UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ASHMATU BANGURA,
Plaintiff,
v. Civil Action No. 23-2987 (TJK)
VITA SURGICAL GROUP, LLC et al.,
Defendants.
MEMORANDUM OPINION & ORDER
Ashmatu Bangura, a former employee of Vita Surgical Group, LLC, sued her employer
and Dr. Henok Araya, her boss, for unpaid overtime wages and backpay. Defendants move to
compel arbitration and to dismiss the case, pointing to an agreement that required Bangura to ar-
bitrate her employment-related claims. The parties disagree as to whether Bangura’s threshold
challenges to the agreement to arbitrate are themselves subject to arbitration. Bangura is right that
the Court must decide these arbitrability challenges. But Defendants are right that Bangura’s chal-
lenges fail, to the extent they seek to render the agreement invalid or unenforceable. Thus, the
Court will grant the motion to compel and stay the case while the parties pursue arbitration. But
before doing so, it will sever two unenforceable provisions of the agreement.
I. Background
Bangura worked as a “Front Desk/Office Coordinator” at Vita Surgical Group from about
April to August 2023. ECF No. 1 ¶ 8. She was paid by the hour at $23 per hour. Id. ¶ 9. She
alleges that she regularly worked hours for which she was not compensated at all. Id. ¶ 10. More-
over, despite working about 51 hours of overtime during her employment, she says she was only
compensated for this time at her regular $23 per hour rate, rather than the overtime rate of $34.50. Id. She further alleges that Defendants failed to pay her for her final two weeks of employment.
Id. ¶ 11. In total, Bangura claims that Defendants owe her $2,289.58 in unpaid overtime and back-
pay wages. Id. ¶ 31.
When Bangura started working at Vita Surgical Group, she signed a document titled
“VITA SURGICAL, LLC AND DR. HENOK ARAYA, MD CONFIDENTIAL NON-DISCLO-
SURE AND EMPLOYEMENT [sic] AGREEMENT.” ECF No. 9-1 at 2. This document, which
the Court refers to as the Employment Agreement, also includes an arbitration provision, which
provides that “ALL DISPUTES IN REGARDS TO YOUR EMPLOYMENT . . . BETWEEN
YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION ACCORDING TO THE
FAA,” and references the “Attached standard arbitration procedures.” 1 Id. at 5. Attached to the
Employment Agreement was a two-page document titled, “Standard provisions: Resolving em-
ployer and employee dispute with Mandatory Arbitration,” which describes the arbitration proce-
dures, id. at 7–8, and which the Court refers to as the Arbitration Agreement.
The Arbitration Agreement states that “[a]ny dispute . . . that involves Washington vita
surgical group or vita surgical group or its employee or doctors or dr araya must be resolved with
arbitration except as noted below.” ECF No. 9-1 at 7. It then explains that the employee will not
be required to arbitrate “(1) any individual case in small claims court so as it remains an individual
case in that court and you are pro-se; or (2) a case we file to collect money you owe us.” Id. It
further exempts from arbitration “[a]ny breach of the confidential non-disclosure agreement.” Id.
The Arbitration Agreement includes a section titled, in bold, “What claims are subject to
arbitration.” ECF No. 9-1 at 7 (emphasis in original). A list of four numbered items follows.
The first item sets out the requirement to submit disputes to arbitration: “If either you or we make
1 The “FAA” is a reference to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
2 a demand for arbitration, you and we must arbitrate any dispute or claim.” Id. The fourth item,
which the parties agree is a delegation clause, reads:
Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence ). [sic] However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
Id. Immediately below the fourth item is a heading reading “No Class Actions,” under which an
unnumbered paragraph reads:
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR AR- BITRATION. YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANYONE.
Id. That paragraph is followed by two other unnumbered paragraphs elaborating on the restriction
on class action proceedings. See id. Below that, a bolded heading, with a bullet, states, “How to
start an arbitration, and the arbitration process,” which is then followed by another numbered
list. Id. at 7–8 (emphasis in original). Within that list, the Arbitration Agreement provides that
“[t]he party seeking arbitration must select an arbitration administrator, which cannot be the
American Arbitration Association or JAMS,” and that “[t]he arbitration administrator will appoint
the arbitrator” who must be “a lawyer with at least ten years of legal experience.” ECF No. 9-1 at
7–8 (emphasis in original). The Arbitration Agreement requires the arbitrator to “apply the same
law and legal principles, consistent with the FAA, that would apply in court.” Id. at 8.
Finally, the Arbitration Agreement addresses the issue of fees and costs. With respect to
legal fees, it instructs that “[e]ach party is responsible for its legal fees unless a motion to compel
arbitration is granted then the losing party pays the other party’s full legal fees.” ECF No. 9-1 at
8. And with respect to the arbitration fees, it provides that “[i]nitial arbitration and arbitration
3 administrator fees and retainer fees are paid by the plaintiff. After the depletion of the retainer
fees, the arbitrator’s and arbitrator administrator’s fees are divided equally between both parties.
Arbitrator does not have the discretion to award legal or arbitrator fees.” Id. The Arbitration
Agreement concludes with the following sentence: “You cannot reject this Arbitration section
of your Agreement after employment commences.” Id. (emphasis in original).
Bangura sued Defendants for allegedly violating the Fair Labor Standards Act (“FLSA”),
the District of Columbia Minimum Wage Act Revision Act of 1992 (“DCMWA”), and the District
of Columbia Wage Payment and Collection Law (“DCWPCL”). ECF No. 1 at 1; see also 28
U.S.C. § 1 et seq. (FLSA); D.C. Code § 32-1001 et seq. (DCMWA); D.C. Code § 32–1301 et seq.
(DCWPCL). Defendants move to compel arbitration and to dismiss. ECF Nos. 9, 24. They argue
that Bangura agreed to submit her claims to mandatory arbitration, and that she agreed to delegate
her challenges to the Arbitration Agreement to the arbitrator. See generally ECF No. 24. In re-
sponse, Bangura says that she did not agree to delegate arbitrability to the arbitrator—this Court
should undertake that task—and that the arbitration clause is invalid or unenforceable for several
reasons. See generally ECF No. 25.
II. Legal Standard
By enacting the Federal Arbitration Act, Congress adopted “a liberal federal policy favor-
ing arbitration agreements, notwithstanding any state substantive or procedural policies to the con-
trary.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Arbitration
is a matter of contract. The FAA provides that an arbitration agreement “shall be valid, irrevoca-
ble, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. A court must stay litigation “upon being satisfied that the issue” is “ref-
erable to arbitration” under the agreement. Id. § 3. A court, in response to a motion from a party
resisting arbitration, must compel arbitration “in accordance with the terms of the agreement”
4 when the court is “satisfied that the making of the agreement for arbitration or the failure to comply
therewith is not in issue.” Id. § 4. When presented with such a motion, the court should be mindful
that the FAA creates a strong presumption favoring the enforcement of arbitration agreements, and
that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitra-
tion.” Moses H. Cone, 460 U.S. at 24–25.
Courts consider motions to compel arbitration as “a request for summary disposition of the
issue of whether or not there had been a meeting of the minds on the agreement to arbitrate.”
Aliron Int’l, Inc. v. Cherokee Nation Indus., 531 F.3d 863, 865 (D.C. Cir. 2008) (cleaned up).
“Although a motion to compel arbitration is similar to a motion for summary judgment in framing
the burden of proof, the two motions are of course not identical.” Jin v. Parsons Corp., 966 F.3d
821, 827 (D.C. Cir. 2020). In considering a motion to compel arbitration, the court must consider
arbitrability at the outset of litigation; it “cannot postpone deciding the question of arbitrability vel
non and allow the case to proceed on the merits.” Id.
“Because the party seeking to enforce an arbitration agreement bears the burden of proving
that the other party agreed to arbitrate, the party seeking to compel arbitration must first present
evidence sufficient to demonstrate an enforceable agreement to arbitrate.” Osvatics v. Lyft, Inc.,
535 F. Supp. 3d 1, 9 (D.D.C. 2021) (internal citations and quotation marks omitted). “The burden
then shifts to the non-moving party to raise a genuine issue of material fact as to the making of the
agreement, using evidence comparable to that identified in Rule 56.” Id. (internal citations and
quotation marks omitted). “The court must grant summary judgment with respect to the formation
of an arbitration agreement if the pleadings and the evidence show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id.
(internal citations and quotation marks omitted). But if the court concludes that a “genuine dispute
5 of material fact exists as to the making of the arbitration agreement, including whether the parties
assented to the agreement,” the case must “proceed summarily to trial solely on the issue of arbi-
trability.” Jin, 966 F.3d at 827 (internal quotations omitted).
III. Analysis
In opposing arbitration, Bangura does not question whether the parties formed an agree-
ment to arbitrate, an issue that would unquestionably be reserved for the Court, not an arbitrator,
to decide. See Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 296 (2010); 9 U.S.C.
§ 4. Instead, she argues that the Court should deny the motion to compel because the Arbitration
Agreement is invalid or unenforceable for several reasons: (1) it requires her to pay some of the
arbitrator’s fees, making it per se invalid; (2) it is procedurally and substantively unconscionable;
and (3) it requires her to forgo substantive statutory rights by prohibiting her recovery of attorneys’
fees. In general, “a gateway dispute about whether the parties are bound by a given arbitration
clause raises ‘a question of arbitrability’ for a Court to decide.’” Howsam v. Dean Witter Reynolds,
Inc., 537 U.S. 79, 84 (2002) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943–946
(1995)). In response, though, Defendants say that under the Arbitration Agreement’s delegation
clause—which Bangura does not separately challenge—these issues must be decided by the arbi-
trator. The Court finds that the delegation clause does not come close to clearly and unmistakably
reflecting the intent of the parties that an arbitrator should decide these arbitrability issues. So the
Court must resolve them. That said, none of Bangura’s arguments provide a reason to invalidate
the Arbitration Agreement. Thus, the Court will grant the motion to compel arbitration and stay
the case, while striking two unenforceable provisions of that agreement.
6 A. Because the Delegation Clause Does Not Reflect a Clear and Unmistakable In- tent to Delegate Bangura’s Arbitrability Challenges to the Arbitrator, This Court Must Decide Them
“A delegation clause is a clause within an arbitration provision that delegates to the arbi-
trator gateway questions of arbitrability, such as whether the agreement covers a particular con-
troversy or whether the arbitration provision is enforceable at all.” Caremark, LLC v. Chickasaw
Nation, 43 F.4th 1021, 1029 (9th Cir. 2022) (citing Rent-A-Center, W., Inc. v. Jackson, 561 U.S.
63, 68–69 (2010). The FAA “allows parties to agree by contract that an arbitrator, rather than a
court, will resolve threshold arbitrability questions as well as underlying merits disputes.” Henry
Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65 (2019). “But the Supreme Court has
‘added [the] important qualification’ that there must be ‘clear and unmistakable’ evidence that ‘the
parties agreed to arbitrate arbitrability.’” Caremark, 43 F.4th at 1029 (quoting First Options of
Chi., 514 U.S. at 944).
Recall the delegation clause at issue here:
Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence ). [sic] However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
ECF No. 9-1 at 7.
The Court agrees with Bangura that the delegation clause does not provide clear and un-
mistakable evidence that the parties agreed to delegate her arbitrability claims to the arbitrator. On
the one hand, Bangura is right that the first sentence of the delegation clause can plausibly be read
to reserve questions of arbitrability for the Court. Indeed, it is possible to read the meaning of
“section” in the clause’s first sentence as applying to all numbered items in the list under the head-
ing “[w]hat claims are subject to arbitration.” See id. That includes the first item in the list,
7 which sets out the requirement to send employment-related disputes to arbitration—in other words,
as Bangura agues, arbitrability. Even more plausibly, the word “section” could mean the entire
Arbitration Agreement. That term—“section”—is employed in the Arbitration Agreement on sev-
eral occasions to refer to that entire two-page document. For example, the Arbitration Agreement
begins, “PLEASE READ THIS SECTION CAREFULLY. THIS SECTION WILL APPLY TO
ALL DISPUTES,” and ends, “You cannot reject this Arbitration section of your Agreement after
employment commences.” Obviously, if “section” is read to mean the entire Arbitration Agree-
ment, that would suggest the parties intended that the Court decide Bangura’s arbitrability claims.
All the above, taken together, is substantial evidence that the parties did not intend to delegate
arbitrability to the arbitrator. On the other hand, though, Defendants’ argument that the word
“section” encompasses only the unnumbered paragraphs following it about class actions is at least
possible. If that were so, it would limit the first sentence’s applicability—and thus, this Court’s
jurisdiction—to disputes concerning the class action waiver. But the meaning of “section” in the
context of this hodgepodge of a document is hard to discern.
If the second sentence of the delegation clause were clear, it might help determine the
meaning of the first. But it too is hard to figure out. Most obviously, it could be read, as Defend-
ants say, to delegate arbitrability—“any dispute or argument that concerns the validity or enforce-
ability of the Agreement as a whole”—to the arbitrator. ECF No. 9-1 at 7; see ECF No. 24 at 4.
But that reading assumes that the word “Agreement” means the Arbitration Agreement, as opposed
to the entire Employment Agreement. If “Agreement” means the Employment Agreement, it
would not delegate arbitrability, but challenges to the validity of that employment contract as a
whole, which do not impact the validity or enforceability of arbitration under the FAA. See Rent-
A-Center, 561 U.S. at 70. And the problem for Defendants is that on several occasions, when the
8 Arbitration Agreement uses the word “Agreement” without further qualifier, it appears to refer to
the Employment Agreement, which suggests that the Employment Agreement is the agreement to
which the second sentence of the delegation clause also refers. For example, as mentioned above,
the document concludes: “You cannot reject this Arbitration section of your Agreement after em-
ployment commences.” ECF No. 9-1 at 8.
For all these reasons, on balance, Bangura has the better of the argument that the delegation
clause reserves arbitrability for the Court, not the arbitrator. But in any event, there is no question
that the clause does not provide “clear and unmistakable evidence” that the parties agreed to dele-
gate arbitrability to the arbitrator. Henry Schein, 586 U.S. at 69. Because the delegation clause
does not meet this standard, the Court proceeds to resolve Bangura’s challenges to the Arbitration
Agreement.
B. Bangura’s Challenges to the Arbitration Agreement Do Not Render It Invalid or Unenforceable, but the Court Will Sever Two Unenforceable Provisions
1. Arbitrator’s Fees
Bangura’s first argument is that the Arbitration Agreement is per se invalid because it re-
quires her to pay part of the arbitrator’s fees. In relevant part, it reads:
Arbitration fees: Initial arbitration and arbitration administrator fees and retainer fees are paid by the plaintiff. After the depletion of the retainer fees, the arbitrator’s and arbitrator administrator ‘s [sic] fees are divided equally between both parties. Arbitrator does not have the discretion to award legal fees or arbitrator fees.
ECF No. 9-1 at 8 (emphasis in original).
In support of this argument, Bangura relies on the D.C. Circuit’s decision in Cole v. Burns
International Security Services, 105 F.3d 1465 (D.C. Cir. 1997). In that case, the Circuit consid-
ered an arbitration agreement that the plaintiff needed to sign as a condition of employment. See
id. at 1469. After concluding that the agreement was valid, the Circuit addressed which party
should bear the arbitration costs, about which the agreement was silent. Id. at 1483. The Circuit
9 held that the plaintiff “could not be required to agree to arbitrate his public law claims as a condi-
tion of employment if the arbitration agreement required him to pay all or part of the arbitrator’s
fees and expenses,” because these fees are unlike anything he would have to pay in court. 2 Id. at
1485. Thus, the Circuit interpreted the agreement as requiring the employer to pay “all of the
arbitrator’s fees necessary for a full and fair resolution of [the plaintiff’s] statutory claims.” Id.
The Circuit has since referred to Cole as standing for a per se rule that “when a federal statutory
claim is subjected to arbitration pursuant to an arbitration agreement executed as a condition of
employment, an employee cannot be required to pay arbitration-related costs that are analogous to
a judge’s salary or expenses in a traditional judicial forum.” LaPrade v. Kidder, Peabody & Co.,
246 F.3d 702, 704 (D.C. Cir. 2001). Not long after, the Circuit reiterated that in Cole it had “held
that an employee who agrees to arbitration of disputes as a condition of employment and who
makes a claim based on federal statutory rights may not be charged certain fees and expenses for
arbitration of the claim.” Brown v. Wheat First Secs., Inc., 257 F.3d 821, 821 (D.C. Cir. 2001).
Defendants, in turn, argue that the Supreme Court’s decision in Green Tree Financial Cor-
poration-Alabama v. Randolph, 531 U.S. 79 (2000), has undermined Cole, and that Cole’s holding
is on “shaky ground.” ECF No. 24 at 6 (quoting Shatteen v. Omni Hotels Mgmt. Corp., 113 F.
Supp. 3d 176, 182 n.3 (D.D.C. 2015)). In that case, in a situation similar to Cole, the Court found
that when “a party seeks to invalidate an arbitration agreement on the ground that arbitration would
be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such
costs.” Green Tree, 531 U.S. at 91–92 (citation modified). The Green Tree Court recognized that
“large arbitration costs could preclude a litigant . . . from effectively vindicating her federal
2 The Circuit in Cole held that plaintiffs may be required to pay arbitration fees analogous to “filing fees and other administrative expenses” which litigants regularly incur in federal district court proceedings. Cole, 105 F.3d at 1484.
10 statutory rights in the arbitral forum.” Id. at 90. Even so, motived by “the liberal federal policy
favoring arbitration agreements,” the Court concluded that silence in an arbitral agreement could
not establish that the litigant would in fact “bear such costs.” Id. at 90–91.
Still, “district judges, like panels of [the D.C. Circuit], are obligated to follow controlling
circuit precedent until either [the Circuit], sitting en banc, or the Supreme Court, overrule[s] it.”
United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997). And Defendants stop short of
arguing that Cole has been overruled, and for good reason: in LaPrade and Brown the Circuit
treated it as good law, and it has never held otherwise. Thus, to the extent that the Arbitration
Agreement requires Bangura to pay “all or part of the arbitrator’s fees and expenses” to vindicate
her federal statutory rights, it is invalid and unenforceable under the law of this Circuit. Cole, 105
F.3d at 1485. That said, Cole did not establish a rule that requires the Court to invalidate the entire
Arbitration Agreement—far from it. And while Green Tree may prohibit the Court from invali-
dating the entire Arbitration Agreement solely because of the arbitration fee provision, the Court
need not do so, because it may—as Defendants urge in the alternative—simply sever the provision
to the extent it runs afoul of Cole. 3
Under District of Columbia law, when faced with an arbitration agreement with an unen-
forceable provision, courts may “decline to enforce the agreement and allow the statutory claims
to proceed in court, or sever the offensive provision and require arbitration under the remainder of
the agreement.” Booker v. Robert Half Int’l, Inc., 413 F.3d 77, 79 (D.C. Cir. 2005) (citation omit-
ted). 4 In deciding whether to sever, courts must give “effect to the intent of the contracting
3 Bangura has not tried to meet her burden under Green Tree to prove that arbitration would be prohibitively expensive for her. 4 The Arbitration Agreement provides that District of Columbia law governs, ECF No. 9- 1 at 8, this action was brought in the District of Columbia, and the parties have “accepted the
11 parties.” Id. at 84. And in Booker, the Circuit cautioned that invalidating an entire agreement was
appropriate in cases where “illegality pervades the arbitration agreement such that only a disinte-
grated fragment would remain after hacking away the unenforceable parts.” Id. at 84–85.
The Court finds that the provision concerning the arbitrator’s fees is severable. The Em-
ployment Agreement contains a severability clause, which reads: “Each provision of this agree-
ment is severable. If a court should find any provision of this Agreement to be unenforceable, all
other provisions of this Agreement shall remain in full force and effect.” ECF No. 9-1 ¶ 17. The
severability clause speaks to “[t]he parties’ intention to make a contract severable,” which in this
case was “clearly expressed in the agreement.” RDP Dev. Corp. v. Shwartz, 657 A.2d 301, 307
n.7 (D.C. 1995). And the Arbitration Agreement is not pervasively infected with illegality such
that it should be invalidated in its entirety.
Bangura argues that the Arbitration Agreement itself does not contain a severability clause.
But the Employment Agreement, which does, explicitly incorporates by reference the Arbitration
Agreement. ECF No. 9-1 ¶ 20. Moreover, the Employment Agreement is the document that Ban-
gura signed. See generally id. So the Court reads the Arbitration Agreement to be an integrated
part of the Employment Agreement, a conclusion further bolstered by passages in the Arbitration
Agreement which refer to the “Arbitration section of your Agreement.” Id. at 8. Thus, the sever-
ability clause applies to “[e]ach provision” of the Arbitration Agreement, including the provision
that addresses the arbitrator’s fees. Id. ¶ 17.
For these reasons, to the extent the arbitrator’s fees provision requires Bangura to pay “all
or part of the arbitrator’s fees and expenses” necessary to vindicate her federal statutory rights,
application of D.C. law by asserting arguments based on D.C. law in their briefs.” Fox v. Comput. World Servs. Corp., 920 F. Supp. 2d 90, 97 (D.D.C. 2013).
12 Cole, 105 F.3d at 1485, the Court will sever it. With this provision severed, Bangura’s first argu-
ment is no reason to find the Arbitration Agreement invalid or unenforceable.
2. Unconscionability
Bangura next argues that the Arbitration Agreement is invalid and unenforceable because
it is unconscionable. Under District of Columbia law, a party seeking to establish a contract as
unconscionable must show “that the contract was both procedurally and substantively unconscion-
able.” Fox v. Comput. World Servs. Corp., 920 F. Supp. 2d 90, 97 (D.D.C. 2013) (citing Urb.
Invs., Inc. v. Branham, 464 A.2d 93, 99 (D.C.1983) and Smith, Bucklin & Assoc., Inc. v. Sonntag,
83 F.3d 476, 480 (D.C. Cir. 1996)). Procedural unconscionability occurs if, considering all the
circumstances of the agreement, “a party lacked meaningful choice as to whether to enter the
agreement.” Id. (citing Urb. Invs., 464 A.2d at 99). Substantive unconscionability exists if the
agreement’s terms “are so outrageously unfair as to shock the judicial conscience.” Id. at 99. To
be substantively unconscionable, the contract must be one that “no man in his senses and not under
delusion would make on the one hand, and as no honest and fair man would accept on the other.”
Id. (citing Hill v. Wackenhut Servs. Int’l, 865 F. Supp. 2d 84, 95 (D.D.C. 2012)).
The Arbitration Agreement is not unconscionable. Starting with procedural unconsciona-
bility, Bangura argues that she lacked any meaningful choice as to whether to enter the Arbitration
Agreement because her employment was conditioned on her accepting it and because she had no
opportunity to bargain or negotiate with respect to its terms. But an inability to negotiate is not
enough to show procedural unconscionability. Under District of Columbia law “[t]he mere fact
that a contract is take-it-or-leave-it does not render a party powerless and without real choice”;
instead, there “must be something more,” such as a “showing that the parties were greatly disparate
in bargaining power, that there was no opportunity for negotiation and that the services could not
13 be obtained elsewhere.” Ruiz v. Millennium Square Residential Ass’n, 156 F. Supp. 3d 176, 181
(D.D.C. 2016) (emphasis in original) (citation omitted); see also Samenow v. Citicorp Credit
Servs., Inc., 253 F. Supp. 3d 197, 205 (D.D.C. 2017). In the employment context, that an agree-
ment “was presented to [an employee] as a condition of employment without further negotiation
does not render it unenforceable.” Fox, 920 F. Supp. 2d at 98 (citing Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 33 (1991)). Bangura tries to conjure up a “gross disparity in bargaining
power” between herself and Defendants because they are “a limited liability company and a well-
educated doctor” and she is an “hourly employee.” ECF No. 25 at 11. That is not enough. “This
was not a contract of adhesion between a powerful corporation and an individual consumer,” Mo-
bile Now, Inc. v. Sprint Corp., 393 F. Supp. 3d 56, 67 (D.D.C. 2019), but a regular employment
agreement between an individual and a small business. Bangura has failed to show any “special
circumstances that would negate her assent to the contract,” Nelson v. Insignia/Esg, Inc., 215 F.
Supp. 2d 143, 151 (D.D.C. 2002) (internal quotations omitted), or show that she lacked a mean-
ingful choice “to simply go deal with someone else,” Ruiz, 156 F. Supp. 3d at 181. 5
3. Attorneys’ Fees
Finally, Bangura argues that the Arbitration Agreement is invalid and unenforceable be-
cause it impermissibly requires her to give up her statutory rights to attorneys’ fees. The Arbitra-
tion Agreement provides that “[e]ach party is responsible for its legal fees unless a motion to com-
pel arbitration is granted then the losing party pays the other party’s full legal fees.” ECF No. 9-1
5 Having found no procedural unconscionability, the Court need not also address substan- tive unconscionability. See Fox, 920 F. Supp. 2d at 97. But it also finds that substantive uncon- scionability—which requires an “egregious situation” in the absence of procedural unconsciona- bility, Mobile Now, Inc. v. Sprint Corp., 393 F. Supp. 3d 56, 68 (D.C. 2019) (citation modified)— is lacking. Nothing in the Arbitration Agreement—even if the terms, on balance, may favor De- fendants—rises to that high standard.
14 at 8. And in the next paragraph, it further instructs that the “[a]rbitrator does not have the discretion
to award legal fees or arbitrator fees.” Id.
Bangura is right, at least insofar as she argues that the above clause is impermissible. “Stat-
utory claims may be subject to agreements to arbitrate, so long as the agreement does not require
the claimant to forgo substantive rights afforded under the statute.” Booker, 413 F.3d at 79 (citing
Gilmer, 500 U.S. at 26 and Cole, 105 F.3d at 1481); see also Morgan v. Sci. Applications Int’l
Corp., 612 F. Supp. 2d 81, 83–84 (D.D.C. 2009) (“Arbitration will be compelled only in those
situations in which it will allow each party the opportunity to fully vindicate his statutory rights.”).
And her claims all arise from statutes that provide for a mandatory award of attorneys’ fees for a
prevailing plaintiff. See 28 U.S.C. § 216(b) (FLSA); D.C. Code § 32-1012(c) (DCMWA); D.C.
Code § 32-1308(a)(1)(A) (DCWPCL); see also Serrano v. Chicken-Out Inc., 209 F. Supp. 3d 179,
194 (D.D.C. 2016). Thus, any provision that limits her ability to vindicate those rights by limiting
her recovery in that way is unenforceable. See Booker, 413 F.3d at 79 (finding arbitration agree-
ment’s ban on punitive damages unenforceable for suit filed under statute which permitted a pu-
nitive damages award).
Again, however, for the same reasons explained above, rather than invalidate the Arbitra-
tion Agreement, the Court will simply sever this provision to the extent that it limits her statutory
right to recover attorneys’ fees.
IV. Conclusion and Order
For all the above reasons, it is hereby ORDERED that Defendants’ Motion to Compel
Arbitration, ECF No. 9, is GRANTED IN PART, to the extent that it requests that the Court
compel arbitration. It is further ORDERED that Defendants’ Motion to Dismiss, ECF No. 24, is
15 DENIED. 6
It is further ORDERED that, to the extent that the two provisions of the Arbitration Agree-
ment identified above require Bangura to pay “all or part of the arbitrator’s fees and expenses” to
vindicate her federal statutory rights, or limit her statutory rights to recover attorneys’ fees, they
are SEVERED from the Arbitration Agreement. It is further ORDERED that Bangura’s claims
against Defendants shall be submitted to arbitration in accordance with the remaining portions of
the Arbitration Agreement. It is further ORDERED that the parties shall file a joint status report
within 14 days of the completion of arbitration.
It is further ORDERED that the case is STAYED until further order of the Court.
SO ORDERED.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: January 8, 2026
6 Instead of dismissing the case, the Court elects to stay it pending the resolution of arbi- tration. 9 U.S.C. § 3; see Gambo v. Lyft, Inc., 642 F. Supp. 3d 46, 56 (D.D.C. 2022).