BUSH v. COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PRESTINE BUSH, )

)

) 2:19-cv-01004-NR

Plaintiff, )

)

v. )

)

)

COMCAST CABLE )

COMMUNICATIONS )

MANAGEMENT, LLC, et al. )

)

)

Defendants. )

OPINION

J. Nicholas Ranjan, United States District Judge

Comcast requires its employees to accept the terms of a dispute-

resolution program, known as “Comcast Solutions,” as a condition of their

employment. One of those terms is a mutually binding arbitration provision.

Here, Comcast seeks to enforce that provision against Prestine Bush, a former

employee, who has asserted claims against Comcast for violating the ADA,

Title VII, and the PHRA. Ms. Bush seeks to avoid arbitration on three

grounds. First, she claims that the Comcast Solutions program is

unconscionable. Second, she argues that she never accepted the terms of

Comcast Solutions. And, third, she contends that the arbitration agreement is

void because Comcast materially breached its own obligations under the

Comcast Solutions program. The Court disagrees, and will grant Comcast’s

motion.

First, the arbitration agreement is not unconscionable. Ms. Bush’s

contrary argument rests on the sort of “generalized attacks on arbitration” that

the Supreme Court has rejected. Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20, 30 (1991). Based on the evidence submitted to the Court, the Comcast

Solutions program does not circumscribe Ms. Bush’s rights or remedies under

federal law. To the contrary, it provides for a neutral forum in which Ms. Bush

may obtain the same money damages, attorneys’ fees, and equitable relief that

would be available through a court. Comcast will even pay for the arbitration

and reimburse up to $1,500.00 in attorneys’ fees. If other unfair provisions

exist, then Ms. Bush has not brought them to the Court’s attention.

Second, Ms. Bush’s own deposition testimony defeats her claim that she

did not accept the terms of the Comcast Solutions program. Ms. Bush first

submitted a declaration denying that she accepted any such agreement, but

then, when the Court authorized limited discovery, testified that she had

received Comcast’s offer letter and had “no reason to dispute” that she accepted

its relevant employment terms, including the Comcast Solutions program, or

that she had twice acknowledged being bound by Comcast Solutions after that.

To the extent Ms. Bush still relies on her earlier declaration to suggest

otherwise, her subsequent deposition testimony controls.

Third, Comcast did not materially breach the arbitration agreement.

Ms. Bush’s theory is that Comcast refused to arbitrate her claims when she

demanded it do so while she was still employed, and so it cannot force her to

arbitrate those claims now. But discovery has shown that Ms. Bush did not

demand to mediate or arbitrate any claim she might have against Comcast.

Rather, she asked Comcast’s Human Resources department, through the

separate “Comcast Listens” program, to facilitate a discussion between herself

and the employees she alleged were harassing her, and to investigate or take

action to address that harassment.

To be sure, the Court is skeptical of the formalistic wall Comcast tries to

erect between the “Comcast Listens” and “Comcast Solutions” programs. If an

employee erroneously demanded to arbitrate a legal claim against Comcast

through the “Listens” program, instead of the “Solutions” program, it would

probably be on Comcast to refer the claim to the right place. But Ms. Bush

never made such a demand—there is no evidence that she ever expressed to

Comcast, whether formally or otherwise, an intent to assert any legal claim

against the company at all. Thus, because a mere request for help resolving

harassment by co-workers did not trigger Comcast’s duty to arbitrate under

the Comcast Solutions program, Comcast did not breach any contractual duty

by “failing” to arbitrate.

For these reasons, the Court will grant Comcast’s motion, compel Ms.

Bush’s claims to binding arbitration, and dismiss this case with prejudice.

BACKGROUND

I. Ms. Bush’s employment with Comcast, and allegations of

harassment following sexual assault by a co-worker.

Ms. Bush began working for Comcast as a customer service

representative on January 31, 2017. [ECF 1, ¶ 9]. She alleges that Comcast

had a “gossipy and unruly work culture” and that “[i]n April 2017, rumors

began to spread that [she] was in a relationship with Imani Bowen, another

customer service representative.” [Id. at ¶ 10]. As a result of this rumor mill,

she was “constantly subjected to questions and inappropriate comments from

her co-workers.” [Id. at ¶ 11]. Then, in August 2017, Mr. Bowen sexually

assaulted Ms. Bush at her home. [Id. at ¶ 17]. He was arrested and criminally

charged with (1) rape; (2) various sexual assault crimes; (3) burglary; (4)

assault; and (5) resisting arrest. [Id. at ¶ 18]. He ultimately pled guilty to one

count of sexual assault and was sentenced to prison and lifetime sex-offender

registration. [Id. at ¶ 22].

Following the sexual assault, Ms. Bush alleges that she faced repeated,

harassing inquiries at work about Mr. Bowen and the criminal charges. [Id.

at ¶ 25]. This harassment aggravated Ms. Bush’s PTSD, anxiety, and

depression, leading her to request FMLA leave. [Id. at ¶ 26]. Despite her

reports, Comcast allegedly failed to address the harassment, thereby “forcing”

Ms. Bush to leave work on June 9, 2018. [Id. at ¶¶ 46-47]. About one week

later, on June 15, 2018, Ms. Bush again requested an FMLA accommodation,

and Comcast responded by putting her on unpaid leave. [Id. at ¶ 48]. Then,

on November 7, 2018, Comcast notified Ms. Bush that her employment would

officially end effective November 14, 2018. [Id. at ¶ 50]. Ms. Bush exhausted

her administrative remedies with the EEOC, and then filed this lawsuit on

August 13, 2019. [Id. at ¶ 59].

Ms. Bush asserts claims of unlawful discrimination, failure to

accommodate, hostile work environment, and retaliation under the ADA

(Count 1), Title VII (Count 2), and the PHRA (Count 3).

II. The Comcast Solutions program, and Comcast’s motion to

compel arbitration.

Comcast asserts that Ms. Bush accepted an arbitration agreement as a

condition of her employment, and that her claims under the ADA, Title VII,

and the PHRA fall within the scope of that agreement. According to Comcast,

Ms. Bush received an offer letter before her first day of employment, sent

digitally through Comcast’s “Welcome Portal,” which she accessed using a login

and password unique to her. [ECF 9, p. 2]. The offer letter included a

paragraph about Comcast’s “Comcast Solutions” ADR program, which

purports to require mandatory, binding arbitration of employment-related

disputes. [ECF 7-2, pp. 29-30]. That paragraph stated:

COMCAST SOLUTIONS

Comcast has a dispute resolution program for its employees,

known as Comcast Solutions, which provides a three-step process

(facilitation, mediation and binding arbitration) for resolving a

variety of workplace legal issues should there be any that arise

between you and the Company during or after your employment.

A brochure with information and direction on how to obtain

additional information related to the program is being provided to

you along with this offer letter. Please review this information

carefully, as the program affects the legal rights of both you and

the Company (including a waiver of the right to bring a civil action

in federal or state court or before a civil judge or jury, as well as a

waiver of the right to bring or participate in a class action,

collective action or representative action). If you cannot locate the

brochure, have any questions or need additional information

regarding Comcast Solutions, please call, toll free, 855-838-4180,

or email to [address]. By accepting this offer of employment with

the Company and signing below, you acknowledge that you

understand the terms of the Comcast Solutions program and also

acknowledge that both you and the Company agree to participate

in and be bound by the terms of the Comcast Solutions program.

See [ECF 7-2, pp. 29-30; ECF 9, p. 3].

Comcast contends that Ms. Bush electronically signed her offer letter

and checked a box stating “I Accept.” [ECF 26, pp. 2-3]. As referenced in the

offer letter itself, below the link to the offer letter on Comcast’s portal was a

notice that stated, “Within your Offer Letter, you will find details about our

Comcast Solutions program. To learn more about the program, please click

the link below to download and save a copy of the brochure for your records.”

[ECF 7-2, pp. 29, 32]. The brochure stated that “[b]y accepting employment

with Comcast, you are agreeing that you and the company will be bound by the

Comcast Solutions program for covered legal claims. Upon returning your

signed offer to the company, you will be automatically enrolled in Comcast

Solutions.” [Id. at p. 42]. The brochure also urged Ms. Bush to “read the

Comcast Solutions Guide, DRO rules, and FAQs to ensure you fully

understand the Comcast Solutions program prior to accepting employment

with the company.” [Id.].

Additionally, Comcast claims that, while employed by the company, Ms.

Bush was required to acknowledge the Comcast Code of Conduct and Employee

Handbook each year. [ECF 9, p. 8]. The documents submitted by Comcast

reflect that she did so twice, in 2017 and 2018. [ECF 7-2, pp. 83-87]. The

acknowledgement form required Ms. Bush to affirm that she “understand[s]

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.”

[Id. at p. 83]. The document is about 1 ½ to 2 pages long. [Id. at pp. 83-84].

In its motion, Comcast argues that “[b]y commencing employment with

Comcast pursuant to the terms of the Offer Letter and twice confirming her

participation in Comcast Solutions during her employment, Ms. Bush agreed

to arbitrate her employment-related disputes with Comcast.” [ECF 9, p. 5].

III. Ms. Bush’s declaration, and the parties’ subsequent discovery.

In response to Comcast’s motion, Ms. Bush submitted a declaration in

which she stated: (1) “I do not recall receiving any documentation or

information from Comcast concerning a mandatory arbitration program or an

agreement to arbitrate,” [ECF 12-1, ¶ 2]; (2) “I never entered into an

arbitration agreement with Comcast and never agreed to arbitrate any claim I

might have against Comcast,” [Id. at ¶ 3]; (3) “During my employment, I was

not made aware that I was, at any point in time, waiving any right to file a

lawsuit in court against Comcast,” [Id. at ¶ 4]; and (4) “From September 12,

2017 through June 2018, I repeatedly requested assistance from Comcast to

deal with my coworkers’ harassment. Each request was denied by Comcast

without an opportunity or offer to take part in any of the three dispute

resolution steps offered through the Comcast Solutions Program and I was told

that all of my issues had to be dealt with by the human resources department

in the Comcast Pittsburgh office.” [Id. at ¶ 7].

Based on these statements, the Court authorized discovery into the

limited issue of “whether [the parties] entered into the purported arbitration

agreement.” [ECF 15, p. 2]. After a subsequent status conference with the

parties, the Court expanded the scope of discovery to include Ms. Bush’s

“material breach” argument, as well. [ECF 23, pp. 14:2-16:17].1 The parties

completed that discovery, including a deposition of Ms. Bush and exchange of

relevant documents, before submitting supplemental briefing on Comcast’s

motion.

1 As the Court explained in its previous Memorandum Order, discovery was

appropriate in this matter because the question of whether Ms. Bush accepted

the arbitration agreement was an inherently “fact-laden dispute” that required

the Court “to venture beyond the four corners of the complaint.” [ECF 15, p.

15]. The Third Circuit has instructed district courts to permit discovery in

such circumstances, but that the discovery must be narrowly tailored to avoid

frustrating the FAA’s interest in speedy dispute resolution. See Guidotti v.

Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 774 (3d Cir. 2013) (“Under

either of those scenarios, a ‘restricted inquiry into factual issues’ will be

necessary to properly evaluate whether there was a meeting of the minds on

the agreement to arbitrate … and the non-movant ‘must be given the

opportunity to conduct limited discovery on the narrow issue concerning the

validity’ of the arbitration agreement[.]”) (internal citations omitted).

For this same reason, the Court subsequently expanded the scope of

discovery to include Ms. Bush’s “material breach” argument—as it became

clear, during a status conference with the parties, that a factual inquiry would

be necessary to determine (1) whether Ms. Bush demanded that Comcast

arbitrate a covered legal claim; and (2) whether Comcast refused. See [ECF

23, pp. 14:21-15:2] (“[I]t does seem like there could be a chance that there are

some facts that need to be developed with respect to the Plaintiff’s argument

that Comcast materially breached or waived its rights under the Comcast

Solutions program. It appears that Comcast would take the position that

whatever communications that were made by Ms. Bush went more to this

Comcast Listens program as opposed to [the] Comcast Solutions program.”).

During her deposition, Ms. Bush admitted that she received an offer

letter from Comcast, and testified that she had no “reason to dispute” that the

offer letter she received was the same offer letter produced by Comcast with

its motion to compel. [ECF 26-1, pp. 16:14-17:9, 18:19-23]. She also testified

that she had no “reason to dispute” that she electronically accepted the terms

of her employment outlined in the offer letter, including Comcast Solutions.

[ECF 26-1, pp. 19:20-24]. Finally, Ms. Bush testified that she had no “reason

to dispute” that she had twice acknowledged being bound by Comcast Solutions

in February 2017 and March 2018. [ECF 26-1, pp. 30:6-32:19, Ex. 5, Ex. 6].

Separately, Ms. Bush also testified that, while employed, she never

sought to assert any legal claim against Comcast through the Comcast

Solutions program. [ECF 26-1 at p. 11:12-14]. Instead, she asked for

Comcast’s HR representative to mediate her dispute with her co-workers

through a different program, “Comcast Listens,” which permits employees to

report workplace issues involving other employees. [Id. at pp. 10:6-16:5]. Bush

obtained the contact information for Comcast Listens from a handbook that

also contains separate contact information for Comcast Solutions. [Id. at pp.

25:22-27:19].

STANDARD OF REVIEW

To decide whether to compel arbitration, the Court must first determine

whether the alleged agreement is subject to the Federal Arbitration Act and

then determine whether Ms. Bush’s claims are arbitrable under that

agreement. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395,

401 (1967); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.

614, 626 (1985). Employment contracts are subject to the FAA. See Circuit

City Store, Inc. v. Adams, 532 U.S. 105, 119 (2001) (“[T]he text of § 1 precludes

interpreting the exclusion provision to defeat the language of § 2 as to all

employment contracts. Section 1 exempts from the FAA only contracts of

employment of transportation workers.”); Hudyka v. Sunoco, Inc., 474 F. Supp.

2d 712, 715 (E.D. Pa. 2007) (“Agreements to arbitrate employment disputes,

whether based on federal or state statutory claims, are enforceable under the

Federal Arbitration Act[.]”) (citations omitted).

When a motion to compel arbitration “is not based on a complaint with

the requisite clarity to establish arbitrability or the opposing party has come

forth with reliable evidence . . . that it did not intend to be bound by the

arbitration agreement,” the Court applies a Rule 56 summary-judgment

standard to decide the motion. Sanford v. Bracewell & Guiliani, LLP, 618 F.

App’x 114, 117 (3d Cir. 2015) (cleaned up). Based on Ms. Bush’s declaration,

the Court indicated its intent to apply a Rule 56 standard to decide Comcast’s

motion and allowed both parties to take limited discovery. [ECF 15, p. 2].

To prevail under that standard, the moving party—here, Comcast—

must show that “there is no genuine dispute as to any material fact” and that

it is thus entitled to an order compelling arbitration “as a matter of law.” Fed.

R. Civ. P. 56(a). In deciding the motion, the Court must consider the evidence

“in the light most favorable to the party opposing the motion.” A.W. v. Jersey

City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007). Here, that is Ms. Bush.

DISCUSSION & ANALYSIS

As noted at the outset, Ms. Bush makes three arguments to avoid

enforcement of the alleged arbitration agreement. For the following reasons,

none are ultimately persuasive.

I. The arbitration agreement is not unconscionable.

It is well-established that agreements to arbitrate statutory

discrimination claims in the context of an employment relationship—including

claims under the ADA, Title VII, and the PHRA—are generally valid and

enforceable. See Gilmer, 500 U.S. at 26 (“It is by now clear that statutory

claims may be the subject of an arbitration agreement[.]”); see, e.g., Seus v.

John Nuveen & Co., 146 F.3d 175, 182 (3d Cir. 1998) (Title VII); Zeller-Landau

v. Sterne Agee CRT, LLC, No. 17-3962, 2018 WL 334970, at *5 (E.D. Pa. Jan.

9, 2018) (Title VII & PHRA); Maldonado v. SecTek, Inc., No. 19-693, 2019 WL

3759451, at *9 (E.D. Pa. Aug. 8, 2019) (ADA).

Moreover, in the case of ADA claims such as Ms. Bush’s primary claim

here, “the plain language of the ADA evinces Congress’s intent to encourage

arbitration, not to preclude it.” Maldonado, No. 19-693, 2019 WL 3759451, at

*9 (citations omitted) (emphasis original); see also Stanton v. Prudential Ins.

Co., No. 98-4989, 1999 WL 236603, at *5 (E.D. Pa. Apr. 20, 1999) (“The plain

language of the statute evidences congressional intent to encourage arbitration

of ADA claims, not to shield them from arbitration.”). Specifically, the ADA

provides: “Where appropriate and to the extent authorized by law, the use of

alternative means of dispute resolution, including ... arbitration, is encouraged

to resolve disputes arising under this chapter.” 42 U.S.C. § 12212. “The

meaning of this language, far from evidencing an intention to preclude

arbitration, can only be interpreted as favoring it.” Bercovitch v. Baldwin Sch.,

Inc., 133 F.3d 141, 150 (1st Cir. 1998). And if this provision is to have effect,

it must be “that litigants can anticipatorily waive a judicial forum for ADA

claims.” Id. (citation omitted).

Thus, like any agreement covered by the FAA, an agreement to arbitrate

ADA or other federal employment-discrimination claims is subject to the

“liberal federal policy favoring arbitration agreements[.]” Moses H. Cone Mem’l

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983); Kirleis v. Dickie,

McCamey & Chilcote, P.C., 560 F.3d 156, 160 (3d Cir. 2009) (“It is well

established that the Federal Arbitration Act . . . reflects a strong federal policy

in favor of the resolution of disputes through arbitration.”) (internals omitted).2

Even so, Ms. Bush argues that this arbitration agreement is both

procedurally and substantively unconscionable. She says that the agreement

is “procedurally unconscionable” because it is a “contract of adhesion drafted

by Comcast and for the sole benefit of Comcast.” [ECF 12, p. 8]. More

specifically, she contends that she was “unaware of the terms of the alleged

agreement,” “had no ability to modify any of its terms,” and “no opportunity to

consult with counsel of her own.” [Id. at pp. 8-9]. She also contends that “[n]o

one from Comcast explained the Comcast Solutions program to [her], or what

the terms of the Comcast Solutions Program meant.” [Id. at p. 9]. As for

substantive unconscionability, Ms. Bush argues that the Comcast Solutions

program is “unreasonably or grossly favorable” to Comcast because it “contains

a series of provisions that substantively benefit Comcast by limiting the rights

and remedies that Bush would otherwise be entitled to in court,” while “not

provid[ing] Bush with any real benefit.” [Id. at p. 9].

2 Of course, this does not mean “that an arbitration agreement is enforceable

no matter what rights it waives or what burdens it imposes.” Cole v. Burns

Int’l Sec. Servs., 105 F.3d 1465, 1482 (D.C. Cir. 1997) (citation omitted). For

example, “it would be unlawful for an employer to condition employment on an

employee’s agreement to give up the right to be free from racial or gender

discrimination.” Id. (citation omitted). Similarly, “an employee cannot be

required as a condition of employment to waive access to a neutral forum in

which statutory employment discrimination claims may be heard.” Id. Thus,

“[a]t a minimum, statutory rights include both a substantive protection and

access to a neutral forum in which to enforce those protections.” Id. (citation

omitted). As will be discussed here, the Comcast Solutions program provides

adequate access to a neutral arbitrator and does not infringe Ms. Bush’s

substantive protections under any federal anti-discrimination statute.

The FAA “permits arbitration agreements to be declared unenforceable

upon such grounds as exist at law or in equity for the revocation of any

contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)

(cleaned up). Such grounds include “generally applicable contract defenses,

such as fraud, duress, or unconscionability.” Id. (cleaned up). The Court

determines the applicability of these defenses with reference to Pennsylvania

law. See Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, 584

F.3d 513, 522 (3d Cir. 2009) (“To determine whether the parties have agreed

to arbitrate, we apply ordinary state-law principles that govern the formation

of contracts.”) (cleaned up).

Under Pennsylvania law, courts will find contracts to be unconscionable,

and decline to enforce them, when there is “a lack of meaningful choice in the

acceptance of the challenged provision and the provision unreasonably favors

the party asserting it.” Salley v. Option One Mortgage, 925 A.2d 115, 119 (Pa.

2007) (citation omitted). The party challenging the enforceability of a

purported contract—here, Ms. Bush—bears the burden to show that both the

procedural (“lack of meaningful choice”) and substantive (“unreasonably

favors”) prongs of unconscionability are met. Id. at 120. The “ultimate

determination of unconscionability is for the courts.” Id. (citations omitted).

But “where material facts are disputed . . . fact finding may be necessary.” Id.

(citations omitted); see RESTATEMENT (SECOND) OF CONTRACTS § 208, cmt. f

(“[T]he determination is made ‘as a matter of law,’ but the parties are to be

afforded an opportunity to present evidence as to commercial setting, purpose

and effect to aid the court in its determination.”); 13 Pa. C. S. § 2302 (“When it

is claimed … that the contract or any clause thereof may be unconscionable the

parties shall be afforded a reasonable opportunity to present evidence … to aid

the court in making the determination.”).

Ms. Bush first argues that the arbitration agreement here satisfies the

“procedural” prong of the unconscionability analysis because it is a “contract of

adhesion.” An adhesion contract is a standardized contract, often offered on a

“take-it-or-leave-it basis.” Nino v. Jewelry Exch., Inc., 609 F.3d 191, 202 (3d

Cir. 2010). The arbitration agreement here may certainly have been an

adhesion contract, but that doesn’t necessarily make it procedurally

unconscionable. See Salley, 592 A.2d at 127 (“[M]erely because a contract is

one of adhesion does not render it unconscionable and unenforceable as a

matter of law.”) (citations omitted). A more searching inquiry of the parties’

respective bargaining positions, level of sophisticiation, and opportunity to

review an arbitration agreement are all relevant considerations in determining

whether the process was unfair. See Seus, 146 F.3d at 184 (“Unequal

bargaining power is not alone enough to make an agreement to arbitrate a

contract of adhesion.”). The Court here, though, doesn’t have to engage in this

searching inquiry, because it’s clear that Ms. Bush’s argument fails on the

second prong.

That is, the Comcast Solutions program is not substantively

unconscionable. Ms. Bush argues that the program unfairly limits her right to

seek remedies in court. But it doesn’t—or at least she doesn’t identify any

specific way in which it does.

As a starting point, the Supreme Court has rejected the sort of

“generalized attacks on arbitration” that “rest on suspicion of arbitration as a

method of weakening the protections afforded in the substantive law to would-

be complainants.” Gilmer, 500 U.S. at 30 (cleaned up). This includes

speculation “that arbitration panels will be biased[,]” or concerns about

matters such as the “more limited” discovery available in arbitration, the lack

of “written opinions” accompanying arbitration decisions, and “[m]ere

inequality in bargaining power” between parties. Id. at 30-33.

Here, as noted, Ms. Bush offers only generalized concern that the

Comcast Solutions program contains “a series of provisions” (which Ms. Bush

does not identify) that “substantially benefit” Comcast by “limiting the rights

and remedies that Bush would otherwise be entitled to in court.” [ECF 12, p.

9]. If the agreement does contain such provisions, the Court cannot find them.

Under the program:

▪ Preliminary steps of “review/facilitation” and “mediation” are “not a

mandatory prerequisite before moving to arbitration,” and either

party may request to skip those steps.

▪ The arbitration provision of Comcast Solutions is binding on both

Comcast and Ms. Bush. Either Comcast or an employee may initiate

a claim by completing a “Comcast Solutions Initial Filing Form” or

any “alternative document” identifying “the specific legal claims being

pursued.”

▪ When a dispute is initiated by either party, the parties will mutually

select a “neutral arbitrator” through a specified dispute resolution

organization. The organization is selected based on geography.

▪ The arbitration is to be held “as soon as possible” and “at a location

that is as convenient to the employee’s work location . . . as

practicable[.]” The employee is excused from absences on the day(s)

of the arbitration and will receive regular pay.

▪ Just as in court, employees may be represented in the arbitration by

attorneys of their choice. As in court, this is at their own cost. But

Comcast will also reimburse the employee for $1,500 in attorneys’

fees, unless the claim is determined by the arbitrator to be frivolous.

▪ Comcast covers the full cost of arbitration, except for an $150

“initiation fee,” which the initiating party is required to pay. The

selected arbitrator will not be told that Comcast is covering the

majority of arbitration costs. The $150 fee will be reimbursed by

Comcast if the arbitrator “ultimately awards in the Participating

Employee’s favor, in whole or in part[.]”

▪ The arbitrator will “apply applicable federal, state[,] or local law in

assessing the merits of the Claim(s) and will determine the rules of

evidence.” The parties will be permitted to submit post-hearing

briefing, and the arbitrator will issue a written opinion.

▪ The arbitrator is “authorized to award any damages, attorney’s fees[,]

or equitable relief that would be available through a court” except for

“class or collective relief.”

▪ The arbitrator’s decision is “final and binding” and “may be enforced

by a court.”

▪ Comcast “strictly prohibits retaliation” against any employee who

submits a claim or participates as a witness in good faith.

[ECF 7-2, pp. 52-56].

On its face, Comcast Solutions appears to establish a fair, neutral

arbitration process that applies equally to Comcast and does not impose undue

costs or burdens (beyond those that would be attendant to any litigation) on

complaining employees. Nor does the arbitration provision purport to limit

Ms. Bush’s statutory rights. See Cole, 105 F.3d at 1482 (explaining that, while

employer-employee arbitration agreements are enforceable, “it would be

unlawful for an employer to condition employment on an employee’s agreement

to give up the right to be free from racial or gender discrimination.”) (citation

omitted).

In fact, the selected arbitrator is directed to “apply applicable federal,

state[,] or local law,” and is empowered to issue a binding award of “any

damages, attorney’s fees[,] or equitable relief that would be available through

a court.” [ECF 7-2, pp. 54]. The lone exception is an exclusion of any “class or

collective relief,” which Ms. Bush does not seek and which the Supreme Court

has held may be a permissible limitation under certain conditions. See Gilmer,

500 U.S. at 32; Underwood v. Chef Fransico/Heinz, 200 F. Supp. 2d 475, 480

(E.D. Pa. 2002) (“The Gilmer Court further ruled that the inability of plaintiff

to obtain broad equitable relief through the use of a class action did not make

the arbitral forum insufficient to press his claims of age discrimination.”)

(citation omitted).3

This is a fair arbitration procedure. Indeed, several other district courts

have specifically considered the Comcast Solutions program and found it to be

enforceable. See, e.g. Azeveda v. Comcast Cable Commc’ns LLC, No. 19-1225,

2019 WL 5102607, at *7 (N.D. Cal. Oct. 11, 2019) (“Plaintiff misunderstands

the standard. Through his electronic acknowledgment, he did expressly

consent to the Program and agreed to the updated arbitration provisions. . . .

Accordingly, Plaintiff is bound by the [Comcast Solutions] Program.”);

Lancaster v. Comcast Commc’ns Mgmt. LLC, No. 16-14446, 2017 WL 3616494,

at *5 (E.D. Mich. Aug. 23, 2017); Garcia v. Comcast Cable Commc’ns Mgmt.

LLC, No. 16-2975, 2017 WL 1210044, at *2 (N.D. Cal. Mar. 31, 2017);

Whitehead v. Comcast Corporation, No. 15-2548, 2015 WL 13744598, at *4

(W.D. Tenn. Dec. 14, 2015).

In any event, Ms. Bush has failed to cite or identify any of the “series of

provisions” that she believes unduly favor Comcast. If such provisions do exist,

it was her burden to direct them to the Court’s attention and explain why they

are unsconsionable. See DeShields v. Int’l Resort Props. Ltd., 463 F. App’x 117,

120 (3d Cir. 2012) (“If factual support for DeShields’s claim existed in the

record, it was incumbent upon her to direct the District Court’s attention to

those facts.”); Bernard v. Webb-McRae, et al., No. 17-7030, 2020 WL 1329934,

at *2 (D.N.J. Mar. 23, 2020) (“It is not the Court’s responsibility to sift through

the record in order to make Plaintiff’s arguments for him.”) (citation omitted).

In conclusion, the purported arbitration agreement is not substantively

unconscionable because it does not favor either party, hinder either party’s

3 Because Ms. Bush does not assert any class-action claims, the Court makes

no finding on whether this particular limitation is enforceable.

substantive rights, or limit remedies unfairly. Thus, while Comcast Solutions

may well be a “contract of adhesion,” it is not unconscionable or otherwise

unenforceable under Pennsylvania law. See Salley, 592 A.2d at 127.

II. Ms Bush manifested an intent to be bound by the Comcast

Solutions arbitration agreement.

Having determined that Comcast Solutions is not unconscionable, the

next question is whether Ms. Bush agreed to it. Ms. Bush argues that her

online acceptances of the offer letter and annual policy acknowledgments were

not effective manifestations of intent to be bound by the program. The Court

disagrees.

“The first element of the test for enforceability of a contract is whether

both parties manifested an intention to be bound.” Am. Eagle Outfitters v.

Lyle & Scott Ltd., 584 F.3d 575, 582 (3d Cir. 2009) (citations omitted). To

assess the intent of parties to make a contract, a court looks not to their inward,

subjective intent but to “the intent a reasonable person would apprehend in

considering the parties’ behavior.” Id. (citation omitted). Thus, “a true and

actual meeting of the minds is not necessary to form a contract.” Id. (citation

omitted). Objective manifestations of intent control.

“To form an enforceable contract, there must be an offer, acceptance and

consideration.” Hudyka, 474 F. Supp. 2d at 716 (citation omitted). Of

relevance here, “[w]ithout knowing the terms of the contract, one cannot accept

them.” Id. (citation omitted). “Therefore, an employee cannot validly agree to

arbitrate his claims unless he has been advised of the arbitration terms.” Id.;

see also Watson v. ScotlandYard Sec. Servs., Ltd., No. 12-1156, 2013 WL

5676771, at *2 (W.D. Pa. Oct. 18, 2013) (Bissoon, J.) (“Plaintiffs Watson and

Moon cannot have entered into a valid contract with ScotlandYard if they had

never actually received the employee manual that contained the arbitration

policy.”).4

Ms. Bush admitted during her deposition—and Comcast has submitted

extrinsic evidence to establish—that she did, in fact, acknowledge and accept

the arbitration policy through Comcast’s online “Welcome Portal.” [ECF 26-1,

pp. 30:2-32:19, Ex. 5; ECF 7-2, pp. 29-30]. She did so both when she accepted

her offer letter and again, twice, when she annually acknowledged her

understanding “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.” [ECF 7-2, pp. 83-87; ECF 26-1, pp. 30:2-32:19]. To the extent Ms.

Bush still relies on her earlier declaration to suggest otherwise, her subsequent

deposition testimony controls. See In re CitX Corp., Inc., 448 F.3d 672, 679 (3d

Cir. 2006) (“We perceive no principle that cabins sham affidavits to a particular

sequence. … [C]ross-examining the affiant in a later deposition seems the

better way to find the flaws in a bogus affidavit.”).

Click-based web agreements of this kind are “routinely enforced by the

courts.” HealthplanCRM, LLC v. AvMed, Inc., ___ F. Supp. 3d ___, No. 19-

1357, 2020 WL 2028261, at *18 (W.D. Pa. Apr. 28, 2020) (Ranjan, J.). And both

4 See also Quiles v. Fin. Exch. Co., 879 A.2d 281, 286 (Pa. Super. Ct. 2005)

(“Without receipt or delivery of the Handbook which was the only document

containing the relevant arbitration provisions, Quiles was unable to knowingly

and voluntarily waive all other means of dispute resolution.”) (citation

omitted); Carfagno v. Ace, Ltd., No. 04-6184, 2005 WL 1523530, at *10 (D.N.J.

June 28, 2005) (“[T]he employment application clearly informed each employee

that the detailed policies were available to each applicant for inspection. …

Plaintiffs adduced no evidence that they were denied access to the detailed

arbitration policy or that they did not understand the arbitration policy.”)

(internal citations omitted).

acceptances were enough to place Ms. Bush on notice of the Comcast Solutions

program and its key terms. The offer letter that Ms. Bush “acknowledged” and

e-signed stated that “[b]y accepting this offer of employment with the Company

and signing below, you acknowledge that you understand the terms of the

Comcast Solutions program and also acknowledge that both you and the

Company

.” [ECF 7-2, p. 29] (emphasis added). More

importantly, the same offer letter advised Ms. Bush of the primary

consequence of giving her assent:

Comcast has a dispute resolution program for its employees,

known as Comcast Solutions, which provides a three-step process

(facilitation, mediation ) for resolving

a variety of workplace legal issues should there be any that arise

between you and the Company during or after your employment.

A brochure with information and direction on how to obtain

additional information related to the program is being provided

to you along with this offer letter. Please review this information

carefully, as the program affects the legal rights of both you and

the Company (

).

[Id.] (emphasis added).

Located below the link to Ms. Bush’s offer letter on Comcast’s portal was

a notice that “[w]ithin your Offer Letter, you will find details about our

Comcast Solutions program. To learn more about the program, please click

the link below to download and save a copy of the brochure for your records.”

[Id. at p. 32]. The linked brochure included a thorough explanation of the

Comcast Solutions program that, once again, warned Ms. Bush that she would

“waive the right to a civil action or a jury trial for any covered claims” and

explained that both Ms. Bush and Comcast would be “bound by the final

decision of the arbitrator.” [Id. at p. 42]. The brochure then urged Ms. Bush

to “read the Comcast Solutions Guide, DRO rules, and FAQs to ensure you

fully understand the Comcast Solutions program prior to accepting

employment with the company.” [Id.]. A FAQ in the brochure identified

“allegations of unlawful discrimination or harassment based on a protected

category” as falling within the Comcast Solutions program. [Id. at p. 43].

Other courts in this Circuit have held that the acknowledgement of

language such as this is sufficient to create a binding arbitration agreement.

See, e.g., Oliver v. Nordstrom King of Prussia, No. 10-5340, 2010 WL 5121966,

at *2 (E.D. Pa. Dec. 14, 2010) (holding a new employee’s signature on the

employment policy stating, “[m]y signature below acknowledges that I am

aware of and agree to abide by the Company’s Dispute Resolution Program”

created enforceable contract); JPMorgan Chase & Co. v. Custer, No. 15-6288,

2016 WL 927339, at *1 (D.N.J. Mar. 10, 2016) (enforcing acknowledgement

that by “signing below I acknowledge and agree that I have read and

understand the Binding Arbitration Agreement, have accepted its terms and

understand that it is a condition of my employment with JPMorgan Chase”).

This is also not a case in which Ms. Bush did not have access to a copy of

the arbitration policy—her offer letter was accompanied by a prominent link

to the detailed Comcast Solutions brochure. Compare to Hudyka, 474 F. Supp.

2d at 716-718 (holding no arbitration agreement formed where employee did

not receive email that referenced the policy, employer could not show that the

employee ever had access to the terms of the agreement, and the agreement

itself was ambiguous because it stated only that either party “can request

arbitration” and the “employee has the option to proceed to . . . [a]rbitration”);

see also Quiles, 879 A.2d at 283; Watson, 2013 WL 5676771, at * 2.

Ms. Bush argues that, even if she agreed to something, the terms of that

agreement are “not sufficiently definite to be enforced” because “to get a full

grasp of the Comcast Solutions program, one must review five separate

documents: the Employee Handbook, Comcast Solutions Brochure, Comcast

Solutions Program Guide, Comcast Solutions Frequently Asked Questions,

and Comcast new Hire Guide.” [ECF 27, p. 3]. She also argues that “even

after all these documents are reviewed it is still not clear what claims are

covered under Comcast Solutions[.]” [Id.].

The Court disagrees, at least as it relates to Ms. Bush’s claims here.

Whether or not that characterization would be true as to certain edge cases, it

is clear, and was made reasonably clear to Ms. Bush, that the Comcast

Solutions program covers discrimination claims of the kind at-issue here.

Indeed, the materials Comcast provided Ms. Bush, or directed her to, said so

explicitly.

Ms. Bush’s claim that she was reasonably unaware of having agreed to

forego her right to file a lawsuit is particularly unconvincing. That aspect of

Comcast Solutions was clear from her offer letter itself, which warned her that

she should review the terms of the program carefully because they “include[ed]

a waiver of the right to bring a civil action in federal or state court or before a

civil judge or jury, as well as a waiver of the right to bring or participate in a

class action, collective action or representative action.” [ECF 7-2, p. 29].

Thus, to be fully aware of the relevant terms of the Comcast Solutions

program, and certainly to be aware that she was waiving her right to bring a

lawsuit of this kind, Ms. Bush only needed to review her offer letter (which

advised her that she would be giving up her rights to file a lawsuit) and the

brochure that the offer letter linked to and cautioned her to review (which

clarified that discrimination claims were covered by the program). Ms. Bush

then acknowledged, twice, that she was bound by the Comcast Solutions

program during her tenure with Comcast.

Given these facts, the Court finds that Ms. Bush objectively manifested

an intent to be bound by the Comcast Solutions program when she accepted

the terms of her offer letter and then reaffirmed her acceptance of those terms

each year of her employment.

III. Comcast did not materially breach the arbitration agreement.

Finally, Ms. Bush contends that Comcast materially breached its own

obligations under the Comcast Solutions program by failing to “provide [her

with] a process through which claims can be raised and resolved in a prompt

and efficient manner.” [ECF 27, p. 4]. According to Ms. Bush, this “material

breach” voided the arbitration agreement and now excuses her from complying

with its terms.

Ms. Bush is correct that a material breach that goes directly to the

essence of a contract generally excuses the non-breaching party from

continuing its duties under the contract. See LJL Transp., Inc. v. Pilot Air

Freight Corp., 962 A.2d 639, 652 (Pa. 2009). And, in this context, the Court

agrees that an employer “cannot compel [a plaintiff] to honor an arbitration

agreement of which it is itself in material breach.” Nadeau v. Equity

Residential Properties Mgmt. Corp., 251 F. Supp. 3d 637, 642 (S.D.N.Y. 2017)

(cleaned up). In other words, “when an employer enters into an arbitration

agreement with its employees, it must itself participate in properly initiated

arbitration proceedings or forego its right to compel arbitration.” Id. (cleaned

up). To hold otherwise “would set up a perverse incentive scheme. Employers

. . . would have an incentive to refuse to arbitrate claims brought by employees

in the hope that the frustrated employees would simply abandon them.” Brown

v. Dillard’s, Inc., 430 F.3d 1004, 1012 (9th Cir. 2005).

Thus, Ms. Bush is right when she argues that Comcast Solutions is, and

must be, a two-way street. If an employee demands to arbitrate, Comcast must

either do so or risk forfeiting its right to compel arbitration when the employee

later sues. But Comcast did not breach the arbitration agreement here because

Ms. Bush did not make any demand that would trigger the Comcast Solutions

program.

To be clear, in reaching that conclusion, the Court puts little weight on

the formal distinction between the Comcast Listens and Comcast Solutions

programs that Comcast urges the Court to adopt. “Arbitration demands are

not subject to formalistic requirements, nor are they comparable to pleadings

in federal court.” Nadeau, 251 F. Supp. 3d at 642. If Ms. Bush had demanded

to mediate or arbitrate a potentially covered legal claim against Comcast, it

would be Comcast’s responsibility to recognize that the demand should have

been directed to the Comcast Solutions program and refer her in that direction.

But during her deposition, Ms. Bush testified that she did not demand

to mediate or arbitrate any claim against Comcast. Rather, she asked Comcast

(through Comcast Listens) to facilitate a discussion between herself and the

employees she alleged were harassing her, in an effort to resolve those issues.

On this distinction, her testimony was clear:

Q: Sure. I’m asking why you believe that Comcast breached

the arbitration agreement?

A: Because they didn’t assist when I asked them to,

according to what they stated.

Q: What they stated where?

A: In the handbook.

Q: Are you specifically referring to any portion of the

handbook?

A: I can’t quote it, per se, but I do know when we have a

complaint, when we file a complaint, there’s a certain

process we go through.

Q: Are you talking about filing a complaint with Comcast

Listens or Comcast Solutions?

A: Listens.

. . .

Q: So I want to talk specifically about your request for

mediation. You said you made multiple requests. So you

made multiple requests for mediation to the four people that

you referenced; is that right?

A: Yes.

Q: All of those requests for mediation related to a request

that you sit down with the young ladies, as you put it; is that

right?

A: Yes.

. . .

Q: So just to be perfectly clear, you made multiple mediation

requests. Every request was for an opportunity to sit down

with Ms. Johnston, Ms. Dietz, and Ms. Bradley to discuss

various issues; is that fair?

A: Yes.

. . .

Q: Did you make any other requests for mediation, than

those we have already discussed?

A: No.

Q: Was it your understanding that human resources would

facilitate that mediation with those three individuals?

A: Yes.

Q: Were you ever offered an opportunity to meet with any of

those individuals?

A: Yes.

Q: With whom?

A: Kimberly Johnston.

Q: Did you meet with Ms. Johnston?

A: No.

Q: Why not?

A: After speaking with my therapist and the (inaudible) ones

of the situation, it was advised that – no longer to interact

with her.

[ECF 26-1, pp. 10:6-16:5].

Given this testimony, the Court sees no indication that Ms. Bush ever

made a request to resolve a legal claim against Comcast that was rebuffed. Ms.

Bush has otherwise offered no evidence that she specifically made a demand

to mediate or arbitrate any claims as against Comcast. And while Comcast’s

alleged failure to investigate or address the conduct of Ms. Bush’s co-workers

may well be evidence to support Ms. Bush’s discrimination or hostile work

environment claims, it was not a breach of the arbitration agreement.5

Finally, Ms. Bush argues that Comcast breached its obligations under

the Comcast Solutions program merely by failing to protect Ms. Bush from

harassment or discrimination, presumably by invoking the arbitration

program against itself. [ECF 12, p. 4-5; ECF 27, p. 3-4]. This argument is

unpersuasive, as Ms. Bush is “essentially bootstrapping the conduct for which

[she] is suing [Comcast] into a separate reason for voiding the arbitration

clause.” W. Hosps. Fed. Credit Union v. E.F. Hutton & Co., 700 F. Supp. 1039,

1042 (N.D. Cal. 1988). If such an argument were permissible, courts could not

5 While Ms. Bush testified during her deposition that she initially “thought

Comcast Listens and Comcast Solutions were the same thing,” [ECF 26-1, pp.

11:15-18], this is besides the point. The focus of the inquiry is on Comcast, and

whether it breached its obligations—i.e., whether Comcast was ever presented

with a demand to arbitrate a legal claim against it and refused. Because Ms.

Bush never demanded arbitration of any claim against Comcast, Comcast did

not breach its contract, regardless of whether Ms. Bush understood the formal

distinction between Comcast Listens and Comcast Solutions.

compel arbitration in any discrimination case in which the employer does not

recognize that it violated the law and offer to refer the matter to arbitration.

As detailed above, that is not what courts have done.

As a result, the Court finds that Comcast did not materially breach the

arbitration agreement, and so Ms. Bush must still abide by her own obligations

under that agreement.

CONCLUSION

For all the reasons discussed above, the Court will grant Comcast’s

motion and compel Ms. Bush to arbitrate her claims. The Court will then

dismiss, rather than stay, this case as all Ms. Bush’s claims are arbitrable and

neither party has requested a stay. See Somerset Consulting, LLC v. United

Capital Lenders, LLC, 832 F. Supp. 2d 474, 490 (E.D. Pa. 2011) (“[N]either

plaintiffs nor defendants have requested that we stay the action pending

arbitration. We will accordingly dismiss plaintiffs’ amended complaint and

close this case.”); Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th

Cir. 1992) (“The weight of authority clearly supports dismissal of the case when

all of the issues raised in the district court must be submitted to arbitration.”)

(citations omitted).

DATE: July 22, 2020 BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge