Gonzales v. Sitel Operating Corporation

• Court: District Court, D. Nevada
• Decided: January 7, 2020
• Docket: 2:19-cv-00876
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 MARGARET GONZALES, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-00876-GMN-VCF 5 vs. ) ) ORDER 6 SITEL OPERATING CORPORATION, a ) 7 Delaware Corporation, ) ) 8 Defendant. ) ) 9 10 Pending before the Court is the Motion to Compel Arbitration, (ECF No. 11), filed by 11 Defendant Sitel Operating Corporation (“Defendant”). Plaintiff Margaret Gonzalez 12 (“Plaintiff”) filed a Response, (ECF No. 13), and Defendant filed a Reply, (ECF No. 15). For 13 the reasons discussed below, the Court GRANTS in part and DENIES in part Defendant’s 14 Motion to Compel Arbitration. 15 I. BACKGROUND 16 Plaintiff was Defendant’s employee between January 30, 2017, to September 1, 2018, 17 working as a Customer Service Representative. (First. Am. Compl. (“FAC”) ¶¶ 7, ECF No. 7). 18 However, on February 9, 2018, Plaintiff was involved in an auto accident, which caused 19 significant injuries to her shoulder, hands, and wrists. (Id. ¶ 8). These injuries, according to 20 Plaintiff, rendered her unable to perform the essential functions of her work. (Id. ¶ 10). 21 Consequently, she requested roughly three months off from work through the Family and 22 Medical Leave Act, which Defendant approved. (Id.). Her injuries persisted, so Plaintiff 23 requested additional time off through the Americans with Disabilities Act, 42 U.S.C. § 12101, 24 et seq. (“ADA”). (Id. ¶ 12). Defendant initially approved her request for continued leave, but 25 eventually terminated her effective September 1, 2018. (Id. ¶ 15). 1 On May 23, 2019, Plaintiff commenced this case by filing her Complaint, which she 2 amended on June 12, 2019, alleging that Defendant’s conduct violated the ADA. (Id. ¶¶ 1, 16– 3 29). Two months after Plaintiff filed her initial Complaint, Defendant moved to compel 4 arbitration of all her claims. (Mot. Compel, ECF No. 11). The basis for compelling arbitration 5 purportedly arises from an agreement that Plaintiff electronically executed with Defendant on 6 February 7, 2017, as a condition of employment. (Id. 3:3–13). The relevant portion of the 7 purported agreement states, 8 Any controversy, claim, or dispute relating to my employment or the termination of my employment with the Company shall be resolved through the Company’s 9 Open Door communications Policy, and if that procedure fails, then by final 10 binding arbitration pursuant to the National Rules for the Resolution of Employment Disputes of the American Arbitration Association . . . . This 11 section applies, as permitted by law, to any claims under any statute or common law, including but not limited to . . . the Americans with Disabilities Act . . . . 12 13 (Associate Agreement, Ex. A-1 to Mot. Compel, ECF No. 11-3); (Pl.’s Electronic Signature 14 Page to Associate Agreement, Ex. A-2 to Mot. Compel, ECF No. 11-4). Plaintiff claims that 15 she never executed the agreement and, therefore, is not bound by it. 16 II. LEGAL STANDARD 17 Section 2 of the Federal Arbitration Act (“FAA”) provides that: 18 A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or 19 transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 20 21 9 U.S.C. § 2. “In enacting § 2 of the [FAA], Congress declared a national policy 22 favoring arbitration and withdrew the power of the states to require a judicial forum for the 23 resolution of claims which the contracting parties agreed to resolve by arbitration.” Southland 24 Corp. v. Keating, 465 U.S. 1, 10 (1984). Courts place arbitration agreements “upon the same 25 1 footing as other contracts.” Volt Info. Sciences, Inc. v. Bd. of Trs. of Leland Stanford Junior 2 Univ., 489 U.S. 468, 478 (1989). 3 Under the FAA, parties to an arbitration agreement may seek an order from the Court to 4 compel arbitration. 9 U.S.C. § 4. The FAA “leaves no place for the exercise of discretion by a 5 district court, but instead mandates that district courts shall direct the parties to proceed to 6 arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter 7 Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985). Thus, the Court’s “role under the [FAA] is . . 8 . limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) 9 whether the agreement encompasses the dispute at issue.” Lee v. Intelius, Inc., 737 F.3d 1254, 10 1261 (9th Cir. 2013). If a district court decides that an arbitration agreement is valid and 11 enforceable, then it should either stay or dismiss the claims subject to arbitration. Nagrampa v. 12 MailCoups, Inc., 469 F.3d 1257, 1276–77 (9th Cir. 2006). 13 III. DISCUSSION 14 A. Arbitrability 15 The Court’s role begins with the threshold issue of determining whether an arbitration 16 agreement exists between Plaintiff and Defendant. Three Valleys Mun. Water Dist. v. E.F. 17 Hutton & Co., 925 F.2d 1136, 1141 (9th Cir. 1991). Because an agreement to arbitrate is a 18 matter of contract, courts “generally . . . apply ordinary state-law principles that govern the 19 formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). 20 Nevada courts have explained that the “Uniform Arbitration Act of 2000 (UAA), 21 adopted in Nevada as Nevada Revised Statute 38.206–.248, does not require any particular

22 formality to create an enforceable arbitration agreement”; and an enforceable arbitration 23 agreement can arise in circumstances where a party’s signature is not required. See Tallman v. 24 Eighth Jud. Dist. Ct., 359 P.3d 113, 119 (Nev. 2015) (“While NRS 38.219(1) requires that the 25 arbitration agreement be ‘contained in a record,’ it does not require that the written record of 1 the agreement to arbitrate be signed.”); U.S. Home Corp. v. Michael Ballesteros Tr., 134 Nev. 2 180, 182 (2018). Even so, as the party seeking to compel arbitration pursuant to the FAA, 3 Defendant bears the burden of proving that a valid agreement exists between it and Plaintiff. 4 Wilson v. Huuuge, Inc., No. 18-36017, 2019 WL 6974430, at *3 (9th Cir. Dec. 20, 2019); 5 Obstetrics & Gynecologists William G. Wixted, M.D., et al. v. Pepper, 693 P.2d 1259, 1260 6 (Nev. 1985); see also Nev. Rev. Stat. 38.219(2) (“The court shall decide whether an agreement 7 to arbitrate exists.”). Moreover, “when considering a motion to compel arbitration which is 8 opposed on the ground that no agreement to arbitrate had been made between the parties, [the 9 Court] should give to the opposing party the benefit of all reasonable doubts and inferences that 10 may arise.” Mwithiga v. Uber Techs., Inc., 376 F. Supp. 3d 1052, 1059 (D. Nev. 2019) (quoting 11 Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1141 (9th Cir. 1991)). 12 Here, Defendant moves to compel arbitration of this dispute on the basis that Plaintiff 13 electronically signed and executed an arbitration agreement as a condition of her employment, 14 which encompasses Plaintiff’s claims arising under the ADA. Plaintiff, however, claims her 15 electronic signature was a forgery. (Resp. 5:26–6:8, ECF No. 13). She adds that Defendant 16 offers no evidence showing an electronic signature came from her computer or online employee 17 account; and thus, Defendant has not adequately proven Plaintiff’s consent to arbitrate her 18 claims. (Id. 5:14–25). 19 Upon review of the submitted evidence, the Court finds that Defendant adequately 20 establishes Plaintiff’s execution of an arbitration agreement encompassing her ADA-based 21 claims. The Court preliminarily notes that electronic signature and execution of an arbitration

22 agreement is not a bar to enforcement. See Mwithiga v. Uber Techs., Inc., 376 F. Supp. 3d 23 1052, 1059 (D. Nev. 2019). Accordingly, turning to Defendant’s evidence, Defendant explains 24 the online procedures that it used when hiring Plaintiff—procedures that Defendant uses with 25 all new employees hired after 2012. Specifically, Defendant created an online “Efficient Hire 1 Profile” (the “Profile”) for Plaintiff after it extended a conditional offer of employment. (Decl. 2 Kimberly Bacci ¶¶ 4–5, Ex. A to Reply, ECF No. 15-2). Defendant then sent a registration link 3 to a personal email provided by Plaintiff, where Plaintiff could access her Profile and had to 4 create a unique password and PIN. (Id. ¶¶ 4–6). 5 To prove that Plaintiff operated the Profile and followed its online procedures, 6 Defendant produces a “Document Electronic Signature Certificate.” This Signature Certificate 7 reveals Plaintiff’s Profile entering confidential information on February 7, 2017, such as a 8 social security number, residence, and banking information. (Document Electronic Signature 9 Certificate, Ex. A-7 to Reply, ECF No. 15-9). That same date is also associated with Plaintiff’s 10 Profile accessing employment documents about Defendant’s policies and practices, employee 11 rights, and, most importantly, the “Associate Agreement” containing the arbitration provision at 12 issue here. (Decl. Kimberly Bacci ¶ 11). According to a declaration provided by Kimberly 13 Bacci (a “Global Director HR System” with Defendant), and as detailed in the Signature 14 Certificate, Plaintiff had to click “yes” acknowledging her electronic review of Defendant’s 15 employment documents and her agreement with them. (Id.). The Profile would eventually have 16 prompted Plaintiff to electronically sign all employment forms and documents by providing the 17 designated PIN she created. (Id. ¶¶ 13–14). Only by entering this PIN would her name be 18 affixed on employment documents with a related timestamp. (Id.). And in alignment with this 19 process, Defendant points to Plaintiff’s electronic name printed on an “Associate Agreement,” 20 which contains the relevant arbitration provision, alongside a time stamp of February 7, 2017. 21 (eSigned Documents at 4, Ex. A-11 to Reply, ECF No. 15-13); (Document Electronic Signature

22 Certificate, Ex. A-7); (Associate Agreement, Ex A-1 to Mot. Compel, ECF No. 11-3); (Pl.’s 23 Electronic Signature Page to Associate Agreement, Ex. A-2 to Mot. Compel, ECF No. 11-4). 24 The evidence provided by Defendant resembles that which led other courts in this 25 District to compel arbitration for a party denying online execution of an agreement. See Moses 1 v. Lending Club, No. 2:17-cv-03071-JAD-PAL, 2019 WL 489092, at *3 (D. Nev. Feb. 6, 2 2019). Moreover, when faced with Defendant’s evidence, Plaintiff does not claim that her 3 online account was fraudulently created by someone else. Nor does she argue against 4 personally completing Defendant’s online procedures to secure employment, or claim she did 5 not receive a copy of Defendant’s Associate Agreement related to her hire on January 30, 2017. 6 She, instead, contends that her signature agreeing to arbitration must have been “forged on the 7 contract” and “placed in the business records of Defendant.” (Resp. 5:4–10). However, this 8 contention alone is insufficient to refute Defendant’s provided evidence. Cf. Jaffey v. Del Taco 9 Restaurants, Inc., No. 2:17-cv-2600-JCM-PAL, 2018 WL 3997261, at *2 (D. Nev. Aug. 21, 10 2018) (finding the plaintiff’s contentions that he had no recollection of reviewing an arbitration 11 agreement or providing an electronic signature was sufficiently refuted by the defendant’s 12 evidence proving “he alone had access to the contract” through an online profile for securing 13 employment). 14 Defendant thus demonstrates that a valid, written arbitration agreement exists between it 15 and Plaintiff. While the next step would be determining if the agreement encompasses 16 Plaintiff’s claims, Plaintiff does not present argument on this issue. Even if she did, the 17 arbitration agreement expressly covers claims such as hers arising under the ADA. (Def.’s 18 Associate Agreement, Ex. A-1 to Mot. Compel, ECF No. 11-3). 19 B. Dismissal 20 Because Plaintiff’s claims are subject to arbitration, the Court may stay this case 21 pending resolution of arbitration or dismiss it without prejudice. See 9 U.S.C. § 3; Sparling v.

22 Hoffman Const. Co., 864 F.2d 635, 638 (9th Cir. 1988) (explaining that a court has the 23 authority to dismiss an action that is properly suited for arbitration). Neither party addresses 24 how dismissal without prejudice, rather than retaining oversight through a stay, is inappropriate 25 or detrimental. Instead, dismissal seems justified here because there are no remaining issues 1 that would require the Court’s attention after compelling arbitration. Accordingly, the Court 2 dismisses Plaintiff’s current claims without prejudice. See, e.g., Krogstadt v. Loan Payment 3 Administration, LLC, 2017 WL 6210314, at *1 (D. Nev. Apr. 13, 2017). 4 C. Attorney’s Fees 5 Alongside its request to compel arbitration, Defendant seeks attorney’s fees in bringing 6 this Motion. Defendant supports its request by pointing to the strong evidentiary support for 7 Plaintiff’s execution of the binding agreement. (Mot. Compel 9:1–10). Also, Defendant 8 provides a declaration from one of its attorneys in this matter, Dana B. Salmonson, explaining 9 that Defendant attempted to avoid unnecessary motion practice and delay by proposing a 10 stipulation to Plaintiff about arbitrating her claims. (Decl. Dana Salmonson ¶¶ 4–6, Ex. B. to 11 Mot. Compel, ECF No. 11-5). But Plaintiff denied this stipulation. (Id.). Her counsel claimed 12 that he successfully defeated a motion to compel arbitration in another matter, and he sought to 13 produce the same result here. (Id.). 14 The Ninth Circuit has held that an award of attorney’s fees “is appropriate when a party 15 frivolously or in bad faith refuses to submit a dispute to arbitration.” United Food & 16 Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1383 (9th Cir. 1984). For 17 example, one court in this circuit awarded attorney’s fees where the party opposing arbitration 18 cited “virtually no legal authority for its positions,” argued against a “long line” of binding 19 authority on the issue, and “dragged out” the dispute over an extended period of time by failing 20 to timely respond to the complaint and repeated requests for arbitration. Gen. Teamsters Local 21 No. 174 v. Nw. Infrastructure, Inc., No. C06-1122P, 2007 WL 185012, at *4 (W.D. Wash. Jan.

22 19, 2007). Decisions in this District have awarded fees when presented with similar 23 circumstances. In Int'l Union of Painters Allied Trades Dist. Council Local No. 15 v. 24 Diversified Flooring Specialist, Inc., No. 2:06-cv-0358-RLH-PAL, 2007 WL 923936, at *6 (D. 25 Nev. Mar. 23, 2007), the court awarded attorney’s fees upon finding that the party opposing 1 arbitration ignored controlling caselaw and used dilatory tactics by repeatedly refusing 2 arbitration requests—even when supported by uncontradicted evidence—resulting in years of 3 delay before the Court ultimately granted the petition to compel arbitration. Id. 4 Here, the Court does not find that Plaintiff engaged in frivolous or bad-faith conduct 5 warranting reimbursement of Defendant’s attorney’s fees. Though Defendant’s evidence 6 adequately establishes Plaintiff’s execution of the arbitration agreement, Plaintiff’s arguments 7 did not ignore binding caselaw. She merely challenged the sufficiency of Defendant’s 8 evidentiary support. Moreover, Plaintiff’s refusal to stipulate into arbitration does not appear 9 entirely devoid of justification. Defendant supported its requested stipulation with only a type- 10 written version of Plaintiff’s name on the Associate Agreement. (See June 6, 2019 11 Correspondence from Def’s Counsel to Pl’s Counsel, Ex. B-1 to Mot. Compel, ECF No. 11-6). 12 Plaintiff’s refusal to stipulate after this single request, and her later strategy of challenging 13 Defendant’s evidentiary support, differ substantially from that discussed in the above-cited 14 cases involving repeated rejections to arbitrate despite controlling caselaw and clear, 15 uncontroverted evidence. 16 IV. CONCLUSION 17 IT IS HEREBY ORDERED that Defendant’s Motion to Compel Arbitration, (ECF No. 18 11), is GRANTED in part and DENIED in part. The Court dismisses Plaintiff’s claims 19 because they are subject to a binding arbitration agreement. The Court, in exercising its 20 discretion to dismiss the case, declines to award Defendant attorney’s fees in bringing its 21 Motion to Compel Arbitration.

22 The Clerk of Court shall close the case. 23 DATED this __7___ day of January, 2020. 24 ___________________________________ 25 Gloria M. Navarro, District Judge United States District Court