ORDER DENYING MOTION TO COMPEL ARBITRATION AND TO STAY ACTION
WILLIAM ALSUP, District Judge.
Plaintiff filed this action against her former employer, alleging discrimination and wrongful termination. Defendant moved to compel arbitration. The motion is DENIED.
Plaintiff Marilou Raymundo worked for defendant ACS State & Local Solutions, Inc., from 2007 to 2011. In May 2011, she was terminated for excessive absenteeism. The complaint alleges that her absenteeism was due to her severe asthma. Plaintiff filed this action in state court in December 2012, and defendant removed here based on diversity jurisdiction. Plaintiff asserts various state law employment discrimination claims.
Defendant then moved to compel arbitration and to dismiss, or as an alternative to dismissal, to stay the action pending arbitration. The parties dispute whether plaintiff signed the arbitration agreement. By earlier order, the Court ordered discovery and permitted parties to submit additional evidence and briefing to address the issue (Dkt. No. 30). Both sides spurned the opportunity. The Court also requested that the parties be prepared to discuss at the hearing the issue of arbitration fees due from the employee (Dkt. No. 32).
After the hearing, defendant moved for leave to file a second declaration from Jamie Son. Because this declaration should have been filed with the opening brief, so as to give the other side a fair opportunity to respond, defendant's motion for leave to file the declaration is DENIED.
Arbitration agreements are governed by the Federal Arbitration Act. The judge's role under the FAA is limited to determining: (1) whether a valid agreement to arbitrate exists, and if it does, (2) whether the agreement encompasses the dispute at issue. If both of these are true, then the FAA requires the judge to enforce the arbitration agreement according to its terms. Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010, 1012 (9th Cir. 2004).
1. EXISTENCE OF ARBITRATION AGREEMENT.
The parties dispute whether plaintiff agreed to arbitrate her employment claims according to defendant's Dispute Resolution Program ("DRP"). Defendant argues that plaintiff agreed to arbitrate her claims when she initialed an agreement to arbitrate in her employment application, when she signed an acknowledgment of the employee handbook, which referenced the DRP, and when she completed employee training that incorporated an explanation of the DRP. Plaintiff contends that, "I do not recognize [the DRP agreement], and I do not recall ever seeing it in the application process. The same is true for the E-Signature' and other documents [defendant] submitted to the Court" (Dkt. No. 23-1 at 2). Defendant has submitted paperwork that plaintiff did, in fact, initial the agreement (Dkt. No. 17 Exh. A-2). Defendant also submitted affidavits stating that the computer-based program for completing an employment application did not automatically enter the applicant's initials (Dkt. No. 18 § 9). The evidence shows without dispute that plaintiff electronically signed the documents containing arbitration provisions. Plaintiff's only response is that she does not now recall doing so. This is not a denial. The mere fact that plaintiff does not remember signing the documents is insufficient in the face of concrete evidence that she did initial the agreement.
A prior order gave both parties an opportunity to take discovery on this issue. Plaintiff could have taken discovery to show that the computer application program was faulty or that the signed documents were otherwise false or contrived. Plaintiff spurned that opportunity. On the record established here, this order finds that defendant has proven that plaintiff signed the arbitration agreement.
2. VALIDITY OF ARBITRATION AGREEMENT.
Under the FAA, general state contract law applies to determine whether an agreement to arbitrate is valid and enforceable. Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1170 (9th Cir. 2003). The parties do not dispute that California is the relevant state law. Plaintiff offers numerous ...