Circuit Judge Easterbrook, writing for a panel that included Circuit Judges Pryor and Maldonado, affirmed District Judge Elaine E. Bucklo's order denying SP Plus's motion to stay Rashaan Carter's minimum-wage suit pending arbitration.
Carter filed suit under state and federal minimum-wage statutes. SP Plus moved to compel arbitration based on a checked box in Carter's onboarding paperwork, accompanying its motion with a declaration representing that each new employee fully reviews every section of every agreement and that a checked box indicates at least verbal assent. Judge Bucklo initially granted a stay, but later acknowledged she had acted without giving Carter notice.
Carter then filed an affidavit stating that Brenjy Etienne, on SP Plus's human-relations staff, "filled out and 'signed' most of the forms (including the assent to arbitration) on Carter's behalf, not explaining what they were and not offering him an option to decline or even allowing him to see the computer screen that set out the choices." Judge Bucklo lifted the stay, writing that SP Plus "fails to engage with plaintiff's account of his onboarding process, which calls into question defendant's view that plaintiff's consent to arbitrate must be inferred from the presence of the initials 'Rc' and a check in the box next to 'Employee Electronic Signature' on the electronic document captioned 'Mutual Agreement to Arbitrate All Claims.'"
Rather than submit evidence contradicting Carter's account, SP Plus appealed. The Seventh Circuit first addressed whether the order was appealable under 9 U.S.C. Section 16(a)(1). The court then found that SP Plus had forfeited any right to an evidentiary hearing by failing to request one or proffer rebuttal evidence in the district court, making the order a conclusive denial of arbitration.
"It would have been easy to file an affidavit from Brenjy Etienne stating that Carter personally agreed to arbitration — easy, that is, if Etienne remembers obtaining his assent," Easterbrook wrote. "But if Etienne remembers things as Carter narrated them, and the electronic trail is inconclusive, then SP Plus lacks essential evidence."
The court rejected SP Plus's argument that a "strong federal policy favoring arbitration" required reversal. Easterbrook cited the Supreme Court's decision in Morgan v. Sundance, Inc., which held that the federal policy "is to make 'arbitration agreements as enforceable as other contracts, but not more so'" and that "a court may not devise novel rules to favor arbitration over litigation."
SP Plus also dismissed Carter's affidavit as "self-serving." The panel rejected that argument by citing Hill v. Tangherlini, which overruled decisions allowing judges to devalue self-serving affidavits made on personal knowledge. "A brief that repeats canards expressly rejected by decisions such as Morgan and Hill is hard to take seriously," Easterbrook wrote.
The court affirmed Judge Bucklo's order, leaving Carter's wage claims to proceed in district court litigation.