GOMEZ v. RENT-A-CENTER, INC.

Filing 19

OPINION. Signed by Judge Kevin McNulty on 7/10/2018. (JB, )

Case 2:18-cv-01528-KM-SCM Document 19 Filed 07/10/18 Page 1 of 10 PageID: 124

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ALTAGRACIA GOMEZ,
Plaintiff,
Civ. No. 2:18-cv-1528-KM-SCM
vs.
OPINION
RENT-A-CENTER, INC., JOHN DOES
#1-10, ABC ENTITIES #1-10,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Altagracia Gomez (“Ms. Gomez”) sues her former employer,
Rent-A-Center, Inc. (“Rent-A-Center”). She alleges that she was harassed and
wrongfully terminated because of her race, national origin, disability, and
status as a single mother—and also for reporting illegal conduct. Now before
the court is Rent-A-Center’s motion to dismiss and compel arbitration.
BACKGROUND1

I.

Plaintiff Altagracia Gomez is a New Jersey resident who began working
for defendant Rent-A-Center in 2002. (Compl.

¶J

1, 9). Ms. Gomez worked until

2013, when she was allegedly forced to resign because she was unable to work
assigned hours and needed to take care of new newborn child. (Compl.

¶

9).

Ms. Qomez reapplied to work at Rent-A-Center around April 2016.
(Compl.

¶

10). She was hired as an assistant manager around May 2016 in a

Jersey City location. (Compl.

¶

10). Rent-A-Center agreed that her work hours

All facts and inferences are made in favor of the nonmoving party on a motion
to dismiss. Citations to the complaint (ECF No. 1-1) are abbreviated as “Compi.”
I

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would be from 9:00am to 5:30pm. (Compi.

¶

11). This accommodation was

provided to Ms. Gomez because she was a single mother and has medical
needs related to iron deficiency, anemia, vitamin 312 deficiency, and
thrombophilia. (Compl.

12). Her direct supervisor, Ms. Maribelle Esteves, was

¶

aware of this accommodation. (Compl.

¶

12).

On June 2016, Ms. Gomez noticed that money was missing or
unaccounted for from the register. (Compi.
issue to Ms. Esteves. (Compl.

¶

¶

14). She immediately reported the

14). Ms. Esteves did not take corrective action

and the issue continued into July 2016. (Compl.

¶f

15-16). Ms. Gomez

reported her concern to the district manager, Mr. Alberto Ramos. (Compl.

¶

16). However, Mr. Ramos did not take corrective action and told Ms. Gomez
just to do her job. (Compl.

¶

16).

Additionally, several managers or co-workers made racist comments and
jokes regarding Ms. Gomez’s Dominican ethnicity and accent. (Compi.

¶

18).

Rent-A-Center held a meeting to discuss this conduct toward Ms. Gomez on or
about October 10, 2016. (Compl.

¶

18).

Around November 2016, Ms. Esteves changed Ms. Gomez’s hours and
required her to work until 7:00pm on Mondays and Fridays. (Compi.
She was required to work those hours or would lose her job. (Compi.

¶ 19-20).
¶ 20).

This change interfered with Ms. Gomez obtaining care for her medical needs
and her child. (Compl.
was

¶

¶

21). Ms. Gomez’s medical conditions worsened; she

diagnosed with major depressive disorder in November 2016. (Compl.

23).
On December 8, 2016, Ms. Gomez allegedly witnessed Ms. Esteves and

her son take two Xbox One video game consoles from Rent-A-Center without
purchasing or renting the equipment. (Compl.

¶

24). Ms. Gomez reported this

to Mr. Ramos the same day but Mr. Ramos refused to take any action. (Compl.

¶

24).
On December 10, 2016, Rent-A-Center terminated Ms. Gomez. (Compl.

¶

25). Ms. Gomez alleges that this was done in retaliation for reporting Ms.
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Esteves and as a result of her race, national origin, disability, and status as a
single mother. (Compl.

¶

26). She seeks damages for lost front and back pay,

emotional distress, lost employment benefits, and an impaired reputation.
(Compl.
•

¶

27). Ms. Gomez asserts eight counts:

Count 1: Violation of the Conscientious Employee Protection Act
(“CEPA”) hostile work environment (Compl. ¶j 29-34)
Count 2: Violation of CEPA adverse employment actions (Compl.
¶f 35-40)
Count 3: Violation of public policy per Pierce v. Odho Pharmaceutical
Corp., 417 A.2d 505 (N.J. 1980) (Compl. ¶j 41-44)
Count 4: Violation of the New Jersey Law Against Discrimination
(“NJLAD”) adverse employment action (Compl. ¶f 45-54)
Count 5: Violation of NJLAD failure to accommodate disability (Compl.
¶ 55-62)
Count 6: Violation of NJLAD harassment (Compl. ¶ 63-66)
Count 7: Punitive damages (Compl. ¶3j 67-71)
Count 8: Respondeat superior liability (Compl. ¶1J 72-78).
—

•

•
•

—

—

•
•
•
•

—

—

Ms. Qomez filed a case against Rent-A-Center in the Superior Court of New
Jersey on November 17, 2017. (ECF No. 1). Rent-A-Center removed the case to
this court on February 5, 2018. (ECF No. 1). Now before the court is
Rent-A-Center’s motion to dismiss and compel arbitration. (ECF No. 5).
Rent-A-Center argues that Ms. Gomez’s claims are subject to arbitration.
Rent-A-Center points to an alleged arbitration agreement that states, in
relevant part:
The Company and I mutually consent to the resolution by
arbitration of all claims or controversies (“claims”), past, present or
future, including without limitation, claims arising out of or related
to my application for employment, assignment/employment,
and/or the termination of my assignment/employment that the
Company may have against me or that I may have against any of
the following: (1) the Company, (2) its officers, directors,
employees, or agents in their capacity as such or otherwise, (3) the
Company’s parent, subsidiary, and affiliated entities, (4) the benefit
plans or the plans’ sponsors, fiduciaries, administrators, affiliates,
and agents, and/or (5) all successors and assigns of any of them.
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(ECF No. 5-1, ex. 3). Ms. Gomez disputes the validity and enforceability of this
purported agreement.
II.

DISCUSSION

The Federal Arbitration Act (“FAA”), 9 U.S.C.

§ 1 et seq., created a strong

federal policy in favor of arbitration. It authorizes a party to enforce a valid
arbitration agreement by moving to compel such arbitration. In re Pharmacy
Benefit Managers Antitrust Litig., 700 F.3d 109, 116 (3d Cir. 2012). Arbitration,
however, is a matter of contract between parties, so a judicial mandate to
arbitrate must be predicated on the parties’ consent. Guidotti u. Legal Helpers
Debt Resolution, L.L.C., 716 F,3d 764, 771 (3d Cir. 2013) (quoting Par-Knit
Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir. 1980)). The
court must be satisfied that the agreement to arbitrate is effective before
compelling arbitration. Id.
Rent-A-Center argues that whether the arbitration clause controls and
whether Ms. Gomez was subject to unlawful actions should be determined by
an arbitrator. Ms. Gomez makes three arguments why these matters should
not be referred to arbitration: (A) Ms. Gomez has no knowledge (i.e., does not
remember) signing an arbitration agreement and Rent-A-Center has, allegedly,
not established that the electronic signature is her signature; (B) Ms. Gomez
did not understand that she was agreeing to arbitrate her claims and waive a
jury trial; and (C) a federal court—not an arbitrator—should determine whether
the arbitration agreement is valid and enforceable. (ECF No. 9, pp. 4-10).
A. Knowledge of Agreement

Ms. Gomez claims no memory of signing the agreement. (ECF No. g, pp.
2-3). She argues that Rent-A-Center “fails to set forth and confirm that th[el
electronic signature

...

was entered by Ms. Gomez herself.” (ECF No. 9, p. 5).

She asserts that “[a]nyone could have typed Ms. Gomez’s name into the 2016
Arbitration Agreement and Defendant has failed to prove that has not
otherwise happened.” (Id.).

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Section 4 of the FAA sets forth the procedure when a court is presented
with a petition to compel arbitration. That section provides, in relevant part:
A party aggrieved by the alleged failure, neglect, or refusal of
another to arbitrate under a written agreement for arbitration may
for an order directing
petition any United States district court
that such arbitration proceed in the manner provided for in such
agreement.... The court shall hear the parties, and upon being
satisfied that the making of the agreement for arbitration or the
failure to comply therewith is not in issue, the court shall make an
order directing the parties to proceed to arbitration in accordance
with the terms of the agreement.... If the making of the arbitration
be in issue, the court shall proceed summarily to the
agreement
trial thereof.
9 U.S.C. § 4. Although a party may demand ajuiy trial when issues respecting
...

...

arbitrability are “in issue,” 9 U.S.C.

§ 4, “[a] party resisting arbitration

...

‘bears

the burden of showing that he is entitled to a jury trial.”’ Doctor’s Assocs., Inc.
a Stuart, 85 F.3d 975, 983 (2d Cir. 1996) (citing Dillard u. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 961 F.2d 1148, 1154 (5th Cir. 1992)). As when opposing a
motion for summary judgment under Federal Rule of Civil Procedure 56, the
party requesting ajuty trial must “submit evidentiaiy facts showing that there
is a dispute of fact to be tried.” Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d
352, 358 (2d Cir. 1995); see Stuart, 85 F.3d at 983-84 (party must demonstrate
a “genuine” issue); see also Great Earth Cos., Inc a Simons, 288 F.3d 878,
888-89 (6th Cir. 2002).
Ms. Gomez’s Certification states that she does not remember signing the
arbitration agreement, but that if she did, she did not understand she was
giving up her right to ajuiy trial. (“Gomez Cert.”

9 4—5, ECF no. 9-1) With

respect to contractual disputes, federal courts have consistently held that a
party’s failure to recall a relevant event is insufficient to raise an issue as to the
occurrence of that event. See Batiste a Island Records, Inc., 179 F.3d 217, 223
(5th Cir. 1q99) (plaintiffs inability to remember signing contracts is insufficient
to raise a material issue as to validity of the agreement); LV Sen’s. of Am., Inc.
v. Inn Dev. & Mgmt., Inc., 182 F.3d 51, 55 (1st Cir. 1999) (plaintiffs failure to
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remember receiving document not a specific fact to defeat summary judgment);
Posey v. Skyline Corp., 702 F.2d 102, 106 (7th Cir. 1983) (inability to recall is a
“mere possibility” of a fact dispute and is insufficient basis to deny a motion for
summary judgment).
Ms. Gomez argues that she may not have signed the agreement because
there is an “electronic signature” and not a handwritten “signature.” However,
“an actual, handwritten signature is not necessary” and “a party may manifest
assent to a contract by clicking a link on a website.” Forsyth a First Trenton
Indem. Co., No. L-9185-08, 2010 WL 2195996, at *6j (N.J. Super. Ct. App.
Div. May 28, 2010); Caspi a Microsoft Network, L.L.C., 732 A.2d 528, 530 (N.J.
Super. Ct. App. Div. 1999) (finding that a plaintiff accepted an online
membership agreement, which contained a forum selection clause, where the
agreement “appear[ed] on the computer screen in a scrollable window next to
blocks providing the choices ‘J Agree’ and ‘1 Don’t Agree.”’). The fact that this
was an electronic rather than a physical signature does not create a genuine
dispute of fact as to whether Ms. Gomez signed the agreement. See Ricci, 2015
WL 333312, at *4
Ms. Gomez’s attorney does not make any straightforward contention that
Ms. Gomez did not sign, but merely argues that “anyone” could have affixed
her electronic signature to the Arbitration Agreement. Rent-a-Center, however,
has submitted uncontradicted evidence that ample safeguards were in place to
prevent “anyone” from signing the Arbitration Agreement. As a newly rehired
employee in 2016, Ms. Gomez signed an Electronic Signature Agreement.
(Declaration of Mark Tuckey (“Tuckey Decl.”)

¶

5—6 & Ex. A, ECF no. 5-1) She

does not deny signing this agreement in person. In it, she agrees that her
electronic signature will be binding, and she sets up a unique and secret
electronic signature password known only to her. And it was only by using that

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password, which she agreed to keep secret, that her electronic signature could
be affixed to the Arbitration Agreement. (Id.

¶

6)2

The admissible evidence demonstrates that Ms. Gomez assented to the
Arbitration Agreement. There is no genuine, material issue of fact requiring a
jury trial, and her bare claim that she cannot remember signing is insufficient
to create one.
B. Understanding of Agreement
Ms. Qomez also argues that she was never properly apprised of her
waiver of the right to a jury trial because the agreement was not clear. (ECF No.
9, pp. 7-8).
It is true that waivers of the right to a jury trial must be clear and
unambiguous. See Hemberger v. E*Trade Fin. Corp., No. 7-cv-1621, 2007 WL
4166012, at *35 (D.N.J. Nov. 19, 2007). This waiver, however, is clearly stated,
in boldface, capital letters calculated to draw the reader’s attention:
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS
MUTUAL AGREEMENT TO ARBITRATE CLAIMS; THAT I
UNDERSTAND ITS TERMS; THAT ALL UNDERSTANDINGS AND
AGREEMENTS BETWEEN THE COMPANY AND ME RELATING
TO THE SUBJECTS COVERED IN THE AGREEMENT ARE
CONTAINED IN IT; AND THAT I HAVE ENTERED INTO THE
AGREEMENT NOT IN RELIANCE ON ANY PROMISES OR
REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE
CONTAINED IN THIS AGREEMENT ITSELF. I UNDERSTAND
THAT BY SIGNING THIS AGREEMENT THE COMPANY AND I
ARE GWING UP OUR RIGHTS TO A JURY TRIAL AND THAT
PURSUANT TO THE TERMS OF THIS AGREEMENT, I AM
AGREEING TO ARBITRATE CLAIMS COVERED BY THIS
AGREEMENT.

Both the Electronic Signature Agreement and the Arbitration Agreement, by the
way, were signed on May 3, 2016. And in connection with her prior employment stint,
she physically signed a similar Arbitration Agreement. (Id. ¶ 7 & Ex. C) The parties
seem to dispute whether that earlier agreement governed the later, 2016 period of
employment, but that issue need not be reached unless the 2016 Arbitration
Agreement is found invalid.
2

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(ECF No. 1-1, p. 11). “It will not do for a [person] to enter into a contract, and,
when called upon to respond to its obligations, to say that [she] did not read it
when [she] signed it, or did not know what it contained.” Morales zc Sun
Constructors, Inc., 541 F.3d 218, 221 (3d Cir. 2008) (quoting Upton v. Tribilcock,
91 U.S. 45, 50 (1875)); see also Sheet Metal Workers Int’L Ass’n Local Union No.
27, AFL-CIO v. E.P. Donnelly, Inc., 673 F. Supp. 2d 313, 328 (D.N.J. 2009)
(“Walking blindfolded through one’s business affairs does not excuse the
ensuing collision.”). Courts excuse a party’s failure to comprehend a contract’s
terms in rare cases only. See, e.g., Morales, 541 F.3d at 222 (“In the absence of
fraud, the fact that an offeree cannot read, write, speak, or understand the
English language is immaterial to whether an English-language agreement the
offeree executes is enforceable.”).
Here Ms. Gomez essentially asks for an exception to the rule of contract
formation based on a general statement that she did not understand the
contract. There is no claim of fraud, misrepresentation, or any other
extenuating circumstance. See Uddin u. Sears, Roebuck & Co., No. 13-cv-6504,
2014 WL 1310292, at *5 (D.N.J. Mar. 31, 2014).
I have already found that Ms. Gomez signed the Arbitration Agreement. It
was her obligation to ensure that she understood the implications of the
agreement before signing it. See, e.g., Morales, 541 F. 3d at 223. Accordingly,
Rent-A-Center has met its burden of demonstrating that the parties formed an
agreement to arbitrate. All other issues, as stated in the following section, are
for the arbitrator to decide.
C. Arbitrabiity of Other Enforceability Issues
For arbitration to occur, there must have been an arbitration agreement
in the first place. I therefore considered as a threshold matter whether the
parties had entered into the Arbitration Agreement, and concluded that they
had. Further issues, even threshold issues as to the scope, validity, and
enforceability of the agreement itself, are committed to the arbitrator.

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The Arbitration Agreement between Rent-A-Center and Ms. Gomez
provides for a broad delegation of all issues:
The Arbitrator, and not any federal, state, or local court or agency,
shall have exclusive authority to resolve any dispute relating to the
interpretation, applicability, enforceability or formation of this
Agreement including, but not limited to any claim that all or any
part of this Agreement is void or voidable.
(ECF No. 5-1, p. 9). That is a clear statement that the parties agreed to
arbitrate all issues, including whether the Arbitration Agreement itself is
enforceable.
There is no legal bar to such a broad delegation of authority to the
arbitrator:
[P]arties can agree to arbitrate “gateway” questions of
“arbitrability,” such as whether the parties have agreed to arbitrate
or whether their agreement covers a particular controversy.... This
merely reflects the principle that arbitration is a matter of
contract.... An agreement to arbitrate a gateway issue is simply an
additional, antecedent agreement the party seeking arbitration
asks the federal court to enforce, and the FAA operates on this
additional arbitration agreement just as it does on any other.
Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68-70 (2010) (internal citations
omitted).
I have found that Ms. Gomez signed the agreement. Only if the broad
delegation of issues to the arbitrator were invalid could she bar referral of those
to arbitration. She has not shown that the agreement’s delegation of all
remaining issues, even so-called “gateway” ones, is invalid. Her remaining
issues, then, must be decided in the arbitration:
As the Supreme Court stressed in Rent-A-Center, “only [an
arbitration provision-specific] challenge is relevant to a court’s
determination whether the arbitration agreement at issue is
enforceable.” If the challenge encompasses the contract as a whole,
the validity of that contract, like all other disputes arising under
the contract, is a matter for the arbitrator to decide.

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S. Jersey Sanitation Co., Inc. v. Applied Underwriters Captive Risk Assurance
Co., Inc., 840 F.3d 138, 143 (3d Cir. 2016) (quoting Rent-A-Center, W., Inc. z.’.
Jackson, 561 U.S. at 70) (brackets in original; internal citation omitted)); see
also Quilloin v. Tenet HealthSystem Phila., Inc., 673 F.3d 221, 229 (3d Cir.
2012) (when a plaintiff “challenge[s] only the validity of the contract as a whole
rather than the validity of the delegation clause,

...

in accordance with the valid

delegation clause, questions of arbitrability (including the arbitrability of the
overall agreement to arbitrate) must go to an arbitrator” (internal quotations
omitted)).
Having found that the agreement was duly executed, I will compel
arbitration of all remaining issues.
HI.

CONCLUSION

For the foregoing reasons, Rent-A-Center’s motion to compel arbitration
of Ms. Gomez’s claims is granted. This action is stayed pending the arbitrator’s
decision. An appropriate order accompanies this opinion.

Dated: July 10, 2018
[N MCNULTY
United States District Judge

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