Barbosa-Ramos v. Amgen Manufacturing Limited Inc.
Filing
21
MEMORANDUM AND ORDER granting 8 Motion to Compel Arbitration and Dismiss filed by Amgen Manufacturing Limited. Judgment shall be entered accordingly. Signed by Judge Jay A Garcia-Gregory on 07/20/2011.(DPS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MONICA BARBOSA RAMOS,
Plaintiff
CIVIL NO. 10-1486 (JAG)
v.
AMGEN MANUFACTURING LIMITED,
Defendant
MEMORANDUM AND ORDER
GARCIA-GREGORY, D.J.
Before the Court is Amgen Manufacturing Limited’s (“Amgen”)
Motion to Compel Arbitration and Dismiss or, in the Alternative,
Stay this Action Pending the Completion of Arbitration. (Docket
No. 8). For the reasons set forth below the Court hereby GRANTS
the motion. The case shall be dismissed without prejudice.
FACTUAL BACKGROUND
On June 2, 2010, Monica Barbosa Ramos (“Plaintiff”) filed a
complaint
against
Amgen
for
gender
and
national
origin
discrimination under Title VII along with several claims under
local law. (Docket No. 1). She alleges she was terminated from
her
position
unjustifiably
as
Senior
disciplined
Project
and
Manager
treated
after
differently
she
was
than
male
Civil No. 10-1486 (JAG)
2
employees. She posits that her supervisors also discriminated
against her because she is Argentine.
As stated above, Amgen filed a motion seeking an order from
this
Court
compelling
Plaintiff
to
arbitrate
her
claims
and
dismissing the case or, in the alternative, staying the case
pending the outcome of litigation. It argues that as part of her
employment offer packet, Plaintiff received an offer letter and
a copy of an arbitration agreement. The offer letter indicates
that
the
signing
offer
the
is
Mutual
contingent,
Agreement
among
to
other
things,
upon
her
Arbitrate.
(Docket
No.
9-1,
Exhibit 1, p. 4).
Plaintiff filed a timely opposition to Amgen’s request. She
argues that Amgen waived the arbitration defense because it did
not allege it during the administrative proceedings before the
Department of Labor Antidiscrimination Unit (“ADU”); that her
claim under Act 80 of May 30, 1976, P.R. Laws Ann. tit. 29, §
129, is not waivable and, therefore, not subject to arbitration;
that
she
had
gone
through
back
surgery
immediately
before
receiving the job offer and she was pressured into signing all
the documents without actual knowledge of what the consequences
would be. (Docket No. 18).
ANALYSIS
Plaintiff first argues that Amgen waived the arbitration
defense because it did not raise it before the ACU. The First
Civil No. 10-1486 (JAG)
3
Circuit has stated that “an employer cannot waive its right to
arbitration by failing to raise the arbitration defense with the
EEOC or by failing to initiate arbitration during the pendency
of the EEOC proceedings.” Marie v. Allied Home Mortg. Corp., 402
F.3d 1, 16 (1st Cir. 2005). The Court clearly stated, “[w]e hold
only
that
an
employer
should
not
be
forced
to
file
for
arbitration during an EEOC investigation by finding a waiver of
its right to arbitrate if it does not make such a filing.” Id.
at
n.13.
Therefore,
the
fact
that
Amgen
did
not
raise
the
arbitration defense before the ADU does not constitute a waiver.
The Court also disagrees with Plaintiff’s interpretation of
Act 80. The fact that the Act states that the right an employee
has to receive compensation if dismissed in violation of said
law is nonwaivable, does not mean that an agreement to arbitrate
all
claims
an
employee
might
have
against
the
employer
is
automatically illegal. Clearly, an employee does not waive a
right he agrees to assert though arbitration.
Plaintiff
next
contends
that
she
had
undergone
surgery
shortly before she was pressured into deciding whether to take
Amgen’s employment offer. According to her, Amgen knew of the
surgery and nonetheless told her she had only one week to decide
whether to take the employment offer or reject it. She states
that she “felt pressured to sign the agreement because otherwise
I was going to lose the opportunity to take advantage of the
Civil No. 10-1486 (JAG)
4
offer […] I was afraid someone else would be hired, and that
thereafter the doors at Amgen were going to be closed to me
forever.”
(Docket
No.
18-1).
Based
on
the
above,
Plaintiff
posits that she entered into the arbitration agreement subject
to undue pressure and influence.
“When deciding whether the parties agreed to arbitrate a
certain matter […], courts generally […] should apply ordinary
state-law principles that govern the formation of contracts.”
Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367,
376 (1st Cir. 2011) (quoting First Options v. Kaplan, 514 U.S.
938, 944 (1995). Under Puerto Rico law “consent given by error,
under violence, by intimidation, or deceit shall be void.” P.R.
Laws Ann. tit. 31, § 3404.
In this case Plaintiff has not alleged any facts that could
lead this Court to consider that she signed the arbitration
agreement by error, violence, intimidation or deceit. In fact,
she clearly states that she was afraid of losing the array of
benefits she was being offered. It is noted that she had a
$77,000 a year employment with another company and decided to
accept Amgen’s offer of a $92,000 a year salary (not including
benefits).
In a recent case, the First Circuit reiterated that “[a]
party
seeking
to
compel
arbitration
under
the
[Federal
Arbitration Act] must demonstrate ‘that a valid agreement to
Civil No. 10-1486 (JAG)
5
arbitrate exists, that the movant is entitled to invoke the
arbitration
clause,
that
the
other
party
is
bound
by
that
clause, and that the claim asserted comes within the clause’s
scope.’” Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638
F.3d 367, 376 (1st Cir. 2011) (quoting InterGen N.V. v. Grina,
344 F.3d 134, 142 (1st Cir. 2003)).
It is evident to the Court that all of the factors listed
by the First Circuit in Dialysis Access are present in this case
for Plaintiff entered into the arbitration agreement freely; the
arbitration
clause
covers
all
claims
Plaintiff
might
have
towards Amgen1; the claims included in the complaint are claims
solely
against
the
company
for
events
which
occurred
during
Plaintiff’s employment; and, the claims clearly fall within the
scope of the agreement.
Given
the
above,
the
Court
hereby
orders
Plaintiff
to
arbitrate her claims against Amgen pursuant to the arbitration
agreement.
1
The
Court
will
also
exercise
its
discretion
The arbitration clause in question states that:
The Company and I mutually consent to
the
resolution
by
final
and
binding
arbitration of all claims or controversies
(collectively “claims"), whether or not
arising out of my employment (or its
termination), that the Company may have
against me or that I may have against the
Company or against its current or former
officers, directors, employees, or agents.
(Docket No. 9, p. 2).
to
Civil No. 10-1486 (JAG)
6
dismiss the case without prejudice (instead of staying the case
pending arbitration) because all federal claims are subject to
arbitration. See Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141,
156 n.21 (1st Cir. 1998).
IT IS SO ORDERED.
In San Juan, Puerto Rico this 20th day of July, 2011.
s/ Jay A. García Gregory
JAY A. GARCIA GREGORY
U.S. DISTRICT JUDGE
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