Few decisions have considered when a plaintiff waives his right to arbitrate through litigation conduct, but the Fifth Circuit has now done so for the second time. In Sabatelli v. Baylor Scott & White Health, Case No. 19-50047 (5th Cir. Oct. 21, 2020), a radiologist was forced to resign and filed a lawsuit raising age and disability discrimination claims in federal court. While the action alleged classwide claims for terminated Scott & White Clinic (SWC) employees over age 40, plaintiff Frank Sabatelli never took steps to certify the class.
SWC disputed Sabatelli’s claims while also pointing out that the claims were covered by the arbitration agreement in his employment contract. Still, neither party moved to compel arbitration at the pleading or discovery stage. Instead, SWC filed a motion for summary judgment. Sixteen months later, with the summary judgment motion in place, Sabatelli finally sought to arbitrate new claims for breach of the employment agreement based on lack of proper notice before his termination – not his pending discrimination claims. SWC sought dismissal of the contract claim from the arbitrator based on Sabatelli’s pursuit of his discrimination claims in federal court for more than a year. Continue Reading