                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Employee Resource Group, LLC and Dawn Wiley,                                    FILED
Defendants Below, Petitioners                                              November 18, 2016
                                                                               RORY L. PERRY II, CLERK
vs) No. 16-0150 (Boone County 15-C-17)                                       SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Brandi Adkins,

Plaintiff Below, Respondent



                              MEMORANDUM DECISION
        Petitioners Employee Resource Group, LLC (“ERG”) and Dawn Wiley, by counsel
Bradley K. Shafer, appeal the January 19, 2016, order of the Circuit Court of Boone County
denying petitioners’ motion to enforce an arbitration agreement. Respondent Brandi Adkins, by
counsel Paul Frampton, Jr., and Matthew Hatfield, filed a summary response in support of the
circuit court’s order. Petitioners argue that the circuit court erred in failing to find that an
enforceable arbitration agreement existed between the parties.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, we find that the circuit court did not err with respect to its denial of petitioners’
motion to enforce arbitration agreement. For these reasons, a memorandum decision affirming
the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

        In April of 2013, respondent began working for ERG as a general laborer at the Wendy’s
restaurant in Danville, West Virginia.1 During the course of her employment, respondent
experienced physical problems due to various disabling medical conditions and missed work. On
July 5, 2014, respondent’s employment with ERG was terminated.

       On January 28, 2015, respondent filed, in the Circuit Court of Boone County, a complaint
against petitioners. In her complaint, respondent alleged that her employment was “willfully,
maliciously and unlawfully” terminated in violation of West Virginia Code § 5-11-9, the West
Virginia Human Rights Act. In their answer, petitioners sought to dismiss respondent’s
complaint and filed a motion to enforce arbitration.
       In their motion, petitioners argued that ERG had an alternative dispute resolution
program that applied to all employees and required the mandatory arbitration of workplace
disputes. Petitioners stated that all new hires of ERG (including respondent) were provided with

       1
      Petitioner Dawn Wiley was respondent’s supervisor during the tenure of her
employment with ERG.


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various documents to review and sign upon the inception of their employment. One of those
documents was Dispute Resolution Program Handbook, which included the mandatory
arbitration agreement.2 However, petitioners acknowledged that they could not locate the copy of
the agreement signed by respondent.

        In support of their motion, petitioners presented an affidavit from ERG’s Director of
Human Resources.3 While the affidavit details the usual procedures implemented by ERG when
a new employee is hired (including the employee’s endorsement of an arbitration agreement), the
affidavit contained no specific information as to whether the arbitration agreement was actually
signed by respondent herein. The affidavit further referenced a “Human Resources Information
Center” poster (approximately 3 feet by 4 feet in size) hanging in the Danville Wendy’s
restaurant that outlined the dispute resolution program and noted that the program was the
“mandatory, exclusive process for resolution of problems in this Company.” Petitioners argued
that the arbitration agreement and poster show the existence of a contract between the parties
herein to resolve their legal claims or disputes through binding arbitration. Conversely,
respondent contends that she never signed any agreement to arbitrate any claims against
petitioners and was never informed of the existence of any such agreement.

         Following a hearing, the circuit court, by order entered January 19, 2006, denied
petitioners’ motion to enforce arbitration and found that no enforceable arbitration agreement
existed between the parties. Specifically, the circuit court noted that petitioners failed to
introduce any evidence, specific to respondent, to indicate that she agreed to arbitrate her claims.
It is from the circuit court’s January 19, 2016, order that petitioners now appeal.

        “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. We have further held that “[w]hen an appeal
from an order denying a motion to dismiss is properly before this Court, our review is de novo.”
Evans v. Bayles, 237 W.Va. 269, --, 787 S.E.2d 540, 543 (2016) (citing Syl. Pt. 4, Ewing [v. Bd.
of Educ.], 202 W.Va. 228, 503 S.E.2d 541 [(1998)] (“When a party, as part of an appeal from a
final judgment, assigns as error a circuit court’s denial of a motion to dismiss, the circuit court’s
disposition of the motion to dismiss will be reviewed de novo.”)

       The sole issue raised by petitioners on appeal is whether the circuit court erred in denying
their motion to enforce arbitration. We have held that

               [w]hen a trial court is required to rule upon a motion to compel arbitration

       2
         The mandatory arbitration agreement language read as follows: “I hereby acknowledge
that I received a copy of the Company’s Dispute Resolution Program Booklet effective April 1,
2005 and a copy of Theresa Johnson’s letter of February 9, 2005. I understand and agree that the
Dispute Resolution Program shall apply to me.”
       3
       The affidavit states, in pertinent part, that as a condition of employment at ERG, all
employees are required to sign an arbitration agreement.


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       . . . the authority of the trial court is limited to determining the threshold issue 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. 3, in part, Schumacher Homes of Circleville, Inc., v. Spencer, 237 W. Va. 379, 787
S.E.2d 650 (citing Syl. Pt. 2, State ex rel. TD Ameritrade, Inc., v. Kaufman, 225 W. Va. 250, 692
S.E.2d 293 (2010)).

        In the instant case, while petitioners acknowledge that they are unable to locate the copy
of the arbitration agreement that was allegedly signed by respondent, they argue that
respondent’s signature on such agreement was unnecessary. Petitioners contend that
respondent’s employment was “proof in and of itself that [she] agreed to arbitration,” as the
arbitration agreement was a “mandatory requirement” of her continued employment with ERG.
Conversely, respondent argues that she had no knowledge of the arbitration agreement and that
respondents’ evidence about what occurred in the normal course of events (as noted in the
affidavit of ERG’s Human Resources Director) was insufficient in establishing that “a valid,
enforceable contract of arbitration was entered into by the parties.”

        Based upon our review of the record herein and the limited circumstances of this case, we
find that the petitioners failed to establish that a valid arbitration agreement exists between the
parties. We have previously held that “[t]he proponent of a lost or missing instrument must prove
its existence and contents with clear and convincing evidence.” Syl. Pt. 2, Estate of Bossio v.
Bossio, 237 W. Va. 130, 785 S.E.2d 836 (2016). While we note that petitioners proffered
documentation as to what allegedly occurs in the normal course of their business transactions,
they failed to offer any direct evidence that respondent actually executed or had knowledge of
the arbitration agreement at issue. In the affidavit presented by petitioners, their representative
did not allege that he had personal knowledge that respondent was presented with the arbitration
agreement or even that she had direct knowledge of the same. Rather, petitioners asked the
circuit court to simply assume what petitioners’ representative states was done with new
employees was actually done with respect to respondent. Such was insufficient to meet
petitioners’ burden of proof. Accordingly, we find that the circuit court did err in denying
petitioners’ motion to enforce arbitration agreement.

        For the foregoing reasons, we affirm the circuit court’s January 19, 2016, order denying
petitioners’ motion to compel arbitration.

                                                                                           Affirmed.


ISSUED: November 18, 2016




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CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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