Cox v. Ocean View Hotel Corp., 06-15903.

• Citation: 533 F.3d 1114
• Decision Date: 23 July 2008
• Docket Number: No. 06-15903.,06-15903.
• Parties: Thomas R. COX, Plaintiff-Appellee, v. OCEAN VIEW HOTEL CORPORATION, doing business as Radisson; John Does 1 TO 50; Jane Does 1 TO 50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

533 F.3d 1114

Thomas R. COX, Plaintiff-Appellee, v. OCEAN VIEW HOTEL CORPORATION, doing business as Radisson; John Does 1 TO 50; Jane Does 1 TO 50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50, Defendants-Appellants.

No. 06-15903.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 2, 2007.

Filed July 23, 2008.

Richard M. Rand, Torkildson, Katz, Fonseca, Moore & Hetherington, Honolulu, HI, for the defendants-appellants.

Stephen T. Hioki, Honolulu, HI, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawai`i; J. Michael Seabright, District Judge, Presiding. D.C. No. CV-05-0765-JMS/BMK.

Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN.

TASHIMA, Circuit Judge:

Ocean View Hotel Corporation ("Ocean View") and Thomas Cox executed an employment agreement containing a mandatory arbitration clause. When a dispute arose during the course of employment, Cox wrote a letter to Ocean View requesting arbitration, but Ocean View responded by telling Cox that it did not consider his claim ripe for arbitration. Following termination of his employment, Cox filed a complaint in the Circuit Court of Hawai'i. At that point, Ocean View decided that it wanted to arbitrate Cox's claim. After removing the action to federal court, Ocean View moved to compel arbitration. The district court denied its motion to compel arbitration and granted Cox's motion for partial summary judgment on the ground that Ocean View previously breached its agreement and waived its right to arbitrate disputes with Cox. Cox v. Ocean View Hotel Corp., 433 F.Supp.2d 1171 (D.Haw.2006) ("Cox I"). We have jurisdiction over the district court's denial of a motion to compel arbitration under 9 U.S.C. § 16(a)(1)(B). See Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir.2005).

We hold that the district court erred in granting partial summary judgment in favor of Cox based on his breach-of-agreement theory, because Cox did not properly initiate arbitration under the terms of his employment agreement. We also hold that the district court improperly granted summary judgment in Cox's favor on the issue of waiver.

BACKGROUND

On July 17, 2001, Cox and Ocean View signed a Letter of Agreement of Cox's employment as the Director of Finance for the Radisson Hotel Waikiki Prince Kuhio. In addition to setting forth Cox's job description and compensation, the letter included the following arbitration clause:

Any disputes between Employer and Employee arising out of the employment relationship shall be settled by arbitration in accordance with the then current Model Employment Arbitration Procedures of the American Arbitration Association (AAA) in lieu of jury trial and all other judicial dispute resolution methods. Employee fully understands and accepts this.... Any controversy except for Workmen's Compensation, involving the construction or application of the terms, provisions, or conditions of this Agreement or otherwise arising out of or related to this Agreement shall likewise be settled by arbitration. This agreement to arbitrate covers all employment disputes including but not limited to those involving tort, wrongful discharge, and discrimination claims. The cost of the arbitration shall be paid by the Company. The location of the arbitration shall be paid by the Company. The location of the arbitration shall be in the County in which the Company is located. This clause cannot be amended without written consent of both parties.

The letter also provided that "[t]he validity, interpretation, enforceability, and the performance of this Agreement shall be governed by and construed in accordance with the law of the State of California."

The employment relationship began to sour by October 2003, when Cox's supervisor Gary Jutz raised allegations that Cox was involved in a sexual relationship with one of his female subordinates. The events that gave rise to the current litigation began the following year, on October 5, 2004, when Jutz sent a memorandum to Cox demanding that Cox end his personal relationship with that subordinate. Although the letter did not describe the relationship as a romantic or sexual one, it stated that the perception of the alleged relationship was disrupting the performance of the department. Jutz ended the letter by warning Cox that "[f]ailure to change [his] behavior and maintain expected work responsibilities is a serious disciplinary matter" and that "[a] continued failure to work within the organization to resolve this situation" could "ultimately be deemed an act of insubordination and grounds for immediate termination of employment."

On October 11, 2004, Cox responded in a letter to Jutz's supervisor, Clyde Guinn, in which he laid out various arguments in support of his claim that he was a victim of sex discrimination. In the first line, Cox called the letter a "request to enter into arbitration." He also stated that assertions in Jutz's memo violated provisions in his employment handbook, by amounting to "sex discrimination, harassment, intimidation, interference with others in the performance of their jobs, threatening, making maliciously false and/or defamatory statements concerning an associate, and retaliation...." Cox's letter concluded by requesting that Guinn "provide the date and time of the arbitration hearing and any questions" to his attorney at a listed address.

Guinn responded on October 27, 2004, in a letter to Cox ("Guinn's letter"). In it, Guinn disagreed with Cox's characterization of Jutz's memo as accusing Cox of having a romantic or sexual relationship with that subordinate. He also disagreed with Cox's statements that Jutz was guilty of the violations asserted in Cox's letter. The essential portions of Guinn's letter are contained in the following two paragraphs:

In summary, therefore, I do not consider this a case for arbitration. Gary Jutz believes that your behavior, as a senior member of the hotel management team, is cause for censure. You do not accept this is the case. Clearly, if you continue to pursue the activities which Gary Jutz has complained of, you run the risk of being terminated. At that point, assuming you then consider it a wrongful termination, arbitration may be in order.

In the meantime, if you feel that Gary Jutz is "guilty of" the issues set out above, it may be that we should have an independent investigation by an outside attorney to establish whether or not there is in the Hotel a perception of a "relationship" existing between you and your direct subordinate ..., thereby justifying the complaints made by Mr. Jutz to you on numerous occasions.... At the conclusion of any such investigation I believe the position will be much clearer for all parties and we could then each decide on what course of action each wishes to adopt in the circumstances.

Jutz terminated Cox's employment on December 20, 2004. On February 10, 2005, Cox filed a Charge of Discrimination with the Hawai'i Civil Rights Commission, and on September 26, 2005, the Commission granted him the right to sue. Cox then filed a complaint in state court, which Ocean View removed to federal district court. In its answer, Ocean View requested "that the Complaint herein be stayed and that Plaintiff be required to submit all of his claims to final and binding arbitration. ..." Cox moved for partial summary judgment denying arbitration on the theory that Ocean View breached its agreement to engage in arbitration by refusing arbitration in Guinn's letter.

The district court ruled in favor of Cox, granting his motion for partial summary judgment and denying Ocean View's motion to compel arbitration. Cox I, 433 F.Supp.2d at 1181. The district court concluded that Cox properly initiated arbitration, id. at 1176; Ocean View refused to arbitrate, id. at 1177; and, as a result, Ocean View both breached its agreement to arbitrate, id. at 1178, and waived its right to enforce the agreement. Id. at 1180. This appeal followed.

STANDARD OF REVIEW

We review the denial of a motion to compel arbitration de novo. Brown v. Dillard's, Inc., 430 F.3d 1004, 1009 (9th Cir. 2005). Because denial of a motion to compel arbitration has the same effect as a grant of partial summary judgment denying arbitration, Cox's motion for partial summary judgment was the functional equivalent of an opposition to Ocean View's motion, and we will treat it as such. Cf. Craft v. Campbell Soup Co., 177 F.3d 1083, 1084 n. 4 (9th Cir.1999) (treating a motion for summary judgment as a de facto motion to compel arbitration), abrogated on other grounds by Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001).¹

ANALYSIS

I

Preliminarily, we must decide whether Cox's challenges to enforcing the arbitration clause are for the court, or for the arbitrator, to decide. We have previously determined that the federal law of arbitrability under the Federal Arbitration Act ("FAA") governs the allocation of authority between courts and arbitrators. Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1131 (9th Cir.2000). Because the FAA mandates that "district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed[,]" the FAA limits courts' involvement to "determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue." Id. at 1130 (citation and quotation marks omitted). Cox challenges the arbitration agreement only on the first ground. Therefore, we decide whether Cox's contract-based challenges to enforcement — breach of the agreement and waiver — are properly before the court.

Section 2 of the FAA creates a policy favoring enforcement of agreements to arbitrate. 9 U.S.C. § 2; Buckeye...