Garcia-Clara v. AIG Insurance Company- Puerto Rico et al
Filing
32
OPINION AND ORDER, granting 13 MOTION to Compel Arbitration and to Dismiss or Stay All ProceedingsMOTION to dismiss as to filed by Gustavo Sarabia, Juan Segui, Zenaida Figueroa, AIG Insurance Company- Puerto Rico, Francisco Diaz, American International Group, Inc., Mayra Ayala. Signed by Judge Carmen C. Cerezo on 3/29/2016.(cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JUDY GARCIA-CLARA
Plaintiff
vs
AIG INSURANCE COMPANY
PUERTO RICO; AMERICAN
INTERNATIONAL GROUP, INC.;
FRANCISCO DIAZ; JUAN SEGUI;
ZENAIDA FIGUEROA; GUSTAVO
SARABIA; MAYRA AYALA;
INSURANCE COMPANY XYZ; JOHN
& JANE DOE
Defendants
CIVIL 15-1784CCC
OPINION AND ORDER
On June 12, 2015, plaintiff Judy García-Clara filed suit against
defendants AIG Insurance Company, Puerto Rico; American International
Group, Inc.; Francisco Díaz, Juan Seguí, Zenaida Figueroa, Gustavo Sarabia,
and Mayra Ayala, under the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C.A. 621 et seq. Related supplemental state law claims were also filed
under Puerto Rico Act No. 100 of June 30, 1959, P.R. Laws Ann. Tit. 29, 16 et
seq. (“Act 100”); Act No. 80 of May 30, 197, P.R. Laws Ann. Tit. 29, 185a et
seq. (“Act 80”) and Articles 1802 and 1803 of the Civil Code of Puerto Rico,
31 L.P.R.A. sec. 5141, 5142.
Plaintiff alleges that, on October 31, 2014, “following a pattern of
discriminatory actions and under the pretext of a global reorganization,
defendants . . . unlawfully terminated [her]” and “systematically terminated all
older employees at their Puerto Rico branch and offered them severance
packages.” Plaintiff identifies her employer at paragraph 26 of the Complaint
as co-defendant AIG Insurance Company Puerto Rico (AIGPR).
CIVIL 15-1784CCC
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Before the Court now is defendants’ Motion to Compel Arbitration filed
on August 10, 2015 (D.E. 13), plaintiff’s opposition (D.E. 19), and defendants’
reply (D.E. 22). Defendants invoke the dispute resolution program, called the
“AIG Employment Dispute Resolution (“EDR”) program. Section 3A of that
program reads:
This Program applies to and binds the Company, each Employee
who is in the employment of the Company who did not decline
coverage during the applicable opt out period, who commences
employment or makes application for employment with this
Company on or any time after the Effective Date of this Program,
and the heirs, beneficiaries and assigns of any such persons.
Section 4A mandates that “[a]ll disputes not otherwise settled by the Parties
shall be finally and conclusively resolved through arbitration under the
Program, which provides the exclusive, final and binding method by which
Disputes are resolved.”
As a preliminary matter, the Court notes that arbitration of claims under
the ADEA are not precluded by the Act. Although not all statutory claims are
appropriate for arbitration, “having made the bargain to arbitrate, the party
should be held to it unless Congress itself has evinced an intention to preclude
a waiver of judicial remedies for the statutory rights at issue.” Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). As
relevant to this case, the Supreme Court has conclusively held that Congress
did not intend to preclude arbitration when it enacted the ADEA. Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991).
The standard governing a petition to compel arbitration is well
established. Where there is an agreement to arbitrate, the FAA reflects a
strong federal policy favoring arbitration. HIM Portland, LLC v. DeVito Builders,
Inc., 317 F.3d 41, 43 (1st Cir. 2003).
Federal law mandates rigorous
enforcement of agreements to arbitrate, Perry v. Thomas, 482 U.S. 483,
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3
490 (1987). The Federal Arbitration Act “creates a body of federal substantive
law establishing and regulating the duty to honor an agreement to arbitrate.”
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25, n. 32,
103 S.Ct. 927, at 942, n. 32 (1983).
Arbitration is a matter of contract law and a party can only be made to
submit to arbitration those disputes which he has agreed so to submit.
Painewebber Inc. v. Elahi, 87 F.3d 589, 594 (1st Cir. 1996) (citing
AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643,
106
S.Ct.
1415,
89
L.Ed.
2d
648
(1986)).
The
question
of
arbitrability—whether the parties agreed to arbitrate a particular dispute—is an
issue for judicial determination. Id. at 649, 106 S.Ct. at 1418–1419. “Unless
the parties clearly and unmistakably provide otherwise, the question of whether
the parties agreed to arbitrate is to be decided by the court, not the arbitrator.”
Id.
A party to an arbitration agreement aggrieved by the other party’s refusal
to comply with the provisions of such agreement may request that the Court
compel arbitration. See 9 U.S.C.A. Section 3. In order to obtain an order
compelling arbitration the party seeking such relief must establish the following
four elements: “[(1)] that a valid agreement to arbitrate exists, [(2)] that the
movant is entitled to invoke the arbitration clause, [(3)] that the other party is
bound by that clause, and [(4)] that the claim asserted comes within the
clause's scope.” Intergen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003).
Defendants aver that defendant AIG sent out an initial email on April 29,
2013, that gave notice to plaintiff of the new EDR program and advised her of
“the opportunity to elect to opt out.” They also observe that the email “clearly
expressed that if the employee did not opt out by the June 30, 2013 deadline,
CIVIL 15-1784CCC
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he/she would be included in the EDR program effective July 1, 2013.”
(D.E. 13, p. 3). Defendants further assert that on June 5, 2013, defendant AIG
sent another email to plaintiff, a reminder email, advising her of the need to
complete a training on EDR, and reminding her of the opt-out deadline of
June 30, 2013. Id. Finally, that on September 19, 2013, she received an email
confirming her enrollment in the program, and that she is shown as having
completed the EDR training in a master report generated on December 16,
2013.
Defendant AIG’s first email reads, in full, as follows:
Dear Colleagues:
AIG is committed to maintaining a professional, discrimination-free
environment where individuals are treated with dignity and respect,
so we can all work together comfortably and productively. Our
U.S. Employee Handbook describes how AIG maintains a fair
process for employees to present and resolve complaints or
concerns concerning work-related issues. Today, I am pleased to
introduce you to expanded options of this process through the AIG
Employment Dispute Resolution Program (EDR). Please visit Life
& Career and Talent Connection* for further information about the
AIG Employment Dispute Resolution Program, including the
Program brochure and plan documents.
You have the option to decline participation in EDR. To exercise
that option, you must complete the training module on Talent
Connection* then select the option “Decline to Participate” and
submit no later than midnight Central Time on June 30, 2013.** If
you do not opt out, you will be included in the EDR program
effective July 1, 2013.
I hope that none of our employees have a disagreement with the
company concerning work-related issues. If you do however, the
AIG Employment Dispute Resolution Program provides employees
a fair, efficient and less costly way to resolve those differences.
Defendant AIG’s second or reminder email reads, in full, as follows:
Dear Colleagues,
AIG is committed to maintaining a professional, discrimination-free
environment where individuals are treated with dignity and respect,
so we can all work together comfortably and productively. In this
spirit, the company is making the AIG Employment Dispute
CIVIL 15-1784CCC
5
Resolution Program available to employees. If you have reviewed
the EDR materials already, you are aware of the benefits the
program offers to you. If you have not reviewed the materials yet,
please watch my video for an overview, then click on the following
links.
-
Review the training module on Talent Connection* You will
need to access the training by June 30, 2013, midnight
Central Time if you wish to exercise your option to decline to
participate in the EDR Program.
-
Read the materials on Life & Career,* including the AIG
Employee Dispute Resolution Program brochure and plan
documents.
We strive to ensure that our employees are heard and that
work-related issues are addressed promptly. However, in those
instances where an employee has a disagreement with the
company regarding a workplace issue, the AIG Employment
Dispute Resolution Program provides a fair and efficient way to
resolve those differences.
The Court must determine as a matter essential to defendant’s Motion
to Compel Arbitration whether the employee was given explicit notice that all
employment disputes including employment discrimination claims were subject
to arbitration. Defendant offers the declaration under penalty of perjury of
Richard Joers (“Joers”) (Exhibit 1 to Motion to Compel). Joers was the head
of Employee Relations Americas for AIG. In his role as such, Joers oversaw
the implementation of AIG’s EDR program in 2013, including the
communications that were sent to employees and trainings given to employees
regarding the EDR program. Joers also reviewed and approved the EDR
program content that was periodically posted for employees on AIG’s intranet
website. Joers affirms that on April 29, 2013 AIG sent out an initial notification
via email to all active eligible employees regarding the EDR program. That
email is included as an exhibit, as is a redacted list of recipients, including
plaintiff’s email address. Plaintiff does not dispute that the listed email is hers.
Also affirmed by Joers and included as an exhibit is yet another email sent to
CIVIL 15-1784CCC
6
employees who had received the initial email and had not yet completed the
EDR training. This email advised them of the training requirement and the
opt-out deadline of June 30, 2013. Finally, Joers affirms and includes a list of
employees who completed the EDR training as of December 16, 2013, and
plaintiff’s name appears on that list.
Joers affirms in his affidavit that these communications were explicit in
their coverage of the information pertinent to the Court’s determination
regarding plaintiff’s awareness of the EDR Program. Joers’ affidavit ends with
the following statement: “I certify that the foregoing statements made by me are
true. I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.”
Plaintiff responds by objecting to portions of Joers’ affidavit as containing
hearsay, and by arguing that his affidavit contained conclusory statements and
failed to establish personal knowledge. The Court overrules these objections.
Joers was the head of Employee Relations America for AIG, and thus would
have working knowledge of the program. He was also directly involved in the
implementation, administration, and content development for the program.
Furthermore, the witness need not be the person who actually prepared the
record. Fed. R. Evid. 803(6) (the “business records exception”) specifically
provides that the requirements of the Rule be demonstrated by testimony of the
custodian or other qualified witness, unless the source of information or the
method of circumstances of preparation indicate lack of trustworthiness. United
States v. Grossman, 614 F.2d 295, 297 (1st Cir. 1980). Plaintiff never even
submitted her own affidavit or any evidence that she did not receive notification
of the EDR Program. Nor did she deny that she received training regarding the
EDR Program. Plaintiff never contested the authenticity of the emails, nor did
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she claim that they were not sent to her email address, nor did she deny that
the email address in defendants’ exhibits was hers.
Both emails, the initial one dated April 29, 2013 and the reminder of
June 5, 2013, expressly advised the employees of the existence of the AIG
Employment Dispute Resolution Program (EDR) and instructed them
specifically to visit “Life & Career” and “Talent Connection” for information about
the AIG Employee Dispute Resolution Program, including the program brochure
and plan documents. The EDR materials were readily available to plaintiff and
other employees to review. They were given a period of 60 days to decide
whether to decline to participate in the EDR program. Exhibit 1H of D.E. 13 is
the AIG EDR Program that was open to employees, to either join or reject, after
reviewing its provisions.
The Program description includes a section on
“Definitions.” Among them the term “Dispute” is defined as follows:
E.
"Dispute" means any legal or equitable claim, demand or
controversy, in tort, in contract, under statute, or alleging
violation of any legal obligation, (i) between the Company and
an Employee or any other person bound to resolve disputes
under this Program; (ii) between Employees if in any way
related to their employment with the Company; and (iii)
asserted against a Third Party Beneficiary which relates to,
arises from, concerns or involves in any way:
1.
the Program, the Description, or the Rules;
2.
the employment, reemployment, or application for
employment of an Employee, including the terms,
conditions, or termination of such employment and
events that may occur after any such termination of
employment;
3.
Non-ERISA covered employee benefits or incidents of
employment with the Company;
4.
any other matter related to the relationship between
an Employee and the Company including, by way of
example and without limitation, all claims or
disputes arising out of the interpretation or
enforcement of any duties, rights, or obligations of
the Parties set forth in any employment agreement,
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all claims amounting to a common law tort, and all
claims under any federal, state, or local human
rights or employment rights statutes and
regulations or wage and hour statutes and
regulations, including, but not limited to Title VII of
the 1964 Civil Rights Act, the Age Discrimination in
Employment Act of 1967, the Rehabilitation Act of
1973, the Americans with Disabilities Act, the
Family and Medical Leave Act, Title 42 U.S.C.
Section 1981, the Civil Rights Act of 1991, the Fair
Labor Standards Act, and any similar state or local
statute or regulation, or any state or local
retaliatory discharge statute or regulation, whether
the basis for the dispute arises at the time of
application for employment, during employment or
as a consequence of the termination of employment
or as a consequence of the Company's attempt to
enforce an employment agreement provision after
termination of employment;
5.
any prior resolution or settlement of a Dispute between
Parties subject to the Program; and
6.
any personal injury or death allegedly incurred in or
about a Company workplace or on Company time
(other than those that are compensable under
applicable workers' compensation laws).
Emphasis ours.
This definition of “dispute” included in the AIG EDR program gives clear
notice that arbitration was required as to “all claims or disputes arising out of
the interpretation or enforcement of any duties, rights, or obligations of the
Parties set forth in any employment agreement, all claims amounting to a
common law tort, and all claims under any federal, state, or local human rights
or employment rights statutes and regulations or wage and hour statutes and
regulations, including, but not limited to Title VII of the 1964 Civil Rights Act, the
Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973,
the Americans with Disabilities Act, the Family and Medical Leave Act, Title 42
U.S.C. Section 1981, the Civil Rights Act of 1991, the Fair Labor Standards Act,
CIVIL 15-1784CCC
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and any similar state or local statute or regulation, or any state or local
retaliatory discharge statute or regulation . . .”
We, therefore, find that plaintiff García-Clara knew of the existence of the
EDR Program and also knew or should have known its contents for she was
given actual notice of this program and had ready access to the Program itself.
The Program’s definition of “dispute” explicitly provided for arbitration of all
claims and disputes arising out of the interpretation and enforcement of any
employment agreement and gave her, as stated earlier, explicit notice that
ADEA claims such as hers were subject to arbitration under the AIG EDR
Program. As a matter of fact, the Program also gave her clear notice that all
claims, both federal and state, under any employment rights statutes were
subject to arbitration.
This case is different from Rosenberg v. Merrill Lynch, 170 F.3d 1
(1st Cir. 1999). In Rosenberg, there was no evidence that Merrill Lynch had
even provided plaintiff at any time with information which placed her on notice
that any controversies arising out of her employment or termination required
arbitration. The opposite has been shown in this case. The AIG EDR Program
was a document made known to the plaintiff by her employer through emails
received by her and the Program’s provisions were readily available for her to
review. During a period of 60 days after it was made available she could decide
whether or not to participate in the EDR Program. She was expressly provided
notice of the range of the claims that were subject to arbitration under the EDR
Program. It was a broad spectrum of claims for, under the Program’s definition
of “dispute,” arbitration covered “all claims or disputes arising out of the
interpretation or enforcement of any duties, rights, or obligations of the Parties
set forth in any employment agreement, all claims amounting to a common law
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tort, and all claims under any federal, state, or local human rights or
employment rights statutes and regulations or wage and hour statutes and
regulations, including, but not limited to . . . the Age Discrimination in
Employment Act of 1967," the statute underlying this action. In Rosenberg, the
responsibility for the deficient information was placed squarely upon the
employer. In this case, the employer’s EDR Program defined by its own terms
the range of claims subject to arbitration, including an ADEA claim, and that
EDR Program was made readily available by the employer to plaintiff
García-Clara for her to review and ponder, and subsequent to that for her to
accept or reject, as she chose.
In sum, the evidence before the Court establishes that plaintiff received
notice of the existence of the arbitration agreement, had access to its contents,
which defined the range of claims subject to arbitration including an
employment discrimination claim such as ADEA, and that she chose not to opt
out of the arbitration agreement proposed by the company. She, therefore,
accepted the arbitration agreement (Exhibit 1H) and she is bound by it.
CONCLUSION
For the reasons stated, defendants’ Motion to Compel Arbitration
(D.E. 13) is GRANTED. Judgment dismissing this case, without prejudice, shall
be entered.
SO ORDERED.
At San Juan, Puerto Rico, on March 29, 2016.
S/CARMEN CONSUELO CEREZO
United States District Judge
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