United States District Court, D. Colorado
SONDRA BEATTIE and FRANCIS HOUSTON, JR., individually and on behalf of all other similarly situated individuals, Plaintiffs,
v.
TTEC HEALTHCARE SOLUTIONS, INC. and TTEC HOLDINGS, INC., Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO COMPEL INDIVIDUAL ARBITRATION (DKT. #18)
N.
Reid Neureiter United States Magistrate Judge
This
matter is before the Court on Defendants TTEC Healthcare
Solutions, Inc. and TTEC Holding, Inc.'s (together,
“TTEC”) Motion to Compel Individual Arbitration
(Dkt. #18), which was referred to me by Judge Raymond P.
Moore (Dkt. #23). The Court has reviewed and carefully
considered the motion, Plaintiffs' Response and
supplement thereto (Dkt. ## 30 & 36), Defendants'
Reply (Dkt. #37), and the exhibits attached to these briefs.
The Court also heard oral argument at a hearing held on
February 14, 2019 (Dkt. #35), has taken judicial notice of
the Court's case file and considered the applicable
Federal Rules of Civil Procedure, statutes, and case law.
Being
fully informed, and for the reasons discussed below, I
RECOMMEND that Defendants' Motion to Compel Individual
Arbitration (Dkt. #18) be DENIED without prejudice, and I
further RECOMMEND that a jury trial be held on the existence
of the alleged arbitration agreement.
I.
Background
Plaintiffs
Sondra Beattie and Francis Houston, Jr. filed this lawsuit as
a collective and nationwide class action pursuant to 29
U.S.C. § 216(b) and Fed.R.Civ.P. 23, alleging, among
other things, willful violations by TTEC of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§
201-209. Plaintiff Ms. Beattie is a current employee
and Plaintiff Mr. Houston a former employee of TTEC,
[1] for
whom they work/worked as call agents in Daytona Beach,
Florida and were paid hourly wages. According to Plaintiffs,
they are/were “required to work a substantial amount of
unpaid time, including overtime, as part of their jobs as
Call Agents.” (Dkt. #1 ¶ 28.) Plaintiffs have
brought this action on behalf of themselves as well as
“[a]ll current and former Call Agents who worked for
Defendants at any time during the three years preceding the
filing of this Complaint up through and including
Judgment” (referred to as the “FLSA
Collective”). (Id. ¶ 87.) Since filing
suit, Plaintiffs have filed eighteen Notices of Consents to
Join Collective Action, in which other current and former
employees of TTEC have joined this case as Plaintiffs.
(See Dkt. ##5, 25, 32, 33, 34, 38-50.)
TTEC
filed a motion to compel individual arbitration on January
30, 2019 (Dkt. #18), pursuant to the Federal Arbitration Act,
9 U.S.C. §§ 1-16 (the “FAA”). According
to TTEC, each Plaintiff, when hired, and “[a]s part of
the on-boarding process[, ] . . . voluntarily entered into a
valid and enforceable arbitration agreement and agreed to
individually arbitrate the claims they asserted in this
action.” (Id. at 2.)
As
evidence of the existence of an enforceable arbitration
agreement, TTEC provided a Declaration by Anna Haugen,
TTEC's Director of Human Capital, who is
“responsible for the overall HR functions at
TTEC.” (Dkt. #18-1, ¶ 2.) In her Declaration, Ms.
Haugen generally describes “the onboarding process at
TTEC, ” including how TTEC employees “receive
online training and acknowledge documents and policies
through our tool called TTEC University”
(“TTU”). (Id. ¶ 3.) She explains in
her Declaration that, “[a]s part of TTU, new employees
are provided an electronic copy of TTEC's Arbitration
Agreement, ” that “[e]mployees confirm their
acceptance or rejection of the Arbitration Agreement by
clicking ‘Accept' or ‘Decline, '”
and that “TTU explains that clicking the
‘Accept' button is the electronic equivalent of a
hand-written signature.” (Id. ¶ 4.) Ms.
Haugen's Declaration does not state that TTEC employees
are required to click the “Accept” button-or
assent to the TTEC arbitration agreement-as a condition of
employment.
With
respect to Ms. Beattie and Mr. Houston, Ms. Haugen states
they each confirmed “acceptance of the Arbitration
Agreement, ” and that such acceptance is reflected by
their training transcripts. (Id. ¶¶ 4-5.)
The training transcripts are purportedly business records
comprising spreadsheets labeled “All Training, ”
at the top of the first page of which is the “current
date” (i.e., the date the chart was printed), the
employee's name, and what appears to be the
employee's identification number. (See,
e.g., Dkt. #18-3.) The chart lists, on the left-hand
side, the title of each document, policy, or training
material/assignment purportedly reviewed or completed by the
employee, and then lists the “Type” (e.g.,
Online, Document, Curriculum, etc.), the “Status”
(e.g., completed versus started), as well as the “Start
Date” and “Completion Date.” (Id.)
Both
Ms. Beattie's and Mr. Houston's training transcripts
list a “USA eSignature: Arbitration Agreement
Non-exempt, ” which indicates the Type as being Online,
the Status as being Completed, and provide a Start and
Completion Date to indicate when the arbitration agreement
was allegedly accepted and signed. (Dkt. #18-3 at 21, and
Dkt. #18-4 at 19-20.)[2]
Attached
to Ms. Haugen's Declaration is a blank, unsigned, and
undated copy of TTEC's arbitration agreement. (Dkt.
#18-2.) Also attached to her Declaration is a screen shot of
what an employee allegedly sees when presented with the
option of accepting or declining the TTEC arbitration
agreement. (Dkt. #30-7.) On the screen shot, under the
heading “Arbitration Agreement Non-Exempt, ” is
the instruction to “Click the link to launch the
Arbitration Agreement Non-Exempt document and activate the
Accept button below.” (Id.) Below the link is
the following explanation: “By clicking the
Accept button, you are confirming that you
have already read, fully understand and accept all terms and
conditions of the Arbitration Agreement Non-Exempt document.
Please note that clicking the Accept button
is the electronic equivalent of a hand-written
signature.” (Id.)
Other
than her explanation of the training transcripts, Ms. Haugen
does not state that she was involved with or monitored either
Ms. Beattie's or Mr. Houston's orientation or
training, or that she has personal knowledge that either Ms.
Beattie or Mr. Houston signed or assented to the arbitration
agreement. She also does not identify who at TTEC conducted
or monitored either Plaintiff's orientation or training,
who entered the data on Plaintiffs' training transcripts,
whether the data could be modified by anyone other than Ms.
Beattie or Mr. Houston, or how TTEC verified that Plaintiffs
did, in fact, click the “Accept” button.
In
addition, and as Plaintiffs point out, Ms. Haugen's
Declaration does not address, nor has TTEC provided: (1) a
signature certificate indicating Plaintiffs signed or
assented to the TTEC arbitration agreement; (2) the Internet
Protocol (“IP”) address of the computer that
Plaintiffs used to sign or asset to the TTEC arbitration
agreement; (3) Plaintiffs' electronic signature or
initials indicating they signed or assented to the TTEC
arbitration agreement; or (4) a time stamp indicating the
specific date and time that Plaintiffs read, signed, and
assented to the TTEC arbitration agreement. (Dkt. #30 at 11.)
Further, Ms. Haugen does not address what, if any, security
measures are taken by TTEC to ensure that each of its
employees has secure and sole access to his or her online
employee or TTU account (for example, by virtue of each
employee establishing a personal password, or using a unique
employee identification number to which no one else has
access). Plaintiffs object to TTEC's motion to compel
arbitration, arguing that TTEC has not established the
existence of an enforceable arbitration agreement. Ms.
Beattie and Mr. Houston both assert they “do not recall
signing or assenting to” the arbitration agreement,
that they “would very likely remember” being
presented with a document waiving their right to a jury
trial, and that they “strongly believe that [they] did
not sign or assent to such a document with TTEC.” (Dkt.
##30-1 and 30-2 ¶¶ 5, 7.) They argue TTEC has
provided only unsigned arbitration agreements “and a
screen shot purporting to show how Plaintiffs and newly hired
employees can electronically accept or decline to enter into
the arbitration agreement.” (Dkt. #30 at 4.) In
addition, Plaintiffs argue that the training transcripts that
TTEC relies on fail to establish that they assented to
arbitration, and that despite asking Defendants to provide
“better evidence such as an electronic signature,
electronic initials or any other evidence that [Plaintiffs]
actually consented to be bound by the arbitration agreement,
” TTEC has failed to do so. (Id. at 5-6.) And,
as noted above, they point out that the training transcripts
do not contain any signature certificate, electronic
signature or initials, time stamp, IP address of the
computers allegedly used, or other reliable indicia or
evidence of Plaintiffs' consent.
II.
Standard of Review
As a
threshold matter, I address my authority to rule on a motion
to compel arbitration under 28 U.S.C. § 636, which sets
forth matters a U.S. Magistrate Judge has the statutory
authority to resolve by order versus in a report and
recommendation. Courts addressing this issue “are
divided on whether motions to compel arbitration are
dispositive for purposes of 28 U.S.C. §
636(b)(1).” Vernon v. Qwest Commc'n Int'l,
Inc., 857 F.Supp.2d 1135, 1140 (D. Colo. 2012)
(“Qwest I”). To date the ...