United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE.
Matthew Robinson alleges that Defendant Universal Protection
Service (“UPS”) terminated him following a leave
of absence authorized by the Family and Medical Leave Act
(“FMLA”). Doc. 1, ¶¶ 10-34. He asserts
claims under the FMLA and for intentional infliction of
emotional distress. ¶¶ 35-45.
produce an arbitration agreement signed by Plaintiff, in
which he agreed to submit all disputes with UPS to
arbitration. Doc. 12-1. Defendants move for an order
compelling arbitration and dismissing this matter in its
entirety. Doc. 12. The motion has been fully briefed (Docs.
13, 15) and no party requests oral argument. The Court will
grant the motion.
Federal Arbitration Act (“FAA”) provides that an
agreement to arbitrate “shall be valid, irrevocable,
and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.” 9 U.S.C.
§ 2. “[S]tatutory claims may be the subject of an
arbitration agreement, enforceable pursuant to the FAA,
” unless “Congress itself has evinced an
intention to preclude a waiver of judicial remedies for the
statutory rights at issue.” Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)
(citation and internal quotation marks omitted).
Congressional intent to preclude a waiver of judicial
remedies may be “discoverable in the text of the
[statute], its legislative history, or an inherent conflict
between arbitration and the [statute’s] underlying
purposes.” Id. The party opposing arbitration
bears the burden of showing that Congress intended to
preclude a waiver of judicial remedies. Id.
argues that Congress did not intend to allow employees to
waive judicial remedies with respect to their rights under
the FMLA. He points to 29 U.S.C. § 2617(a)(2), which
provides that “[a]n action to recover the damages or
equitable relief prescribed [by the FMLA] may be maintained
against any employer . . . in any Federal or State court of
competent jurisdiction, ” and to 29 C.F.R. §
825.220(d), which provides that “[e]mployees cannot
waive . . . their prospective rights under FMLA.”
Additionally, Plaintiff argues that the Seventh Amendment
protects his right to a jury trial on FMLA claims. Doc. 13 at
3. Defendants counter by pointing to decisions of the Fourth
and Eighth Circuits holding that FMLA claims can be subject
to mandatory arbitration. Doc. 15 at 2. In O’Neil
v. Hilton Head Hospital, 115 F.3d 272 (4th Cir. 1997),
the Fourth Circuit concluded that “[n]othing in the
[FMLA] suggests that Congress wished to exempt disputes
arising under it from the coverage of the FAA.”
Id. at 274 (citing Satarino v. A.G. Edwards
& Sons, Inc., 941 F.Supp. 609, 613 (N.D. Tex.
1996)). And in Thompson v. Air Transportation
International LLC, 664 F.3d 723 (8th Cir. 2011), the
Eighth Circuit held that “[e]mployment-related civil
rights claims, ” including claims under the FMLA,
“can be subject to a mandatory arbitration
provision.” Id. at 727.
Court agrees with the Fourth and Eighth Circuits. Section
2617(a)(2) does not confer an unqualified right to a judicial
forum, as would be necessary to displace the FAA; it provides
only that an action to enforce the FMLA “may
be maintained . . . in any Federal or State court of
competent jurisdiction.” 29 U.S.C. § 2617(a)(2).
This language is very similar to the language of the Age
Discrimination in Employment Act (“ADEA”), which
the Supreme Court in Gilmer found consistent with
arbitration. See Gilmer, 500 U.S. at 29
(“arbitration is consistent with Congress’ grant
of concurrent jurisdiction over ADEA claims to state and
federal courts, see 29 U.S.C. § 626(c)(1) (allowing
suits to be brought “in any court of competent
jurisdiction”), because arbitration agreements, like
the provision for concurrent jurisdiction, serve to advance
the objective of allowing claimants a broader right to select
the forum for resolving disputes.”) (citation and
quotation marks omitted; alteration incorporated).
C.F.R. § 825.220(d), which prevents an employee from
waiving prospective rights under the FMLA, does not change
this analysis. As explained, the FMLA does not create a
right to a judicial forum: it simply creates a cause of
action and provides that Federal and State courts have
subject matter jurisdiction over cases asserting these
claims. Because the FMLA does not confer a right to a
judicial forum, the anti-waiver provision does not invalidate
an agreement to submit an FMLA claim to arbitration. See
Jann v. Interplastic Corp., 631 F.Supp.2d 1161, 1165 (D.
Minn. 2009) (“Gilmer, therefore, compels the
conclusion that individuals may be required to arbitrate FMLA
claims, notwithstanding the text of Section
does the Seventh Amendment create an unqualified right to a
judicial forum in this case. “The Seventh Amendment
right to a jury, although a fundamental right, can be waived
if done so knowingly and intentionally.”
Russell-Stanley Holdings, Inc. v. Buonanno, 327
F.Supp.2d 252, 257 (S.D.N.Y. 2002). Moreover, “by
agreeing to arbitration . . . [a party] effectively waive[s]
her right to a jury trial.” Great W. Mortgage Corp.
v. Peacock, 110 F.3d 222, 231 (3d Cir. 1997). Plaintiff
waived his right to a jury trial by agreeing to submit all
disputes with UPS to arbitration.
ORDERED that Defendants’ motion to compel arbitration
(Doc. 12) is granted. The Clerk of the Court shall enter
judgment accordingly and terminate this case.
 Although the parties do not address
the question, the Court will assume for purposes of this
discussion that a valid federal regulation can preclude
application of the FAA. Cf. Nat’l Ass’n of
Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666
(2007) (deferring to regulation providing that the Endangered
Species Act did not apply to certain agency actions under the
Clean Water Act).
 Even if the FMLA were understood to
create a right to a judicial forum, this would be a
procedural right, not a substantive right. The Fifth Circuit
has held that § 825.220(d) “applies only to waiver
of substantive rights under the statute.” Faris v.