              Case: 19-11864     Date Filed: 10/16/2019   Page: 1 of 9


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-11864
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 2:19-cv-00064-RDP


KEVEN ROBINSON,
on behalf of himself and others similarly situated,

                                                                Plaintiff - Appellee,

                                       versus



VIRGINIA COLLEGE, LLC,
EDUCATION CORPORATION OF AMERICA,

                                                           Defendants - Appellants.



                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                 (October 16, 2019)
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Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Virginia College, LLC, and its parent company, Education Corporation of

America, appeal the denial of their motion to compel Keven Robinson to arbitrate

his complaint against the entities and to strike the class allegations from his

complaint. Robinson earned three degrees from Virginia College, and later he

became its employee and signed an arbitration agreement. After the College lost its

accreditation and closed several of its campuses, Robinson sued the College and

Education Corporation for allegedly awarding worthless degrees, deceiving former

and current students, and depriving students of postgraduation services and

employment opportunities. The district court ruled that Robinson’s complaint fell

outside the scope of his employment-related arbitration agreement. We affirm.

                                I. BACKGROUND

      To determine whether Robinson’s complaint was arbitrable, we accept as

true his allegations about his education at and his employment with the College.

See Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1328 n.1 (11th

Cir. 2014) (accepting as true allegations in a complaint dismissed due to an

arbitration agreement). According to Robinson, between 2000 and 2011, he

obtained an associates degree, a bachelor’s degree, and a master’s degree from the

College. The College and Education Corporation promised to provide students


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credentials necessary to obtain a job following graduation. And Robinson amassed

a student debt of more than $100,000 to pay for his education.

      In 2015, the College hired Robinson as an employee. He signed an

arbitration agreement that referred to him as “Employee” and to Education

Corporation, its “affiliates, [and] subsidiaries” as “the Company” and defined

Robinson’s “Employment with the Company [as] at-will.” The agreement required

that the “dispute, controversy or claim[] aris[e] out of or relate[] to this Agreement,

the employment relationship between the parties, or the termination of the

employment relationship . . . .” Those disputes “include[d] any claims that the

Company may have against the Employee or that Employee may have against the

Company. . ., including any claims that could have been brought before any court.”

The agreement also contained a class action waiver that allowed “the Company . . .

[to] lawfully seek enforcement of this Arbitration Agreement” despite the right of

“Employee . . . [to] exercis[e] . . . rights under Section 7 of the National Labor

Relations Act . . . .” The class action provision permitted the parties, “BY

ENTERING THIS AGREEMENT, . . . [TO] BRING CLAIMS AGAINST

THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS

A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS

AND/OR COLLECTIVE PROCEEDING.”




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      The agreement required the arbitration to be administered under “the

American Arbitration Association Employment Arbitration Rules,” a copy of

which Robinson could obtain from his “HR representative.” And the agreement

required Robinson to comply with employment laws that required him to “exhaust

administrative remedies” with labor organizations such as “the Equal Employment

Opportunity Commission (“EEOC”), the National Labor Relations Board

(“NLRB”), [and] the U.S. Department of Labor (“DOL”).”

      The agreement delineated what employment-related claims were included

and excluded from arbitration. Robinson and the company agreed to a non-

exhaustive list of claims to arbitrate that included,

      . . . claims under the Civil Rights Act of 1964, Americans With
      Disabilities Act, Age Discrimination in Employment Act, Family
      Medical Leave Act, Fair Labor Standards, [sic] Act, Employee
      Retirement Income Security Act, Genetic Non-Discrimination Act, . . .
      any . . . anti-discrimination laws, or any other federal, state or local law,
      ordinance, or regulation based on any public policy, contract, tort, or
      common law.

The agreement also required arbitration of “claims for workers compensation

retaliation . . . [and] violation[s] of the Employment Retirement Income Security

Act of 1974, as amended.” Claims excluded from the agreement included,

      . . . (i) claims for workers compensation, state disability insurance and
      unemployment insurance benefits . . .; (ii) claims based upon the
      Company’s current (successor or future), employee pension and/or
      welfare benefit plans if those plans contain some form of a grievance
      or other procedure for resolution of disputes . . .; (iii) to the extent
      permitted by law claims for injunctive relief to enforce rights to trade
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      secrets, or agreements not to compete or solicit clients or employees
      and (iv) claims that may not be subject to predispute arbitration
      agreements as provided by the Frank-Dodd Wall Street Reform Act and
      Consumer Protection Act.

      In December 2018, Education Corporation, which operated private colleges

across the United States, lost its accreditation. The Education Corporation then

closed the College and its other educational institutions.

      Robinson filed a complaint in an Alabama court against Education

Corporation and the College (collectively Education Corporation), which removed

the action to the district court. Robinson complained, on behalf of himself and a

putative class of all similarly situated persons, of negligence, wantonness, breach

of contract, breach of implied warranties, unjust enrichment, and violations of the

Alabama Deceptive Trade Practices Act. Robinson sought monetary damages and

injunctive relief.

      Education Corporation filed a motion to compel Robinson to arbitrate his

complaint and to strike his class allegations, which he opposed. Education

Corporation argued that Robinson had “specifically agreed to arbitrate any claims

he may have against [it] and [had] waived his right to participate in any class

proceeding against [it]” and submitted a copy of his arbitration agreement.

Robinson responded that the arbitration agreement was “expressly limited to

employment disputes,” postdated his education at the College, and “in no way . . .

require[d] . . . [him] to arbitrate . . . [his] claims in exchange for employment.”
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      The district court denied the motion filed by Education Corporation on the

ground that “the dispute [was] not within the scope of the arbitration agreement

and the class action waiver is inapplicable.” The district court ruled that “the

language in the subject arbitration agreement . . . [was limited] to any and all

employment-based or employment-related claims.” The district court also ruled

that, “[b]ecause [Robinson’s] class claims arising from his role as a student (a role

that predates the parties’ arbitration agreement) are beyond the scope of the

employment arbitration agreement, the class action waiver cannot obligate him to

pursue his claims individually.”

                          II. STANDARD OF REVIEW

      We review de novo the denial of a motion to compel arbitration. Doe v.

Princess Cruise Lines, Ltd., 657 F.3d 1204, 1208 (11th Cir. 2011).

                                   III. DISCUSSION

      Education Corporation argues that the denial of its motion to arbitrate and to

strike Robinson’s class allegations “conflicts with . . . hornbook law” and the

policy goals of the Federal Arbitration Act to enforce arbitration agreements. It

argues that the arbitration agreement “is drafted broadly enough to capture

nonemployment-related claims.” It also argues that the class action waiver is

“independently enforceable.”




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       “[A]rbitration is simply a matter of contract.” First Options of Chi., Inc. v.

Kaplan, 514 U.S. 938, 943 (1995). To further the purpose of the Federal

Arbitration Act to “guarantee[] the enforcement of private contractual

arrangements,” arbitration agreements must be interpreted consistent with “the

clear intent of the parties . . . [and] the plain language of the contract . . . .”

E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294 (2002). It follows that “the

language of the contract . . . defines the scope of disputes subject to arbitration.”

Id. at 289. So “parties . . . [are not required] to arbitrate when they have not agreed

to do so.” Id. at 293 (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford

Junior Univ., 489 U.S. 468, 478 (1989)).

       The district court correctly denied the motion to compel Robinson to

arbitrate. Education Corporation cannot force Robinson to arbitrate claims about

his education when their arbitration agreement applies exclusively to employment-

related disputes. For a claim to “be arbitrable . . . [it must be] either directly or

indirectly related to the subject matter of the contract.” Telecom Italia, SpA v.

Wholesale Telecom Corp., 248 F.3d 1109, 1114 (11th Cir. 2001) (quoting Joseph

T. McLaughlin, Arbitrability: Current Trends in the United States, 59 Alb. L. Rev.

905, 932 (1996)). The agreement Robinson signed addresses only his employment,

and it requires the arbitration of only employment-related claims. “If the language

about employment . . . did not limit the scope of the arbitration provision, it would


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have no purpose, and that is an interpretative no-no.” Doe, 657 F.3d at 1218.

Because employment is the sole subject matter of the arbitration agreement, it does

not encompass Robinson’s dispute with the company as his educator.

      Education Corporation argues that the agreement to arbitrate “any claim” is

broad enough to subsume claims related to Robinson’s education, but that

argument is belied by “the plain text of the contract” and “the clear intent of the

parties,” Waffle House, 534 U.S. at 294. The sentence on which the company relies

states plainly that Robinson “agree[s] to arbitrate . . . any claims . . . [he has as an]

Employee . . . against the Company” and does not mention education. The

preceding sentence reinforces that conclusion; it states that Robinson agrees to

arbitrate “any dispute, controversy or claim[] arising out of or related to this

Agreement, the employment relationship . . . , or the termination of the

employment relationship . . . .” For a claim to “aris[e] out of” or be “related to” a

contract “requires the existence of some direct relationship between the dispute and

the performance of duties specified by the contract.” Doe, 657 F.3d at 1218

(discussing Telecom Italia). Robinson’s claims concerning a worthless degree from

the company are not founded in or intertwined with his later employment with the

company. Robinson’s complaint concerning claims unrelated to his employment is

not arbitrable.




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      The district court also correctly refused to strike the class action allegations

in Robinson’s complaint. By its terms, the class action waiver applies only to

claims governed by the arbitration agreement. Because Robinson’s complaint is

not subject to arbitration under the agreement, its class action waiver does not

govern this dispute.

      Education Corporation argues that the severability provision in the

arbitration agreement salvages the class action waiver, but its argument is

irreconcilable with the plain text of the severability provision. That provision

states, “[i]f any provision(s) of this Arbitration Agreement is declared overbroad,

invalid, or unenforceable such provisions shall be severed . . . and the remaining

provisions of the Arbitration Agreement shall remain in full force and effect and

shall be construed in a fashion which gives meaning to all of the other terms of this

Arbitration Agreement.” The arbitration agreement is inapplicable, so by “the plain

language of the contract,” a condition required for severability does not exist. See

Waffle House, 534 U.S. at 294.

                                 IV. CONCLUSION

      We AFFIRM the denial of the motion to compel arbitration of and to strike

the class action allegations in Robinson’s complaint.




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