Freitas v. Comcast Cable Commc'ns Mgmt. LLC

JOAO SAKAI FREITAS and ALINE FREITAS, Plaintiffs, v. COMCAST CABLE COMMUNICATIONS MANAGEMENT LLC, Defendant.

Civil Action No. 19-12470-PBS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

March 27, 2020

MEMORANDUM & ORDER

Saris, D.J.

Plaintiff Joao Sakai Freitas is a former employee of Defendant Comcast Cable Communications Management LLC ("Comcast"). Freitas brings eight claims against Comcast: wrongful discharge (Count I); failure to pay commissions in violation of the Massachusetts Wage Act, M.G.L. c. 149 § 148 (Count II); retaliation in violation of the Massachusetts Wage Act, M.G.L. c. 149 § 148A (Count III); violation of a Massachusetts statute regarding employment leave, M.G.L. c. 149 § 52E (Count IV); negligent infliction of emotional distress (Count V); violation of M.G.L. c. 175 § 134A and ERISA (Count VI); handicap discrimination in violation of M.G.L. c. 151B § 4(2) (Count VIII); and retaliatory discharge in violation of M.G.L. c. 151B § 4(16) (Count IX). Plaintiff's wife Aline Freitas¹ also brings a claim for loss of consortium (Count VII).

Comcast brought a motion to dismiss Plaintiff's ERISA claim (Docket No. 19) which is ALLOWED as unopposed. Comcast also moves to compel arbitration of the remaining claims (Docket No. 19).² Plaintiff argues that his arbitration agreement with Comcast is invalid and unenforceable, and Aline Freitas argues that she cannot be bound by the arbitration agreement. For the reasons stated below, the Court ALLOWS the Defendant's motion to compel arbitration of Plaintiff Joao Sakai Freitas's remaining claims. The parties shall inform the Court within 14 days of the entry of this Order whether Aline Freitas consents to arbitration.

BACKGROUND

Where, as here, a motion to compel arbitration is "made in connection with a motion to dismiss or stay, [the court] draw[s] the relevant facts from the operative complaint and the documents submitted to the district court in support of themotion to compel arbitration." Cullinane v. Uber Techs., Inc., 893 F.3d 53, 55 (1st Cir. 2018).

I. Plaintiff's Background

Joao Sakai and Aline Freitas reside in Framingham, Massachusetts. Comcast is a limited liability company ("LLC") organized under the laws of Delaware and with a principal place of business in Pennsylvania.

Plaintiff was employed by Comcast from 2009 to 2012. After a brief return to his home country of Brazil, Plaintiff rejoined Comcast as a salesperson in 2013. Plaintiff was diagnosed with major depressive disorder in July 2016, while he was in the process of divorcing his now ex-wife. Plaintiff provided evidence of this diagnosis to Comcast, which granted Plaintiff a medical leave of absence from June 2016 to January 2017.

Upon his return, Comcast gave Plaintiff extra funds during his first thirty days back, to support him until he began receiving commissions from sales. Plaintiff refers to this as a "ramp" benefit. Docket No. 9 ¶ 21. In November 2017, Plaintiff was diagnosed with generalized anxiety disorder, recurring major depressive disorder, and PTSD. He applied for and received a second medical leave and short-term disability claim. Plaintiff was then diagnosed with Attention Deficit/Hyperactivity Disorder ("ADHD") and began taking medication for that condition.

Plaintiff returned to work in March 2018. Comcast allegedly did not provide Plaintiff with the ramp benefit upon this second return. Comcast also charged the Plaintiff "chargeback" fees because some of his customers cancelled service when they did not receive promised support during Plaintiff's leave. Plaintiff claims that Comcast had the responsibility to place another agent in his position while he was on leave, to avoid such chargebacks.

Plaintiff then moved to a residential sales position with Comcast in Framingham and Natick. He alleges that he was not given the 30-day ramp benefit upon his move and did not receive commissions for his last month of work in his old area. Plaintiff applied for a peddler's license in his new area, but allegedly could not obtain it because Comcast's Articles of Organization with the City of Framingham were expired. The City issued Plaintiff's license after a 30-day delay. In the intervening time, Plaintiff claims that Comcast "chastised" him for not spending time working in his assigned area. Id. ¶ 33. Comcast allegedly required Plaintiff to sign a notice of Corrective Action on June 8, 2018, which stated that he must spend time in his assigned area.

On July 17, 2018, Plaintiff received a call from his ex-wife informing him that their daughter was being sexually abused by her stepfather. Plaintiff called his therapist, and sherecommended that Plaintiff take two weeks off work. The therapist faxed a note to this effect to Sedgwick Insurance, Comcast's short-term disability provider. Plaintiff also contacted his supervisor Brandi Jorge to inform her that because of his daughter's abuse, he would take a flex day that same day (a Tuesday), and possibly would take off the following day (a Wednesday). Jorge acknowledged Plaintiff's request, asked him to keep her informed about his plans for Wednesday, and requested that he update his time in Comcast's internal system.

It is unclear from the pleadings whether Plaintiff ever returned to work. Plaintiff took the remainder of the week off and logged his time accordingly in Comcast's internal system, but Comcast denied his request to use his earned vacation days. Plaintiff visited his primary care physician, Dr. Yagudin, and was given a note "excusing him from work" for an additional week, from July 23 to 30, 2018. Id. ¶ 39. On July 24, 2018, Plaintiff texted Jorge a picture of the note and submitted a request for short-term medical leave.

On July 30, 2018, Plaintiff visited both Dr. Yagudin and his therapist. Dr. Yagudin provided Plaintiff with a note "excusing him from work" until August 8, 2018, and the therapist provided a similar note "excusing" Plaintiff from work for a month. Id. ¶ 41. Both providers faxed the notes to Segdwick Insurance. On that same day, Plaintiff received a calendarinvite from Comcast's Human Resources Manager Elizabeth Danna. In response, Plaintiff again texted Jorge the note from his therapist dated July 23, 2018 and also emailed Danna the notes from Dr. Yagudin and the therapist.

On August 3, 2018, Comcast terminated Plaintiff via a letter mailed to his home. Plaintiff alleges that he did not receive the letter until August 11, 2018. On August 6, 2018, Plaintiff realized he could not access his Comcast email and programs, and so he sent his doctors' notes to Danna from his private email account. Plaintiff applied for short-term benefits with Sedgwick Insurance the next day.

Comcast's termination letter stated that the termination would not impede any pending short-term disability claims. However, Sedgwick Insurance backdated Plaintiff's claim to August 2, 2018, the day before his termination. Sedgwick closed Plaintiff's claim in September 2018 and denied his appeal in October 2018.

Plaintiff also alleges that Comcast retaliated against him by falsely stating, in response to a subpoena duces tecum, that Plaintiff abandoned his job. The subpoena was issued after Plaintiff had requested a temporary child support reduction. For reasons unexplained in the pleadings, Plaintiff was then sentenced to jail for three days during December 2018. Plaintiff has since been obligated to pay increased child support.Plaintiff also defaulted on credit cards, his mortgage, car loan, and a personal loan.

Plaintiff was also denied unemployment benefits by the Department of Unemployment Assistance, because of a determination that he left work voluntarily and without good cause. Plaintiff appealed, and after a January 2019 hearing, the decision was reversed. The decision stated, "it cannot be concluded that [Plaintiff] violated any expectation of the employer regarding failing to communicate with them." Id. ¶ 57.

Plaintiff had group life insurance coverage through Prudential while employed by Comcast.

II. Comcast Solutions

In September 2013, Comcast introduced "Comcast Solutions," an alternative dispute resolution program for its employees in Massachusetts. Docket No. 19-1 at 1. Comcast Solutions requires arbitration of certain employment-related legal disputes. Claims related to ERISA are explicitly excluded from the Comcast Solutions program.

Employees who did not want to participate in Comcast Solutions could "opt out" by submitting a designated form no later than November 1, 2013. Employees who did not opt out by that date were automatically enrolled in Comcast Solutions.

Comcast alleges that it provided six notifications to Plaintiff regarding Comcast Solutions. First, Comcast sent acover letter and the Comcast Solutions brochure to Plaintiff's home on or about September 23, 2013. Second, Comcast sent Plaintiff an email with a link to the Comcast Solutions brochure and a reminder regarding the November 1, 2013 deadline to opt out.

In addition, Plaintiff digitally acknowledged his receipt of the Comcast Employee Handbook, which included the Comcast Solutions Program Policy, on four additional occasions: in January 2014, February 2015, February 2016, and March 2017. In 2016 and 2017, that digital acknowledgement included the language "I understand that the Comcast Solutions Program is a mutually-binding contract between me and Comcast and that my continued employment with Comcast is confirmation that I am bound by the terms of the Comcast Solutions Program." Docket No. 19-1 at 58, 60.

III. Procedural History

In the fall of 2019, Plaintiff brought a claim to the Massachusetts Commission Against Discrimination ("MCAD"). Plaintiff then filed suit in Massachusetts state court in November 2019. Comcast removed the case to this court in December 2019. After Plaintiff amended his complaint, Comcast filed the present motions in January 2020.

MOTION TO COMPEL ARBITRATION

I. Standard of Review

The First Circuit has not addressed the...