          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                  January 2018 Term

                                                                           FILED

                                                                      February 16, 2018

                                     No. 17-0088                           released at 3:00 p.m.
                                                                       EDYTHE NASH GAISER, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                            OF WEST VIRGINIA





                   HAMPDEN COAL, LLC, AND OLIVER HUNT,

                         Defendants Below, Petitioners


                                           v.


                              MICHAEL R. VARNEY,

                             Plaintiff Below, Respondent



                  Appeal from the Circuit Court of Mingo County

             Honorable Darrell Pratt, Judge (sitting by special assignment)

                             Civil Action No. 16-C-113


                            REVERSED AND REMANDED



                              Submitted: January 9, 2018
                               Filed: February 16, 2018


Ashley C. Pack, Esq.                                  Nathan Brown, Esq.
Jennifer J. Hicks, Esq.                               Ferrell & Brown, PLLC
Dinsmore & Shohl PLLC                                 Williamson, West Virginia
Charleston, West Virginia                             Counsel for Respondent
Counsel for Petitioners



CHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1. “An order denying a motion to compel arbitration is an interlocutory ruling

which is subject to immediate appeal under the collateral order doctrine.” Syl. Pt. 1, Credit

Acceptance Corp. v. Front, 231 W.Va. 518, 745 S.E.2d 556 (2013).



              2. “When an appeal from an order denying a motion to dismiss and to compel

arbitration is properly before this Court, our review is de novo.” Syl. Pt. 1, W.Va. CVS

Pharmacy, LLC v. McDowell Pharmacy, Inc., 238 W.Va. 465, 796 S.E.2d 574 (2017).



              3. “When a trial court is required to rule upon a motion to compel arbitration

pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-307 (2006), the authority of the trial

court is limited to determining the threshold issues of (1) whether a valid arbitration

agreement exists between the parties; and (2) whether the claims averred by the plaintiff fall

within the substantive scope of that arbitration agreement.” Syl. Pt. 2, State ex rel. TD

Ameritrade, Inc. v. Kaufman, 225 W.Va. 250, 692 S.E.2d 293 (2010).



              4. “‘Under the Federal Arbitration Act, 9 U.S.C. § 2, a written provision to

settle by arbitration a controversy arising out of a contract that evidences a transaction

affecting interstate commerce is valid, irrevocable, and enforceable, unless the provision is

found to be invalid, revocable or unenforceable upon a ground that exists at law or in equity


                                              i
for the revocation of any contract.’ Syllabus Point 6, Brown v. Genesis Healthcare Corp.,

228 W.Va. 646, 724 S.E.2d 250 (2011).” Syl. Pt. 1, Brown v. Genesis Healthcare Corp., 229

W.Va. 382, 729 S.E.2d 217 (2012).



              5.   “‘A contract term is unenforceable if it is both procedurally and

substantively unconscionable. However, both need not be present to the same degree.

Courts should apply a “sliding scale” in making this determination: the more substantively

oppressive the contract term, the less evidence of procedural unconscionability is required

to come to the conclusion that the clause is unenforceable, and vice versa.’ Syllabus Point

20, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011).” Syl. Pt.

9, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012).



              6. “‘Substantive unconscionability involves unfairness in the contract itself

and whether a contract term is one-sided and will have an overly harsh effect on the

disadvantaged party. The factors to be weighed in assessing substantive unconscionability

vary with the content of the agreement. Generally, courts should consider the commercial

reasonableness of the contract terms, the purpose and effect of the terms, the allocation of

the risks between the parties, and public policy concerns.’ Syllabus Point 19, Brown v.

Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011).” Syl. Pt. 12, Brown v.

Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012).



                                             ii
              7. “‘Procedural unconscionability is concerned with inequities, improprieties,

or unfairness in the bargaining process and formation of the contract.             Procedural

unconscionability involves a variety of inadequacies that results in the lack of a real and

voluntary meeting of the minds of the parties, considering all the circumstances surrounding

the transaction. These inadequacies include, but are not limited to, the age, literacy, or lack

of sophistication of a party; hidden or unduly complex contract terms; the adhesive nature

of the contract; and the manner and setting in which the contract was formed, including

whether each party had a reasonable opportunity to understand the terms of the contract.’

Syllabus Point 17, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250

(2011).” Syl. Pt. 10, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217

(2012).



              8. “When a written contract is clear and unambiguous its meaning and legal

effect must be determined solely from its contents and it will be given full force and effect

according to its plain terms and provisions.” Syl. Pt. 3, in part, Kanawha Banking & Trust

Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225 (1947).




                                              iii
LOUGHRY, Chief Justice:



               Hampden Coal, LLC and Oliver Hunt (defendants below; collectively “the

petitioners”), appeal the Circuit Court of Mingo County’s order entered on December 29,

2016, through which it denied their motion to dismiss and compel arbitration in this action

brought by the respondent (plaintiff below), Michael R. Varney, alleging a deliberate intent

claim1 and violations of the West Virginia Human Rights Act.2 The petitioners assign error

in the circuit court’s ruling that the parties’ arbitration agreement was unconscionable and

lacked consideration and that Mr. Varney’s claims fell outside the scope of that agreement.

Upon our review of the parties’ briefs, the arguments of counsel, the appendix record

submitted, and the applicable law, we reverse the circuit court’s rulings and remand this

action to the circuit court for entry of an order dismissing this civil action and compelling

arbitration.



                          I. Facts and Procedural Background

               In 2000, Mr. Varney began working for Hampden Coal Company, LLC. The

assets of Hampden Coal Company, LLC were purchased by the petitioner, Hampden Coal,

LLC (“Hampden Coal”) in August of 2014, after which employees were transitioned to



       1
        W.Va. Code § 23-4-2(c) (2017).

       2
        W.Va. Code §§ 5-11-1 to -20 (2013 & Supp. 2017). 


                                             1

Hampden Coal. Mr. Varney’s employment with Hampden Coal, as well as that of all

employees, was conditioned upon him signing a Mutual Arbitration Agreement

(“Agreement”). Through this one and one-half-page Agreement, which the parties signed

on September 3, 2014, Hampden Coal and Mr. Varney jointly consented

              to submit all past, present or future disputes that arise between
              us to final and binding arbitration. This means that a neutral
              arbitrator will decide any legal dispute between us, instead of a
              judge or jury. The Federal Arbitration Act and the American
              Arbitration Association’s (“AAA”) National Rules for the
              Resolution of Employment Disputes, then in effect,[3] govern
              arbitrations under this Agreement. Hampden Coal and I waive
              our right to go to court in exchange for this right to arbitration.

(Footnote added). This Agreement further records the parties’ mutual assent to arbitrate

              all disputes or claims of any kind includ[ing] but [] not limited
              to claims of unlawful discrimination, retaliation or harassment
              based upon race, national origin, ancestry, disability, religion,
              sex, age, workers’ compensation claims or history, veteran’s
              status, or any other unlawful reason, and all other claims relating
              to employment or termination from employment. This shall also


       3
         Rule 6.a. of the current AAA Employment Arbitration Rules and Mediation
Procedures is a clear and unmistakable delegation provision. See Syl. Pt. 4, Schumacher
Homes of Circleville, Inc. v. Spencer, 237 W.Va. 379, 787 S.E.2d 650 (2016) (“A ‘delegation
provision’ is a clause, within an agreement to arbitrate, which clearly and unmistakably
provides that the parties to the agreement give to the arbitrator the power to decide the
validity, revocability or enforceability of the arbitration agreement under general state
contract law.”). We have recognized that the “incorporation of the AAA rules into the
arbitration agreements is sufficient evidence that the parties clearly and unmistakably agreed
to arbitrate arbitrability.” W.Va. CVS Pharmacy, LLC v. McDowell Pharmacy, Inc., 238
W.Va. 465, 479, 796 S.E.2d 574, 588 (2017). In the case at bar, the petitioners have never
relied upon the delegation provision in the AAA rules. In Employee Resource Group, LLC
v. Harless, No. 16-0493, 2017 WL 1371287 (W.Va. Apr. 13, 2017) (memorandum decision),
we did not address the delegation provision where the petitioners had never relied upon it.
Id. at *2 n.4. Likewise, we do not consider the delegation provision in the instant matter.

                                              2

              include claims for wages or other compensation due, claims for
              breach of any contract, tort claims or claims based on public
              policy. This Agreement does not, however, limit any right to
              file a charge with or assist any government agency, including
              the EEOC and the NLRB, or the right to file a claim for
              workers’ compensation benefits or unemployment insurance
              compensation; nor does it apply to employment benefit plans
              regulated by the Employee Retirement Income Security Act.

The parties also agreed that a claim must be filed for arbitration “within the same time period

that they would have to file a lawsuit in court or one-year from the date of the event forming

the basis of the lawsuit, whichever expires first. The parties waive any and all limitation

periods to the contrary.” Consideration for the Agreement is described therein as the parties’

mutual promises to arbitrate any disputes between them and Hampden Coal’s “employment

and continued employment” of Mr. Varney, “as well as, the benefits and compensation

provided by Hampden Coal[.]”4 Above the space indicated for signatures, the Agreement

provides in bold lettering: “This Mutual Arbitration Agreement contains legally binding

promises. Please seek legal advice, of your choosing, instead of signing this Agreement

if you do not understand or have questions about any part of this Agreement.”




       4
         The “Consideration” paragraph contains a scrivener’s error, referencing Mr.
Varney’s employment and continued employment with “Blue Diamond.” This error was
corrected through an Addendum signed by the parties and dated July 28, 2015. The
Addendum notes the “mistaken reference to an affiliate company, Blue Diamond” and re-
states the “Consideration” paragraph, substituting “Hampden Coal” for “Blue Diamond.”
This scrivener’s error is discussed in section B., infra.

                                              3

              On June 21, 2016, Mr. Varney instituted this civil action against Hampden Coal

and Oliver Hunt, his supervisor, in the Circuit Court of Mingo County, alleging a deliberate

intent claim under West Virginia Code § 23-4-2 related to his workplace injury in January

2016, for which he had been awarded workers’ compensation benefits, as well as two

violations of the West Virginia Human Rights Act arising out of Hampden Coal’s and Mr.

Hunt’s alleged decision to demote Mr. Varney following an illness that required

hospitalization in December 2015.5 In response to the complaint, the petitioners filed a

motion to dismiss or, in the alternative, compel arbitration.



              Following briefing by the parties and a hearing before the circuit court during

which the parties presented oral argument only, the circuit court denied the motion. In its

order entered on December 29, 2016, the circuit court observed that “[n]either party

submitted any affidavits or testimony for the record[,]” after which it found that the parties’

Agreement is an employment contract; that arbitration agreements are viewed differently in

an employment context in comparison to a commercial context; that the Agreement is a

contract of adhesion; that the language in the Agreement instructing Mr. Varney to seek legal

advice if he did not understand or had questions about the Agreement is disingenuous; that


       5
        There are references in the appendix record and the parties’ briefs to Mr. Varney’s
alleged termination, as well as his alleged demotion upon his return to work from the illness
he suffered in December 2015. Because he suffered a workplace injury in January 2016,
demotion appears more likely. Seeking clarification, Mr. Varney’s counsel was asked during
oral argument whether Mr. Varney’s employment was terminated. Counsel responded that
he did not believe so.

                                              4

the Agreement is invalid because it lacks consideration; that the Agreement is both

substantively and procedurally unconscionable; that the deliberate intent claim falls outside

the scope of the Agreement, which provides that it “does not limit any right to . . . file a claim

for workers’ compensation benefits[;]” and that the Human Rights Act claims fall outside the

scope of the Agreement which provides that it “does not . . . limit any right to file a charge

with or assist any government agency, including the EEOC and the NLRB[.]” This appeal

followed.



                                   II. Standard of Review

               The petitioners challenge the circuit court’s denial of their motion to dismiss

and compel arbitration. In Credit Acceptance Corporation v. Front, 231 W.Va. 518, 745

S.E.2d 556 (2013), we held that “[a]n order denying a motion to compel arbitration is an

interlocutory ruling which is subject to immediate appeal under the collateral order doctrine.”

Id. at 519, 745 S.E.2d at 557, syl. pt. 1. Further, “[w]hen an appeal from an order denying

a motion to dismiss and to compel arbitration is properly before this Court, our review is de

novo.” Syl. Pt. 1, W.Va. CVS Pharmacy, LLC v. McDowell Pharmacy, Inc., 238 W.Va. 465,

796 S.E.2d 574 (2017). Our review is also plenary to the extent our analysis requires us to

examine the circuit court’s interpretation of the parties’ Agreement. Zimmerer v. Romano,

223 W.Va. 769, 777, 679 S.E.2d 601, 609 (2009) (“[W]e apply a de novo standard of review

to [a] circuit court’s interpretation of [a] contract.”). This matter being properly before this



                                                5

Court, we proceed to determine whether the circuit court erred in refusing to compel

arbitration.



                                      III. Discussion

               We begin by observing that “[w]hen a trial court is required to rule upon a

motion to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-307

(2006), the authority of the trial court is limited to determining the threshold issues of (1)

whether a valid arbitration agreement exists between the parties; and (2) whether the claims

averred by the plaintiff fall within the substantive scope of that arbitration agreement.” Syl.

Pt. 2, State ex rel. TD Ameritrade, Inc. v. Kaufman, 225 W.Va. 250, 692 S.E.2d 293 (2010).6

Here, the circuit court denied the motion to compel arbitration, finding the parties’

Agreement to be invalid and unenforceable, and further finding that Mr. Varney’s claims fall

outside the scope of the Agreement. The petitioners assign various errors in their challenge

to these rulings, each of which we address below.




       6
      The parties do not dispute that the Agreement falls under the Federal Arbitration Act
(“FAA”).

                                              6

                    A. Whether Arbitration Agreements are viewed
                        differently in an Employment Context

              The petitioners assert that the circuit court cited no legal authority for its

erroneous ruling that arbitration agreements are viewed differently in an employment context

compared to a commercial context. They emphasize that this Court has routinely enforced

arbitration agreements in the employment context under the same standards it applies to any

arbitration agreement. Conversely, Mr. Varney argues that the circuit court’s ruling was

correct. He relies upon Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217

(2012) (“Brown II”), in which this Court stated that courts “are more likely to find

unconscionability in consumer transactions and employment agreements than in contracts

arising in purely commercial settings involving experienced parties.” Id. at 392-93, 729

S.E.2d at 227-28 (quoting Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 681, 724

S.E.2d 250, 285 (2011) (“Brown I”), overruled in part on other grounds by Marmet Health

Care Ctr., Inc. v. Brown, 565 U.S. 530 (2012) (per curiam)).



              The petitioners are correct in their argument that this Court has never held that

more stringent or different standards apply to our consideration of arbitration agreements in

different contexts, nor have we ever adopted separate rules or factors for consideration of

arbitration agreements in the employment context. Rather, we have generally held that

“[p]rocedural unconscionability involves a variety of inadequacies . . . includ[ing], . . . the

age, literacy, or lack of sophistication of a party; hidden or unduly complex contract terms;


                                              7

the adhesive nature of the contract; and the manner and setting in which the contract was

formed[.]” Brown II, 229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 10, in part (footnote

added).7 We then explained that a consideration of these factors will more likely lead courts

to find unconscionability in consumer transactions and employment agreements in

comparison to commercial contracts between experienced parties. Id. at 392-93, 729 S.E.2d

at 227-28. In other words, we simply recognized that these factors could lead to differing

results depending upon the factual setting giving rise to the contract or agreement.

Accordingly, this Court makes clear that we apply the same legal standards to our review of

all arbitration agreements.



                              B. Consideration and Mutuality

              The petitioners assign error in the circuit court’s ruling that the Agreement is

unsupported by sufficient consideration “because it was not bargained for and lacks

mutuality” in that Hampden Coal “would simply terminate” Mr. Varney’s employment if it

had a claim against him.8 They assert that the plain language of the Agreement reflecting the


       7
        Procedural unconscionability is addressed in section C. ii., infra.
       8
         Although the circuit court made this observation in the context of ruling there was
insufficient consideration for the Agreement, Mr. Varney addresses it, albeit briefly, as part
of his procedural unconscionability argument. See infra section C. ii. In a single sentence
in his brief and without citation to any legal authority, he asserts that the terms of the
Agreement are “skewed” in the petitioners’ favor because the petitioners can terminate him
as an at-will employee should they have any issue with his work performance. Mr. Varney’s
argument is unavailing. See, e.g., Garza v. Thomas Jude Henry, P.C., SA-14-CA-877-OLG,
                                                                               (continued...)

                                              8

parties’ mutual obligation to arbitrate is, alone, sufficient consideration to support the

formation of a contract under well-settled law in West Virginia. Arguing further, they state

that the circuit court’s reasoning is neither supported by any language in the Agreement nor

by any other evidence.9 Regarding the scrivener’s error in the “Consideration” paragraph of

the Agreement referencing “Blue Diamond,” the petitioners argue this error does not

diminish the consideration for the Agreement because the parties always intended the

Agreement to be between Hampden Coal and Mr. Varney; Mr. Varney was fully aware that

he was employed by Hampden Coal and not Blue Diamond; and the error was corrected

through the Addendum that the parties signed. Lastly, the petitioners assert that even without

the Addendum, the Agreement remains supported by the valuable consideration of the

parties’ mutual promises to arbitrate.



              Correctly observing that consideration is a key component of any contract, Mr.

Varney counters that the stated consideration in the Agreement is his “employment and

continued employment” with “Blue Diamond” and, because he has never been employed by


       8
        (...continued)
2014 WL 11332307, *5 (W.D. Tex. Dec. 4, 2014) (“In sum, that the at-will employment
can be terminated at-will . . . does not mean the . . . arbitration provision is unenforceable
(because it is illusory; not supported by adequate, mutual consideration; does not reflect a
mutuality of promises; or otherwise, as argued by plaintiffs).”). Moreover, “only a modicum
of bilaterality is required to avoid a determination of unconscionability.” Nationstar
Mortg.,LLC v. West, 237 W.Va. 84, 92, 785 S.E.2d 634, 642 (2016) (citations omitted).
       9
       As indicated above, the only evidence before the circuit court was the Agreement and
the Addendum. The parties did not offer any affidavits or testimony for the record.

                                              9

Blue Diamond, the Agreement is invalid for lack of consideration. Although he apparently

agreed below that the reference to Blue Diamond was merely a typographical error that was

corrected through the Addendum,10 he now argues that there cannot be a subsequent

modification of a contract without additional consideration.11 He contends that he was

required to sign the Addendum to remain employed, but that continued employment was

already promised to him when he signed the Agreement, and that promising to perform what

a party is already bound to do is insufficient consideration.



              We agree with the petitioners that a mutual agreement to arbitrate is sufficient

consideration to support an arbitration agreement. In Toney v. EQT Corp., No. 13-1011,

2014 WL 2681091 (W.Va. June 13, 2014) (memorandum decision), we addressed whether

an arbitration agreement was supported by adequate consideration. We concluded that “the

mutual commitments to arbitrate alone constitute sufficient consideration to support the

contract.” Id. at *3; see also Citizens Telecomms. Co. of W.Va. v. Sheridan, 239 W.Va. 67,



       10
        The circuit court stated in its order on appeal that the Agreement contains a
“typographical error” and that “[t]he parties do not dispute that the error was corrected by
way of an addendum[.]”
       11
         Mr. Varney relies upon Bischoff v. Franseca, 133 W.Va. 474, 56 S.E.2d 865 (1949),
which involved an alleged oral modification of a written agreement. The modification, if
proven, would charge the plaintiffs with a portion of the defendants’ general overhead
without any additional compensation for their assumption of additional burdens not
contemplated in the parties’ written agreement. Here, the Addendum did not materially alter
the parties’ Agreement; rather, it simply corrected a scriverner’s error. See supra note 11.


                                             10

__, 799 S.E.2d 144, 152 (2017) (relying upon Toney and ruling that “the mutual commitment

to arbitrate is sufficient consideration for the modification” of contract that added arbitration

provision). Our ruling in Toney was also recognized in Evans v. TRG Customer Solutions,

Inc., No. 2:14-00663, 2014 WL 12659420 (S.D. W.Va. July 29, 2014), wherein the district

court stated that “[u]nder West Virginia law, a mutual agreement between an employer and

employee to arbitrate their claims establishes adequate consideration.” Id. at *4. Other

jurisdictions are in agreement. See, e.g., Lizalde v. Vista Quality Mkts., 746 F.3d 222, 225

(5th Cir. 2014) (“As it relates specifically to arbitration agreements, the ‘[m]utual agreement

to arbitrate claims provides sufficient consideration to support an arbitration agreement.’ In

re 24R, Inc., 324 S.W.3d 564, 566 (Tex. 2010).”); Uszak v. AT & T Mobility Servs. LLC, 658

Fed. App’x 758, 763 (6th Cir. 2016) (“A mutual agreement by both parties to submit a claim

to arbitration is sufficient consideration under Ohio law.”).



              Although Mr. Varney argues that the sole purpose of the Addendum was to

alter the consideration for the Agreement, it is abundantly clear to this Court that the function

of the Addendum was to correct the scrivener’s error that referenced “Blue Diamond” in the

Consideration paragraph of the Agreement. As indicated above, the circuit court stated in

its order that the reference to Blue Diamond was a typographical error that was corrected

through an addendum.12 The parties were clearly aware at the time the Agreement was



       12
         See supra note 10.

                                               11

signed that Hampden Coal was the employer–not Blue Diamond–and, at the time the

Addendum was signed, Mr. Varney had been working for Hampden Coal for several months.



              Under the authorities discussed above, the parties’ mutual and unequivocal

agreement to arbitrate their disputes serves as valuable consideration for the Agreement.

Consequently, if we were to invalidate the Consideration paragraph of the Agreement

because there was no new consideration given for the Addendum, there would still be

adequate consideration for the Agreement.          Therefore, we find there is sufficient

consideration and mutuality to uphold the validity of the Agreement.



                   C. Whether the Agreement is Both Procedurally
                        and Substantively Unconscionable

              Under the FAA, an arbitration clause may be unenforceable for

unconscionability, provided that all contracts are subject to the same standard. See Syl. Pt.

2, in part, State ex rel. Johnson Controls, Inc. v. Tucker, 229 W.Va. 486, 729 S.E.2d 808

(2012) (“‘Nothing in the Federal Arbitration Act, 9 U.S.C. § 2, overrides normal rules of

contract interpretation. Generally applicable contract defenses–such as laches, estoppel,

waiver, fraud, duress, or unconscionability–may be applied to invalidate an arbitration

agreement.’”). Further,

              “[u]nder the Federal Arbitration Act, 9 U.S.C. § 2, a written
              provision to settle by arbitration a controversy arising out of a
              contract that evidences a transaction affecting interstate
              commerce is valid, irrevocable, and enforceable, unless the

                                             12

              provision is found to be invalid, revocable or unenforceable
              upon a ground that exists at law or in equity for the revocation
              of any contract.” Syllabus Point 6, Brown v. Genesis
              Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011).

Brown II, 229 W.Va. at 385, 729 S.E.2d at 220, syl. pt. 1. The entirety of the circuit court’s

unconscionability ruling consists of a cursory summary of the parties’ arguments, after which

the court stated:

                     This Court agrees with Plaintiff and finds that the
              Agreement is a contract of adhesion and that the language in the
              Agreement instructing Plaintiff to seek legal advice is
              disingenuous. In addition, this Court agrees with Plaintiff that
              the Agreement is both substantively and procedurally
              unconscionable and finds that the Agreement is one-sided and
              written for the benefit of Defendants.

As we have previously held:

                     “A contract term is unenforceable if it is both
              procedurally and substantively unconscionable. However, both
              need not be present to the same degree. Courts should apply a
              ‘sliding scale’ in making this determination: the more
              substantively oppressive the contract term, the less evidence of
              procedural unconscionability is required to come to the
              conclusion that the clause is unenforceable, and vice versa.”
              Syllabus Point 20, Brown v. Genesis Healthcare Corp., 228
              W.Va. 646, 724 S.E.2d 250 (2011).

Brown II, 229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 9. With these precepts guiding our

analysis, we proceed to determine whether the Agreement is both substantively and

procedurally unconscionable and, therefore, unenforceable.

                            i. Substantive Unconscionability

              With regard to substantive unconscionability, we have held, as follows:


                                             13

                    “[s]ubstantive unconscionability involves unfairness in
             the contract itself and whether a contract term is one-sided and
             will have an overly harsh effect on the disadvantaged party. The
             factors to be weighed in assessing substantive unconscionability
             vary with the content of the agreement. Generally, courts
             should consider the commercial reasonableness of the contract
             terms, the purpose and effect of the terms, the allocation of the
             risks between the parties, and public policy concerns.” Syllabus
             Point 19, Brown v. Genesis Healthcare Corp., 228 W.Va. 646,
             724 S.E.2d 250 (2011).

Brown II, 229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 12. The petitioners assert that the

circuit court erred in finding the Agreement to be substantively unconscionable where both

Hampden Coal and Mr. Varney are bound by the same terms and conditions in the

Agreement; both are required to submit disputes to the AAA pursuant to the AAA

employment rules; and both have the same limitations period to submit a claim from the

action giving rise to the dispute. The petitioners emphasize that the one and one-half-page

Agreement is “short, written in plain English, advised Varney that he was waiving his right

to pursue disputes in the courts, and encouraged Varney to seek legal counsel and advice if

he had any questions or did not understand the provisions of the Agreement.” They add that

the Agreement contains neither fine print, legalese, nor any language that a high school

graduate could not understand, and that there are no allegations that the Agreement was

written to misguide or confuse.



             Consistent with his response filed below in opposition to the petitioners’

motion to compel arbitration, Mr. Varney narrowly focuses his substantive unconscionability


                                            14

argument on “one specific substantive provision [that he asserts] absolutely renders the

Agreement substantively unconscionable: that he has to arbitrate his claims and the

Agreement provides that there is a one-year limitations period for actions, rather than the

two-year statutory limitations period that would otherwise apply.” He relies upon a handful

of cases from other jurisdictions for the proposition that a shortened limitations period “may”

be substantively unconscionable. We have reviewed the cases upon which he relies, but find

they lend little support for his position.



              For example, Mr. Varney cites Ingle v. Circuit City Stores, Inc., 328 F.3d 1165

(9th Cir. 2003), wherein the court found that the one-year limitations period in an arbitration

provision would deprive employees of the benefit of the continuing violations doctrine

available under California’s Fair Employment and Housing Act. Mr. Varney does not argue

that he will be deprived of any such benefit. He also relies upon McKee v. AT & T Corp.,

191 P.3d 845 (Wash. 2008). In McKee, the court recognized that “parties can shorten the

applicable statute of limitations by contract unless a shorter time frame is unreasonable or

prohibited by statute or public policy[,]” but found that an arbitration provision containing

a two-year limitations period in a contract for long distance telephone service was against

public policy as to consumer protection act claims and was, therefore, substantively

unconscionable. Id. at 859. While Mr. Varney accurately observes that the public policy

goal of the West Virginia Human Rights Act is the protection of citizens’ rights and



                                              15

liberties,13 he fails to explain how the one-year limitations period in the Agreement takes

away his ability to effectively protect those rights. While a two-year limitations period

applies to human rights claims brought in circuit court,14 the West Virginia Human Rights

Act provides that “[a]ny complaint filed pursuant to this article must be filed within three

hundred sixty-five days after the alleged act of discrimination.” W.Va. Code § 5-11-10

(2013). This statutory one-year period certainly diminishes any argument that the one-year

limitations period in the Agreement is so unreasonable as to render it substantively

unconscionable.15


       13
         See Bishop Coal Co. v. Salyers, 181 W.Va. 71, 80, 380 S.E.2d 238, 247 (1989)
(“The goal of the West Virginia human rights law is to protect the most basic, cherished
rights and liberties of the citizens of West Virginia.”).
       14
       See generally McCourt v. Oneida Coal Co., 188 W.Va. 647, 651, 425 S.E.2d 602,
606 (1992) (“West Virginia Code, 55-2-12, in this Court’s opinion establishes the basic
two-year, circuit court limitation period” for civil action asserting claim under West Virginia
Human Rights Act).
       15
         Mr. Varney cites two additional cases without any discussion: Covenant Health &
Rehabilitation of Picayune, LP v. Estate of Moulds ex rel. Braddock, 14 So.3d 695 (Miss.
2009), and Jones v. Deja Vu, Inc., 419 F. Supp. 2d 1146 (N.D. Cal. 2005). In Covenant
Health, the court referenced earlier decisions invalidating certain provisions of the same
arbitration agreement at issue, including a one-year limitations period that was found to be
unconscionable because Mississippi statutory law dictates that a statutory limitations period
cannot be changed by contract. Id. at 702 n.6; see also Miss. Code Ann. § 15-1-5 (2013)
(“The limitations prescribed in this chapter shall not be changed in any way whatsoever by
contract between parties[.]”). However, there is no such statutory prohibition in West
Virginia. In Jones, the court found that a shortened limitations period in an arbitration
agreement was unconscionable. The court reasoned that the federal Fair Labor Standards
Act, under which the claim was filed, provides a two-tiered statute of limitations, which
made it “‘obvious that Congress intended to draw a significant distinction between ordinary
violations and willful violations [of the FLSA].’” Id. at 1149 (citation omitted). Such
reasoning has no application to the case at bar.

                                              16

              The general rule has long been that parties may contractually agree to a

shortened limitations period, as long as the period is reasonable. The United States Supreme

Court reasoned more than a century ago that “[t]he policy of statutes of limitation is to

encourage promptness in the bringing of actions . . . . But there is nothing in the policy or

object of such statutes which forbids the parties to an agreement to provide a shorter period,

provided the time is not unreasonably short.” Missouri, K. & T.R. Co. v. Harriman Bros.,

227 U.S. 657, 672 (1913). Relying, in part, upon Harriman Bros., the Fourth Circuit

considered an arbitration agreement that provided for a one-year period for commencing

arbitration proceedings even though the federal antitrust act provided for a four-year

limitations period. In In re Cotton Yarn Antitrust Litigation, 505 F.3d 274 (4th Cir. 2007),

the Fourth Circuit observed that “[a]s a general rule, statutory limitations periods may be

shortened by agreement, so long as the limitations period is not unreasonably short.” Id. at

287. In determining whether the one-year limitations period was reasonable, the court stated:

                      Courts have frequently found contractual limitations
              periods of one year (or less) to be reasonable. See, e.g.,
              Thurman v. DaimlerChrysler, Inc., 397 F.3d 352, 357-59 (6th
              Cir. 2004) (finding a 6-month limitation period to be reasonable
              in a case raising claims under 42 U.S.C.A. § 1981); Northlake
              Reg’l Med. Ctr. v. Waffle House Sys. Employee Benefit Plan,
              160 F.3d 1301, 1303-04 (11th Cir. 1998) (finding reasonable a
              90-day limitations term contained in an ERISA-governed
              employee benefits plan); see also Morrison v. Circuit City
              Stores, Inc., 317 F.3d 646, 673 n.16 (6th Cir. 2003) (en banc)
              (enforcing one-year limitations provision contained in
              arbitration agreement).




                                             17

In re Cotton Yarn, 505 F.3d at 287. Based upon these authorities and after noting the

absence of any language in the federal act that would prevent the parties from agreeing to a

shortened limitations period, the Fourth Circuit concluded that the one-year period was

reasonable. Id.; see also, e.g., Dunn v. Gordon Food Servs., Inc., 780 F. Supp. 2d 570 (W.D.

Ky. 2011) (applying Kentucky law; finding employer may make agreement with prospective

employee limiting time-period for suing employer if time period is reasonable; and ruling

that one-year limitations period set forth in application for employment was reasonable).



              In the instant matter, Mr. Varney and Hampden Coal mutually agreed to a one-

year limitations period in their Agreement. Critically, Mr. Varney has failed to cite any

statutory provision that would prevent the parties from agreeing to a shortened limitations

period, nor has he established how the limitations period in the Agreement is unreasonable.

In fact, Mr. Varney met the limitations period in the Agreement without any alleged

difficulty, which further supports the reasonableness of the one-year limitations period.



              While Mr. Varney’s brief contains an argument heading that the Agreement

is “unfair, one-sided, overly harsh, and all to [his] disadvantage,”16 he supports this


       16
         Had Mr. Varney offered argument in support of this heading, we would still find that
the Agreement’s terms are bilateral and not overly harsh. For example, the Agreement
provides that “[t]he Arbitrator shall apply the same laws and be able to make the same
actions to protect our rights as are available in court;” both parties are bound by the AAA
rules; and, other than the initial cost for filing an arbitration, the Agreement provides that
                                                                                 (continued...)

                                              18

contention with little more than his observation that the limitations period in the Agreement

is shorter than that provided by statute. The Fourth Circuit addressed a similar situation in

In re Cotton Yarn:

                      The plaintiffs’ arguments amount to little more than an
              observation that the limitations period under the arbitration
              agreements is shorter than that provided by federal law and the
              unremarkable recognition that limitations provisions affect the
              amount of damages that may be recovered. These same
              arguments, of course, could be made every time a contract
              establishes a shorter limitations period than that of an otherwise
              applicable statute. Given the established rule that statutory
              limitations periods can be contractually shortened, so long as the
              contractual period is not unreasonably short, the plaintiffs’
              remarking-on-the-obvious cannot suffice to carry their burden
              of establishing that the contractual limitations period is
              unreasonable.

505 F.3d at 288. Being equally unpersuaded by Mr. Varney’s similar arguments, we

conclude that the Agreement is not substantively unconscionable.17




       16
      (...continued)
Hampden Coal “will pay all the other costs of the Arbitration.”
       17
         Even if we were to find that Mr. Varney had demonstrated that the one-year
limitations period was unreasonable, which we do not, the Agreement contains a severability
clause. This clause provides that “[i]f any specific provision of this Agreement is invalid or
enforceable, the remainder of this Agreement shall remain binding and enforceable.”
Consequently, the limitation provision could simply be severed from the Agreement, leaving
the remainder of the Agreement enforceable. See Syl. Pt. 8, in part, Brown II, 229 W.Va. at
386, 729 S.E.2d at 221 (“If a court, as a matter of law, finds . . . any clause of a contract to
be unconscionable, the court may . . . enforce the remainder of the contract without the
unconscionable clause[.]”).


                                              19

                             ii. Procedural Unconscionability

              Mr. Varney must establish both substantive and procedural unconscionability

before the Agreement can be deemed unenforceable. See Brown II, 229 W.Va. at 386, 729

S.E.2d at 221, syl. pt. 9, in part (“A contract term is unenforceable if it is both procedurally

and substantively unconscionable.”) (citation omitted). Inasmuch as we have determined that

the Agreement is not substantively unconscionable, we need not address the issue of

procedural unconscionability. Nonetheless, because we can readily dispense with the issue

of procedural conscionability, we do so below.



              We have held regarding procedural unconscionability, as follows:

                      “Procedural unconscionability is concerned with
              inequities, improprieties, or unfairness in the bargaining process
              and formation of the contract. Procedural unconscionability
              involves a variety of inadequacies that results in the lack of a
              real and voluntary meeting of the minds of the parties,
              considering all the circumstances surrounding the transaction.
              These inadequacies include, but are not limited to, the age,
              literacy, or lack of sophistication of a party; hidden or unduly
              complex contract terms; the adhesive nature of the contract; and
              the manner and setting in which the contract was formed,
              including whether each party had a reasonable opportunity to
              understand the terms of the contract.” Syllabus Point 17, Brown
              v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250
              (2011).

Brown II, 229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 10. In the instant matter, the

petitioners assert that there is nothing inequitable or unfair about the process by which the

Agreement was signed. While procedural unconscionability may exist where there is a


                                              20

“‘gross inadequacy in bargaining power’ combine[d] with terms unreasonably unfavorable

to the stronger party[,]”18 the petitioners argue that even if the Agreement were a contract of

adhesion, as Mr. Varney alleges, “[b]ecause contracts of adhesion are by definition typically

prepared by a party with more power, [this Court does] not view that factor as persuasive in

itself.” Nationstar Mortg., LLC v. West, 237 W.Va. 84, 90, 785 S.E.2d 634, 640 (2016).



              Conversely, Mr. Varney alleges that he is a coal miner with only a high school

education who was presented with a contract of adhesion19 to sign if he wished to remain

employed in an industry that was experiencing “great volatility.” He further alleges that after

Hampden Coal purchased his previous employer, the petitioners gathered hundreds of

employees into various rooms where they were presented with documents, including the

Agreement, that they were instructed to sign if they wished to remain employed; that he had

no opportunity or ability to review or negotiate the terms of the Agreement; and that although



       18
        State ex rel. AT&T Mobility, LLC v. Wilson, 226 W.Va. 572, 578, 703 S.E.2d 543,
549 (2010) (quoting State ex rel. Saylor v. Wilkes, 216 W.Va. 766, 774, 613 S.E.2d 914, 922
(2005); see also State ex rel. Clites v. Clawges, 224 W.Va. 299, 306, 685 S.E.2d 693, 700
(2009) (quoting Saylor, 216 W.Va. at 773, 613 S.E.2d at 921 and observing that contract of
adhesion is offered by party in stronger bargaining position on “‘take-it-or-leave-it basis’”
and is not subject to negotiation, leaving weaker party with “‘no realistic choice as to its
terms.’”).
       19
         As we have previously explained, “‘[t]here is nothing inherently wrong with a
contract of adhesion. Most of the transactions of daily life involve such contracts that are
drafted by one party and presented on a take it or leave it basis. They simplify standard
transactions[.]’” Nationstar Mortg., 237 W.Va. at 89 n.12, 785 S.E.2d at 639 n.12 (quoting
Brown I, 228 W.Va. at 682, 724 S.E.2d at 286).

                                              21

the Agreement advised him to seek legal advice if he did not understand or had questions

about the Agreement, this was not true because he was told that all documents had to be

signed and returned immediately.       He argues that under this Court’s precedent, the

Agreement should be viewed differently than if it were between two commercial entities,20

and that the circumstances under which he signed the Agreement demonstrate procedural

unconscionability.



              Upon our review of the parties’ appendix record, we find no evidence to

support any of Mr. Varney’s allegations concerning his personal circumstances or the manner

in which the Agreement was presented for his signature. Further, there is no evidence that

he tried but was denied the opportunity to either seek the advice of counsel or negotiate any

terms of the Agreement. It is axiomatic that his counsel’s arguments are not evidence. There

is simply “no evidence in the record to show that the manner or setting in which [Mr.

Varney] received the [Agreement] or signed the [Agreement] prevented [him] from having

a reasonable opportunity to understand the terms of the [A]greement.” Emp. Res. Group,

LLC v. Harless, No. 16-0493, 2017 WL 1371287, *4 ( W.Va. Apr. 13, 2017). We dispensed

with similar arguments raised by the plaintiff in New v. GameStop, Inc., 232 W.Va. 564, 753

S.E.2d 62 (2013), who alleged that she was an unemployed, high school graduate without

any bargaining power when she sought employment with an international corporation:



       20
        See supra section A.

                                             22

                      Notwithstanding her assertions to the contrary, the
              petitioner has failed to offer any evidence that she was incapable
              due to age, literacy or lack of sophistication to understand the
              clear terms of the arbitration agreement or the Acknowledgment
              she signed upon her employment. See Brown II, 229 W.Va. at
              386, 729 S.E.2d at 221, syl. pt. 10. She has also failed to offer
              any evidence that the arbitration agreement’s terms were hidden
              from her or were couched in unduly complex terms. The
              petitioner’s bald assertions that the arbitration agreement is
              procedurally unconscionable because the agreement was not
              subject to negotiation and because she was unemployed and had
              no other “meaningful alternatives available to her” other than to
              sign the Acknowledgment are simply not sufficient. See
              Montgomery v. Applied Bank, 848 F. Supp. 2d 609, 616 (S.D.
              W.Va. 2012) (concluding that where plaintiff failed to offer
              evidence “that she had no other alternative but to enter into a
              credit card agreement with . . . defendant[,] . . . [she] wholly
              fail[ed] to put forth any evidence that the Agreement was
              procedurally unconscionable other than her assertion that [it]
              was a contract of adhesion, which . . . does not in itself make a
              contract procedurally unconscionable.”); [State ex rel.] Clites [v.
              Clawges,] 224 W.Va. at 306, 685 S.E.2d at 700 (finding that
              although arbitration agreement entered into upon plaintiff’s
              employment was contract of adhesion because the “entire
              Agreement is boiler-plate language that was not subject to
              negotiation and there is no contention . . . that the Petitioner had
              any role or part in negotiating [its] terms[,]” agreement was not
              unconscionable). There is simply no evidence in the record to
              show that the manner or setting in which the petitioner signed
              the Acknowledgment prevented her from having a reasonable
              opportunity to understand the terms of the agreement.

New, 232 W.Va. at 578, 753 S.E.2d at 76 (footnote omitted). Similarly, in the case at bar,

the record is void of any evidence concerning Mr. Varney’s personal status or the manner in

which the Agreement was presented for his signature. Consequently, we find no support for

the circuit court’s procedural unconscionability ruling.



                                              23

            D. Whether the Claims fall Outside the Scope of the Agreement

              Having determined that the Agreement is a valid, enforceable agreement to

arbitrate that is neither substantively nor procedurally unconscionable, we now address

whether the circuit court erred in ruling that Mr. Varney’s claims fall outside the scope of the

Agreement.

                                 i. Deliberate Intent Claim

              The Agreement provides that by “signing this Agreement, Hampden Coal and

I agree to submit all past, present or future disputes that arise between us to a final and

binding arbitration.” Through the broad language in the Agreement, the parties agreed to

arbitrate

              all disputes or claims of any kind includ[ing] but [] not limited
              to claims of unlawful discrimination, retaliation or harassment
              based upon race, national origin, ancestry, disability, religion,
              sex, age, workers’ compensation claims or history, veteran’s
              status, or any other unlawful reason, and all other claims relating
              to employment or termination from employment.

However, the Agreement does not “limit any right to file a charge with . . . any government

agency, including the EEOC and the NLRB, or the right to file a claim for workers’

compensation benefits or unemployment insurance compensation[.]”



              The circuit court concluded that Mr. Varney’s deliberate intent claim was

excluded from the Agreement, concurring in Mr. Varney’s argument that the Workers’

Compensation Act “provides numerous benefits for employees who are injured during the


                                              24

course and scope of their work” and that “one of those benefits is that the system allows an

employee to file an action known as deliberate intent[.]” Assigning error in this ruling, the

petitioners argue that “workers’ compensation benefits are monetary benefits paid through

the Workers’ Compensation Fund to employees who have received personal injuries in the

course of and resulting from their covered employment. W.Va. Code § 23-4-1(a).” They

observe that the workers’ compensation statutes provide differing methods for seeking

compensation benefits and for pursuing a deliberate intent claim, making clear that a

deliberate intent claim is not a claim for workers’ compensation benefits. The petitioners

maintain that deliberate intent is a statutory tort that an injured employee may pursue in

addition to a claim for workers’ compensation benefits if certain statutory elements for such

claim can be met. See W.Va. Code § 23-4-2(c).



              Conversely, Mr. Varney argues that the right to file for workers’ compensation

benefits is specifically excluded from the Agreement, but the Agreement does not define the

workers’ compensation benefits it intends to exclude. Through application of a liberal

construction to the remedial workers’ compensation statute, he argues that the placement of

the deliberate intent statute in the “Death and Disability Benefits” section of the Workers’

Compensation Act evidences a legislative intent that a deliberate intent cause of action be

defined as a “benefit” of the Workers’ Compensation Act.




                                             25

              In addressing this issue, we are mindful that “[i]n determining whether the

language of an agreement to arbitrate covers a particular controversy, the federal policy

favoring arbitration of disputes requires that a court construe liberally the arbitration clauses

to find that they cover disputes reasonably contemplated by the language and to resolve

doubts in favor of arbitration.” State ex rel. City Holding Co. v. Kaufman, 216 W.Va. 594,

598, 609 S.E.2d 855, 859 (2004). This Court has previously distinguished between a claim

for workers’ compensation benefits and a suit seeking damages through a deliberate intent

cause of action. For example, in Erie Insurance Property and Casualty Co. v. Stage Show

Pizza, JTS, Inc., 210 W.Va. 63, 553 S.E.2d 257 (2001), we held that “[a] finding that an

employer is liable pursuant to the deliberate intent provisions of W.Va. Code, 23-4-2 [1992]

does not impose upon the employer a statutory obligation to pay fixed benefits, without

regard to the fault of any party, for work-related injuries[.]” Stage Show Pizza, 210 W.Va.

at 65, 553 S.E.2d at 259, syl. pt. 6, in part. Moreover, an employer is entitled to an offset of

any workers’ compensation benefits that have been paid to the employee against any

damages awarded in a deliberate intent action. See Syl. Pt. 1, Mooney v. Eastern Associated

Coal Corp., 174 W.Va. 350, 326 S.E.2d 427 (1984) (“In a civil action brought under the

deliberate intent provisions of W.Va. Code, 23-4-2 [1969], evidence of the value of

compensation benefits must be submitted to the jury with instructions that any verdict for the

plaintiff shall be for damages in excess of such benefits.”). Further, West Virginia Code §23-

4-2(c) (2017) expressly provides that “[i]f injury results to any employee from the deliberate

intention of his or her employer to produce the injury or death, the employee . . . may . . .

                                               26

bring a cause of action against the employer, as if this chapter had not been enacted, for any

excess of damages over the amount received or receivable in a claim for benefits under this

chapter.” Lastly, we agree with the petitioners that West Virginia Code § 23-4-2(c) reflects

the Legislature’s intent to create a narrow exception to the workers’ compensation benefits

system and the immunity provided thereunder through the deliberate intent cause of action.



              Based on the above, and as “reasonably contemplated by the language”21 of the

Agreement, we find that the Agreement’s exclusion of a claim for workers’ compensation

benefits does not extend to an action for deliberate intent. Accordingly, we find that Mr.

Varney’s deliberate intent claim falls within the scope of the Agreement.

                              ii. Human Rights Act Claims

              Mr. Varney asserted claims under the West Virginia Human Rights Act, but

never argued below that those claims fell outside the Agreement. Nevertheless, the circuit

court found that they did. In support of its ruling, the circuit court simply quoted the

language in the Agreement providing that “[t]his Agreement does not . . . limit any right to

file a charge with or against any government agency, including the EEOC and the NLRB”

and then stated that Mr. Varney “did not file a charge with the Human Rights Commission,

the Equaly [sic] Employment Opportunity Commission (‘EEOC’), or the National Labor

Relations Board (‘NLRB’).”



       21
        City Holding Co., 216 W.Va. at 598, 609 S.E.2d at 859.

                                             27

              Unsurprisingly, Mr. Varney alters his position on appeal to assert that his

Human Rights Act claims arise under administrative law and are beyond the scope of the

Agreement. The petitioners counter that the circuit court has “erroneously expanded the

reach” of a provision in the Agreement that excludes certain administrative rights that cannot

be contractually relinquished. They argue that Mr. Varney’s Human Rights Act claims fall

within the Agreement’s language that expressly includes “claims of unlawful discrimination,

retaliation or harassment based on race, national origin, ancestry, disability, religion, sex,

age, workers’ compensation claims or history, veteran’s status, or any other unlawful reason,

and all other claims relating to employment or termination from employment.”



              As the United States Supreme Court has recognized, “[i]t is by now clear that

statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the

[Federal Arbitration Act] FAA.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26

(1991). In considering Mr. Varney’s statutory discrimination claims, we are mindful that it

has long been the law in West Virginia that “[w]hen a written contract is clear and

unambiguous its meaning and legal effect must be determined solely from its contents and

it will be given full force and effect according to its plain terms and provisions.” Syl. Pt. 3,

in part, Kanawha Banking & Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225 (1947).



              Here, the Agreement’s express exclusion of certain administrative claims that

cannot be contractually relinquished does not extend to the statutory discrimination claims

                                              28

that Mr. Varney elected to pursue in the circuit court. Moreover, statutory claims can be the

subject of an arbitration agreement. Gilmer, 500 U.S. at 26. As reflected in the clear and

unambiguous language quoted above, we conclude that Mr. Varney’s claims of unlawful

discrimination indisputably fall within the ambit of the Agreement.



               E. Whether the Agreement is an Employment Contract

              The Agreement contains the following provision: “Not an Employment

Agreement: This Agreement is not, and shall not be construed to create a contract of

employment, express or implied, and shall not alter my at-will employment status.” Mr.

Varney argued below that this provision renders the Agreement invalid, whereas the

petitioners argued that this provision merely clarifies that the Agreement does not alter Mr.

Varney’s status as an at-will employee. In its order, the circuit court stated that it disagreed

with the parties’ arguments and found, instead, that the Agreement “is an employment

contract.”



              It is unclear from the circuit court’s order precisely how this particular ruling

has any bearing on the circuit court’s ultimate decision to refuse to compel arbitration in this

matter. As the petitioners point out in their appellate brief, whether the Agreement is an

employment contract is irrelevant to whether Mr. Varney’s clams should be arbitrated. They

maintain that the Agreement is not an employment contract; rather, it is a clear and

unambiguous mutual agreement to arbitrate all disputes.

                                              29

               Although Mr. Varney did not cross-assign error in this ruling, he continues to

argue, as he did before the circuit court, that there is no valid agreement and that, at best, this

particular language in the Agreement creates ambiguity to be construed against Hampden

Coal. Alternatively, he argues that if the Agreement is valid, then the circuit court correctly

found that it is an employment contract.



               We find that this particular language in the Agreement does not impact its

enforceability. In New, the plaintiff did not dispute that she had signed an acknowledgment

of the mutual agreement to arbitrate through which she indicated that “she understood that

‘by continuing my employment with GameStop . . . I am agreeing that all workplace

disputes or claims’” will be resolved through arbitration. 232 W.Va. at 572, 753 S.E.2d at

70. Nevertheless, she argued that the arbitration provisions set forth in the employment

handbook were unenforceable because of the disclaimer in the handbook that provided,

“‘[y]ou do not have, nor does this Handbook constitute, an employment contract, express or

implied.’” Id. This Court found that the unambiguous language in the handbook, the

acknowledgment signed by the petitioner, and the petitioner’s continued employment with

GameStop, all “clearly demonstrate[d] that the parties mutually assented to arbitrate all

covered workplace disputes or claims.” Id. at 573, 753 S.E.2d at 71. In reaching our

decision in New, we relied, in part, upon Brown v. KFC National Management Co., 921 P.2d

146 (Haw. 1996), wherein the court stated:



                                                30

                      A disclaimer appears in the second paragraph of the
              Agreement, but it is exclusively limited to the applicant’s
              acknowledgment that “I am hereby informed and I understand
              that nothing contained in this application . . . shall constitute an
              implied or expressed contract of employment.” In our view, the
              disclaimer could not reasonably be construed to render nugatory
              the other provisions of the Agreement . . . including the
              arbitration agreement located in the Employee Rights
              subsection.

                      Viewed in context, the arbitration agreement
              highlights–rather than camouflages–its general purpose, and the
              limited scope of the disclaimer is clear and unambiguous: the
              arbitration agreement obviously relates to the future possibility
              of employment and, in the event of employment, to
              employment-related controversies. The arbitration agreement
              expressly provided, in terms accessible to any literate English
              speaking applicant, that he or she “agree[d] to submit to binding
              arbitration” all possible future controversies “concerning . . .
              termination of employment[.]” The undisputed fact that the
              employment application did not, in itself, constitute an
              employment contract in no way undermines this simple reality.

Id. at 165; see also Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 835 (8th Cir. 1997)

(finding disclaimer in employee handbook that it was “not intended to constitute a legal

contract with any employee” did not render arbitration agreement in handbook invalid and

being persuaded, inter alia, by arbitration clause’s use of “contractual terms such as ‘I

understand,’ ‘I agree,’ I ‘agree to abide by and accept,’ ‘condition of employment,’ ‘final

decision,’ and ‘ultimate resolution.’”); Isaacs v. OCE Bus. Servs., Inc., 968 F. Supp. 2d 564

(S.D. N.Y. 2013) (citation omitted) (“An arbitration agreement included in an employee

handbook with language ‘providing that the handbook does not constitute a . . . contract of

employment or that the arbitration policy may be amended’ is enforceable when the language


                                              31

of the arbitration agreement is ‘distinct and mandatory’ and when the employee is advised

of the policy and that ‘compliance with it [is] a condition of employment.’”).



              This Court is bound by the basic principle that “‘[a] valid written instrument

which expresses the intent of the parties in plain and unambiguous language is not subject

to judicial construction or interpretation but will be applied and enforced according to such

intent.’ Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626

(1962), Syllabus Point 1.” Syl. Pt. 1, Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617

(1981). Here, the unambiguous language in the Agreement signed by the parties clearly

demonstrates that it is not an employment contract; rather, it comprises their mutual assent

to submit “all past, present or future disputes that arise between us to final and binding

arbitration.” Under the reasoning in New, we find that the single sentence in the Agreement

clarifying Mr. Varney’s at-will employment status neither creates a contract of employment

nor invalidates the parties’ clear and unambiguous mutual agreement to arbitrate.



                                     IV. Conclusion

              For the foregoing reasons, the circuit court’s December 29, 2016, order

denying the petitioners’ motion to dismiss and compel arbitration is reversed. This action

is remanded for entry of an order dismissing the civil action and compelling arbitration.

                                                                  Reversed and Remanded.



                                             32
