Trial News

The First Circuit has ruled that an employee’s age discrimination and wrongful termination claims are subject to arbitration. The employee’s failure to opt out of an arbitration agreement after she clicked an emailed link evidenced her intent to accept the agreement, the court held, affirming the district court. (Rivera-Colón v. AT&T Mobility Puerto Rico, Inc. 2019 WL 211418 (1st Cir. Jan. 16, 2019)).

An AT&T employee in Puerto Rico since 1997, Nereida Rivera-Colón was promoted in 2006 to assistant store manager, supervising a small team of salespeople. In 2011, AT&T instituted an arbitration program for many of its employees, including Rivera-Colón, whereby it would resolve legal disputes through independent third-party arbitrators. AT&T’s program was not mandatory, but employees who did not want to accept arbitration of their disputes were required to opt-out. Rivera-Colón was notified of the arbitration program and opt-out procedures via three emails in 2011 and 2012. According to AT&T’s website traffic records, Rivera-Colón reviewed the agreement twice and acknowledged her review once by clicking “Review Completed.”

In 2015, AT&T transferred Rivera-Colón, then 49, to a new store location despite her seniority over other store managers at her original store. The company placed her on a performance plan, and she alleges her new manager harassed her because of her age. She was fired in 2016 and alleges the company replaced her with a 34-year-old employee. Rivera-Colón filed suit in federal district court in Puerto Rico, alleging AT&T violated the federal Age Discrimination in Employment Act and Puerto Rican labor and employment discrimination law. AT&T moved to compel arbitration, and the district court ruled that the arbitration agreement was enforceable.

The First Circuit affirmed, finding that the Federal Arbitration Act established a “liberal policy” favoring arbitration when it can be shown that the parties have agreed to arbitrate. The court also relied on its opinions in Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino (640 F.3d 471 (1st Cir. 2011)) and Campbell v. General Dynamics Government Systems Corp. (407 F.3d 546 (1st Cir. 2005)) to hold that “principles of state contract law control the determination of whether a valid agreement to arbitrate exists.”

Because the Supreme Court of Puerto Rico has not addressed “whether silence is acceptance [of a contract] when the offeror conditions that it will be,” the First Circuit looked to common law principles. It held that absent dissent, the “natural interpretation” of Rivera-Colón’s conduct is that she intended to accept the arbitration agreement under Puerto Rican contract law. The court rejected Rivera-Colón’s argument that “an offeror cannot impose on the offeree an obligation to respond to an unsolicited offer” and found that Rivera-Colón’s continued employment and failure to opt-out of the agreement demonstrated her acceptance.

“Sadly, we are long past the point of being shocked at the willingness of courts to toss critical trial rights into the cauldron of commercialized, profit-driven arbitration—this decision finding that silence when faced with an opt-out constitutes agreement to arbitration is no surprise,” said San Francisco employment discrimination attorney Jennifer Schwartz. “Technology is successfully hastening the demise of employee and consumer rights to trial by jury through the use of online arbitration agreements that everybody knows never are read carefully or even read at all,” Schwartz added.