Rolen v. CVS, et al

Filing 28

MEMORANDUM OPINION. Signed by District Judge Robert S. Ballou on 03/10/2025. (Order mailed to Pro Se Party/Parties via US Mail)(kmc)

CLERKS OFFICE US DISTRICT COURT
AT ABINGDON, VA
FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
KAREN L. ROLEN,
Plaintiff,
v.
VIRGINIA CVS PHARMACY, LLC,
et al.,
Defendants.

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March 10, 2025
LAURA A. AUSTIN, CLERK
BY: /s/ Kendra Campbell
DEPUTY CLERK

Civil Action No. 1:24-cv-33
By: Hon. Robert S. Ballou
United States District Judge

MEMORANDUM OPINION
The Federal Arbitration Act reflects a liberal federal policy in favor of enforcing valid
and enforceable arbitration agreements. However, “[e]ven though arbitration has a favored place,
there still must be an underlying agreement between the parties to arbitrate.” Adkins v. Labor
Ready, Inc., 303 F.3d 496, 500 (4th Cir. 2002). Where, as here, the party opposing arbitration
raises an issue as to whether the arbitration agreement is valid and enforceable, the court must
allow fact-finding as to the enforceability of the arbitration agreement. Thus, Defendants’ request
to conduct limited discovery as to the enforceability of the arbitration agreement is GRANTED
and Defendants’ Motion to Compel Arbitration is DENIED without prejudice (Dkt. 12). The
parties shall have 75 days to conduct limited discovery into whether CVS and Rolen formed a
valid and enforceable agreement to arbitrate.
I.

Factual Background 1

Rolen filed suit against her employer, Virginia CVS Pharmacy, LLC, and her supervisor,
Charles Jessee Nunley, alleging various employment claims including age and gender

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In considering a motion to compel arbitration, the court employs a standard similar to summary judgment and is
“entitled to consider materials other than the complaint and its supporting documents.” Berkeley County School
District v. Hub Int’l Ltd., 944 F.3d 225, 234 (4th Cir. 2019).

discrimination and retaliation, and violations of the Equal Pay Act. Am. Compl., Dkt. 4.
Defendants move to compel arbitration and stay these proceedings under the Federal Arbitration
Act, 9 U.S.C. §§ 1 et seq., asserting that the arbitration agreement in Rolen’s employment
contract compel mandatory and binding arbitration of her claims. Dkt. 12. Rolen, proceeding pro
se, opposes the motion, arguing that she opted out of the arbitration agreement.
Defendants contend that Rolen voluntarily entered into an agreement to arbitrate all
workplace legal issues in October 2014, which requires her to arbitrate all claims “arising out of
or related to” her employment. Dkt. 13-1, p. 9. Defendants provide the Declaration of Robert
Bailey, the Executive Director, Enterprise Learning, Development and Performance of CVS
Pharmacy, Inc. in support of their motion to compel. Dkt. 13-1. Mr. Bailey states that in October
2014, CVS introduced an Arbitration of Workplace Legal Disputes policy, which includes a
mutual obligation to arbitrate provision. The CVS arbitration policy covers “any and all legal
claims, disputes or controversies….arising out of or related to the Employee’s employment with
CVS Health..” Dkt. 13-1 at ¶ 7. Shortly thereafter, CVS invited its employees to participate in an
arbitration training course which communicated and educated employees on the arbitration
policy. Id. at ¶ 8. Each CVS employee had unique log-in credentials and a personalized password
to access CVS training courses, including the arbitration training course. Id. at ¶ 5. Employees
taking the arbitration training course could not continue past the third slide without clicking a
link to display an arbitration policy guide that advised employees on their rights regarding
arbitration of employment disputes and how to accept or opt out of the arbitration policy. Id. at ¶
10. Specifically, the Arbitration Policy Guide CVS employees reviewed as part of the Arbitration
Training Course provides:
Colleagues accept the policy by continuing their employment with CVS Health
after becoming aware of the policy. With that being said, we want colleagues’
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participation to be voluntary. Colleagues will be asked to acknowledge and agree
to the policy, but from the time that a colleague first views or receives the policy,
he or she has thirty days to opt out of the policy. If a colleague opts out, he or she
will not be obligated to go to arbitration and can continue to use the traditional
court system as before. Likewise, if a colleague opts out, CVS Health will not be
required to arbitrate any disputes it has with that colleague.
How to Opt Out
In order to opt out, a colleague must mail a written, signed and dated letter stating
clearly that he or she wishes to opt out of the CVS Health Arbitration of
Workplace Legal Disputes Policy. The letter must be mailed to CVS Health, P.O.
Box 969, Woonsocket, RI 02895. In order to be effective, the colleague’s opt out
notice must be postmarked no later than 30 days after the date the colleague first
views or receives the policy. Please note, sending in a timely notice is the only
way to opt out. A colleague cannot opt out by refusing to complete training or
attend meetings about the policy. CVS Health will not tolerate retaliation against
any colleague who decides to opt out.
Id. The provision includes the statement, “Employees accept this Policy by continuing their
employment after becoming aware of the Policy.” Id.
The CVS employee must review the Arbitration Policy Guide before returning to the
Arbitration Training Course slides to complete the training. Id. at ¶ 10. The fifth slide of the
Arbitration Training Course instructs the user to click the “Yes” button at the bottom of the slide
to confirm acknowledgement of agreement to statements including that they carefully read the
arbitration policy, that they have an opportunity for a limited time to opt out of the policy, the
required steps to opt out, and that clicking the “Yes” button creates a legally binding electronic
signature. Id. at ¶ 13.
CVS records reflect that Rolen completed her training on the arbitration policy on
October 28, 2014. Id. at ¶ 16. CVS provided Rolen’s training transcript to the court, reflecting all
of the trainings that Rolen completed throughout her employment with CVS, including the
arbitration policy training. Dkt. 13-1. pp. 49, 66. CVS avers that it did not receive any writing
indicating that Rolen wished to opt out of the arbitration policy on or before the thirtieth day
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after she viewed the arbitration policy, or at any time prior to the filing of this lawsuit. 2 Dkt. 131, at ¶ 17.
Rolen provides sworn testimony in opposition to the motion to compel, asserting that she
has no recollection of completing the arbitration training module. Rolen denies completing the
arbitration training, and insinuates that it may have been completed on her behalf by an
“interested person,” or another employee or manager who used her information to log in.
Rolen also testifies that the arbitration agreement was offered “via a web-based training
which offered no electronic option to opt-out,” and that the training “created quite a concern and
was verbally spoken of among Pharmacist, Managers, and other employees…” Dkt. 20, p. 3.
Rolen states that when CVS announced the arbitration policy she received advice from legal
counsel not to accept the policy and to opt-out. Rolen asserts that “under the advice of counsel
and within the 30 days of being notified that such policy existed by other employees [Rolen]
mailed out two separate opt-out letters to the address they provided and to the corporate office.”
Dkt. 20, p. 4. Rolen specifies that she mailed two opt-out letters, one to the address “their opt out
paragraph stated,” and the second to CVS’s corporate address as One CVS Drive, Woonsocket,
RI., 02895. Rolen provides a letter from the attorney she sought advice from regarding the
arbitration agreement, dated November 20, 2024, in which the attorney states that she
represented Rolen in a claim against CVS in 2008; and that while she does not have an
independent memory of a conversation with Rolen in October 2014 concerning an “opt out of
Arbitration provision, it is most likely that [she] would have advised her to do so.” Dkt. 25-1.

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CVS provided the declaration of Lorne Dunkerton, a paralegal in the Legal Department, stating that all
opt-out notices sent in by CVS employees that are matched to an employee name and/or identification number have
been scanned into the CVS computer system and are maintained and tracked. Dkt. 24-1. Additionally, CVS
maintains a file of all opt-out letters received that cannot be matched to an employee name or identification number.
Dunkerton states that neither set of letters include an opt-out letter from Rolen. Id.

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II.

Standard of Review

The Federal Arbitration Act provides that written agreements to arbitrate disputes shall be
“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 Act “reflects an ‘emphatic federal policy in favor
of arbitral dispute resolution.’” KPMG LLP v. Cocchi, 565 U.S. 18, 21, (2011) (per curiam)
(quoting Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 631 (1985)).
“[D]ue regard must be given to the federal policy favoring arbitration, and ambiguities as to the
scope of the arbitration clause itself [should be] resolved in favor of arbitration.” Volt Info. Scis.,
Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 476 (1989).
Arbitrability is a question of contract interpretation; a party cannot be required to
arbitrate a dispute if they have not contractually agreed to do so. Thus, in the Fourth Circuit, a
litigant can compel arbitration under the FAA if he can demonstrate:
(1) the existence of a dispute between the parties, (2) a written agreement that
includes an arbitration provision which purports to cover the dispute, (3) the
relationship of the transaction, which is evidenced by the agreement, to interstate
and foreign commerce, and (4) the failure, neglect or refusal of the [opposing
party] to arbitrate the dispute.
Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir. 1991). Rolen contests the second
element—the existence of a binding contract to arbitrate this dispute.
The party seeking to compel arbitration bears the burden of establishing the existence of
an arbitration provision that covers the parties’ dispute. Minnieland Private Day Sch., Inc. v.
Applied Underwriters Captive Risk Assurance Co., Inc., 867 F.3d 449, 456 (4th Cir. 2017). If a
party makes this evidentiary showing, the party opposing arbitration must come forward with
sufficient facts to place the entitlement to arbitration in dispute. Chorley Enters., Inc. v. Dickey’s
Barbecue Rests., Inc., 807 F.3d 553, 564 (4th Cir. 2015). Issues regarding the formation of an

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agreement to arbitrate are governed by state law contract principles. Marshall v. Georgetown
Mem’l Hosp., 112 F.4th 211, 218 (4th Cir. 2024).
Where there is a dispute of fact regarding the formation of an agreement to arbitrate, “a
district court may resolve the relevant factual disputes by, as necessary, affording targeted
discovery, conducting an evidentiary hearing, conducting a summary trial, making findings of
fact and conclusions of law, all as necessary and appropriate to resolve the motion.” Naimoli v.
Pro-Football, Inc., 120 F. 4th 380, 390 (4th Cir. 2024) (citing Tehran-Berkeley Civ. & Env’t
Eng’rs v. Tippetts-Abbett-McCarthy-Stratton, 816 F.2d 864, 868–69 (2d Cir. 1987)). The Federal
Arbitration Act “calls for a summary and speedy disposition of motions or petitions to enforce
arbitration clauses.” Id., quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 29 (1983).
III.

Analysis

A. Who Determines Enforceability?
CVS argues that the determination of whether Rolen opted out of the arbitration
agreement is for the arbitrator to decide. CVS relies upon the delegation clause in the arbitration
policy stating that the arbitrator, not the court, resolves gateway issues such as the enforceability
of the arbitration agreement. The arbitration policy states, “Covered Claims also include disputes
arising out of or relating to the validity, enforceability, or breach of this Policy.” Dkt. 13-1, p. 11.
However, the court decides “certain gateway matters, such as whether the parties have a
valid arbitration agreement at all ....” before compelling arbitration. Green Tree Fin. Corp. v.
Bazzle, 539 U.S. 444, 452 (2003). “There is a difference between disputes over arbitrability and
disputes over contract formation. While ‘parties may agree to have an arbitrator decide ...
gateway questions of arbitrability,’ such an agreement does not ‘preclude a court from deciding

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that a party never made an agreement to arbitrate any issue.’” Rowland v. Sandy Morris Fin. &
Estate Planning Servs, LLC, 993 F.3d 253, 258 (4th Cir. 2021) (quoting Berkeley County School
District v. Hub Int’l, 944 F.3d 225, 234 n.9 (4th Cir. 2019)) (internal citations omitted).
Indeed, “[i]f a party challenges the validity...of the precise agreement to arbitrate at issue,
the federal court must consider the challenge before ordering compliance with that agreement
....” Rent-A-Ctr., W. v. Jackson, 561 U.S. 63, 71 (2010); see Cullen v. Hall Automotive, LLC, No.
2:21cv47, 2022 WL 1561227, at * 3 (E.D. Va. Jan. 7, 2022) (“[T]his court’s contract
interpretation function encompasses the initial inquiry into whether the parties agreed to arbitrate
the particular arbitrability questions raised.”)
As the Fourth Circuit stated in Rowland,
This pre-arbitration process accomplishes an important function. It must be
remembered that mandatory arbitration is not the default form of dispute
resolution but rather is permitted only when the parties agree to it. “Arbitration
is,” after all, “a matter of contract.” Rent-A-Center, West, Inc. v. Jackson, 561
U.S. 63, 67, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). A party cannot be forced
into arbitration. Rather, parties must actually contract to arbitrate disputes
between them. Section 4 of the FAA has made clear that it is up to courts to
determine whether a contract has been formed, and the district court properly
heeded that call. This respects party autonomy and the general principles of
contract law.
993 F.3d at 258. Accordingly, this court must resolve the issue of whether the parties entered
into a valid and enforceable agreement to arbitrate.
B. Did the Parties Enter into a Valid and Enforceable Arbitration Agreement?
The parties do not dispute three of the four Whiteside factors: that there is a dispute, that
the transaction relates to interstate commerce, and that Rolen has failed to arbitrate that dispute.
Rolen contests the second Whiteside factor, the existence of a valid agreement to arbitrate.

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Whether a valid agreement to arbitrate was formed is a question of applicable state contract law.
Adkins, 303 F.3d at 501.
As the party seeking to compel arbitration, CVS bears the burden of establishing the
existence of a binding contract to arbitrate the dispute. Minnieland Private Day Sch., Inc., 867
F.3d at 456. Here, CVS produced evidence of an arbitration policy that covers the parties’
dispute. CVS provided evidence reflecting that Rolen accepted the terms of the arbitration
provision by completing the arbitration training. Rolen’s claims arise from her employment;
thus, the plain language of the agreement covers the parties’ dispute. I find that CVS met its
initial burden to establish the existence of a binding contract to arbitrate Rolen’s employment
dispute.
As the party resisting arbitration, Rolen must establish “‘genuine issues of material fact
regarding the existence of an agreement to arbitrate,’ which requires not only ‘an unequivocal
denial that an arbitration agreement exists,’ but also ‘sufficient facts in support’ of that denial.”
Alston v. Barclays Bank Delaware, No. TDC-18-2829, 2019 WL 13487572, at *1 (D. Md. Apr.
16, 2019) (quoting Chorley Enterprises, Inc., 807 F.3d at 564). In evaluating Rolen’s arguments,
facts and inferences will be viewed in the light most favorable to her. Scott v. Harris, 550 U.S.
372, 378 (2007).
Rolen advances two arguments to invalidate the arbitration agreement. First, she disputes
that she completed the arbitration training, arguing that the online training could have been filled
out by a manager who obtained her username and password. Rolen provides no evidence to
support this theory aside from her own declaration, in which she casts doubt on whether she
completed the training, but does not unequivocally deny it. See Dkt. 20. Rolen’s unsubstantiated
assertions that she did not complete the training are contradicted by her training records provided

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by CVS, and her sworn statements that she was aware of the arbitration training and agreement;
that she sought the advice of counsel regarding CVS’s arbitration policy; and that she took the
affirmative step of mailing two letters to CVS requesting to opt-out of the arbitration agreement,
one to the address noted in the policy opt-out provision, and one to CVS headquarters. See Dkts.
20, 21, 25. Even assuming Rolen’s assertion that she did not complete the arbitration training is
true, the arbitration policy states that an employee cannot opt out by refusing to complete
training or attend meetings about the policy. Thus, Rolen’s argument that she did not complete
the arbitration training fails to create a genuine issue of material fact. See Crews v. Maxim
Healthcare Servs. Inc., No. 21cv1019, 2021 WL 2417732, at *3 (W.D. Tenn. June 14, 2021)
(Plaintiff’s declaration that he did not sign online arbitration agreement is insufficient to
contradict abundant evidence attributing digital signature on document to Plaintiff); Cullen v.
Hall Automotive, LLC, No. 2:21cv47, 2022 WL 1561227, at *6 (E.D. Va. Jan. 7, 2022)
(Plaintiff’s failure to remember signing an arbitration agreement did not create a genuine issue of
material fact sufficient to defeat arbitration).
Rolen also provides sworn testimony that she opted out of the arbitration agreement by
mailing two opt-out letters within 30 days after receiving notice of the arbitration policy, one to
the address provided by the arbitration policy and one to a different CVS address.
Rolen states that she consulted with attorney Louise R. Zito, J.D., in October 2014, and
was advised by Ms. Zito to opt out of the CVS arbitration provision. Rolen provides a letter from
Ms. Zito confirming that she represented Rolen in a matter against CVS in 2008; that she does
not specifically remember Rolen discussing an arbitration opt out provision with her in October
2014; she “most likely” would have advised her to opt out. Dkt. 25-1. Rolen affirmatively states
that she mailed the opt out letter as directed, to the proper address, and within the time required.

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CVS argues that Rolen’s allegations are insufficient to raise an issue of disputed fact
because she did not testify that her letter was stamped, and she provided no postmark or other
evidence to support her claim of mailing the letter. CVS presents a sworn declaration that it did
not receive Rolen’s opt out notice. However, the arbitration agreement does not state that the opt
out notice must be received to be effective. It requires only that the opt out letter must be mailed
within a certain date. See Garren v. CVS Health Corp., No. 3:17-cv-149, 2018 WL 3377327, at
*6 (E.D. Tenn. July 11, 2018) (“[t]o be sure, Defendants would not have any way of knowing
about an opt out if it did not reach them. But that is not how they crafted their offer.”); Deverze
v. Uber Tech., Inc., No. 1:19cv4988, 2020 WL 10111001, at *7 (N.D. Ga. May 7, 2020)
(“[T]here is no provision in the arbitration agreement in this case that states that the opt-out
notice must be received if submitted via mail, nor is there any provision that the sender must
maintain a time or date-stamped record of the transmission.”). As in Garren and Deverez, CVS’s
arbitration policy guide allows for the opt-out notice to be submitted via regular United States
mail and requires only that it be postmarked no later than 30 days after the date Rolen first
viewed or received the policy. The arbitration policy guide does not require that the opt out letter
be date-stamped, that the employee provide proof of mailing, or that the letter be received by
CVS.
Rolen’s sworn statements raise an issue of fact as to whether she mailed an opt out letter
in accordance with the policy requirements. “[I]f a party challenges the enforceability of an
arbitration agreement, courts generally permit discovery regarding the formation and
performance of the arbitration provision.” Dillon v. BMO Harris Bank, N.A., No.1:13cv897,
2015 WL 6619972, at *3 (M.D.N.C. Oct. 30, 2015) (citing cases). Such discovery must remain
“tailored to matters pertinent to the disposition of the petition to compel arbitration and/or stay

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litigation,” namely “issues relating to the making and performance of the agreement to arbitrate.”
Id., at *3.
Accordingly, I find it appropriate to grant Defendants’ request to conduct limited
discovery regarding whether the parties formed a valid and enforceable agreement to arbitrate.
See Scales v. SSC Winston–Salem Operating, Co., LLC, No. 1:17cv539, 2017 WL 4467278, at
*6 (M.D.N.C. Oct. 5, 2017) (finding Defendant’s request to compel arbitration premature and
ordering discovery regarding the formation and execution of the arbitration agreement); see also
Blankenship v. Seventeenth St. Assocs., LLC, No. 3:11-0627, 2012 WL 10008266, at *1 (S.D.W.
Va. Feb. 1, 2012) (denying without prejudice a motion to compel arbitration and granting
discovery on the formation and execution of the alleged arbitration agreement).
It is ORDERED that Defendants’ Motion to Enforce Arbitration (Dkt. 12) is
GRANTED as to the request to conduct discovery and DENIED without prejudice as to the
request to compel arbitration and stay proceedings. The parties shall have 75 days from the date
of this opinion to conduct discovery on the limited question of whether Rolen opted out of the
arbitration policy. The scope of discovery shall be limited, as follows:
1. Each party may propound a maximum of five interrogatories, five requests for
production of documents, and five requests for admission. All responses are due
within the timelines provided by the Federal Rules of Civil Procedure.
2.

Each party may take a maximum of two depositions within the designated discovery
period.

3. All discovery shall be limited solely to whether Rolen opted out of the arbitration
agreement.

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4.

After termination of the limited discovery period, Defendants may file a renewed
motion to compel arbitration, if they deem it appropriate to do so.

An appropriate Order accompanies this Memorandum Opinion.
Entered: March 10, 2025

Robert S. Ballou
Robert S. Ballou
United States District Judge

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