Beattie v. TTEC Healthcare Solutions, Inc.

          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 ...