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Laurich v. Red Lobster Restaurants, LLC

United States District Court, D. New Mexico

November 8, 2017

MARY GRACE LAURICH, Plaintiff,
v.
RED LOBSTER RESTAURANTS, LLC, Defendant.

          Sam Bregman Bregman & Loman, P.C. Albuquerque, New Mexico Attorneys for the Plaintiff.

          Charlotte A. Lamont Littler Mendelson, P.C. Albuquerque, New Mexico Attorneys for the Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Motion to Compel Arbitration, filed March 2, 2017 (Doc. 5)(“Motion”). The Court held a hearing on July 12, 2017. The primary issues are: (i) whether the parties' Arbitration Agreement is illusory, which depends on whether Defendant Red Lobster Restaurants, LLC (“Red Lobster”) provided consideration; (ii) whether asking Plaintiff Mary Grace Laurich to sign the 2014 Dispute Resolution Process Acknowledgment, filed March 2, 2017 (Doc. 5-2)(“2014 Agreement”) during a work shift makes the Arbitration Agreement procedurally unconscionable; and whether (iii) Red Lobster breached the Arbitration Agreement in such a way that precludes it from enforcing the Arbitration Agreement. The Court concludes that: (i) the Arbitration Agreement is not illusory, because both parties provided consideration; (ii) the Arbitration Agreement is not unconscionable, because Laurich was not deprived of meaningful choice to enter the arbitration agreement; and (iii) whether Red Lobster breached the Arbitration Agreement in such a way that precludes it from enforcing the Arbitration Agreement is a question for the arbitrator and not for the Court. Accordingly, the Court grants the Motion, and stays the proceeding pending the arbitration's resolution.

         FACTUAL BACKGROUND

         The Court draws its facts from Laurich's Complaint for Violation of Title VII of the Civil Rights Act of 1964 and the New Mexico Human Rights Act, Wrongful Discharge and Negligent Hiring and Supervision, filed February 2, 2017 (Doc. 1)(“Complaint”), from the Plaintiff's Response to Defendant's Motion to Compel Arbitration ¶ 1, at 2, filed March 16, 2017 (Doc. 9) (“Response”), and from the Motion hearing, Draft Hearing Transcript, taken July 12, 2017 (“Tr.”).[1] The Court recites Laurich's version of the facts not out of any predisposition to believe her side of the story, but to establish a cogent, internally consistent version of events for its analysis. Moreover, Red Lobster stated, at the Motion hearing, that the Court may assume Laurich's version of events to be correct when deciding the Motion, because Laurich's account allegedly supports Red Lobster's position. See Tr. at 4:21-5:10 (Court, Lamont).

         Laurich began working as a server at a Red Lobster restaurant in Albuquerque, New Mexico in 2008. See Complaint ¶ 11, at 2; Response ¶ 1, at 2. In 2014, Red Lobster purchased the Red Lobster restaurant chain -- which included the Albuquerque Red Lobster restaurant -- from GMRI, Inc. See Response ¶ 2, at 2. Around that time, Laurich was working a shift when one of her managers instructed Laurich to “review a lengthy employment agreement on a computer terminal.” Response ¶¶ 4-5, at 3. Laurich asked for a hard copy to review, but “was told that none were available.” Response ¶ 4, at 3. The manager told her that, if she did not sign the electronic document, “she would be taken off the work schedule.” Response ¶ 5, at 3. Laurich then “registered her initials on the computer terminal” and returned to work. Response ¶ 6, at 3. The employment documents which Laurich electronically signed included a provision stating that both she and Red Lobster would be subject to Red Lobster's Dispute Resolution Process. See Response at 6; Motion at 3; 2014 Agreement at 1; Dispute Resolution Process, filed March 2, 2017 (Doc. 5-3)(“DRP”).

         Starting in July, 2016, a Red Lobster cook named Willie Prather “began harassing [Laurich] based on her race and sex, ” Complaint ¶ 15, at 2, calling her names like “fat bitch” and “white bitch, ” and making threatening statements, Complaint ¶¶ 16-17, at 2-3. Laurich complained to management about Prather, but they “did nothing to address Mr. Prather's behavior or Plaintiff's work environment.” Complaint ¶ 21, at 3. Laurich asserts that, on or about August 5, 2016, Prather “continued to harass her verbally” and intentionally gave her incorrect orders to serve to customers. Complaint ¶ 23, at 3. Laurich alleges that, after Laurich complained about Prather's actions, Prather “accused her of ‘snitching' to the manager, and told her that ‘snitches get stiches'” and then “shoved [Laurich] into a shelf.” Complaint ¶ 25, at 3. Laurich was, at the time, about seven-and-a-half months pregnant. See Complaint ¶ 12, at 2. After Prather shoved Laurich, a manager intervened and told Laurich to wait outside the restaurant, near the restaurant's entrance, while, Laurich asserts, “[u]pon information and belief, the manager took Mr. Prather into an office.” Complaint ¶ 26, at 3. While standing outside the restaurant, Laurich used her cellular telephone to call her boyfriend. See Complaint ¶ 27, at 3. Laurich alleges that, while she was on her cellular telephone, “Mr. Prather then emerged from the restaurant, incorrectly assumed that Plaintiff was using the cellphone to call the police, and punched Plaintiff in the face, knocking the cell phone out of her hand. Mr. Prather took the Plaintiff's phone and ran away.” Complaint ¶ 27, at 3. Afterwards, Laurich told Red Lobster that she “was not comfortable returning to work unless she could be assured that Mr. Prather would not be there.” Complaint ¶ 28, at 4. Laurich asserts that, “[w]hile waiting and hoping that a reasonable accommodation could be made, [Laurich] learned that she had been terminated by Defendant.” Complaint ¶ 30, at 4.

         PROCEDURAL BACKGROUND

         Laurich filed her Complaint on February 2, 2017. First, Laurich asserts that Red Lobster violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), by subjecting her to “a hostile working environment as a result of discrimination based on her sex and race.” Complaint ¶ 37, at 5. Laurich asserts that Red Lobster either “knew or should have known” of Prather's history of violence, including violence against women, and had received “numerous complaints of [Prather's] threats and harassment from multiple female employees.” Complaint ¶ 44, at 5. Despite this knowledge, Laurich asserts, Red Lobster “did nothing to remedy an obviously dangerous situation, ” and “made no good-faith effort to remedy the hostile working environment or to protect its female employees, or to otherwise comply with the requirements of Title VII.” Complaint ¶ 44-45, at 5. Laurich also contends that Red Lobster's decision to terminate her employment “was discriminatory and based on her sex and race, ” and her “late state of pregnancy, ” as Red Lobster knew she was “about take maternity leave.” Complaint ¶ 46, at 5. Laurich contends, in summary, that Red Lobster “acted intentionally, willfully and with reckless disregard and deliberate indifference to [her] safety and well being.” Complaint ¶ 48, at 6.

         Second, Laurich asserts that Red Lobster's actions violate the New Mexico Human Rights Act, N.M. Stat. Ann. § 28-1-1 et seq. See Complaint ¶¶ 50-63, at 6-7. In support of this count, Laurich proffers the same allegations made in support of her Title VII claim. See Complaint ¶¶ 50-63, at 6-7.

         Third, Laurich alleges that Red Lobster was negligent in hiring and supervising its employees. See Complaint ¶¶ 64-72, at 7-8. She argues that Red Lobster had a duty to exercise reasonable care for its employees' safety, and Red Lobster breached that duty by hiring and continuing to employ Prather “despite his criminal record, history of violence, history of violence toward women, and continued threats and acts of violence toward women during his employment.” Complaint ¶¶ 65-66, at 7. Laurich asserts that, as a result of Red Lobster's negligence, she “was harassed and physically battered by Mr. Prather while she was at work.” Complaint ¶ 67, at 8. Laurich also contends that Red Lobster is vicariously liable for Prather's actions, because, by “refus[ing] to address multiple complaints by multiple female employees, ” Red Lobster “implicitly and tacitly authorized and ratified Mr. Prather's behavior.” Complaint ¶¶ 71-72, at 8.

         Finally, Laurich asserts that she was wrongfully discharged. See Complaint ¶¶ 73-76, at 8. She argues that Red Lobster terminated her employment for reasons “contrary to public policy, ” because Red Lobster terminated her employment “based on her race, sex and pregnancy, ” and “in retaliation for her repeated complaints of harassment and/or pregnancy.” Complaint ¶ 74, at 8.

         1. Motion to Compel Arbitration.

         Red Lobster moves to compel arbitration and requests that the Court “stay this proceeding pending resolution of the arbitration.” Motion at 1. Red Lobster contends that Laurich's “claims are barred from this proceeding in this Court by a binding arbitration agreement” covered by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”). Motion at 2. First, Red Lobster asserts that, when Laurich applied for a job at the Red Lobster restaurant on August 11, 2008 -- then owned by a different company, GMRI, Inc. -- she signed and submitted application form which featured the following provision:

I UNDERSTAND THAT GMRI, INC. D/B/A RED LOBSTER HAS IN PLACE A DISPUTE RESOLUTION PROCEDURE, AND I FURTHER ACKNOWLEDGE AND AGREE THAT IF I AM OFFERED AND ACCEPT EMPLOYMENT, ANY DISPUTE BETWEEN ME AND GMRI, INC., RELATING TO MY EMPLOYMENT AND/OR MY SEPARATION FROM EMPLOYMENT, SHALL BE SUBMITTED WITHIN ONE (1) YEAR OF THE DAY WHICH I LEARNED OF THE EVENT AND SHALL BE RESOLVED PURSUANT TO THE TERMS AND CONDITIONS OF THE DISPUTE RESOLUTION PROCEDURE.

Motion at 2 (quoting Laurich Application Form at 2, filed March 2, 2017 (Doc. 5-1)). Red Lobster then asserts that Laurich, when she was hired, signed a “Dispute Resolution Process Acknowledgment” form, which read:

I agree as a condition of my employment, to submit any eligible disputes I may have to the company's DRP and to abide by the provisions outlined in the DRP. I understand that his includes, for example, claims under state and federal laws relating to harassment or discrimination, as well as other employment-related claims as defined by the DRP. Finally, I understand that the company is equally bound to all of the provisions of the DRP.

Motion at 2 (quoting 2008 Dispute Resolution Process Acknowledgment at 1, filed March 2, 2017 (Doc. 5-2)(“2008 Agreement”)). Red Lobster contends that Laurich “again acknowledged the DRP as a condition of continued employment” when GRMI, Inc. “sold its Red Lobster business in 2014” to Red Lobster. Motion at 3. That acknowledgment reads:

I agree as a condition of my employment, to submit any eligible disputes I may have to the DRP and to abide by the provisions outlined in the DRP. I understand this includes, for example, claims under state and federal laws relating to harassment or discrimination, as well as other employment related claims as defined by the DRO. Finally, the Company is equally bound to all of the provisions of the DRP.

Motion at 3 (quoting 2014 Agreement). Red Lobster asserts that “[t]he Acknowledgments drew [Laurich's] attention to the DRP”; when Laurich “signed the Acknowledgments[, ] . . . [she] acknowledged that she had reviewed and agreed to abide by the DRP.” Motion at 3.

         Red Lobster asserts that the “DRP contains various steps, with arbitration identified as the final step.” Motion at 3. Red Lobster contends that the DRP “expressly states that employees cannot pursue covered claims in court.” Motion at 3. The DRP reads: “The DRP, instead of court actions, is the sole means for resolving covered employment-related disputes. Disputes eligible for DRP must be resolved only through DRP, with the final step being binding arbitration heard by an arbitrator. This means DRP-eligible disputes will not be resolved by a judge or a jury.” Motion at 3 (quoting DRP at 1). Red Lobster contends that the DRP applies to Laurich's claims. See Motion at 3.

         Next, Red Lobster argues that the FAA applies to the DRP, and, therefore, Laurich must arbitrate her claims. See Motion at 4. Red Lobster asserts that the FAA “provides that any ‘written provision in . . . a contract evidencing a transaction involving commerce'” to settle a controversy arising out of the contract or transaction through arbitration is valid unless the contract is revocable on some legal or equitable ground. Motion at 4 (quoting 9 U.S.C. § 2). Red Lobster asserts that the FAA covers Laurich's claims, because the term “involving commerce” is interpreted broadly, covering “any arbitration agreement that affects commerce in any way.” Motion at 4 (citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 270-77 (1995)). Red Lobster also argues that the FAA, and not state law, applies to Laurich's claims, because state law will exclusively apply only if the agreement clearly says state law applies, see Motion at 4 (citing Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63-64 (1995)), and the DRP expressly says that the FAA governs, see Motion at 4 (citing DRP at 6).

         Red Lobster also argues that the FAA applies to the DRP, because the DRP “affects commerce”: with “roughly 700 locations across the United States, ” Red Lobster “necessarily affects and involves interstate commerce.” Motion at 4 (citing Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. at 282). Red Lobster also contends that the FAA “creates a general presumption in favor of arbitration.” Motion at 5 (citing 9 U.S.C. § 2; Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)). Red Lobster asserts that the FAA “restricts a court's inquiry related to compelling arbitration to two threshold questions: (1) whether there is a valid agreement to arbitrate; (2) whether the agreement covers the dispute.” Motion at 5 (citing Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-84 (2002)).

         Next, Red Lobster argues that a valid agreement to arbitrate binds Laurich. See Motion at 5-6. Red Lobster asserts that, under the FAA, a valid arbitration agreement does not require that the parties sign a document. See Motion at 5 (citing AT&T Mobility LLC v. Conception, 131 S.Ct. 1740, 1747 (2011)). Red Lobster contends that

[Laurich] manifested assent to the DRP through both execution of the application and acknowledgments that compliance with the DRP was a condition of her initial employment, as well as through her continued employment with Red Lobster. Plaintiff explicitly certified that she understood that acceptance of the DRP was a condition and term of her employment even before Red Lobster hired her.

Motion at 5 (emphasis in original).

         Red Lobster then argues that state law applies when considering whether parties form a contract, see Motion at 5-6 (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)), and that, in New Mexico, each party to a contract has a duty to read the contract's content, and both sides must provide consideration, see Motion at 6 (citing Ballard v. Chavez, 1994-NMSC-007, ¶ 8, 868 P.2d 646, 648; Heye v. Am. Golf Corp., 2003-NMCA-138, ¶ 9, 80 P.3d 495, 498). Red Lobster contends that the DRP has sufficient consideration, because it “imposes mutual obligations to arbitrate” as a condition of Laurich's employment. Motion at 6.

         Finally, Red Lobster argues that the DRP covers Laurich's claims, because the DRP “applies to any dispute concerning the employment, reemployment or application for employment by an employee.” Motion at 6-7 (citing DRP at 1). Red Lobster concludes by asking the Court “to enter an Order compelling [Laurich] to arbitrate her claims against Red Lobster and staying this action during the pendency of the arbitration.” Motion at 7.

         2. The Response.

         Laurich responds in the Plaintiff's Response to Defendant's Motion to Compel Arbitration at 1, filed March 16, 2017 (Doc. 9)(“Response”). Laurich begins by arguing that the arbitration clause is unconscionable. See Response at 1. Laurich argues that the FAA applies only when there is an arbitration agreement, and that the “‘presumption in favor of arbitration . . . disappears'” when the parties dispute the arbitration agreement's validity or existence. Response at 2 (quoting Thompson v. THI of New Mexico at Casa Arena Blanca, LLC, No. CIV 05-1331, 2006 WL 4061187, at *5 (D.N.M. 2006)(Browning, J.)). Laurich argues that a court should apply state law principles of contract formation, and that, under New Mexico law, an arbitration clause “may be unenforceable if it is either substantively or procedurally unconscionable.” Response at 2 (citing Cordova v. World Fin. Corp., 2009-NMSC-021, ¶ 24, 208 P.3d 901, 908). This analysis, Laurich asserts, involves considering the “particular factual circumstances surrounding the formation of the contract, including the relative bargaining strength, sophistication of the parties, and the extent to which either party felt free to accept or decline the terms demanded by the other.” Response at 2 (quoting Cordova v. World Fin. Corp., 2009-NMSC-021, ¶¶ 23-24, 208 P.3d at 907-08).

         Laurich next asserts that she began working at Red Lobster in 2008. See Response at 2. In 2014, when Red Lobster took ownership from GMRI, Inc., Laurich asserts that she and her coworkers “were told that they were required to sign some new documents.” Response at 2-3. Laurich avers that, during a shift, “when she was expected to continue serving her customers and perform her other usual tasks, [she] was instructed to review a lengthy employment agreement on a computer terminal.” Response at 3. Laurich states that she asked to review a hard copy, but “was told that there were none available.” Response at 3. Laurich asserts that she stated that, “if she did not sign the electronic document, she would be taken off the work schedule.” Response at 3. Laurich states that she then “registered her initials on the computer so she could return to her shift and her customers.” Response at 3. Laurich asserts that, under those circumstances, she was “not given a reasonable opportunity to read the new employment agreement, ” and was “simply told that she would not be allowed to work if she did not sign it.” Response at 3. She contends that she was “at a disadvantage” as she was mid-shift and had customers waiting, and “she relies largely on tips to make her living.” Response at 3.

         Next, Laurich argues that the 2014 Agreement is “[i]llusory and [u]nenforceable.” Response at 3. She argues that her case is similar to Dumas v. American Golf Corp., 150 F.Supp.2d 1182 (D.N.M. 2001)(Vazquez, J.), where the court concluded that “an arbitration agreement that was signed a few months after employment began was unenforceable for lack of consideration.” Response at 4 (citing Dumas v. American Golf Corp., 150 F.Supp.2d at 1193-94). Laurich asserts that her situation is comparable to Dumas v. American Golf Corp. given that Red Lobster seeks to enforce an arbitration agreement “first presented to [Laurich] approximately six years after she had begun her employment.” Response at 4. Laurich then notes that Red Lobster's argument that in the arbitration agreement's consideration was her continued employment, and argues that the Court of Appeals of New Mexico rejected a similar argument in Piano v. Premier Distributing Co., 2005-NMCA-018, 107 P.3d 11. Response at 4 (citing Thompson v. THI of New Mexico at Casa Arena Blanca, LLC, No. CIV 05-1331, 2006 WL 4061187, at *7 (“The Court of Appeals, in Piano v. Premier Distributing Company, rejected the employer's argument that continued at-will employment and the reciprocal promise to arbitrate were sufficient consideration to sustain the agreement.”)).

         Next, Laurich contends that Red Lobster cannot enforce the DRP because it has already violated the DRP. See Response at 4-6. Laurich asserts that the DRP holds that the first step in dispute resolution is to bring one's concerns to a manager, which will prompt an “‘open and honest exchange by the people who are closest to the problem.'” Response at 4 (quoting DRP at 4). Laurich asserts that, although she was “unaware of the existence” of the DRP, she “unwittingly followed the first step” by bringing her concerns to management on multiple occasions. Response at 4-5. Laurich explains:

After getting no feedback or assistance from management, she submitted a verbal complaint to the general manager of the restaurant, who summarily dismissed [Laurich's] concerns, but instructed her to submit a written statement. [Laurich] did submit a written statement on July 28, 2016 and never received any response to that complaint. . . . At no time during [Laurich's] employment did any manager or representative of [Red Lobster] tell her that she should move on to the second step of the DRP, a peer review.

         Response at 5 (citations omitted)(citing Complaint ¶¶ 10-17, at 2-3). Laurich argues that Red Lobster's failure to follow the DRP precludes it from enforcing the DRP because a “basic principle of contract law is that a party cannot enforce a contract after that party has breached the contract.” Response at 5 (citing KidsKare, P.C. v. Mann, 2015-NMCA-064, ¶ 20, 350 P.3d 1228, 1234).

         3. The Reply.

         Red Lobster replied on April 6, 2017. See Reply in Support of Motion to Compel Arbitration, filed April 6, 2017 (Doc. 13)(“Reply”). Red Lobster states that Laurich did not agree to the 2014 Agreement under duress, because she had been working under an arbitration agreement ever since she began working at the restaurant, when GMRI owned the Red Lobster restaurant See Reply at 3. Red Lobster contends that Laurich “should not have been surprised by her new employer's requirement that she agree to its DRP, which is modeled on and almost identical to that of” GMRI, Inc.'s arbitration agreement. Reply at 3.

         Red Lobster then argues that Laurich's account “of the circumstances under which she acknowledged [Red Lobster's] DRP defies logic.” Reply at 3. Red Lobster asserts that it “would never require [Laurich] to acknowledge the DRP or any other policy while she simultaneously waited on customers at her tables, ” because that would be “contrary to [Red Lobster's] good business practices and could adversely impact customers' dining experiences.” Reply at 3. Rather, Red Lobster asserts that, when employees “must review and acknowledge new policies, ” it “requires them to do so either before or after their shift, while on the clock.” Reply at 3. Red Lobster asserts that its manager, Willie Stewart, has “no recollection of telling any employee, including [Laurich], to review policies while working a regular shift.” Reply at 4 (citing Declaration of Willie Stewart ¶ 8, at 1, filed April 6, 2017 (Doc. 13-2)).

         Next, Red Lobster contends that the DRP is not illusory. See Reply at 4. Red Lobster argues that Laurich's reliance on Dumas v. American Golf Corp., Thompson v. THI of New Mexico at Casa Arena Blanca, LLC, and Piano v. Premier Distributing Co. is “misplaced” because Red Lobster asked her to sign an arbitration agreement when it took over the restaurant, in 2014. Reply at 4. Red Lobster argues that, although Laurich “continued to work at the same [r]estaurant, she had a new employer who required her to agree to the DRP as a condition of her new, not her continued, employment.” Reply at 4.

         Finally, Red Lobster contends that it did not violate the DRP. See Reply at 4-5. Red Lobster asserts that Laurich “did not raise concerns about harassment to Red Lobster”; rather, “[s]he had a dispute regarding a loan to a co-worker and complaints about her customers' plates not being properly dressed with condiments, ” which she put into writing. Reply at 5 (citing Declaration of Deborah Hochsprung ¶ 8, at 2 (dated April 6, 2017) (Doc. 13-1)(“Hochsprung Decl.”). Red Lobster asserts that Hochsprung investigated the complaints, but “could not substantiate” them. Reply at 5 (citing Hochsprung Decl. ¶ 9 at 2). Nonetheless, Red Lobster contends, Hochsprung “reminded the kitchen staff, including Willie Prather, of the importance of properly dressing plates.” Reply at 5 (citing Hochsprung Decl. ¶ 10, at 2). Red Lobster does not state whether it informed Laurich of DRP's second and third steps. See Reply at 5.

         Red Lobster contends that, in any case, the question whether it breached the DRP is immaterial to the question at hand -- whether there is a valid arbitration agreement. See Reply at 4.

         4. The Hearing.

         The Court held a hearing on July 12, 2017. See Tr. at 1. Red Lobster began by stating that the “limited issues before the Court [are] whether there is a valid arbitration agreement and . . . whether [Laurich's] claims are covered by the agreement.” Tr. at 2:17-20 (Lamont). Red Lobster stated that Laurich has not argued that the agreement does not cover the claims. See Tr. at 2:21-22 (Lamont). Rather, Red Lobster summarizes Laurich's position as comprising three arguments: (i) that the arbitration agreement is illusory, because there is no consideration; (ii) that the arbitration agreement is unconscionable, because Laurich did not have adequate time to review its terms; and (iii) that Red Lobster cannot enforce the arbitration agreement, because it did not follow the DRP. See Tr. at 2:22-3:7 (Lamont). Red Lobster addressed the first argument -- that the arbitration agreement is illusory -- and asserted that Laurich worked for six years at the Red Lobster restaurant when it was owned by GMRI, Inc., and was subject to a dispute resolution process that is “very, very similar” to Red Lobster's DRP. Tr. at 3:10-23 (Lamont). Red Lobster explained that, when it acquired the Red Lobster restaurant chain from GMRI, Inc., and “as part of its consideration to hire Ms. Laurich as an employee to this new corporation, ” Red Lobster required Laurich to agree to Red Lobster's DRP. Tr. at 3:24-4:7 (Lamont). Red Lobster then asserted that Laurich's account of how her restaurant manager asked her to agree to the DRP -- i.e., “requiring her to review employment documents while waiting tables” -- “defies logic if you've been a diner or server in a restaurant” given that “the last thing the management wants is for you to divert your attention from the guests.” Tr. at 4:8-15 (Lamont). Red Lobster added that, although Laurich says she was denied a paper copy of the agreement, “[s]he doesn't contend that she wasn't allowed to review it on the computer if she wanted to.” Tr. at 4:15-18 (Lamont).

         The Court interjected, asking whether, for the purposes of the Motion, it should “go ahead and assume the plaintiff's version of events.” Tr. at 4:21-23 (Court). Red Lobster replied that, “for the purposes of this case, you can, ” because Laurich's affidavit and pleadings “actually support the argument that she was about to be employed by a new employer, and that the consideration for her to stay on the schedule and to be employed by the new employer was to execute a DRP.” Tr. at 5:4-10 (Lamont).

         The Court then asked Red Lobster whether Laurich's “illusory argument is also the procedural unconscionability argument, ” and Red Lobster replied that “I think it ...


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