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

United States Court of Appeals, First Circuit

January 16, 2019

NEREIDA RIVERA-COLÓN, Plaintiff, Appellant,


          Rubén T. Nigaglioni, with whom Nigaglioni Law Offices P.S.C. was on brief, for appellant.

          Kenneth W. Gage, with whom Sara B. Tomezsko, Paul Hastings LLP, José F. Benítez-Mier, Iván Santos-Castaldo, and O'Neill & Borges LLC were on brief, for appellees.

          Before Howard, Chief Judge, Torruella and Thompson, Circuit Judges.


         Nereida Rivera-Colón ("Rivera") filed suit against her former employer, AT&T Mobility Puerto Rico, Inc. ("AT&T"), [1] alleging age discrimination and wrongful termination. After AT&T pulled out its arbitration agreement with Rivera, the district court sent the parties packing to arbitrate. Rivera now asks us to flip the district court's order and allow her to slug it out with AT&T in court. She says that she shouldn't have to arbitrate her claims because she never accepted AT&T's offer to arbitrate legal grievances in the first place. But because we conclude that she manifested her intent to accept the agreement as per Puerto Rico law, we affirm.


         We start with a chronicle of the parties' relationship and how they ended up here, diving into some detail (for reasons that will become apparent later).[2]

         A. Rivera's Employment

         Their story begins in December 1997, when Rivera (then in her late twenties) began her twenty years' tenure as an employee of AT&T in Puerto Rico. By 2006, she had worked her way up the corporate ladder to become an Assistant Store Manager in AT&T's retail location in Mayagüez, Puerto Rico. There she supervised a small team of employees who sold cell phones, service plans, and all the like. For the majority of her time with AT&T, she says all went well. She consistently received high performance ratings and was praised by her superiors.

         But Rivera says everything changed beginning in 2015. Out of the blue, she was transferred from her home base in Mayagüez after twelve years there--even though she had seniority over the other assistant manager, and even though transfers were supposed to be based on seniority. AT&T stationed her at another retail location, this one a kiosk at the Aguadilla Mall, about an hour drive from her home. She says this transfer was really a demotion. The Aguadilla kiosk had lower sales (which means lower commissions), worse hours, and less opportunity for promotion. And, to boot, she says her supervision in Aguadilla was a far throw away from congenial. Now 49 years old, Rivera was supervised by a manager fifteen years her junior who, according to her, placed her on a performance improvement plan for no legitimate reason, and harassed her because of her age.

         B. Rolling Out the Arbitration Agreement

         A few years before things turned sour, though, AT&T rolled out an arbitration program to a large chunk of its employees, including Rivera.[3] On November 30, 2011, AT&T sent Rivera an email (on her company email account with unique username and password) informing her of the proposed change. The email told Rivera that under the program, "employees and the company would use independent, third-party arbitration rather than courts or juries to resolve legal disputes." But unlike some other arbitration programs, AT&T's wasn't mandatory. Instead, AT&T said that "[t]he decision on whether or not to participate [was Rivera's] to make," and that if she didn't want to participate in this alternative dispute resolution mechanism, she could opt out by following two links: one in the email, and one in the webpage the email link opened. There were no consequences for opting out (except, of course, that Rivera couldn't force AT&T to arbitrate its claims against her).

         The offer came with a proviso, though: if Rivera didn't opt out by the end of the day on February 6, 2012 (giving Rivera sixty-eight days to respond), AT&T would take it as though she opted in. The email told her: "[i]f you do not opt out by the deadline, you are agreeing to the arbitration process as set forth in the Agreement. This means that you and AT&T are giving up the right to a court or jury trial on claims covered by the Agreement." The email advised Rivera to review the agreement before making a decision and instructed that if she wished to opt out, she needed to open the agreement and "follow the link provided there to the site where [she would] be able to electronically register [her] decision to opt out." AT&T sent the same email to Rivera twice more--once in December 2011, and once in January 2012. All three emails included instructions on how to opt out.

         Opting out of the agreement required two steps. First, as the email said, Rivera would need to open the agreement and acknowledge that she read it. Every employee was required to conduct this first step regardless of whether they chose to opt out. To complete this step, the employee needed to follow the link provided in the email, which led to a webpage that contained the full text of the agreement. On that page, there was a button marked "Review Completed" in the upper-left-hand corner of the page.

         According to AT&T's records (and she doesn't contend otherwise), Rivera completed this step and acknowledged that she read the agreement. Indeed, according to AT&T's internal records of website traffic, Rivera viewed the arbitration agreement twice. The first time was in December 2011, although she didn't click the acknowledgement button then. And on round two, she clicked the acknowledgement button less than an hour after the January 17, 2012 follow-up email was sent. Rivera doesn't dispute that it was she who clicked "Review Completed," nor does she argue that she clicked the acknowledgement button at the top of the page without scrolling down to read the agreement.[4]

         Step two of the opt-out procedure: the employee had to click one additional link--this one in paragraph four of the agreement on that webpage. This paragraph, just a few lines into the agreement, discussed the opportunity to opt out and laid out the mechanism to do so: "[i]f 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 you a written confirmation of your decision to opt out." And, according to AT&T, a cohort of thousands of Rivera's colleagues followed that link and opted out of the arbitration agreement.

         Rivera has never argued, either to the district court or to us, that she did follow that link and tried to opt out but that the company just didn't register her decision. Nor has she argued that the opt-out procedure was confusing, or that she couldn't find how to opt out. In other words, she makes no argument that she affirmatively chose to opt out--or even wanted to do so--at the time the agreement was offered to her.

         C. Their Litigation

         Eventually, AT&T fired Rivera in May 2016, and replaced her with a 34-year-old. Taking issue with the way things went down, Rivera sued AT&T, her supervisors, and some other unnamed parties (the last of which don't appear here) in the U.S. District Court for the District of Puerto Rico. She brought an array of claims for violations of her civil rights, alleging that AT&T discriminated against her for her age, in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq.; Puerto Rico Law 100, P.R. Laws Ann. tit. 29, §§ 146, et seq.; and Puerto Rico Law 69, P.R. Laws Ann. tit. 29, §§ 1321, et seq. She also alleged wrongful termination under Puerto Rico Law 80, P.R. Laws Ann. tit. 29, §§ 185, et seq.

         Not so fast, said AT&T. It entered a special appearance and moved to stay the proceedings and compel arbitration, reminding Rivera that she agreed to arbitrate these kinds of claims, not bring them in court. So AT&T asked the court to force Rivera to go to arbitration, thus stripping the district court of jurisdiction to hear the merits of the case. To support this result, AT&T submitted hundreds of pages of affidavits and exhibits to show that Rivera read the agreement and didn't opt out, and therefore accepted it.

         Determined to stay where she was, Rivera opposed AT&T's attempt to push her into arbitration, maintaining that there was no valid arbitration agreement to begin with. She argued that Puerto Rico law requires acceptance of a contract, and that her mere failure to opt out can't meet the acceptance standard under the Commonwealth's laws.

         Rejecting Rivera's contentions, the district court agreed with AT&T and said the arbitration agreement was enforceable. See Rivera-Colón v. AT&T Mobility P.R., Inc., 261 F.Supp.3d 251, 256 (D.P.R. 2017). The judge looked to AT&T's submitted evidence, which showed that Rivera received the emails notifying her of the arbitration agreement and that she acknowledged that she read the agreement. And, given that evidence, the judge thought it clear that "AT&T gave [Rivera] explicit notice that all disputes would be solved by arbitration" so he granted AT&T's motion to compel arbitration and dismissed Rivera's suit.[5] See id. at 255-56.

         Clinging to the assertions she advanced below, and repeats here on appeal, Rivera says the district court got it all wrong and asks us to reverse and give her the green light to litigate her claims in court.


         A. Standard of Review

         Generally, we review an order compelling arbitration on a spectrum of interwoven standards. At one end, when the appeal raises "solely legal issues as to the enforceability of an arbitration clause," we look at it with a clean slate, or de novo. Pelletierv. Yellow Transp., Inc., 549 F.3d 578, 580 (1st Cir. 2008); see also Brittov. Prospect Chartercare SJHSRI, LLC, 909 F.3d 506, 511 (1st Cir. 2018) (explaining de novo review in this context). The same de novo review applies when the facts surrounding the agreement are undisputed and the only question is whether they contractually bound themselves to arbitration on those undisputed facts. See Cullinanev. Uber Techs., Inc., 893 F.3d 53, 60 (1st Cir. 2018).[6] And given that the facts here are undisputed the only question that remains is whether those facts show that Rivera accepted the agreement as a matter of Puerto Rico law. So, we review that determination of the district court de novo. See Cullinane, 893 F.3d at 60. That means we don't give any deference to the district court's conclusion and look at the legal issues with clear eyes. See In re Extradition of Howard, 996 F.2d 1320, 1327 (1st Cir. 1993). And it ...

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