Motion to compel arbitration of an employee’s claims under the Elliott-Larsen Civil Rights Act (ELCRA); Bienenstock & Assoc, Inc v Lowry

Holding that the trial court erred in interpreting the unambiguous arbitration agreement and determining whether plaintiff-employee’s ELCRA claims were subject to arbitration, the court reversed its denial of defendants’ summary disposition motion on those claims and remanded with instructions to dismiss. While plaintiff acknowledged that there was a binding arbitration agreement and that his claim as to overtime wages was subject to arbitration, he contended that his ELCRA claims were not subject to arbitration. The trial court agreed with him. On appeal, the court first rejected his assertion that the issue of whether the trial court improperly interpreted the arbitration agreement was not preserved “because defendants did not raise this argument before the trial court until they filed their reply brief.” It noted that he argued in the trial court that “it was proper for the trial court to deny defendants’ motion for summary disposition because the ELCRA claims were exempt and that the issue of arbitrability was for the trial court to decide. In their reply brief, defendants argued that only the arbitrator was permitted to interpret the plain language of the arbitration agreement. Because this argument was in rebuttal to plaintiff’s argument that the trial court was permitted to interpret the agreement,” the court determined “that the issue was properly before the trial court” and thus, was preserved. It was “inconsequential whether the trial court actually considered defendants’ argument.” Turning to the merits, the court concluded that the arbitration agreement’s plain language “unambiguously provides that only the arbitrator has the authority to ‘resolve any dispute relating to the interpretation’ or ‘applicability’ of the agreement.” While the agreement contained an exception, it did not apply here. Thus, plaintiff and defendant-GoJet “‘clearly and unmistakably’ agreed that only the arbitrator” had authority to decide whether plaintiff’s claims were subject to arbitration under the agreement.