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Aerotek, Inc. v. Boyd

Court of Appeals of Texas, Fifth District, Dallas

August 27, 2019

AEROTEK, INC. AND J.R. BUTLER, INC., Appellants
v.
LERONE BOYD, MICHAEL MARSHALL, JIMMY ALLEN, AND TROJUANCORNETT, Appellees

          On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-18-00907

          Before Justices Bridges, Partida-Kipness, and Carlyle.

          OPINION

          CORY L. CARLYLE JUSTICE.

         In this interlocutory appeal, appellants Aerotek, Inc. ("Aerotek") and J.R. Butler, Inc. challenge the trial court's order denying their motion to compel arbitration of employment-related claims asserted against them by appellees Lerone Boyd, Michael Marshall, Jimmy Allen, and Trojuan Cornett. Specifically, they focus on the legal sufficiency theory that their Tipps[1] hearing evidence conclusively established the opposite of appellees' claims they never saw and e-signed an arbitration agreement because this was physically impossible.[2] We affirm the trial court's order.

         I. Background

         Aerotek is a staffing company whose corporate clients include J.R. Butler, Inc. Appellees filed this lawsuit against appellants alleging race discrimination, harassment, and retaliation pertaining to appellees' 2017 employment on a J.R. Butler, Inc. construction project in Plano, Texas. Each appellant filed a separate general denial answer. Aerotek filed a motion to compel arbitration, asserting "there is no question" that all four appellees "entered into an agreement to arbitrate" the claims alleged in the petition. J.R. Butler, Inc. joined. Appellees responded that they never saw or digitally signed the arbitration agreements and thus there was no valid agreement to arbitrate, requiring the trial court to deny the motion to compel arbitration. Appellees attached individual declarations to their response. As relevant, the declarations of Boyd, Marshall, and Cornett stated:[3]

5. At the time I was retained by Aerotek, I was required to review and agree to certain terms, conditions, policies and/or procedures of Aerotek.
6. I reviewed these terms, conditions, policies and/or policies online and signed these electronically.
7. After I filed this lawsuit, Aerotek produced an arbitration agreement that purports to bear my digital signature.
8. A copy of this document is attached to my declaration as Exhibit 1.
9. I had never seen this document before it was produced after this lawsuit was filed.
10. I did not sign any document, electronically or otherwise, providing my agreement to arbitrate claims against Aerotek or any of its customers.
11. I was not presented with any document, electronically or otherwise, providing my agreement to arbitrate claims against Aerotek or any of its customers.
12. I was never told, verbally or in writing, that I was consenting, would be consenting, would be required to consent, or had consented, to arbitrate any claims against Aerotek or any of its customers.
13. I was never presented with any document, electronic or otherwise, that stated I was consenting, would be consenting, would be required to consent, or had consented, to arbitrate any claims against Aerotek or any of its customers.
14. I was never told anything about arbitration, and no one from Aerotek or any other Defendant ever mentioned arbitration to me before this lawsuit was filed.
15. I was never presented with any document, electronically or otherwise, that mentioned arbitration.
16. None of the terms, conditions, policies and/or procedures of Aerotek that I reviewed and agreed to online mentioned arbitration.
17. Exhibit 1 was not one of the terms, conditions, policies and/or procedures of Aerotek that I reviewed and agreed to online.

         At the evidentiary hearing on the motion to compel arbitration, Aerotek presented testimony of Phaedra Marsh, an Aerotek program manager, and Sybil Harper, an Aerotek administrative assistant. Marsh, a near-twenty-year Aerotek employee, testified in part (1) "the onboarding technology application that we utilize is something that I worked with our IS department to design and develop"; (2) "I also manage that technology currently, meaning that any time there are any updates or any enhancements that we make to the tool, any training that we provide our internal employees, I'm responsible for that"; and (3) she is "familiar with" and "capable of explaining" the "process that Aerotek utilizes for onboarding candidates for potential positions with Aerotek's clients."

         Marsh described the online onboarding process and simultaneously demonstrated each step on a laptop computer connected to a monitor visible to the trial court.[4] During that demonstration, Marsh stated in part (1) in order to begin completing the electronic paperwork, the candidate must click on a hyperlink sent to him by Aerotek and create a "unique user ID," a password, and security questions; (2) the first "task" in the paperwork process is to "acknowledge and electronically sign" an "Electronic Disclosure Agreement," in which the candidate agrees "to use an electronic signature in lieu of a hand-written signature" throughout the process; (3) "[t]he paperwork has to be completed in the order that it's presented"; (4) when a particular section of the paperwork is "open," "the additional sections are all locked, and these sections will remain locked until the candidate completes this first section and each section going forward"; (5) the system "doesn't allow [candidates] to get out of order in completing their paperwork"; (6) "[w]hen they're electronically signing, it's . . . time and date stamping the time in which they signed that particular document"; (7) in the "policies and procedures section," "the first five documents open up automatically and can be completed . . . in any general order"; (8) one of those "first five documents" in that section is a "Mutual Arbitration Agreement"; (9) candidates cannot "get to th[e] last step in the process of finalizing and submitting the data without completing each and every single one of the steps"; and (10) the process described by her "is the only online process" used by Aerotek for completing employment paperwork.

         Further, Marsh stated the system allows Aerotek to view data respecting whether a candidate "has completed this process." Marsh demonstrated that feature by accessing onboarding data pertaining to Boyd on the laptop computer described above. She testified the data pertaining to Boyd showed (1) "all the documents were signed in order of this process" and (2) the "time stamp" respecting the mutual arbitration agreement pertaining to Boyd "says 11/22 at 11:02 a.m."

         During Marsh's testimony, Aerotek offered into evidence four individual "Electronic Disclosure Agreements" and four individual "Mutual Arbitration Agreements," each bearing a non-handwritten notation describing a date and time appellees purportedly "electronically signed" them. Those documents were admitted into evidence without objection. Additionally, Marsh testified,

Q. Do you know of any other way that that name could appear on that disclosure document or any of the others that are in your hand if an individual didn't go online and go through the process that you've described for the Court?
A. You know, not that I can think of. I mean, they receive the invitation themselves. They create an account. They sign and attest that this is who they are, so- . . . .
Q. So if these individuals did what they said in their affidavit and they went online, they went through the process, they reviewed the terms and conditions, policies and procedures and they affixed electronic signatures as they said they did and they submitted the information to Aerotek, is there any possible way that you can imagine that they could have done that without executing the arbitration agreement?
A. Not with this process. It's locked throughout the process, so they have to complete everything in that section before they can get to the finalize and submit section. So everything has to be signed and completed before they get there.
During cross-examination, Marsh admitted,
I am not currently in IT. I work with our IT department to manage this process.
Q. All right. I thought I heard you say earlier that you helped create this process.
A. Yes, with our IT department.
Q. So you're not the person who created the computer system itself?
A. No.
Q. Who is that person?
A. This is an application that we purchased from a vendor called Smart ERP, and we utilized our IT department to attach it to our HRIS system. It's an add-on to our HRIS system, so I worked with the vendor as well as IT to build out all the forms that are in this process.
Q. So let me see if I understand this. You helped create the forms that they then turned into a digital onboarding process?
A. The forms were already in existence on paper per-previous to this, and so we took those forms that were on paper, and we built them out into this process. That's already established from the vendor.
Q. So let me get this straight. None of the computer programming that goes into this onboard processing, you didn't do any of that?
A. I did not do any of that.
Q. And is-are any of those people here today?
A. No.
Q. All right. Well, do you consider yourself an IT expert?
A. An IT expert, no. I don't do the development of this, but I have done all the testing on this system.
. . . .
Q. Have you ever seen a computer ...

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