Campbell v. General Dynamics Government Systems

• Decision Date: 23 May 2005
• Docket Number: No. 04-1828.,04-1828.
• Parties: Roderick CAMPBELL, Plaintiff, Appellee, v. GENERAL DYNAMICS GOVERNMENT SYSTEMS CORPORATION and Richard T. Schnorbus, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

407 F.3d 546

Roderick CAMPBELL, Plaintiff, Appellee, v. GENERAL DYNAMICS GOVERNMENT SYSTEMS CORPORATION and Richard T. Schnorbus, Defendants, Appellants.

No. 04-1828.

United States Court of Appeals, First Circuit.

Heard January 4, 2005.

Decided May 23, 2005.

Arthur G. Telegen, with whom Claudia T. Centomini, Christopher J. Powell, and Foley Hoag LLP were on brief, for appellants.

Ann Elizabeth Reesman and McGuiness Norris & Williams, LLP on brief for Equal Employment Advisory Council, amicus curiae.

Martin J. Newhouse, Andrew R. Grainger, and Ben Robbins on brief for New England Legal Foundation, amicus curiae.

John N. Lewis, with whom Lawrence R. Mehl and John N. Lewis & Associates were on brief, for appellee.

Elizabeth E. Theran, Attorney, with whom Eric S. Dreiband, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, and Vincent J. Blackwood, Assistant General Counsel, were on brief, for Equal Employment Opportunity Commission, amicus curiae.

Before SELYA, LIPEZ and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

This appeal calls upon us to consider the enforceability of a mandatory arbitration agreement, contained in a dispute resolution policy linked to an e-mailed company-wide announcement, insofar as it applies to employment discrimination claims brought under the Americans with Disabilities Act (ADA). Our analysis turns on whether the employer provided minimally sufficient notice of the contractual nature of the e-mailed policy and of the concomitant waiver of an employee's right to access a judicial forum. Weighing all the attendant circumstances, we conclude that the notice was wanting and that, therefore, enforcement of the waiver would be inappropriate. Consequently, we uphold the district court's denial of the employer's motion to stay proceedings and compel the employee to submit his claim to arbitration.

I. BACKGROUND

For a period of nearly three years, plaintiff-appellee Roderick Campbell toiled as an at-will employee of General Dynamics Government Systems Corporation.¹ Starting on June 6, 2000, the plaintiff held a full-time, salaried position.

On April 30, 2001, at 1:54 p.m., General Dynamics sent an e-mail announcement to its entire work force regarding the implementation of a new dispute resolution policy (the Policy). The tag line of the e-mail indicated that the sender was "Broadcaster, NDHM [NDHM.Broadcaster@GD-NS.Com]" and its subject heading read "G. DeMuro—New Dispute Resolution Policy." The message consisted of a page-long letter from Gerard DeMuro, the president of General Dynamics. In the introductory paragraphs, DeMuro pointed out that General Dynamics was "a leader in a very competitive marketplace," that its success depended on its employees, and that it was committed to "open, forthright and honest communication," especially in the context of "addressing and resolving employee issues concerning legally protected rights and matters." Subsequent paragraphs explained that the company had developed the Policy as a means to handle legal issues arising out of workplace disputes. The e-mail then limned the Policy's four-step approach to dispute resolution, describing the last step as "[a]rbitration by a qualified and independent arbitrator."

The e-mail made no mention of whether (or how) the Policy would affect an employee's right to access a judicial forum with respect to workplace disputes. Moreover, it neither specified that the Policy contained an agreement to arbitrate that would become binding upon continued employment nor indicated whether the term "workplace disputes" included those giving rise to federal statutory claims. The text of the Policy was not part of the e-mail proper, although the company posted the Policy on its intranet (its internal corporate network).

The e-mail did state that the Policy would become effective on May 1, 2001 (the day following its transmission). It also urged recipients to "review the enclosed materials carefully, as the [Policy] is an essential element of your employment relationship." Those with questions were invited to contact the company's vice-president of human resources.

The phrase "enclosed materials" was an apparent reference to two embedded links located at the bottom of the e-mail. Each link provided access to a document that the recipient could view by moving a cursor over the link and clicking on it. The first link was labeled "Brochure: http://csconnect.gd-cs.com/hr/dispute— resolution.htm"; clicking on it would have provided access to a two-page brochure that detailed how the Policy worked. Upon reading the second page of that brochure, the recipient would have learned that company employees who "continue [their] current employment after the effective date of the [Policy's] adoption" would be "covered" by its terms and that the Policy would encompass, among other things, "[e]mployment discrimination and harassment claims, based on, for example, age, race, sex, religion, national origin, veteran status, citizenship, disability or other characteristics protected by law." In a shaded box in the lower right-hand corner of that page, the recipient would have found the following statement:

The Company has adopted this four-step policy as the exclusive means of resolving workplace disputes for legally protected rights. If an employee files a lawsuit against the Company, the Company will ask the court to dismiss the lawsuit and refer it to the [Policy].

Clicking on the second link, entitled "Handbook: http://csconnect.gd-cs.com/hr/DRP—Handbook—2.doc," would have provided access to a dispute resolution handbook, which contained the full text of the Policy (designated as "Human Resources Policy 402"), a flow chart illustrating how the Policy worked, forms for filing claims at each of the four levels, and a compendium of questions that the company thought might arise.

No part of the e-mail communication required a response acknowledging receipt of the Policy or signifying that a recipient had read and understood its terms. Although General Dynamics set up a tracking log to monitor whether each of its employees opened the e-mail—the record indicates that the plaintiff opened the e-mail two minutes after it was sent—it did not take any steps to record whether its employees clicked on the embedded links to peruse either the brochure or the handbook. Moreover, General Dynamics has not supplied any evidence to contradict the plaintiff's claim that he never read or saw the brochure, the handbook, or the Policy prior to his termination.

II. TRAVEL OF THE CASE

On December 30, 2002, General Dynamics terminated the plaintiff's employment on account of persistent absenteeism and tardiness. Alleging that these infractions (and, hence, his dismissal) stemmed from a medical condition known as sleep apnea that General Dynamics should have accommodated, the plaintiff filed an administrative complaint with the proper agency charging discrimination on the basis of disability. He later withdrew that complaint and sued General Dynamics in a Massachusetts state court under the ADA, 42 U.S.C. §§ 12101-12213, and Mass. Gen. Laws ch. 151B, § 4.²

General Dynamics removed the action to the federal district court. See 28 U.S.C. §§ 1331, 1367, 1441. It thereupon filed an answer in which it asserted, among other things, that the court could not try the plaintiff's claims because they were subject to resolution under the Policy. To give teeth to this defense, the company invoked the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, and moved to stay the court proceedings and compel the plaintiff to submit his claims to arbitration. See id. §§ 3, 4. In an accompanying memorandum, it contended that the Policy forged an enforceable agreement to arbitrate all employment-related claims and maintained that the Policy's four-step framework was the exclusive means for resolution of the plaintiff's claims.

The plaintiff opposed that motion, moved to strike the company's affirmative defense,³ and asked the court to impose sanctions. His opposition posited (i) that an e-mail communication is not a writing and, therefore, the Policy did not satisfy the "written provision" requirement of 9 U.S.C. § 2 and (ii) that, in all events, the Policy was unenforceable because the company's e-mail communication had failed to give the plaintiff adequate notice that the Policy was intended to form a binding agreement to arbitrate.

In response, General Dynamics submitted the affidavit of the plaintiff's supervisor, John A. Sawyer. Sawyer vouchsafed that the plaintiff performed most of his work on a computer and was accustomed to sending and receiving e-mail communications. He also averred that he periodically reminded the plaintiff that he was responsible for knowing, understanding, and complying with company policies, and that he could access those policies on the "Connections" section of the company's intranet. In a companion affidavit, the company's vice-president of human resources, Anne R. Harris, related that DeMuro typically sent three to five e-mails per year to the work force as a whole and that those e-mails generally were of company-wide significance. Harris opined that employees would consider correspondence from DeMuro to be important and would review those materials thoroughly.

Not to be outdone, the plaintiff authored and submitted two counter-affidavits. The first acknowledged his daily use of e-mail via the company's intranet, but observed that in an average day he was inundated with between ten and one hundred e-mails. He made the further point that no documents in his personnel file in any way referred to the Policy. The second affidavit emphasized that the plaintiff was never informed that General Dynamics might alter the terms of his employment by e-mail communications, that broadcast e-mails should be regarded as significant, or that he was required to read such e-mails to keep abreast of the terms and conditions of his...