SEATTLE (Legal Newsline) – A Washington court of appeals has sided with a trial court in its decision to deny a motion to compel arbitration made by a supermarket chain in a class action lawsuit filed by a former employee alleging underpayment of wages.

Plaintiff Ronald Cox worked for Quality Food Centers in Camas, Washington, and Portland, Oregon, from October 2011 to February 2014. In the class action lawsuit filed in 2014, Cox, along with another former employee Sue Jin Yi, sued Kroger Co., Fred Meyer Stores Inc. and Quality Food Centers (QFC) over allegations that QFC rounded the clock-in time for its hourly employees to the nearest quarter-hour and “intentionally manipulated the application of this policy to result in underpayment of wages,” according to the opinion.

The Court of Appeals of the State of Washington-Division One filed an opinion on Feb 5. that said, “We also deny QFC’s motion to take judicial notice because the documents at issue related solely to the question of wavier of the right to arbitrate, and we need not reach waiver. We deny Cox’s motion to dismiss this appeal as moot because the appeal presents debatable issues. For the same reason, we deny Cox’s request for frees based on the argument that QFC’s appeal is frivolous.”

Judge James Verellen wrote the opinion for the court.

QFC previously filed a motion to dismiss Cox’s second and third causes of action in May 2015, but that motion was denied by a trial court.

QFC then appealed that decision. “Because the collective bargaining agreements governing Cox’s employment do not clearly and unmistakably waive his right to judicial form for statutory wage claims, the arbitration provision does not encompass his claims, and the trial court did not err in denying QFC’s motion to compel arbitration,” the opinion states.

The following November, QFC’s motion to compel arbitration of the same claims was also denied, according to the opinion, and QFC appealed again.

Court documents also note, “Neither party has addressed whether an appeal as a matter of right from an order denying a motion to compel arbitration opens the door to include any and all prior interlocutory rulings. But even assuming the preemption ruling, could be included in an appeal from a separate motion to compel arbitration, the preemption order was not designated in QFC’s notice of appeal.”

The plaintiff alleged that QFC’s appeal is moot and requested it be dismissed, which the court denied.

Cox also sought to receive “an award of fees under RAP 18.9, arguing QFC’s appeal is frivolous,” the opinion states. The court also denied this request, stating in court documents, “QFC’s appeal is not frivolous because it presents debatable issues.”

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