Harris v. Volt Mgmt. Corp.

• Decision Date: 18 May 2021
• Docket Number: No. ED 109162,ED 109162
• Citation: 625 S.W.3d 468
• Court: Missouri Court of Appeals
• Parties: Jacqueline HARRIS, Respondent, v. VOLT MANAGEMENT CORPORATION, et al., Appellant.

625 S.W.3d 468

Jacqueline HARRIS, Respondent,

v.VOLT MANAGEMENT CORPORATION, et al., Appellant.

No. ED 109162

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: May 18, 2021

FOR APPELLANT: Thomas E. Berry, Jr., Rachel S. Kim, Jackson Lewis, P.C., 222 South Central Avenue, Suite 900, St. Louis, Missouri 63105.

FOR RESPONDENT: Ryan M. Furniss, Joshua A. Rakoff, The Furniss Law Firm, LLC, 7750 Clayton Road, Suite 102, St. Louis, Missouri 63117, Joseph F. Yeckel, Law Office of Joseph F. Yeckel, LLC, 8182 Maryland Avenue, Suite 600, St. Louis, Missouri 63105.

FOR DEFENDANT: Robert L. Witcher, Bradley W. Tharpe, Sarah J. Kuehnel, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., 7700 Bonhomme Avenue, Suite 650, St. Louis, Missouri 63105.

Kelly C. Broniec, Judge

I. Introduction

Volt Management Corp., d/b/a Volt Workforce Solutions ("Volt"), and Volt Information Sciences, Inc. (collectively, "Appellants") appeal from the order of the Circuit Court of St. Louis County denying its motion to compel arbitration. Appellants raise two points on appeal. In their first point on appeal, Appellants argue that the circuit court erred in denying their motion to compel arbitration because the arbitration agreement contains a valid delegation provision mandating that the arbitrator has the exclusive authority to decide threshold issues of arbitrability. In their second point on appeal, Appellants alternatively argue that, even if the delegation provision does not apply, the circuit court still erred in denying their motion because a valid arbitration agreement exists between the parties.

We affirm.

II. Factual and Procedural Background

Volt provides staffing, outsourcing, and information technology infrastructure services to businesses worldwide. On or about April 18, 2017, Volt hired Jacqueline Harris ("Respondent") as an at-will employee. Volt provided Respondent with the Volt Workforce Solutions Employee Guide ("Employee Guide") sometime after hiring her. The Employee Guide provides employees with "general information about Volt's rules, policies, plans, procedures and practices concerning the terms and conditions" of their employment with Volt. The Employee Guide was prepared by Volt and specified that Volt reserved the unilateral right to change or rescind the current policies, practices, procedures, and benefits "at any time with reasonable notice where practicable at Volt's discretion."¹

Page 24 of the Employee Guide, entitled "Travel expense policy | Arbitration," contains information on Volt's travel expense policy, as well as the arbitration agreement at the center of this case. The Arbitration section, in its entirety, provides as follows:

Volt believes that alternative dispute resolution is the most efficient and mutually satisfactory means of resolving disputes between Volt and its employees.

Any dispute, controversy or claim which arises out of, involves, affects or relates in any way to your employment with Volt or a claimed breach of the employment relationship or the conditions of employment or the termination of employment, or in any way arising out of, involving, affecting or related to any assignment or termination of any assignment with any customer of Volt, and/or disputes, controversies or claims arising out of or related to the actions of Volt, Volt's employees or Volt's customer, or customer's employees under Federal, State and/or local laws shall be resolved by final and binding arbitration, pursuant to the Federal Arbitration Act, in accordance with the applicable rules of the American Arbitration Association (www.adr.org ) in the state where you are employed by Volt. The arbitrator may be entitled to award reasonable attorneys’ fees and costs to the prevailing party, in accordance with the law. The award shall be in writing, signed by the arbitrator, and shall provide the reasons for the award. Judgment upon the arbitrator's award may be filed in and enforced by any court having jurisdiction. This does not prevent you from filing a charge or claim with any governmental administrative agency as permitted by applicable law.

Your continued employment with Volt is your agreement to the above provision requiring arbitration of any and all employment/assignment disputes.

The following page of the Employee Guide, entitled "Acknowledgement," contains a brief, one-page form for the employee to acknowledge receipt of the Employee Guide. The Acknowledgement has lines for the employee to sign and print his or her name and date, as well as a line for a Volt representative to print his or her name. The form reads as follows:

I have received and reviewed my copy of the Volt Employee Guide and understand that:

• This guide is intended to provide me with information about Volt's general policies.

• I am employed at-will, which means that Volt and I each have the right to terminate the employment relationship at any time, with or without cause.

• I must follow the policies described in this Guide, including Volt's policies prohibiting workplace discrimination and harassment.

• A violation of any of the rules or policies of Volt or its clients may result in disciplinary action, up to the immediate termination of my assignment or employment by Volt.

• Volt has the right to change, interpret or cancel any of its rules, policies, benefits, procedures or practices at Volt's discretion, upon reasonable notice where practicable.

• Volt's policies may change from time to time; therefore, I agree to check with my Volt representative if I have a specific question about any Volt policy or practice.

Except as otherwise stated, I agree to arbitrate any and all disputes related to my employment or assignment(s) with Volt, as discussed in this Guide.

In her affidavit filed in connection with Respondent's motion in opposition to the motion to compel arbitration, Respondent attested that she received and completed a standalone Acknowledgement form on April 18, 2017, prior to receiving a full copy of the Employee Guide. However, no Volt representative printed his or her name on the same page. The record indicates that Respondent needed to return the signed Acknowledgement by April 20, 2017—before she received the Employee Guide, according to the affidavit.

On April 28, 2017, Volt assigned Respondent to work for bioMérieux, Inc., in Hazelwood, Missouri, on a temporary contract. While Respondent worked at bioMérieux, her coworkers began harassing her. The day after reporting the harassment to her supervisor, Respondent began receiving hostile and threatening text messages directed at her and her son. Respondent filed for orders of protection against two individuals she believes sent her the threatening messages on February 3, 2018. At least one of these individuals worked with Respondent. Once Respondent's supervisor learned about the pending orders, she informed Respondent that bioMérieux would terminate her employment if she did not cancel them. Respondent attempted to save her job by requesting a dismissal of the orders on February 14, 2018, but the St. Louis County Sheriff served the petitions later that day, leading to Respondent's firing.

Respondent filed suit against Appellants and bioMérieux on January 7, 2020, asserting claims for wrongful termination and retaliation against Appellants and bioMérieux, and alternative claims against Appellants and bioMérieux for violations of the Whistleblower Protection Act and civil conspiracy. She also brought an alternative claim for tortious interference with a business expectancy against bioMérieux alone. On the basis of the Arbitration section of the Employee Guide, Appellants then moved to compel arbitration of Respondent's claims on March 24, 2020 ("Motion to Compel"), which Respondent opposed. On August 18, 2020, the circuit court denied the Motion to Compel, highlighting a lack of consideration in the Employee Guide for the purported agreement to arbitrate.

This appeal follows.

III. Standard of Review

The denial of a motion to compel arbitration, absent any factual disputes between the parties, is reviewed de novo. Theroff v. Dollar Tree Stores, Inc. , 591 S.W.3d 432, 436 (Mo. banc 2020). The validity of a delegation provision—a separate agreement to arbitrate threshold questions of arbitrability—is a legal issue and similarly receives de novo review. Id. (citing State ex rel. Newberry v. Jackson , 575 S.W.3d 471, 474 (Mo. banc 2019) ).

However, when the parties to a purported arbitration agreement dispute whether an agreement exists in the first place, a question of fact arises, and "the circuit court shall conduct an evidentiary hearing to determine whether an arbitration agreement exists." Id. (citing § 435.355.1, RSMo (2016) ). Appellate review of such a determination is "analogous to that in a court-tried case." Id. "[I]n an appeal from a circuit court's order overruling a motion to compel arbitration when there is a dispute as to whether the arbitration agreement exists, the circuit court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Id. (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) ).

In this case, Respondent disputes whether an agreement to arbitrate exists in the first place, arguing that the deferential standard of review under Murphy v. Carron , 536 S.W.2d 30 (Mo. banc 1976), should apply to the circuit court's decision. However, Respondent's most relevant arguments pertain to the illusory nature of the purported promises to arbitrate, not the existence of the agreement in the first place; therefore, our resolution of both of Appellants’ points on appeal requires an interpretation of the terms of the Employee Guide containing the arbitration agreement, not review of any factual disputes.² "[A]rbitration is a matter of contract," Rent-A-Ctr., W., Inc. v. Jackson , 561 U.S. 63, 67, 130 S. Ct. 2772, 2776, 177 L. Ed. 2d 403 (2010), and "contract...