Rizvanovic v. United Parcel Serv.

• Decision Date: 20 January 2023
• Docket Number: 1:21-cv-01278-CDB
• Parties: MICHELLE RIZVANOVIC, Plaintiff, v. UNITED PARCEL SERVICE, INC. Defendant.
• Court: U.S. District Court — Eastern District of California

MICHELLE RIZVANOVIC, Plaintiff, v. UNITED PARCEL SERVICE, INC. Defendant.

No. 1:21-cv-01278-CDB

United States District Court, E.D. California

January 20, 2023

ORDER GRANTING IN PART MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CLAIMS AND TO DISMISS PLAINTIFF'S CLASS CLAIMS (Doc. 24)

Before the Court is Defendant United Parcel Service, Inc.'s (“Defendant”) Motion to Compel Arbitration of Plaintiff's Individual Claims and to Dismiss Plaintiff's Class Claims (Doc. 24), Plaintiff Michelle Rizvanovic's (“Plaintiff”) Opposition to the motion (Doc. 25), and Defendant's Reply (Doc 26).^[1]

Background

Plaintiff is a former seasonal personal vehicle driver (“PVD”) that worked for Defendant, an Ohio Corporation. (Doc, 1, Complaint ¶¶ 7, 13; Doc 25-1, Rizvanovic Decl. ¶ 3). On September 26, 2019 Plaintiff applied for a PVD position with Defendant through Defendant's online application portal called upsjobs.com. (Doc. 24-3, Boyd Decl. ¶ 2). Through the portal Plaintiff created a profile. Id. To create a profile, Plaintiff provided login information, her email, and a “unique secure password,” to access her account. Id. As part of the application process, Plaintiff was presented with several documents-one of them being an electronic version of the “Acknowledgment of PEAK Season Hiring Policy.” Id. at ¶ 3.

On October 11, 2019, Defendant claims Plaintiff electronically signed the “Acknowledgment of PEAK Season Hiring Policy.” Id. To do so, Plaintiff checked a box that stated: “I agree that my electronic signature is the legally binding equivalent to my handwritten signature. By my electronic signature, I acknowledge that I have carefully reviewed this Agreement and understand its contents.” Id. Plaintiff states she “did not electronically, or by other means, read and accept the Arbitration Agreement.. .did not agree to enter into the Arbitration Agreement. did not intend to be bound by it [and] do not remember the Arbitration agreement at all.” Rizvanovic Decl. ¶ 11.

The Agreement in question sets forth that it is an employment contract “governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce.” Boyd Decl. Ex. A. at ¶ 2.

Section 2 of the Agreement states, if the Federal Arbitration Act does not apply to the Agreement, then the law of the state in which services were primarily performed shall govern. Id. The Agreement requires signing parties to not litigate “any dispute arising out of or related to application or selection for employment, employment, and/or termination of employment” with Defendant and “disputes arising out of or relating to.. .compensation, classification, minimum wage, expense reimbursement, overtime, breaks and rest periods.. .and state statute or regulations.” Id. Further, the Agreement provides “the Arbitrator, and not any court, shall have exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, unconscionability or waiver of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable. However,.. .the preceding sentence does not apply to Class Action Waiver..” Id.

Section 6 of the Agreement requires “[Defendant] and [Plaintiff] to bring any claim on an individual basis and not on a class and/or collective action basis.” Boyd Decl. Ex. A. at ¶ 6. “[A]ny challenge to the Class Action Waiver.including, but not limited to, any claim that all or part of the Class Action Wavier.. .is invalid, unenforceable, unconscionable, void or voidable, may be determined only by a court of competent jurisdiction and not by an arbitrator.” Id. Additionally, “[t]he Class Action Waiver shall be severable from this Agreement if there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable.” Id.

From October 22, 2019, to December 31, 2019, Plaintiff worked as a seasonal PVD for Defendant based out of the Stockdale Center, located in Bakersfield, California. Rizvanovic Decl. ¶ 3; Compl. ¶ 13. Plaintiff's duties as a PVD required her to travel to a designated UPS storage container or a UPS customer center in Bakersfield to pick up various packages for delivery. Rizvanovic Decl. ¶ 3; Doc. 24-2, Rogers Decl. ¶ 3. According to Plaintiff, Defendant required her to scan each package with a “UPS-issued handheld device,” which in turn gave her the delivery route for each package. Rizvanovic Decl. ¶ 7; Compl. ¶ 18. Plaintiff claims Defendant required her, and other PVDs, to deliver 120 packages in a regular 8-hour shift, one package every 4 minutes. Rizvanovic Decl. ¶ 8; Compl. ¶ 18. Plaintiff delivered packages only to addresses within the State of California. Rogers Decl. ¶ 3.

Plaintiff claims Defendant instructed her to clock out for meal periods and that she could not scan packages while she was clocked out during her meal period. Rizvanovic Decl. ¶ 9; Compl. ¶ 20. Plaintiff alleges Defendant instructed her, and other PVDs, to work through meal periods to drive to and from their designated pick-up areas to fully reload their car with packages. Rizvanovic Decl. ¶ 10; Compl. ¶ 21. Plaintiff asserts that during her employment, she and other PVDs were not afforded and did not take lawfully required rest periods. Rizvanovic Decl. ¶ 11; Compl. ¶¶ 23-25. On December 31, 2019, Plaintiff's employment ended with Defendant. Rizvanovic Decl. ¶ 3; Rogers Decl. ¶ 3; Compl. ¶ 13.

On July 14, 2021, Plaintiff filed a class action complaint against Defendant in Kern County Superior Court. (Doc. 1 at ¶ 2 and Ex. A). In her complaint, Plaintiff asserts claims against Defendant for violations of California's Labor Code and California's Business & Professions Code. Specifically, Plaintiff alleges seven causes of action: (1) unpaid overtime, (2) unpaid meal period premiums, (3) unpaid rest period premiums, (4) failure to pay minimum wages, (5) failure to furnish timely and accurate wage statements, (6) failure to pay all wages owed upon termination, and (7) violation of California's unfair competition law. Id. at ¶¶ 39 -102. On August 20, 2021, Defendant filed a notice of removal from Kern County Superior Court. (Doc. 1).

On March 16, 2022, Defendant filed a motion to stay proceedings in its entirety and for all purposes pending the Supreme Court's decision in Southwest Airlines Co. v. Saxon, 142 S.Ct. 638 (2021). (Doc. 15). Plaintiff filed an opposition on April 6, 2022 (Doc. 16), and Defendant filed a reply on April 13, 2022 (Doc. 17). On April 21, 2022, the Honorable Magistrate Judge Sheila K. Oberto issued an order granting Defendant's motion to stay. (Doc. 21). On June 21, 2022, the Supreme Court issued a decision in Saxon, and Judge Oberto issued an order lifting the stay on June 29, 2022. (Docs. 22-23).

On July 8, 2022, Defendant filed the instant motion to compel arbitration of Plaintiff's individual claims and to dismiss her class claims now at issue. (Doc. 24). Plaintiff filed an opposition on July 22, 2022 (Doc. 25), and Defendant filed a reply on August 1, 2022 (Doc. 26). On September 1, 2022, and November 2, 2022, Defendant filed notices of supplemental authority relevant to its motion. (Docs. 30, 34).

Discussion

A. Whether the FAA Applies to Any Arbitration Agreement Between the Parties

Defendant's motion first requires this Court to decide whether a valid agreement to arbitrate exists between the parties under the Federal Arbitration Act (the “FAA”). This Court concludes that it is bound by the Ninth Circuit's opinion in Rittmann v. Amazon.com, Inc., 971 F.3d 904 (9th Cir. 2020) and finds that the FAA is inapplicable to the parties' agreement.

Under the FAA, an arbitration clause in a contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA establishes “a liberal federal policy favoring arbitration agreements.” Epic Sys. Corp v. Lewis, 138 S.Ct. 1612, 1621 (2018) (quotation and citation omitted); see Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 581 (2008) (Congress enacted the FAA “to replace judicial indisposition to arbitration”).

“[C]ourts must place arbitration agreements on equal footing with other contracts and enforce them according to their terms.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal citations omitted).

Section 4 of the FAA allows “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration [to] petition any United States district court.. .for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4. A court's task on such a petition is to determine “(1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Kilgore v. KeyBank Nat'l Ass'n, 718 F.3d 1052, 1058 (9th Cir. 2013) (en banc) (quoting Chiron Corp v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)); Mitsubishi Motors Co. v. Soler Chrysler-Plymouth, 473 U.S. 614, 627-28 (1985).

Section 1 of the FAA contains a transportation worker exemption that excludes from the ambit of the FAA employment contracts of “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1; Circuit City Stores, Inc. v. Adams 532 U.S. 105, 118-19 (2001). A court must “assess whether a Section 1 exemption applies before ordering arbitration.” In re Van Dusen, 654 F.3d 838, 846 (9th Cir. 2011); see New Prime Inc. v. Oliveira, 139 S.Ct. 532, 537 (2019) (whether an arbitration agreement is part of a contract of employment of a worker engaged in...