No. 99-1823 

In the Supreme Court of the United States 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PETITIONER 

v. 

WAFFLE HOUSE, INCORPORATED 

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 
THE FOURTH CIRCUIT 

JOINT APPENDIX 

DAVID L. GORDON 

Jackson, Lewis, 

Schnitzler & Krupman 
1900 Marquis One Tower 
Suite 1900 
245 Peachtree Center Avenue 
Atlanta, GA 30303 
(404) 525-8200 

Counsel of Record 
for Respondent 
BARBARA D. UNDERWOOD 

Acting Solicitor General 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

Counsel of Record 
for Petitioner 

PETITION FOR WRIT OF CERTIORARI FILED: May 15, 2000 
CERTIORARI GRANTED: April 26, 2001 

TABLE OF CONTENTS 

Page 

Relevant docket entries, United States District Court 
for the District of South Carolina Columbia 
Division .......................................................................... 1 

Relevant docket entries, United States Court of 

Appeals for the Fourth District ................................ 
5 

Court of appeals opinion (dated Mar. 1, 1999) ................ 
7 

Complaint (dated Sept. 9, 1996) ........................................ 
36 

Plaintiff’s responses to standard interrogatories and 
standard directives to produce in complaince 
with Local Rule 7.04 .................................................... 
42 

Affidavit of J. Michael Upton ............................................ 
55 

Application for Employment ............................................. 
58 

Affidavit of Eric Scott Baker ............................................ 60 

(I) 

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF SOUTH CAROLINA 

COLUMBIA DIVISION 

CIVIL ACTION No. 96-CV-2739 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PETITIONER 

v. 

WAFFLE HOUSE, INCORPORATED 

DOCKET ENTRIES 

_________________________________________________ 

DOCKET 
DATE NUMBER DOCKET ENTRY 

_________________________________________________ 

9/9/96 1 COMPLAINT; with jury de- 
mand 

* * * * * 

9/9/96 2 Answers to 16B Interro- 
gatories by plaintiff EEOC 

* * * * * 

9/9/96 4 AFFIDAVIT of David R. 

Treeter by plaintiff EEOC 

* * * * * 

(1) 

2 

_________________________________________________ 

DOCKET 
DATE NUMBER DOCKET ENTRY 

_________________________________________________ 

12/2/96 10 

MOTION by defendant Waffle 

House Inc to dismiss, and to 
compel arbitration and stay 
proceedings 

12/2/96 11 MEMORANDUM by defen- 
dant Waffle House Inc in 
support of [10- 1] motion to 
dismiss 

* * * * * 

12/22/96 13 MEMORANDUM by plaintiff 

EEOC in opposition to [10-1] 
motion to dismiss, [10-2] mo- 
tion to compel arbitration and 
stay proceedings 

12/22/96 14 AFFIDAVIT of Eric Scott 

Baker by plaintiff EEOC 

12/22/96 15 AFFIDAVIT of Joseph P. 

Doherty by plaintiff EEOC 

* * * * * 

1/13/97 20 

REPLY by defendant Waffle 

House Inc to response to [10- 

1] motion to dismiss, [10-2] 
motion to compel arbitration 
and stay proceedings 

3 

_________________________________________________ 

DOCKET 
DATE NUMBER DOCKET ENTRY 

_________________________________________________ 

2/18/97 21 Answers to 16B Interro- 
gatories by defendant Waffle 
House Inc (ttil) 

* * * * * 

5/9/97 23 REPORT AND RECOMMEN- 
DATIONS of Magistrate 
Judge Joseph R. McCrorey 
recommending that defen- 
dants motion to dismiss be 
denied and the petition to 
compel arbitration and stay 
proceedings be granted. 

* * * * * 

5/23/97 24 OBJECTION by plaintiff 

EEOC to [23-1] report and 
recommendations 

6/9/97 25 MEMORANDUM OF LAW by 
defendant Waffle House Inc in 
response to [24-1] objections 
to the magistrate’s report and 
recommendation 

6/19/97 26 SUPPLEMENTAL MEMO- 
RANDUM OF LAW by defen- 
dant Waffle House Inc to [24- 

1] objections to report and 
recommendation 

4 

_________________________________________________ 

DOCKET 
DATE NUMBER DOCKET ENTRY 

_________________________________________________ 

3/23/98 27 
ORDER denying [10-1] motion 

to dismiss, denying [10-2] mo- 
tion to compel arbitration and 
stay proceedings 

* * * * * 

3/31/98 29 NOTICE OF INTERLOCU- 
TORY APPEAL by defendant 
Waffle House Inc from the 
order denying its motion to 
compel arbitration and for a 
stay under section 3 and 4 of 
the Federal Arbitration Act 
entered on March 24, 1998 

* * * * * 

5 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 98-1502 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PLAINTIFF-APPELLEE 

v. 

WAFFLE HOUSE, INCORPORATED, 
DEFENDANT-APPELLANT 

DOCKET ENTRIES 

_________________________________________________ 

DATE DOCKET ENTRY 

_________________________________________________ 

4/7/98 Civil case docketed. 

4/8/98 Docketing notice issued. 

* * * * * 

3/1/99 Oral argument heard. 

* * * * * 

10/6/99 Published, authored opinion filed. 

10/6/99 Judgment order filed. Decision: affirmed in 
part, reversed in part and remanded. There 
is a dissenting opinion. 

6 

_________________________________________________ 

DATE DOCKET ENTRY 

_________________________________________________ 

* * * * * 

11/18/99 Petition filed by Appellee EEOC for 
rehearing. 

* * * * * 

1/14/00 COURT ORDER filed denying motion for 
rehearing, denying motion for rehearing en 
banc. 

* * * * * 

1/24/00 Mandate issued. 

* * * * * 

7 

UNITED STATES COURT OF APPEALS 
FOURTH CIRCUIT 

No. 98-1502 

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION, PLAINTIFF-APPELLEE 

v. 

WAFFLE HOUSE, INCORPORATED, 
DEFENDANT-APPELLANT 

Argued March 1, 1999 
Decided Oct. 6, 1999 

Before: NIEMEYER and KING, Circuit Judges, and 
LEE, United States District Judge for the Eastern 
District of Virginia, sitting by designation. 

Affirmed in part, reversed in part, and remanded by 
published opinion. Judge NIEMEYER wrote the opinion, 
in which Judge LEE joined. Judge KING wrote a 
dissenting opinion. 

OPINION 

NIEMEYER, Circuit Judge: 

This appeal presents the question of first impression 
in this circuit whether and to what extent the Equal 
Employment Opportunity Commission (“EEOC”), in 
prosecuting a suit in its own name, is bound by a 
private arbitration agreement between the charging 
party and his employer. Other circuits are split on the 
proper response to this question. Compare EEOC v. 
Kidder, Peabody & Co., 156 F.3d 298 (2d Cir. 1998) 
(holding that an arbitration agreement between a 

8 

charging party and an employer precludes the EEOC 
from seeking purely monetary relief in federal court on 
behalf of the charging party but not from seeking broad 
injunctive relief ), with EEOC v. Frank’s Nursery & 
Crafts, Inc., 177 F.3d 448 (6th Cir. 1999) (holding that a 
private arbitration agreement does not affect the scope 
of the EEOC’s federal court suit at all). 

Recognizing that the EEOC is vested with enforce- 
ment authority both to seek broad-based injunctive 
relief in the public interest and to seek “make-whole” 
relief on behalf of a charging party, we conclude (1) that 
the EEOC cannot be compelled, by reason of an arbitra- 
tion agreement between the charging party and his 
employer, to arbitrate its claims, but (2) that, to the 
extent that the EEOC seeks to obtain “make-whole” 
relief on behalf of a charging party who is subject to an 
arbitration agreement, it is precluded from seeking 
such relief in a judicial forum. Accordingly, we affirm 
the district court’s decision to deny Waffle House’s 
petition to compel arbitration generally and remand to 
the district court for consideration of the EEOC’s 
claims in light of this opinion. 

I 

On June 23, 1994, Eric Baker, who was seeking 
employment, entered the Waffle House facility located 
at exit 113 of Interstate 26 in Columbia, South Carolina, 
and proceeded to fill out and sign an application for 
employment with Waffle House, Inc. He left blank the 
space on the application asking what position he sought. 
The application included a provision requiring the 
applicant to submit to binding arbitration “any dispute 
or claim concerning Applicant’s employment with 
Waffle House, Inc., or any subsidiary or Franchisee of 

9 

Waffle House, Inc., or the terms, conditions or benefits 
of such employment.” Although the manager at that 
Waffle House facility, Lee Motlow, asked Baker 
whether he wanted the job there, Baker declined and 
instead, called the manager of a nearby Waffle House 
facility located at exit 110 of Interstate 26 in West 
Columbia, to whom Motlow had referred Baker.1 The 
West Columbia Waffle House manager interviewed 
Baker and hired him to begin work two weeks later. 
Baker did not fill in another application and began work 
in the West Columbia facility on August 10, 1994, as a 
grill operator. 

At his home, approximately two weeks later, Baker 
suffered a seizure, ostensibly caused by a change in the 
medication he was taking to control a seizure disorder 
that had developed as a result of a 1992 automobile 
accident. The next day, just after arriving for work, 
Baker suffered another seizure. Waffle House dis- 
charged Baker on September 5, 1994, stating in the 
separation notice that “We decided that for [Baker’s] 
benefit and safety and Waffle House it would be best he 
not work any more.” 

Baker filed a charge with the EEOC, complaining 
that his discharge violated the Americans With Dis- 

1 In its answers to interrogatories, the EEOC stated more 
particularly: “Shortly after he had spoken with Motlow, Baker 
called the Manager at the Waffle House to which Motlow had 
referred him. The Manager interviewed Baker and hired him to 
work in another nearby Waffle House, Unit # 446 in West 
Columbia. Baker visited Unit # 446 and spoke with the Manager, 
Mike Bradley. They agreed that Baker would start two weeks 
later.” J.A. at 13. 

10 

abilities Act of 1990 (“ADA”), and on September 9, 
1996, the EEOC filed this enforcement action in its own 
name against Waffle House pursuant to § 107(a) of the 
ADA, 42 U.S.C. § 12117(a), and § 102 of the Civil Rights 
Act of 1991, 42 U.S.C. § 1981a, alleging that Waffle 
House had engaged in “unlawful employment practices 
at its West Columbia, South Carolina, facility.” The 
EEOC stated in its complaint that its purpose for filing 
the suit was “to correct unlawful employment practices 
on the basis of disability and to provide appropriate 
relief to Eric Scott Baker, who was adversely affected 
by such practices.” It sought as relief (1) a permanent 
injunction barring Waffle House from engaging in 
employment practices that discriminate on the basis of 
disability; (2) an order that Waffle House institute and 
carry out antidiscrimination policies, practices, and 
programs to create opportunities and to eradicate the 
effects of past and present discrimination on the basis 
of disability; (3) backpay and reinstatement for Baker; 
(4) compensation for pecuniary and non-pecuniary 
losses suffered by Baker; and (5) punitive damages. 

In response to the complaint, Waffle House filed a 
petition under the Federal Arbitration Act (“FAA”), 9 
U.S.C. § 1 et seq., to compel arbitration and to stay the 
litigation and, alternatively, to dismiss the action under 
Federal Rule of Civil Procedure 12(b)(6). The motion 
was referred to a magistrate judge who—relying on the 
undisputed record consisting of the complaint, answers 
to interrogatories, and affidavits filed in connection 
with the motion to compel arbitration—recommended 
to the district court that it conclude that Baker had 
entered into an arbitration agreement with Waffle 
House and that the EEOC was required to arbitrate 
the claims it filed on behalf of Baker. The district court, 

11 

relying on the facts “extrapolated from the pleadings,” 
disagreed with the magistrate judge’s recommenda- 
tions and denied each of Waffle House’s motions, 
concluding that the arbitration provision contained in 
Baker’s employment application was inapplicable be- 
cause the West Columbia Waffle House facility, which 
ultimately hired Baker, had not hired him pursuant to 
his earlier application submitted at the Columbia 
Waffle House facility. 

Waffle House filed this interlocutory appeal challeng- 
ing the district court’s denial of its petition to compel 
arbitration and to stay proceedings. See 9 U.S.C. 
§ 16(a)(1). On appeal, it argues that (1) contrary to the 
district court’s holding, a valid, enforceable arbitration 
agreement existed between Baker and Waffle House 
and (2) its motion to compel arbitration under § 4 of the 
FAA should be granted because the arbitration agree- 
ment between Baker and Waffle House binds the 
EEOC to “assert Baker’s claim in an arbitral forum.” 

II 

Because arbitration is a matter of contract, we must 
first determine whether an enforceable arbitration 
agreement governed Baker’s employment with Waffle 
House. See Johnson v. Circuit City Stores, Inc., 148 
F.3d 373, 377 (4th Cir. 1998). The district court con- 
cluded that the arbitration agreement in Baker’s em- 
ployment application did not govern his employment 
relationship with Waffle House because it was sub- 
mitted to the Waffle House facility at exit 113 of Inter- 
state 26 in Columbia, and Baker was not ultimately 
employed at that facility. When Baker later went to 
the Waffle House facility at exit 110 of Interstate 26 in 
West Columbia, he was given a job there without sub- 

12 

mitting another application. The court thus concluded, 
“it does not appear that Baker’s acceptance of employ- 
ment at the West Columbia Waffle House was made 
pursuant to the written application which included the 
agreement to arbitrate.” 

We disagree with the district court’s analysis because 
it assumes that the two Waffle House facilities were 
legally distinct entities in this context. The employ- 
ment application Baker completed was the standard 
form application for employment with the corporation 
Waffle House, Inc., and not with an individual Waffle 
House facility. Indeed, the manager at the Columbia 
Waffle House facility referred Baker to the manager at 
the West Columbia Waffle House facility. In filling out 
the application, Baker left blank the space provided on 
the form for listing specific positions applied for, and he 
specified no intent to limit the application to a particu- 
lar location. Moreover, when Baker did begin work at 
the West Columbia facility, he did not fill out another 
application. It cannot be assumed that a national corpo- 
ration like Waffle House hired an individual without 
gathering any of the requisite information, such as his 
proper name, address, social security number, age and 
other personal data, qualifications, and references, all of 
which were contained in the application Baker origi- 
nally submitted at the Waffle House facility in 
Columbia. 

Accordingly, the fact that Baker was ultimately 
employed at a different facility than the one at which he 
was physically present when he completed the applica- 
tion is immaterial to the applicability of the arbitration 
agreement. The generic, corporation-wide employment 
application completed and signed by Baker, and the 

13 

arbitration provision it contained, followed Baker to 
whichever facility of Waffle House hired him. We thus 
conclude that Baker’s application, when accepted by 
Waffle House, did form a binding arbitration agreement 
between Baker and Waffle House. 

Having reached that conclusion, however, we must 
still determine what effect, if any, the binding arbitra- 
tion agreement between Baker and Waffle House has 
on the EEOC, which filed this action in its own name 
both in the public interest and on behalf of Baker. 

III 

In its motion to compel arbitration, Waffle House 
sought “to enforce the arbitration agreement between 
Waffle House and Baker and compel the EEOC, on 
behalf of Baker, to submit Baker’s employment related 
dispute with Waffle House to arbitration.” On appeal, 
it continues to maintain that “[i]t is of no consequence 
under the FAA that the EEOC is bringing this action 
on behalf of Baker rather than Baker bringing this 
action directly” because the EEOC is “bound by 
Baker’s arbitration agreement with Waffle House.” 
The EEOC characterizes Waffle House’s argument as 
“an astounding proposition.” It argues that not only did 
it “never agree[ ] to arbitrate its statutory claim,” but 
also that the EEOC “has independent statutory author- 
ity to bring suit in any federal district court where 
venue is proper.” We agree with the EEOC. 

In enforcing the federal antidiscrimination laws, the 
EEOC does not act merely as a proxy for the charging 
party but rather seeks to “advance the public interest 
in preventing and remedying employment discrimina- 
tion.” General Tel. Co. of the Northwest, Inc. v. EEOC, 

14 

446 U.S. 318, 331, 100 S. Ct. 1698, 64 L.Ed.2d 319 (1980). 
The EEOC’s independent authority to enforce the ADA 
is clear. 

In enacting the ADA, Congress chose to incorporate 
the enforcement “powers, remedies, and procedures” of 
Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 
12117(a) (incorporating by reference 42 U.S.C. §§ 
2000e-4, -5, -6, -8, -9). These Title VII mechanisms vest 
the EEOC with broad authority to enforce, in federal 
court, the statute’s ban on disability-based discrimina- 
tion. See 42 U.S.C. § 2000e-5(f )(1), (f )(3). Under Title 
VII as originally enacted, the EEOC’s powers were 
limited to investigation and conciliation, and Congress 
relied exclusively on private parties’ suits for enforce- 
ment. In 1972, however, seeking to remedy widespread 
noncompliance under this enforcement system, Con- 
gress amended Title VII, according the EEOC the 
right to file suit in federal court in its own name to 
eradicate discriminatory employment practices. See 
General Tel., 446 U.S. at 325-26, 100 S. Ct. 1698. 
Although the amendments created a dual system of 
private and government enforcement, we have long 
recognized that “it was clear that Congress intended by 
these [1972] Amendments to place primary reliance 
upon the powers of enforcement to be conferred upon 
the Commission . . . and not upon private law suits, to 
achieve equal employment opportunity.” EEOC v. 
General Elec. Co., 532 F.2d 359, 373 (4th Cir. 1976) 
(internal quotation marks and citation omitted). 

Because of this public mission, the EEOC cannot be 
viewed as merely an institutional surrogate for individ- 
ual victims of discrimination. See General Tel., 446 U.S. 
at 326, 100 S. Ct. 1698 (holding that “the EEOC’s en- 

15 

forcement suits should not be considered representa- 
tive actions subject to Rule 23”). “[U]nlike the individ- 
ual charging party, the EEOC [sues] ‘to vindicate the 
public interest’ as expressed in the Congressional 
purpose of eliminating employment discrimination as a 
national evil rather than for the redress of the strictly 
private interests of the complaining party.” General 
Elec., 532 F.2d at 373 (quoting EEOC v. Kimberly- 
Clark Corp., 511 F.2d 1352, 1361 (6th Cir. 1975)); see 
also EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291 
(7th Cir. 1993) (concluding that because the EEOC’s 
“interests are broader than those of the individuals 
injured by discrimination . . . private litigants cannot 
adequately represent the government’s interest in 
enforcing the prohibitions of federal statutes” (citations 
omitted)); EEOC v. U.S. Steel Corp., 921 F.2d 489, 496 
(3d Cir. 1990) (observing that “[p]rivate litigation in 
which the EEOC is not a party cannot preclude the 
EEOC from maintaining its own action because private 
litigants are not vested with the authority to represent 
the EEOC” (citations omitted)); EEOC v. United 
Parcel Serv., 860 F.2d 372 (10th Cir. 1988); EEOC v. 
Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 
1987). 

The statutory structure of Title VII’s enforcement 
remedies (and therefore those of the ADA) reflects the 
notion that the scope of the public interest exceeds that 
of the individual’s interest. In order to preserve the 
EEOC’s authority to litigate selectively those cases 
which it believes will have the most significant public 
impact, a charging party “may not proceed to federal 
district court until . . . the EEOC has made its own 
determination as to the validity of complainant’s claim 
and issued a right-to-sue letter.” Davis v. North 

16 

Carolina Dep’t of Correction, 48 F.3d 134, 138 (4th Cir. 
1995). And if the EEOC chooses to file suit, the 
charging party may not bring his own suit; his right is 
then limited to intervening in the EEOC’s suit. See 42 
U.S.C. § 2000e-5(f )(1). In a similar vein, when a private 
individual brings suit, the court may, under certain cir- 
cumstances, permit the EEOC to intervene to protect 
the national interest. See id. In addition, once the 
EEOC decides to sue in its own name, it is not limited 
to the facts presented in the charge. Rather, the EEOC 
may sue based on “[a]ny violations that [it] ascertains in 
the course of a reasonable investigation of the charging 
party’s complaint.” General Tel., 446 U.S. at 331, 100 
S.Ct. 1698; see also General Elec., 532 F.2d at 370. 
Finally, the EEOC’s independent interest is also re- 
flected in the fact that a charging party may not with- 
draw his charge without the consent of the EEOC. See 
29 C.F.R. § 1601.10. 

Even while empowering the EEOC to sue on a 
charge independently, Congress preserved the individ- 
ual’s private remedies under Title VII, indicating that 
private suits are still appropriate to redress individuals’ 
grievances. And even when the EEOC has determined 
to bring suit in its own name, the charging party retains 
“the right to intervene in a civil action brought by the 
Commission” if the individual believes that the EEOC 
will not adequately represent his interests as it pursues 
its public objectives. See 42 U.S.C. § 2000e-5(f )(1); com- 
pare 29 U.S.C. § 626(c)(1) (terminating an individual’s 
right to sue under the ADEA upon the EEOC’s com- 
mencement of an action to enforce that individual’s 

17 

rights).2 Congress anticipated that the EEOC would 
not always be able to achieve the best possible result 
for each individual while at the same time pursuing its 
mission to vindicate the public interest. See General 
Tel., 446 U.S. at 331, 100 S. Ct. 1698 (noting that the 
EEOC “is authorized to . . . obtain the most 
satisfactory overall relief even though competing 
interests are involved” and that it must make “the hard 
choices where conflicts of interest exist”). 

In short, under the 1972 amendments to Title VII, 
which are incorporated into the ADA, Congress has 
created a dual enforcement system, reflecting the 
notion that the EEOC and the charging party are not 
interchangeable plaintiffs. Each has its own distinct, 
albeit overlapping, interests for which overlapping 
remedies are provided. Thus, in pursuing the inquiry 
into whether the EEOC can be compelled to arbitrate 
on the basis of an arbitration agreement binding the 
charging party, we do not take the EEOC as a surro- 
gate for the charging party, subrogated to his interest. 
Rather, we examine the related, but independent, 
interests of both the EEOC and the charging party to 
determine how an arbitration agreement signed by the 
charging party affects the prosecution of a claim by the 
EEOC. 

2 In concluding that this “distinctive enforcement scheme of the 
ADEA” illustrates the EEOC’s “representative responsibilities 
when it initiates litigation to enforce an employee’s rights,” the 
Third Circuit expressly noted that the enforcement scheme of Title 
VII “from which the framers of the ADEA consciously departed 

. . . has no similar feature.” U.S. Steel, 921 F.2d at 494 & n.4. 

18 

First, we must recognize that neither the ADA nor 
Title VII as incorporated therein requires the EEOC to 
arbitrate. On the contrary, as demonstrated above, the 
1972 amendments to Title VII clearly show that Con- 
gress intended that the EEOC vindicate the public 
interest by conciliation and then by suit in federal court. 
We must also recognize that in this case the EEOC is 
not a party to any arbitration agreement. See AT & T 
Technologies, Inc. v. Communications Workers of Am., 
475 U.S. 643, 648-49, 106 S. Ct. 1415, 89 L.Ed.2d 648 
(1986); Arrants v. Buck, 130 F.3d 636, 640 (4th Cir. 
1997) (explaining that “[e]ven though arbitration has a 
favored place, there still must be an underlying agree- 
ment between the parties to arbitrate” (citation 
omitted)). Thus, the only argument Waffle House could 
advance to require the EEOC to arbitrate is that the 
EEOC’s interest in enforcing the ADA is derivative of 
Baker’s interest. This argument, however, disregards 
the EEOC’s independent statutory role as we have 
outlined it. 

In addition, contrary to Waffle House’s claims, 
neither of the other two circuits that have addressed 
the question of the impact of a private arbitration 
agreement on the EEOC’s ability to sue in its own 
name have concluded that such an agreement permits a 
court to force the EEOC into arbitration under the 
FAA. See Frank’s Nursery, 177 F.3d at 462 (observing 
that “courts may not treat the agreement of a private 
party to arbitrate her action as the agreement of the 
EEOC to arbitrate its action”); Kidder, Peabody, 156 
F.3d at 301-02 (upholding the district court’s grant of 
the employer’s motion to dismiss the EEOC’s ADEA 
suit seeking solely monetary damages but not address- 

19 

ing the issue of compelling the EEOC to arbitrate 
because the employer did not seek to do so). 

Moreover, the Supreme Court has recognized implic- 
itly that the EEOC, acting in its public role, is not 
bound by private arbitration agreements. See Gilmer 

v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. 
Ct. 1647, 114 L.Ed.2d 26 (1991) (holding that an em- 
ployee’s private arbitration agreement with her em- 
ployer precluded her from filing suit against the 
employer under the ADEA). Although a private arbi- 
tration agreement does bar an individual ADEA claim- 
ant from asserting her claim in court, it does not 
prevent her from filing a charge with the EEOC. See 
id. at 28, 111 S. Ct. 1647. This rule demonstrates the 
Court’s recognition that the EEOC’s suit can accom- 
plish aims—namely, combating discrimination on a 
societal level—that an individual’s suit is not equipped, 
nor perhaps intended, to accomplish. The court also 
emphasized, in refuting the argument that enforcing 
arbitration agreements would undercut the statutory 
scheme, that “it should be remembered that arbitration 
agreements will not preclude the EEOC from bringing 
actions seeking class-wide and equitable relief.” Id. at 
32, 111 S. Ct. 1647. Thus, it is apparent that the Court 
did not intend that when an individual who is subject to 
an arbitration agreement files a charge, the EEOC can 
only pursue relief in an arbitral forum. To the contrary, 
the Court appears to have contemplated that arbitra- 
tion agreements between charging parties and their 
employers would not infringe on the EEOC’s statutory 
duty to enforce the antidiscrimination laws in court. 

Accordingly, we conclude that Waffle House cannot 
succeed on its motion to compel the EEOC to arbitrate. 

20 

IV 

While we have thus observed that the important role 
of the EEOC in vindicating the public interest in pre- 
venting and eradicating workplace discrimination is not 
to be restricted by arbitration agreements to which it is 
not a party, its role in vindicating in federal court the 
individual interests of the charging party implicates the 
competing federal policy favoring the enforcement of 
arbitration agreements. 

When an individual and an employer agree to submit 
employment disputes to arbitration, it is the federal 
policy to give that contract effect in order to favor the 
arbitration mechanism for dispute resolution. See 9 
U.S.C. § 2; Moses H. Cone Mem’l. Hosp. v. Mercury 
Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 74 L.Ed.2d 
765 (1983). To permit the EEOC to prosecute in court 
Baker’s individual claim—the resolution of which he 
had earlier committed by contract to the arbitral 
forum—would significantly trample this strong policy 
favoring arbitration. Because Baker’s own suit in court 
to enforce his ADA claim would be barred by his 
contract and by the federal policy embodied in the 
FAA, only a stronger, competing policy could justify 
allowing the EEOC to do for Baker what Baker could 
not have done himself. The EEOC’s public mission to 
eradicate and to prevent discrimination may be such a 
policy in certain contexts, see Gilmer, 500 U.S. at 28, 
111 S. Ct. 1647, but, as we conclude herein, it cannot 
outweigh the policy favoring arbitration when the 
EEOC seeks relief specific to the charging party who 
assented to arbitrate his claims. Although the EEOC 
acts in the public interest, even when enforcing only the 
charging party’s claim, cf. Albemarle Paper Co. v. 

21 

Moody, 422 U.S. 405, 417-18, 95 S. Ct. 2362, 45 L.Ed.2d 
280 (1975), the public interest aspect of such a claim is 
less significant than an EEOC suit seeking large-scale 
injunctive relief to attack discrimination more 
generally. 

Recognizing these competing policies, we agree with 
the balance struck by the Second Circuit, which held 
that although the EEOC “may seek injunctive relief in 
the federal forum for employees even when those 
employees have entered into binding arbitration agree- 
ments,” it may not pursue relief in court—in that case, 
monetary relief—specific to individuals who have 
waived their right to a judicial forum by signing an 
arbitration agreement. Kidder, Peabody, 156 F.3d at 
302-03; but see Frank’s Nursery, 177 F.3d at 459-67 
(holding that neither the FAA nor principles of 
preclusion or waiver could operate to bar the EEOC 
from seeking monetary relief on behalf of aggrieved 
individuals). When the EEOC seeks “make-whole” 
relief for a charging party, the federal policy favoring 
enforcement of private arbitration agreements out- 
weighs the EEOC’s right to proceed in federal court 
because in that circumstance, the EEOC’s public 
interest is minimal, as the EEOC seeks primarily to 
vindicate private, rather than public, interests. On the 
other hand, when the EEOC is pursuing large-scale 
injunctive relief, the balance tips in favor of EEOC 
enforcement efforts in federal court because the public 
interest dominates the EEOC’s action. 

Thus, we hold that to the extent that the EEOC 
seeks “a permanent injunction enjoining [Waffle House] 
from discharging individuals and engaging in any other 
employment practice which discriminates on the basis 

22 

of disability” and an order to Waffle House “to institute 
and carry out policies, practices, and programs which 
provide equal employment opportunities for qualified 
individuals with disabilities, and which eradicate the 
effects of its past and present unlawful employment 
practices,” the EEOC is pursuing the public interest in 
a discrimination-free workplace, and it must be allowed 
to do so in federal court, as authorized by the ADA, 
notwithstanding the charging party’s agreement to 
arbitrate. In seeking to “vindicate rights belonging to 
the United States as sovereign,” EEOC v. Goodyear 
Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir. 1987) 
(internal quotation marks and citation omitted), which 
are not necessarily identical to the interests of the indi- 
vidual charging party, the EEOC’s course of conduct 
should not be affected by the actions of an individual in 
entering into a private arbitration agreement. See Part 
III, supra. In similar contexts where charging parties 
have been deprived of their right to sue either by 
settling their claims or having their claims dismissed, 
courts have nevertheless permitted the EEOC to 
maintain a suit for injunctive relief. See, e.g., EEOC v. 
Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 
1244, 1253 (11th Cir. 1997) (noting that “there would be 
little point in [the EEOC] having the independent 
power to sue if it could not obtain relief beyond that 
fashioned for the individual claimant”); EEOC v. Harris 
Chernin, Inc., 10 F.3d 1286, 1291-92 (7th Cir. 1993); 
Goodyear Aerospace, 813 F.2d at 1542-45. 

Conversely, however, in these same contexts some of 
the same courts have recognized that a charging party’s 
actions that impede his own right to sue can also 
circumscribe the contours of the EEOC’s suit in its own 
name to the extent that it acts on behalf of the charging 

23 

party. See, e.g., Goodyear Aerospace, 813 F.2d at 1543 
(holding that the charging party’s acceptance of a 
personal settlement of her claims rendered moot the 
EEOC’s claims for backpay on her behalf); EEOC v. 
U.S. Steel Corp., 921 F.2d 489, 496 (3d Cir. 1990) (hold- 
ing that the doctrine of res judicata barred the EEOC 
from seeking “individualized benefits” under the ADEA 
on behalf of individuals whose own suits were unsuc- 
cessful because the EEOC was “in privity” with those 
individuals); Harris Chernin, 10 F.3d at 1291 (following 
U.S. Steel’s reasoning with regard to the EEOC’s claim 
for backpay, liquidated damages, and reinstatement for 
an individual whose suit was dismissed as barred by the 
statute of limitations). 

Similarly, we also hold that when the EEOC enforces 
the individual rights of Baker by seeking backpay, 
reinstatement, and compensatory and punitive dam- 
ages, it must recognize Baker’s prior agreement to 
adjudicate those rights in the arbitral forum. Because 
the EEOC maintains that it “has no intention” of pursu- 
ing a claim in arbitration, we do not reach the question 
of whether the EEOC is authorized to do so. But it 
cannot pursue Baker’s individual remedies in court, 
although it may seek broad injunctive relief in its public 
enforcement role. 

Accordingly, we affirm the district court’s order to 
the extent that it denied Waffle House’s motions to 
compel the EEOC to arbitrate and to dismiss this 
action. We reverse its ruling that the EEOC may pro- 
secute Baker’s individual claims in court. And we 
remand with instructions to the district court to dis- 
miss, without prejudice, the EEOC’s claims asserted 

24 

on behalf of Baker individually and to permit the EEOC 
to move forward on its claims for broad injunctive 
relief.3 

AFFIRMED IN PART, REVERSED IN PART, AND 
REMANDED 

KING, Circuit Judge, dissenting: 

Because I agree with the district court that there 
was no agreement to arbitrate in this case, I must 
respectfully dissent. I would, therefore, without reach- 
ing the issue of the authority of the EEOC to seek 
injunctive and “make-whole” relief for Mr. Baker on his 
ADA claim, simply affirm the decision of the district 
court. 

I. 

On June 23, 1994, Mr. Baker completed an employ- 
ment application at a Waffle House restaurant in 
Columbia, South Carolina (“Columbia Waffle House” or 
“CWH”).1 The district court found that the manager of 

3 Waffle House argues that the EEOC is not entitled to broad 
injunctive relief because its claim relies exclusively on the incident 
involving Baker. We leave to the district court the question of 
whether the EEOC has pled sufficient facts to warrant the equit- 
able relief it seeks. See 42 U.S.C. § 2000e-5(g)(1). 

1 The employment application completed by Mr. Baker contains 
a mandatory arbitration provision, which is comprised of four lines 
of single-spaced text located at the bottom of the first page of a 
two-page application. It states in full: 

The parties agree that any dispute or claim concerning appli- 
cant’s employment with Waffle House, Inc., or any subsidiary 
or Franchisee of Waffle House, Inc., or the terms, conditions or 
benefits of such employment, including whether such dispute 

25 

the CWH offered Mr. Baker a job on that occasion, 
which Mr. Baker did not accept. 

Approximately three weeks later, Mr. Baker 
traveled to a different Waffle House restaurant, one 
located in West Columbia, South Carolina (“West 
Columbia Waffle House” or “WCWH”), where, the 
district court found, Mr. Baker “orally applied for a job 
and was orally given a job which he accepted.” J.A. 137. 
Mr. Baker did not execute a written employment appli- 
cation at the WCWH. Indeed, there is no evidence that 
the terms of the employment application that Mr. 
Baker completed at the CWH were discussed or 
adopted by Mr. Baker and Mike Bradley, the WCWH 
manager who hired Mr. Baker. Since there was no 
evidence on the point, the district court found that it 
did not appear that the “management [of WCWH] knew 
of or had the benefit of the application form which 
Baker had previously signed.” J.A. 137-38. 

or claim is arbitrable, will be settled by binding arbitration. 
The arbitration proceedings shall be conducted under the 
Commercial Arbitration Rules of the American Arbitration 
Association in effect at the time a demand for arbitration is 
made. A decision and award of the arbitrator made under the 
said rules shall be exclusive, final and binding on both parties, 
their heirs, executors, administrators, successors and assigns. 
The costs and expenses of the arbitration shall be borne evenly 
by the parties. 

This provision, printed in seven-point font, occupies merely 5/16 of 
an inch of a page that is eleven inches long. No other clause in the 
employment application is printed in as small a font size. 

26 

The district court made no findings connecting the 
WCWH offer to the CWH offer that Baker had 
rejected.2 Further, the district court’s affirmative 
rejection of the magistrate judge’s findings, see supra 
note 2, is, in itself, a factual finding that requires our 
deference. The district court’s “[f]indings of fact, 
whether based on oral or documentary evidence, shall 
not be set aside [on appeal] unless clearly erroneous.” 
Fed.R.Civ.P. 52(a). Findings of fact may be overturned 
only if we are “left with the definite and firm conviction 

2 In its written opinion of March 20, 1998, from which this 

appeal is taken, the district court found and concluded as follows: 

[T]his Court sua sponte inquired concerning the existence of 

evidence that Baker and Waffle House made an agreement to 
arbitrate with respect to the job he accepted. The facts stated 
by the Magistrate Judge which are extrapolated from the 
pleadings do not suggest that an employment agreement came 
into being following Baker’s signing of the application form on 
June 23, 1994. Baker left the Columbia Waffle House without 
accepting employment. It does not appear from the statement 
of facts relied upon by the Magistrate Judge that when Baker 
went to the West Columbia, South Carolina Waffle House, the 
management there knew of or had the benefit of the applica- 
tion form which Baker had previously signed. Instead, it 
appears that Baker orally applied for and was orally given a 
job which he accepted. That being the case, it does not appear 
that Baker’s acceptance of employment at the West Columbia 
Waffle House was made pursuant to the written application 
which included the agreement to arbitrate. For that reason, I 
am unable to agree with that portion of the Magistrate Judge’s 
conclusions. 

J.A. 137-38. Significantly, the district court expressly rejected the 
magistrate judge’s conclusion that Baker “appear[ed] to have as- 
sented to be bound by the prior agreement, that if employed he 
would submit his claim to arbitration,” by Baker’s subsequent 
acceptance of employment at the WCWH. 

27 

that a mistake has been committed.” Anderson v. City 
of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S. Ct. 
1504, 84 L.Ed.2d 518 (1985).3 The majority wrongly 
implies that an appellate court may consider and adopt 
facts found by a magistrate judge—facts already ex- 
pressly rejected by the district court—without finding 
such facts to be clearly erroneous.4 

Based on its factual findings, the district court con- 
cluded that Mr. Baker and Waffle House had not made 
an agreement to arbitrate with respect to the job that 
he ultimately accepted—the position of grill operator at 
the West Columbia Waffle House. Consequently, the 
district court denied Waffle House’s motion to compel 
arbitration and its motion to dismiss. 

3 See also Fed.R.Civ.P. 52 advisory committee’s note (1985) 
(public interest recognizes the trial court, not the appellate tribu- 
nal, as the fact-finder, to promote stability and judicial economy). 
When a court of appeals actively engages in the fact-finding func- 
tion, it undermines the legitimacy of the district courts. Id. 

4 While the majority asserts that the EEOC interrogatory 
answers support its factual scenario, see ante p. [3a] note 1, these 
answers are legally irrelevant for at least three reasons: (1) they 
are invalid because they were not made under oath (as required by 
Rule 33(b) of the Federal Rules of Civil Procedure); (2) they are 
signed by counsel only (not by Baker, who had the requisite per- 
sonal knowledge); and (3) their evidentiary value was repudiated 
by the EEOC at oral argument. Bracey v. Grenoble, 494 F.2d 566, 
570 n. 7 (3rd Cir. 1974). Accordingly, these answers could not and 
cannot be properly relied on in this case. See id. Most importantly, 
subsequently filed affidavits (properly sworn) do not contain the 
information relied upon by the majority, see J.A. 12, 28, and that 
information is contrary to the findings of the district court. See 
supra note 2. As I have noted, the majority has not determined 
the factual findings of the district court to be clearly erroneous. 

28 

The district court’s findings of fact are not clearly 
erroneous, and its conclusion that there was no agree- 
ment to arbitrate follows perforce from its findings. 
Accordingly, I would affirm the district court’s order 
denying Waffle House’s motions to dismiss and compel 
arbitration, thereby enabling the EEOC to pursue 
injunctive and “make-whole” relief on behalf of Mr. 
Baker. 

II. 

A. 

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et 
seq., which governs here, represents “a liberal federal 
policy favoring arbitration agreements.” Moses H. 
Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 
1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Where there 
is a valid agreement to arbitrate that covers the matter 
in dispute, the FAA requires federal courts to stay any 
ongoing judicial proceedings and compel arbitration. 
See Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 937 
(4th Cir. 1999) (citing the FAA, 9 U.S.C. §§ 3, 4). 

But the mandate and policy concerns of the FAA 
come into play only if the claims at issue are arbitrable 
in the first instance, and if there is a valid agreement to 
arbitrate. See Phillips, 173 F.3d at 937-38. This court 
has held that a claim such as Baker’s is arbitrable; the 
ADA does not prohibit arbitration of a claim arising 
under that statute. See Austin v. Owens-Brockway 
Glass Container, Inc., 78 F.3d 875, 881 (4th Cir. 1996) 
(“The language of the [ADA] could not be any more 
clear in showing Congressional favor towards arbitra- 
tion.”); see also Phillips, 173 F.3d at 937. However, the 
question remains whether Mr. Baker and Waffle House 

29 

entered into an agreement to arbitrate that would 
require Mr. Baker to arbitrate any ADA claim arising 
from his employment at the WCWH. 

Whether a contract to arbitrate exists is “an issue for 
judicial determination to be decided as a matter of 
contract.” Johnson v. Circuit City Stores, 148 F.3d 373, 
377 (4th Cir. 1998) (citing AT & T Techs., Inc. v. Com- 
munications Workers of Am., 475 U.S. 643, 648-49, 106 
S. Ct. 1415, 89 L.Ed.2d 648 (1986)). In deciding this 
issue, we should apply “ordinary state-law principles 
that govern the formation of contracts.” Johnson, 148 
F.3d at 377 (quoting First Options of Chicago, Inc. v. 
Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 131 L.Ed.2d 
985 (1995)). 

South Carolina law supports the district court’s con- 
clusion here. In recognition of the fact that Mr. Baker 
did not accept the offer of employment at the CWH, the 
district court held that “no employment agreement 
came into being following Baker’s signing of the appli- 
cation form on June 23, 1994.” The formation of con- 
tracts under South Carolina law “is governed by well- 
settled principles.” Carolina Amusement Co. v. Con- 
necticut Nat’l Life Ins. Co., 313 S.C. 215, 437 S.E.2d 
122, 125 (1993). 

Quite simply, [a] contract exists where there is an 
agreement between two or more persons upon suffi- 
cient consideration either to do or not to do a par- 
ticular act. Stated another way, there must be an 
offer and an acceptance accompanied by valuable 
consideration. 

Id. (internal citations and quotation marks omitted). 

30 

When the manager at the Columbia Waffle House 
offered Mr. Baker a job, the terms of that offer included 
the provisions of the employment application, which 
Mr. Baker had completed in the restaurant on June 23, 
1994, while the restaurant manager was sitting next to 
him. Those terms were part of the “bargained-for ex- 
change” offered by the manager of the CWH.5 “An 
offer is the manifestation of willingness to enter into a 
bargain, so made as to justify another person in under- 
standing that his assent to that bargain is invited and 
will conclude it.” Restatement (Second) of Contracts 
§ 24 (1981); see also Prescott v. Farmers Tel. Coop., 335 
S. C. 330, 516 S.E.2d 923, 926 (1999). “The offer identi- 
fies the bargained for exchange and creates a power of 
acceptance in the offeree.” Carolina Amusement, 437 
S.E.2d at 125 (citations omitted). Without an acceptance 
of an offer, there can be no contract. Id.; see also 
Restatement (Second) of Contracts § 35 cmt. c. 

Because Mr. Baker declined to accept the job offered 
on June 23, 1994, by the manager of the CWH, no 
employment agreement was formed. Id. Under settled 
legal principles, the terms of the rejected offer, 

5 Indeed, at the top of the application in large, bold, capital 
letters, Waffle House states the following requirement: 

MUST BE COMPLETED IN THE RESTAURANT 

J.A. 26. The choice of the definite article “the” is telling. Which 
restaurant must the application form be completed in? The answer 
is obvious—the Waffle House restaurant to which the job applicant 

is applying. 

In Mr. Baker’s case, he did just what the form required—he 
completed the employment application in the Columbia Waffle 
House—the restaurant to which he was applying when he filled out 
the application. 

31 

including the provisions of the employment application, 
did not survive the rejection of the offer. Mr. Baker’s 
power of acceptance of that offer was terminated by his 
rejection of it. See Restatement (Second) of Contracts 
§§ 36, 38 (when offeree rejects offer, his power of 
acceptance is terminated). 

When Mr. Baker, three weeks later, traveled to the 
West Columbia Waffle House and orally applied for a 
job there, its manager, Mr. Bradley, made Mr. Baker an 
offer for a job as a grill operator at $5.50 an hour. Mr. 
Baker accepted Mr. Bradley’s offer on the spot. There 
is no evidence that the provisions of the June 23, 1994 
employment application were adopted, or even dis- 
cussed, as part of the employment agreement that came 
into being three weeks later at the West Columbia 
Waffle House. See Player v. Chandler, 299 S.C. 101, 
382 S.E.2d 891, 893 (1989) (a valid and enforceable 
contract requires “a meeting of the minds between the 
parties with regard to the essential and material terms 
of the agreement”). Thus, there is no basis for the 
majority’s conclusion that Mr. Baker agreed to arbi- 
trate claims arising from his employment at the West 
Columbia Waffle House.6 

B. 

In its opinion, the majority simply relies on its own 
assumptions about corporate practices, as if those are 
somehow dispositive of the question whether an agree- 

6 It is undisputed that when Mr. Baker spoke with Mr. Bradley 
about a job at the WCWH, Mr. Bradley mentioned neither arbitra- 
tion nor anything else about the way disputes were settled be- 
tween Waffle House and its employees. 

32 

ment to arbitrate has been formed, while ignoring the 
district court’s factual findings.7 The majority’s hold- 
ing—that the “generic, corporation-wide employment 
application completed and signed by Baker, and the 
arbitration provision it contained, followed Baker to 
whichever facility of Waffle House hired him,” ante at 
[7a]—creates an unprecedented rule that has disturbing 
implications beyond the injustice done to Mr. Baker. 

Under the rule the majority creates today, the terms 
contained in an employment application submitted to 
one facility in a restaurant chain, or any other business 
chain, become binding on the job applicant if she is 
subsequently hired by another facility in the same 
chain. In effect, the terms contained in the employment 
application, including the mandatory arbitration provi- 
sion, become free-floating, ready to bind the unsuspect- 
ing job applicant whenever and wherever she might 
obtain employment with the same chain. It is not 
surprising that the majority fails to cite any authority 
to support its conclusion. As explained above, the 
majority’s holding is untenable under fundamental 

7 Indeed, the majority substitutes its assumptions for the 
district court’s findings, and fails to review or analyze the district 
court’s findings for clear error. See Section I. 

33 

principles of contract law.8 

8 In addition, I believe that even under the majority’s theory— 
that the employment application “followed” Mr. Baker to the West 
Columbia Waffle House—the arbitration provision would be 
unenforceable. 

First, the arbitration provision mandates that the employee pay 
one-half of the costs and expenses of arbitration, see supra note 1 
(“The costs and expenses of the arbitration shall be borne evenly 
by the parties”). At least three of our sister circuits have held that 
a mandatory arbitration agreement that requires an employee to 
pay a portion of the arbitrator’s fees is unenforceable under the 
Federal Arbitration Act. See Shankle v. B-G Maintenance Mgmt. 
of Colorado, Inc., 163 F.3d 1230 (10th Cir. 1999); Paladino v. Avnet 
Computer Techs., Inc., 134 F.3d 1054 (11th Cir. 1998); Cole v. 
Burns Int’l Sec. Servs., 105 F.3d 1465 (D.C. Cir. 1997). These 
courts reasoned that if an employer requires an employee to agree 
to mandatory arbitration as a condition to obtaining or continuing 
employment, thereby prohibiting the employee from using the 
judicial forum to vindicate his rights, then the employer must pro- 
vide an accessible alternative forum. See, e.g., Shankle, 163 F.3d at 
1235. If an arbitration agreement requires the employee to pay a 
portion of the arbitrators’ fees—which often may amount to thou- 
sands of dollars—an accessible forum is, in effect, unavailable, 
because of the disincentive to arbitrate created by such fees. Id. 
Under these circumstances, an employee like Mr. Baker is unlikely 
to pursue his statutory claims. See Cole, 105 F.3d at 1484 (noting 
that arbitration fees “are unlike anything that [employee] would 
have to pay to pursue his statutory claims in court”). As the Tenth 
Circuit reasoned, “[s]uch a result clearly undermines the remedial 
and deterrent functions of the federal anti-discrimination laws.” 
Shankle, 163 F.3d at 1235 (citations omitted). 

Second, the mandatory arbitration provision would be unen- 
forceable because it is so inconspicuous that it failed, as a matter of 
law, to provide Mr. Baker with sufficient notice that he was waiv- 
ing his right to a judicial forum for his statutory claims. See 
Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 
F.3d 1, 20-21 (1st Cir. 1999). In Rosenberg, the First Circuit inter- 

34 

The majority’s rule has no temporal or geographical 
limits. For example, suppose a student submits an 
employment application to a McDonald’s in North 
Carolina, and is offered but declines a position there. 
Then, months or years later, she seeks and obtains 
employment at a McDonald’s in Maryland without sub- 
mitting another written employment application. Un- 
der the majority’s rule, she would be bound by the 
terms of the employment application submitted earlier 
in North Carolina. 

Moreover, if a job applicant wishes to escape the 
stranglehold of the “generic, corporation-wide employ- 
ment application,” he must specify his “intent to limit 
the application to a particular location.” Ante at [6a-7a]. 
The Waffle House application, however, does not re- 
quest the applicant to specify which Waffle House 
locations he is applying for. And the application form 
itself clearly assumes that the job seeker is applying for 
a position at the restaurant where he obtained and 
completed the application. Yet the majority would 
nonetheless require the job applicant—rather than the 
corporation that drafted the terms of the employment 
application—to specify his intent, which is not asked 
for, to limit the application to a particular location. To 

preted the Supreme Court’s decision in Wright v. Universal 
Maritime Serv. Corp., 525 U.S. 70, 119 S. Ct. 391, 142 L.Ed.2d 361 
(1998), and a provision of the 1991 Civil Rights Act (which is also 
included in the ADA), as requiring that “there be some minimum 
level of notice to the employee [who is a party to a private arbitra- 
tion agreement] that statutory claims are subject to arbitration”. 
Rosenberg, 170 F.3d at 20-21. With its buried arbitration provi- 
sion, Waffle House failed, as a matter of law, to provide such 
“minimum level of notice” to Mr. Baker that he was required to 
arbitrate his ADA claim. See Rosenberg, 170 F.3d at 20. 

35 

place such a duty on job applicants is patently unfair 
and unwarranted. 

Common sense tells us that a person who physically 
goes to the Wal-Mart in Lewisburg, West Virginia, is 
applying for a job at that Wal-Mart, not one in Rich- 
mond, Virginia, or Charlotte, North Carolina, absent 
express negotiations to the contrary. He would not 
reasonably expect that the employment application 
submitted to the Lewisburg Wal-Mart would be con- 
sidered an application to work in Richmond or 
Charlotte. The majority sets a trap for the unwary job 
applicant by the counterintuitive rule that it has 
created today. 

III. 

Because I agree with the district court that there 
was no agreement to arbitrate between Waffle House 
and Mr. Baker, I would affirm its ruling and permit the 
EEOC to pursue both injunctive and “make-whole” 
relief on behalf of Mr. Baker. 

I respectfully dissent. 

36 

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF SOUTH CAROLINA 

COLUMBIA DIVISION 

CIVIL ACTION No. 3 96 2739 10BC 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PLAINTIFF 

v. 

WAFFLE HOUSE, INC., DEFENDANT 

[Filed: Sept. 9, 1996] 

COMPLAINT 

JURY TRIAL DEMAND 

NATURE OF THE ACTION 

This is an action under Title I of the Americans with 
Disabilities Act of 1990 and Title I of the Civil Rights 
Act of 1991 to correct unlawful employment practices 
on the basis of disability and to provide appropriate 
relief to Eric Scott Baker, who was adversely affected 
by such practices. As alleged with greater particularity 
in paragraph 8 below, Eric Scott Baker, a qualified 
individual with a disability, was discharged by Waffle 
House, Inc., because of his disability. 

37 

JURISDICTION AND VENUE 

1. Jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action 
is authorized and instituted pursuant to Section 107(a) 
of the Americans with Disabilities Act of 1990 (“ADA”), 
42 U.S.C. § 12117(a), which incorporates by reference 
Sections 706(f )(1) and (3) of Title VII of the Civil Rights 
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(f )(1) and 
(3) and pursuant to Section 102 of the Civil Rights Act 
of 1991. 42 U.S.C. § 1981a. 

2. The employment practices alleged to be unlawful 
were committed within the jurisdiction of the United 
States District Court for the District of South Carolina, 
Columbia Division. 

PARTIES 

3. Plaintiff, the Equal Employment Opportunity 
Commission (the “Commission”), is the agency of the 
United States of America charged with the admini- 
stration, interpretation and enforcement of Title I of 
the ADA and is expressly authorized to bring this 
action by Section 107(a) of the ADA, 42 U.S.C. 
§ 12117(a), which incorporates by reference Sections 
706(f )(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f )(1) 
and (3). 

4. At all relevant times, Defendant, Waffle House, 
Inc. (the “Employer”), has continuously been a Georgia 
Corporation doing business in the State of South 
Carolina and the City of West Columbia, and has con- 
tinuously had at least 15 employees. 

38 

5. At all relevant times, Defendant Employer has 
continuously been an employer engaged in an industry 
affecting commerce under Sections 701(b), (g) and (h) of 
Title VII, 42 U.S.C. §§ 2000e-(b), (g) and (h). 

6. At all relevant times, Defendant Employer has 
been a covered entity under Section 101(2) of the ADA, 
42 U.S.C. § 12111(2). 

STATEMENT OF CLAIMS 

7. More than days prior to the institution of this 
lawsuit, Eric Scott Baker filed a charge with the Com- 
mission alleging violations of the ADA by Defendant 
Employer. All conditions precedent to the institution of 
this lawsuit have been fulfilled. 

8. On or about September 5, 1994, Defendant Em- 
ployer engaged in unlawful employment practices at its 
West Columbia, South Carolina facility, in violation of 
Section 102(a) of the ADA, 42 U.S.C. § 12112(a). The 
practices included discharging Eric Scott Baker, a 
qualified individual with a disability (seizure disorder), 
from his position as a cook because of his disability. 

9. The effect of the practice complained of in para- 
graph 8 above has been to deprive Eric Scott Baker of 
equal employment opportunities and otherwise ad- 
versely affect his status as an employee because of his 
disability. 

10. The unlawful employment practice complained of 
in paragraph 8 above was intentional. 

11. The unlawful employment practice complained of 
in paragraph 8 above was done with malice or with 

39 

reckless indifference to the federally protected rights of 
Eric Scott Baker. 

PRAYER FOR RELIEF 

Wherefore, the Commission respectfully requests 
that this Court: 

A. Grant a permanent injunction enjoining Defen- 
dant Employer, its officers, successors, assigns, and all 
persons in active concert or participation with it, from 
discharging individuals and engaging in any other 
employment practice which discriminates on the basis 
of disability. 

B. Order Defendant Employer to institute and carry 
out policies, practices, and programs which provide 
equal employment opportunities for qualified indivi- 
duals with disabilities, and which eradicate the effects 
of its past and present unlawful employment practices. 

C. Order Defendant Employer to make whole Eric 
Scott Baker, by providing appropriate backpay with 
prejudgment interest, in amounts to be determined at 
trial, and other affirmative relief necessary to eradicate 
the effects of its unlawful employment practices, in- 
cluding but not limited to rightful-place reinstatement. 

D. Order Defendant Employer to make whole Eric 
Scott Baker by providing compensation for past and 
future pecuniary losses resulting from the unlawful 
employment practice described in paragraph 8 above, 
including but not limited to job search expenses and 
medical expenses, in amounts to be determined at trial. 

E. Order Defendant Employer to make whole Eric 
Scott Baker by providing compensation for past and 

40 

future nonpecuniary losses resulting from the unlawful 
practice complained of in paragraph 8 above, including 
but not limited to emotional pain, suffering, inconven- 
ience and humiliation, in amounts to be determined at 
trial. 

F. Order Defendant Employer to pay Eric Scott 
Baker punitive damages for its malicious and reckless 
conduct, as described in paragraph 8 above, in amounts 
to be determined at trial. 

G. Grant such further relief as the Court deems 
necessary and proper in the public interest. 

H. Award the Commission its costs of this action. 

JURY TRIAL DEMAND 

The Commission requests a jury trial on all questions 
of fact raised by its complaint. 

C. GREGORY STEWART 

General Counsel 

ROSALIND GRAY 

Deputy General Counsel 

EQUAL EMPLOYMENT 

OPPORTUNITY COMMISSION 

1801 “L” Street, N.W. 
Washington, D.C. 20507 

/s/ MINDY E. WEINSTEIN 

MINDY E. WEINSTEIN 
Regional Attorney 

/s/ ROSEMARY J. FOX 

ROSEMARY J. FOX 
Supervisory Trial Attorney 

41 

/s/ DAVID R. TREETER 

DAVID R. TREETER 
Senior Trial Attorney 

EQUAL EMPLOYMENT 

OPPORTUNITY COMMISSION 

129 West Trade Street 
Suite 400 
Charlotte, NC 28202 
(704) 344-6886 

42 

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF SOUTH CAROLINA 

COLUMBIA DIVISION 

CIVIL ACTION No. 3 96 2739 10BC 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PLAINTIFF 

v. 

WAFFLE HOUSE, INC., DEFENDANT 

[Filed: Sept. 9, 1996] 

PLAINTIFF ’S RESPONSES TO STANDARD 
INTERROGATORIES AND STANDARD 
DIRECTIVES TO PRODUCE IN COMPLIANCE 

WITH LOCAL RULE 7.04 

Plaintiff, Equal Employment Opportunity Com- 
mission (the “Commission”), files the following re- 
sponses to standard interrogatories and directives to 
produce in compliance with Rule 7.04 of the Local Rules 
of Practice for the United States District Court for the 
District of South Carolina (hereafter “Local Rules”). 

RESPONSES 

1. Furnish a detailed factual basis for each claim you 
assert. If a contract, writing or document forms the 
basis of any claim, quote or attach the relevant por- 
tions, state your construction thereof and the claimed 
breach or wrongful conduct in connection therewith. 

43 

RESPONSE: Eric Baker is a twenty-one year old 
male resident of Gaston, South Carolina. Baker was 
involved in an automobile accident in 1992. As a result 
of the accident, Baker now has a disability, a seizure 
disorder. Although his seizures are controlled by the 
medication Depakote, he may still infrequently experi- 
ence a seizure. He has certain physical symptoms prior 
to having a seizure which prepare him for the possibil- 
ity of the seizure, and he seeks out a place to await the 
seizure. 

In July of 1994, Baker was asked by Lee Motlow, the 
District Manager for Waffle House, whether he wanted 
a job. Baker told Motlow about his seizures. Motlow 
assured Baker that there was no problem. 

Shortly after he had spoken with Motlow, Baker 
called the Manager at the Waffle House to which 
Motlow has referred him. The Manager interviewed 
Baker and hired him to work in another nearby Waffle 
House, Unit #446 in West Columbia. Baker visited 
Unit #446 and spoke with the Manager, Mike Bradley. 
They agreed that Baker would start two weeks later. 
During this conversation, Baker told Bradley that he 
suffered from seizures. 

Baker started work at Waffle House on August 10, 
1994. Baker’s job was to prepare food orders for cus- 
tomers and prepare food for later use. The Grill Opera- 
tors normally work seven to eight hours per day and 
use the grill, toasters, waffle irons, a two isle burner, 
knives and other utensils. 

On or about August 25, Baker suffered a seizure at 
home. The seizure was caused by a change in Baker’s 

44 

medication. Baker called Bradley who told him to stay 
home and come to work the next day. 

On or about August 26, a Friday, Baker went to work 
for his scheduled shift. Baker was to begin work at 8:00 

a.m. At about 7:50 a.m., just prior to clocking in, Baker 
felt as though he was going to have a seizure. He went 
into the back room of the restaurant and sat down. 
Tonya Pridgen called Baker’s parents to inform them of 
the situation. The parents came to the restaurant. 
Shortly after they arrived, Baker began to have the 
seizure. It lasted about thirty seconds. Afterward, 
Baker went home for the day. 

Baker called his workplace that evening and spoke 
with the Relief Manager, Violet Sharpe. Sharpe told 
him to call back the next day to speak with Bradley. 
When Baker called the next day, Sharpe told him that 
Bradley was on vacation and that Bradley had told her 
that Baker could not return to work until he returned 
from vacation. 

Baker spoke with Bradley on or about the afternoon 
of September 3, 1994. Baker told Bradley that he felt 
fine and wanted to return to work. Bradley told Baker 
that they needed to talk about it and asked Baker to 
come to the restaurant on the next morning. 

Baker went to the Waffle House on or about Septem- 
ber 4, 1995. He was accompanied by his parents. Baker 
went into the back of the restaurant with Bradley to 
discuss the situation. Bradley asked Baker how he felt. 
Baker replied that he was fine and asked when he could 
return to work. Bradley stated he could not let him 
return to work because of the seizures. When asked 

45 

the reason, Bradley, stated: “We can’t have you spazz- 
ing out around the customers because it looks bad.” 

On or about September 12 or 13, Baker telephoned 
Motlow and discussed his discharge. Motlow stated 
that Baker should have never been told it would not be 
a problem to work at Waffle House with the seizures 
and that Baker should have never been hired. 

Waffle House provided a Separation Notice to Baker. 
The notice stated the following as the reason for 
Baker’s separation from employment: 

Scott was Hired As a Grill operator, Where he Was 
Involved With Grease & a Hot Flame. On 8/26/94 
Scott Experenced (sic) A Seizure On both Days. We 
Were Told It Was Due to A change in medication. 
We Decided that For his Benefit & Safety at Waffle 
House It Would Be Best he not Work Any more. 

2. Describe, by name and citation or other generally 
recognized identification, decisions, statutes, ordi- 
nances, acts, codes, regulations, legal principles, stan- 
dards, and customs or usages, which you contend are 
especially applicable to this action. State which juris- 
diction’s law applies to each claim and why. 

RESPONSE: Jurisdiction of this Court is invoked 
pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. 
This action is authorized and instituted pursuant to 
Section 107(a) of the Americans with Disabilities Act of 
1990 (“ADA”), 42 U.S.C. § 12117(a), which incorporates 
by reference Sections 706(f)(1) and (3) of Title VII of 
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. 
§ 2000e-5(f )(1) and (3), and pursuant to Section 102 of 
the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The 

46 

ADA prohibits an employer from discharging an em- 
ployee because of the employee’s disability. 42 U.S.C. 
§ 12112(a). 

Applicable to this action are the following decisions: 
Doe v. University of Maryland Medical System Corp., 
50 F.3d 1261 (4th Cir. 1995); Tyndall v. National 
Education Centers, 31 F.3d 209 (4th Cir. 1994); and 
Sarrsycki v. United Parcel Service, 862 F.Supp. 336 
(W.D. Okla. 1994). 

3. State the full names, addresses, and telephone 
numbers of all lay witnesses whose testimony you may 
use at the trial of this case and describe the special 
factual issues to which that testimony is expected to 
relate. 

RESPONSE: The lay witnesses currently known to 
the Commission whose testimony may be used at trial 
include: 

1. Eric Scott Baker 
106 Oakdale Street 
Gaston, S.C. 29053 
Telephone: 803/926-8652 

The Commission expects Eric Scott Baker to 
testify regarding his employment and sub- 
sequent discharge from Defendant. He will 
also testify regarding his medical condition 
and the harm he has suffered as a result of the 
discharge. 

2. Sylvia Baker 
106 Oakdale Street 
Gaston, S.C. 29053 
Telephone: 803/926-8652 

47 

Sylvia Baker is Eric Scott Baker’s mother. 
The Commission expects Sylvia Baker to 
testify regarding the events occurring on 
August 26, 1994 at Defendant’s West Colum- 
bia facility. Sylvia Baker will also testify 
regarding her son’s medical condition and the 
harm suffered by her son as a result of his 
discharge by Defendant. 

3. Robert G. Baker 
106 Oakdale Street 
Gaston, S.C. 29053 
Telephone: 803/926-8652 

Robert G. Baker is Eric Scott Baker’s father. 
The Commission expects Robert G. Baker to 
testify regarding the events occurring on 
August 26, 1994 at Defendant’s West Colum- 
bia facility. Robert G. Baker will also testify 
regarding his son’s medical condition and the 
harm suffered by his son as a result of his 
discharge by Defendant. 

4. Michael Bradley 
c/o Waffle House, Inc. 
P.O. Box 6450 
Norcross, GA 30091-6450 
Telephone: 404/729-5700 

The Commission expects Michael Bradley to 
testify regarding Eric Scott Baker’s employ- 
ment with Defendant, including matters 
regarding Baker’s discharge. 

48 

5. Violet Sharpe 
c/o Waffle House, Inc. 
P.O. Box 6450 
Norcross, GA 30091-6450 
Telephone: 404/729-5700 

The Commission expects Violet Sharpe to 
testify regarding Eric Scott Baker’s employ- 
ment with Defendant, including matters 
regarding Baker’s discharge and Baker’s 
attempt to come back to work after he suf- 
fered a seizure. 

6. Lee Motlow 
c/o Waffle House, Inc. 
P.O. Box 6450 
Norcross, GA 30091-6450 
Telephone: 404/729-5700 

The Commission expects Lee Motlow to tes- 
tify regarding Eric Scott Baker’s employment 
with Defendant, including his hiring and his 
discharge. 

7. Tonya Pridgen 
116 S. Carlyle St. 
Gaston, SC 29053 
Telephone: 803/796-7460 

The Commission expects Tonya Pridgen to 
testify regarding Baker’s employment with 
Defendant. Tonya Pridgen will also testify 
regarding conversations between Eric Scott 
Baker and Michael Bradley, to the extent that 
she was a part of those conversations. 

49 

8. Lawson Pridgen 
Address unknown. 

The Commission expects Lawson Pridgen to 
testify regarding Baker’s employment with 
Defendant. Lawson Pridgen will also testify 
regarding conversations between Eric Scott 
Baker and Michael Bradley, to the extent that 
she was a part of those conversations. 

9. Mary Moore 
Paralegal Specialist 
U.S. Equal Employment Opportunity 
Commission 
129 West Trade Street, Suite 400 
Charlotte, N.C. 28202 
Telephone: 704/344-6682 

The Commission expects Ms. Moore to testify 
regarding calculation of lost wages and 
benefits of Eric Scott Baker as a result of his 
discharge by Defendant. 

10. Designated Custodian of Records for 
S.C. Human Affairs Commission 
2611 Forest Drive, Suite 200 
Columbia, S.C. 29240 
Telephone: 803/253-6336 

11. Designated custodian of records for 
the Charlotte District Office of the 
U.S. Equal Employment Opportunity 
Commission 
129 West Trade Street, Suite 400 
Charlotte, N.C. 28202 
Telephone: 704/344-6682 

50 

The custodians of records to be designated by the 
Commission and by the S.C. Human Affairs Com- 
mission are expected to testify regarding documents 
generated and obtained during the investigation of Mr. 
Baker’s charge of employment discrimination. 

The Commission reserved the right to supplement 
and/or amend this list of potential lay witnesses and the 
designations of the subject matter on which each 
witness may testify in accordance with the Local Rules 
of this district and the Federal Rules of Civil Pro- 
cedure. 

4. Identify by full name, address and telephone 
number each person whom you expect to call as an 
expert witness at the trial of this case, and, as to each 
expert so identified, state the subject matter on which 
he is expected to testify, the substance of the facts and 
opinions to which he is expected to testify, and a 
summary of the grounds for each opinion. 

RESPONSE: Although it is anticipated that Baker’s 
personal physician may testify as to matters related to 
seizure disorders and Baker’s condition, no expert 
witnesses have been identified by the Commission at 
this time. This response will be supplemented as 
required by the Local Rules and the Federal Rules of 
Civil Procedure. 

5. If you contend that you have been injured or 
damaged, describe said injuries, damages and method 
of computation in detail, including but not necessarily 
limited to: the nature of the injury or damage; 
claimant’s life expectancy; medical, nursing, hospital 
and similar expenses and the names of persons and 
institutions and the amount paid to and owing each; the 

51 

cost of repairs to property and names of persons 
making them or, if incapable of repair, the value of the 
property immediately before the damage and 
immediately afterwards; the amount of lost earnings or 
profits; the period for which loss is claimed, and the 
name of employer if applicable; the age, employment, 
earnings, marital status, and life expectancy of the 
deceased and the names, ages, and the relationship of 
each statutory beneficiary. 

RESPONSE: The Commission brings this action on 
behalf of Eric Scott Baker. Based on the information 
currently available to the Commission, the Commission 
will seek damages for Mr. Baker as follows: 

a. back pay in an amount sufficient to com- 
pensate Mr. Baker for the period from 
September 4, 1994, the date the Mr. Baker 
was terminated, through the date of trial, less 
amounts earned in mitigation; 

b. prejudgment interest; 

c. compensatory damages for out-of-pocket ex- 
penses, emotional distress, mental anguish 
and loss of self-esteem, in an amount to be 
determined at the time of trial; 

d. punitive damages in an amount to be deter- 
mined at the time of trial. 

The amounts sought as compensatory and punitive 
damages is subject to the exclusions and limitations set 
forth in 42 U.S.C. § 1981a. 

This response is based on information currently avail- 
able to the Commission. The Commission will supple- 

52 

ment and/or amend this response when additional 
information is obtained, in accordance with the Local 
Rules and the Federal Rules of Civil Procedure. 

6. State the full name, address, and telephone num- 
ber of all persons or legal entities who have a subroga- 
tion interest in each claim, and state the basis and 
extent of said interest. 

RESPONSE: All amounts recovered from Defendant 
Employer in this litigation will be received directly by 
Mr. Baker based on his charge of discrimination against 
Defendant Employer. Mr. Baker’s address and tele- 
phone number are: 

Eric Scott Baker 
106 Oakdale Street 
Gaston, S.C. 29053 
Telephone: 803/926-8652 

7. State the time you estimate it will take you to 
complete discovery. Explain if appropriate. 

RESPONSE: 180 days. 

8. As to each claim, state whether it should be tried 
jury or nonjury and why. 

RESPONSE: The Commission’s claim arises under 
the Americans with Disabilities Act of 1990, as 
amended by the Civil Rights Act of 1991, 42 U.S.C. 
§ 1981a, et al. Pursuant to section 1981a(c) of the Civil 
Rights Act of 1991, the Commission is entitled to trial 
by jury of the ADA claim because compensatory and 
punitive damages are sought by the Commission on 
behalf of Mr. Baker. The Commission has timely 
requested a jury trial in this case. 

53 

9. If the plaintiff is a publicly-owned entity, or a 
partner, parent, subsidiary or affiliate of a publicly- 
owned entity, list the identity of the publicly-owned 
entity and its relationship to plaintiff. If there is a 
publicly-owned entity not a party to the case that has a 
significant financial interest in the outcome, identify 
such entity and the nature of the financial interest. 

RESPONSE: Not applicable. 

10. State the basis for asserting your claim in the 
division in which it was filed. 

RESPONSE: The discriminatory actions alleged in 
the complaint against Defendant Employer occurred at 
Defendant Employer’s principal place of business in 
West Columbia, South Carolina, within the venue of the 
Columbia Division of the United States District Court 
for the District of South Carolina. 

11. Do you want a mediation conference to be sched- 
uled in this case? If so, when? 

RESPONSE: The Commission attempted unsuccess- 
fully to conciliate with Defendant Employer on behalf of 
Mr. Baker prior to initiating this action. The Com- 
mission does not believe that mediation efforts would 

54 

be beneficial, and thus, does not request a mediation 
conference at this time. 

9-4-96 

DATE Respectfully submitted, 

C. GREGORY STEWART 

General Counsel 

ROSALIND GRAY 

Deputy General Counsel 

/s/ MINDY E. WEINSTEIN 

MINDY E. WEINSTEIN 
Regional Attorney 

/s/ ROSEMARY J. FOX 

ROSEMARY J. FOX 
Supervisory Trial Attorney 

/s/ DAVID R. TREETER 

DAVID R. TREETER 
Senior Trial Attorney 

EQUAL EMPLOYMENT 

OPPORTUNITY COMMISSION 

129 West Trade Street 
Suite 400 
Charlotte, NC 28202 
(704) 344-6886 

55 

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF SOUTH CAROLINA 

COLUMBIA DIVISION 

CIVIL ACTION No. 3: 96-2739-10BC 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PLAINTIFF 

v. 

WAFFLE HOUSE, INC., DEFENDANT 

[Filed: Dec. 2, 1996] 

AFFIDAVIT OF J. MICHAEL UPTON 

I, J. Michael Upton, having been duly sworn by an 
officer authorized to administer oaths, deposes and 
states as follows: 

1. 

I am over twenty-one years of age and competent to 
testify to the matters contained herewith. This 
affidavit is based on my personal knowledge of the facts 
contained herein. 

2. 

I am currently employed as Vice President and Gen- 
eral Counsel of Waffle House, Inc. (“Waffle House”), 
and I am familiar with the corporate structure and the 
rules and procedures of Waffle House. The document 
attached to this affidavit is a record made as a regular 
part of Waffle House’s business activity and is kept by 

56 

Waffle House in the course of its regularly conducted 
business activities. 

3. 

Waffle House is based in Norcross, Georgia, and 
operates a multi-state chain of restaurants. 

4. 

Waffle House purchases food products, advertising 
and many other products and services from vendors 
throughout the United States. 

5. 

All prospective Waffle House employees are required 
to complete and sign a Waffle House employment 
application prior to being hired. 

6. 

Waffle House’s employment application contains a 
provision requiring all disputes between the employee 
signing the application and Waffle House to be sub- 
mitted to arbitration. 

7. 

Eric Scott Baker (“Baker”) completed an application 
for employment with Waffle House on or about June 23, 
1994. 

8. 

A true and correct copy of the Waffle House employ- 
ment application executed by Baker is attached hereto 
as Exhibit “A”. 

57 

9. 

The claims alleged by the Equal Employment 
Opportunity Commission on behalf of Baker in this civil 
action are within the scope of potential controversies 
with Waffle House that Baker agreed to submit to 
arbitration. 

FURTHER AFFIANT SAYETH NOT. 

/s/ J. MICHAEL UPTON 

J. MICHAEL UPTON 

Sworn to and subscribed 
before me this 25th day 
of November, 1996. 

/s/ DEBORAH M. MURPHY 

Notary Public 

My commission expires: 
Notary Public, DeKolb County, Georgia 
My Commission Expires Jan. 23, 1998 
[seal omitted] 

59 

61 

63 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF SOUTH CAROLINA 
COLUMBIA DIVISION 

CIVIL ACTION No. 3:96 2739-10BC 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PLAINTIFF 

v. 

WAFFLE HOUSE, INC., DEFENDANT 

AFFIDAVIT OF ERIC SCOTT BAKER 

Eric Scott Baker being first duly sworn, on oath, 
deposes and states as follows: 

1. I am a graduate of Swansea High School in 
Swansea, South Carolina, and I have had no post- 
secondary education or formal training. 

2. On June 23, 1994, I went to the Waffle House 
facility at I-26 and S.C. 302, in Columbia, South Caro- 
lina, and completed a Waffle House Application for 
Employment. I was twenty years of age at that time. 

3. I completed the Waffle House Application for 
Employment while I was sitting in a booth at the 
restaurant. 

4. A manager was sitting with me while I com- 
pleted the application form. 

5. The manager asked me questions regarding my 
transportation to work and the expected wage rate. 

64 

6. I was given a math test while I was at the 
restaurant, and the manger graded the test. 

7. The manager did not point out any arbitration 
provision on the application form. 

8. I believed that I was completing and submitting 
a standard application form; I did not notice or read on 
the application form any provision for arbitration. 

9. The manager did not mention arbitration, nor 
did he mention anything about the way disputes were 
settled between the company and employees. 

10. The manager hired me; however, I subsequently 
declined the job offer. 

11. A few weeks after the job offer, I spoke with 
Mike Bradley, manager of another nearby Waffle 
House, Unit #446 in West Columbia, South Carolina, 
and Bradley offered me a job at Unit #446, which I 
accepted. 

12. I did not have to reapply or take another math 
test when I was offered the job at Unit #446. 

13. Mike Bradley did not mention arbitration, nor 
did he mention anything about the way disputes were 
settle between the company and employees. 

14. While I worked at Unit #446, I was paid $5.50 an 
hour. 

15. I have now been shown a copy of the application 
form which I submitted to Waffle House, and I have 
read the four lines of print at the bottom of the first 
page, which mention arbitration. 

65 

16. I do not understand what the arbitration provi- 
sion means. Specifically, I do not understand how it 
relates to my charge of discrimination against Waffle 
House. 

17. Waffle House gave me a separation notice, a true 
and correct copy of which is attached hereto as Exhibit 
A. 

Further affiant sayeth not. 

/s/ ERIC SCOTT BAKER 

ERIC SCOTT BAKER 

Subscribed and sworn to before me 
this 23 day of December, 1996. 

/s/ CINDY J. MUNCK 

CINDY J. MUNCK 
Notary Public 

My commission expires: 1-10-2000