United States District Court, D. Arizona
Murray Snow Chief United States District Judge.
before the Court is Defendant Macy's Credit and Customer
Services, Inc.'s (“Macy's'” or
“Defendant's”) Motion to Dismiss and Compel
Arbitration. The Motion is granted. Also pending before the
Court are Plaintiff Tracee Monique Collins'
(“Plaintiff's”) Motion to Submit Supplemental
Evidence and Motion to Consider Plaintiff's Rebuttal. The
Motion to Supplement is granted and the Motion to Consider
Rebuttal is denied.
was employed as a Macy's Customer Service West Frontline
Loyalty Phones Agent from October 2017 to August 2018. In
August 2018, Plaintiff's employment was terminated for
allegedly violating Macy's attendance policy. On April
19, 2019, Plaintiff filed the underlying complaint alleging
that Macy's' attendance system did not accurately and
timely update her attendance. (Doc. 1.) Macy's responded
with this Motion to Dismiss and Compel Arbitration on July
11, 2019. (Doc. 12.) Macy's argues that Plaintiff agreed
to arbitrate all employment-related disputes she might have
with Macy's through Macy's' Solutions InSTORE
Program because she did not opt out of step four of the
Program within 30 days of her hire date.
employees are covered by Macy's employment dispute
resolution program, Solutions InSTORE, but are given a chance
to opt out of step four (arbitration) by completing an
election form and mailing it to the appropriate office within
30 days of their hire date. Employees are informed-through a
variety of means-that they agree to arbitrate disputes if
they do not complete the election form. Macy's alleges
that it informed Plaintiff of the Solutions InSTORE program
and her ability to opt out in several ways: (1) the Solutions
InSTORE New Hire Acknowledgement form (New Hire
Acknowledgement Form); (2) the Solutions InSTORE New Hire
Brochure (New Hire Brochure); (3) the Solutions InSTORE Step
4-Arbitration opt-out Election Form (Election Form); and (4)
the Solutions InSTORE Plan Document (Plan Document).
alleges that on October 19, 2017, at the outset of her
employment, Plaintiff viewed and electronically signed the
New Hire Acknowledgement form, which stated in part: “I
understand that if I do not wish to be covered by . . .
Arbitration, the only way to notify the Company about my
choice is by postmarking my election form within 30 days of
hire and mailing it to the Office of Solutions
InSTORE.” (Doc. 12 at 7.) Macy's also alleges that
Plaintiff was given a copy of the New Hire Brochure at the
time she was completing her new hire paperwork. This includes
the Election Form and the Plan Document and reiterates that
employees must fill out the Election Form to opt-out of
arbitration. The Election Form itself then again states that
employees will be bound to arbitration if they do not act
within 30 days of their hiring date.
states that she never received the Plan Document and that she
did not receive the New Hire Brochure until after she
“completed the electronically signed forms as
instructed by the HR rep.” (Doc. 15-3 at 1.) Finally,
Plaintiff makes conflicting statements about whether she
signed the New Hire Acknowledgement Form. In her Objection to
Motion to Dismiss and Compel Arbitration, Plaintiff
“asserts that she clicked the button with the computer
mouse with the intention and good faith acknowledging only
that she received the information [contained in the New Hire
Acknowledgement], ” and that because Macy's
“misrepresented the material elements of the alleged
contract” and “Plaintiff did not wish to
‘exclude' herself from ‘coverage' of this
‘benefit, '” Macy's obtained “an
alleged electronic signature” without Plaintiff's
genuine consent. (Doc. 15 at 2.) She further acknowledges
that she “completed the required forms as
instructed.” (Doc 15-1 at 2.) Macy's claims (and
Plaintiff does not dispute) that these forms included the New
Hire Acknowledgement. However, at other points in her
Objection, Plaintiff argues that her electronic signature was
altered, and that her documents were “manipulated,
edited by Macy's” such that they are not legally
enforceable. (Doc. 15-3 at 1, 2.)
motion to dismiss for improper venue pursuant to Federal Rule
of Civil Procedure 12(b)(3), courts must draw all reasonable
inferences in favor of the non-moving party and resolve all
factual conflicts in favor of the non-moving party.
Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133,
1138 (9th Cir. 2004).
motion to compel arbitration pursuant to the Federal
Arbitration Act (FAA), a district court decides only (1)
whether the parties formed a valid agreement to arbitrate,
and, if so, (2) whether the agreement to arbitrate
encompasses the underlying dispute. Equal Employment
Opportunity Comm'n v. Cheesecake Factory, Inc., No.
CV08-1207- PHX-NVW, 2009 WL 1259359, at *2 (D. Ariz. May 6,
2009). If the court decides both issues affirmatively, the
court must enforce the arbitration agreement in accordance
with its terms. Id. The FAA requires courts to
construe arbitration agreements under general state law
contract principles. Id.
Validity of the Agreement
argument against the validity of the arbitration agreement is
two-fold. First, Plaintiff argues that her signature on the
New Hire Acknowledgement was altered, and thus that she did
not enter into a legally binding agreement to arbitrate.
Plaintiff then argues that she is not contractually obligated
to arbitrate because Macy's misrepresented ...