Boursiquot v. United Healthcare Servs. of Del., Inc.

Citation98 Mass.App.Ct. 624,158 N.E.3d 78
Decision Date14 October 2020
Docket NumberNo. 19-P-1697,19-P-1697
CourtAppeals Court of Massachusetts

Daniel J. Blake, Boston, for United Healthcare Services of Delaware, Inc., & another.

Adam J. Rooks for the plaintiff.

Present: Blake, Shin, & Ditkoff, JJ.


The defendants, United Healthcare Services of Delaware, Inc., doing business as Fuller Hospital (hospital), and its chief executive officer, Rachel Legend (collectively, the hospital defendants), appeal from an order of a Superior Court judge denying their motion to compel arbitration of claims by the plaintiff, Yvelande Boursiquot, that she was illegally terminated from her employment as a social worker at the hospital.3 The parties dispute whether an arbitration agreement (agreement), signed by the plaintiff at the beginning of an unpaid internship at the hospital, applies to her subsequent paid employment. Concluding that the judge erred in reserving that question for herself where the agreement reserved to an arbitrator the question of its own applicability and interpretation, we reverse and remand the case for the entry of an order compelling arbitration of this question.

1. Background. In spring 2016, the plaintiff was approximately twenty-seven years old and was a student earning a master's degree in social work. She applied for and obtained an unpaid internship at the hospital. During orientation in September 2016, the plaintiff was instructed to sign a number of documents, including the agreement. When the plaintiff asked whether all of the paperwork applied to her as an intern, she was instructed to sign everything and that any inapplicable documentation would be removed from her file. It is evident that the agreement remained in the plaintiff's file.

The agreement, entitled "Alternative Resolution for Conflicts (‘ARC’) Agreement," is a broad arbitration agreement. In relevant part, § 1 of the agreement (delegation provision) provides the following:

"Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Agreement requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial. Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Agreement."

Also delegated to an arbitrator is the resolution of "all disputes regarding the ... propriety of the demand for arbitration" and "the authority to hear and decide dispositive motions, and/or a motion to dismiss and/or a motion for summary judgment by any party." The agreement further states that it (1) "is a contract between you, the employee," and the hospital and (2) is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (FAA).

In bold type, under a separately numbered paragraph entitled, "An Employee's Right To Opt Out Of Arbitration," the agreement states that arbitration is not a mandatory condition of employment and sets forth a mechanism for opting out at any time within thirty days of receiving the agreement. The plaintiff did not opt out.

In May 2017, the plaintiff's internship ended, and she accepted an offer of full-time employment at the hospital. Although the plaintiff filled out additional paperwork at this time, she was not presented with, and did not execute, a new arbitration agreement.

The plaintiff alleges that a doctor with whom she often worked made negative comments about the plaintiff and her pregnancy, as well as about certain minority patients. The plaintiff repeatedly complained about this conduct to her supervisors at the hospital. When the plaintiff filed a formal complaint in June 2018 about the doctor, the hospital's chief executive officer informed the plaintiff that she would be suspended without pay unless she withdrew the complaint. The chief executive officer also instructed the plaintiff not to keep a log of the doctor's abusive behavior. Approximately two months later, the hospital terminated the plaintiff's employment, ostensibly because she complained internally about understaffing, because of a charting issue that occurred almost one year earlier, and because of tardiness caused by her young son's medical appointments.

In March 2019, the plaintiff filed a complaint in the Superior Court alleging that the hospital defendants terminated her employment on the basis of sex and pregnancy, in violation of G. L. c. 151B. The plaintiff also claimed that she was terminated in retaliation for complaining about the doctor.4 The hospital defendants moved to compel arbitration pursuant to the agreement. See G. L. c. 251, § 2 (a ). The plaintiff opposed the motion to compel and argued that she was not bound by the agreement because she was not an employee when she signed it. The plaintiff further claimed that the agreement was unconscionable.

After a nonevidentiary hearing, the motion judge found that "there is a factual question whether the parties mutually intended the Agreement to apply to any permanent paid employment that [the plaintiff] might obtain following her internship." The judge denied the motion to compel after concluding that "it is unclear whether in signing the Agreement in connection with an unpaid internship of limited duration, [the plaintiff] bargained for and agreed to arbitration of all claims, including discrimination claims, arising from her subsequent paid employment." The motion judge did not address the hospital defendants' argument that whether the agreement applied to the plaintiff's paid employment was itself a matter that had to be arbitrated. The hospital defendants appealed the order denying their motion to compel arbitration, which is immediately appealable pursuant to G. L. c. 251, § 18 (a ) ("An appeal may be taken from:-- [1] an order denying an application to compel arbitration made under [ G. L. c. 251, § 2 (a ) ]").

2. Standard of review. Where there are no material factual disputes, "[w]e review the denial of a motion to compel arbitration de novo." Landry v. Transworld Sys. Inc., 485 Mass. 334, 337, 149 N.E.3d 781 (2020). "Where, as here, a party has moved to compel arbitration and the other side ‘denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall, if it finds for the applicant, order arbitration; otherwise, the application shall be denied.’ " Chambers v. Gold Medal Bakery, Inc., 83 Mass. App. Ct. 234, 241, 982 N.E.2d 1190 (2013), quoting G. L. c. 251, § 2 (a ).5 In this context, "proceed summarily" means "that a judge determines whether there is a dispute as to a material fact; and, if there is not such a dispute, the judge resolves the issue as a matter of law." St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 353, 879 N.E.2d 27 (2008). If, however, there is a disputed issue of fact, "the judge conducts an expedited evidentiary hearing on the matter and then decides the issue." Id.

3. Arbitrability of the interpretation of the agreement. "Whether the parties have agreed to arbitrate is a matter to be decided finally by the court and not by the arbitrator," Parekh Constr., Inc. v. Pitt Constr. Corp., 31 Mass. App. Ct. 354, 359 n.8, 577 N.E.2d 632 (1991), unless there is " ‘clea[r] and unmistakabl[e] evidence" that the parties agreed to arbitrate arbitrability. Massachusetts Highway Dep't v. Perini Corp., 83 Mass. App. Ct. 96, 100, 981 N.E.2d 721 (2013), quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). "In this respect, the usual presumption in favor of arbitration is reversed." Massachusetts Highway Dep't, supra at 101, 981 N.E.2d 721.

As we have intimated, we have no quarrel with the motion judge's conclusion that there is a genuine "question whether the parties mutually intended the Agreement to apply to any permanent paid employment that [the plaintiff] might obtain following her internship." The motion judge erred, however, when she reserved that question for her own resolution. The agreement specifically provides for arbitration of "disputes arising out of or relating to interpretation or application of this Agreement." The term " ‘relating to’ ... suggests an ‘expansive sweep’ and ‘broad scope.’ " New Cingular Wireless PCS LLC v. Commissioner of Revenue, 98 Mass. App. Ct. 346, 355, 154 N.E.3d 947 (2020), quoting Acushnet Co. v. Beam, Inc., 92 Mass. App. Ct. 687, 695, 93 N.E.3d 1186 (2018). The plaintiff disputes that the agreement applies to her paid employment, presenting a quintessential question of interpretation and application for "a decision maker [who] must analyze the [arbitration] agreement[ ] in assessing the merits" of that claim. Machado v. System4 LLC, 471 Mass. 204, 216, 28 N.E.3d 401 (2015). The agreement identifies that decision maker as an arbitrator.

Although we have not found a reported case addressing the specific language found in the agreement, the United States Court of Appeals for the Ninth Circuit addressed similar language in Momot v. Mastro, 652 F.3d 982 (9th Cir. 2011). There, the relevant agreement stated,

"If a dispute arises out of or relates to this Agreement, the relationships that result from this Agreement, the breach of this Agreement or the validity or application of any of the provisions of this [section], and, if the dispute cannot be settled through negotiation, the dispute shall be resolved exclusively by binding arbitration."

Id. at 984. The court held "that this language, delegating to the arbitrators the authority to determine ‘the validity or application of any of the provisions of’ the arbitration clause, constitutes ‘an agreement to arbitrate threshold issues concerning the arbitration agreement.’ " Id. at 988, quoting Rent-A-Center,...

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