Berkley v. Dillard's Inc., 05-3523.

• Decision Date: 14 June 2006
• Docket Number: No. 05-3523.,05-3523.
• Citation: 450 F.3d 775
• Parties: Ora J. BERKLEY, Appellant, v. DILLARD'S INC. and Kim Georgie, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 775

450 F.3d 775

Ora J. BERKLEY, Appellant, v. DILLARD'S INC. and Kim Georgie, Appellees.

No. 05-3523.

United States Court of Appeals, Eighth Circuit.

Submitted: April 21, 2006.

Filed: June 14, 2006.

Debbie S. Champion, argued, St. Louis, MO, for appellant.

Michael P. Burke, argued, St. Louis, MO (Veronica A. Gioia, St. Louis, on the brief), for appellee.

Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Ora J. Berkley sued her former employer and a supervisor for racial harassment, intentional infliction of emotional distress, negligent infliction of mental distress, and retaliation. The district court¹ compelled arbitration. After the arbitration, it dismissed Berkley's case with prejudice. Berkley appeals. This court affirms.

Berkley, an African American, began working in August 2000 for Dillard's, Inc. According to her, in 2001 some coworkers—including supervisor Kim Georgie— began to harass her. On May 23, 2001, Berkley filed complaints against Dillard's with the EEOC and the Missouri Commission on Human Rights ("MCHR"), alleging racial harassment.

On June 16, 2001, Dillard's implemented an arbitration program. The same day, Dillard's distributed two documents describing the program to Berkley and other employees. The "Rules of Arbitration" document says: "Arbitration applies to any claim that could be made in a court of law," including "harassment on the basis of race" and "[r]etaliation for ... exercising your protected rights under any statute." The second document, "The Dillard's Fairness in Action Program," summarizes the policy, specifying how an employee can accept it. That document says that by "accepting or continuing employment with Dillard's, you have agreed to accept the Program known as the Agreement to Arbitrate Certain Claims." The document also reiterates that the arbitration program covers racial harassment and retaliation claims.

A few days later, Dillard's asked its employees to sign an "Acknowledgment of Receipt of Rules for Arbitration." That document states: "Employees are deemed to have agreed to the provisions of the Rules by virtue of accepting employment with the Company and/or continuing employment therewith." The document has a signature line where the employee can acknowledge receipt of the rules of arbitration and the agreement to arbitrate certain claims. Berkley refused to sign. Dillard's advised her that refusing to sign had no effect on the applicability of the arbitration agreement, because it applied automatically to all employees who continued their employment.

After receiving notice of right to sue from the EEOC and the MCHR, Berkley sued in the district court on February 19, 2002. On March 8, Dillard's fired her. Berkley then amended the complaint to add a claim of retaliation.

Dillard's moved to compel arbitration and stay the district court proceedings. The court granted the motion, finding that Berkley's claims were covered by the arbitration program. Following arbitration, the court dismissed with prejudice each of Berkley's claims.

I.

This court reviews de novo a district court's order compelling arbitration, when the decision is based on contract interpretation. See Lyster v. Ryan's Family Steak Houses, Inc., 239 F.3d 943, 945 (8th Cir.2001) (citing PCS Nitrogen Fertilizer, L.P. v. Christy Refractories, L.L.C., 225 F.3d 974, 978 (8th Cir.2000)). The district court's factual findings are reviewed for clear error. Id. "A dispute must be submitted to arbitration if there is a valid agreement to arbitrate and the dispute falls within the scope of that agreement." Id. (citations omitted).

Berkley argues that the district court erred in enforcing the arbitration agreement. In particular, Berkley asserts that the district court "had no basis for the conclusion that the Dillard's arbitration program was part of a larger offer of a unilateral contract of at-will employment that could be accepted by Ms. Berkley's continuing her preexisting employment with Dillard's." Berkley relies on Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661 (Mo. banc 1988), where the Missouri Supreme Court found that an employer's distribution of an employee handbook describing company policies was not a contractual offer to the employees.

Berkley's reliance on Johnson is misplaced. There, the court emphasized that the handbook was "merely an informational statement" providing "the rules were subject to change at any time." Id. at 662. In contrast, "The Dillard's Fairness in Action Program" document is contractual, not merely informational. It states that, by "accepting or continuing employment with Dillard's, you have agreed to accept the Program known as the Agreement to Arbitrate Certain Claims." Unlike the handbook in Johnson, the Dillard's document is a valid offer. See Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 835 (8th Cir.1997) (employee-employer arbitration agreement is valid where it "uses contractual terms such as `I understand,' `I agree,' I `agree to abide by and accept,' `condition of employment,' `final decision,' and `ultimate...