Ramirez v. Domino's Pizza Supply Chain et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01731-SKC-STV
JUAN ARIAS RAMIREZ,
Plaintiff,
v.
DOMINO’S PIZZA SUPPLY CHAIN; and
SCOTT KNAPP, COLORADO SUPPLY CHAIN DIRECTOR, in his official capacity,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on Defendants’ Amended Motion to Compel
Arbitration and Dismiss Complaint [#23] (the “Motion”) which was referred to this Court
[#24]. This Court has carefully considered the Motion and related briefing, the entire case
file, and the applicable case law, and has determined that oral argument would not
materially assist in the disposition of the Motion. 	For the following reasons, this Court
respectfully RECOMMENDS that the Motion be GRANTED.
I. 	BACKGROUND
Plaintiff is an Afro-Hispanic male who was born in the Dominican Republic. [#1 at
¶ 7] 	He is a former employee of Defendant Domino’s Pizza LLC1 (“Domino’s Pizza”),
having initially been hired as a warehouse manager in Missouri in December 2021, before
1 Improperly pled as Domino’s Pizza Supply Chain (DPZ). [#23 at 1, n.1]
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 1 of 15

2
being transferred to the Colorado supply chain center in October 2022. [Id. at ¶¶ 7, 90]
In Colorado, Plaintiff held dual titles of Center Administrator and Customer Service
Manager. [Id. at ¶ 7]
In October and November 2022, Plaintiff uncovered various misconduct by
Defendant Domino’s Pizza and its employees, including theft and the shipping of expired
products. 	[Id. at ¶¶ 46-48] 	Around this same time, Plaintiff’s supervisor, Dani Rich,
“started going to multiple team members to get written statements as to how [Plaintiff’s]
changes were creating a hostile work environment and were of a sexist and racist nature.”
[Id. at ¶¶ 49, 51] These allegations were deemed unfounded and, indeed, Ms. Rich was
presented with a corrective action under the policy of Discrimination, Harassment, or
Retaliation for her treatment of Plaintiff. [Id. at ¶¶ 51-52]
Between November 2022 and April 2023, Plaintiff continued to observe incidents
of misconduct by Ms. Rich and others. [Id. at ¶¶ 53-56, 69, 84, 89] Ms. Rich and other
employees also engaged in conduct directed at female and racial minority employees that
Plaintiff believed to be discriminatory. 	[See, e.g., id. at ¶¶ 54-55, 57-59, 61-88] 	As a
result of this conduct, complaints of discrimination at the Colorado supply chain center
increased. 	[Id. at ¶ 60] 	And many of the employees reported to Plaintiff their own
experiences of discrimination and harassment at the supply center. [See, e.g., id. at ¶¶
64, 67-68, 70-73] Plaintiff reported certain of these incidents to management. [See, e.g.,
id. at ¶¶ 62-63, 67, 72, 74]
On May 1, 2023, Defendant Domino’s Pizza terminated Plaintiff. 	[Id. at ¶ 90]
Domino’s Pizza’s representative informed Plaintiff that Plaintiff was being terminated due
to some comments he made and because he used his personal phone for work. 	[Id.]
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 2 of 15

3
Plaintiff subsequently filed a complaint with the Colorado Civil Rights Division (the
“CCRD”) and Plaintiff alleges that there were suspicious inconsistencies in the material
Defendants provided to the CCRD. [Id. at ¶¶ 96-108]
On June 21, 2024, Plaintiff initiated the instant action. 	[#1] 	Plaintiff’s Complaint
brings seven claims: (1) disparate treatment based upon race pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”) ; (2) disparate treatment based
upon national origin pursuant to Title VII; (3) disparate treatment pursuant to 42 U.S.C. §
1981 (“Section 1981”); (4) retaliation based on complaints of race discrimination pursuant
to Title VII; (5) retaliation pursuant to Section 1981; (6) retaliation pursuant to the Fair
Labor Standards Act (the “FLSA”); and (7) retaliation pursuant to Title VII for reporting
sexual harassment. [Id. at ¶¶ 102-08]
On July 24, 2024, Defendants filed the instant Motion arguing that Plaintiff’s
employment agreement contained a provision requiring Plaintiff to arbitrate any claims
arising out of his employment with Domino’s Pizza. 	[#23] 	As part of the Motion,
Defendants attached the declaration of Kashmiere Apollon, the Director of Human
Resources Operations at Domino’s Pizza. [#23-1 at ¶ 1] According to Ms. Apollon, during
his onboarding process, Plaintiff reviewed and signed an arbitration agreement. [Id. at ¶
4] Ms. Apollon included an employment agreement purporting to contain Plaintiff’s digital
signature, dated December 21, 2021. [Id. at 8-11]
Pursuant to the arbitration agreement, Plaintiff and Domino’s Pizza “agree that any
claim, dispute, and/or controversy that [Plaintiff] or [Domino’s Pizza] may have against
the other shall be submitted to and determined exclusively by . . . arbitration.” [Id. at 8] It
specifically includes “any claims related to wages, reimbursements, discrimination, and
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 3 of 15

4
harassment, whether based on state law, [Title VII], as well as all other federal, state, or
local laws or regulations.” [Id.] The arbitration agreement contains an opt-out provision
[id. at 9], but Ms. Apollon testified that, based upon her review of Plaintiff’s employment
records, Plaintiff did not opt-out of the arbitration agreement and, indeed, initiated
arbitration against Defendants pursuant to the agreement [id. at ¶¶ 6-7].
On August 6, 2024, Plaintiff filed a Motion to Void Defendant’s Motion to Compel
Arbitration [#28] which this Court construed as a response to the Motion [#33]. On August
22, 2024, Defendants filed a reply in support of the Motion. 	[#39] Plaintiff then filed a
Counter to Defendant’s Motion in Support of Compelling Arbitration [#45] which this Court
struck as an improper surreply [#46]. 	The Court now reconsiders the order striking
Plaintiff’s surreply. 	Because the Court concludes that Plaintiff’s surreply contains some
arguments addressing issues raised for the first time in Defendants’ reply, the Court will
permit the surreply. 	The Court has thus considered the surreply for purposes of this
Recommendation.
II. 	STANDARD OF REVIEW
Arbitration agreements are governed by the Federal Arbitration Act (“FAA”). 	9
U.S.C. § 1 et seq. But “[t]he existence of an agreement to arbitrate is a threshold matter
which must be established before the FAA can be invoked.” 	Avedone Eng’g, Inc. v.
Seatex, 126 F.3d 1279, 1287 (10th Cir. 1997). 	“[U]nlike the general presumption that a
particular issue is arbitrable when the existence of an arbitration agreement is not in
dispute, when the dispute is whether there is a valid and enforceable arbitration
agreement in the first place, the presumption of arbitrability falls away.” Nesbitt v. FCNH,
Inc., 74 F. Supp. 3d 1366, 1370 (D. Colo. 2014) (“Nesbitt I”) (quoting Riley Mfg. Co. v.
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 4 of 15

5
Anchor Glass Container Corp., 157 F.3d 775, 779 (10th Cir. 1998)), aff’d, 811 F.3d 371
(10th Cir. 2016) (“Nesbitt II”); see also Dumais v. Am. Golf Corp., 299 F.3d 1216, 1220
(10th Cir. 2002) (stating that the “presumption [of arbitrability] disappears when the parties
dispute the existence of a valid arbitration agreement”). “A federal court must apply state
contract law principles when determining whether an arbitration agreement is valid and
enforceable.” 	Nesbitt I, 74 F. Supp. 3d at 1371 (citing First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 944 (1995)).
If the court determines the existence of a valid and enforceable arbitration
agreement, the FAA then applies. Under the FAA, arbitration agreements “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. The FAA “leaves no place for the exercise of
discretion by a district court, but instead mandates that district courts shall direct the
parties to proceed to arbitration on issues as to which an arbitration agreement has been
signed.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985); see also Nesbitt
I, 74 F. Supp. 3d at 1370 (same). Accordingly, the FAA requires the Court to “rigorously
enforce agreements to arbitrate,” Dean Witter Reynolds, 470 U.S. at 221, unless the
agreement to arbitrate is invalidated by “generally applicable contract defenses, such as
fraud, duress, or unconscionability,” Nesbitt II, 811 F.3d at 376 (quoting AT & T Mobility
LLC v. Concepcion, 563 U.S. 333, 339 (2011)); see also Epic Sys. Corp. v. Lewis, 138 S.
Ct. 1612, 1622 (2018). But an arbitration agreement will not be nullified by “defenses that
apply only to arbitration or that derive their meaning from the fact that an agreement to
arbitrate is at issue.” Id.
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 5 of 15

6
In considering a motion to compel arbitration under the FAA, the court applies “a
standard similar to that governing motions for summary judgment.” 	Stein v. Burt-Kuni
One, LLC, 396 F. Supp. 2d 1211, 1213 (D. Colo. 2005); see also Ragab v. Howard, 841
F.3d 1134, 1139 (10th Cir. 2016) (“When parties do not dispute the material facts
surrounding an arbitration provision, then a district court, while viewing the facts most
favorable to the non-moving party, can decide as a matter of law whether the parties
actually agreed to arbitrate,” applying a “standard [that] is similar to the summary
judgment standard.”). 	Accordingly, a defendant “must present evidence sufficient to
demonstrate an enforceable arbitration agreement.” 	Stein, 396 F. Supp. 2d at 1213.
Then, the burden shifts to plaintiffs “to raise a genuine issue of material fact as to the
making of the agreement, using evidence comparable to that identified in Fed. R. Civ. P.
56.” 	Id. 	If that occurs, “then a trial on the existence of the arbitration agreement is
required.” Id.
III. 	ANALYSIS
In their Motion, Defendants argue that Plaintiff’s claims are subject to the
arbitration provision of her employment agreement. 	[#23] 	The Federal Arbitration Act
(“FAA”) “manifests a ‘liberal federal policy favoring arbitration.’” Comanche Indian Tribe
v. 49, L.L.C., 391 F.3d 1129, 1131 (10th Cir. 2004) (quoting Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 25 (1991)). Consequently, the Court must “resolve ‘any doubts
concerning the scope of arbitrable issues . . . in favor of arbitration.’” 	P & P Industries,
Inc. v. Sutter Corp., 179 F.3d 861, 866 (10th Cir. 1999) (quoting Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983)). “In addition, this liberal policy
covers 	more 	than 	simply 	the 	substantive 	scope 	of 	the 	arbitration 	clause, 	and
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 6 of 15

7
encompasses an expectation that [arbitration] procedures will be binding.” Id. (quotation
omitted).
Defendants have provided an employment agreement that contains a dated digital
signature. 	[#23-1 at 8-11] Defendants further provided a declaration from Kashmiere
Apollon, 	Defendant 	Domino’s 	Pizza’s 	Director 	of 	Human 	Resources 	Operations,
describing that the agreement was signed during Plaintiff’s onboarding process. [#23-1
at ¶ 4] Plaintiff’s response does not dispute signing the arbitration agreement [#28] and
signatures on written agreements—including digital signatures—are widely accepted as
evidence of mutual assent. 	See, e.g., Frazier v. W. Union Co., 377 F. Supp. 3d 1248,
1258 (D. Colo. 2019) (finding evidence of signed agreement sufficient to meet initial
burden of demonstrating enforceable arbitration agreement); Vernon v. Qwest Commc'ns
Int'l, Inc., 857 F. Supp. 2d 1135, 1149 (D. Colo. 2012) (explaining that courts routinely
uphold digital agreements, provided the signatory had “reasonable notice, either actual
or constructive, of the terms of the putative agreement and . . . manifest[ed] assent to
those terms”); Walker v. Dillard’s, Inc., No. 17-657 MV/KK, 2019 WL 1283001, at *3
(D.N.M. Mar. 20, 2019) (recognizing, under New Mexico law, electronic signature on an
arbitration agreement); Aerotek, Inc. v. Boyd, 624 S.W. 3d 199, 208 (Tex. 2021)
(recognizing digital signatures as valid); Haywood Sec., Inc. v. Ehrlich, 149 P.3d 738, 741
n.2 (Ariz. 2007) (recognizing electronic signature and noting that Arizona’s Electronic
Transactions Act recognizes electronic signatures). The Court thus finds that Defendants
have satisfied their burden of establishing the existence of an arbitration agreement.
In response, Plaintiff asserts that his Complaint is not subject to arbitration
because his seventh claim involves a complaint of sexual harassment. 	[#28 at 1] 	The
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 7 of 15

8
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the
“EFAA”) amended Title 9 to provide that:
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 term ‘sexual harassment dispute’ means a dispute relating to
conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal,
or State law.” 9 U.S.C. § 401(4). A court, rather than an arbitrator, should determine the
applicability of the EFAA to a plaintiff’s claims. 9 U.S.C. § 402(b).
The plain language of the EFAA renders it applicable to Plaintiff’s seventh claim.
Plaintiff’s seventh claim alleges that Defendants retaliated against him because he
reported to Defendants the sexual harassment of his colleagues.2 [#1 at ¶ 108; see also
id. at ¶¶ 39, 44, 61, 70-71, 73] 	Title VII makes it unlawful for an employer to retaliate
against an employee because that employee “opposed any practice made an unlawful
employment practice” by Title VII. 	42 U.S.C. § 2000e-3(a). 	In interpreting Title VII, the
Supreme Court has held that the prohibition against discrimination on the basis of sex
2 Indeed, though not entirely clear from the Complaint, Plaintiff may be alleging retaliation
based upon Plaintiff’s report that he himself was sexually harassed [#1 at ¶ 36], conduct
that falls squarely within the EFAA. Olivieri v. Stifel, Nicolaus & Co., Inc., 112 F.4th 74,
92 (2d Cir. 2024) (“[R]etaliation resulting from a report of sexual harassment is ‘relat[ed]
to conduct that is alleged to constitute sexual harassment.’” (quoting 9 U.S.C. § 401(4));
Molchanoff v. SOLV Energy, LLC, No. 23cv653-LL-DEB, 2024 WL 899384, at *3 (S.D.
Cal. Mar. 1, 2024) (collecting cases for the proposition that a sexual harassment
retaliation claim “is plainly encompassed by the EFAA’s definition of a sexual harassment
dispute”); Turner v. Tesla, Inc., 686 F. Supp. 3d 917, 924 (N.D. Cal. 2023) (applying the
EFAA to a sexual harassment retaliation claim).
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 8 of 15

9
encompasses sexual harassment. Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 65
(1986).
Thus, the question becomes whether Plaintiff’s assertion that he was retaliated
against for reporting sexual harassment is related to sexual harassment under Title VII.
“In its ordinary usage, the phrase ‘relating to’ in a statute broadens and expresses a broad
purpose. Two things are related when they are [b]eing connected; associated, or having
relationship: connected by reason of an established or discoverable relation.” Hix v. Dave
& Buster’s Mgmt. Corp., Inc., No. 3:23-cv-623-AR, 2023 WL 9425283, at *9 (D. Or. Nov.
14, 2023) (citing Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013)
(quotations omitted)), report and recommendation adopted, 2024 WL 326592 (D. Or. Jan.
29, 2024). Applied here, Plaintiff’s seventh claim is related to sexual harassment in that
it is associated with, or has a relationship with, unlawful sexual harassment—Plaintiff
alleges that he was retaliated against because he reported unlawful sexual harassment,
retaliation explicitly prohibited by Title VII. 	Thus, the Court concludes that Plaintiff’s
seventh claim falls within the EFAA and Plaintiff is not compelled to arbitrate that claim.
Johnson v. Everyrealm, Inc., 657 F. Supp. 3d 535, 551 n. 13 (S.D.N.Y. 2023) (“An
example [of a ‘sexual harassment dispute’ under the EFAA] would be a lawsuit bringing
a claim against an employer for retaliating against a plaintiff who had reported sexual
harassment”); see also Olivieri v. Stifel, Nicolaus & Co., Inc., 112 F.4th 74, 92 (2d Cir.
2024) (citing Johnson footnote 13 with approval).
Nonetheless, Defendants argue that Plaintiff’s claims should be sent to arbitration
because his sexual harassment retaliation claim is not plausible. [#39 at 7-8] “[R]equiring
the sexual harassment claim to be capable of surviving a Rule 12(b)(6) motion vindicates
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 9 of 15

10
the statute’s purpose of providing sexual harassment claimants with a judicial forum while
also respecting the FAA’s well-established mandate that favors arbitration.” 	Mitura v.
Finco Servs., Inc., 712 F. Supp. 3d 442, 452 (S.D.N.Y. 2024) (collecting cases requiring
the sexual harassment or sexual abuse claim to be plausible to invoke the EFAA and
avoid arbitration). Thus, the Court must determine whether Plaintiff has plausibly pled a
Title VII sexual harassment retaliation claim.
42 U.S.C. §2000e-3 contains both a participation and an opposition clause. “The
‘participation clause’ provides that an employer may not retaliate against an employee
‘because [the employee] has . . . participated in any manner in any investigation,
proceeding, or hearing under’ Title VII.” 	Vaughn v. Epworth Villa, 537 F.3d 1147, 1151
(10th Cir. 2008) (alterations in original) (quoting 42 U.S.C. § 2000e-3(a)). 	“The
participation clause is designed to ensure that Title VII protections are not undermined by
retaliation against employees who use the Title VII process to protect their rights.” 	Id.
(quoting Brower v. Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999)). 	“The ‘opposition
clause,’ meanwhile, provides that an employer may not retaliate against an employee
‘because he has opposed any practice made an unlawful employment practice’ by Title
VII.” Id. (quoting 42 U.S.C. § 2000e-3(a)). The distinction is important because the Tenth
Circuit 	has 	concluded 	that 	the 	participation 	clause 	affords 	broader 	protection 	to
employees than does the opposition clause. Id. at 1151-52.
To the extent Plaintiff seeks to base his retaliation claim on the participation clause,
that claim fails. The Tenth Circuit has made clear that “the participation clause applies
only when an employee ‘has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter’”—that is, in a
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 10 of 15

11
formal EEOC proceeding. Poff v. Okla. ex rel. Okla. Dep't of Mental Health & Substance
Abuse Servs., 683 F. App'x 691, 703 (10th Cir. 2017); see also Littlejohn v. City of N.Y.,
795 F.3d 297, 316 (2d Cir. 2015) (“[T]he participation clause only encompasses
participation in formal EEOC proceedings; it does not include participation in an internal
employer investigation unrelated to a formal EEOC charge.” (quotation omitted)). While
the Tenth Circuit has not “addressed the limits of this clause,” it has refused to apply the
clause to a case where the adverse action did not have “anything to do with a pending
EEOC complaint or investigation.” 	Poff, 683 F. App'x at 703; see also Mackley v. TW
Telecom Holdings, Inc., No. 12-2774-SAC, 2013 WL 1502034, at *3 (D. Kan. April 10,
2013) (noting that district courts in the Tenth Circuit have held “that the participation
clause does not extend its protection to internal investigations conducted before Title VII
proceedings begin”). Here, Plaintiff has not provided evidence that Defendants took any
action after Plaintiff initiated a formal EEOC proceeding or that any other formal EEOC
complaint or investigation was ongoing. Thus, Plaintiff has not plausibly pled a retaliation
claim related to sexual harassment under the participation clause.
Plaintiff has, however, plausibly pled a Title VII retaliation claim based upon the
opposition clause. 	With respect to the opposition clause, Title VII makes it unlawful to
retaliate against an employee for opposing employment practices made unlawful by the
statute. 42 U.S.C. § 2000e-3(a). The Tenth Circuit has recognized three elements of a
Title VII retaliation claim: (1) the plaintiff engaged in protected opposition to discrimination;
(2) the plaintiff suffered an adverse employment action; and (3) there is a causal
connection between the protected activity and the adverse employment action. Petersen
v. Utah Dep't of Corrs., 301 F.3d 1182, 1188 (10th Cir. 2002). 	Defendants argue that
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 11 of 15

12
Plaintiff has failed to plausibly allege that he engaged in protected opposition to
discrimination by reporting sexual harassment to his employer. 	[#39 at 8] 	The Court
disagrees. As another court in this circuit recently held:
[Plaintiff’s] allegations put forward that he has personally communicated
complaints of observed [sexual harassment] to his supervisor and to
management. 	The Tenth Circuit has held . . . that “[p]rotected opposition
can range from filing formal charges to voicing informal complaints to
supervisors.” E.E.O.C. v. PVNF, LLC., 487 F.3d 790, 804 (10th Cir. 2007)
(internal citation and quotation marks omitted). 	Drawing all inferences in
[Plaintiff’s] favor, the court will accept [Plaintiff’s] allegations as enough to
avoid dismissal at this juncture.
Qinghua Zhang v. Fed. Home Loan Bank of Topeka, No. 19-4073-SAC, 2020 WL
1151333, at *3 (D. Kan. Mar. 10, 2020); see also Somoza v. Univ. or Denver, 513 F.3d
1206, 1213-14 (10th Cir. 2008) (informal complaint to supervisors constituted protected
activity); Berry v. Mission Grp. Kan., Inc., No. 08-2439-JPO, 2009 WL 10707788 at *3 (D.
Kan. 2009) 	(in 	Title IX 	context, 	school 	employee’s 	reports 	to her 	supervisors 	of
harassment of female student by male instructor constituted protected opposition).
Indeed, on one occasion Plaintiff assisted another coworker in preparing a complaint
about sexual harassment and sent that complaint to a manager. 	[#1 at ¶ 61] 	In such
situations, courts have found protected opposition. Rutherford v. Reg’l Hyundai, LLC, No.
11-CV-0445-CVE-FHM, 2011 WL 4496653, at *2 (N.D. Okla. Sept. 27, 2011). Thus, the
Court concludes that Plaintiff has plausibly alleged that he was retaliated against for
opposing sexual harassment.
Nonetheless, the Court agrees with Defendants that because Plaintiff initially
pursued his claims in arbitration, he cannot now change course and pursue those claims
in this forum. [#39 at 4-5] Once again, the EFAA provides that the arbitration agreement
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 12 of 15

13
can be deemed unenforceable “at the election of the person alleging conduct constituting
a sexual harassment dispute or sexual assault dispute.” 9 U.S.C. § 402(a). 	Black’s Law
Dictionary defines “election” as: “The exercise of a choice; esp., the act of choosing from
several possible rights or remedies in a way that precludes the use of other rights or
remedies.” Election, Black’s Law Dictionary (10th ed. 2014). Here, Plaintiff exercised his
election when he chose to pursue his claims in arbitration. In short, Plaintiff could have
pursued his claims initially in federal court and elected to have the arbitration agreement
deemed unenforceable. 	Instead, he chose to pursue his claims in arbitration, then
switched tactics and filed this case once he did not like the way the arbitration process
was playing out. 	[#28 at 3 (Plaintiff stating that he filed this case because Defendant
delayed in responding to Plaintiff’s request to mediate, then stated that it would not
mediate)] Plaintiff may not do so.
This ruling is consistent with the Supreme Court’s recent treatment of waiver in the
context of arbitration. In Morgan v. Sundance, Inc., the court explained that waiver “is the
intentional relinquishment or abandonment of a known right.” 596 U.S. 411, 417 (2022)
(quotation omitted). “To decide whether a waiver has occurred, the court focuses on the
actions of the person who held the right.” 	Id. 	Here, Plaintiff had the right to deem the
arbitration 	agreement 	unenforceable 	with 	respect 	to 	his 	claims 	related 	to 	sexual
harassment, he was clearly aware of that right as evidenced by his briefing in this matter,
and yet he chose to pursue arbitration instead.3 Thus, Plaintiff made his election, and he
3 Plaintiff may have had good reason to do so. 	Arbitrations are often less formal
proceedings and Plaintiff, proceeding pro se, may have decided to opt for those less
formal proceedings.
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 13 of 15

14
cannot now change that decision. 	Accordingly, the Court respectfully RECOMMENDS
that the Motion be GRANTED.
IV. 	CONCLUSION
For the foregoing reasons, the Court RECONSIDERS its prior Order [#46] striking
Plaintiff’s surreply [#45] and hereby ACCEPTS that surreply. 	The Court instructs the
Clerk of Court to remove the stricken designation from Document #45. The Court further
respectfully RECOMMENDS that Defendants’ Amended Motion to Compel Arbitration
[#23] be GRANTED and this matter be STAYED pending arbitration. 4 [#59]; see Smith
v. Spizzirri, 601 U.S. 472, 478 (2024) ("staying rather than dismissing a suit comports with
the supervisory role that the FAA envisions for the courts").
4 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection for
de 	novo 	review. 	“[A] 	party’s 	objections 	to 	the 	magistrate 	judge’s 	report 	and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). 	Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 14 of 15

15
DATED: November 8, 2024 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
Case No. 1:24-cv-01731-SKC-STV Document 61 filed 11/08/24 USDC Colorado
pg 15 of 15