Seawright v. American General Financial Services

• Decision Date: 13 November 2007
• Docket Number: No. 07-5091.,07-5091.
• Citation: 507 F.3d 967
• Parties: Lisa SEAWRIGHT, Plaintiff-Appellee, v. AMERICAN GENERAL FINANCIAL SERVICES, INC., American General Finance, Inc., and American International Group, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

507 F.3d 967

Lisa SEAWRIGHT, Plaintiff-Appellee, v.AMERICAN GENERAL FINANCIAL SERVICES, INC., American General Finance, Inc., and American International Group, Inc., Defendants-Appellants.

No. 07-5091.

United States Court of Appeals, Sixth Circuit.

Argued: September 11, 2007.

Decided and Filed: November 13, 2007.

ARGUED:

Jody A. Ballmer, Littler Mendelson, Chicago, Illinois, for Appellant.David B. Stevenson, Norwood, Howard & Atchley, Memphis, Tennessee, for Appellee.

ON BRIEF:

Jody A. Ballmer, Marissa Ross, Littler Mendelson, Chicago, Illinois, for Appellant.David B. Stevenson, Norwood, Howard & Atchley, Memphis, Tennessee, for Appellee.

Before BOGGS, Chief Judge; and MARTIN and SUTTON, Circuit Judges.

BOGGS, C.J., delivered the opinion of the court, in which SUTTON, J., joined.MARTIN, J.(pp. 979-81), delivered a separate dissenting opinion.

OPINION

BOGGS, Chief Judge.

Lisa Seawright worked for American General Financial Services ("AGF") from November 1978 until April 2005.¹AGF terminated Seawright's employment in April 2005.In response, Seawright filed suit in the United States District Court for the Western District of Tennessee, alleging that AGF discharged her in violation of Tennessee anti-discrimination law and the Family and Medical Leave Act,29 U.S.C. § 2601 et seq.AGF moved to compel arbitration, proffering an arbitration agreement to which Seawright had previously agreed.Seawright denies that she agreed to arbitrate.At issue is whether an agreement exists between AGF and Seawright, and if so, whether the agreement is enforceable.The district court found that no enforceable agreement existed.We hold that Seawright's knowing continuation of employment after the effective date of the arbitration program constituted acceptance of a valid and enforceable contract to arbitrate.We therefore reverse the district court's denial of AGF's motion to compel arbitration.

I

In April 1999, AGF began notifying its employees that it would be implementing an Employee Dispute Resolution ("EDR") Program.It introduced the EDR Program through a series of announcements and informational meetings.The company first informed employees about the EDR Program on April 6, 1999 in a "Home Office Bulletin," a publication circulated to all company offices, including the office where Seawright was a branch manager.Around the same time, AGF also mailed letters to its employees informing them that the EDR Program would become effective June 1, 1999.Included with the letter was an informational brochure, which stated:

The AGF Employee Dispute Resolution Program is the sole means of resolving employment-related disputes between you and the company or you and another employee, including disputes for legally protected rights such as freedom from discrimination, retaliation, or harassment, unless otherwise prohibited by law.

You are still free to consult or file a complaint with any appropriate state or federal agency, such as the EEOC, regarding your legally protected rights.However, the Program must be used instead of a trial if you are not satisfied with the results of the government agency process, unless otherwise prohibited by law.

Seeking, accepting, or continuing employment with AGF means that you agree to resolve employment related claims against the company or another employee through this process instead of through the court system.

AGF then held group informational meetings explaining the program.A pamphlet distributed to the employees during the informational meeting repeated the information above.Seawright signed an attendance sheet acknowledging that she had attended an informational session and received a copy of the AGF Employment Dispute Resolution Pamphlet.The EDR Program went into effect on June 1, 1999.Seawright remained an AGF employee.

Two years after the program went into effect, in June 2001, AGF mailed its employees a letter that reminded them that the EDR Program was still in effect and explained how to locate additional information on the program on the company's intranet website.The letter also included a brochure summarizing the EDR Program.The brochure was similar to the other two brochures that had been distributed by mail and at the informational meetings.It also included the same three paragraphs regarding the binding nature of the arbitration agreement and reiterating that, "[s]eeking, accepting, or continuing employment with AGF means that you agree to resolve employment related claims against the company or another employee through this process instead of through the court system."

Seawright continued her employment with AGF until AGF terminated her on April 26, 2005.She filed suit against AGF shortly thereafter and AGF responded with a motion to compel arbitration.In Seawright's answer to the motion to compel arbitration, she acknowledged the above facts but argued that (1)she did not assent to the EDR Program and that there was no bargained-for exchange; (2)she did not enter into a written agreement as required by the Federal Arbitration Act, ("FAA"), 9 U.S.C. § 1 et seq.; and (3) in the alternative, the arbitration agreement is void because it is a contract of adhesion or unconscionable.The district court agreed with Seawright's first argument, holding that "merely receiving information and acknowledging the EDR program is not tantamount to assent.There was no bargained for exchange, and [Seawright] had no ability to affect the terms of the company's policy."Seawright v. Amer. Gen. Fin. Serv.,No. 06-2339 DV, 4 (W.D. Tenn. Dec 22, 2006)(order denying motion to compel arbitration and stay proceedings).It thus denied the order to compel arbitration on the basis that there was no valid and enforceable agreement.Ibid.AGF now appeals.

II

We review de novo a district court's decision whether to compel arbitration pursuant to the FAA.Masco Corp. v. Zurich Am. Ins. Co.,382 F.3d 624, 627(6th Cir.2004);Burden v. Check Into Cash of Kentucky, LLC,267 F.3d 483, 487(6th Cir.2001);Morrison v. Circuit City Stores,317 F.3d 646, 675(6th Cir.2003)(en banc).

III

The FAA provides:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2(2006).This section of the FAA "embodies the national policy favoring arbitration and places arbitration agreements on equal footing with all other contracts."Buckeye Check Cashing, Inc. v. Cardegna,546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038(2006).While the courts must respect "the liberal federal policy favoring arbitration agreements,"Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp.,460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765(1983), arbitration is a "matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit."AT & T Techs. v. Communications Workers of Am.,475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648(1986)(citingUnited Steelworkers of America v. Warrior & Gulf Navigation Co.,363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409(1960)andUnited Steelworkers of America v. American Mfg. Co.,363 U.S. 564, 570, 80 S.Ct. 1363, 4 L.Ed.2d 1432(1960)).Thus, the underlying question of whether the parties agreed to arbitrate is to be "decided by the court, not the arbitrator."AT & T Techs. v. Communications Workers of Am.,475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648(1986).

Because arbitration agreements are fundamentally contracts, we review the enforceability of an arbitration agreement according to the applicable state law of contract formation.First Options of Chicago, Inc. v. Kaplan,514 U.S. 938, 943-44, 115 S.Ct. 1920, 131 L.Ed.2d 985(1995).Any arguments based on the applicability of the FAA to the agreement at issue are, of course, evaluated in accordance with federal case law.Seawright makes four arguments based on state contract law and a fifth argument based on the FAA.Seawright's state contract law arguments are: (1) there was no valid arbitration agreement because she did not actually assent to the EDR Program; (2) there was no valid arbitration agreement because there was no consideration; (3) even if there had been assent and consideration, the arbitration agreement is unenforceable because it is illusory; and (4) alternatively, the arbitration agreement is unenforceable because it is an unconscionable contract of adhesion.Seawright's argument under the FAA is that she did not enter into a written agreement as required by the Federal Arbitration Act.We begin by addressing Seawright's arguments based on state contract law.

A.Assent

The issue at hand is whether Seawright's continued employment with AGF constituted assent."Tennessee law recognizes the validity of unilateral contracts, in which acceptance is indicated by action under the contract."Fisher v. GE Med. Sys.,276 F.Supp.2d 891, 895(M.D.Tenn.2003).The written materials accompanying the arbitration agreement clearly stated that continued employment after the effective date of the EDR Program would constitute the employee's acceptance of the agreement to arbitrate.Thus, under Tennessee law, Seawright expressed a valid assent when she continued to work for AGF.

The district court acknowledged that "[g]enerally, continued employment constitutes acceptance of an employer's arbitration policy."Seawright,No. 06-2339 DVat 3.Nevertheless, relying exclusively on an unpublished case, Lee v. Red Lobster Inns of America,92 Fed.Appx. 158(6th Cir.2004), the district court...