Arbitrator Lets VW Age Bias Accuser Seek Court Injunction

Posted February 26th, 2019.

As It Appeared On
Law360

By Braden Campbell

Law360 (February 26, 2019, 5:37 PM EST) — A Volkswagen worker whose Tennessee federal age bias suit against the company was sent to arbitration in January can still ask the court to freeze the policy he challenged, an arbitrator said Monday.

Although Jonathan Manlove must arbitrate his claims that Volkswagen violated the Age Discrimination in Employment Act by illegally phasing out older workers’ management positions, he can seek a court order blocking the company from implementing its plan per a clause in the parties’ arbitration agreement carving out their rights to seek “injunctive relief in a court of competent jurisdiction,” arbitrator Allen Blair said.

“Under the plain language of this agreement, either party had the right to pursue injunctive relief in a court of competent jurisdiction,” Blair said. “Manlove has done so and his claims for purely injunctive relief are not arbitrable.”

Manlove sued Volkswagen and affiliates in June, alleging that the automaker violated U.S. age discrimination laws by instituting a plan to get rid of management positions held by older employees as part of two related strategic rebranding and labor campaigns — TRANSFORM 2025+ and Pact for the Future. In addition to claiming Volkswagen discriminated against a class of proposed older workers under the ADEA, Manlove asked the court for an injunction blocking the policies.

Eastern District of Tennessee Judge Travis McDonough last month granted Volkswagen’s motion to compel arbitration on Manlove’s ADEA claims, which the worker conceded he had to arbitrate. Judge McDonough also said “there is no question” the agreement lets Manlove pursue his injunction in court but said it wasn’t his call to let Manlove proceed, citing language in the agreement directing arbitrators to decide disputes over arbitrability.

Under the contract, Manlove agreed to submit employment-related claims in arbitration rather than court, with a few exceptions. It makes one such exception for injunction requests, saying nothing in its text “shall be construed to restrict or prevent either party from pursuing injunctive relief in a court of competent jurisdiction.”

Volkswagen argued that letting Manlove pursue the injunction circumvents the arbitration agreement by letting him argue the merits of his case in court, as the judge would have to decide whether the policies illegally target older workers. But this can also be read as an argument that an arbitrator can force Manlove “to fight out his claim for injunctive relief in arbitration once he has exercised his right to litigate that claim in court,” Blair said.

“VW’s problem is that the words used in the critical sections of this agreement are plain,” Blair said, adding later, “The language is simply crystal clear that nothing in the agreement can be construed to restrict or prevent a party from pursuing injunctive relief in court, period.”

Sanford Heisler Sharp LLP attorney Leigh Anne St. Charles, who represents Manlove, praised Blair’s order Tuesday.

“With the arbitrator agreeing with the court that Mr. Manlove can proceed in court on claims for injunctive relief, it essentially means we can just proceed in court,” St. Charles said. She said Manlove’s legal team will split the case into two phases, pressing the merits of the classwide bias in court and then doing “a determination of monetary damages and individual damages in arbitration if necessary.”

Information for Volkswagen’s press representatives was not immediately available Monday. An attorney for Volkswagen did not immediately respond Tuesday to a request for comment.

The proposed class is represented by Kevin Sharp, Leigh Anne St. Charles and Andrew Melzer of Sanford Heisler Sharp LLP.

Volkswagen is represented by Charles B. Lee, Bradford G. Harvey, Megan B. Welton and Jessica Malloy-Thorpe of Miller & Martin PLLC.

The case is Manlove v. Volkswagen Aktiengesellschaft et al., case number 1:18-cv-00145, in the U.S. District Court for the Eastern District of Tennessee.

–Editing by Jay Jackson Jr.

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