Rivera-Colon v. AT&T Mobility Puerto Rico, Inc. et al

Filing 18

ORDER: The Court GRANTS defendants' motion to compel arbitration, and the case is DISMISSED WITH PREJUDICE. GRANTING 13 Motion to Compel Signed by Judge Francisco A. Besosa on 8/21/2017. (MD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NEREIDA RIVERA COLÓN,
Plaintiff,
v.
Civil No. 17-1675 (FAB)
AT&T MOBILITY PUERTO RICO,
INC., et al.,
Defendants.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court is a motion to compel arbitration and stay
proceedings filed by defendants AT&T Mobility Puerto Rico, Inc.
(“AT&T”), Angel Couvertier López (“Couvertier”), Carlos Deliz
(“Deliz”), and Victor Pabón (“Pabón”).

(Docket No. 13.)

Plaintiff Nereida Rivera Colón (“Rivera”) filed suit against
defendants pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e (“Title VII”), as amended by the Civil Rights
Act of 1991, 42 U.S.C. § 1981, and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621.

Related supplemental

state law claims were also filed pursuant to P.R. Laws Ann. tit.
29 §§ 146 (“Law 100”), 185 (“Law 80”), and 155 (“Law 69”).
No. 1.)

(Docket

For the reasons set forth, the Court GRANTS defendants’

motion to compel arbitration and DISMISSES plaintiff’s claims with
prejudice.

Civil No. 17-1675 (FAB)
I.

2

BACKGROUND
Rivera held an Assistant Store Manager position with AT&T in

Mayagüez.

(Docket No. 13-4 at p. 2.)

She supervised between 10-

20 sales associates and “had general oversight over the store’s
day-to-day operations.”

Id.

After 18 years of working for AT&T,

plaintiff was discharged for alleged negative evaluations and poor
performance.

(Docket No. 1.)

On May 19, 2017, Rivera filed a complaint alleging that her
erstwhile

employer

engaged

behavior against her.

Id.

in

discriminatory

and

retaliatory

Defendants answered, (Docket No. 12),

and filed a motion to compel arbitration and stay proceedings,
(Docket No. 13).

Plaintiff opposed.

(Docket No. 14.)

Plaintiff’s suit against the defendants alleges violations of
Title VII and Puerto Rico Laws 100, 80, and 69.

(Docket No. 1.)

Plaintiff seeks relief for loss of income, punitive damages, double
compensatory damages pursuant to state law, and attorney’s fees.
Id.
II.

Discussion
Defendants request arbitration, invoke the dispute resolution

program, which includes the AT&T Management Arbitration Agreement
(“Agreement”), and request the Court to stay the case, pending the
outcome of arbitration.

Civil No. 17-1675 (FAB)

3

Defendants argue that plaintiff must arbitrate her claims
because AT&T created an opt-out arbitration program, and plaintiff
did not opt out of it.
notice and warning.

Defendants aver that she was given fair

(Docket No. 13-1.)

Plaintiff disagrees and

contends that she cannot be obliged to arbitrate because she never
explicitly agreed to the arbitration agreement.
A.

(Docket No. 16.)

Legal Standard
The

Federal

Arbitration

Act,

9

U.S.C.

§§

1-16,

establishes the validity and enforceability of written arbitration
agreements.

The FAA also provides that a written arbitration

agreement is “valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract.”

9 U.S.C. § 2.

The FAA expresses a Congressional policy

in favor of arbitration, and places arbitration agreements on an
equal footing with other contracts.

9 U.S.C. § 2; see Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449, 126 S.Ct. 1204,
163 L.Ed.2d 1308 (2006).

The FAA mandates district courts to

compel arbitration when the parties have signed a valid arbitration
agreement governing the issues in dispute, removing the district
court’s discretion over whether to compel arbitration or provide
a judicial remedy to the parties.

9 U.S.C. § 2; see Dean Witter

Reynolds, Inc. v. Byrd, 470 U.S. 213, 224, 105 S.Ct. 1238, 84
L.Ed.2d 158 (1985). The existence of a valid arbitration agreement

Civil No. 17-1675 (FAB)

4

is based on the consent of the parties to arbitrate at least some
of their claims, foregoing a judicial remedy for those claims.
McCarthy v. Azure, 22 F.3d 351, 354-55 (1st Cir. 1994) (internal
citations omitted).

A party cannot be required to submit any

dispute to arbitration to which he or she has not agreed.

See

AT&T Techns., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 651,
106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers
of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 583, 80 S.Ct.
1347, 4 L.Ed.2d 1409 (1960)).
Based on the above principles, the United States Court
of Appeals for the First Circuit has set forth four requirements
that must be satisfied for a court to compel arbitration:

(1) a

valid arbitration agreement must exist; (2) the moving party must
be entitled to invoke the arbitration clause; (3) the other party
must be bound by the clause; and (4) the claim must fall within
the scope of the arbitration clause.

InterGen N.V. v. Grina, 344

F.3d 137, 150 (1st Cir. 2003).
1.

Valid Arbitration Agreement
The first requirement of the InterGen N.V. test is

satisfied if either party can prove the existence of a valid
arbitration agreement.

See InterGen N.V., 344, F.3d at 142.

Defendants have provided the Court with the Agreement, which
provides the following:

Civil No. 17-1675 (FAB)

5

Under this Agreement, you and the AT&T company that
employs you (“the Company”) agree that any dispute to
which this Agreement applies will be decided by final
and binding arbitration instead of court litigation.
Arbitration is more informal than a lawsuit in court,
and may be faster. Arbitration uses a neutral arbitrator
instead of a judge or jury, allows for more limited
discovery than in court, and is subject to very limited
review by courts. Under this Agreement, Arbitrators can
award the same damages and relief that a court can award.
Any arbitration under this Agreement will take place on
an individual basis; class arbitrations and class
actions are not permitted. Except for a filing fee if
you initiate a claim, the Company pays all the fees and
costs of the Arbitrator. Moreover, in arbitration you
are entitled to recover attorneys’ fees from AT&T to the
same extent as you would in court.
(Docket No. 13-2 at p. 7.)
Defendants have demonstrated the existence of a valid
arbitration clause.

Plaintiff argues, however, “there is no valid

and enforceable arbitration agreement in existence between the
plaintiff and the defendants pursuant to the laws of Puerto Rico.”
(Docket No. 16 at p. 2.)

Plaintiff’s reasoning that a valid

arbitration clause does not exist because she did not consent do
it does not disprove the clause’s existence.

The Court finds that

a valid agreement to arbitrate exists.
2.

Moving Party
The second requirement of the InterGen N.V. test is

satisfied if the party seeking to invoke the arbitration clause is
a party to the agreement containing the arbitration provision.
See InterGen N.V., 344, F.3d at 143.

The Agreement states that

Civil No. 17-1675 (FAB)

6

the “agreement applies to any claim that [the employee] may have
against any of the following: (1) any AT&T company, and (2) its
present or former officers, directors, employees or agents in their
capacity as such or otherwise . . .”

(Docket No. 13-2 at p. 7.)

As stated in the agreement, defendant AT&T is a party to the
arbitration agreement.

Defendants Couvertier, Deliz, and Pabón

were all employees at the time of the alleged violations and
therefore are also parties to the agreement.
defendants

can

properly

invoke

the

Accordingly, all

Agreement’s

arbitration

provision.
3.

Other Party Must Be Bound
The third requirement is satisfied if the party

against whom the moving party seeks to enforce the arbitration
agreement is a participant to the agreement.
344 F.3d at 143.

See InterGen N.V.,

Plaintiff argues that she cannot be bound to

arbitrate because she never explicitly consented to the Agreement.
Defendants aver that on November 30, 2011, AT&T
sent an initial email notice to plaintiff regarding the new dispute
resolution program and informed her of “the opportunity to opt
out.” The email contained a link to the full agreement and advised
plaintiff that she had 60 days to opt out of the arbitration
program.

The email also advised plaintiff that whether to accept

Civil No. 17-1675 (FAB)

7

or opt out of the program was discretionary and “entirely up to
[her].”

The email reads as follows:

Important
Agreement

Notice

Regarding

Management

Arbitration

The Management Arbitration Agreement that appears below
provides for employees and AT&T to use independent,
third-party arbitration rather than courts or juries to
resolve legal disputes. It is very important that you
read this Agreement, as it affects your rights.
The decision whether or not to participate in the
arbitration process is entirely up to you. No one will
be subjected to pressure or retaliation in connection
with this decision. If, contrary to this assurance, you
believe
you
have
experienced
any
pressure
or
retaliation, please contact AT&T Hotline [. . .].
Should you choose not to participate, you must opt out
—that is, decline to participate in the arbitration
process— no later than 11:59 pm Central Time on Monday,
February 6, 2012 [12:59 am, Atlantic Standard Time,
Tuesday, February 7, 2012]. If you do not opt out by the
deadline, you are agreeing to the arbitration process as
set forth in the Agreement. If you choose to opt out,
use this link [. . .], which will take you to the site
where you can electronically register your decision to
opt out. That site will generate and send to you written
confirmation of your decision to opt out.
Once you have completed your review of the Agreement,
please click the “Review Completed” button, whether or
not you choose to opt out.
If you have any questions about this Agreement, please
contact OneStop [. . .].

Civil No. 17-1675 (FAB)

8

(Docket No. 13-2 at p. 7.)1

Plaintiff does not contest that she

received the email containing the Agreement.

See Docket Nos. 1

and 16.
The

Court

must

determine

whether

AT&T

gave

defendant explicit notice that all disputes would be solved by
arbitration.
1784CCC,

See Garcia-Clara v. AIG Ins. Co. P.R, No. CV 15-

2016

WL

1261058

(D.P.R.

2016)

(Cerezo,

J.),

appeal

dismissed (July 29, 2016)(similar case where the employee received
and read emails regarding a dispute resolution program but did not
opt out.

The Court held that plaintiff was bound to arbitration

because she had received explicit notice of the program.)
In
explicit

notice

Development

order

to

support

was

given,

Specialist

Jeremy

defendants’

defendants
Dunlap

offer

(Docket No. 13-3.)

technical

application

for

an

that

that

Application

(“Dunlap”)’s

under penalty of perjury.2
support

posture

declaration

Dunlap provided

automates

certain

processes (“Promenta”), which AT&T used to draft and distribute
documents and emails to the company employees.

Id. at p. 2.

AT&T also sent follow-up emails, identical to the one above, on
December 17, 2011 and January 17, 2012. (Docket No. 13-3 at p.
3.)
1

Defendants also offer declarations under penalty of perjury by
Kathleen Matyola, Jeffrey de Jesus, Susan Bounds, Hilda Ramirez,
Jose Benitez, and Sara Tomezsko. (Docket Nos. 13-2 - 13-8.)
2

Civil No. 17-1675 (FAB)

9

Dunlap declares, “between November 30, 2011 and December 5, 2011,
AT&T utilized the Promenta application to send an email to the
internal (i.e. Company-provided) email addresses of approximately
103,906 of its employees.”

(Docket No. 13-3 at p. 2.)

was among these employees.

Id. at p. 8.

subject

title

Agreement.”

“Action

Required:

Plaintiff

The emails contained the

Notice

Regarding

Arbitration

Id. at p. 7.
According

to

Jeffrey

de

Jesus

(“de

Jesus”)’s

declaration under penalty of perjury, AT&T required plaintiff to
monitor and respond to the work emails she received.
13-4 at p. 2.)

(Docket No.

“This was particularly important for someone in

Rivera’s position, because many work-related communications from
[de

Jesus]

and

from

other

AT&T

management

personnel

were

transmitted by e-mail, and often Rivera would be required to
communicate corporate directives or company initiatives contained
in these e-mails to the sales associates she supervised.”

Id.

While AT&T employed plaintiff, her “AT&T computer
system username (“UID”) was NR5536 and her AT&T e-mail address was
[e-mail].

Rivera’s

UID and e-mail were unique to her.”

(Docket No. 13-4 at p. 2.)

Plaintiff does not object that the

username or email address provided are hers.
AT&T’s

Code

of

Business

Conduct,

employees

In compliance with
are

required

“to

safeguard the integrity and confidentiality of AT&T’s computer

Civil No. 17-1675 (FAB)

10

systems, networks, and electronic data by protecting UIDs and
passwords.”

(Docket No. 13-4 at p. 3.)

Plaintiff does not contest

that only she had access to her username, email address, and
passwords.3
Dunlap,

who

had

access

to

the

list

of

email

addresses that received the Agreement message, declared that the
Agreement was sent to recipient [e-mail] on November 30,
2011 at 9:06 p.m., on December 17, 2011 at 5:00 a.m., and on
January 17, 2012 at 5:01 a.m.

Plaintiff, therefore, received the

Agreement three times.
In the case where an employee did not want to
participate in the Agreement, he or she had the option to opt out;
“should [the employee] choose not to participate, [the employee]
must opt out —that is, decline to participate in the arbitration
process— no later than 11:59pm Central Time on Monday, February 6,
2012.”

(Docket No. 13-2 at p. 7.)

There is no record of plaintiff

choosing to opt out of the arbitration agreement.
13-6

at

p.

3.

Instead,

AT&T

records

indicate

See Docket No.
that

“Rivera

affirmatively acknowledged having seen the Agreement by clicking
a button on the page labeled ‘Review Completed’ on January 17,
2012.”

(Docket No. 13-8.)

Any employee who discloses their network password to another
person is in violation of AT&T policy. (Docket No. 13-4 at p. 3.)
3

Civil No. 17-1675 (FAB)

11

The Court finds that the three emails plaintiff
received

advised

her

of

the

existence

of

the

Agreement

and

instructed her specifically to visit the link provided for more
information.

AT&T also provided a phone number employees could

call in case they had additional questions or concerns.

The

Agreement was readily available to plaintiff and she was given 60
days to decide whether she wanted to opt out of the program.
Court finds that

AT&T gave plaintiff

arbitration program.

The

explicit notice of the

Plaintiff also acknowledged the existence of

the arbitration program when she clicked the “Review Completed”
button in her email.

By choosing not to opt out of the Agreement,

plaintiff accepted the arbitration program and is bound by it.
4.

Claims Must
Agreement

Fall

Within

Finally, plaintiff’s
scope

of

the

arbitration

clause.

Scope

of

Arbitration

claims must be within the
Courts

are

tasked

with

determining whether the arbitration clause is susceptible of an
interpretation that covers the asserted dispute.
U.S. at 650, 106 S.Ct. 1415.

See AT&T, 475

The Agreement reads:

Unless stated otherwise in this Agreement, covered
claims include without limitation those arising out of
or related to your employment or termination of
employment with the Company and any other disputes
regarding the employment relationship, trade secrets,
unfair competition, compensation, breaks and rest
periods,
termination,
defamation,
retaliation,
discrimination or harassment and claims arising under

Civil No. 17-1675 (FAB)

12

the Uniform Trade Secrets Act, Civil Rights Act of 1964,
Americans With Disabilities Act, Age Discrimination in
Employment Act, Family Medical Leave Act, Fair Labor
Standards Act, Genetic Information Non-Discrimination
Act, and state statutes and local laws, if any,
addressing the same or similar subject matters, and all
other state and local statutory and common law claims.
This
Agreement
survives
after
the
employment
relationship terminates [. . .].
(Docket No. 13-2 at pp. 7-8.)
Although arbitration is not appropriate for every
claim, once a party has “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, 640 105 S. Ct. 3346, 87
L.Ed.2d 444 (1985).

Here, plaintiff’s claims arise from her

termination and alleged discrimination and retaliation pursuant to
federal statutes, specifically the ADEA, and state laws.
claims are specifically listed in the Agreement.
13-2 at pp. 7-8.
that

ADEA

These

See Docket No.

The Supreme Court of the United States has held

claims

may

be

arbitrated.

See

Gilmer

v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 35 111 S. Cit. 1647,
114 L.Ed.2d 26 (U.S. 1991.)

The recovery of losses and damages

plaintiff seek relate directly to the Agreement.

Accordingly, the

Court finds that plaintiff’s claims fall within the scope of the
arbitration agreement.

Civil No. 17-1675 (FAB)

13

Because the Court finds that all four requirements
of the InterGen N.V. test are met, the Court GRANTS defendants’
motion to compel arbitration.
B.

Stay of Proceedings Pending Arbitration
The final inquiry for the Court is to determine whether

to stay plaintiffs’ claims pending the completion of arbitration.
Pursuant to section 3 of the FAA, where the issues before a Court
are arbitrable, the Court shall “stay the trial of the action until
such arbitration has been in accordance with the terms of the
agreement.”

9 U.S.C. § 3.

The First Circuit of Appeals has held,

however, that a “court may dismiss rather than stay, a case when
all of the issues before the court are arbitrable.”

Bercovitch v.

Baldwin Sch., Inc., 133 F.3d 141, 156 n. 21 (1st Cir. 1998); accord
Next Step Med. Co. v. Johnson & Johnson Int’l, 619 F.3d 67, 71
(1st Cir. 2010) (“Where one side is entitled to arbitration of a
claim brought in court, in this circuit a district court can, in
its discretion, choose to dismiss the law suit, if all claims
asserted in the case are found arbitrable.”).

Having found that

all claims in this case are arbitrable, and that arbitration is
final and binding, the Court DISMISSES this case, with prejudice.

Civil No. 17-1675 (FAB)

III.

14

CONCLUSION
For the reasons discussed above, the Court GRANTS defendants’

motion to compel arbitration, and the case is DISMISSED WITH
PREJUDICE.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, August 21, 2017.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE