III. Howard's Filing Fee
To initiate the process of vindicating her statutory claims
in the arbitral forum, Howard must pay a $500 filing fee
immediately. She contends that she should not be required to
pay more than $150, which is the fee currently required by
28 U.S.C. § 1914 to initiate a civil action in federal district
court. Howard argues that a $500 fee is inconsistent with
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct.
1647, 114 L.Ed.2d 26 (1991), and the statutory scheme enacted
in Title VII.
In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111
S.Ct. 1647, 114 L.Ed.2d 26 (1991), the Supreme Court reiterated
that statutory claims may be the subject of an arbitration
agreement with the proviso that "an arbitration agreement that
prohibits use of the judicial forum as a means of resolving
statutory claims must also provide for an effective and
accessible alternative forum." Shankle v. B-G Maintenance
Management of Colorado, Inc., 163 F.3d at 1234. Therefore,
"[a]s long as an avenue of relief remains available, [an]
arbitration clause must be given full effect." Rollins, Inc. v.
Foster, 991 F. Supp. 1426, 1438 (M.D.Ala. 1998) (considering
unconscionability of arbitration provision). Standing alone,
neither Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), or Title VII provide a
substantive right to resolve statutory claims in a neutral
forum with a filing fee of no more than $150. Rather, the
factual question for the Court is whether Howard is without
recourse to arbitration because she is unable to afford the
After reviewing evidence provided by Howard in support of her
hardship application, the AAA indicated that $500 would be
required to initiate the arbitration of her claims pursuant to
the Agreement. Howard has not contested the AAA's determination
or provided any evidence that she is unable to pay the $500
filing fee. Rather, Howard's counsel states in his memorandum
of law that: "After reviewing the AAA's proposal, the Plaintiff
concluded that she was not in a financial position to accept
AAA's terms, and was therefore unable to initiate the
arbitration." Pl.'s Memo. of Law at 5.
However, Howard is hardly "hanging by her fingernails."
Compare Solieri v. Ferrovie Dello Stato Spa, 1998 WL 419013, at
*4-*5 (employer ordered to pay filing fee for widow without
work visa who had exhausted her meager savings and had been
compelled to borrow money to pay her rent and living expenses).
Howard has an annual salary of $49,500 and has no dependents.
See Affidavit of Nellie Howard ("Howard Aff."), sworn to March
16, 1998, annexed to Reply Affidavit of Gregory L. Reid, sworn
to Aug. 25, 1998, as Exh. "1"; U.S. Individual Income Tax
Return, Form 1040, dated Feb. 1, 1998, annexed to Howard Aff.
Without more, the Court will not modify the Agreement because
Howard feels that it is no longer in her financial interest to
comply with its terms. Therefore, the Court finds, on the
present record, that the $500 filing fee is not a barrier to
the vindication of Howard's statutory rights. See also Rollins,
Inc. v. Foster, 991 F. Supp. at 1438 (plaintiff who has been
unemployed for twenty-two years, receives social security and
disability benefits and owns the trailer in which she resides
did not show that costs of arbitration shut her out of forum).
IV. Other Fees
Howard also seeks an order directing defendants to pay all
other fees associated with the arbitration of her claims.
However, federal courts adjudicate only those "real and
substantial controvers[ies] admitting of specific relief . . .
as distinguished from an opinion advising what the law would be
upon a hypothetical state of facts." Lewis v. Continental Bank
Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400
(1990). In determining whether issues are fit for adjudication,
the Court must look to "whether the [disputed] action is
`final'" and "whether the issue is purely legal or whether
`consideration of the underlying legal issues would necessarily
be facilitated if they were raised in the context of a specific
attempt to [undertake the disputed action].'" In re Combustion
Equip. Assocs., Inc., 838 F.2d 35, 37-38 (2d Cir. 1988)
(quoting Gardner v. Toilet
Goods Ass'n, 387 U.S. 167, 171, 87 S.Ct. 1526, 18 L.Ed.2d 704
Howard contends that the AAA's rules require her to pay a
host of fees and an additional $2500 filing fee at the
conclusion of her case. Notwithstanding the AAA's statement
that "the Association can not waive or defer arbitrator's
compensation, and accordingly those amounts will be [sic]
become due upon commencement of the hearings," April 1998 AAA
Letter, Howard has failed to present evidence that those fees
have been demanded of her at this time. Ultimately, Howard may
not be responsible for any fees. See National Rule for the
Resolution of Employment Disputes 32(c), annexed to Hutchinson
Aff. as Exh. "2." Therefore, at this time, the Court declines
to order defendants to assume all fees associated with the
arbitration of Howard's claims.
Furthermore, each Court of Appeals faced squarely with the
question whether a plaintiff may be required to pay significant
fees to vindicate her statutory rights under Title VII has
determined that the requirement to pay such fees would
improperly burden plaintiffs' rights. See, e.g., Shankle v. B-G
Maintenance Management of Colorado, Inc., 163 F.3d at 1234-35;
Paladino v. Avnet Computer Technologies, Inc., 134 F.3d at
1062; Cole v. Burns Int'l Security Svcs., 105 F.3d at 1484-85.
Accordingly, those courts have either refused to enforce the
arbitration agreement or ordered the defendant to pay the fees.
Id. Given these decisions and the Court's determination that
the Agreement is enforceable, the Court is confident that once
the relevant law is brought to the arbitrator's attention, he
will conduct a proceeding that will vindicate Howard's
statutory rights. See Shearson/American Express Inc. v.
McMahon, 482 U.S. 220, 232, 107 S.Ct. 2332, 96 L.Ed.2d 185
(1987) ("[T]here is no reason to assume at the outset that
arbitrators will not follow the law."). Similarly, given
defendants' desire to arbitrate this case and reach a
resolution that will be enforced by the Court, they should make
every effort to ensure that Howard is afforded all of her
statutory rights. However, if Howard is unable to vindicate her
rights in the arbitral forum, she will have recourse to the
Court. See Shearson/American Express Inc. v. McMahon, 482 U.S.
at 232, 107 S.Ct. 2332 (judicial review of arbitral award is
sufficient to ensure that arbitrators comply with requirements
of statute); Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 637-38, 105 S.Ct. 3346,
87 L.Ed.2d 444 (1985); George Fischer Foundry Sys., Inc. v.
Adolph H. Hottinger Maschinenbau GmbH, 55 F.3d 1206, 1210 (6th
Cir. 1995) (arbitration should go forward even if there is a
chance that statutory rights will not be fully recognized,
because, should that occur, the aggrieved litigant may request
the Court, at the award enforcement stage, to determine whether
the arbitration award violates public policy). Therefore, in an
effort to further the "liberal federal policy favoring
arbitration agreements," Moses H. Cone Memorial Hosp. v.
Mercury Const. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d
765 (1983), the Court leaves the vindication of Howard's
statutory rights to the arbitrator.
For the reasons set forth above, Howard's motion to compel
defendants to pay all but $150 of the fees associated with the
arbitration of her claims is denied.