Madison v. Niagara Bottling, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CURTIS MADISON,
Plaintiff,
v.
NIAGARA BOTTLING, LLC,
Defendants.
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CIVIL ACTION NO. H-25-5701
MEMORANDUM AND OPINION
Curtis Madison sued his former employer Niagara Bottling, LLC for harassment and
discrimination based on his race, disability, and sexual orientation under state and federal law.
(Docket Entry No. 14). The amended complaint includes harrowing allegations of racial abuse by
Niagara managers and employees. (Id. ¶¶ 11–24). Madison alleges that there was a hostile work
environment at Niagara and that he was denied promotion opportunities because of his race. (Id
¶ 20). 	Madison also alleges that he suffered sexual harassment and discrimination. 	(Id. ¶ 24).
Madison, a bisexual man who is HIV-positive, alleges that supervisory personnel and employees
sent “‘hot dog’ emojis and GIFs in group messages directed at” him and that another supervisor
refused “to use a forklift after” Madison because the supervisor “did not want to ‘get cooties from
him.’” (Id. ¶ 24(a)–(b)).
Niagara has moved to compel arbitration. (Docket Entry No. 12). Madison opposes the
motion, arguing that (1) the Ending Forced Arbitration of Sexual Assault and Sexual Harassment
Act bars arbitration of this case, (Docket Entry No. 15 at 6–16); and (2) he never signed the
purported arbitration agreement, (id. at 17–29). Based on the pleadings, the motion, the record,
and the applicable law, the court denies without prejudice the motion to compel arbitration.
United States District Court
Southern District of Texas
ENTERED
April 17, 2026
Nathan Ochsner, Clerk
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(Docket Entry No. 12). The plaintiff must amend his complaint by April 24, 2026; the defendant
may renew its motion to compel arbitration; and the court will schedule a Shattenkirk hearing on
the motion to compel arbitration if necessary.
I. 	Analysis
A. 	EFAA
The Federal Arbitration Act (“FAA”) requires district courts to compel arbitration if they
determine that there is a valid arbitration agreement encompassing the issues in dispute.
9 U.S.C. § 3. 	The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of
2021 (“EFAA”), 9 U.S.C. §§ 401–02, creates exceptions to the FAA. The EFAA provides:
Notwithstanding any other provision of this title, at the election of the person
alleging conduct constituting a sexual harassment dispute or sexual assault dispute,
or the named representative of a class or in a collective action alleging such
conduct, no predispute arbitration agreement or predispute joint-action waiver shall
be valid or enforceable with respect to a case which is filed under Federal, Tribal,
or State law and relates to the sexual assault dispute or the sexual harassment
dispute.
9 U.S.C. § 402(a). The EFAA defines a “sexual harassment dispute” as a “dispute relating
to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State
law.” Id. § 401(4). Because the EFAA makes predispute arbitration agreements unenforceable
“with respect to a case,” id. § 402(a), the EFAA bars a motion to arbitrate any claim within that
case; the EFAA does not require courts to sever sexual-harassment or sexual-assault claims from
the rest of the plaintiff’s suit. See Bruce v. Adams & Reese, LLP, 168 F.4th 367, 385–86 (6th Cir.
2026) (“[W]e hold that [] where a plaintiff brings multiple claims in a single suit against a party
with whom she has an otherwise-valid arbitration agreement, and one of those claims alleges a
‘sexual assault dispute’ or a ‘sexual harassment dispute,’ the EFAA renders the arbitration
agreement unenforceable with respect to each of the claims that comprise her case.”).
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Importantly, federal and state discrimination law distinguishes claims of sexual harassment
from claims of sex discrimination. Stephens v. DFW LinQ Transp., Inc., No. 3:24-CV-00352-N,
2025 WL 1697537, at *3 (N.D. Tex. June 16, 2025). 	“The former involves unwelcome sexual
advances or other verbal or physical conduct of a sexual nature, whereas the latter refers to
discriminating against someone because of their protected characteristic.” Lopez v. AT&T Mobility
Servs. LLC, 767 F. Supp. 3d 406, 425 (W.D. Tex. 2025) (cleaned up) (quoting Friel v. Mnuchin,
474 F. Supp. 3d 673, 692 (E.D. Pa. 2020), aff’d, No. 20-2714, 2021 WL 6124314 (3d Cir. Dec.
28, 2021)). “Unwelcome sexual harassment can take several forms, including ‘sexual advances,
requests for sexual favors, and other verbal or physical conduct of a sexual nature that is
unwelcome in the sense that it is unsolicited or unincited and is undesirable or offensive to the
employee.’” Karamatic v. Peyton Res. Grp., L.P., 3:21-CV-02304-N, 2022 WL 2972222, at *2
(N.D. Tex. 2022) (quoting Jones v. Flagship Int’l, 793 F.2d 714, 719 (5th Cir. 1986)).
Madison alleges two acts that fall within the scope of the EFAA: that he received a text
message of a “hot dog emoji to mock him” and that another Niagara employee refused to use the
forklift after him on account of his “cooties,” which was a reference to his “sexual orientation and
HIV-positive” status. (Docket Entry No. 14 ¶¶ 18, 24). The problem for Madison is that these
allegations are not alone sufficient to “plausibly allege[] a Title VII sexual-harassment claim.”
Bruce, 168 F.4th at 380. Courts must first review whether the plaintiff adequately alleged a claim
within the scope of the EFAA before denying a motion to compel arbitration. See id. at 376 (“[I]f
the sexual harassment claim is subject to dismissal under Rule 12(b)(6), the remaining claims
under the ADA will be subject to arbitration.”); Yost v. Everyrealm, Inc., 657 F. Supp. 3d 563, 588
(S.D.N.Y. 2023) (“[W]ith the SAC’s sexual harassment claims having been dismissed as
implausible, the EFAA no longer has any bearing on this litigation.”).
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To prevail on a hostile-work-environment claim, “(1) the plaintiff is a member of a
protected class; (2) the plaintiff was subjected to unwanted or unwelcome sexual harassment; (3)
the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of
employment; and (5) the employer knew or should have known about the harassment and failed to
act promptly to address it.” Cerda v. Blue Cube Operations, L.L.C., 95 F.4th 996, 1003 (5th Cir.
2024) (citing Jones v. Flagship Int’l, 793 F.2d 714, 719–20 (5th Cir. 1986)).1
To satisfy the fourth element of a hostile-work-environment claim, the sexual harassment
“must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and
create an abusive working environment.’” 	Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). The environment
must be “both objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998) (citing Harris v. Forklift Sys., 510 U.S. 17, 21–22 (1993)). Courts
consider the totality of the circumstances, including “the frequency of the discriminatory conduct;
its 	severity; 	whether 	it 	is 	physically 	threatening 	or 	humiliating, 	or 	a 	mere 	offensive
utterance; . . . whether it unreasonably interferes with an employee’s work performance,” Harris,
510 U.S. at 23; and “whether the complained of conduct undermined the plaintiffs’ workplace
competence,” Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 270 (5th Cir. 1998). Discrimination
laws are not a “general civility code,” and “‘simple teasing,’ offhand comments, and isolated
1 Under Title VII and Section 21.051 of the Texas Commission on Human Rights Act, “a plaintiff can allege
that her employer engaged in sex discrimination so pervasive that it constituted sexual harassment and
created a hostile work environment.” Brown-Steffes v. Avis Budget Grp., Inc., No. 3:23-CV-1747-D, 2023
WL 6386510, at *3 (N.D. Tex. Sept. 29, 2023); see Newbury v. City of Windcrest, 991 F.3d 672, 675 (5th
Cir. 2021) (recognizing that Title VII “forbids sexual harassment in the workplace as a form of sex
discrimination”). Identical legal standards govern claims under both statutes. Hernandez v. Yellow Transp.,
Inc., 670 F.3d 644, 650 (5th Cir. 2012).
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incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Faragher, 524 U.S. at 788 (citations omitted).
Allegations of harassing comments that occurred “three or four times” over several months
or an extended period generally do not create a hostile work environment, especially if there are
no factual allegations that the “comments unreasonabl[y] interfered with [] work performance.”
Vallee v. Gerry Lane Hummer-Saab, LLC, No. CIV.A. 10-00765-BAJ, 2013 WL 1296680, at *8
(M.D. La. Mar. 28, 2013) (collecting cases); see, e.g., Thomas v. Link Staffing, No. 4:17-CV-3902,
2019 WL 497617, at *7 (S.D. Tex. Jan. 8, 2019), report and recommendation adopted, No. CV
H-17-3902, 2019 WL 480133 (S.D. Tex. Feb. 7, 2019); Tucker v. Harris Cnty. Hosp. Dist., No.
CV H-19-4408, 2020 WL 1659893, at *4 (S.D. Tex. Mar. 30, 2020); Pleasant v. Kansas City S.
Ry. Co., No. CV H-23-828, 2024 WL 5246880, at *3 (S.D. Tex. Dec. 30, 2024). If a court is to
rely on allegations of isolated instances, the complaint must include additional factual allegations
suggesting the abuse was “much more frequent.” Bruce, 168 F.4th at 379.
The current complaint does not do so. 	The complaint includes allegations about two
comments from two different people. Madison does not identify when those comments took place,
whether the two comments were close in time, whether the comments were related (and, if so,
how), or how those comments affected Madison’s work. Madison’s passing assertion that various
unnamed supervisors and coworkers repeatedly posted hot-dog emojis is not clear enough. 	Cf.
also id. (relying on allegations of a few instances of abuse from one individual); Andrassy v. Jan
X-Ray Servs., Inc., No. CV 24-3913, 2025 WL 2577142, at *1 (S.D. Tex. Sept. 5, 2025) (relying
on, among other allegations, two instances of unwanted flirtatious touching from the same
company president). 	That is especially so because the complaint includes no explanation of how
the sexual harassment undermined Madison’s workplace competence. See Butler, 161 F.3d at 270.
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For allegations about harassment over text messages, which may have occurred outside the
workplace, plaintiffs must allege that “consequences” were felt “in the workplace.” Arredondo v.
Schlumberger Ltd., 583 F. Supp. 3d 783, 810 (W.D. Tex. 2022) (quoting Lapka v. Chertoff, 517
F.3d 974, 983 (7th Cir. 2008)), aff’d sub nom. Arredondo v. Elwood Staffing Services, Inc., 81
F.4th 419 (5th Cir. 2023). But other than a comment that he was fired because he did not “fit the
culture”—which Madison at the same time claims is “pretextual” and false, (Docket Entry No. 14
¶ 19)—Madison does not explain how the harassment interfered with his ability to do his job.
Because this issue arises within a motion to compel arbitration, the parties did not brief
extensively whether Madison has plausibly alleged a sexual-harassment claim against Niagara.
But for purposes of this motion, the two isolated comments, as alleged in the complaint, are
insufficient to warrant holding unenforceable the parties’ arbitration agreement. 	Madison has
leave to amend his complaint to allege adequately his sexual-harassment claim. If he does so, then
the EFAA will apply.
B. 	Contract Formation and Enforcement
Courts must resolve whether there is a valid, binding arbitration agreement between the
parties. Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 205 (5th Cir. 2012); Nelson v. Watch
House Int’l, L.L.C., 815 F.3d 190, 193 (5th Cir. 2016). 	Madison argues that the arbitration
agreement is not binding for two reasons: (1) because the agreement is invalid under In re
Halliburton Co., 80 S.W.3d 566 (Tex. 2002), and its progeny; and (2) because he never signed the
arbitration agreement. Madison’s first argument fails but his second has some merit.
1. 	Validity
Madison argues that the arbitration agreement is invalid because Niagara did not provide
advance notice of the arbitration agreement and because the arbitration agreement is illusory under
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In re Halliburton. 	(Docket Entry No. 15 at 17–22). 	These arguments are not applicable to the
arbitration agreement in this case.
First, the advance-notice issue in Halliburton arises when an at-will employee receives a
unilateral notice of a change in the terms or conditions of his employment and continues the
employment under the at-will relationship. In re Halliburton, 80 S.W.3d at 568–69. This is not
such a case of implicit acceptance or acceptance by acquiescence. 	Madison allegedly signed a
particular document containing an arbitration agreement. (Docket Entry No. 12-1 at 6).
Second, the illusoriness issue in Halliburton arises when one party can unilaterally
terminate the agreement to arbitrate. Under Texas law, standalone arbitration agreements are valid
as an exchange of mutually-binding promises to arbitrate disputes. See Nelson, 815 F.3d at 193
(“[A] mutual agreement to arbitrate claims is sufficient consideration to support an arbitration
agreement.”). An issue arises if one side can unilaterally terminate its promise to arbitrate; in that
case, only one side is making an enforceable promise. See Lizalde v. Vista Quality Markets, 746
F.3d 222, 225 (5th Cir. 2014) (“Where one party has the unrestrained unilateral authority to
terminate its obligation to arbitrate, however, the agreement understandably is illusory.”). 	This
arbitration agreement does not present a one-sided promise. There is no provision in the arbitration
agreement, (Docket Entry No. 12-1), that allows Niagara to back out of arbitration. If Madison
wants to enforce the arbitration provision, he can so move, and the contract does not provide
Niagara with a unique termination defense.
Halliburton does not apply to this arbitration agreement.
2. 	Electronic Signature
The genuine dispute is whether Madison in fact signed the arbitration agreement on which
Niagara relies. Texas courts have established a nonsensically high bar to compelling arbitration
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as a matter of law based on an electronic signature. The party moving to compel arbitration must
on the papers “conclusively establish” that the plaintiff signed electronically the document. Hous.
ANUSA, LLC v. Shattenkirk, 693 S.W.3d 513, 520 (Tex. App.—Houston [14th Dist.] 2023, no
pet.). 	The moving party can do so through the “security procedures” used in obtaining the
electronic signature. Id.
A few cases show how high the bar is. In Shattenkirk, AutoNation provided an affidavit
establishing that “all necessary onboarding paperwork was sent to Shattenkirk’s email address”;
that “Shattenkirk entered his unique password to login”; and that to accept the agreement,
“Shattenkirk was required to type in the last five digits of his social security number, which he did
on May 10, 2017 at 7:51 a.m.” 	Id. 	The court held that the trial court erred in not holding an
evidentiary hearing because the affidavit, although requiring personal and unique information, did
not rule out the possibility of “unauthorized access” or include a concession from the employee
that he had completed part of the onboarding packet. 	Id. 	Because the employee “denied
completing any employment documentation electronically, averring that he manually completed
the employment agreements,” the court had to resolve whether Shattenkirk in fact signed the
arbitration agreement after an evidentiary hearing. Id. at 521.
Similarly in Brown v. Child Advocates Inc., the court of appeals required an evidentiary
hearing on the motion to compel arbitration even though the employee could only have signed the
arbitration agreement with a “unique password and username.” 	___ S.W.3d ___, 2025 WL
1107095, at *2 (Tex. App.—Houston [14th Dist.] 2025, pet. filed). 	The court ruled that the
employer’s affidavit fell short because it did not require “personal identifying information,”
identify “security procedures that would prevent unauthorized access by users other than Brown,”
corroborate “Brown’s unique password and username,” or conclusively demonstrate that Brown
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completed some other part of the orientation packet that included the arbitration agreement. Id. at
*3. The court acknowledged that a failure to “recall” whether one signed an arbitration agreement
does not create a genuine factual dispute. Id. But because “Brown averred that she never intended
to enter into a binding arbitration agreement, did not remember ever signing an arbitration
agreement, and could not even confirm whether that was her signature on the arbitration
agreement,” the trial court erred in granting the motion to compel arbitration without an evidentiary
hearing. Id.
Cases granting motions to compel arbitration offer some guidance on the information that
a moving party’s supporting affidavit must include. In Solcius, LLC v. Meraz, the moving party’s
affidavit explained that the loan agreement was sent through DocuSign’s secure processes to
Meraz’s personal email address, which only Meraz could access. No. 08-22-00146-CV, 2023 WL
2261414, at *7 (Tex. App.—El Paso Feb. 27, 2023, no pet.) (mem. op.). In H-E-B, LP v. Saenz,
Saenz signed the arbitration agreement through a process that “assigned a unique identification
number and password” that could “only be accessed by a link in the email sent to the email address
provided by the applicant in the initial application.” No. 01-2000850-CV, 2021 WL 4733460, at
*6 (Tex. App.—Houston [1st Dist.] Oct. 12, 2021, pet. denied) (mem. op.). The key from Meraz
and Saenz is that the electronic signature was backed by some “unique, secret credentials” that no
officer, agent, servant, or employee of the moving party could access. Id.
The strength of the security measures in Saenz and Meraz are potentially distinguishable
from those in Shattenkirk and Brown, although only on speculative and fanciful grounds. 	In
Shattenkirk, an AutoNation agent perhaps could have accessed Shattenkirk’s social-security
number through his employment files and used it to sign the arbitration agreement on his behalf.
The facts did not show that the documents were sent to Shattenkirk’s personal email that only he
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could access. Similarly in Brown, an agent of the employer perhaps could have found Brown’s
unique password and username in the company’s files and used them to sign the arbitration
agreement on his behalf. By contrast, in Meraz, there was no possible way for anyone but Meraz
to log into his own email account, click on the DocuSign link, and then sign the disputed contracts.
Saenz is no different, because all the relevant onboarding documents were sent to Saenz’s personal
email. In Sanez and Meraz, the moving party did not possess the information or means needed to
fabricate the electronic signature.
The case law suggests the following framework for evaluating cases in which a party relies
on security measures to establish the validity of an electronic signature. The court first must assess
whether the moving party ruled out the possibility that anyone but the opposing party signed the
arbitration agreement, such as through the use “unique, secret credentials” that no agent of the
moving party could have possibly accessed. If the moving party does not provide such evidence—
but instead offers only an employee who “vouches for the authenticity of an agreement purportedly
signed by the plaintiff as a business record,” Hendrix v. Allstate Ins. Co., No. 4:25-CV-00698-P-
BP, 2026 WL 942672, at *3 (N.D. Tex. Mar. 18, 2026) (cleaned up)—then only “legally
sufficient,” not legally conclusive, evidence is in the record, Shattenkirk, 693 S.W.3d at 519. The
court next must evaluate “any contravening evidence from” from the opposing party. Id. If the
opposing party states that he or she does not “recall” signing the arbitration agreement, then the
court can compel arbitration. See Brown, 2025 WL 1107095, at *3; Hendrix, 2026 WL 942672,
at *4. 	But if the opposing party avers that he or she “never intended to enter into a binding
arbitration agreement,” Brown, 2025 WL 1107095, at *3, or outright denies completing the
arbitration agreement or related employment documents, see Shattenkirk, 693 S.W.3d at 521, then
the court must resolve the material factual dispute after an evidentiary (or Shattenkirk) hearing.
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Under this framework, Niagara has not yet provided a sufficiently detailed affidavit to
warrant granting the motion to compel arbitration. 	Niagara provided a declaration from Dilini
Wijetilleke, the Director of HR Optimization & Technology. 	(Docket Entry No. 18-1). 	He
affirmed that Madison signed the arbitration agreement through Workday, its centralized system
for distributing documents, which employees can only access through “unique credentials assigned
to that employee.” (Id. ¶¶ 5–7). Wijetilleke then offered details showing that the signature on the
arbitration agreement was entered from an I.P. address that Madison consistently used in the course
of his employment. (Id. ¶¶ 9–29). Madison disputes Wijetilleke’s affidavit. He asserts that to the
best of his recollection he “did not receive a DocuSign link, an email containing an arbitration
agreement, or any electronic notification asking [him] to review and sign an arbitration agreement
at any time during [his] employment.” (Docket Entry No. 15-1 ¶ 7). He further affirms that he
did not intend to agree to arbitrate and “would have sought the advice of an attorney before
signing” such an agreement. (Id. ¶ 17). Madison also argues that the I.P. address could have been
common to the Missouri City plant at which he worked, not specific to him. (Docket Entry No.
19 at 12–13). Madison’s affidavit creates a genuine dispute of material fact on the validity of the
electronic signature.
Madison denies signing the arbitration agreement, and Wijetilleke’s affidavit, although
highly persuasive, is not legally conclusive evidence under Texas law. Wijetilleke’s affidavit does
not show that Madison’s unique credentials are also secret, such that no Niagara employee possibly
had the ability to sign the arbitration agreement on Madison’s behalf. Saenz, 2021 WL 4733460,
at *6. This is an issue the court must resolve through a Shattenkirk hearing. But because the court
is denying the motion to compel without prejudice, and requiring Madison to amend his sexual-
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harassment claims, the court will grant Niagara leave to submit a new affidavit in a renewed motion
that can establish the facts necessary to compel arbitration as a matter of law.
Lastly, Madison seeks discovery into whether he signed the arbitration agreement. 	The
court denies his request. 	The Federal Arbitration Act requires “an expeditious and summary
hearing, with only restricted inquiry into factual issues.” Moses H. Cone Mem’l Hosp. v. Mercury
Const. Corp., 460 U.S. 1, 22 (1983). As a result, “courts have generally denied arbitration-related
discovery absent a compelling showing that such discovery is required.” Hudson v. Windows USA,
LLC, No. 3:16CV596-DPJ-FKB, 2016 WL 8135875 (S.D. Miss. Nov. 3, 2016) (citing Bell v. Koch
Foods of Miss., LLC, No. 3:08cv697-WHB-LRA, 2009 WL 1259054, at *3 (S.D. Miss. May 5,
2009)), aff’d, 358 Fed. App’x. 498 (5th Cir. 2009)). 	Although legally insufficient to compel
arbitration on the papers under Texas law, Niagara’s affidavit is highly persuasive. The court does
not need to grant discovery that amounts to a fishing expedition. See Bell Helicopter Textron Inc.
v. Am. Eurocopter, LLC, 729 F. Supp. 2d 789, 798 (N.D. Tex. 2010) (“The court need not allow a
plaintiff to conduct a jurisdictional fishing expedition seeking facts to support a claim of general
jurisdiction.”). 	There is little reason to believe that anyone other than Madison signed the
arbitration agreement. Madison will have the opportunity to make his case and examine Niagara’s
witnesses if a Shattenkirk hearing is ultimately necessary. 	But even limited discovery is not
prudent at this stage in the litigation.
II. 	Conclusion
For these reasons, the motion to compel arbitration, (Docket Entry No. 12), is denied
without prejudice. The motion for leave to file a sur-reply, (Docket Entry No. 20), is granted. The
plaintiff must amend his complaint by May 1, 2026; the defendant may renew its motion to compel
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arbitration; and the court will schedule a Shattenkirk hearing on the motion to compel arbitration
if necessary.
SIGNED on April 15, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
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