Lasseigne v. Sterling Jewelers, Inc.

Filing 22

ORDER AND REASONS granting 7 MOTION to compel; arbitration pursuant to the RESOLVE Program is compelled, and the matter is STAYED AND ADMINISTRATIVELY CLOSED pending arbitration. Any party may file a written motion to re-open the case within thirty days after final resolution of the arbitration proceeding. Signed by Judge Lance M Africk on 5/5/2017.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARY LASSEIGNE

CIVIL ACTION

VERSUS

No. 16-16925

STERLING JEWELERS, INC.

SECTION I

ORDER AND REASONS
Before the Court is the defendant’s motion 1 to dismiss or to compel arbitration.
The Court held two evidentiary hearings in connection with the motion. Having now
considered the evidence adduced at those hearings, as well as the appropriate
standard of law, the Court grants the motion and compels arbitration.
I.
Mary Lasseigne is a Caucasian female. She was hired as a sales associate by
Sterling Jewelers, Inc. d/b/a Jared the Galleria of Jewelry (“Sterling”) in February
2014. Lasseigne worked for Sterling until June 2015, when she claims that she was
constructively discharged due to her race. According to the complaint, Lasseigne’s
manager Latoya Washington—an African-American female—discriminated against
white employees like Lasseigne, habitually speaking to them in a demeaning manner
and affording preferential treatment to black employees.

Although Lasseigne

allegedly complained repeatedly about the discrimination to her district manager and
to human resources, she alleges that nothing was ever done to address the problem.

1

R. Doc. No. 7.

Lasseigne filed a charge of discrimination with the Equal Employment
Opportunity Commission after she left Sterling. In July 2016, the EEOC found
Lasseigne’s claims of racial discrimination against Washington and Sterling to be
substantiated. On September 13, 2016, Lasseigne received a right-to-sue letter. She
filed this lawsuit on December 7, 2016, alleging that Sterling’s actions violated Title
VII, 42 U.S.C. § 1981 and Louisiana state law.
Sterling immediately filed the present motion to dismiss or stay and compel
arbitration pursuant to its employment agreement with Lasseigne. Sterling argues
that upon being hired, all of its employees—including Lasseigne—must sign an
agreement to resolve employment-related disputes through the “RESOLVE
Program.”
According to Sterling, the RESOLVE Program is a three-step alternative
dispute resolution program with the final step being mandatory arbitration. On their
first day of work, new Sterling employees log into Sterling’s human resources system
and begin an electronic onboarding process. The process requires the employees to
access a number of mandatory screens addressing various human resources topics.
Among the subjects the employee must review is Sterling’s RESOLVE Program. The
employee clicks on a link which opens a page summarizing the RESOLVE Program
agreement. The page instructs the employee to “click the following link to review the
RESOLVE Program” agreement in its entirety. See R. Doc. No. 7-3, at 4. At the
bottom of the page, the employee must enter her electronic signature signifying that
“I acknowledge that I have read, understand, and agree to the terms and conditions

2

established in the RESOLVE Program Arbitration Agreement.” See R. Doc. No. 7-3,
at 4. The employee may not proceed past that point in the onboarding process until
he or she reviews the RESOLVE Program and clicks on the link signifying the
employee’s agreement to it.
In support of its motion, Sterling submitted computer records evidencing
Lasseigne’s electronic signature agreeing to the terms and conditions of the
RESOLVE Program. The records show that Lasseigne’s electronic signature was
provided at 2:47pm on February 24, 2014—Lasseigne’s first day of work. Sterling
explained that an employee’s electronic signature cannot be entered without first
entering a personal code which only the employee knows. The computer records the
amount of time spent at each step of the onboarding process. According to the records,
Lasseigne spent thirty seconds on the page displaying the RESOLVE Program
agreement.
In a declaration attached to her opposition, Lasseigne claimed that she “never
completed the computer portion of my orientation” because her “login procedure was
ineffective.” See R. Doc. No. 12-2. She instead asserted that “Keenan Goldsmith, the
general manager of my store, actually completed the computer portion of my initial
employee processing.” See R. Doc. No. 12-2. Lasseigne also submitted declarations
from other former Sterling sales associates—and an assistant general manager—in
which they claimed never to have been made aware of the RESOLVE Program and
not to have knowingly agreed to participate in the RESOLVE Program. She argued

3

that she could not be forced to participate in the Program because she did not sign
the agreement and she was never made aware of the Program.
II.
The Court held two evidentiary hearings. In addition to testifying herself at
the hearings, Lasseigne called to testify each of the former Sterling employees who
had submitted declarations in support of her opposition. At the Court’s direction,
Keenan Goldsmith, the general manager who guided Lasseigne through the
electronic onboarding process, was called to testify.

The only witness called by

Sterling was Jamie Broadhead, the Director of Human Resources for Sterling.
Each of the former Sterling employees called to testify by Lasseigne—Thomas
Mancil, Shana Johnson, George Peralta, and Patsy LaRive—did not remember the
RESOLVE Program. However, when confronted with their signatures, none of the
witnesses denied that they had signed the arbitration agreement. Neither did any of
the witnesses deny that they had been afforded an opportunity to read all of the
documents with which they were presented during the onboarding process. 2

An exchange with Lasseigne’s first witness, Thomas Mancil, is representative. See
R. Doc. No. 21, at 15:9-24:11:

2

Q.
A.
...
THE COURT:

THE WITNESS:

So you agree that you – you don’t dispute that you agreed
to participate in the RESOLVE Program, correct?
I cannot argue that. I’d have to agree, it has my signature
on it.
As you testify here today, you cannot testify as to what
you remember seeing exactly or not with respect to all of
the documents that were on this onboarding process; is
that right?
That is correct.
4

Lasseigne testified that her memory of the onboarding process as a whole was
not sharp, though she was certain that she and Mr. Goldsmith switched chairs at
least once at the beginning of the onboarding process in order to allow him to fix a
computer problem. 3 Although Lasseigne was initially adamant that she neither saw
nor signed the RESOLVE agreement during her onboarding process, her subsequent
testimony revealed that Lasseigne did not remember many of the documents with
which she was presented during the onboarding process. 4 When Lasseigne was

THE COURT:

THE WITNESS:
3

See R. Doc. No. 21, at 45:2-45:13:
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:

4

Okay. However, you’re not denying that you visualized it
and had a chance to read the documents that were part
of the onboarding process at the time that you
electronically signed the documents; is that correct?
That’s correct, your Honor.

I am getting the impression, correct me if I am wrong
whether this is a fair statement or not, that you
remember there was a problem logging in, right?
Right.
You remember giving -- is it Keenan?
Keenan Goldsmith.
-- your Social Security number, correct?
Yes, your Honor.
Okay. But with respect to the rest of the process, it
appears to me, correct me if I am wrong, that your
recollection is foggy about it; is that a fair statement?
Yes. Yes.

See R. Doc. No. 21, at 51:6-51:23:
THE COURT:

THE WITNESS:

Do you remember seeing the Statement of Standards of
Conduct and Business Ethics, which is No. 1 on that, on
this form dated February 24th, 2014? Do you remember
seeing that?
No, I do not.
5

questioned about the sworn statement she had submitted in connection with her
opposition, she admitted that several of the assertions in the statement—which was
not prepared by Lasseigne but rather by her counsel—were not entirely accurate.
She admitted, for example, that the declaration’s statement that “During my
onboarding process I never completed the computer portion of my orientation,” was
not true. 5 She also clarified that although her declaration stated that “Keenan
Goldsmith, the general manager of my store, actually completed the computer portion
of my initial employee processing,” what she meant was that Mr. Goldsmith used the
computer at some point during the beginning of her onboarding process. 6 Lasseigne
conceded that she had completed at least part of the computer portion. 7
Ultimately, Lasseigne simply could not remember those portions of the
electronic onboarding process in which Mr. Goldsmith may have participated. 8 She

THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:

THE WITNESS:

Do you remember seeing the Field Acknowledgment of
the Team Member Training?
I can’t say.
Do you remember seeing the Information Security Policy
and Acknowledgement?
I want to say No. 4, maybe, the security policy.
So you might have seen that?
Yes.
Do you remember seeing No. 5 the EPR non CA, WV, CT,
NY Employee Purchases Reimbursement? Do you
remember seeing that while you were going through the
process?
No.

See R. Doc. No. 21, at 56:15-56:19.
See R. Doc. No. 21, at 55:12-55:21.
7 See R. Doc. No. 21, at 55:22-56:21.
8 See R. Doc. No. 21, at 57:8-58:2:
5
6

6

was certain, however, that Mr. Goldsmith never instructed her not to read certain
documents during the onboarding process and that Mr. Goldsmith never shielded any
documents from her view during the process. 9
Mr. Goldsmith, although he was unable to remember conducting the
onboarding with Lasseigne specifically, was able to elucidate why it may have been
necessary for him to use the computer during Lasseigne’s electronic onboarding
process. He testified:

THE COURT:
THE WITNESS:
THE COURT:

THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
9

So was he active in providing information during this
onboarding process to anything other than the login
procedure, other than the login to the computer?
I know I keep going around, I’m sorry, I don’t remember.
I’m just - I know he asked me my Social Security and stuff
like that, that’s the only thing I can remember . . . .
So [is] it a fair statement that you cannot testify with any
certainty that Keenan did anything to input information
into the computer other than with the login, other than
with the login information, you can’t say after that what
he put in or what he didn’t put in?
No.
Am I correct about that?
Yes. Yes, your Honor.
Okay.

See R. Doc. No. 21, at 50:1-50:9:
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:

Did Keenan ever instruct you not to read any documents
during this onboarding process?
Did he ever instruct me –
Tell you not to read certain documents?
No.
To your knowledge, did he ever shield any of the
documents in that onboarding process from you so that
you could not see them?
Not that I am aware of.
7

Q.
A.
Q.
A.

Okay. Do you remember the -- do you remember anything about Mary
Lasseigne’s on-boarding process at all?
No. I remember I did it, but I don’t remember all the specifics of it.
Do you remember there being any issue with the logging-in procedure
with respect to Mary?
Not specifically with respect to her. But I can say with the new onboarding process that we had with the computer system, we would get
kicked off a lot. There were several passwords that you had to put in,
so a lot of times you’d have to stop to go and get the information that
you needed password-wise and come back to fill in the information.

R. Doc. No. 20, at 6:12-6:23. Later, when confronted with the question of whether he
might sometimes enter information during an employee’s onboarding process which
was supposed to be entered by the employee, Mr. Goldsmith testified:
Q.
A.
Q.
A.

And you didn’t complete any portion of the on-boarding other than
what you were required to complete, that being the I-9 and then the
payroll information?
Correct.
So you wouldn’t go through and acknowledge any policies that were
presented to the new employee during the on-boarding process?
No. That would be a big no-no.
THE COURT:

Let me ask you something. Let me get to the meat
of this, if I can. In your entire career as a general
manager -- this is Judge Africk. [Mr. Goldsmith
testified by telephone at the agreement of the
parties].
THE WITNESS: Yes, sir.
THE COURT:
-- a general manager at Jared, did you ever
electronically sign a new hire’s name to a document
on the computer during the on-boarding process?
THE WITNESS: No, sir. That would be against company policy.
THE COURT:
And did you ever complete any portion of the onboarding process which was required to be
completed by the applicant?
THE WITNESS: No.

8

R. Doc. No. 20, at 13:23-14:19. 10
With respect to the final witness, Sterling’s HR representative Jamie
Broadhead, nothing material was established outside of that which had already been
submitted to the Court in connection with the briefs.
III.
A.
The Federal Arbitration Act (“FAA”) provides that federal courts shall enforce
arbitration agreements. See 9 U.S.C. §§ 3-4. The FAA “calls for a summary and
speedy disposition of motions or petitions to enforce arbitration clauses.” Bell v. Koch
Foods of Mississippi, LLC, 358 F. App’x 498, 500 (5th Cir. 2009) (internal quotation
marks omitted). “It was Congress’s clear intent, in the FAA, to move the parties to

At one point, Mr. Goldsmith was questioned as to whether employees were asked
to sign documents during the onboarding process without being afforded an
opportunity to read them:
10

THE COURT:
THE WITNESS:

Would you ever tell an employee to sign a document
without allowing the employee to read it?
Umm, geez . . . Honestly, it’s been so long ago, I don’t
know. I just know that the process was lengthy and there
were times that we had to expedite it but make sure that
things were signed.

R. Doc. No. 20, at 19:8-19:13. Mr. Goldsmith also testified, however, that he would
never electronically sign a document which was required to be signed by the
employee. See, e.g., R. Doc. 20, at 19:5-19:7. Further, Lasseigne specifically testified
that Mr. Goldsmith never instructed her to sign a document without providing her
an opportunity to read it. See R. Doc. No. 21, at 50:1-50:9. Accordingly, having
reviewed all of Mr. Goldsmith’s testimony and having placed it in context with all of
the testimony at the evidentiary hearings, the Court specifically finds that the
credible evidence is that Lasseigne was afforded an opportunity to read the
RESOLVE Program agreement without interference by Mr. Goldsmith.
9

an arbitrable dispute out of court and into arbitration as quickly and easily as
possible.” Id. at 500-501 (internal quotation marks omitted).
Because arbitration is a matter of contract between the parties, a court cannot
compel a party to arbitrate unless the court determines that the parties agreed to
arbitrate. See Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061,
1064 (5th Cir. 1998). As such, courts conduct a bifurcated inquiry to determine
whether parties should be compelled to arbitrate a dispute. Washington Mut. Finance
Group, LLC v. Bailey, 364 F.3d 260, 263 (5th Cir. 2004). First, the court determines
whether the parties agreed to arbitrate the particular type of dispute at issue. Carey
v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 205 (5th Cir. 2012). If so, the court next
determines whether any applicable federal statute or policy renders the claims
nonarbitrable. Dealer Computer Servs. v. Old Colony Motors, Inc., 588 F.3d 884, 886
(5th Cir. 2009). As no party argues that a federal statute or policy renders the claim
nonarbitrable, the analysis begins and ends with the first step of the inquiry.
To determine whether the parties have agreed to arbitrate a particular claim,
this Court considers: “(1) whether there is a valid agreement to arbitrate between the
parties; and (2) whether the dispute in question falls within the scope of that
arbitration agreement.” JP Morgan Chase & Co. v. Conegie ex rel. Lee, 492 F.3d 596,
598 (5th Cir. 2007) (internal quotation marks omitted). Lasseigne does not argue
that this dispute falls outside of the arbitration provision if it is valid. The question
is simply whether there is a valid agreement to arbitrate. As to that question, the
Supreme Court has made clear that unless the parties “clearly and unmistakably”

10

provide that the arbitrator should answer it, the “question of arbitrability” is “an
issue for judicial determination.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79,
83 (2002).
To obtain an evidentiary hearing on the validity of the arbitration agreement,
a plaintiff must make at least “some showing that under prevailing law” she would
be relieved of her contractual obligation to arbitrate if her allegations prove to be
true, and she must produce “some evidence” to substantiate her factual allegations.
See Am. Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 710 (5th Cir. 2002); see also
Chester v. DirecTV, L.L.C., 607 F. App’x 362, 365 (5th Cir. 2015). Although the Court
was skeptical that Lasseigne had met that standard, the Court nevertheless decided
that a hearing was appropriate given Lasseigne’s sworn declaration. After hearing
the evidence adduced at the evidentiary hearing and Lasseigne’s abandonment of
material portions of her declaration, the Court concludes that the arbitration
provision is valid and enforceable.
B.
When determining whether the parties entered into a valid agreement to
arbitrate, federal courts use ordinary state law contract principles.

Precision

Builders, Inc. v. Olympic Grp., L.L.C., 642 F. App’x 395, 400 n.5 (5th Cir. 2016). Both
parties agree that Louisiana law applies. Both parties also agree on the relevant
aspects of Louisiana contract law. Suffice it to say, under Louisiana law a contract
is not formed unless there is a meeting of the minds of the parties through offer and
acceptance. See La. Civ. Code art. 1927.

11

More to the point, under Louisiana law “[i]t is well settled that a party who
signs a written instrument is presumed to know its contents and cannot avoid its
obligations by contending that he did not read it, that he did not understand it, or
that the other party failed to explain it to him.” Aguillard v. Auction Mgmt. Corp.,
908 So. 2d 1, 17 (La. 2005). Under the Louisiana Uniform Electronic Transactions
Act, “[a]n electronic record or electronic signature is attributable to a person if it was
the act of the person” and “[t]he act of the person may be shown in any manner,
including a showing of the efficacy of any security procedure applied to determine the
person to which the electronic record or electronic signature was attributable.” La.
R.S. § 9:2609(A)(1) and (2). The Act further states that the effect of an “electronic
signature attributed to a person . . . is determined from the context and surrounding
circumstances at the time of its creation.” La. R.S. § 9:2609(B).
Sterling submits evidence of Lasseigne’s electronic signature on the RESOLVE
Program agreement, as well as evidence corroborating that it was Lasseigne herself
who signed the agreement. Lasseigne insists she did not electronically sign the
arbitration provision.
Under the Fifth Circuit’s standard, if Lasseigne places the making of the
arbitration agreement “in issue,” as that phrase has been construed, then Sterling
must prove the validity of the arbitration agreement by a preponderance of the
evidence. See Grant v. Houser, 469 F. App’x 310, 315 (5th Cir. 2012). To put the
making of the arbitration agreement “in issue,” the plaintiff is “required to
unequivocally deny that [she] agreed to arbitrate and produce some evidence

12

supporting [her] position.” Chester, 607 F. App’x at 363-364 (internal quotation
marks omitted). Because the plaintiff in Chester “unequivocally denied” making the
arbitration agreement and “produced an affidavit” stating as much, the Fifth Circuit
held that the making of the arbitration agreement was “in issue.” Id. at 365 (citing 9
U.S.C. § 4).
Assuming that Lasseigne can be considered to have placed the making of the
arbitration agreement in issue, the context and surrounding circumstances at the
time of the electronic signature demonstrate by a preponderance of the evidence that
the signature on the arbitration agreement is attributable to Lasseigne. See La. R.S.
§ 9:2609. The Court does not find Lasseigne’s claim that she did not electronically
sign the arbitration provision to be credible. The evidentiary hearings established
that Lasseigne could not remember which documents she was presented with and
which documents she signed during her onboarding process. Although Lasseigne
suggested in her sworn statement that Mr. Goldsmith completed the entire computer
portion of her onboarding process, she backpedaled from that statement on the
witness stand. Ultimately, the only point on which Lasseigne was consistent in her
testimony was her statement that Mr. Goldsmith asked her for her social security
number towards the beginning of the electronic onboarding process, and then briefly
switched places with her to work on the computer.
The reason for such a switch was clarified by Mr. Goldsmith, who explained
that he often had to change positions with new employees during the onboarding
process in order to log in for the employee after a computer malfunction. Critically,

13

Mr. Goldsmith was explicit that he never used such opportunities to enter
information which was supposed to be entered by the new employee. The Court found
his testimony on these points to be credible, especially noting that Mr. Goldsmith no
longer works for Sterling.
The testimony of Lasseigne’s other witnesses also militated against her
position. In response to their sworn declarations that they did not sign the RESOLVE
arbitration agreement, Sterling produced copies of the agreement signed by each of
the witnesses whose testimony Lasseigne relies on. When confronted with their
signatures at the hearing, none of Lasseigne’s witnesses denied their authenticity.
Similarly, no witness for the plaintiff denied being afforded an opportunity to review
the documents which they signed during the onboarding process. The Court found
their testimony to be credible.
All of the evidence in the record apart from Lasseigne’s own self-serving
declaration weighs in favor of the conclusion that Lasseigne’s electronic signature
should be attributed to her. At the evidentiary hearing, Lasseigne admitted that her
statements in the declaration were exaggerated. See R. Doc. No. 21, at 55:12-55:21.
Considering all of the evidence, the Court concludes that Lasseigne’s vague
recollection of the onboarding process cannot overcome the testimony of the other
witnesses or the documentary evidence.

The totality of the circumstances

demonstrate that it is more likely than not that Lasseigne electronically signed the
RESOLVE Program agreement and that Lasseigne was afforded an opportunity to
review the agreement before she signed it.

14

The only remaining question is whether to dismiss Lasseigne’s claims or stay
the case pending the conclusion of the arbitration proceedings.

Fifth Circuit

precedent makes clear that the latter option is the better one. See Ruiz v. Donahoe,
784 F.3d 247, 249 (5th Cir. 2015) (observing that “the proper course of action is
usually to stay the proceedings pending arbitration”); Pacheco v. PCM Const. Servs.,
L.L.C., 602 F. App’x 945, 949 n.2 (5th Cir. 2015) (recognizing that dismissal of an
action pendant to a motion to compel arbitration “may be a debatable procedure”).
IV.
For the foregoing reasons,
IT IS ORDERED that the motion to compel is GRANTED, that arbitration
pursuant to the RESOLVE Program is compelled, and that the above-captioned
matter is STAYED AND ADMINISTRATIVELY CLOSED pending arbitration.
Any party may file a written motion to re-open the above-captioned case within
thirty days after final resolution of the arbitration proceeding.

New Orleans, Louisiana, May 5, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

15