Carnes v. AT&T Inc et al

Filing 28

MEMORANDUM OPINION AND ORDER - Currently before the court is AT&Ts motion to compel arbitration and stay proceedings. (Doc. 10 ). Because Mr. Carness claims are subject to binding arbitration, the court GRANTS the motion. For the reasons explained above, the court GRANTS AT&Ts motion to compel arbitration and STAYS this proceeding. The court asks the Clerk to ADMINISTRATIVELY CLOSE this case. Signed by Judge Annemarie Carney Axon on 5/28/2019. (KEK)

FILED
2019 May-28 PM 01:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ROBERT WAYNE CARNES

}
}
Plaintiff,
}
}
v.
}
}
AT&T, INC. and AT&T SERVICES, }
INC.,
}
}
}
Defendants.

Case No.: 2:18-cv-01639-ACA

MEMORANDUM OPINION AND ORDER
Plaintiff Robert Wayne Carnes filed this lawsuit, alleging that his former
employer, Defendant AT&T Services, Inc. (“AT&T”), discriminated against him
because of his age in violation of the Age Discrimination in Employment Act
(“ADEA”), as amended by the Older Worker’s Benefit Protection Act (“OWBPA”).
Currently before the court is AT&T’s motion to compel arbitration and stay
proceedings.

(Doc. 10).

Because Mr. Carnes’s claims are subject to binding

arbitration, the court GRANTS the motion. 1

1

Mr. Carnes’s complaint also names AT&T, Inc. as a Defendant. On May 28, 2019, the court
dismissed without prejudice Mr. Carnes’s claims against AT&T, Inc. pursuant to Rule 4(m) of
the Federal Rules of Civil Procedure. (Doc. 27).

I.

BACKGROUND
The court evaluates a motion to compel arbitration, using “a summary-

judgment-like standard.” Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325,
1333 (11th Cir. 2016). The court examines the evidence presented to determine
whether there is a genuine dispute of material fact concerning the formation of an
arbitration agreement.

Id. As a result, the court’s description of the facts will

incorporate evidence submitted to the court outside of the pleadings.
Mr. Carnes was employed by AT&T from January 25, 1995 until AT&T
terminated his employment on October 30, 2017. (Doc. 1 at ¶¶ 7, 15, 29). In late
2011 and early 2012, AT&T adopted and distributed to employees a Management
Arbitration Agreement (“Agreement”), pursuant to which employees and the company
would arbitrate covered disputes. (Doc. 11-4 at ¶ 4; see Doc. 11-1 at 8–11).
The Agreement provides that “any dispute to which this Agreement applies will
be decided by final and binding arbitration instead of court litigation.” (Doc. 11-1 at
8). The Agreement “is governed by the Federal Arbitration Act,” and “applies to any
claim that [employees] have against . . . any AT&T company. . . .” (Id.). Of
relevance to this action, in addition to this general statement regarding how the
Agreement applies, the Agreement states specifically that “covered claims include
without limitation those arising out of or related to your employment relationship, . . .
termination, . . . retaliation, discrimination or harassment and claims arising under the
. . . Age Discrimination in Employment Act.” (Id. at 8–9).
2

On December 1, 2011, AT&T sent an email to Mr. Carnes at his unique
AT&T-provided email address, [e-mail]. (Doc. 11-2 at 4, ¶ 8; Doc. 11-2
at 7; Doc. 11-3 at ¶ 6). The subject heading of the email was titled “Action Required:
Arbitration Agreement.” (Doc. 11-2 at 4, ¶ 8; Doc. 11-2 at 7). The email message
stated, in relevant part:
AT&T has created an alternative process for resolving disputes between
the company and employees. Under this process, employees and the
company would use independent third-party arbitration rather than courts
or juries to resolve legal disputes. Arbitration is more informal than a
lawsuit in court and may be faster.
The decision on whether or not to participate is yours to make. To help
you make your decision, it is very important for you to review the
Management Arbitration Agreement linked to this email. It provides
important information on the process and the types of disputes that are
covered by the Agreement.
Again, the decision is entirely up to you. To give you time to consider
your decision, the company has established a deadline of no later than
11:59 p.m. Central Standard Time on Monday, Feb. 6, 2012 to opt out –
that is, decline participation in the arbitration process – using the
instructions below.
If you do not opt out by the deadline, you are agreeing to the arbitration
process as set forth in the Agreement. This means that you and AT&T
are giving up the right to a court or jury trial on claims covered by the
Agreement.
Instructions for “Opting Out” of the Agreement:
To opt out of the agreement, after you open the attached document,
follow the link provided there to the site where you will be able to
electronically register your decision to opt out.
...

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Important: February 6, 2012 is the deadline to act if you do not wish
to resolve disputes through arbitration.
(Doc. 11-1 at 6) (emphasis in original).
The end of the email message contained a hyperlink that stated “Click here to
review.” (Id.). The email to Mr. Carnes did not generate any type of automated reply
or other message indicating that the email was not delivered. (Doc. 11-4 at ¶¶ 6–8).
According to AT&T’s records, a user who was logged into AT&T’s system
under username RC6701 accessed the Agreement via AT&T’s intranet page on the
same day the email was delivered, December 1, 2011. (Doc. 11-2 at 4–5, ¶¶ 9-10;
Doc. 11-2 at 16; see Doc. 11-1 at 3–4, ¶ 7). RC6701 was a unique user name assigned
to Mr. Carnes, and users could not access the Agreement on the intranet page without
providing a valid AT&T username and password. (Doc. 11-1 at 4, ¶ 9; Doc. 11-5 at
¶¶ 5–6). User RC6701 clicked a button titled “Review Completed” on the intranet
page on which the Agreement was displayed. (Doc. 11-2 at 5, ¶ 11; Doc. 11-2 at 18).
User RC6701 did not opt out of the Agreement. (Doc. 11-5 at ¶¶ 8–10).
On October 5, 2018, Mr. Carnes filed a complaint in this court, alleging that
AT&T discriminated against him because of his age. (Doc. 1).
II.

ANALYSIS
AT&T moves to stay this action and compel arbitration, contending that under

the Federal Arbitration Act (“FAA”), Mr. Carnes must arbitrate his claims against the
company. (Doc. 11 at 9).

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The FAA states that a written agreement to arbitrate is “valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of
any contract.” 9 U.S.C. § 2. In determining whether parties agreed to arbitrate a
particular dispute, the court considers whether “(a) the plaintiff entered into a written
arbitration agreement that is enforceable under ordinary state-law contract principles
and (b) the claims before the court fall within the scope of that agreement.” Lambert
v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir. 2008). The court examines each issue
in turn.
1.

Agreement to Arbitrate

“The threshold question of whether an arbitration agreement exists at all is
‘simply a matter of contract.’” Bazemore, 827 F.3d at 1329 (quoting First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). “[S]tate law governs the issue of
the existence of an agreement to arbitrate under the FAA.” Id. at 1330.
Under Alabama law, the elements of an enforceable contract include “an offer
and an acceptance, consideration, and mutual assent to the terms essential to the
formation of a contract.” Shaffer v. Regions Fin. Corp., 29 So. 3d 872, 880 (Ala.
2009) (internal quotation marks omitted). Mr. Carnes disputes the existence of a
binding agreement to arbitrate. He claims that AT&T has not submitted sufficient
evidence that it made an offer to him. (Doc. 19 at 8–11).2 The court disagrees.

2

Mr. Carnes does not challenge AT&T’s ability to establish the remaining elements of an
enforceable contract. (See generally Doc. 19).
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An employer may communicate an offer to an employee “by issuance of [a]
handbook, or otherwise,” Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725, 735
(Ala. 1987), as long as the terms of the contract are “sufficiently definite and certain,”
White Sands Group, LLC. v. PRS II, LLC, 998 So. 2d 1042, 1051 (Ala. 2008) (internal
quotation marks omitted). AT&T’s evidence establishes that on December 1, 2011,
AT&T emailed a link to Mr. Carnes by which he could access the Agreement on the
company’s intranet and that someone using Mr. Carnes’s unique username and
password accessed and reviewed the Agreement that same day. (Doc. 11-1 at 3–4, ¶¶
7, 9; Doc. 11-2 at 4–5, ¶¶ 9-10; Doc. 11-2 at 16, 18; Doc. 11-5 at ¶¶ 5–6). The email
and the Agreement explained that unless Mr. Carnes’s affirmatively opted-out of the
Agreement by February 6, 2012, then he and the company would submit covered
disputes to binding arbitration. (Doc. 11-1 at 6, 8). In addition, the contents of the
email and the Agreement itself explain the terms of the arbitration policy in definite
and certain terms. (See id. at 6, 8–11). Thus, AT&T has demonstrated that it
communicated a clear offer to Mr. Carnes. See Moore-Dennis v. Franklin, 201 So. 3d
1131, 1143 (Ala. 2016) (recognizing as “sound” the rule that electronic notification of
an arbitration contract suffices where employer provides “proof that the recipient (or
someone with the recipient’s username and password) accessed the specific email or
visited the specific Web page containing the arbitration provision”).
In an affidavit that he submitted in response to AT&T’s motion to compel
arbitration, Mr. Carnes claims that he has “no recollection whatsoever of the e-mail
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the Defendants allege to have sent to me on December 1, 2011 containing a
Management Arbitration Agreement.”

(Doc. 19-1 at ¶ 4).

This statement is

insufficient to create a question of fact with respect to AT&T’s evidence that it did
email Mr. Carnes a link to the Agreement and that someone using Mr. Carnes’s
unique AT&T username and password clicked a “Review Completed” button on the
intranet page containing a copy of the Agreement. See Chandler v. James, 985 F.
Supp. 1094, 1100 (M.D. Ala. 1997) (“[A] witness who states that he cannot remember
whether or not an event alleged to have happened by the moving party actually took
place does not help the nonmoving party to meet its burden. The nonmoving party
must come up with evidence that negates the version of events alleged by the moving
party—an acknowledgment that the event may have occurred, but the witness cannot
remember, falls short.”); see also Wilson v. Alorica, Inc., 2018 WL 2229703, at *3
(N.D. Ala. May 16, 2018) (compelling arbitration where plaintiff asserted that he had
no memory of executing the agreement in response to defendant’s evidence showing
that “plaintiff’s unique login and password were used to access and acknowledge the
Agreement”).
The court also is not persuaded by Mr. Carnes’s argument that AT&T must
produce the actual email that it sent to him in order to demonstrate an offer. (See Doc.
19 at 11). Mr. Carnes has not cited, and the court has not located, authority stating
that a court must have before it an original copy of a contract to determine whether an
offer was made. AT&T has submitted sworn statements that a sample email is a true
7

and accurate copy of the email that AT&T sent to Mr. Carnes at his AT&T provided
email address. (Doc. 11-1 at 3, ¶ 6; Doc. 11-2 at 3–4, ¶¶ 6–8; see also Doc. 11-1 at 6;
Doc. 11-2 at 7, 9, 16, 18). Therefore, AT&T’s failure to submit a copy of the email
that it sent to Mr. Carnes is not fatal to AT&T’s motion.
Because AT&T clearly communicated the terms of the Agreement to Mr.
Carnes and because he did not opt out by the required deadline, the court finds that the
parties entered an agreement to arbitrate. The court now must decide whether Mr.
Carnes’s claims fall within the scope of the agreement to arbitrate.
2.

Scope of Arbitration Agreement

“The FAA creates a presumption in favor of arbitrability; so, parties must
clearly express their intent to exclude categories of claims from their arbitration
agreement.” Paladino v. Avnet Comput. Techs., Inc., 134 F.3d 1054, 1057 (11th Cir.
1998).
Mr. Carnes’s complaint states claims for violation of the ADEA. (Doc. 1). Mr.
Carnes has not disputed that his ADEA claims are covered by the Agreement. (See
generally Doc. 19). There is no evidence that the parties intended to exclude ADEA
claims from arbitration. And such a finding would fly in the face of the plain
language of the Agreement which states expressly that it covers claims regarding Mr.
Carnes’s employment relationship with AT&T that arise under the ADEA. (Doc. 111 at 8–9). Accordingly, the court finds that Mr. Carnes’s age discrimination claims
fall within the scope of the Agreement and are subject to arbitration.
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III.

CONCLUSION
For the reasons explained above, the court GRANTS AT&T’s motion to

compel arbitration and STAYS this proceeding.
The court asks the Clerk to ADMINISTRATIVELY CLOSE this case.
DONE and ORDERED this May 28, 2019.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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