Cornoyer v. At&T Mobility Servs., LLC

• Decision Date: 05 October 2016
• Docket Number: No. CIV 15-0474 JB/WPL,CIV 15-0474 JB/WPL
• Parties: CODY L. CORNOYER, Plaintiff, v. AT&T MOBILITY SERVICES, LLC, A foreign limited liability company, Defendant.
• Court: U.S. District Court — District of New Mexico

CODY L. CORNOYER, Plaintiff, v. AT&T MOBILITY SERVICES, LLC, A foreign limited liability company, Defendant.

No. CIV 15-0474 JB/WPL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

October 5, 2016

MEMORANDUM OPINION¹

THIS MATTER comes before the Court on the Defendant's Motion to Compel Arbitration and Stay Proceedings, filed November 30, 2015 (Doc. 34)("Motion"). The Court held a hearing on February 2, 2016. The primary issues are: (i) whether there was an arbitration agreement made by the Management Arbitration Agreement, filed November 20, 2015 (Doc. 34-1)("Management Arbitration Agreement"); and (ii) whether Defendant AT&T Mobility Services, LLC, has waived its right to pursue arbitration by failing to move the Court to compel arbitration for 213 days. The Court first concludes that there is a valid and enforceable agreement between Plaintiff Cody L. Cornoyer and AT&T Mobility. Because the Court is convinced that AT&T Mobility's delay in discovering the arbitration agreement was attributable to bureaucratic inefficiencies, and that Cornoyer's right to a jury trial would have been lost regardless of when AT&T Mobility filed its Motion, there is insufficient prejudice to Cornoyer for the Court to conclude that AT&T Mobility has waived its right to pursue arbitration. The Court thus grantsthe Motion requesting it compel arbitration.

FACTUAL BACKGROUND

This federal case arises from a complaint that Cornoyer filed in the First Judicial District Court, County of Santa Fe, State of New Mexico alleging discriminatory and retaliatory treatment by AT&T, in connection with his employment at AT&T, under the New Mexico Human Rights Act, NMSA § 28-1-1 to -1-14. See Complaint for Discrimination and Retaliation, filed May 1, 2015 (Doc. 1-1)("Complaint"). AT&T Mobility removed the action to federal court, based on diversity jurisdiction, on June 5, 2015. See Notice of Removal, filed June 5, 2015 (Doc. 1)("Notice of Removal"). Cornoyer amended the Complaint on August 12, 2015, adding claims under the Americans with Disabilities Act Amendments Act, 42 U.S.C §§ 12101-12213. See Amended Complaint for Discrimination and Retaliation, filed August 12, 2015 (Doc. 23)("Amended Complaint"). The Court draws the facts from Cornoyer's Amended Complaint, AT&T's Motion, and the Response to Defendant's Motion to Compel Arbitration and Stay Proceedings at 1-2, filed December 17, 2015 (Doc. 36)("Response").

Cornoyer was an AT&T Mobility employee for twelve years until he revealed that he was suffering from multiple sclerosis. See Amended Complaint ¶ 1, at 1. Upon revealing his multiple sclerosis, Cornoyer requested reasonable workplace accommodations, but then was fired instead of being invited to engage in an interactive process to obtain accommodation. See Amended Complaint ¶ 1, at 1. Cornoyer contends that, soon after disclosing his multiple sclerosis, AT&T Mobility required him to participate in a performance improvement plan starting August 4, 2014. See Amended Complaint ¶¶ 1, 17, at 1, 3. Such performance improvement plans relate to customers' willingness to recommend a particular employee. See Amended Complaint ¶¶ 18-19, at 3. AT&T Mobility required that the stores that Cornoyer'ssupervisor was in charge of, for whom Cornoyer worked as a manager, reach a sixty-eight percent score of customers' willingness-to-recommend. See Amended Complaint ¶ 22, at 3. Cornoyer alleges that his personal willingness-to-recommend score was at 59.8% in September, 2014 -- a month after his request for multiple sclerosis accommodations -- but that he was still fired on October 7, 2014, "based solely on his failure to complete his Performance Improvement Plan which called for immediate and sustained improvement of performance expectations." Amended Complaint ¶¶ 26, 29, at 3-4. No other manager was fired in this timeframe for these reasons. See Amended Complaint ¶ 32, at 4. On April 15, 2015, the New Mexico Human Rights Bureau issued Cornoyer an order to afford him the right to pursue this action in state court. See Amended Complaint ¶ 34, at 4.

As mentioned, Cornoyer filed his Complaint in state court on May 1, 2015, and AT&T Mobility removed the case to federal court on June 5, 2015. See Complaint ¶ 1, at 1; Notice of Removal at 1. Upon removal, AT&T Mobility filed -- after receiving a time extension -- its Answer, filed June 19, 2016 (Doc. 7). Cornoyer amended his Complaint to add federal claims on August 12, 2016. See Amended Complaint ¶¶ 35, 43, 46, at 4-6. Then, according to AT&T, on October 27, 2016, -- after limited discovery had occurred, and before the discovery deadline of February 8, 2016 -- AT&T Mobility discovered that a Management Arbitration Agreement bound Cornoyer. See Motion at 4. The Management Arbitration Agreement, in part, provides

This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 and following, and evidences a transaction involving commerce. This agreement applies to any claim that you may have against any of the following: (1) any AT&T company, (2) its present or former officers, directors, employees or agents in their capacity as such or otherwise, (3) the Company's parent, subsidiary and affiliated entities, and all successors and assigns of any of them; and this agreement also applies to any claim that the Company or any other AT&T company may have against you. Unless stated otherwise in this Agreement, covered claims include without limitation those arising out of or related to your employment or termination of employment with the Company and any otherdisputes regarding the employment relationship, trade secrets, unfair competition, compensation, breaks and rest periods, termination, defamation, retaliation, discrimination or harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Genetic Information Non-Discrimination Act, and state statutes and local laws, if any, addressing the same or similar subject matters, and all other state and local statutory and common law claims. This Agreement survives after the employment relationship terminates. Nothing contained in this Agreement shall be construed to prevent or excuse you from utilizing the Company's or employee benefit plans' existing internal procedures for resolution of complaints.

Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court. This Agreement requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of a court or jury trial. Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Agreement, but not as to the enforceability, revocability or validity of the Agreement or any portion of the Agreement, which shall be determined only by a court of competent jurisdiction.

Management Arbitration Agreement at 1-2.

AT&T Mobility notified Cornoyer and his counsel about the agreement to arbitrate on November 2, 3, and 23, 2015. See Motion at 4. The Motion asking the Court to compel arbitration was thereafter filed on November 20, 2015 -- 213 days after the case was first filed in state court. See Motion at 1; Response at 1.

The circumstances surrounding AT&T's Management Arbitration Agreement, and AT&T's delayed discovery of the agreement, are as follows. An email was sent to Cornoyer's work email account on December 5, 2011, from AT&T Mobility providing that "it had created an arbitration program that would apply to any future claims he might bring against the Company (or the Company might bring against him) if he did not opt out of the program within 60 days (that is, by February 6, 2012)." Motion at 3-4. Cornoyer was advised in the email about how he could opt out of the agreement to arbitrate, and that the decision whether to accept or decline the Management Arbitration Agreement or opt out was "entirely up to [him]," and thatthere would be "no adverse consequences for anyone opting out of the Management Arbitration Agreement." Motion at 3. The email further indicated that, "[t]o help [him] make [his] decision, it [was] very important for [Cornoyer] to review the Management Arbitration Agreement linked to this email," and provided a link -- using the words "[c]lick here to review" -- to a web page containing the Management Arbitration Agreement's text. Motion at 3.

Follow-up reminder emails were sent to Cornoyer on December 18, 2011, and January 18, 2012. Motion at 4. Cornoyer received the emails, as was confirmed by a "process by which automated responses to these emails, such as would be generated if there were problems with delivery or if the recipient had set up an automated 'out of office' reply, were collected and stored." Motion at 4. Further, Cornoyer accessed the Management Arbitration Agreement by following the link in the email and clicked the "review complete" button on the website. Declaration of Jeremy Dunlap in Support of Defendant's Motion to Compel Arbitration and Stay all Proceedings, filed November 30, 2015 (Doc. 34-2)("Dunlap Declaration"). Ultimately, Cornoyer chose not to alert AT&T Mobility that he would like to opt out by the February 6, 2012, deadline. See Motion at 4. One week after AT&T Mobility deposed Cornoyer in the context of this litigation it recognized that Cornoyer was subject to the Management Arbitration Agreement. Response at 4. It then filed its Motion.

PROCEDURAL BACKGROUND

Accordingly, the Court must analyze whether (i) there exists a binding agreement to arbitrate between Cornoyer and AT&T Mobility; and (ii) whether AT&T Mobility has waived its right to pursue arbitration by the delay before filing its Motion. The Court thus first considers whether there was formation of a binding contract to arbitrate Cornoyer's claims under New Mexico...