350 F. Supp. 3d 1029
D. Kan.2018Background
- Sherrell Bolden, employed by AT&T from Nov. 4, 2013, sued after her June 2017 termination asserting race, sex, disability discrimination and retaliation claims under § 1981, Title VII, and the ADAAA.
- On March 18, 2016, AT&T emailed Bolden (and sent four reminders) an intranet link to a Management Arbitration Agreement (MAA) with an opt-out deadline of May 18, 2016; the emails explained that silence would bind employees to arbitration if they did not opt out.
- None of the five emails generated delivery failure notices; AT&T submitted affidavits showing the emails were sent to Bolden’s AT&T address. Bolden does not deny receipt but says she did not focus on or read them amid other work emails and never saw the full MAA until the motion to compel.
- Bolden did not opt out by the deadline; AT&T moved to compel arbitration and to stay the case pending arbitration.
- The court applied Kansas contract law and federal arbitration law principles and treated facts most favorable to Bolden because she disputed only whether she intended to accept.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AT&T manifested mutual assent to be bound by the MAA | Bolden: Agreement unsigned by AT&T shows no employer intent to be bound | AT&T: MAA language expressly binds both parties and requires no signatures | Court: AT&T manifested intent; signature not required |
| Whether continued employment or mutual promises supplied consideration | Bolden: Continued employment is illusory or insufficient consideration | AT&T: Mutual promises to arbitrate are valid consideration; no unilateral modification right | Court: Mutual promises provide adequate consideration; enforceable pre-dispute waiver allowed |
| Whether Bolden accepted the offer to arbitrate by failing to opt out | Bolden: She did not know of or intend to accept the offer; silence not acceptance | AT&T: Sent clear notice and opt-out procedure; silence after receipt constitutes acceptance | Court: Employee receipt (not reading) suffices; Bolden bound by silence and must arbitrate |
| Whether factual trial required on formation given alleged nonreceipt/nonreading | Bolden: SmartText requires a trial to determine intent where acceptance is by silence | AT&T: Employment-context precedent permits binding by notice and failure to opt out; no genuine factual dispute on receipt | Court: No trial required; undisputed evidence of delivery means no material factual dispute about receipt |
Key Cases Cited
- Ragab v. Howard, 841 F.3d 1134 (10th Cir. 2016) (federal policy favors arbitration; formation is a contract question)
- Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) (arbitrability is a matter for courts unless parties clearly delegate to arbitrators)
- Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (strong federal policy favoring arbitration)
- United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) (no party can be compelled to arbitrate absent prior agreement)
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (state-law principles govern whether parties agreed to arbitrate)
- SmartText Corp. v. Interland, Inc., 296 F. Supp. 2d 1257 (D. Kan. 2003) (silence as acceptance may require trial depending on reasonable opportunity to reject)
- Tinder v. Pinkerton Security, 305 F.3d 728 (7th Cir. 2002) (employee bound where employer showed distribution of arbitration materials even if employee did not recall reading them)
- Durkin v. CIGNA Prop. & Cas. Corp., 942 F. Supp. 481 (D. Kan. 1996) (employment arbitration policy can manifest mutual assent when employer language binds both parties)