Gonzales v. J.C. Penney Corporation, Inc.

Filing 33

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Evidentiary Hearing set for 10/17/2013 at 03:30 PM before Chief Judge Gregory K Frizzell); granting in part and denying in part 29 Motion for New Trial (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

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REBECCA L. GONZALES,
Plaintiff,
v.
J.C. PENNEY CORPORATION, INC.,
a Foreign for Profit Business Corporation,
Defendant.

Case No. 13-CV-86-GKF-TLW

OPINION AND ORDER
Before the court is the Motion for New Trial [Dkt. #29] filed by plaintiff, Rebecca L.
Gonzales (“Gonzales”). Gonzales seeks reconsideration of the court’s order of April 29, 2013
[Dkt. #26] granting in part the Motion to Compel Arbitration and to Dismiss or, in the
Alternative, Stay All Proceedings [Dkt. ##11-12] filed by defendant J.C. Penney Corporation,
Inc. (“JCP”). In that order, the court found the parties had signed a binding arbitration
agreement that required arbitration of plaintiff’s claims.
Plaintiff seeks reconsideration, arguing: (1) the affidavits in support of JCP’s motion
were signed by JCP employees who lacked personal or first-hand knowledge of the actual
events; (2) the order mischaracterized facts in Gonzales’ affidavits or placed undue emphasis on
a small portion of one affidavit while ignoring other important testimony also contained therein;
(3) the court erred in finding that the arbitration agreement enforceable because JCP’s ability to
amend the agreement was not unfettered; and (4) the provision allowing JCP a unilateral right to
amend was at the very least, ambiguous, and ambiguities must be construed against JCP.

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I. Standard of Review
“[A] Rule 59(e) motion to reconsider is designed to permit relief in extraordinary
circumstances and not to offer a second bite at the proverbial apple.” Syntroleum Corp. v.
Fletcher Int’l, Ltd., No. 08-CV-384-JHP-FHM, 2009 WL 761322, at *1 (N.D. Okla. March 19,
2009) (quoting Maul v. Logan Cty. Bd. of Cty. Comm’rs, No. CIV-05-605, 2006 WL 3447629, at
*1 (W.D. Okla. Nov. 29, 2006)). A motion to reconsider may be considered on the following
grounds: “(1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark Corp. v. Samson
Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)). In other words, when the court has
“misapprehended the facts, a party’s position, or the controlling law,” a motion to reconsider is
appropriate. Id.; see Syntroleum Corp., 2009 WL 761322, at *1. Parties’ efforts to “revisit
issues already addressed or advance arguments that could have been raised in prior briefing” will
not be considered. Maul, 2006 WL 3447629, at *1.
II. Analysis
A. JCP Affidavits
In support of its motion to compel arbitration, JCP submitted affidavits of Bret J.
Romero, JCP’s Director of Human Resources, and Kelley Perry, an Application Analyst for JCP.
[Dkt. #11, Ex. A, Romero Affid.; Dkt. #17, Ex. 1, Perry Affid.]. The affidavits described the
process employees go through to fill out paperwork such as I-9 and W-4 forms, enroll for direct
deposit and benefits and receive an employee identification number. They establish that during
the new hire process, Gonzales was required to sequentially complete a task list which included

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completing a W-4, electronically signing and agreeing to the arbitration agreement at issue,
providing emergency contacts and signing various acknowledgments.
Plaintiff argues that the affidavits were not admissible because neither Romero nor Perry
has first-hand knowledge of the events and process she went through upon being hired in Tulsa.
The court rejects this argument. The affiants have personal knowledge of the new hire process,
which involves entry of information and the employee’s electronic signature on an employee
kiosk. Perry stated that the process requires employees to sequentially complete a task list and
each task on the task list must be completed before the new hire process was complete and the
employee was allowed to work. JCP’s records indicate that Gonzales completed each of the
tasks, including electronically signing the Binding Arbitration Agreement.
B. Gonzales Affidavits
Gonzales submitted two affidavits concerning her new hire experience. Based on its
review of the affidavits, the court concluded that “Gonzales admits going through the new hire
process, including electronically filling out other forms at a terminal” and “[a]lthough Gonzales
denies the terminal was a ‘kiosk,’ her affidavit establishes that she completed new hire forms
electronically on a device she described as a ‘Time Clock [with] a key pad.” [Dkt. #26 at 6].
The court based this conclusion, in part, on the following statement by Gonzales in her first
affidavit:
7. I remember filling out paper work once hired for a 401K, tax information,
contact information, relative contact information and medical stuff, but, not the
documents attached here titled “Binding Mandatory Arbitration Agreement” by
paper or computer.
[Dkt. #15, Ex. A, Gonzales Affid. (emphasis added)]. The court interpreted the term “paper
work” to be a generic reference to completion of forms, whether electronic or paper. Based on
its understanding of the term “paper work” and on Gonzales’ admission that she entered
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information in a kiosk or “time clock with a key pad,” the court concluded Gonzales had
admitted she signed various forms electronically.
Gonzales now asserts that those forms were actually paper forms and the only
information she entered electronically was her social security number. The clarification by
Gonzales establishes a material issue of fact about whether she signed the arbitration agreement.
Therefore, a hearing must be conducted to resolve whether Gonzales signed the agreement.
C. Enforceability of Arbitration Agreement
The court found that the arbitration agreement was enforceable because, although it gave
JCP the right to amend the agreement, the right was not “unfettered.” [Dkt. #26 at 8]. Gonzales
argues the court erred because, in order to be enforceable, the agreement must contain language
requiring JCP to give notice of changes to employees.
The court disagrees. Under Oklahoma law, “reasonable modification provisions are
permissible” and “an arbitration agreement allowing a defendant company the unilateral right to
modify or terminate the agreement is not illusory so long as reasonable restrictions are placed on
the right.” Hardin v. First Cash Financial Services, Inc., 465 F.3d 470, 479 (10th Cir. 2006)
(citing Wilson v. Gifford-Hill & Co., Inc., 570 P.2d 624, 626 (Okla. Civ. App. 1977); Pierce v.
Kellogg, Brown & Root, Inc., 245 F.Supp.2d 1212, 1215 (E.D. Okla. 2003)). Neither Hardin nor
the cases it cites explicitly require that a modification provision include a notice provision in
order to be considered “reasonable,” although the provisions at issue in those cases did have
notice requirements. In any event, though, Rule 21 provides, “Amendments only apply to cases
commenced 90 days after publication of the amendment.” The requirement that changes be
published, the exclusion of application of changes to cases filed less than 90 days after
publication, the restriction of amendments to clarify the rule or correct typographical errors or to

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amend or delete parts of the rule to conform with a court’s or arbitrator’s decision deeming it
unenforceable, in combination render the modification provision “reasonable.”
Gonzalez also argues the term “clarify” renders Rule 21 unenforceably vague. The court
rejects this argument. “Clarify” is defined as “to make understandable” or “to free of
confusion.” Merriam-Webster Dictionary. Based on this definition, an amendment to “clarify”
would be restricted to an amendment that makes a provision already in the rule more
understandable.
III. Conclusion
For the reasons set forth above, plaintiff’s Motion for New Trial [Dkt. #29] is granted in
part and denied in part. The motion is granted with respect to the issue of whether plaintiff
signed the arbitration agreement. An evidentiary hearing on that issue is set for October 17,
2013, at 3:30 p.m.. The motion is denied with respect to the remaining grounds alleged y
plaintiff.
ENTERED this 8th day of July, 2013.

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