FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
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.
Howard, Chief Judge, Torruella and Thompson, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
Rivera-Colón ("Rivera") filed suit against
her former employer, AT&T Mobility Puerto Rico, Inc.
("AT&T"),  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
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).
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.
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.
Rolling Out the Arbitration Agreement
years before things turned sour, though, AT&T rolled out
an arbitration program to a large chunk of its employees,
including Rivera. 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).
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.
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.
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
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.
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
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.
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.
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.
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. See id. at 255-56.
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.
Standard of Review
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). 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 ...