Marzette v. Anheuser–Busch, Inc.

• Decision Date: 24 May 2012
• Docket Number: No. ED 97160.,ED 97160.
• Citation: 371 S.W.3d 49
• Parties: Alisha MARZETTE, et al., Respondents, v. ANHEUSER–BUSCH, INC., et al., Appellants.
• Court: Missouri Court of Appeals

371 S.W.3d 49

Alisha MARZETTE, et al., Respondents,
v.
ANHEUSER–BUSCH, INC., et al., Appellants.

No. ED 97160.

Missouri Court of Appeals,
Eastern District,
Division Four.

April 17, 2012.
Motion for Rehearing and/or Transfer to
Supreme Court Denied May 24, 2012.

Application for Transfer Denied Aug. 14, 2012.

[371 S.W.3d 50]

Gerard T. Carmody, Kelley F. Farrell, Daniel P. O'Donnell, Saint Louis, MO, For Appellants.

Jerome J. Dobson, Gregory A. Rich, Saint Louis, MO, For Respondents.

OPINION

GLENN A. NORTON, Judge.

Anheuser–Busch, Inc. (“A–B”), Terry Kaelin, Rick Marberry,¹ and Nancy Lux ² (collectively “Defendants”) appeal the trial court's judgment denying their motion to compel arbitration in the employment discrimination suit filed by Alisha Marzette and Kathy Dunmire (collectively “Plaintiffs”). We affirm.

[371 S.W.3d 51]

I. BACKGROUND

Plaintiffs sought employment with A–B which required them to complete an employment application containing the following language:

I agree that if I become employed by [A–B], and unless a written contract provides to the contrary, any claim I may have against [A–B] will be subject to final and binding arbitration in accordance with [A–B's] dispute resolution program, and that arbitration will be the exclusive method I will have for final and binding resolution of any such claim.

...

I acknowledge that no promise regarding employment has been made to me. Plaintiffs each completed and signed the employment application and were subsequently hired by A–B to be security guards. Plaintiffs were paid an hourly wage and were members of a union during their employment with A–B.

A–B's Dispute Resolution Program (“DRP”) establishes a three-step process for resolving covered claims, consisting of local management review, mediation, and arbitration. Covered claims include claims that A–B may have against an employee relating to or arising out of the employment relationship and such claims an employee may have against A–B or any individual employee who is acting within the scope of his or her employment with A–B.

Plaintiffs filed a petition on March 3, 2010, and an amended petition on March 10, 2010, alleging Defendants discriminated against them in violation of the Missouri Human Rights Act. On February 7, 2011, Defendants filed a motion to compel arbitration, claiming Plaintiffs' employment applications constitute binding arbitration agreements in which Plaintiffs agreed to arbitrate any claims arising out of their employment with A–B in accordance with the DRP. The trial court denied Defendants' motion to compel arbitration finding that Plaintiffs never accepted an agreement to arbitrate, that the purported agreements are not supported by consideration, and that the DRP does not apply to Plaintiffs.³ Defendants appeal.

II. DISCUSSION A. Standard of Review

Whether a motion to compel arbitration should have been granted is a question of law that we review de novo. Katz v. Anheuser–Busch, Inc., 347 S.W.3d 533, 539 (Mo.App. E.D.2011).

B. Consideration

In their second point on appeal, Defendants claim the trial court erred in denying their motion to compel arbitration because the trial court erroneously found that the purported arbitration agreements are not supported by consideration.⁴

Nothing precludes parties from agreeing to arbitrate employment claims. Kunzie v. Jack–In–The–Box, Inc., 330 S.W.3d 476, 481 (Mo.App. E.D.2010).

[371 S.W.3d 52]

However, arbitration is a matter of contract, and parties will be compelled to arbitrate their claims only if the arbitration agreement satisfies the essential elements of a valid contract. Id. at 480–81. The essential elements of a valid contract are offer, acceptance, and bargained for consideration. Id. at 481. “Consideration generally consists either of a promise (to do or refrain from doing something) or the transfer or giving up of something of value to the other party.” Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429, 438 (Mo.App. W.D.2010) (internal quotation omitted). Here, Defendants claim that the alleged arbitration agreements are supported by three forms of consideration. We disagree.

1. A–B's Willingness to Consider Plaintiffs for Employment

First, Defendants claim that sufficient consideration exists in the form of A–B's willingness to consider Plaintiffs for employment. Although no Missouri case has discussed this issue, courts in other jurisdictions are split. Defendants urge us to follow the holding in Sheller by Sheller v. Frank's Nursery & Crafts, Inc., 957 F.Supp. 150 (N.D.Ill.1997). In Sheller, the United States District Court for the Northern District of Illinois found...