Pullam v. Apria Healthcare LLC
Filing
16
MEMORANDUM AND ORDER denying 9 Motion to Stay Case an Compel Arbitration; granting 13 Motion for Leave to File Surreply Memorandum and granting 15 Motion for Leave to File Substitute Declaration of Michael Goldsmith in Support of Defendant's Motion to Compel Arbitration. Signed by Chief District Judge Julie A Robinson on 10/15/18. (hw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHERRY C. PULLAM,
Plaintiff,
v.
Case No. 2:17-CV-02649-JAR-GEB
APRIA HEALTHCARE, LLC,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Sherry Pullam filed this suit against Apria Healthcare, LLC, alleging age
discrimination and retaliation claims pursuant to the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, et seq. This matter is before the Court on Defendant’s Motion to
Stay the Case and Compel Arbitration (Doc. 9). Defendant moves to compel Plaintiff to arbitrate
her claims pursuant to an arbitration agreement that she purportedly entered into during the
course of her employment with Defendant. Plaintiff argues that the arbitration agreement is not
valid because she was never made aware of its existence and, therefore, did not agree to it. For
the reasons set forth below, Defendant’s Motion to Stay the Case and Compel Arbitration is
denied.
Also before the Court are Plaintiff’s Motion for Leave to File Surreply Memorandum
(Doc. 13) and Defendant’s Motion for Leave to File Substitute Declaration of Michael
Goldsmith in Support of Defendant’s Motion to Compel Arbitration (Doc. 15).1 As neither
1
Defendant attached the unsigned Declaration of Michael Goldsmith (Doc. 12-1) and its accompanying
exhibits (Docs. 12-2 through 12-5) to Defendant’s Reply in Support of Its Motion to Stay the Case and Compel
Arbitration. In her Motion for Leave to File Surreply, Plaintiff argues that Defendant’s Reply and Mr. Goldsmith’s
declaration raise new arguments and evidence that she has not had an opportunity to address. In its Motion for
Leave to File Substitute Declaration of Michael Goldsmith, Defendant seeks to substitute a signed version of Mr.
Goldsmith’s declaration for the unsigned version.
motion is opposed and the time for filing a responsive brief has long since passed with respect to
both, the Court grants both motions pursuant to D. Kan. Rule 7.4.2
I.
Standard
The Federal Arbitration Act (“FAA”) reflects both “a liberal federal policy favoring
arbitration” and the “fundamental principle that arbitration is a matter of contract.”3 The FAA
reversed a “longstanding judicial hostility to arbitration agreements,” favoring a presumption of
arbitrability if an agreement requires arbitration.4 “If a contract contains an arbitration clause, a
presumption of arbitrability arises.”5 “This presumption may be overcome only if ‘it may be said
with positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute.’” 6 Any doubts concerning the arbitrability of a dispute should be
resolved in favor of arbitration.7
However, “arbitration is a matter of contract and a party cannot be required to submit to
arbitration any dispute which he has not agreed so to submit.”8 Thus, the presumption of
arbitrability disappears when the parties dispute whether there is a valid and enforceable
2
D. Kan. Rule 7.4 provides: “Absent a showing of excusable neglect, a party or attorney who fails to file a
responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such
brief or memorandum. If a responsive brief or memorandum is not filed within the Rule 6.1(d) time requirements,
the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion
without further notice.”
3
AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (citations omitted).
4
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991).
5
ARW Expl. Corp. v. Aguirre, 45 F.3d 1455, 1462 (10th Cir. 1995) (citing AT&T Technologies, Inc. v.
Commc’n Workers of Am., 475 U.S. 643, 650 (1986)); see also Bellman v. i3Carbon, LLC, 563 F. App’x 608, 613
(10th Cir. 2014) (citation omitted).
6
LDS, Inc. v. Metro Can. Logistics, Inc., 28 F. Supp. 2d 1297, 1299 (D. Kan. 1998) (citing ARW Expl.
Corp., 45 F.3d at 1462).
7
Id. (citation omitted).
8
Bellman, 563 F. App’x at 613 (quoting Spahr v. Secco, 330 F.3d 1266, 1269 (10th Cir. 2003)); see also
Avedon Eng’g., Inc. v. Seatex, 126 F.3d 1279, 1283 (10th Cir. 1997).
2
arbitration agreement in the first place.9 “A court may compel arbitration of a particular dispute .
. . only when satisfied that the ‘making’ of the agreement to arbitrate is not at issue.”10
When a party moves to compel arbitration and the opposing party disputes the validity of
the arbitration agreement at issue, “the court uses a burden-shifting framework similar to that
used in deciding summary judgment motions.”11 “Under this well-settled standard, summary
judgment is appropriate if the moving party demonstrates there is ‘no genuine issue as to any
material fact’ and that it is ‘entitled to judgment as a matter of law.’”12 In the context of a
motion to compel arbitration, this standard requires the moving party to present evidence
demonstrating the existence of an enforceable arbitration agreement.13
If the movant makes such a showing, the burden shifts to the non-movant to submit
evidence showing a genuine issue of material fact as to the making of the agreement.14 A fact is
“material” if, under the applicable substantive law it is “essential to the proper disposition of the
claim.”15 An issue of fact is “genuine” if “the evidence is such that a reasonable jury could
return a verdict for the non-moving party.”16 “To demonstrate a genuine issue of material fact as
to the making of the agreement to arbitrate, the facts ‘must be identified by reference to an
9
Id. (citing Dumais v. Am. Golf Corp., 299 F.3d 1216, 1220 (10th Cir. 2002); Riley Mfg. Co. v. Anchor
Glass Container Corp., 157 F.3d 775, 779 (10th Cir. 1998)).
10
Rangel v. Hallmark Cards, Inc., No. 10-4003-SAC, 2010 WL 781722, at *4 (D. Kan. Mar. 4, 2010)
(quoting Nat’l Am. Ins. Co. v. SCOR Reinsurance Co., 362 F.3d 1288, 1290 (10th Cir. 2004)).
11
Id.; see also, e.g., SmartText Corp. v. Interland, Inc., 296 F. Supp. 2d 1257, 1262 (D. Kan. 2003)
(citations omitted); Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332, 1336 (D. Kan. 2000) (citations omitted).
12
SmartText Corp., 296 F. Supp. 2d at 1262 (citing Fed. R. Civ. P. 56(c)).
13
Id. at 1263 (citations omitted).
14
Id. (citations omitted).
15
Wright ex rel. Trust Co. of Kan. v. Abbott Labs, Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001 (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
16
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
3
affidavit, a deposition transcript, or a specific exhibit incorporated therein.”17 “In deciding
whether the non-movant has identified a genuine issue of material fact for trial, ‘the evidence of
the non-movant is to be believed and all justifiable inferences are to be drawn in his favor.’”18 If
the nonmovant demonstrates a genuine issue of material fact as to the making of an agreement,
then the district court must hold a trial on the existence of an agreement to arbitrate.19
“However, ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.’”20
II.
Facts
Defendant Apria Healthcare is a provider of medical equipment, supplies, and home
healthcare services headquartered in Lake Forest, California. Defendant operates more than 320
branches throughout the United States, including a branch in Overland Park, Kansas, where
Plaintiff was first employed beginning in May 2011.
On June 15, 2014, Defendant rolled out to its employees a voluntary, nationwide
alternative dispute resolution program it termed the “Apria Workplace Resolutions Program:
Mutual and Binding Arbitration Agreement” (“Arbitration Agreement”). The Arbitration
Agreement states:
This [Arbitration Agreement] requires you and Apria to resolve
through final and binding arbitration any and all disputes and claims
between you and Apria, including but not limited to claims arising
17
Rangel v. Hallmark Cards, Inc., No. 10-4003-SAC, 2010 WL 781722, at *4 (D. Kan. Mar. 4, 2010)
(quoting Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)).
18
Id. (quoting Anderson, 477 U.S. at 255).
19
SmartText Corp., 296 F. Supp. 2d at 1262 (citing 9 U.S.C. § 4, which provides that “[i]f the making of
the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed
summarily to the trial thereof.”)); see also Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332, 1336 (D. Kan. 2000) (“If
the parties dispute making an arbitration agreement, a jury trial on the existence of an agreement is warranted if the
record reveals genuine issues of material fact regarding the parties’ agreement.”) (citing Avedon Eng’g, Inc. v.
Seatex, 126 F.3d 1279, 1283 (10th Cir. 1997)).
20
Rangel, 2010 WL 781722, at *4 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586–87 (1986)).
4
out of, related to, or connected with your employment or its
termination . . .
. . . This Arbitration Agreement means that both you and Apria are
bound to use arbitration as the only means of resolving most
employment-related disputes . . . and to forego any right either you
or Apria may have to a trial by judge or jury on issues covered by
this Arbitration Agreement.21
In the section titled “Covered Claims,” the Arbitration Agreement provides that arbitration is
required for
claims for discrimination (including, but not limited to, race, gender,
religion, national origin, sexual orientation, age, marital status,
medical condition or disability) or harassment, pursuant to the Age
Discrimination in Employment Act . . . ; any federal, state or local
anti-discrimination laws; . . . [and] claims pursuant to any other
federal, state, or local law, ordinance or regulation . . . .22
The Arbitration Agreement also contains several provisions relating to a current
employee’s right to voluntarily opt out of arbitration. The first, in all capital letters, states:
IF YOU ARE EMPLOYED ON THE EFFECTIVE DATE OF
THIS AGREEMENT, YOU WILL HAVE 30 DAYS AFTER YOU
RECEIVE THIS AGREEMENT TO “OPT OUT” OF
ARBITRATION. MORE INFORMATION ABOUT HOW YOU
OPT OUT IS DESCRIBED BELOW. HOWEVER, IF YOU DO
NOT TIMELY OPT OUT, YOU WILL BE BOUND BY THIS
AGREEMENT IF YOU CONTINUE WORKING FOR THE
COMPANY AFTER THE 30-DAY OPT OUT PERIOD HAS
EXPIRED.23
The second provision concerning the right to opt out states:
You have the right to opt out of this Agreement (i.e. not to be bound
by it) if you were employed on June 15, 2014, when this Agreement
became effective. However, to do this, you must send a written
notice of your decision to opt out to Apria by certified mail, and you
must do so within 30 days of the date you first receive a copy of this
21
Doc. 10-3 at 3–4.
22
Id. at 5–6.
23
Id. at 4.
5
agreement. Your notice must be post-marked within the applicable
30 days [sic] period and mailed to: Apria Healthcare . . . .24
The foregoing provision also includes the mailing address for Apria’s Legal Department, to which
employees were to send opt-out notices.
Apria informed its employees about the Arbitration Agreement and made it available to
them through an online training course. Specifically, on or about June 30, 2014, Defendant
enrolled all current employees in Kansas in a mandatory training session called “APR702 Apria
Workplace Resolutions NON-CA” (“APR702”), to be completed using Defendant’s online
training system, called “Learning Central.”25 The purpose of APR702 was to inform employees
about the Arbitration Agreement and the process of arbitration conducted through the American
Arbitration Association (“AAA”), and to provide them with an electronic copy of the Arbitration
Agreement and the AAA’s Employment Arbitration Rules and Mediation Procedures.26
Defendant submits the sworn declaration of Helena Kohistani, an Apria Project Manager,
who states that:
For each employee enrolled in the training session, Learning Central
electronically tracked the date Apria assigned APR702 to the
employee, the date and time the employee completed it, and the
amount of time the employee spent in APR702. The employee can
download the Arbitration Agreement and AAA Rules by clicking on
their respective links on the APR702 “resources” menu. The
employee acknowledged completion of APR702 and that he or she
had received a copy of the Arbitration Agreement and AAA Rules
by clicking “Yes” on an acknowledgement screen at the end of
APR702. After the employee made the acknowledgements by
clicking “Yes,” the Learning Central transcript report for APR702
showed a “transcript score” of “100.”27
24
Id. at 8.
25
Declaration of Helena Kohistani, Doc. 10-2, ¶ 6.
26
Id.
27
Id., ¶ 7.
6
The third-to-last slide in the APR702 training course concerned the right to opt out, stating:
If you do not want to take advantage of Apria’s Workplace
Resolutions Program, you have the right to opt-out of it within 30days of completing this course. To do this, you must send a written
notice of your decision to opt-out, by certified mail, to Apria
Healthcare . . . . Your request must be postmarked within 30-days
of the date you complete this course.28
Defendant contends that Plaintiff completed APR702 on July 15, 2014. More
specifically, Ms. Kohistani states:
Plaintiff Pullam started APR702 at 7:45:04 AM on July 15, 2014,
and completed it at 7:51:23 AM the same day, spending a total of
seven minutes taking the course. During the training session,
Plaintiff Pullam acknowledged that she received the Arbitration
Agreement by clicking “Yes” on the acknowledgements screen at
the end of the training, which stated: “I acknowledge that I have
reviewed APR702 in its entirety. I further certify that I have
downloaded and printed copies of APRIA WORKPLACE
RESOLUTIONS PROGRAM: Mutual and Binding Arbitration
Agreement and AMERICAN ARBITRATION ASSOCIATION:
Employment Arbitration Rules and Mediation Procedures, made
available through this course. I understand that I can access these
documents at any time on HR Connect.”
This positive
acknowledgement is reflected as a “score” of “100” on Learning
Central transcript reports for this course . . . and as “progress” of
“100%” on Learning Central transcript details for this course . . . .29
Attached to Ms. Kohistani’s Declaration are what she describes as “relevant excerpts from the
Learning Central transcript details for Plaintiff Pullam showing she took APR702 and the
corresponding time and date stamps”30 and “the Learning Central transcript report showing
training Plaintiff Pullam completed, including APR702.”31 Although Defendant also purports to
attach the “acknowledgement screen for APR702, where Plaintiff Pullam acknowledged she took
28
Doc. 10-6 at 1. This slide also provides the Apria Legal Department address to which opt-out notices
were to be sent.
29
Doc. 10-2, ¶ 11.
30
Id., ¶ 9 (referring to Doc. 10-7).
31
Id. (referring to Doc. 10-8).
7
APR702 and downloaded copies of the Arbitration Agreement and AAA Rules by checking
‘Yes,’”32 the attached exhibit appears to be a screenshot of a slide from the APR702 course and
contains no indication that the individual who checked “Yes” was Plaintiff.
Defendant also submits the declaration of Deborah Lien, a Legal Secretary in Apria’s
Legal Department, who states that she has “checked all the files containing all employee requests
to opt out since the Program’s initiation. There is no request by Plaintiff Sherry Pullam to opt out
of the arbitration provisions of the Workplace Resolutions Program and Arbitration
Agreement.”33
In a sworn affidavit, Plaintiff states that prior to her attorney showing her a copy of the
Arbitration Agreement, she had never seen it before.34 Plaintiff states that she never signed the
agreement and was never made aware of its existence while she worked for Apria—she never
received a copy by mail, email, in person, or otherwise.35 Plaintiff states that she was never made
32
Id. (referring to Doc. 10-6). Plaintiff disputes that the version of APR702 attached to Ms. Kohistani’s
declaration is the correct version, arguing that while Defendant’s records purport to show that she completed a
course titled “APR702 Apria Workplace Resolutions_NON-CA,” Ms. Kohistani refers to screenshots from a course
titled “APR702 Apria Workplace Resolutions_NON-CA-v2.” Defendant counters, through the declaration of Mr.
Goldsmith, that there were multiple versions of the Learning Central course at issue, but that the only difference
between the course Plaintiff took and the course attached to Ms. Kohistani’s declaration is the title. Doc. 15-1, ¶¶ 7–
9. Attached to Mr. Goldsmith’s declaration is the full slide set for the version of APR702 that Defendant contends
Plaintiff took; the opt-out and acknowledgement slides are identical in content to the slides attached to Ms.
Kohistani’s declaration. Compare Doc. 10-6 at 1–3, and Doc. 12-2 at 26–28.
33
Doc. 10-9, ¶ 7. Ms. Lien’s declaration states that “employees on the payroll as of June 15, 2014 had 30
days from that date to opt out of the program.” Id., ¶ 5. This statement seems to indicate that all opt-out notices
would need to be postmarked no later than July 15, 2014. Thus, Plaintiff points out that if she completed the course
on July 15, 2014 as Defendant alleges, she would not have had a reasonable period of time to exercise her opt-out
right after doing so. Doc. 11 at 10–11. In its reply, Defendant acknowledges a misstatement in Ms. Lien’s
declaration about the start of the thirty-day opt-out window, and states that Plaintiff knew or should have known that
she had thirty days from the date she received the Arbitration Agreement to opt out, rather than thirty days from the
date of the program’s initiation on June 15, 2014. Doc. 12 at 5. As noted above, APR702 does state that opt-out
notices must be post-marked within thirty days of completing the course. Doc. 10-6 at 1; Doc. 12-2 at 26.
Defendant contends that Plaintiff completed the course on July 15, 2014, meaning her opt-out notice would need to
have been post-marked by August 14, 2014. Doc. 12 at 6. Plaintiff does not dispute the fact that she never
submitted an opt-out notice.
34
Doc. 11-1, ¶ 9.
35
Id., ¶¶ 10–15.
8
aware of an opportunity to opt out of arbitration, and that had she been provided with the
opportunity, she would have done so.36
Plaintiff further states that although she regularly took online training courses while
employed by Apria, she “never took a Learning Central course related to any Arbitration
Agreement.”37 Plaintiff disputes Defendant’s contention that she could have completed APR702
in seven minutes, stating that the Learning Central “courses took at least fifteen (15) minutes to
complete, but many would take you thirty (30) to forty-five (45) minutes. I am confident no
course ever took less than seven (7) minutes.”38 Plaintiff adds that “Learning Central would
prevent you from just rapidly scrolling through the pages of a course without reading them,
because it would make you spend a certain amount of time on each page.”39
Plaintiff further states in her sworn affidavit that when she was assigned an online course,
she would receive an email telling her that the course had been assigned and giving her a deadline
by which to complete it. Her supervisor would also receive a copy of that email.40 Plaintiff
points to Defendant’s failure to provide that email as evidence that she never took APR702.
Plaintiff also states that if she had not completed an online course as of a few days prior to the
deadline, her supervisor would remind her of the deadline and schedule a time for her to complete
the course.41 Thus, Plaintiff argues, it would be extremely unusual for her to be late in
completing a Learning Central course, and Defendant’s records indicate that she was two weeks
late in completing APR702.
36
37
Id., ¶¶ 16–17.
Id., ¶ 26.
38
Id., ¶ 22.
39
Id., ¶ 23.
40
Id., ¶ 19.
41
Id., ¶ 20.
9
In addition to contesting that she took APR702, Plaintiff makes a number of other sworn
statements to establish that Apria did not normally communicate with her about matters pertaining
to the terms of her employment through Learning Central. Rather, Plaintiff contends that
“Learning Central courses generally provided information about how to do my job and the
governmental rules that governed compliance. Most of the time they were not about Apria
policies.”42 Plaintiff states that when Apria wished to communicate with her regarding its internal
policies, such information was “almost always sent to [her] by email or handed to [her] in paper
form.”43 She adds: “[o]ften, I would be required to sign the document after reading the policy.”44
Finally, Plaintiff states that the Learning Central courses she took typically did not require her to
download documents, as APR702 required with respect to the Arbitration Agreement; rather, the
pertinent information would be displayed on the screen.45
Plaintiff was terminated from her position on July 22, 2016. She states that at the time
she was terminated, she had printouts of the results of all the Learning Central courses she
completed during her employment, but was not permitted to take those documents with her.46
In response to Plaintiff’s affidavit, Defendant submits the declaration of Michael
Goldsmith, Apria’s Learning Development Manager. Mr. Goldsmith states that he is
“responsible for managing the design of Apria’s electronic learning courses, and the delivery of
those courses through Apria’s learning management system, Learning Central.”47 Further, Mr.
42
Id., ¶ 24.
43
Id., ¶ 25.
44
Id.
45
Id., ¶ 21.
46
Id., ¶ 29.
47
Doc. 15-1, ¶ 4.
10
Goldsmith’s team “is responsible for managing the settings and features of all the Learning
Central courses.”48
Mr. Goldsmith refutes the statements in Plaintiff’s affidavit that call into question
whether she took APR702. Specifically, Mr. Goldsmith states that Plaintiff would have received
an email assigning the course to her because the “Send Assign Training emails” feature was
turned on,49 and that Plaintiff could have taken APR702 as quickly as she wished because the
course “did not have the time setting that would have required [her] to view a slide for a certain
amount of time before the ‘next’ button appeared, allowing her to advance to the next slide.”50
He also states that any “alterations or changes to the Learning Central transcript records . . . are
preserved in the transcript history,” and that Apria did not alter Plaintiff’s transcript record for
APR702 because if it had, “the Learning Central transcript history would show than an
administrator made changes.”51 Mr. Goldsmith states that Plaintiff’s “transcript history for
APR702 shows that once Apria assigned the course to her, [she] is the only one who affected the
transcript records.”52 Attached to Mr. Goldsmith’s declaration is an example of what Defendant
contends the transcript record would look like if Defendant had “doctored” it.53
Defendant also argues that contrary to Plaintiff’s assertion, she took multiple Learning
Central courses regarding Apria’s policies.54 Defendant points to six specific courses in addition
to APR702 out of the hundreds of courses listed in Plaintiff’s Learning Central transcript report,
48
Id., ¶ 5.
49
Id., ¶ 10.
50
Id., ¶ 11.
51
Id., ¶¶ 16–17.
52
Id., ¶ 17.
53
Doc. 12-5.
54
Doc. 12 at 3 (referencing Doc. 10-8).
11
four of which Plaintiff completed. These courses relate to Apria’s policies on workplace
harassment, its code of conduct, and company benefits.55
III.
Analysis
“When deciding whether the parties have agreed to arbitrate, the Court applies ordinary
state law principles that govern the formation of contracts.”56 The parties here agree that Kansas
contract law applies.57 Under Kansas law, a valid contract requires offer, acceptance, and
consideration.58 “Additionally, in order for parties to form a binding contract, the offer and
acceptance must manifest a mutual assent or a ‘meeting of the minds’ on all the essential terms
of the contract.”59 “This ‘meeting of the minds’ requirement is proved when the evidence shows
‘with reasonable definiteness that the minds of the parties met upon the same matter and agreed
upon the terms of the contract.’”60
Whether Plaintiff accepted the Arbitration Agreement is a material fact.61 In a sworn
affidavit, Plaintiff disputes that she took APR702 and, therefore, that she agreed to or was even
aware of the Arbitration Agreement. Defendant contends that Plaintiff’s assertions about which
Learning Central courses she took are “based on her memory” and are “false,”62 and that to
55
Id.
56
Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332, 1336 (D. Kan. 2000) (citing First Options of Chicago,
Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).
57
Doc. 10 at 6–7; Doc. 11 at 5.
58
Howard v. Ferrellgas Partners, L.P., 92 F. Supp. 3d 1115, 1124 (D. Kan. 2015) (citation omitted).
59
Id. (citation omitted); see also Unified Sch. Dist. No. 446 v. Sandoval, 286 P.3d 542, 546 (Kan. 2012)
(“An unconditional and positive acceptance is required to form a contract.”).
60
Id. (citation omitted). Plaintiff’s arguments focus on the acceptance required for a valid contract; she
makes no argument regarding lack of sufficient consideration.
61
See, e.g., Bellman v. i3Carbon, LLC, 563 F. App’x 608, 613–14 (10th Cir. 2014); Hancock v. Am. Tel.
and Tel. Co., Inc., 701 F.3d 1248, 1264 (10th Cir. 2012); Kerr v. Dillard Store Servs., Inc., Civil Action No. 072604-KHV, 2008 WL 2152046, at *3–4 (D. Kan. May 21, 2008).
62
Doc. 12 at 2.
12
credit Plaintiff’s affidavit, the Court would have to believe that “Apria doctored her Learning
Central transcript records.”63 Plaintiff raises the “possibility that someone else scrolled through
the course for her.”64
Contrary to Defendant’s assertion, “[a]s long as an affidavit is ‘based on personal
knowledge and set[s] forth facts that would be admissible in evidence,’ such averment of a party
is legally competent to oppose summary judgment, notwithstanding its inherently self-serving
nature.”65 Plaintiff’s affidavit is based on her personal knowledge of the Learning Central
courses she took while employed by Apria and the manner in which she customarily took them.
Although Defendant offers affidavits and other evidence to the contrary, it is not for the Court to
weigh the credibility of conflicting evidence at the summary judgment stage. Rather,
“[a]ll evidence must be considered in plaintiff[’s] favor at th[e] summary judgment stage . . . and
it is for the jury to weigh any conflicting evidence.”66 Because Plaintiff raises a genuine issue of
material fact as to the formation of a contract, Defendant is not entitled to arbitration as a matter
of law.67 Rather, this matter shall proceed summarily to a jury trial limited to the issue of the
63
Id. at 4.
64
Doc. 13-1 at 14.
65
See Williams v. Shields, 77 F. App’x 501, 503 (10th Cir. 2003) (internal citation omitted) (reversing
summary judgment for defendant where plaintiff’s affidavit concerning the date of his release from jail, which was
based on personal knowledge, conflicted with defendant’s electronic evidence of release date); see also Fed. R. Civ.
P. 56(e) (“Supporting and opposing affidavits shall be made on personal knowledge.”).
66
Bain v. Platinum Realty, LLC, Case No. 16-2326-JWL, 2018 WL 862770, at *3 (D. Kan. Feb. 14, 2018);
see also, e.g., Electri-Rep, Inc. v. Zurek, Case No. 15-9127-JAR-GEB, 2016 WL 5871827, at *5 (D. Kan. Oct. 7,
2016) (citing Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1022 (10th Cir. 2007)) (“The Court may
not make credibility determinations or weigh the evidence at the summary judgment stage.”); Davis v. Seiter, No.
Civ. A. 96-3316-KHV, 1998 WL 404354, at *8 (D. Kan. June 30, 1998) (citation omitted) (stating that material
factual disputes cannot be resolved based on conflicting affidavits and that the court must view the evidence in the
light most favorable to the party opposing summary judgment).
67
The United States District Court for the District of Maryland has reached the same conclusion in a case
involving the same Apria arbitration agreement and very similar facts. Whitten v. Apria Healthcare Group., Inc.,
No. PWG-14-cv-3193, 2015 WL 2227928, at *4 (D. Md. May 11, 2015). The date the plaintiff in that case was
alleged to have completed APR702 was also July 15, 2014. Id. at *2.
13
existence of an agreement to arbitrate. Section 4 of the FAA permits the Court to decide the
issue if Plaintiff does not demand a jury trial.68 Thus, as set forth below, Plaintiff shall inform
the Court whether she requests a jury trial on the existence of an arbitration agreement.
However, should it be determined at trial that Plaintiff did take APR702, the Court will
order the parties to proceed with arbitration in accordance with the terms of the Arbitration
Agreement. APR702 would have provided Plaintiff with a copy of the Arbitration Agreement
and informed her of the manner and time period in which she was required to opt out. In
determining whether a plaintiff’s failure to opt out of an arbitration agreement amounts to assent,
this court has previously examined whether the plaintiff had adequate notice of the terms and
conditions and a meaningful opportunity to opt out.69 Adequate notice may depend upon
whether the defendant provided the arbitration agreement in a manner “regularly used to
communicate with [the] plaintiff.”70
Although Plaintiff argues that Defendant did not normally communicate with her through
Learning Central regarding matters relating to her employment, Defendant has produced
undisputed evidence that Plaintiff took hundreds of Learning Central courses. Although it is true
that the bulk of these courses related to how Plaintiff was to perform her job rather than the terms
of her employment, Plaintiff does not dispute that she was assigned courses relating to
Defendant’s policies on workplace harassment, its code of conduct, and company benefits.
Although Plaintiff contends that she was typically provided with employment-related
information in written form, she cites no specific examples.
68
9 U.S.C. § 4 (“If no jury trial be demanded by the party alleged to be in default . . . the court shall hear
and determine such issue.”).
69
Howard v. Ferrellgas Partners, L.P., 92 F. Supp. 3d 1115, 1137–39 (D. Kan. 2015).
70
Id. at 1138.
14
The Court finds no genuine issue of material fact as to whether Defendant regularly used
Learning Central as a means to convey information to its employees and finds that if it is shown
that Plaintiff actually took APR702, that course provided both reasonable notice of the
Arbitration Agreement and a meaningful opportunity to opt out. Specifically, the sole purpose of
APR702 was to provide employees with information about and a copy of the Arbitration
Agreement, and it stated in no uncertain terms that an employee had the right to opt out within
thirty days of completing the course by sending a written notice, by certified mail, to Apria’s
Legal Department.71 The Arbitration Agreement itself—which employees were required to
acknowledge receiving in order to complete APR702—unequivocally states that if an employee
fails to timely opt out, she will be bound by the agreement if she continues working for Apria
after the thirty-day opt-out period has expired.72
Plaintiff does not argue that these provisions are confusing or ambiguous, or that a thirtyday opt-out period is insufficient. Rather, she suggests that even if it can be shown that she did
take APR702, she should not have had to download the Arbitration Agreement to view it
(because that was not typical of Learning Central courses), and that Defendant’s records suggest
that she did not spend sufficient time viewing the slides to read and understand the material and
attachments.73 The Court finds these arguments unpersuasive, as it would have been within
Plaintiff’s control to spend the time necessary to download documents and understand her rights,
when those rights were communicated to her through a system Defendant regularly used to relay
information to its employees. Thus, if it is established that Plaintiff took APR702, the question
71
Doc. 10-6 at 1; Doc. 12-2 at 26
72
Doc. 10-3 at 4, 8.
73
Doc. 13-1 at 12–14.
15
of Plaintiff’s assent through her failure to opt out will also be decided and the parties shall
proceed to arbitration.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for Leave
to File Surreply Memorandum (Doc. 13) and Defendant’s Motion for Leave to File Substitute
Declaration of Michael Goldsmith in Support of Defendant’s Motion to Compel Arbitration
(Doc. 15) are granted. Defendant’s Motion to Stay the Case and Compel Arbitration (Doc. 9) is
denied.
IT IS FURTHER ORDERED that this matter shall proceed to trial on the existence of
an agreement to arbitrate on a date to be determined.
IT IS FURTHER ORDERED that no later than October 26, 2018, Plaintiff shall file a
notice informing the Court whether she requests a jury trial of this matter.
IT IS SO ORDERED.
Dated: October 15, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?