‘by someone accessing her account using her username and password,’” Springmann wrote. “But, similarly, the Court finds that Plaintiff’s argument that somebody else must have accessed the ADR module through her account speculative and unavailing.”
“The Plaintiff needed to ‘come forward with some evidence, other than her own statement that she did not (review the Arbitration Agreement), that would raise an issue of fact concerning the formation of the arbitration agreement,’” the chief continued. “She has not done so.”
Thus, the case of Heather Hulwick v. CBOSC East, Inc. d/b/a “Cracker Barrel,” 1:17-cv-468, was dismissed and ordered to arbitration.