Court of Appeals of Texas, Fifth District, Dallas
AEROTEK, INC. AND J.R. BUTLER, INC., Appellants
LERONE BOYD, MICHAEL MARSHALL, JIMMY ALLEN, AND TROJUANCORNETT, Appellees
Appeal from the 95th District Court Dallas County, Texas
Trial Court Cause No. DC-18-00907
Justices Bridges, Partida-Kipness, and Carlyle.
L. CARLYLE JUSTICE.
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 hearing evidence
conclusively established the opposite of appellees'
claims they never saw and e-signed an arbitration agreement
because this was physically impossible. We affirm the
trial court's order.
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:
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
8. A copy of this document is attached to my declaration as
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
17. Exhibit 1 was not one of the terms, conditions, policies
and/or procedures of Aerotek that I reviewed and agreed to
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
described the online onboarding process and simultaneously
demonstrated each step on a laptop computer connected to a
monitor visible to the trial court. 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
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."
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
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
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
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
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?
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 ...