Hergenreder v. Bickford Senior Living Group Llc

• Decision Date: 30 August 2011
• Docket Number: No. 10–1474.,10–1474.
• Citation: 25 A.D. Cases 97,656 F.3d 411
• Parties: Maureen HERGENREDER, Plaintiff–Appellant,v.BICKFORD SENIOR LIVING GROUP, LLC, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

656 F.3d 411

25 A.D. Cases 97

Maureen HERGENREDER, Plaintiff–Appellant,

v.BICKFORD SENIOR LIVING GROUP, LLC, Defendant–Appellee.

No. 10–1474.

United States Court of Appeals, Sixth Circuit.

Argued: June 8, 2011.Decided and Filed: Aug. 30, 2011.

ARGUED: Mandel I. Allweil, Hurlburt, Tsiros & Allweil, P.C., Saginaw, Michigan, for Appellant. Jeffrey D. Hanslick, Husch Blackwell Sanders LLP, Kansas City, Missouri, for Appellee. ON BRIEF: Mandel I. Allweil, Hurlburt, Tsiros & Allweil, P.C., Saginaw, Michigan, for Appellant. Shaun C. Southworth, Husch Blackwell Sanders LLP, Kansas City, Missouri, for Appellee.Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Maureen Hergenreder began working as a nurse for Bickford Senior Living Group in early November 2006. She filed this suit after she was fired from her job with Bickford in January 2007, alleging that her firing was in violation of the Americans with Disabilities Act. In response, Bickford filed a motion to stay the proceedings and compel arbitration. The district court granted this motion and dismissed the case, finding that Hergenreder assented to a valid agreement to arbitrate the claims she has brought in this suit. Hergenreder now appeals.

Because there is no indication that Hergenreder was notified of the existence of the arbitration agreement, much less that she manifested an intent to agree to its terms, we REVERSE the judgment of the district court and we REMAND this case for further proceedings consistent with this opinion.

I. BACKGROUND INFORMATION

Maureen Hergenreder was hired as a nurse for the Bickford Senior Living Group in October 2006. A short time later, she was diagnosed with cancer and took a leave of absence for treatment. The treatment was apparently successful and Hergenreder was prepared to return to work by late December 2006, but she was told not to return by her supervisor because the facility at which Hergenreder was to work had not yet opened and a backup nurse was not needed. On January 12, 2007, Hergenreder was told by her supervisor over the phone that she was fired, R. 1 at 5 (Complaint), and on January 25, 2007, Hergenreder received a letter from her supervisor stating that “Your RN status at Bickford Cottage of Saginaw was terminated on December 12, 2006 due to your surgery and recuperation time. Since you were a new salaried employee and did not have any accrued PTO time or FMLA, it is HR policy to terminate you with rehire status.” Hergenreder Br. at Ex. 10. Believing that her firing was in violation of the Americans with Disabilities Act, Hergenreder sued Bickford in August 2009. In response, Bickford filed a motion to stay the proceedings and compel arbitration. The district court granted this motion and dismissed the case, finding that Hergenreder assented to a valid agreement to arbitrate the claims she has brought in this lawsuit. Hergenreder now appeals.

When Hergenreder began her employment, she signed numerous documents, including her employment application, tax and insurance forms, a background-check- consent form, a form agreeing to notify Bickford of any subsequent criminal convictions, and a form acknowledging that she received notice of Bickford's worker's compensation procedure. It is undisputed, however, that none of these documents mentioned anything about arbitration. See Hergenreder Br. at Ex. 7 (Aff. of Maureen Hergenreder at ¶¶ 21–22); see generally Bickford Br. Hergenreder also signed an acknowledgment that she had read and understood the terms of Bickford's Employee Handbook.

The Employee Handbook—and whether it does or does not inform Hergenreder of Bickford's arbitration policy—plays the central role in this appeal. The Handbook is divided into sixteen different sections, covering a wide variety of topics relevant to Hergenreder's employment. It begins by stating in Section I that “[i]t will acquaint you with the policies and procedures that apply to your employment,” but also that “[t]his handbook is intended as a summary only and is not a contract between Bickford Cottage and its employees. A full copy of Bickford Cottage's Personnel Policies is located in the Director's office and may be viewed by any employee.” Hergenreder Br. at Ex. 11 at 4 (Employee Handbook) (hereinafter “Handbook”). It ends by stating, in Section XVI, that:

This handbook has been provided to you for the purpose of acquainting you with the personnel policies and procedures, responsibilities of Bickford Cottage. It does not constitute a contract of employment in whole or in part. Bickford Cottage may add to, change or delete any of the contents at any time with no notice.

Handbook at 28. Based on these statements, the parties agree that the terms of the Handbook are not part of a contract.

What the parties do not agree on, however, is the significance of one sentence within Section XII, which is entitled “Employee Actions,” and which provides, in full, as follows: “ Dispute Resolution Process Please refer to the Eby Companies Dispute Resolution Procedure (DRP) for details.” Handbook at 19 (emphasis in original). Review of the Eby Companies Dispute Resolution Procedure (“DRP”) makes clear in both an eleven-page summary of the procedure as well as the nine-page procedure itself that all employees are required to submit all covered claims against Bickford to binding arbitration.¹ The procedure provides that:

This policy becomes effective on June 1, 2004 for all persons employed by any Eby Company[, one of which is Bickford]. Any person who applies for a job with an Eby Company on or after June 1, 2004 or who continues to be employed by an Eby Company on or after June 1, 2004, agrees, as a condition of employment, that all covered claims are subject to the DRP and to accept an arbitrator's (or arbitrators') award as the final, binding, and exclusive determination of all covered claims.Bickford Br. at Ex. 1 (DRP at 8). The summary contains a materially indistinguishable statement. Id. at Ex. 1 (DRP Summ. at 2).

At the end of the DRP is a form entitled “Agreement to Dispute Resolution Procedure,” which provides, among other things, that the signers:

understand that The Eby Group ... has adopted a Dispute Resolution Procedure (“DRP”) as an employee benefit for the resolution of employment disputes....

By continuing my employment with The Eby Group or by accepting an offer of employment with The Eby Group or by submitting an application for employment to The Eby Group, and in consideration thereof, I agree to submit all covered claims to The Eby Group's DRP and to accept the outcome of the DRP including an arbitrator's (or arbitrators') award....

THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION THAT MAY BE ENFORCED BY THE PARTIES.

Id. at Ex. 1 (DRP at 9). In the Frequently Asked Questions portion of the DRP Summary, Bickford answers the question, “Why am I being asked to sign a written agreement to the Dispute Resolution Procedure?” with the following:

While your employment and/or continued employment is all that is required for you to be bound to resolve your employment disputes with The Eby Group under the DRP, the Company is committed to this new program and is requesting every employee to commit to it in writing on a form prepared by the Company which signed form will be placed in your personnel file.

Id. at Ex. 1 (DRP Summ. at 5). Although the text of this answer indicates that a “commit[ment]” is made by the parties, this commitment must be purely a symbolic one, given that a legal commitment is made only by entering or continuing employment with Bickford. The implicit message in this answer, then, seems to be the important one: Bickford asks employees to sign the agreement so that there will be objective evidence of the employee's agreement to submit all covered claims to binding arbitration, even though the employee's signature is not necessary to enter into the agreement. The wisdom behind an employer's desire to have objective evidence of an employee's assent to arbitration is clear: an acknowledgment form, signed after an employee has been given a copy of an arbitration agreement, can serve as ironclad proof that an employee was reasonably notified of an arbitration agreement. Put another way, the acknowledgment form decreases the possibility that Bickford might have an employee who has never seen or signed any arbitration documents.

Hergenreder swears that she has “never seen or signed any of these documents,” referring to the DRP. Hergenreder Aff. at ¶ 23. Moreover, she avers, “I have never, to my knowledge, signed any Agreement with the Defendant that gave up my right to a jury trial and that compelled me to file for Arbitration for any type of wrongful discharge claim. No one ever even raised the issue of Arbitration in all of the forms that I signed as part of the hiring process.” Id. at ¶¶ 21–22. Bickford has not provided a copy of the DRP with an acknowledgment form signed by Hergenreder. Instead, it has provided an affidavit from its Vice President of Employee Relations, Jerry Knight, who states that the DRP “is distributed to employees.” R. 13–4 at 2 (Knight Aff.).

In response to Bickford's Motion to Compel Arbitration, the district court held that Hergenreder was bound by the DRP and therefore was required to submit her claims in this suit to binding arbitration. The district court therefore dismissed this suit. Hergenreder filed a timely notice of appeal.

II. ANALYSIS

This court reviews de novo a district court's decision on whether to compel arbitration pursuant to the Federal Arbitration Act. Mazera v. Varsity Ford Mgmt. Servs., LLC, 565 F.3d 997, 1001 (6th Cir.2009). “The court must determine whether the dispute is arbitrable, meaning that a valid agreement to arbitrate exists between the parties and that the specific dispute falls within the substantive scope of the agreement.” Id. (internal quotation marks omitted).

Hergenreder makes...