Ramirez v. Domino's Pizza Supply Chain et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 24-cv-01731-SKC-STV
JUAN ARIAS RAMIREZ,
Plaintiff,
v.
DOMINO’S PIZZA SUPPLY CHAIN; and
SCOTT KNAPP, in his capacity as Supply Chain Director,
Defendants.
ORDER
Before the Court is the Recommendation of United States Chief Magistrate
Judge Scott T. Varholak (Dkt. 61) to grant Defendants’ Amended Motion to Compel
Arbitration and Dismiss Complaint (Dkt. 23). Plaintiff has filed Objections to the
Recommendation (Dkt. 62), and Defendants filed a Response to Plaintiff’s Objections
(Dkt. 64).1 For the reasons shared below, the Court accepts the Recommendation and
incorporates it into this Order by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ.
P. 72(b).
1 Plaintiff also subsequently filed a “Response In Support of His Objections to the
Report and Recommendation by the Magistrate Judge.” Dkt. 65. But this additional
response, even if liberally construed as a reply to Defendants’ response, is not allowed
under the Federal Rules of Civil Procedure without first obtaining leave of court. See
Fed. R. Civ. P. 72(b)(2). This additional response is stricken.
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A. LEGAL PRINCIPLES
1. 	Review of a Magistrate Judge’s Recommendation
Under Fed. R. Civ. P. 72(b)(3), this Court reviews de novo any part of a
magistrate judge’s recommendation that is properly objected to. An objection is
proper only if it is sufficiently specific “to focus the district court’s attention on the
factual and legal issues that are truly in dispute.” United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). “In the absence of a timely objection, the
district court may review a magistrate’s report under any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
2. 	Treatment of a Pro Se Plaintiff’s Pleadings
A pro se litigant’s pleadings are construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers. Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). But a pro se litigant must follow the
same rules of procedure that govern other litigants, and the Court does not supply
additional factual allegations to round out a complaint or construct legal theories on
behalf of a pro se litigant. Smith v. United States, 561 F.3d 1090, 1096 (10th Cir.
2009). The Court may excuse a pro se litigant’s failure to cite proper legal authority,
confusion about various legal theories, poor syntax and sentence construction, or
unfamiliarity with pleading requirements, but it does not act as the pro se litigant’s
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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B. BACKGROUND
As set forth more fully in the Recommendation, Plaintiff is an Afro-Hispanic
male who was born in the Dominican Republic. He is a former employee of Defendant
Domino’s Pizza Supply Chain (“Domino’s Pizza”), having initially been hired as a
warehouse manager in Missouri in December 2021, before being transferred to the
Colorado supply chain center in October 2022. In Colorado, Plaintiff held dual titles
of Center Administrator and Customer Service Manager.
In October and November 2022, Plaintiff uncovered various misconduct by
Domino’s Pizza and its employees, including theft and the shipping of expired
products. Between November 2022 and April 2023, Plaintiff continued to observe
incidents of misconduct by his supervisor, Dani Rich, and others, to include their
alleged discriminatory conduct directed at female and racial minority employees. As
a result of this conduct, complaints of discrimination at the Colorado supply chain
center 	increased, 	and 	many 	of 	the 	employees 	reported 	to 	Plaintiff 	their 	own
experiences of discrimination and harassment at the facility. Plaintiff, in turn,
reported certain of these incidents to management.
In 	May 	2023, 	Domino’s 	Pizza 	terminated 	Plaintiff’s 	employment. 	Its
representative told Plaintiff he was being terminated due to comments Plaintiff made
and because he used his personal phone for work. Later, Plaintiff sent Domino’s Pizza
a letter dated February 27, 2024, indicating he intended to pursue claims against the
company 	after 	receiving 	his 	right-to-sue 	letter 	from 	the 	Equal 	Employment
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Opportunity Commission. Dkt. 28, p.12. On March 4, 2024, lawyers for Domino’s
Pizza wrote Plaintiff to remind him that “as part of your employment with Domino’s
Pizza LLC you signed an Arbitration Agreement, attached hereto, and agreed to bring
any such claims . . . in arbitration.” Dkt. 28, p.12.2 The letter added: “Nothing
contained in or omitted from this letter is or shall be deemed to be a limitation,
restriction, or waiver of any rights or remedies, either at law or in equity, in
connection with any of the matters raised in this letter, all of which are expressly
reserved.” Id.
After exhausting his administrative remedies, on April 7, 2024, Plaintiff paid
a $350 filing fee to the American Arbitration Association® and commenced an
arbitration against Domino’s Pizza and Scott Knapp, both Defendants here. Dkt. 65,
pp.13-14; Dkt. 56, p.3. In his Demand for Arbitration, Plaintiff described the nature
of his claims as follows:
This is an employment discrimination action brought under (1) Title VII
of the Civil Rights Act of 1964, 42 U.S.C. under the protected classes of
national origin, race and sex. Also under (2) 42 U.S.C. 1981 (“Section
1981”) and (3) Retaliation under the Fair Labor Standards Act 28 U.S.C.
(4) Title VII under the same protected classes and (5) under 42 U.S.C.
1981 (“Section 1981”).
Dkt. 65, p.13. The parties selected an arbitrator and then agreed to stay the
arbitration based on Plaintiff’s filing of this lawsuit. Dkt. 56, p.4.
2 The same March 4, 2024 Letter also appears in the docket at Dkt. 62, p.12 and Dkt.
65, p.16. The letter is misdated with the year 2023.
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Plaintiff filed this lawsuit on June 21, 2024. He brings seven claims for relief:
(1) disparate treatment based on race under Title VII of the Civil Rights Act of 1964
(“Title VII”); (2) disparate treatment based on national origin under Title VII; (3)
disparate treatment under 42 U.S.C. § 1981 (“Section 1981”); (4) retaliation based on
complaints of race discrimination under Title VII; (5) retaliation under Section 1981;
(6) retaliation under the Fair Labor Standards Act (FLSA); and (7) retaliation under
Title VII for reporting sexual harassment.
C. ANALYSIS
1. 	The Magistrate Judge’s Recommendation
Judge 	Varholak 	recommends 	granting 	Defendants’ 	Amended 	Motion 	to
Compel Arbitration and Dismiss Complaint (Dkt. 23) because he found Plaintiff’s
claims are subject to a valid and enforceable arbitration agreement between the
parties. He noted that Plaintiff does not dispute signing the arbitration agreement,
but instead, Plaintiff asserts his Complaint is not subject to arbitration because his
seventh claim involves a complaint of sexual harassment, which is exempted from
arbitration under the Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act of 2021 (EFAA). 9 U.S.C. § 402(a).
Judge Varholak found the plain language of the EFAA rendered it applicable
to Plaintiff’s seventh claim. Id. at § 402(b) (“The applicability of this chapter to an
agreement to arbitrate and the validity and enforceability of an agreement to which
this chapter applies shall be determined by a court[.]”). Plaintiff’s seventh claim
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alleges that Defendants retaliated against him because he reported the sexual
harassment endured by his colleagues. Finding Plaintiff’s assertion that he was
retaliated against for reporting sexual harassment falls under Title VII’s opposition
clause, Judge Varholak concluded Plaintiff stated a plausible claim for sexual
harassment and that the seventh claim falls within the EFAA; therefore, Plaintiff
was otherwise not compelled to arbitrate that claim. Dkt. 61, p.9-12.
But Judge Varholak then agreed with Defendants that because Plaintiff
initially pursued this claim, along with his other claims, in arbitration, he cannot now
change course and pursue those same claims in federal court. He noted that the EFAA
provides that an arbitration agreement can be deemed unenforceable “at the election
of the person alleging conduct constituting a sexual harassment dispute[.]” 9 U.S.C.
§ 402(a). And he found that Plaintiff exercised his election when he chose to pursue
each of his claims in arbitration. See Morgan v. Sundance, Inc., 596 U.S. 411, 417
(2022). 	The 	Plaintiff 	having 	made 	his 	election, 	Judge 	Varholak 	respectfully
recommends that this Court grant the motion to compel and stay this matter pending
arbitration.
2. 	Plaintiff’s Objections
Plaintiff filed written objections to the recommendation raising five objections
summarized as follows: (1) the magistrate judge erred in considering Domino’s Pizza’s
March 4, 2024 Letter as new evidence which he refused to consider; (2) the magistrate
judge used “a subjective standard instead of the objective standard when determining
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that the Defendant referred to his own waiver of rights and not that of both parties;”
(3) the magistrate judge “interpreted the Defendant’s bait and switch; telling the
plaintiff that they were open to mediation and then waiting 30 days to say were (sic)
not as an ‘outcome’;” (4) the magistrate judge “ignored changes in controlling law and
the persuasive authority” in Ding v. Structure Therapeutics, Inc., No. 24-cv-01368-
JSC, 2024 WL 4609593 (N.D. Cal. Oct. 29, 2024); and (5) the magistrate judge did not
“differentiate the Sex discrimination & Sex retaliation named in the request for
arbitration . . . from the Sexual Harassment retaliation named as charge 7th (sic) on
the complaint.” Dkt. 62, p.2.
a. 	Objections 1 - 3
The Court understands Plaintiff’s first three objections to involve Judge
Varholak’s treatment of the March 4, 2024 Letter. In its entirety, the Letter reads:
Dear Mr. Arias Ramirez:
As you know, we represent Domino’s Pizza LLC. We are writing
in response to your February 27, 2024 correspondence and indication
that you intend to proceed with your claims after receiving a right-to-
sue letter from the Equal Employment Opportunity Commission. As a
reminder, as part of your employment with Domino’s Pizza LLC you
signed an Arbitration Agreement, attached hereto, and agreed to bring
any such claims against Domino’s Pizza LLC in arbitration.
Nothing contained in or omitted from this letter is or shall be
deemed to be a limitation, restriction, or waiver of any rights or
remedies, either at law or in equity, in connection with any of the
matters raised in this letter, all of which are expressly reserved. We
look forward to your cooperation. Please contact me directly if you have
any questions about this matter.
Very truly yours,
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/s/ Micah D. Dawson
For FISHER & PHILLIPS LLP
Dkt. 62, p.12.
Plaintiff first attached the Letter as an exhibit to his August 6, 2024 Motion to
Void Defendants Motion to Compel Arbitration. Dkt. 28. Judge Varholak liberally
construed that motion as Plaintiff’s Response to Defendants’ Amended Motion to
Compel 	Arbitration. 	Dkt. 	33. 	Later, 	after 	Judge 	Varholak 	first 	issued 	his
Recommendation to grant the Amended Motion to Compel and dismiss this case (Dkt.
55), Plaintiff filed a Motion for Reconsideration of the Recommendation (Dkt. 56). He
again attached the Letter as an exhibit to his motion. Dkt. 56, p.16. Judge Varholak
granted Plaintiff’s motion for reconsideration insofar as Plaintiff sought a stay
pending arbitration (rather than his prior recommendation of dismissal), he denied
it insofar as his recommendation compelling arbitration, and he entered a revised
Recommendation (Dkt. 61) accordingly. Concerning the Letter, Judge Varholak
stated: “Plaintiff argues reconsideration is appropriate where . . . Defendant sent
Plaintiff a letter indicating that pursing arbitration would not constitute a waiver of
rights[.] [T]he Court understands Defendant’s letter to refer to its own rights, not
Plaintiff’s. And, regardless, a Rule 59(e) motion “is not appropriate to . . . advance
arguments that could have been raised in prior briefing.” Servants of the Paraclete v.
Does, 204 F.3d [1005,] 1012 (10th Cir. 2000).” Dkt. 59.
Plaintiff’s first three objections surround Judge Varholak’s handling of the
Letter. These objections are overruled. Even assuming Judge Varholak mistakenly
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overlooked Plaintiff’s attachment of the Letter to his Response (Dkt. 28) opposing the
Amended Motion to Compel, the error is harmless in light of this Court’s de novo
review.
Plaintiff argues he understood the Letter “to mean that there would be a timely
discussion of damages if he started the process with AAA.” Dkt. 28, p.3. And he
believed the reservation of rights and non-waiver language in the Letter’s last
paragraph applied to both him and Domino’s Pizza. In other words, it meant that
neither he nor Domino’s Pizza would be deemed to have waived their right to sue in
federal court by pursuing arbitration. Dkt. 62, pp.3-7. But Plaintiff’s argument would
result in a novation of the arbitration agreement because it would replace the parties’
obligation to arbitrate their employment-related claims with the ability to file those
claims in court even after commencing arbitration.
A novation is the replacement of an old or existing obligation with a new one.
Novation, Black’s Law Dictionary (12th ed. 2024). “A novation extinguishes a
previously existing contract by substituting a new contract or obligation.” Phoenix
Power Partners, L.P. v. Colo. Pub. Utils. Comm’n, 952 P.2d 359, 364 (Colo. 1998).
There are four requirements for a novation to exist: “(1) a previous valid contract[;]
(2) agreement between the parties to abide by the new contract[;] (3) a valid new
contract[;] and (4) extinguishment of the old contract by substitution of the new one.”
Crew Tile Distrib., Inc. v. Porcelanosa Los Angeles, Inc., No. 13-cv-3206-WJM-KMT,
2016 WL 8609397, at *9 (D. Colo. Sept. 9, 2016) (citing Moffat Cnty. State Bank v.
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Told, 800 P.2d 1320, 1323 (Colo. 1990)). When considering whether a novation exists,
“a court can determine intent of the parties based on unambiguous terms set forth in
a new agreement.” Nw. Bldg. Components, Inc. v. Adams, No. 22-cv-00790-CMA-
KLM, 2022 WL 1689293, at *4 (D. Colo. May 26, 2022) (citing Aronowitz v. Health-
Chem Corp., 513 F.3d 1229, 1237 (11th Cir. 2008)).
While the Court is sympathetic to Plaintiff’s lack of legal training and his
arguments for how his pro se status should factor into the Court’s analysis of the
Letter, the Court must be guided by the law, that is, the four requirements for
novation noted above. See, e.g., Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)
(“[I]t is well established that ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.”) (cleaned up); United States v.
Ware, 172 F.R.D. 458, 459 (D. Kan. 1997) (noting a pro se party’s unfamiliarity with
the legal system or ignorance of the law does not constitute excusable neglect).
Considering those requirements, it is clear the Letter did not effectuate a novation of
the valid and binding arbitration agreement. The Letter is not a contract.3 The Letter
merely reminded Plaintiff of his obligation to arbitrate his employment-related
claims. There was no meeting of the minds between Domino’s Pizza and Plaintiff that
the non-waiver of rights referenced in the Letter pertained to both parties, and there
3 The reservation of rights and non-waiver language in the Letter is standard
language lawyers include in demand letters or other legal communications of this sort
when prepared and sent on behalf of a client. The language merely operates as a
reservation of a client’s rights in a matter. It does not operate as a reservation of both
parties’ rights unless expressly indicated.
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is no evidence the Letter extinguished the arbitration agreement. To the contrary,
Plaintiff invoked the arbitration agreement by commencing arbitration, and the
parties participated in the AAA process until that matter was stayed because of this
lawsuit.
As a result, based on its de novo review, the Court finds the Letter did not
novate the arbitration agreement. The Court, therefore, accepts Judge Varholak’s
finding that the arbitration agreement is a valid and enforceable contract.
b. 	Objection 4
For his fourth objection, Plaintiff argues Judge Varholak “ignored changes in
controlling law and the persuasive authority” in Ding v. Structure Therapeutics, Inc.,
No. 24-cv-01368-JSC, 2024 WL 4609593 (N.D. Cal. Oct. 29, 2024). “Controlling law”
for this judicial district includes Tenth Circuit and Supreme Court precedent. United
States v. Rhodes, 834 F. App’x 457, 462 (10th Cir. 2020) (“[D]istrict courts in this
circuit are bound by our decisions and those of the United States Supreme Court—
they are not bound by decisions of other district courts, much less district courts in
other circuits.”). Plaintiff does not identify any changes in Tenth Circuit or Supreme
Court precedent that Judge Varholak ignored. And to the extent Ding serves as
persuasive authority, it is a decision from another district that courts in this district
are not required to follow.4 See id.; see also Camreta v. Greene, 563 U.S. 692, 709 n.7
4 Even were this Court to consider Ding as part of its de novo review, the Ding decision
is distinguishable from this case. The court in Ding found that the arbitration
commenced, and later withdrawn, by the plaintiff against her employer did not waive
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(2011) (“A decision of a federal district court judge is not binding precedent in either
a different judicial district, the same judicial district, or even upon the same judge in
a different case.”).
Judge Varholak thoughtfully and thoroughly walked through his analysis of
case law and his interpretation of the EFAA as applied to Plaintiff’s seventh claim.
The Court finds no error in Judge Varholak’s analysis and application of applicable
precedent, or in his analysis and treatment of persuasive authority. This objection is
overruled.
c. 	Objection 5
For his fifth and final objection, Plaintiff argues Judge Varholak did not
“differentiate the Sex discrimination & Sex retaliation named in the request for
arbitration . . . from the Sexual Harassment retaliation named as charge 7th (sic) on
the complaint.” As the Court understands this objection, Plaintiff contends his
demand for arbitration only included arbitration of his sex discrimination and sex
retaliation claims, and did not include his claim for sexual harassment. But there was
her right to invalidate arbitration of her sexual discrimination and hostile work
environment claims under the EFAA because, in relevant part, she did not include
claims subject to the EFAA in her arbitration demand and she did not realize she had
a sexual harassment claim until after reviewing discovery produced by her employer
during arbitration. Ding, 2024 WL 4609593, at *10-11. That’s different from here,
where Plaintiff included his seventh claim for sexual harassment in his arbitration
demand, thus supporting Judge Varholak’s finding that Plaintiff elected to submit
that claim to arbitration.
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no need for Judge Varholak to make this distinction because Plaintiff conceded the
point in his Response (Dkt. 28) opposing the Amended Motion to Compel.
As Plaintiff explained in his Response, he believed “there would be a timely
discussion of damages if he started the process with AAA. The plaintiff started both
an arbitration and a mediation through AAA jointly.” Dkt. 28, p.3. He goes on to
explain that “Plaintiff only started the AAA process because he was led to believe
that cooperation meant a faster track to mediation and settlement of damages.” Id.;
see also Dkt. 56, p.3 (Plaintiff stating in his Motion for Reconsideration: “On March,
2024 Plaintiff received a notice of right to sue from EEOC, which gave the plaintiff
90 days to preserve his rights to a claim in Federal court. . . . Plaintiff cooperated in
good faith; Filing a demand for mediation on April 4th, 2024 and a demand for
arbitration on April 7th 2024.”). These concessions indicate that Plaintiff elected to
submit all his claims, including his sexual harassment claim, to arbitration in the
hopes of an early settlement.
Notably, Plaintiff did not argue that his arbitration demand excluded his
sexual harassment claim until after Judge Varholak issued his first Recommendation
(Dkt. 55) to grant the Amended Motion to Compel. Plaintiff made this argument in
his Motion for Reconsideration of the Recommendation, which Judge Varholak
granted insofar as Plaintiff sought a stay pending arbitration (rather than dismissal),
and he entered the revised Recommendation (Dkt. 61) now before the Court.
However, up until his motion for reconsideration, and as noted in the above
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paragraph, Plaintiff conceded he elected to submit all his claims to arbitration. And
he made the same concession in his motion for reconsideration, again as noted above.
When ruling on the motion for reconsideration, Judge Varholak did not address
Plaintiff’s contrary argument that “he never submitted a claim for sexual harassment
retaliation to AAA for adjudication.” Dkt. 56, p.6. But implicit in his recommendation
is a denial or rejection of this argument. This Court finds no error in Judge Varholak’s
treatment of this argument raised for the first time by Plaintiff in his motion for
reconsideration.
“The Federal Rules of Civil Procedure do not specifically provide for motions
for reconsideration.” Rivera v. Exeter Finance Corp., No. 15-cv-01057-PAB-MEH,
2019 WL 6173666, at *1 (D. Colo. Nov. 19, 2019) (citing Hatfield v. Bd. of Cnty.
Comm’rs for Converse Cnty., 52 F.3d 858, 861 (10th Cir. 1995)). And the bases for
granting reconsideration are extremely limited: “[g]rounds warranting a motion to
reconsider include (1) an intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice. Thus, a motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law. It is not
appropriate to revisit issues already addressed or advance arguments that could have
been raised in prior briefing.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (citations omitted).
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Plaintiff’s 	argument 	in 	his 	motion 	for 	reconsideration—that 	he 	never
submitted a claim for sexual harassment to AAA arbitration—does not satisfy any of
the limited grounds for reconsideration. And it appears to be an argument Plaintiff
could have raised in either his Response opposing the Amended Motion to Compel, or
in his Sur-Reply (which Judge Varholak allowed). But he instead raised it for the first
time 	in 	his 	motion 	for 	reconsideration 	after 	Judge 	Varholak 	issued 	his 	first
recommendation.5 	For 	these 	reasons, 	including 	Plaintiff’s 	earlier 	concessions
regarding the claims he submitted to arbitration, the Court sees no error in Judge
Varholak’s failure to differentiate between Plaintiff’s claims of sexual harassment
and sexual discrimination or retaliation submitted to arbitration.
* 	* 	*
For the reasons shared above, the Court OVERRULES the Objections (Dkt.
62), ACCEPTS the Recommendation (Dkt. 61), and GRANTS the Amended Motion to
Compel Arbitration. (Dkt. 23). It is FURTHER ORDERED that this matter is
STAYED pending the conclusion of the arbitration proceedings. It is FURTHER
ORDERED that “Plaintiff’s Response In Support of His Objections to the Report and
Recommendation by the Magistrate Judge” (Dkt. 65) is STRICKEN.6
5 Plaintiff did previously argue that either his case, or at least his sexual harassment
claim, was not subject to arbitration because of the EFAA, but he did not argue that
he 	omitted 	that 	claim 	from 	the 	underlying 	arbitration 	until 	his 	motion 	for
reconsideration.
6 See supra, n.1.
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DATED: February 6, 2025.
BY THE COURT:
______________________________
S. Kato Crews
United States District Judge
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