Escobar-Noble v. Ritz-Carlton Hotel ( 2012 )


Menu:
  •           United States Court of Appeals
                          For the First Circuit
    
    No. 11-1506
    
                           TOMÁS ESCOBAR-NOBLE,
    
                          Plaintiff, Appellant,
    
                                    v.
    
            LUXURY HOTELS INTERNATIONAL OF PUERTO RICO, INC.,
    
                           Defendant, Appellee.
    
    
              APPEAL FROM THE UNITED STATES DISTRICT COURT
    
                     FOR THE DISTRICT OF PUERTO RICO
    
            [Hon. Aida M. Delgado-Colón, U.S. District Judge]
    
    
                                  Before
    
                            Lynch, Chief Judge,
                     Selya and Lipez, Circuit Judges.
    
    
    
         Enrique J. Mendoza Mendez and Mendoza Law Offices on brief for
    appellant.
         Radamés A. Torruella, Jan Carlos Bonilla-Silva, and McConnell
    Valdés LLC on brief for appellee.
    
    
    
                               May 24, 2012
                 SELYA, Circuit Judge. The outcome of this appeal depends
    
    on whether a court or an arbitrator should decide a claim that an
    
    otherwise applicable arbitration clause is unenforceable.             We hold
    
    that, in the circumstances of this case, the task is for the
    
    arbitrator.
    
                 Defendant-appellee Luxury Hotels International of Puerto
    
    Rico, Inc. (the Hotel) operates the Ritz-Carlton Hotel & Casino in
    
    San Juan, Puerto Rico.          In 2001, the Hotel hired plaintiff-
    
    appellant Tomás Escobar-Noble as a casino worker.
    
                 Approximately     six   years    into    his    employment,     the
    
    appellant — for reasons not reflected in the record — filed a
    
    charge of sex and age discrimination with the Equal Employment
    
    Opportunity Commission (EEOC).
    
                 In his complaint in this case, the appellant alleges
    
    that, shortly after he made these filings, his supervisors embarked
    
    on a pattern of retaliation ultimately resulting in his dismissal
    
    on November 11, 2008. He filed a retaliation charge with the EEOC,
    
    which issued a right-to-sue letter on January 8, 2010.             Armed with
    
    this letter, he sued his quondam employer in the federal district
    
    court.      His complaint alleged retaliation in violation of Title
    
    VII,   42    U.S.C.   §   2000e-3(a),   and   the    Age    Discrimination   in
    
    Employment Act, 29 U.S.C. § 623(d), as well as supplemental causes
    
    of action under a gallimaufry of Puerto Rico statutes, pertinently
    
    
    
    
                                         -2-
    including P.R. Laws Ann. tit. 29, § 185a (Law 80) and P.R. Laws
    
    Ann. tit. 29, § 194a (Law 115).
    
              Citing two separate agreements signed by the appellant,
    
    each of which contained an arbitration clause, the Hotel moved to
    
    compel arbitration and stay or dismiss the court case.        See 9
    
    U.S.C. §§ 2-4.    The appellant opposed the motion, challenging the
    
    validity of the arbitration clauses.      He asserted, among other
    
    things, that the agreements he had signed impermissibly shorten the
    
    applicable limitations period, impede public enforcement of anti-
    
    discrimination laws, and unduly burden workers' rights.
    
              Ruling on the papers, the district court determined that
    
    the arbitration clauses were valid and enforceable.    It proceeded
    
    to dismiss the case without prejudice for want of subject matter
    
    jurisdiction.    This timely appeal followed.   We have jurisdiction
    
    under 28 U.S.C. § 1291.
    
              Given the posture of this appeal, "we focus only on the
    
    threshold issue of arbitrability; we do not rule on the merits of
    
    the underlying claims."    Unite Here Local 217 v. Sage Hospitality
    
    Res., 
    642 F.3d 255
    , 259 (1st Cir. 2011).         Our review of the
    
    district court's order is de novo. Soto-Fonalledas v. Ritz-Carlton
    
    San Juan Hotel Spa & Casino, 
    640 F.3d 471
    , 474 (1st Cir. 2011);
    
    Campbell v. Gen. Dynamics Gov't Sys. Corp., 
    407 F.3d 546
    , 551 (1st
    
    Cir. 2005).     Although we do not agree with the district court's
    
    reasoning, we may affirm its disposition of the case on any
    
    
                                      -3-
    independent ground made apparent by the record.   See InterGen N.V.
    
    v. Grina, 
    344 F.3d 134
    , 141 (1st Cir. 2003).
    
              Our starting point is the Federal Arbitration Act (FAA),
    
    9 U.S.C. §§ 1-16.   "Congress passed the FAA to overcome a history
    
    of judicial hostility to arbitration agreements."     Campbell, 407
    
    F.3d at 551 (citing Gilmer v. Interstate/Johnson Lane Corp., 
    500 U.S. 20
    , 24 (1991)).     The FAA pays homage to the fundamental
    
    principle that an agreement to arbitrate is a matter of contract,
    
    Rent-A-Center, W., Inc. v. Jackson, 
    130 S. Ct. 2772
    , 2776 (2010),
    
    and such an agreement should be placed "upon the same footing as
    
    other contracts," Allied-Bruce Terminix Cos. v. Dobson, 
    513 U.S. 265
    , 271 (1995) (internal quotation marks omitted).
    
              Section 2 of the FAA states that "an agreement in writing
    
    to submit to arbitration an existing controversy . . . 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.    To the extent that an agreement satisfies the
    
    imperatives of section 2, the FAA empowers an inquiring court to
    
    stay a judicial proceeding filed by a resisting party.     See id.
    
    § 3. Should the resisting party remain recalcitrant, the court may
    
    compel arbitration.   See id. § 4.
    
              Although sections 3 and 4 of the FAA are designed to
    
    operate independently, parties desiring to arbitrate commonly will
    
    file a single motion seeking the simultaneous benefit of both
    
    
                                    -4-
    provisions.    See Matterhorn, Inc. v. NCR Corp., 
    763 F.2d 866
    , 871
    
    (7th Cir. 1985).     Here, the Hotel filed just such a motion.
    
                The federal policy favoring arbitration is strong.        See
    
    KPMG LLP v. Cocchi, 
    132 S. Ct. 23
    , 25 (2011) (per curiam).            Even
    
    strong policies, however, have boundaries.            A court may order
    
    parties to arbitrate a given dispute only if they have agreed to
    
    submit such a dispute to arbitration.         See Granite Rock Co. v.
    
    Int'l Bhd. of Teamsters, 
    130 S. Ct. 2847
    , 2856 (2010).        It follows
    
    that a court should not compel arbitration unless and until it
    
    determines that the parties entered into a validly formed and
    
    legally enforceable agreement covering the underlying claim(s).
    
    Id. at 2857-58; Dialysis Access Ctr., LLC v. RMS Lifeline, Inc.,
    
    
    638 F.3d 367
    , 376 (1st Cir. 2011).      Once such a determination has
    
    been made, the court must direct the parties to arbitrate all
    
    "issues as to which an arbitration agreement has been signed."
    
    Dean Witter Reynolds, Inc. v. Byrd, 
    470 U.S. 213
    , 218 (1985).
    
                The appellant signed not one but two agreements that
    
    contained arbitration clauses — the first in 2001 and the second in
    
    2005.    For purposes of this appeal, any variation in the language
    
    of these agreements is immaterial.          For ease in exposition,
    
    therefore, we limit our discussion to the more recent agreement.
    
                The 2005 agreement provides in pertinent part: "I must
    
    request Arbitration if I wish to challenge my termination for any
    
    reason    or   for   management   decisions    that     I   believe   are
    
    
                                      -5-
    discriminatory or retaliatory."         Our review, which centers on the
    
    factual allegations of the complaint, see Dialysis Access Ctr., 638
    
    F.3d at 378, indicates that the alleged acts of retaliation and the
    
    supplemental     causes   of   action   fall   within   the   scope   of   the
    
    arbitration agreement. Indeed, the appellant has made no assertion
    
    to the contrary.
    
                Despite the fact that his claims fall within the four
    
    corners    of   the   arbitration   clause,    the   appellant   originally
    
    challenged the enforceability of that clause on a multitude of
    
    grounds.    In this venue, however, he has narrowed his attack; he
    
    argues only that enforcement should be denied because the agreement
    
    that contains the arbitration clause imposes a one-year limitations
    
    period.    To be specific, he posits that the arbitration clause is
    
    invalid because the provision for a one-year limitations period ("I
    
    may   request    an   Arbitration   hearing    within   one   year    of   the
    
    management decision I wish to appeal") impermissibly truncates the
    
    three-year statutory limitations period applicable to his claims
    
    under Laws 80 and 115.1        This claim was preserved below.
    
                The appellant's argument is straightforward. Each of the
    
    two statutes that he cites is subject to a three-year statutory
    
    limitations period.       See P.R. Laws Ann. tit. 29, §§ 185l, 194a(b).
    
    
          1
           Law 80 creates a right of action in favor of an employee who
    is fired without just cause. P.R. Laws Ann. tit. 29, § 185a. Law
    115 proscribes retaliation against employees who provide testimony
    "before a legislative, administrative or judicial forum." Id.
    § 194a(a).
    
                                         -6-
    Shortening    this    period,     the   appellant     says,    deprives    him     of
    
    substantive rights afforded by Puerto Rico statutory law.                  Because
    
    statutes of limitations are deemed substantive in Puerto Rico, his
    
    thesis runs, limitations periods incorporated in labor legislation
    
    cannot, as a matter of public policy, be waived.                   See P.R. Laws
    
    Ann. tit. 31, § 3372 ("[C]ontracting parties may make the agreement
    
    and establish the clauses and conditions which they may deem
    
    advisable, provided they are not in contravention of law, morals,
    
    or public order.").
    
                 This argument triggers a threshold question as to whether
    
    it should be resolved by the court or by an arbitrator.                          As a
    
    general rule, and in the absence of an express agreement to the
    
    contrary,    courts    decide     questions    of    arbitrability,       that    is,
    
    questions about whether the parties have agreed to submit a given
    
    dispute to arbitration.         Howsam v. Dean Witter Reynolds, Inc., 
    537 U.S. 79
    , 83 (2002); AT&T Techs., Inc. v. Commc'ns Workers of Am.,
    
    
    475 U.S. 643
    ,     649   (1986).      Whether     a   question    is    one     of
    
    arbitrability within the meaning of this doctrine is not always
    
    cut-and-dried.       See, e.g., Kristian v. Comcast Corp., 
    446 F.3d 25
    ,
    
    37-42 (1st Cir. 2006).            There is a gray area, and confusion
    
    sometimes arises because "[l]inguistically speaking, one might call
    
    any   potentially     dispositive       gateway     question   a   'question       of
    
    arbitrability,'       for   its    answer     will    determine     whether       the
    
    
    
    
                                            -7-
    underlying controversy will proceed to arbitration on the merits."
    
    Howsam, 537 U.S. at 83.
    
                 The Supreme Court has provided some guidance in this
    
    area.    It    has   admonished   that    controversies    underlying   an
    
    arbitration    agreement   should    be   construed   as   questions    of
    
    arbitrability in only narrow circumstances.       See id. at 83-84.     We
    
    have identified two categories in which issues typically involve
    
    arbitrability: "(1) disputes about whether the parties are bound by
    
    a given arbitration clause; and (2) disputes about whether an
    
    arbitration clause in a concededly binding contract applies to a
    
    particular type of controversy."      Kristian, 446 F.3d at 42 (citing
    
    Howsam, 537 U.S. at 84).    Disputes falling into the first category
    
    include, for example, whether a person who is not a party to a
    
    contract is bound by the contract's arbitration clause. See, e.g.,
    
    John Wiley & Sons, Inc. v. Livingston, 
    376 U.S. 543
    , 544-48 (1964).
    
    Disputes falling into the second category include, for example,
    
    whether a particular grievance comes within the compass of an
    
    arbitration clause.    See, e.g., AT&T Techs., 475 U.S. at 651-52.
    
                 The dispute here does not fall neatly into either of
    
    these two categories. The appellant does not argue that any of his
    
    claims outstrip the scope of the arbitration agreement.          He says
    
    only that the contractual limitations period prevents him from
    
    fully vindicating certain of the statutory rights conferred by
    
    local law.
    
    
                                        -8-
                The   fact   that   neither   of     the    Howsam    categories
    
    encompasses this dispute does not end our inquiry.               The Supreme
    
    Court has more broadly stated that the issue of arbitrability
    
    depends, at least to some extent and in some contexts, on whether
    
    "the prospective litigant effectively may vindicate [his] statutory
    
    cause of action in the arbitral forum." Mitsubishi Motors Corp. v.
    
    Soler Chrysler-Plymouth, Inc., 
    473 U.S. 614
    , 637 (1985). With this
    
    in mind, we have stated that "[o]ne of the 'narrow circumstances'
    
    that might raise a question of arbitrability involves an allegation
    
    . . . that some of the terms in an arbitration agreement conflict
    
    with a [state] statutory right that is not waivable by contract."
    
    Anderson v. Comcast Corp., 
    500 F.3d 66
    , 71 (1st Cir. 2007).                 In
    
    such an event, "the court will have to decide whether the conflict
    
    precludes enforcement of the arbitration agreement."             Id.
    
                The appellant takes dead aim at the Anderson exception
    
    and mounts a "vindication of statutory rights" argument.               When, as
    
    now, such an argument centers on a statutory limitations period, an
    
    inquiring   court   must   start   with   the    premise   that    decisions
    
    regarding the enforceability and effect of contractual limitations
    
    periods are most often for the arbitrator.             See Marie v. Allied
    
    Home Mortg. Corp., 
    402 F.3d 1
    , 11 & n.8 (1st Cir. 2005).               But this
    
    is not always the case, and each dispute must stand on its own
    
    bottom.   See Kristian, 446 F.3d at 43.         The appropriate triage is
    
    composed of two steps.      The court first must determine whether
    
    
                                       -9-
    there       is   a   direct    conflict    between   the    limitations    period
    
    delineated in the arbitration agreement and the state statute of
    
    limitations.         Anderson, 500 F.3d at 75-76; see also Kristian, 446
    
    F.3d at 45-46 & n.15 (citing PacifiCare Health Sys., Inc. v. Book,
    
    
    538 U.S. 401
    , 403-07 (2003)).              In the absence of such a direct
    
    conflict, the inquiry ends.               If, however, the court discerns a
    
    direct conflict, it must proceed to determine "whether there is
    
    ambiguity on the question whether the statute of limitations can be
    
    contractually shortened." Anderson, 500 F.3d at 75. The existence
    
    of such an ambiguity consigns any lingering question about the
    
    validity of the contractual limitations period to the arbitrator.
    
    Id.
    
                     In the case at hand, the appellant's complaint alleges
    
    that he was retaliated against from early 2007 until he was
    
    cashiered on November 11, 2008.              He did not sue, however, until
    
    February 17, 2010 — more than one year but less than three years
    
    after the adverse employment action (his firing).                  We therefore
    
    assume, favorably to the appellant, that the contrast between the
    
    one-year         contractual    limitations      period    and   the   three-year
    
    statutory limitations period presents a direct conflict.2
    
    
            2
           We phrase this as an assumption, not as a finding of fact,
    because the district court opined that the filing of a charge with
    the EEOC tolled the statute of limitations. Escobar-Noble v. Ritz-
    Carlton Hotel & Casino, No. 10-1121, slip op. at 9-10 (D.P.R. Mar.
    31, 2011). If so, the limitations period for the statutory claims
    would have begun to run anew on January 8, 2010, see, e.g.,
    Valentín-Almeyda v. Municipality of Aguadilla, 
    447 F.3d 85
    , 101-02
    
                                              -10-
              This gets the appellant only halfway home. To succeed on
    
    his "vindication of statutory rights" claim, he must show both that
    
    a direct conflict exists and that the conflict, without doubt, must
    
    be resolved in his favor.    See, e.g., id.   If an ambiguity exists,
    
    the arbitrator — not the court — must decide the question of
    
    whether the limitations period can be shortened by contract.     See
    
    id. at 75-76.    Only if the answer is clear does the conflict
    
    between the arbitration clause and the statute of limitations raise
    
    a question of arbitrability for the court.     See id. at 76.
    
              The appellant posits that individuals may not enter into
    
    contracts that run contrary to, or waive rights afforded by, Puerto
    
    Rico labor legislation.     See Beauchamp v. Dorado Beach Hotel, 98
    
    P.R. 622, 624-25 (1970); Compañía Popular de Transporte, Inc. v.
    
    Unión de Empleados de Transporte, 69 P.R. 167, 179 (1948); Compañía
    
    Popular de Transporte v. Dist. Court of Bayamón, 63 P.R. 116, 121-
    
    23 (1944).   Relatedly, he posits that statutes of limitations,
    
    sometimes called prescriptive statutes, see FDIC v. Consol. Mortg.
    
    & Fin. Corp., 
    805 F.2d 14
    , 18 (1st Cir. 1986), are substantive in
    
    nature.   Olmo v. Young & Rubicam of P.R., Inc., 10 P.R. Offic.
    
    Trans. 965, 969 (1981); Febo Ortega v. Superior Court, 
    2 P.
    & n.20 (1st Cir. 2006), and the suit would have been commenced
    within one year thereafter. But this outcome is far from clear
    and, in all events, the crucial administrative filing — the charge
    of retaliation — is not part of the record that was before the
    district court.    Assuming the existence of a direct conflict
    obviates any need to pass upon either the applicability of tolling
    or its effect on the existence of a direct conflict.
    
                                     -11-
    Offic. Trans. 506, 509 (1974).    He insists that these precedents,
    
    taken collectively, signify that limitations periods applicable to
    
    the enforcement of labor laws cannot be abbreviated by contract.
    
    The Hotel fights tooth and nail against every aspect of this
    
    argument.
    
                Notwithstanding the parties' vehement disagreement about
    
    whether statutes of limitations can be contractually shortened in
    
    the labor law context, they fail to identify any Puerto Rico
    
    Supreme Court decision directly on point.     In the absence of on-
    
    point authority, both parties repair to a provision of the Civil
    
    Code, which states that "[p]ersons with the capacity to alienate
    
    may renounce the prescription acquired, but not the right to
    
    prescription in the future."      P.R. Laws Ann. tit. 31, § 5246
    
    (Article 1835). Although each party spins this language to support
    
    a different answer to the question before us, the language is
    
    tenebrous, and the Puerto Rico Supreme Court has not yet clarified
    
    it.3
    
                The muddiness of the language of Article 1835 and the
    
    dearth of relevant authority lead us to the commentators.   Because
    
    Puerto Rico is a civil-law jurisdiction, rather than a common-law
    
    
    
           3
          Federal courts have construed Article 1835 to mean only that
    parties cannot contractually waive a future right to assert a
    statute of limitations defense. See, e.g., Consol. Mortg., 805
    F.2d at 21-22; FDIC v. Barrera, 
    595 F. Supp. 894
    , 901-02 (D.P.R.
    1984). On this view, the language becomes more clear — but not in
    a way that helps the appellant.
    
                                     -12-
    jurisdiction, the most relevant commentary is likely to arise in
    
    other civil-law jurisdictions.              See Jones v. Pettingill, 
    245 F. 269
    , 276 (1st Cir. 1917).
    
                 Article 1935 of Spain's Civil Code is a counterpart of
    
    Article 1835 of Puerto Rico's Civil Code.              FDIC v. Barrera, 595 F.
    
    Supp.   894,      902   (D.P.R.   1984).         Several   Spanish    commentators
    
    discussing Article 1935 have agreed that contractually shortening
    
    a limitations period does not contravene either civil law or public
    
    policy.   See, e.g., Luis Díez Picazo, La Prescripción en el Código
    
    Civil 63-66 (Bosch ed. 1964); José Puig Brutau, Fundamentos de
    
    Derecho Civil 857-59, T.I, Vol.I(2) (Bosch ed. 1979); José Castán
    
    Tobeñas, Derecho Civil Español, Común y Foral 982-84, T.I, Vol.II
    
    (Reus ed. 1987).         The court below, relying on one such commentary,
    
    concluded that the appellant's proposed interpretation of Article
    
    1835 was incorrect. Escobar-Noble v. Ritz-Carlton Hotel & Casino,
    
    No. 10-1121, slip op. at 6-9 (D.P.R. Mar. 31, 2011).
    
                 To    be    sure,    the    Spanish    commentators      discuss   the
    
    lawfulness        of    truncating      limitations    periods   in     commercial
    
    contexts.      They do not directly address statutes that involve the
    
    vindication of workers' rights.              But this observation cuts both
    
    ways: Article 1835 falls under a portion of Puerto Rico's civil
    
    code that sets out a framework of laws regulating commercial
    
    interactions in general, see P.R. Laws Ann. tit. 31, §§ 1-5305,
    
    
    
    
                                              -13-
    whereas labor laws fall into a different category, see P.R. Laws
    
    Ann. tit. 29, §§ 1-3004.
    
                 A close review of Puerto Rico's labor laws reveals that
    
    the   legislature    has   crafted   specific    limitations    periods      for
    
    several laws designed to vindicate workers' rights. See, e.g., id.
    
    §   155m   (establishing    one-year    limitations   period     for    sexual
    
    harassment claims); id. § 250j (establishing three-year limitations
    
    period for minimum-wage law); id. § 279 (establishing one-year
    
    limitations period for overtime pay claim); id. § 688 (establishing
    
    one-year limitations period for certain benefit claims).              While it
    
    can be argued that these statutes evince the legislature's overall
    
    intent to assign specific temporal parameters to claims arising
    
    under Puerto Rico's labor laws, the Puerto Rico Supreme Court has
    
    repeatedly stated that the principal purpose behind statutes of
    
    limitations is to encourage the swift resolution of legal disputes.
    
    Cintrón v. Commonwealth, 
    127 P.R. Dec. 582
    , 588-90 (1990) [P.R.
    
    Offic. slip trans. at 3-5].      In a similar vein, it has lauded the
    
    benefits of shorter limitations periods.         See Olmo, 10 P.R. Offic.
    
    Trans.     at   973-74   (applying    one-year    limitations     period     in
    
    employment      discrimination   case    and    explaining     that    "it   is
    
    convenient that . . . actions for the violation of human rights be
    
    speedily filed and decided" because of the "vital public interest
    
    in that these actions be duly and rapidly aired in the furtherance
    
    of the collective well-being").         This viewpoint strongly suggests
    
    
                                         -14-
    that the court would not consider bargaining for a one-year
    
    limitations period in lieu of a three-year limitations period an
    
    affront to public policy.4
    
                When all is said and done, there appears to be no clear
    
    answer to the question of whether Puerto Rico law permits or
    
    prohibits contractual abbreviation of limitations periods where
    
    workers' statutory rights are implicated.          It therefore remains
    
    uncertain (and perforce ambiguous) whether the limitations period
    
    for the appellant's Law 80 and Law 115 claims can be validly
    
    shortened    by   an   arms-length    agreement   between   employer   and
    
    employee.   The resolution of this ambiguity is for the arbitrator,
    
    not the court.
    
                Although this disposes of the principal issue on appeal,
    
    a loose end remains.     The court below apparently assumed that the
    
    Hotel aspired to have the court case dismissed for want of subject
    
    matter jurisdiction. Escobar-Noble, No. 10-1121, slip op. at 1, 3-
    
    4.   If this were so, the Hotel might have run a risk of waiving any
    
    right to arbitrate the dispute.       See Tyco Int'l Ltd. v. Swartz (In
    
    re Tyco Int'l Ltd. Sec. Litig.), 
    422 F.3d 41
    , 44 & n.2 (1st Cir.
    
    2005) (explaining that delay in seeking to compel arbitration and
    
    substantially engaging the litigation machinery may give rise to
    
    
          4
          We note in passing that the legislature itself has exhibited
    no distaste for relatively short limitations periods in cases
    involving workers' rights.   See, e.g., P.R. Laws Ann. tit. 29,
    § 155m (fixing one-year limitations period for sexual harassment
    claims).
    
                                         -15-
    waiver of arbitral rights). The Hotel's motion, however, is to the
    
    contrary: the primary relief sought is to compel arbitration.
    
              We think that substance must trump form.   The essence of
    
    the district court's ruling was to grant the Hotel the bargained-
    
    for protection provided by the arbitration clause.        The court
    
    should, therefore, have entered an order compelling arbitration and
    
    either staying or dismissing the action.    See 9 U.S.C. §§ 3-4; see
    
    also Bercovitch v. Baldwin Sch., Inc., 
    133 F.3d 141
    , 156 & n.21
    
    (1st Cir. 1998).
    
              We need go no further. For the reasons elucidated above,
    
    we vacate the order appealed from and remand to the district court
    
    with instructions to enter an order compelling arbitration of the
    
    claims sub judice and, as the district court may elect, either
    
    staying or dismissing the pending case.    Each party shall bear his
    
    or its own costs on appeal.
    
    
    
    So Ordered.
    
    
    
    
                       — Concurring Opinion Follows —
    
    
    
    
                                    -16-
               LYNCH,   Chief   Judge   (Concurring).     I    agree    with   my
    
    colleagues that the district court did not err in enforcing the
    
    arbitration clause and declining to stay arbitration.             However, I
    
    reach this conclusion through other means.          The analysis in the
    
    majority opinion is based on arguments not made by plaintiff, not
    
    briefed by either party, and not necessary to resolve the case.            I
    
    also have considerable reservations about it.
    
               The argument plaintiff did make was that the arbitration
    
    agreement violated some Puerto Rico "public policy." This argument
    
    depends on its legal speculation that the Puerto Rico courts would
    
    someday hold that Article 1835 of the Puerto Rico Civil Code does
    
    not in employment matters permit arbitration agreements to shorten
    
    a statute of limitations, otherwise set by statute, which had not
    
    started to run.
    
               The district court rejected the argument for two succinct
    
    reasons. First, it held that under Puerto Rico law, the limitation
    
    period has been tolled, thus there was no time bar issue presented
    
    in   the   case.5    That   alone    justified   sending    the    case    to
    
    
         5
           Under Article 1873 of the Puerto Rico Civil Code, claims
    filed with the EEOC are extrajudicial claims that toll any
    applicable statutes of limitations.       See Rodríguez-García v.
    Municipality of Caguas, 
    354 F.3d 91
    , 99 (1st Cir. 2004) (citing
    Matos Molero v. Roche Prods., Inc., 13
    2 P.
    Dec. 29, 
    1993 WL 839826
     (1993)). The plaintiff filed two claims with the EEOC: the
    first on March 29, 2007, alleging sex and age discrimination, and
    the second on July 8, 2008, claiming that his supervisors engaged
    in a pattern of retaliation against him for filing a claim with the
    EEOC. The EEOC administrative proceedings continued until January
    8, 2010, when the EEOC issued to the plaintiff a Notice of Right to
    
                                        -17-
    arbitration. Plaintiff accepted and never contested, either in the
    
    district court or on appeal, the dates of the administrative
    
    filings on which the tolling ruling rests.       While there was no
    
    reason to doubt the facts on which the analysis rests, if there
    
    were, that also would have been reason to send the issue to
    
    arbitration.   See Kristian v. Comcast Corp., 
    446 F.3d 25
    , 44 (1st
    
    Cir. 2006).
    
              Secondly, the district court analyzed the pure issue of
    
    law of interpretation of Article 1835 under rules of interpretation
    
    adopted by the Puerto Rico courts and concluded that plaintiff's
    
    proffered construction was wrong.     Therefore, there was no public
    
    policy conflict, and so that possible challenge to arbitrability
    
    did not exist in this case.
    
              Especially given the lack of briefing6 and the complexity
    
    and evolving nature of the case law on the determination of issues
    
    of arbitrability, we ought say no more than needed.
    
    
    
    Sue. The one-year statute of limitations therefore began to run on
    January 8, 2010 and ended on January 8, 2011. The plaintiff filed
    his complaint in district court on February 17, 2010, well before
    the one-year statute of limitations would have expired.
         6
           No party has addressed what effect, if any, recent Supreme
    Court jurisprudence, including the Court's decision in AT&T
    Mobility LLC v. Concepcion, 
    131 S. Ct. 1740
     (2011), may have on
    public policy based objections to arbitration and the proper method
    of analysis. In any event, in my view, even under the doctrines of
    Kristian v. Comcast Corp., 
    446 F.3d 25
     (1st Cir. 2006), and
    Anderson v. Comcast, Corp., 
    500 F.3d 66
     (1st Cir. 2007), the
    district court correctly construed Puerto Rico law and held that no
    conflict existed, and so the inquiry would end at that point.
    
                                   -18-