Martinez v. TCF National Bank et al
ORDER. Order granting 29 Motion to Compel Arbitration and Stay Proceedings. ORDERED that, pursuant to D.C.COLO.LCivR 41.2, this action shall be administratively closed. ORDERED that, no later than twenty days after the completion of the arbitrat ion proceeding, the parties shall file a status report advising the Court whether they believe the case should be reopened for good cause for any further proceedings in this Court or whether the case may be dismissed by Judge Philip A. Brimmer on 02/25/15.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-03504-PAB-MJW
TCF NATIONAL BANK,
This matter comes before the Court on the Motion to Compel Arbitration and
Stay Proceedings [Docket No. 29] filed by defendant TCF National Bank. Defendant
argues that plaintiff Lucynda Martinez’s claims for sexual harassment, sexual
discrimination, national origin discrimination, and retaliation are subject to mandatory
Plaintiff began working for defendant as a Banking Sales Representative on
November 3, 2008. Docket No. 29-2 at 3, ¶ 3. T hroughout her employment with
defendant, plaintiff was an at-will employee. Id. On February 1, 2009, defendant
implemented its Dispute Resolution Policy (the “DRP”). The DRP requires that
employees arbitrate disputes that “relate to or arise from the employment relationship.”
Docket No. 29-1 at 3. The DRP further provides that “[b]y applying for, accepting or
continuing employment with [defendant]” after the date the DRP went into effect, an
employee agreed “to resolve all Covered Claims . . . pursuant to this DRP.” Id. at 2.
Id. at 3, Covered Claims ¶ 5.
In December 2008, defendant posted a letter from its CEO on the company
intranet. Docket No. 29-2 at 3-4, ¶ 6; Docket No. 29-3 at 2. T he letter informed
employees that, effective February 1, 2009, the DRP would be in effect, and that
information about the DRP would be mailed directly to employees’ home addresses.
Docket No. 29-3 at 2.
In January 2009, defendant hired non-party Western Graphics to mail
information regarding the DRP to all covered employees. Docket No. 29-2 at 4, ¶ 8,
Docket No. 29-4 at 3, ¶ 4. Defendant provided a list of names and addresses of its
employees, including plaintiff, to Western Graphics in an electronic file. Id. On January
19, 2009, Western Graphics mailed a packet of information, including the DRP, a
question and answer document, and a cover letter to every addressee on the file
provided by defendant. Docket No. 29-4 at 4, ¶ 7. The cover letter stated that “the
DRP is a binding legal document which applies to both [the recipient] and [def endant].”
Docket No. 39-1 at 6. On December 27, 2013, plaintiff filed the instant lawsuit. Docket
Under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., agreements to
arbitrate are “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. The Supreme Court
has “long recognized and enforced a liberal federal policy favoring arbitration
agreements,” and under this policy, doubts concerning the scope of arbitrable issues
are resolved in favor of arbitration. Nat’l Am. Ins. Co. v. SCOR Reinsurance Co., 362
F.3d 1288, 1290 (10th Cir. 2004) (quoting Howsam v. Dean Witter Reynolds, Inc., 537
U.S. 79, 83 (2002)). The FAA mandates a stay of a judicial proceeding “upon any issue
referable to arbitration under an agreement in writing for such arbitration[.]” 9 U.S.C.
The decision whether to enforce an arbitration agreement requires a two-step
inquiry: first, the Court must determine whether a valid agreement to arbitrate exists;
and, second, the Court must determine whether the specific dispute falls within the
scope of that agreement. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 626 (1985); see also Pikes Peak Nephrology Assocs., P.C. v. Total Renal
Care, Inc., No. 09-cv-00928-CMA-MEH, 2010 WL 1348326, at *5 (D. Colo. Mar. 30,
2010) (citation omitted).
The Court will first determine whether a valid agreement to arbitrate exists. “The
existence of an agreement to arbitrate is a threshold matter which must be established
before the FAA can be invoked.” Avedon Engineering, Inc. v. Seatex, 126 F.3d 1279,
1287 (10th Cir. 1997). Defendant, as the party claiming an obligation to arbitrate, has
the burden of establishing that plaintiff’s claims are subject to arbitration. See
McCarthy v. Azure, 22 F.3d 351, 354-55 (1st Cir. 1994). If defendant meets its burden,
the burden shifts to plaintiff to show that there is a “genuine issue of material fact as to
the making of the agreement, using evidence comparable to that identified in Fed. R.
Civ. P. 56.” Stein v. Burt-Kuni One, LLC, 396 F. Supp. 2d 1211, 1213 (D. Colo. 2005).
Defendant’s DRP contains a broad arbitration clause that applies to all claim s
between an employee and defendant “that relate to or arise from the employment
relationship.” Docket No. 29-1 at 3. Plaintiff does not contest that her claims of sexual
harassment, sex discrimination, national origin discrimination, and retaliation fall within
the scope of this arbitration clause. Rather, plaintiff argues that the agreement to
arbitrate is not valid. See Docket No. 33 at 3-5. Therefore, the only issue before the
Court concerns the validity of the arbitration clause.
Plaintiff argues first that the arbitration agreement is not valid because plaintiff
never received the DRP in the mail and never saw the notice placed on defendant’s
intranet. Docket No. 33 at 3. “W hen mail matter is properly addressed and deposited
in the United States mails, with postage duly prepaid thereon, there is a rebuttable
presumption of fact that it was received by the addressee in the ordinary course of
mail.” Crude Oil Corp. v. Comm’r, 161 F.2d 809, 810 (10th Cir. 1947); see also Witt v.
Roadway Express, 136 F.3d 1424, 1429-30 (10th Cir. 1998) (“[a] rebuttable
presumption of receipt does arise on evidence that a properly addressed piece of mail
is placed in the care of the postal service”) (citations omitted). Here, defendants have
provided evidence that the DRP was mailed to plaintiff at her address of record on
January 19, 2009, creating a presumption of delivery. See Docket No. 29-2 at 4-5, ¶¶
8-11; Docket No. 29-4 at 3-4, ¶¶ 4-7; Docket No. 39-1 at 6.
To rebut the presumption of delivery, plaintiff attaches an email she sent to an
attorney in which she claimed that she did not recall ever having seen the DRP. Docket
No. 33-1 at 1. After plaintiff filed her response to defendant’s motion, she submitted a
supplemental affidavit saying that she “was never made aware” of the DRP while she
was employed with defendant, and that “[t]o the best of [plaintiff’s] knowledge, [she]
never received a copy of the DRP in the mail . . . and [she] never saw the DRP or any
references to the DRP on [defendant’s] intranet.” Docket No. 37-1 at 1. The Court finds
that plaintiff’s assertion that she never received the DRP is insufficient to overcome the
presumption of delivery. United States v. Ekong, 518 F.3d 285, 287 (5th Cir. 2007)
(holding that “[t]he addressee’s bare assertion of non-receipt is insufficient to rebut the
[presumption]”); see also McCarthy v. Option One Mortg. Corp., 362 F.3d 1008, 1012
(7th Cir. 2004) (rejecting that evidence of mailing “may be rebutted by a mere denial of
Plaintiff also argues that the presumption of delivery of the DRP should not apply
because defendant’s usual practice when it communicated its policies to employees
was to require a signature from each employee acknowledging that the employee had
received and reviewed the policy. Docket No. 33 at 4. In support, plaintiff attaches
three verification statements signed by plaintiff that acknowledge, in turn, receipt and
review of defendant’s “Employee Policy Highlights brochure,” its “Prohibited Conduct
Policy,” and its dress code policy. Docket No. 33-3 at 1-4. Even setting aside that
plaintiff did not properly authenticate these documents,1 the Court finds that they
constitute insufficient evidence to rebut the presumption that plaintiff received the DRP.
First, even if verification statements were defendant’s customary practice, plaintiff cites
no authority, and the Court is aware of none, that binds an employer to use a single
Plaintiff attached the three acknowledgments as an exhibit to her response to
defendant’s motion. The exhibits were not accompanied by an affidavit based on
form of notice when communicating new policies to employees or renders a different
form of notice insufficient. Second, the Court notes that each signed policy
acknowledgment is dated November 3, 2008, the day that plaintiff began working for
defendant. Docket No. 6 at 2, ¶ 9; Docket No. 29-2 at 3, ¶ 3. Thus, while these
documents may be evidence of how defendant communicated its policies to new hires
at the time plaintiff began her employment, they are not evidence of a regular practice
for communicating changes to those policies that would justify plaintiff’s failure to take
notice of a policy change communicated through direct mail. Finally, the verification
statement signed by plaintiff acknowledging receipt of the “Employee Policy Highlights”
brochure provided that plaintiff “understand[s] that any or all policy statements
explained may be replaced or changed at any time” and that it was plaintiff’s
“responsibility to read” defendant’s policies and “become familiar” with them. Docket
No. 33-3 at 1.
Finally, plaintiff argues that cases in this district and others have required more
robust means of ensuring that employees receive notice of an arbitration agreement
than those employed by defendants here. Docket No. 33 at 4. In support, plaintif f cites
Urbanic v. Travelers Ins. Co., No. 10-cv-02368-WYD-MJW, 2011 WL 1743412 (D.
Colo. May 6, 2011). In that case, the court rejected the claim s of a plaintiff who said he
never read an arbitration agreement where the evidence showed that he “was advised
on six separate occasions” of the existence of the agreement. Id. at *8. Plaintiff also
cites Lynn v. General Electric Co., 2005 WL 701270 (D. Kan. Jan. 20, 2005), which
held that an employer that distributed notice of an arbitration agreement by four
different methods had not shown sufficient evidence that employees had actual
knowledge of the agreement.
The Court finds plaintiff’s argument unconvincing. Since arbitration is a matter of
contract, Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010), in deciding
whether there is an enforceable agreement to arbitrate, “courts generally . . . should
apply ordinary state-law principles that govern the formation of contracts.” First Options
of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). In Colorado, “[t]he f ormation of a
contract requires a bargain in which there is a manifestation of mutual assent to the
exchange and a consideration.” I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d
882, 888 (Colo. 1986) (en banc) (citing Restatement (Second) of Contracts § 17(1)
(1981)). In the employment context, an at-will employee who is offered a new condition
of employment accepts that offer through continuing the employment relationship.
Lucht’s Concrete Pumping, Inc. v. Horner, 255 P.3d 1058, 1063 (Colo. 2011).
Defendants sent plaintiff a copy of the DRP in the mail accompanied by a cover letter
that informed plaintiff that the DRP was a “binding legal document.” Docket No. 29-2 at
11. Defendants also posted the policy on the front page of the company intranet.
Docket No. 29-2 at 5, ¶ 12.
Interpreting substantially similar New Mexico law on contract formation, the
Tenth Circuit, in an unpublished opinion, has approved a finding that an employee was
placed on notice of and accepted a company’s arbitration agreement where notice of
the agreement was provided via a single email and the employer introduced evidence
that the employee habitually opened emails from management. Pennington v. Northrop
Grumman Space & Mission Sys. Corp., 269 F. App’x 812, 815 (10th Cir. 2008).
Defendant has presented evidence that it mailed a copy of the DRP to plaintiff’s
address of record, and that plaintiff has received mail from defendant at that address
and opened it. Specifically, defendant attaches a copy of a check that had been
cashed by plaintiff that was sent to the same address to which defendant mailed the
DRP. Docket No. 38-2 at 5. The evidence before the Court shows that plaintiff “had
reasonable notice and access to the terms and conditions of the arbitration clause.”
Vernon v. Qwest Commc’ns Int’l, Inc., 857 F. Supp. 2d 1135, 1152 (D. Colo. 2012).
Plaintiff’s claim to the contrary, unsupported by any evidence other than her own
declaration, is a mere “bare assertion of non-receipt.” Ekong, 518 F.3d at 287. Under
Colorado law, plaintiff “cannot avoid contractual obligations by claiming that . . . she did
not read the agreement.” Loden v. Drake, 881 P.2d 467, 469 (Colo. App. 1994).
Because plaintiff had adequate notice of the agreement and the agreement covers the
claims she asserts in this matter, the arbitration agreement is enforceable.
For the foregoing reasons, it is
ORDERED that defendant TCF National Bank’s Motion to Compel Arbitration
and Stay Proceedings [Docket No. 29] is GRANTED. It is further
ORDERED that, pursuant to D.C.COLO.LCivR 41.2, this action shall be
administratively closed. It is further
ORDERED that, no later than twenty days after the completion of the arbitration
proceeding, the parties shall file a status report advising the Court whether they believe
the case should be reopened for good cause for any further proceedings in this Court or
whether the case may be dismissed.
DATED February 25, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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