TIMOTHY LEROY FORTUNE v. HASA INC (2026)

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pro se plaintiff Timothy Fortune sued his former employer, Hasa, Inc., under Title VII, 42 U.S.C. § 2000e et seq., the Equal Pay Act, 29 U.S.C. § 206(d), and 42 U.S.C. § 1985. Dkt. 1. Hasa moved to compel arbitration, Dkt. 7; see Dkts. 9 (response), 13 (reply), and Fortune moved for a jury trial, Dkt. 14; see Dkts. 16 (response), 17 (reply). Hasa's motion should be granted and Fortune's denied.

BACKGROUND

In its motion, Hasa asserts that Fortune agreed to arbitrate any employment disputes he has with it and that he electronically signed an arbitration agreement when he began working for it. Dkt. 7. Fortune argues in response that he never agreed to arbitrate, that neither he nor Hasa signed the arbitration agreement, and that he was never told about the agreement. Dkt. 9 at 1–2, 4. He further asserts that the arbitration agreement is unconscionable and unenforceable. Id. at 6–8. Hasa argues in reply that, even if the arbitration agreement was unsigned, Fortune accepted it by continuing his employment and that the agreement is not unconscionable. Dkt. 13 at 2–5.

Arguing that he has put the existence of an arbitration agreement in dispute, Fortune moved for a jury trial on that issue under 9 U.S.C. § 4. Dkt. 14. In response, Hasa again asserts that it gave Fortune a copy of the arbitration agreement on his first day of work and, even if he did not sign it, he agreed to arbitrate as a condition of his employment by continuing to work for Hasa. Dkt. 16 at 10–13. In his reply, Fortune again contends that none of those points resolves whether he agreed to arbitrate. Dkt. 17.

DISCUSSION

Written agreements to arbitrate are “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 Federal Arbitration Act, in which that provision appears, “reflects the fundamental principle that arbitration is a matter of contract” and “places arbitration agreements on an equal footing with other contracts.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67 (2010). “Consequently, the first question in any arbitration dispute must be: What have these parties agreed to?” Coinbase, Inc. v. Suski, 602 U.S. 143, 148 (2024). If the parties have agreed to submit their dispute to arbitration, the court has no discretion; it must “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). In that circumstance, a stay of district-court proceedings is required, 9 U.S.C. § 3; Smith v. Spizzirri, 601 U.S. 472, 476 (2024), and the court should not reach the merits of a party's claim, see Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 68 (2019).

When a litigant seeks to compel arbitration and its opponent “attacks the very existence of an agreement to arbitrate,” the movant has the initial burden to show that an arbitration agreement exists. Emily's Place, Inc. v. Regions Bank, 764 F. Supp. 3d 485, 490 (N.D. Tex. 2025) (quotation marks omitted). If the movant meets its burden, the burden shifts to the party opposing arbitration to show the agreement's invalidity. Id. “If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.” 9 U.S.C. § 4. But “[t]o put the making of the arbitration agreement in issue, a party is required to unequivocally deny that he agreed to arbitrate and produce some evidence supporting his position.” Gallagher v. Vokey, 860 F. App'x 354, 357 (5th Cir. 2021) (cleaned up).

As long as an employer provides notice to its employee, it may “impose an arbitration agreement as a term of continued employment.” Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 203 (5th Cir. 2016). If an employee accepts or continues employment with notice that his agreement to arbitrate is a condition of his employment, he is deemed to have consented to arbitration as a matter of law. Id. It “does not matter whether [he] signed the agreement.” Id. at 203 n.2.

Here, the arbitration agreement in Hasa's employee manual explains that Hasa “has adopted and implemented an arbitration policy, requiring mandatory, binding arbitration of disputes, for all employees.” Dkt. 13-3 at 59. The agreement is “a mandatory condition of employment,” and an employee's “decision to accept employment or to continue employment with Hasa constitutes [his] agreement to be bound by the” agreement. Id. (emphasis in original). In other words, the agreement expressly states that Fortune's employment was conditioned on his agreement to arbitrate and that, by continuing to be employed by Hasa, Fortune was accepting the terms of the agreement.

Still, Fortune asserts that he “never saw, read, or was provided a copy of” the arbitration agreement. Dkt. 9-1 at 2. That argument fails because Hasa sent him a copy of the employee manual that contains the arbitration agreement in an email message. Dkts. 13-1 at 2, 13-3 at 2. When the sender of an email message produces a sworn statement that the message was sent to the correct address, the “mailbox rule” applies to create a presumption of receipt. Gezu v. Charter Commc'ns, 17 F.4th 547, 554 (5th Cir. 2021); Krohn v. Spectrum Gulf Coast, LLC, No. 3:18-cv-2722-S, 2019 WL 4572833, at *3 (N.D. Tex. Sept. 19, 2019). Fortune's conclusory, unsupported statements do not overcome that presumption. Pope v. Hou. NFL Holdings, L.P., No. 4:19-cv-3157, 2021 WL 4096551, at *2 (S.D. Tex. Mar. 22, 2021).

Hasa's email message was properly addressed, Dkts. 13-1 at 2, 13-3 at 2—it was sent to the same email address that Fortune registered with the court, Dkt. 2. And Fortune has presented nothing to suggest that it was not properly delivered. Furthermore, Fortune's assertion that he did not read the arbitration agreement is also insufficient. “Failing to read an agreement, even when a party claims [that] there was no opportunity to read or understand the agreement, does not excuse a party from arbitration.” Goldsberry v. Barrington Bank & Tr. Co., NA, No. 4:23-cv-00993-ALM-AGD, 2025 WL 699357, at *7 (E.D. Tex. Feb. 10, 2025) (quoting Perez v. Lemarroy, 592 F. Supp. 2d 924, 934 (S.D. Tex. 2008)), report and recommendation adopted, 2025 WL 693252 (E.D. Tex. Mar. 4, 2025).

By accepting employment with Hasa and continuing to work after he was put on notice that agreeing to arbitrate was a condition of his employment, Fortune agreed to arbitrate. See Castorena v. Charter Commc'ns, LLC, No. 2:18-cv-07981-JFW-KS, 2018 WL 10806903, at *4 (C.D. Cal. Dec. 14, 2018) (finding that the plaintiffs' “failure to read their company email does not negate the sufficiency of the notice provided by [the] Defendant announcing the roll-out of the arbitration program”); Esquivel v. Charter Commc'ns, Inc., No. 2:18-cv-7304-GW-MRW, 2018 WL 10806904, at *6 (C.D. Cal. Dec. 6, 2018) (finding an opt-out arbitration agreement sent in an email valid when the employee “did not sign an acknowledgement of receipt of the arbitration agreement[ ] and never read the email”). And because he has not come forward with evidence that would put the making of the arbitration agreement “in issue,” a trial is unnecessary, see 9 U.S.C. § 4; Gallagher, 860 F. App'x at 357–58.

Fortune also argues that, even if he agreed to arbitrate, the arbitration provision is unconscionable and unenforceable and that it is against public policy because it waives his substantive rights. Dkt. 9 at 6–8. Those arguments fail as well.

According to Fortune, the agreement “imposes arbitration as a condition of employment, prohibits collective relief, and shifts arbitration costs without disclosing them.” Id. at 7. But neither imposing an arbitration agreement as a condition of employment nor waiving the right to proceed collectively makes the agreement unconscionable. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 348–51 (2011); Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 123 (2001). And Fortune's assertion that the agreement does not disclose the cost of arbitration is inaccurate. The agreement provides that “Hasa and [Fortune] will share the cost of the AAA's filing fee and the arbitrator's fees and costs, but [Fortune's] share of such fees and costs shall not exceed an amount equal to [Fortune's] local court civil filing fee.” Dkt. 13-3 at 60.

As to public policy, Fortune has offered nothing aside from the fact that his claims arise from anti-discrimination statutes to show that the arbitration agreement waives substantive rights. Dkt. 9 at 7. But discrimination claims are generally arbitrable, so that argument fails, too. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26–27 (1991); Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir. 1991).

RECOMMENDATION

It is RECOMMENDED that:

1) the motion to compel arbitration, Dkt. 7, be GRANTED;

2) the motion for a jury trial, Dkt. 14, be DENIED;

3) the case be STAYED pending arbitration; and

4) the parties be ordered to notify the court of the outcome of arbitration no later than seven days after its completion.

* * *

Within 14 days after service of this report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1).

A party is entitled to a de novo review by the district court of the findings and conclusions contained in this report only if specific objections are made. Id. § 636(b)(1). Failure to timely file written objections to any proposed findings, conclusions, and recommendations contained in this report will bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted by the district court, except on grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140, 155 (1985); Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from 10 to 14 days).

So ORDERED and SIGNED this 17th day of July, 2026.

Bill Davis United States Magistrate Judge