JAMES O. BROWNING, District Judge.
The Court recites the allegations in this section in the light most favorable to Perez. Perez initially began working for U.S. West, Inc., Qwest' predecessor. The arbitration agreement to which Perez agreed when he became employed with U.S. West in 2000 provides:
Attachment A at 4 (dated June 22, 2000), filed January 31, 2012 (Doc. 18-1) ("Arbitration Agreement") (emphasis in original).
Perez was also subject to a collective bargaining agreement as an employee in the Communications Workers of America ("CWA") union, which signed a collective bargaining agreement with Qwest. Agreement Between Qwest Communications and Communications Workers of America at 2 (dated October 12, 2008), filed February 16, 2012 (Doc. 23-1) ("CBA"). Article 12 of the CBA provides that "[a]n employee whose Term of Employment (TOE) is one (1) or more years shall receive wage replacement during the first seven (7) consecutive calendar days of absence due to sickness" according to a formula table that the CBA specifies. CBA at 8. Article 16.3 of the CBA provides: "Neither the Company or its representative, nor the Union, its local representative or members, will attempt, by means other than the grievance procedure, to bring about the settlement of any issue which is properly a subject for disposition through grievance or arbitration procedures." CBA at 11. The relevant provisions of article 23 of the CBA are as follows:
CBA at 13. The remaining relevant portions of article 23 are as follows:
CBA at 13.
"Qwest first hired Perez in 1999." Complaint for Damages from Violations of Title VII of the Civil Rights Act and Assault and Battery ¶ 11, at 2, filed September 23, 2011 (Doc. 1) ("Complaint"). "In 2002, Qwest transferred Perez to Las Cruces, New Mexico." Complaint ¶ 11, at 2. "Following the transfer, Perez worked as a splicer network technician." Complaint ¶ 11, at 2. "Perez has remained in this position until the present date." Complaint ¶ 11, at 2. "Perez has fulfilled his job duties in at least a satisfactory manner throughout the period of the Las Cruces employment and became known as one of the most capable Qwest employees in Las Cruces in his position." Complaint ¶ 11, at 2. "Qwest consistently emphasizes with its employees the need to work in a safe and secure manner." Complaint ¶ 12, at 2.
"In 2007, Maggine became Perez' supervisor." Complaint ¶ 13, at 2. "At some point in 2008, Perez learned that Maggine was altering and falsifying employee time sheets, including those of Perez." Complaint ¶ 14, at 3. "The falsification of employee time sheets is, in accordance with Qwest policies and procedures, a serious violation of Qwest work requirements and rules." Complaint ¶ 14, at 3. "Maggine consistently instructed Perez that Maggine would take care of filling out Perez' time sheets — a duty the individual employee was expected to perform." Complaint ¶ 16, at 3. "Maggine would take the extra hours allotted to jobs Perez was required to complete and distribute those hours among `favored' employees under Maggine's supervision who were not completing jobs in a timely manner." Complaint ¶ 16, at 3. "When Perez confronted Maggine about the inappropriateness of allotting hours in this fashion, Maggine became upset and agitated and told Perez to be quiet about Maggine's improper activities." Complaint ¶ 17, at 3. "In 2009, Perez called a Qwest hotline to disclose Maggine's improper behavior related to falsification of Perez' time sheets." Complaint ¶ 19, at 3. "Maggine learned that Perez had made this supposedly confidential disclosure." Complaint ¶ 19, at 3. Maggine then began making a variety of racially derogatory comments to Perez and "started giving Perez the worst jobs to complete." Complaint ¶ 20, at 3-4. "This practice of giving Perez the worst jobs continued until Perez went out on medical leave in June 2011." Complaint ¶ 20, at 4.
"In 2010, Perez suffered an injury to his back while on a Qwest duty assignment." Complaint ¶ 22, at 4. "The injury resulted in a ruptured disk in Perez' lower back." Complaint ¶ 22, at 4. "When Maggine learned of Perez' injury, he called Perez and angrily stated that he was considering terminating Perez." Complaint ¶ 22, at 4. "Maggine continued to harass and intimidate Perez. Maggine threatened Perez by shutting a laptop computer in Perez' face." Complaint ¶ 27, at 5. "Maggine also physically threatened Perez by leaning into him forcefully in the workplace." Complaint ¶ 27, at 5. "Shortly afterwards, on May 27, 2011, Maggine drove his company vehicle towards Perez at a Las Cruces gas station." Complaint ¶ 28, at 5. "Maggine drove the vehicle directly at Perez and swerved at the last moment, barely avoiding hitting Perez." Complaint ¶ 28, at 5. "Maggine confronted Perez at the gas station and screamed at Perez." Complaint ¶ 28, at 5. "Perez, afraid for his safety, then called Qwest corporate security and reported the assault Maggine inflicted on Perez." Complaint ¶ 28, at 5.
"On May 31, 2011, Maggine ... approached Perez while Perez was seated at a work computer." Complaint ¶ 30, at 5. "Maggine forcefully leaned into Perez,
On September 23, 2011, Perez filed his Complaint. See Doc. 1. Perez asserts the following Counts against Qwest: (i) Count I — Violation of Title VII: National Origin Discrimination; (ii) Count II — Violation of Title VII: Hostile Work Environment; (iii) Count III — Violations of Title VII: Constructive Discharge; and (iv) Violation of Title VII: Retaliation. See Complaint at 7-11. Perez asserts the following claim against Maggine: Count V-Assault and Battery. See Complaint at 11-12.
The Defendants relate that they communicated with Perez' counsel and informed him that they intended to compel arbitration for this dispute if Perez did not concur. See Motion at 3. On January 31, 2012, the Defendants filed their Motion seeking to compel arbitration. See Doc. 18. The Defendants assert that, as part of his employment, Perez agreed to sign an arbitration agreement that covers the claims he has brought in this case. See Motion at 1-2. The Defendants assert that "the FAA controls in this matter, but under either" federal arbitration law or Colorado arbitration law, "Plaintiff should be required to arbitrate his claims." Motion at 4. The Defendants contend that there is a strong policy favoring arbitration under both federal and Colorado law. See Motion at 4. The Defendants assert that the Arbitration Agreement is conspicuous and unambiguous, such that Perez cannot claim it is unenforceable. See Motion at 5. The Defendants argue that, "[u]nder the terms of the Arbitration Agreement, the agreement controls discrimination claims, common law torts and any dispute between these parties regarding `interpretation of this Attachment.'" Motion at 5. The Defendants contend that the Arbitration Agreement makes "the question of arbitration itself subject to arbitration," and asserts that "once this Court determines that a valid agreement to arbitrate exists, the arbitrator is vested with jurisdiction over any questions regarding the satisfaction of conditions precedent and/or enforceability of the arbitration provision." Motion at 5. The Defendants argue that they have raised the arbitration issue in a timely manner without participating in any significant way in this federal litigation. See Motion at 6. The Defendants assert that Perez has waived his right to both have a jury trial and to seek punitive damages. See Motion at 7. The Defendants also seek their costs and attorney's fees incurred through filing this Motion. See Motion at 7.
Perez argues that "[e]ach and every one of the factual allegations found in Section II of the Complaint have some corollary to a CBA provision." Response at 4. Perez relates that he recognizes that he will need to amend his Complaint to state a claim against Qwest. See Response at 5-6. He notes that he "is now in the process of finalizing an amended complaint which will include claims against the CWA for breach of a duty of fair representation." Response at 5-6. He notes that, "[a]t that point, this action will become a hybrid § 301 action under the Labor Management Relations Act." Response at 6. He relates that "these circumstances are not fatal to Perez's recovery on his discrimination and common law claims against Defendants and, furthermore, have no bearing on the issue of arbitrability before the Court." Response at 6. He argues that he has not waived his right to a jury trial or to punitive damages, because his claims are not subject to arbitration. See Response at 6-7. Perez also requests "his attorney's fees and costs." Response at 7.
On March 5, 2012, the Defendants filed their Defendants' Reply in Support of Petition to Compel Arbitration and Award Attorneys' Fees or to Dismiss Jury Demand and Demand for Punitive Damages. See Doc. 24 ("Reply"). The Defendants assert that Perez "is incorrect that the issue of `arbitrability' is before the Court," because the parties have agreed to "give the arbitrator jurisdiction to decide the question of arbitrability." Reply at 1-2. They argue that "the only issue before the Court is whether the Arbitration Agreement is an enforceable contract, which issue Plaintiff does not dispute." Reply at 1-2. The Defendants assert that, "[t]o the extent the Court will consider Plaintiff's argument" that "the language `unless otherwise
At the hearing on April 5, 2012, the Defendants asserted that there is no dispute that the Arbitration Agreement is binding, but only a dispute whether the Arbitration Agreement covers the claims Perez has brought. See Transcript of Hearing at 3:3-11 (taken April 5, 2012) (Lyons) ("Tr.").
The Federal Arbitration Act, 9 U.S.C. §§ 1 through 16 ("FAA"), governs the enforcement of arbitration clauses in commerce and maritime contracts. Section 2 of Title 9 of the United States Code provides:
9 U.S.C. § 2. "The FAA thereby places arbitration agreements on an equal footing with other contracts, and requires courts to enforce them according to their terms." Rent-A-Center, W., Inc. v. Jackson, ___ U.S. ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010) (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); Volt Info. Sci., Inc. v. Bd. of Trs. of the Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). "Like other contracts, however, they may be invalidated by `generally applicable contract defenses, such as fraud, duress, or unconscionability.'" Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2776 (citing Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)). Accord AT&T Mobility LLC v. Concepcion, ___ U.S. ___, 131 S.Ct. 1740, 1746, 179 L.Ed.2d 742 (2011). In Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the Supreme Court of the United States held that, once a court determines that a claim is subject to arbitration, the court is without authority to address the merits of the claim. See 388 U.S. at 400, 87 S.Ct. 1801 ("Section 3 requires a federal court in which suit has been brought `upon any issue referable to arbitration under an agreement in writing for such arbitration' to stay the court action pending arbitration once it is satisfied that the issue is arbitrable under the agreement."). "[T]he basic purpose of the Federal Arbitration Act is to overcome courts' refusals to enforce agreements to arbitrate." Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265,
Under FAA section 4, a party "aggrieved" by the failure of another party "to arbitrate under a written agreement for arbitration" may petition a federal court "for an order directing that such arbitration proceed in the manner provided for in such agreement." 9 U.S.C. § 4. If a party is aggrieved by the refusal of another to arbitrate under a written agreement, the district court, upon petition, "shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." 9 U.S.C. § 4. Section 2, the "primary substantive provision of the Act," Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), provides: "A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. "If a party challenges the validity under § 2 of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that agreement under § 4." Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2774.
"There is a strong federal policy encouraging the expeditious and inexpensive resolution of disputes through arbitration." Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1488-89 (10th Cir.1994). See Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) ("Congress declared a national policy favoring arbitration."); Hill v. Ricoh Ams. Corp., 603 F.3d 766, 771 (10th Cir.2010) ("[T]he FAA is a `congressional declaration of a liberal federal policy favoring arbitration agreements.'") (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. at 24, 103 S.Ct. 927). Congress enacted the FAA with the express purpose of granting arbitration agreements the same enforceability as any other contract provision. See Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Junior Univ., 489 U.S. at 474, 109 S.Ct. 1248 (stating that Congress designed the FAA to "overrule the judiciary's longstanding refusal to enforce agreements to arbitrate and place such agreements upon the same footing as other contracts."). When the applicability of arbitration is in dispute, "as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. at 24-25, 103 S.Ct. 927).
"[P]arties can agree to arbitrate `gateway' questions of `arbitrability,' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy." Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2777. The Supreme Court has explained that this rule "merely reflects the principle that arbitration is a matter of contract." Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2777. The Supreme Court has described the term arbitrability as "whether the parties agreed to arbitrate [a] dispute." First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942, 115 S.Ct. 1920, 131
Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2777-78. When an agreement to arbitrate arbitrability appears in the larger arbitration clause, there is no delegation clause that would require a court to distinguish between multiple agreements to arbitrate. See Quilloin v. Tenet HealthSystem Phila., Inc., 673 F.3d at 229-30 ("There was no need to distinguish between multiple agreements to arbitrate; all that Quilloin needed to do was challenge the validity of the only agreement to arbitrate."). A district court must resolve the question of arbitrability before submitting a dispute to arbitration. See Oil, Chem. & Atomic Workers Int'l Union
The Supreme Court has held that "courts should not assume that the parties agreed to arbitrate arbitrability unless there is `clea[r] and unmistakabl[e]' evidence that they did so." Rent-A-Center, W., Inc. v. Jackson, 130 S.Ct. at 2777 (alterations in original). In other words:
First Options of Chi., Inc. v. Kaplan, 514 U.S. at 944, 115 S.Ct. 1920 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. at 626, 105 S.Ct. 3346). The Tenth Circuit has stated that, "[o]f course, the most `clear and unmistakable' agreement to arbitrate the issue of arbitrability would be an express statement to that effect in the parties' contractual agreement to arbitrate disputes arising between them." Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 968 (10th Cir.2001), rev'd 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). The Tenth Circuit has held that the phrase in an "arbitration clause" that referred to the arbitrator handling "any and all disputes arising out of or relating to the contract" was not clear and unmistakable, because "there is no hint in the text of the clause or elsewhere in the contract that the parties expressed a specific intent to submit to an arbitrator the question whether an agreement to arbitrate exists." Riley Mfg. Co., Inc. v. Anchor Glass Container Corp., 157 F.3d 775, 780 (10th Cir.1998).
The United States Court of Appeals for the Eighth Circuit found the following language to be clear and unmistakable regarding arbitrability: "Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s)." Sadler v. Green Tree Servicing, LLC, 466 F.3d 623, 624 (8th Cir.2006). The United States Court of Appeals for the Ninth Circuit found the following language to be clear and unmistakable regarding arbitrability:
Momot v. Mastro, 652 F.3d 982, 988 (9th Cir.2011) (emphasis in original).
The United States Court of Appeals for the Second Circuit rejected a party's argument that "a general arbitration clause covering all issues of interpretation would no longer be regarded as sufficiently clear and unmistakable, absent precise language that issues of arbitrability should be arbitrated," stating that it did "not read" the Supreme Court's decision in "First Options so expansively." Abram Landau Real Estate v. Bevona, 123 F.3d 69, 73 (2d Cir.1997). In that case, the Second Circuit
In Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), the Supreme Court articulated the doctrine of complete preemption:
482 U.S. at 393, 107 S.Ct. 2425. The Supreme Court has held that section 301 of the LMRA has complete preemptive force. See Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. at 23, 103 S.Ct. 2841. "Section 301 of the LMRA governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement, although it does not contain an explicit preemption provision." Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1163-64 (10th Cir.2004) (footnote omitted) (citation omitted) (internal quotation marks omitted).
Section 301 of the LMRA provides:
29 U.S.C. § 185(a). The Tenth Circuit has explained that section 301 "preempts questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, ... whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort." Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1302 (10th Cir.2000) (citations omitted) (internal quotation marks omitted). Accord Carroll v. City of Albuquerque, 749 F.Supp.2d 1216, 1223-24 (D.N.M.2010) (Browning, J.).
In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), the Supreme Court set forth the standard for determining when section 301 completely preempts a state law claim: "[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim or dismissed as pre-empted by federal labor-contract law." 471 U.S. at 220, 105 S.Ct. 1904 (citation omitted). In Allis-Chalmers Corp. v. Lueck, the plaintiff brought a state tort claim against his employer for the bad-faith processing of an insurance claim. See 471 U.S. at 206, 105 S.Ct. 1904. The Supreme Court concluded that section 301 completely preempted the cause of action, because "the duties imposed and rights established through the state tort ... derive from the rights and obligations established by the [collective-bargaining] contract," and resolution of the dispute would therefore "inevitably... involve contract interpretation." 471 U.S. at 217-18, 105 S.Ct. 1904. The Supreme Court noted, however, that "it would be inconsistent with congressional intent under [section 301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." 471 U.S. at 212, 105 S.Ct. 1904.
Subsequently, in Caterpillar Inc. v. Williams, the Supreme Court considered whether section 301 permitted employees, who were covered by a collective-bargaining agreement, to bring state-law contract claims for breach of individual contracts between each employee and their employer. After reiterating that section 301 "governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective bargaining agreement," the Supreme Court concluded that the employees' state claims for breach of their individual employment contracts were not preempted. 482 U.S. at 394, 107 S.Ct. 2425 (internal quotation marks omitted). The Supreme Court reasoned:
482 U.S. at 394-95, 107 S.Ct. 2425. Accord Voilas v. Gen. Motors Corp., 170 F.3d 367, 373-74 (3d Cir.1999) (stating that, "under Caterpillar, employees have the option of vindicating their interests by means of either a section 301 action or an action brought under state law, as long as the state-law action as pleaded does not require
"Preemption arises only when an `evaluation of the ... claim is inextricably intertwined with consideration of the terms of the labor contract.'" Mowry v. UPS, 415 F.3d 1149, 1152 (10th Cir.2005) (emphasis in original) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. at 213, 105 S.Ct. 1904). "As long as the state-law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for § 301 pre-emption purposes." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).
In Lingle v. Norge Division of Magic Chef, Inc., the Supreme Court considered whether section 301 completely preempted an employee's state-law retaliatory discharge claim against her employer. See 486 U.S. at 401, 108 S.Ct. 1877. The Supreme Court's analysis focused first upon the elements necessary to make a prima-facie retaliatory discharge claim under the relevant state law: (i) discharge or a threat of discharge; and (ii) a motive to deter the employee from exercising her rights. See 486 U.S. at 407, 108 S.Ct. 1877. These elements, the Supreme Court noted, constituted "purely factual questions pertain[ing] to the conduct of the employee and the conduct and motivation of the employer," neither of which "require[d] a court to interpret any term of a collective-bargaining agreement." 486 U.S. at 407, 108 S.Ct. 1877. Accordingly, the Supreme Court concluded that the employee's state claim was "independent" of the relevant collective-bargaining agreement for purposes of section 301, because "resolution of the state-law claim did not require construing the collective-bargaining agreement." 486 U.S. at 407, 108 S.Ct. 1877. Moreover, the Supreme Court found it irrelevant that "the state-law analysis might well involve attention to the same factual considerations as the contractual determination of whether [the employee] was fired for just cause [under her collective-bargaining agreement]." 486 U.S. at 408, 108 S.Ct. 1877. "[S]uch parallelism," according to the Supreme Court, would not "render[] the state-law analysis dependent upon the contractual analysis." 486 U.S. at 408, 108 S.Ct. 1877. The Supreme Court opined that the reason for this principle was that
486 U.S. at 409-10, 108 S.Ct. 1877.
In Mowry v. UPS, the Tenth Circuit evaluated each of the plaintiff's claims "to determine whether they [were] `inextricably intertwined' with existing provisions of his collective-bargaining agreement and, as a result, preempted by § 301 of the LMRA." 415 F.3d at 1152. The plaintiff's first claim — retaliatory discharge in violation of public policy — was based on his allegation that UPS terminated him for refusing to drive when weather and road conditions posed a risk of injury, in violation of statutory regulations stating
415 F.3d at 1157. The Tenth Circuit also found that section 301 preempted the plaintiff's third claim — that the termination constituted intentional infliction of emotional distress. See 415 F.3d at 1157. The Tenth Circuit found that "determining whether [the defendant's] conduct in terminating [the plaintiff] was `outrageous' requires construction of [the defendant's] rights and obligations under the [collective-bargaining agreement], as that is the reference point against which [the defendant's] action must be scrutinized." 415 F.3d at 1158 (internal citation and quotation omitted).
"The Supreme Court has outlined a key distinction between a claim that involves interpretation of [collective-bargaining agreement] terms and one that involves mere reference to those terms, with only the former requiring complete preemption under § 301 of the LMRA." Felix v. Lucent Techs., Inc., 387 F.3d at 1164. "The mere need to `look to' the collective-bargaining agreement for damages computation is no reason to hold the state-law claim defeated by § 301." Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (citing Lingle v. Norge Div. of Magic Chef, 486 U.S. at 413 n. 2, 108 S.Ct. 1877). "Especially when the terms [of the collective-bargaining agreement] are undisputed, the court's limited reference to the collective-bargaining agreement to confirm damages is not sufficient to remove a state law claim on the ground that it is completely preempted by § 301 of the LMRA." Felix v. Lucent Techs., Inc., 387 F.3d at 1165. See Foy v. Pratt & Whitney Group, 127 F.3d 229, 233 (2d Cir.1997) (emphasizing difference between interpretation of a collective-bargaining agreement and consultation of a collective-bargaining agreement).
Because there is not a clear and unmistakable agreement to have an arbitrator decide whether the dispute is arbitrable, the Arbitration Agreement does not provide for an arbitrator to decide whether the case is arbitrable. Because Perez' claims do not conflict with, or face complete preemption under, section 301 of the LMRA, and are otherwise covered under the parties' Arbitration Agreement, the Court will compel Perez to arbitrate his claims against the Defendants. Because the parties contractually agreed to an award of costs and attorney's fees if either party successfully compels arbitration, the Court will award the Defendants their costs and attorney's fees incurred in bringing this Motion.
The Defendants contend that federal arbitration law or, alternatively, Colorado arbitration law, governs the arbitration rules the Court must apply based on the contract provisions in the arbitration agreement. See Motion at 2. Parties can generally agree by contract to have a particular forum's law govern arbitration, absent some conflict with federal arbitration policy:
Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Junior Univ., 489 U.S. at 478, 109 S.Ct. 1248. Here, the parties have agreed by contract that the FAA will apply to arbitration. The Arbitration Agreement provides:
Arbitration Agreement at 4. Furthermore, as the Tenth Circuit has acknowledged, the FAA generally applies to disputes concerning employment relationships:
Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1145 n. 6 (10th Cir.2007). The dispute in this case arises out of Perez' employment relationship with Qwest. Thus, the FAA governs the parties' arbitration agreement.
The Defendants argue that, "[u]nder the terms of the Arbitration Agreement, the agreement controls discrimination claims, common law torts and any dispute between these parties regarding `interpretation of this Attachment.'" Motion at 5. The Defendants contend that the Arbitration Agreement makes "the question of arbitration itself subject to arbitration," and asserts that, "once this Court determines that a valid agreement to arbitrate exists, the arbitrator is vested with jurisdiction over any questions regarding the satisfaction of conditions precedent and/or enforceability of the arbitration provision." Motion at 5.
The Supreme Court has held that "courts should not assume that the parties agreed to arbitrate arbitrability unless
First Options of Chi., Inc. v. Kaplan, 514 U.S. at 944, 115 S.Ct. 1920. The language in the agreement that the Defendants contend contains an agreement to arbitrate arbitrability is as follows: "Any claim, controversy or dispute between you and U S WEST, unless otherwise covered by a collective bargaining agreement, whether sounding in contract, statute, tort, fraud, misrepresentation, discrimination or any other legal theory, including, but not limited to, disputes relating to the interpretation of this Attachment ...." Arbitration Agreement at 4 (emphasis added).
To properly decide this issue, it is necessary to evaluate similar arbitration provisions that courts have addressed. The Tenth Circuit has stated that, "[o]f course, the most `clear and unmistakable' agreement to arbitrate the issue of arbitrability would be an express statement to that effect in the parties' contractual agreement to arbitrate disputes arising between them." Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d at 968. The Tenth Circuit has held that the phrase in an "arbitration clause" that referred to the arbitrator handling "any and all disputes arising out of or relating to the contract" was not clear and unmistakable, because "there is no hint in the text of the clause or elsewhere in the contract that the parties expressed a specific intent to submit to an arbitrator the question whether an agreement to arbitrate exists." Riley Mfg. Co., Inc. v. Anchor Glass Container Corp., 157 F.3d at 780. The first part of the language in this arbitration clause, "[a]ny claim, controversy or dispute between you and U S WEST," Arbitration Agreement at 4, is similar to the language discussed in Riley Manufacturing Co., Inc. v. Anchor Glass Container Corp. The language in the Arbitration Agreement, however, has more specificity in that it provides that the arbitrator will decide "disputes relating to interpretation of this Attachment," in other words the Arbitration Agreement. Arbitration Agreement at 4. The question is whether that additional language is sufficient to evidence a clear and unmistakable agreement to submit the issue of arbitrability to an arbitrator.
The Eighth Circuit found the following language to be clear and unmistakable regarding arbitrability: "Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s)." Sadler v. Green Tree Servicing, LLC, 466 F.3d at 624. That provision is more specific than the one in the Arbitration Agreement here, as it expressly refers to arbitrability. The Ninth Circuit found the following language to be clear and unmistakable regarding arbitrability:
Momot v. Mastro, 652 F.3d at 988 (emphasis in original). That underlined provision is somewhat similar to the language appearing in the Arbitration Agreement, which states that the arbitrator will decide "disputes relating to interpretation of this
The Second Circuit rejected a party's argument that "a general arbitration clause covering all issues of interpretation would no longer be regarded as sufficiently clear and unmistakable, absent precise language that issues of arbitrability should be arbitrated," stating that it did "not read" the Supreme Court's decision in "First Options so expansively." Abram Landau Real Estate v. Bevona, 123 F.3d at 73. In that case, the Second Circuit was interpreting a provision that stated that "[a] Contract Arbitrator shall have the power to decide all differences arising between the parties to this agreement as to interpretation, application or performance of any part of this agreement." Abram Landau Real Estate v. Bevona, 123 F.3d at 73. That language is similar to the language appearing in the Arbitration Agreement which states that the arbitrator will decide "disputes relating to interpretation of this Attachment," in other words the Arbitration Agreement. Arbitration Agreement at 4.
Several circuits, however, interpreting provisions similar to the one in this Arbitration Agreement, concluded that there was not a clear and unmistakable agreement to submit the issue of arbitrability to an arbitrator. The Fourth Circuit has held that "an arbitration clause committ[ing] all interpretive disputes relating to or arising out of the agreement does not satisfy the clear and unmistakable test." Peabody Holding Co., LLC v. United Mine Workers of Am., Int'l Union, 665 F.3d at 102 (alteration in original). The Seventh Circuit concluded that the language requiring arbitration of "all differences arising out of the interpretation or application of any provision of [the] agreement" was not clear and unmistakable. Local 744, Int'l Broth. of Teamsters v. Hinckley & Schmitt, Inc., 76 F.3d at 163-65. In an unpublished opinion, the Sixth Circuit concluded that the following language was not clear and unmistakable: "[T]he arbitrators shall be empowered to interpret and determine the applicability of all provisions under this Code which interpretation shall be final and binding upon the parties." Sec. Serv. Network, Inc. v. Cromwell, 1995 WL 456374, at *3.
Thus, circuit courts interpreting similar arbitration provisions to the one in this case appear to have reached different conclusions regarding whether the language is clear and unmistakable regarding the issue of arbitrability. For the Court to decide this issue, it is helpful to go back and consider how the Supreme Court has described the clear-and-unmistakable standard:
First Options of Chi., Inc. v. Kaplan, 514 U.S. at 944, 115 S.Ct. 1920 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. at 626, 105 S.Ct. 3346). Effectively, this rule operates as a tool of construction for arbitration agreements, treating any "silence or ambiguity
First Options of Chi., Inc. v. Kaplan, 514 U.S. at 945, 115 S.Ct. 1920.
The key word at issue in the Arbitration Agreement, to decide this issue whether the parties agreed to have the arbitrator decide arbitrability, is "interpretation." Arbitration Agreement at 4 (stating that the arbitrator will decide any disputes between the employee and U S WEST, "including, but not limited to, disputes relating to the interpretation of this Attachment"). New Mexico and Colorado courts
The New Oxford American Dictionary defines the term interpretation as "the action of explaining the meaning of something." New Oxford American Dictionary 473 (A. Stevenson & C. Lindberg eds., 3d ed. 2010). That phrase is notably a general one, as an arbitrator may end up interpreting many things in an arbitration agreement. New Mexico and Colorado courts look to the contract as a whole to interpret its meaning. See Newflower Mkt., Inc. v. Cook, 229 P.3d 1058, 1061 (Colo.App.2010) ("Contracts must be construed as a whole, and specific phrases and terms should not be interpreted in isolation."); Campos v. Homes by Joe Boyden, LLC, 140 N.M. 122, 125, 140 P.3d 543, 546 (Ct.App.2006) ("The intention of the parties to a contract is to be determined from the contract as a whole, `with meaning and significance given to each part in its proper context.'"). For instance, there are various other provisions in the Arbitration Agreement, referred to as Attachment A, including various "pre-employment conditions" an employee must satisfy before receiving a job offer, including provisions: (i) referring to the employee having to take a "drug test"; and (ii) discussing what will fall within the employee background check. Arbitration Agreement at 3. The Arbitration Agreement also refers to complying with certain legal requirements, including completing a "Form I-9" and presenting "appropriate documents, as required by the federal government to establish your identity and eligibility to work in the United States." Arbitration Agreement at 3. Then, the Arbitration Agreement has a subsection that refers to arbitration, entitled "Agreement for Arbitration." Arbitration Agreement at 4. The Arbitration Agreement also includes a lengthy agreement not to disclose trade secrets and other confidential information. See Arbitration Agreement at 5. The Arbitration Agreement also has a separate subsection informing the employee that he or she "must agree to follow the U S WEST Code of Business Ethics and Conduct and Corporate Policies and comply with our rules as they are issued or modified from time to time." Arbitration Agreement at 5. In light of these various
Furthermore, even within the arbitration clause, there are various provisions that do not bear on the threshold question of arbitrability, which creates an ambiguity about the extent of the arbitrator's authority to interpret the arbitration clause. The Supreme Court has described the term arbitrability as "whether the parties agreed to arbitrate [a] dispute." First Options of Chi., Inc. v. Kaplan, 514 U.S. at 942, 115 S.Ct. 1920. Accord AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. at 649, 106 S.Ct. 1415 (describing arbitrability as "whether" an "agreement creates a duty for the parties to arbitrate the particular grievance"). The arbitration clause provides the "rules and procedures" which the parties will follow during arbitration, including the number of arbitrators. See Arbitration Agreement at 4 ("A single arbitrator engaged in the practice of law shall conduct the arbitration under the applicable rules and procedures of the American Arbitration Association (`AAA')."). The arbitration clause refers to how the parties will pick an arbitrator. See Arbitration Agreement at 4 ("The arbitrator shall be chose from a state other than your state of residence and other than Colorado."). The arbitration clause specifies the scope of the arbitrator's authority regarding interpretation of the governing law. See Arbitration Agreement at 4 ("Other than as set forth herein, the arbitrator shall have no authority to add to, detract from, change, amend, or modify existing law."). The arbitration clause provides for the confidentiality of the arbitration proceedings. See Arbitration Agreement at 4 ("All arbitration proceedings, including settlements and awards, under this Agreement will be confidential."). Both New Mexico and Colorado courts follow the principle that a court should construe a contract against the one who drafted it, and the parties do not appear to dispute that U.S. West — Qwest's predecessor — drafted the agreement. See Valdez v. Cantor, 994 P.2d 483, 486 (Colo. App.1999) ("[I]n the case of any doubt with respect to a contract term, it should be construed most strongly against the drafter."); Smith v. Tinley, 100 N.M. 663, 665, 674 P.2d 1123 (1984) ("In addition, the ambiguities present in the agreement should be construed against Tinley since ambiguities in a contract are to be construed against the party who drafted it."); Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1253 (10th Cir.2007) ("Contra proferentem construes all ambiguities against the drafter.").
Ultimately, the Court cannot say, after considering the terms of the Arbitration Agreement, that is clear and unmistakable that the parties intended to submit questions of arbitrability to the arbitrator. The "silence [and] ambiguity" on this issue in the Arbitration Agreement counsels in favor of this interpretation. First Options of Chi., Inc. v. Kaplan, 514 U.S. at 944, 115 S.Ct. 1920. Applying principles of contract construction to the Arbitration Agreement, the more reasoned conclusion is that the parties did not intend to have an arbitrator decide questions of arbitrability. Thus, the Court will decide whether
The parties dispute whether the claims Perez has brought, claims for discrimination under Title VII and an assault-and-battery claim, fall within the scope of the Arbitration Agreement. The relevant portion of the Arbitration Agreement is as follows:
Arbitration Agreement at 4. Perez has argued that his claims are not subject to arbitration, because they are covered by the CBA into which he entered. He asserts that the claims he has asserted are completely preempted under section 301 of the LMRA such that the CBA has to cover them.
The Supreme Court has held that section 301 of the LMRA completely preempts state-law claims that fall within the scope of a claim under section 301. See Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. at 23, 103 S.Ct. 2841. "Section 301 of the LMRA governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement, although it does not contain an explicit preemption provision." Felix v. Lucent Techs., Inc., 387 F.3d at 1163-64 (footnote omitted) (citation omitted) (internal quotation marks omitted).
Regarding Perez' Title VII claims, his argument regarding complete preemption is unpersuasive. He cites no authority
Caterpillar Inc. v. Williams, 482 U.S. at 393, 107 S.Ct. 2425 (emphasis added). Perez cites no authority, and the Court has found none, holding that complete preemption applies to anything beyond state-law causes of action.
Furthermore, his argument runs against a basic tenet of statutory construction that courts must strive to give effect to all of Congress' laws, even if there may be some redundancy, as long as there is no "positive repugnancy" between the two laws. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ("Redundancies across statutes are not unusual events in drafting, and so long as there is no `positive repugnancy' between two laws, a court must give effect to both."). In the context of discrimination statutes, the Supreme Court has stated that "legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination." Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Regarding Title VII, the Supreme Court has held that "the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes." Alexander v. Gardner-Denver Co., 415 U.S. at 48, 94 S.Ct. 1011. The Supreme Court has also distinguished between Title VII claims and claims brought under a collective bargaining agreement:
Alexander v. Gardner-Denver Co., 415 U.S. at 48, 94 S.Ct. 1011 (footnotes omitted) (citations omitted).
Lastly, the Arbitration Agreement covers Title VII claims. The Arbitration Agreement states that an arbitrator must hear "[a]ny claim, controversy or dispute between you and U S WEST ... but not limited to ... claims under Title VII of the Civil Rights Act of 1964, as amended." Arbitration Agreement at 4. Thus, the Arbitration Agreement covers his Title VII claims.
Perez also contends that the CBA covers his assault-and-battery claim against Maggine. It is worth noting that the Arbitration Agreement defines U.S. West, the party to the Arbitration Agreement, as including "U S WEST, Inc., any successor, subsidiary or affiliate of U S WEST, Inc., and the employees, officers, directors, and agents of each of them." Arbitration Agreement at 3. The parties have not disputed that Maggine falls within this definition set out in the Arbitration Agreement. The parties have not disputed that the claims Perez has asserted against Maggine would be subject to arbitration unless the CBA covers them.
"In 2010, Perez suffered an injury to his back while on a Qwest duty assignment." Complaint ¶ 22, at 4. "The injury resulted in a ruptured disk in Perez' lower back." Complaint ¶ 22, at 4. "When Maggine learned of Perez' injury, he called Perez and angrily stated that he was considering terminating Perez." Complaint ¶ 22, at 4. "Maggine continued to harass and intimidate Perez. Maggine threatened Perez by shutting a laptop computer in Perez' face." Complaint ¶ 27, at 5. "Maggine also physically threatened Perez by leaning into him forcefully in the workplace." Complaint ¶ 27, at 5. "Shortly afterwards, on May 27,
"On May 31, 2011, Maggine ... approached Perez while Perez was seated at a work computer." Complaint ¶ 30, at 5. "Maggine forcefully leaned into Perez, handed Perez papers that Maggine told Perez to sign, and then left." Complaint ¶ 30, at 5. "The papers represented an unjustified disciplinary action Maggine had written up." Complaint ¶ 30, at 5. "When Maggine exited Perez' proximity, Perez, again fearful for his safety, left the area and went to his truck." Complaint ¶ 30, at 5. "Maggine followed Perez and began chasing Perez as Perez entered the truck. Maggine was shouting at Perez and pulling at the door of the truck." Complaint ¶ 30, at 5. "Perez rightly feared that Maggine was beside himself and feared that Maggine would attack him." Complaint ¶ 30, at 5. "Maggine banged on the windows of the vehicle and repeatedly attempted to forcefully enter the truck." Complaint ¶ 30, at 5. "Perez told Maggine to get away from the vehicle but Maggine refused. Perez then called the police to report the situation." Complaint ¶ 31, at 5. "The police came and the situation was eventually defused." Complaint ¶ 31, at 5-6. "Qwest management then demanded that Perez hand in his work badge and truck keys and ordered him off the property." Complaint ¶ 31, at 6. Perez eventually "began to suffer from heart palpitations, depression, and anxiety," as well as "panic attacks." Complaint ¶ 36, at 7.
Article 12 of the CBA provides that "[a]n employee whose Term of Employment (TOE) is one (1) or more years shall receive wage replacement during the first seven (7) consecutive calendar days of absence due to sickness" according to a formula table specified in the CBA. CBA at 8. Article 16.3 of the CBA provides: "Neither the Company or its representative, nor the Union, its local representative or members, will attempt, by means other than the grievance procedure, to bring about the settlement of any issue which is properly a subject for disposition through grievance or arbitration procedures." CBA at 11. The relevant provisions of article 23 of the CBA are as follows:
CBA at 13. The remaining relevant portions of article 23 are as follows:
CBA at 13.
Section 301 of the LMRA provides:
29 U.S.C. § 185(a). The Tenth Circuit has explained that section 301 "preempts questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, ... whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort." Cisneros v. ABC Rail
In Allis-Chalmers Corp. v. Lueck, the Supreme Court set forth the standard for determining when section 301 completely preempts a state law claim: "[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim or dismissed as pre-empted by federal labor-contract law." 471 U.S. at 220, 105 S.Ct. 1904 (citation omitted). In Allis-Chalmers Corp. v. Lueck, the plaintiff brought a state tort claim against his employer for the bad-faith processing of an insurance claim. See 471 U.S. at 206, 105 S.Ct. 1904. The Supreme Court concluded that section 301 completely preempted the cause of action, because "the duties imposed and rights established through the state tort ... derive from the rights and obligations established by the [collective-bargaining] contract," and resolution of the dispute would therefore "inevitably ... involve contract interpretation." 471 U.S. at 217-18, 105 S.Ct. 1904. The Supreme Court noted, however, that "it would be inconsistent with congressional intent under [section 301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." 471 U.S. at 212, 105 S.Ct. 1904.
The Arbitration Agreement provides that Colorado law governs common-law causes of action brought against Qwest. See Arbitration Agreement at 4 ("Additionally, the substantive law of Colorado, only to the extent it is consistent with the terms stated in this Agreement for Arbitration, shall apply to any common law claims."). Quoting from the Restatement (Second) of Torts (1965), the Supreme Court of Colorado has provided the following definition for a battery cause of action:
White v. Muniz, 999 P.2d 814, 816 (Colo. 2000) (alteration in original) (emphasis omitted). The elements for an assault cause of action under Colorado law are as follows:
Adams v. Corr. Corp. of Am., 187 P.3d 1190, 1198 (Colo.App.2008). As the Colorado
The elements for a battery cause of action and an assault cause of action would not require Perez to address, to prove his claims, "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement." Cisneros v. ABC Rail Corp., 217 F.3d at 1302. The basic events that Perez alleges occurred, viewing the Complaint in the light most favorably to Perez, that would constitute potentially tortious conduct under these causes of action include the following: (i) "Maggine threatened Perez by shutting a laptop computer in Perez' face," Complaint ¶ 27, at 5; (ii) "Maggine ... physically threatened Perez by leaning into him forcefully in the workplace," id. ¶ 27, at 5; (iii) "Maggine drove [his] vehicle directly at Perez and swerved at the last moment, barely avoiding hitting Perez," id. ¶ 28, at 5; (iv) "Maggine confronted Perez at the gas station and screamed at Perez," id. ¶ 28, at 5; (v) "Maggine forcefully leaned into Perez, handed Perez papers that Maggine told Perez to sign, and then left," id. ¶ 30, at 5; (vi) "Maggine followed Perez and began chasing Perez as Perez entered the truck. Maggine was shouting at Perez and pulling at the door of the truck," id. ¶ 30, at 5; and (vii) "Maggine banged on the windows of the vehicle and repeatedly attempted to forcefully enter the truck," id. ¶ 30, at 5. It is not necessary for a court to conduct any interpretation of the CBA to determine whether Maggine battered or assaulted Perez on those occasions. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. at 410, 108 S.Ct. 1877 ("As long as the state-law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for § 301 pre-emption purposes."). "Preemption arises only when an `evaluation of the ... claim is inextricably intertwined with consideration of the terms of the labor contract.'" Mowry v. UPS, 415 F.3d at 1152 (emphasis in original). There are no facts indicating that a battery or assault claim would be inextricably intertwined with the consideration of the terms of the CBA.
Perez contends that he has certain "rights, obligations, and privileges afforded through the CBA." Response at 4. He directs the Court to article 16.3 of the CBA, which provides: "Neither the Company or its representative, nor the Union, its local representative or members, will attempt, by means other than the grievance procedure, to bring about the settlement of any issue which is properly a subject for disposition through grievance or arbitration procedures." CBA at 11. Perez has directed the Court to no provision of the CBA that addresses physical altercations between employees such that a court might have to consult the CBA to resolve such a claim. Furthermore, people face common-law liability for assaulting and battering one another, independent of any collective bargaining provision to that effect. The Supreme Court has held that "it would be inconsistent with congressional intent under [section 301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. at 212, 105 S.Ct. 1904. Perez has also not pled that the CBA has any provisions that relate to assault and battery, and he is the master of his complaint. As the Supreme Court has stated in a similar context:
Caterpillar Inc. v. Williams, 482 U.S. at 394-95, 107 S.Ct. 2425.
Perez contends that "[t]he CBA further contains a number of provisions related to injured/ill employees." Response at 4-5. Once again, it is not necessary for a court to consult any of those provisions, which the Court has set out in detail above, to determine whether an assault or battery occurred. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. at 410, 108 S.Ct. 1877 ("As long as the state-law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for § 301 pre-emption purposes."). "Preemption arises only when an `evaluation of the ... claim is inextricably intertwined with consideration of the terms of the labor contract.'" Mowry v. UPS, 415 F.3d at 1152 (emphasis in original). Those provisions primarily relate to employee leave from work when they are sick or injured, or become sick or injured through an accident. They do not discuss injuries that other employee's inflict upon another. Furthermore, people face common-law liability for assaulting and battering one another, independent of any collective bargaining provision to that effect. The Supreme Court has held that "it would be inconsistent with congressional intent under [section 301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." 471 U.S. at 212, 105 S.Ct. 1904. Perez has also not pled that the CBA has any provisions that relate to assault and battery, and he is the master of his complaint. Even if those provisions somehow affect Perez' damages for assault and battery, and it is not clear that they would, "[t]he mere need to `look to' the collective-bargaining agreement for damages computation is no reason to hold the state-law claim defeated by § 301." Livadas v. Bradshaw, 512 U.S. at 124, 114 S.Ct. 2068. "Especially when the [collective-bargaining agreement's] terms are undisputed," and no one has argued that the CBA's terms are disputed in this case, "the court's limited reference to the collective-bargaining agreement to confirm damages is not sufficient to remove a state law claim on the ground that it is completely preempted by § 301 of the LMRA." Felix v. Lucent Techs., Inc., 387 F.3d at 1165. Thus, Perez' argument that section 301 preempts his assault-and-battery claim is unpersuasive.
Lastly, the Arbitration Agreement covers assault-and-battery claims. The Arbitration Agreement states that an arbitrator must hear "[a]ny claim, controversy or dispute between you and U S WEST... whether sounding in contract, statute, tort, fraud, misrepresentation, discrimination, or any other legal theory." Arbitration Agreement at 4. Colorado law recognizes tort causes of action for assault and battery. See White v. Muniz, 999 P.2d at 816; Adams v. Corr. Corp. of Am., 187 P.3d at 1198. Thus, the Arbitration Agreement covers Perez' assault-and-battery claim. Consequently, because the Arbitration Agreement covers all Perez' claims against the Defendants, the Court will compel Perez to arbitrate his claims.
The Arbitration Agreement provides:
Arbitration Agreement at 4. Under Colorado law, "[a]ttorney fees generally are not recoverable by the prevailing party in a contract or tort action," although "the parties may alter this rule by agreement." Bedard v. Martin, 100 P.3d 584, 593 (Colo. App.2004). Accord Garcia v. Jeantette, 134 N.M. 776, 780, 82 P.3d 947, 951 (Ct. App.2003) ("Generally, a party may recover attorney fees only when authorized by statute, court rule, or an agreement expressly providing for their recovery."). "Fee-shifting provisions replace the otherwise applicable rule that the losing party does not have to pay the winner's attorney fees." Bedard v. Martin, 100 P.3d at 593. Accord Credit Inst. v. Veterinary Nutrition Corp., 133 N.M. 248, 256, 62 P.3d 339, 347 (Ct.App.2002) ("As a general rule, litigants are responsible for their own attorney fees absent statutory authority or some other authority such as a contract allowing such fees.").
There is no dispute that Perez signed the Arbitration Agreement. See Arbitration Agreement at 6. He has not argued that the agreement is invalid, and the Court has compelled arbitration. He asks the Court not to award fees, because doing so would be inequitable. He largely relies on the fact that no one knew about the arbitration clause until after he filed the case. Nothing in the Arbitration Agreement provides for an exception to an award of costs and fees on equitable grounds. Parties can agree to modify by contract the general rule that they do not bear each others costs and attorney's fees, and Qwest and Perez have done so here. Accordingly, the Court will award the Defendants their costs and fees. The Court is not persuaded that the award is inequitable. When Perez learned of the arbitration provision, he did not agree to arbitration, but forced Qwest to file a motion to compel to present the matter to the Court. The Defendants should prepare an affidavit and schedule detailing the costs they have incurred, including their attorney's fees. They should first consult with Perez to see if he is amenable to paying the fees without the Court's involvement. If the parties cannot reach a resolution, the Defendants can file these documents with the Court, and Perez can articulate why he finds a particular portion of the costs to be objectionable.
Lastly, Perez has requested his costs and fees in responding to the Motion seeking to compel arbitration on the basis that it "should not have been brought." Response at 7. He cites no authority or provision in the Arbitration Agreement to support the proposition that he is entitled to fees if he successfully defends against the Motion. More importantly, the Court has granted the Motion. Thus, the Court will deny Perez' request for costs and fees.
Perez relates that, to assert LMRA claims, he would need to amend his pleadings to assert such claims against Qwest and his union. See Response at 5-6. He notes that he "is now in the process of finalizing an amended complaint which will include claims against the CWA for breach of a duty of fair representation." Response at 5-6. He notes that, "[a]t that point, this action will become a hybrid § 301 action under the Labor Management
Perez has not provided the Court with a proposed pleading outlining what his amended claims would be. And Perez is not correct that he will need to amend his complaint to state a claim against Qwest, because the Court has already concluded, without passing on the merits of the particular claims Perez has asserted, that section 301 does not affect Perez' rights under Title VII or under his common law claim for assault and battery. The case has been pending now for over nine months, with Perez filing his Complaint on September 23, 2011. The case needs to move forward. Furthermore, as the Defendants have pointed out, Perez may not be able to bring claims under section 301 if his claims are time-barred under the six-month statute of limitations applicable to section 301 claims, see DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 154-55, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) (concluded that the six-month statute of limitations prescribed in 29 U.S.C. § 160(b) applies to claims brought under section 301 of the LMRA), or if he has not exhausted the appropriate procedures to bring those claims, see Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965) (concluded that the "general rule" under "federal labor policy [that] requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union" applies to section 301 claims). It appears that the Court should send at least the present claims to arbitration. The Court has also provided guidance on the law, perhaps enlightening the parties on any further disputes. If there are federal claims for which Court needs to address arbitrability, the Court can do that task when the issue comes before it without delaying the case further. In light of all these concerns, and the procedural posture of this case, the Court concludes that the more reasoned course of action is to compel arbitration now rather than later.
Arbitration Agreement at 4. Thus, the agreement provides that Colorado arbitration law applies to the extent federal arbitration law does not apply. "Like most states ... New Mexico has a common exception to the [lex loci contractus] rule: `New Mexico respects party autonomy; the law to be applied to a particular dispute may be chosen by the parties through a contractual choice-of-law provision.'" Carl Kelley Constr. LLC v. Danco Techs., 656 F.Supp.2d at 1336 (citing Fiser v. Dell Computer Corp., 144 N.M. 464, 467, 188 P.3d 1215, 1218 (2008)). Thus, the parties have agreed that Colorado arbitration law applies to the extent federal law does not, and Colorado's law consequently applies to the interpretation of the arbitration agreement to the extent federal law does not. Ultimately, however, New Mexico and Colorado law are similar on the contract-interpretation issues the Court must decide, so the Court will provide citations to authority for each.
