Thompson v. Bar-S Foods Co., No. 101,973.

• Court: Supreme Court of Oklahoma
• Writing for the Court: Watt
• Citation: 2007 OK 75,174 P.3d 567
• Parties: Irene Stephanie THOMPSON, Plaintiff/Appellee, v. BAR-S FOODS COMPANY, a Delaware corporation, Defendant/Appellant.
• Docket Number: No. 101,973.
• Decision Date: 02 October 2007

174 P.3d 567 2007 OK 75 Irene Stephanie THOMPSON, Plaintiff/Appellee,
v.
BAR-S FOODS COMPANY, a Delaware corporation, Defendant/Appellant. No. 101,973. Supreme Court of Oklahoma. October 2, 2007. Rehearing Denied December 13, 2007.

[174 P.3d 569]

ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II

¶ 0 Plaintiff/Appellee's employment with Defendant/Appellant was terminated after she filed a claim under the Workers' Compensation Act for work-related injuries. She filed an action in the state district court for retaliatory discharge pursuant to 85 O.S.2001 §§ 5-7. Appellant filed a motion to compel arbitration which the trial court denied. Defendant filed an appeal and the Court of Civil Appeals reversed the case and remanded it for further proceedings. This Court granted Appellee's petition for writ of certiorari.

OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; ORDER OF THE TRIAL COURT IS AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

Taylor K. Hammett, Midwest City, OK, for Plaintiff/Appellee.

Gayle Barrett, Adam W. Childers, Oklahoma City, OK, for Defendant/Appellant.

OPINION

WATT, J.

¶ 1 In this case we decide whether Plaintiff/Appellee Irene Stephanie Thompson is required to submit her state law retaliatory discharge claim to arbitration pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16. Her claim originated in state district court pursuant to the Oklahoma Workers' Compensation Act (WCA), specifically the provisions at 85 O.S.2001 § 5¹ (since amended). Under the facts of this case, we hold Appellee Thompson is not required to submit her claim to arbitration. The opinion of the Court of Civil Appeals (COCA) is vacated. The order of the trial court is affirmed but remanded for further proceedings in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2 When Thompson applied for employment with Defendant/Appellant Bar-S Foods Company, she signed an application which she dated on March 14, 2000. The application requested general information such as previous experience, education, special skills and qualifications, possible criminal background and references. Below the space provided for the name of her emergency

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contact, which was contained within a box, was the following: APPLICANTS ARE REQUIRED TO READ THE FOLLOWING STATEMENTS. Below that heading, in type which is noticeably smaller than the rest of the application, are eight paragraphs followed by spaces for her signature and the date. The material contained within that portion of the application includes a broad range of subjects, including a certification the information is true and correct, the understanding that an investigative report may be made based on interviews with third parties, the release of records, and the agreement to provide acceptable proof of her birth within thirty days of the initial date of employment.

¶ 3 In addition to the subjects covered above, the application² required her consent to provide blood and urine samples for analysis when requested and to abide by the terms of all Bar-S rules, guidelines, policies, procedures, and Employee Handbook provisions, both current and as modified in the future. The application also contained requirements to utilize the Bar-S "Problem Resolution Process" (PRP) to resolve grievances and disputes "related to my employment or termination of my employment," to submit unresolved disputes to arbitration as provided in the PRP, and to waive her right to a jury trial of claims arising from her employment or termination of her employment. Near the signature line, the application also provides:

I understand that no offer of employment by any agent of Bar-S Foods Co. shall be considered valid until after completion of the entire application process including, but not limited to, an interview, and testing for alcohol, controlled substances, illegal drugs, and background checks.

I have read, understand, and by my signature consent to these statements.

¶ 4 When hired on April 19, 2000, Thompson signed a document which acknowledges that a copy of the Problem Resolution Process (PRP) is available on the bulletin board and in the personnel office. The signed document provides:

On this date I have received a copy of the Bar-S Foods Co. hourly employee handbook. I will read it carefully and if I have any questions, I will discuss them with my supervisor or or (sic) the Personnel department.

Management has prepared the hourly employee handbook in order that I will be aware of Bar-S Foods Co. policies and procedures. Any further clarification and/or interpretation of the handbook is at the discretion of the management of Bar-S Foods Co.

I understand a copy of the Problem Resolution Process, the Attendance policy and the Disciplinary guidelines (sic) are posted on the plant bulletin board for my review,

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or I may request a copy from the Personnel office.

I understand that all of the afore mentioned documents are subject to change by Bar-S from time to time without notice. I understand that violations of the rules of conduct will result in disciplinary action. Statements made regarding insurance are subject to the provisions and terms of the master policy or policies. Please refer to the plan booklet or certificates for specific details. [emphasis added].

 Employee signature: s/ Stephanie Thompson
                 Date: 4-19-00
                

¶ 5 Approximately two years after she was hired, Thompson filed a workers' compensation claim for injuries she received which arose out of her employment with Bar-S. While receiving benefits for temporary total disability, she was advised she was being placed on a 90-day layoff. At the end of that period, she was advised her employment was terminated. Thompson sued Bar-S pursuant to 85 O.S.2001 § 5 on December 1, 2004, alleging her employment was wrongfully terminated because she filed a workers' compensation claim.

¶ 6 Bar-S moved to dismiss, or in the alternative, to compel arbitration and to stay the proceedings. Bar-S claimed the parties had agreed to resolve all claims through arbitration. Thompson's affidavit in support of her response to Bar-S's motion to dismiss contains the statement that neither at the time she signed her application nor at the time she was hired did she see a copy of the PRP, nor did she sign it. The trial court overruled Bar-S's motion. It held Thompson's agreement to "mediate" any claims regarding her employment did not excuse Bar-S's compliance with the WCA, 85 O.S.2001 §§ 1-211, or constitute a waiver of the protection provided Thompson under the Act.³ The trial court also entered an agreed order staying the proceeding pending appeal. Bar-S appealed the order which is appealable by right. 12 O.S. Supp.2005, § 1879(A)(1); Okla.Sup.Ct.R. 1.60(i), 12 O.S. 2001, Ch. 15, App.⁴

¶ 7 The Court of Civil Appeals (COCA) reversed and remanded, stating:

The Trial Court refused to compel arbitration because it determined that, despite her agreement to arbitrate, Thompson's right to litigate her retaliatory discharge claim in district court could not be waived. In her employment agreement with Bar-S, Thompson did not waive the right to pursue her statutory claim, she merely agreed to have that claim resolved by an arbitrator rather than the court. For the reasons previously discussed, the determinations that Thompson agreed to arbitrate and that the arbitration agreement assigned the issue of arbitrability to the arbitrator required the Trial Court to Grant Bar-S's motion.

This Court previously granted Thompson's petition for writ of certiorari.

174 P.3d 572

BURDEN OF PROOF AND STANDARD OF REVIEW

¶ 8 In a case in which arbitration is being urged as the appropriate forum for resolving disputes, the "burden is on the party opposing arbitration to show that Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue; an intention discernible from the statute's text or legislative history or `an inherent conflict between arbitration and the statute's underlying purposes.'" Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, ¶ 22, 155 P.3d 16, 25, quoting Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 227, 107 S.Ct. 2332, 2338, 96 L.Ed.2d 185.

¶ 9 We review an order granting or denying a motion to compel arbitration de novo, the same standard of review employed by the trial court. See Fleming Companies, Inc. v. Tru Discount Foods, 1999 OK CIV APP 18, 977 P.2d 367 (cert.denied, 1999); Towe, Hester & Erwin, Inc., v. Kansas City Fire & Marine Insurance Company, 1997 OK CIV APP 58, 947 P.2d 594 (cert.denied, 1997). Arbitration should be compelled unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Fleming Companies, Inc. v. Tru Discount Foods, 1999 OK CIV APP 18, ¶ 16, 977 P.2d 367, 371, citing United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).

COCA'S DECISION

¶ 10 COCA found Thompson did not argue the FAA was not applicable to this case, only that the arbitration agreement should not be enforced. She raised the issues that the agreement was unfair, contrary to Oklahoma law and the invalidity of the contract based in part on the manner in which the agreements were drafted and presented. In analyzing the application and the arbitration agreement, COCA held the trial court erred when it determined there was an agreement to arbitrate, but denied the motion to compel. COCA ruled the trial court should have granted the motion to compel and that an arbitrator should then have been allowed to determine the arbitrability issue, i.e., whether a valid agreement to arbitrate the retaliatory discharge claim exists, because the parties agreed the FAA would apply to issues of arbitrability. COCA found Thompson agreed to arbitrate and agreed to be governed by the FAA. It failed, however, to...