Whitworth v. Mcbride & Son Homes Inc.

• Decision Date: 05 April 2011
• Docket Number: No. WD 72466.,WD 72466.
• Citation: 344 S.W.3d 730,161 Lab.Cas. P 61130
• Court: Missouri Court of Appeals
• Parties: Carol WHITWORTH, Respondent,v.McBRIDE & SON HOMES, INC., et al., Appellants.

344 S.W.3d 730

161 Lab.Cas. P 61,130

Carol WHITWORTH, Respondent,

v.McBRIDE & SON HOMES, INC., et al., Appellants.

No. WD 72466.

Missouri Court of Appeals, Western District.

April 5, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied May 3, 2011.

Application for Transfer

Denied Aug. 30, 2011.

Jill A. Morris and Robert L. Ortbals, Jr., Kansas City, MO, for appellants.Mark A. Jess, Christie E. Jess and John J. Ziegelmeyer III, Kansas City, MO, for respondent.Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JAMES E. WELSH, Judge and GARY D. WITT, Judge.CYNTHIA L. MARTIN, Judge.

McBride & Son Homes, Inc., McBride & Son Homes Kansas City, LLC, (collectively “McBride & Son”),¹ and Dennis Shriver (“Shriver”), ² former general manager of McBride & Son, appeal from the trial court's order denying their motion to compel arbitration of Carol Whitworth's (“Whitworth”) employment related claims. We affirm.

Facts and Procedural History

On June 30, 2005, McBride & Son presented Whitworth with a Sales Manager Employment Contract (“Employment Contract”). Prior to this time, Whitworth had worked for several years with McBride & Son as an independent contractor. McBride & Son is in the business of developing and selling residential property, primarily single family homes. The Employment Contract provided that Whitworth would be paid commissions upon the closing of any sales contracts she negotiated, including closings within the ninety (90) day period following her termination.

The Employment Contract addressed arbitration. The Employment Contract provided:

BINDING ARBITRATION CLAUSE

I agree that I will settle any and all claims, disputes or controversies arising out of or relating to my status as an employee, exclusively by final and binding arbitration before a neutral Arbitrator. Such claims included [sic] (without limitation) claims under federal, state and local statutory or common law, such as the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the law of contract, and the law of tort.The Employment Contract did not describe the procedures or guidelines for arbitration. The Employment Contract was signed by Whitworth and by “General Manager, Charles Heiser Jr.”

On July 8, 2005, and thus about a week after Whitworth had already signed the Employment Contract, Whitworth was asked to complete an application for employment (“Application”).³ The Application provided:

In consideration of my employment, I agree to conform to the rules and regulations of the Company and understand that my employment and compensation can be terminated, with or without cause, and with or without notice, at any time, at the option of either the Company or myself and without notice or liability for wages or salary except such earned at the date of such termination. I understand that no manager, supervisor, or representative of management, other than the president (or ranking officer) has any authority to enter into an agreement for employment for any specific period of time, or to make any agreement contrary to the foregoing.Immediately above the signature line, the Application provided: “THIS APPLICATION CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY EITHER YOU OR THE COMPANY.” The referenced arbitration provision stated:

I agree that I will settle any and all claims, disputes or controversies arising out of or relating to my application or candidacy for employment, employment, promotion, change in position, or cessation of employment with the Company, exclusively by final and binding arbitration before a neutral Arbitrator. Such claims include (without limitation) claims under federal, state, and local statutory or common law, such as the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the law of contract, and the law of tort.

The Application was signed by Whitworth. The Application was not signed by a representative of McBride & Son.

On July 8, 2005, Whitworth was also presented with the McBride & Son's Employment Dispute Arbitration Agreement (“Arbitration Agreement”). The Arbitration Agreement provided:

The undersigned hereby agrees that if he/she pursues any claims against McBride & Son or any affiliated or related entity, involving either acts or omissions, or both, because of any occurrence regarding any one or more of my hiring, employment, promotion, failure to promote, working conditions, employee benefits, or my employment's termination, that all such claims shall be resolved by final and binding arbitration before a neutral arbitrator. Such claims include, but are not limited to, claims under federal, state and local statutory or common law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans with Disabilities Act, any claim arising under any employee benefit plan or program, whether based on federal or state law, and any claims based on contract law and/or tort law. The undersigned further acknowledges that he/she must use McBride & Son's established Dispute Resolution/Mediation and Arbitration Procedures to resolve any disputes under this Agreement.

THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY EITHER YOU OR THE COMPANY.

(Emphasis added.) Whitworth signed the Arbitration Agreement. The Arbitration Agreement was not signed by a representative of McBride & Son.

Though not so stated in the Arbitration Agreement, the “Dispute Resolution/Mediation and Arbitration Procedures” referenced in the Arbitration Agreement are set forth in McBride & Son's Employee Handbook (“Handbook”). It appears that Whitworth received a copy of the Handbook at or around the time she signed the Application and Arbitration Agreement. The Handbook provides:

This Handbook has been prepared to furnish you with information about the Company.... The information, policies and benefits described herein are regularly reviewed, and may be revised or changed from time to time with or without prior notice as the Company deems appropriate and advisable.

The contents of this handbook [sic] are presented as a matter of information only.... None of the guidelines, policies or benefits in this manual are intended, by reason of their publication, to confer any contractual rights or privileges upon you. This is not a contract of employment. In fact, you should understand that no representative of the Company, other than the President or his authorized representative, have any authority to enter into any agreement for employment for any specified period of time or to make any contract of employment and that any such agreement made by the President or his authorized representative must be in writing, dated, and executed by the parties to the contract.

(Emphasis added.) The Handbook identifies “John Eilermann” as the President of McBride & Son.

The Handbook provides in Section VI, General Policies, paragraph Y that “THIS HANDBOOK CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY EITHER YOU OR THE COMPANY.” The Handbook continues to describe the specific procedures to be followed to pursue “dispute resolution/arbitration.”

Page 32 of the Handbook is entitled “statement of understanding,” and includes a signature block for “employee.” The statement of understanding appears designed to secure an employee's acknowledgment of receipt and understanding of the Handbook. The statement of understanding was not signed by Whitworth at the time she received the Handbook. The Handbook does not include a signature block for McBride & Son, and was not signed by McBride & Son.

On February 7, 2006, nearly seven months after the Application and the Arbitration Agreement were signed by Whitworth, Whitworth was presented with another statement of understanding (“Statement”). The Statement is nearly identical to the statement of understanding appearing on page 32 of the Handbook.⁴ The Statement provides:

I acknowledge that I have received a copy of the McBride & Son Management Co. Employment Handbook and agree to abide by it as well as all the rules and regulations of the Company....

I understand and agree that this Handbook is a statement of current general employment policies of the Company and supersedes previous employment policies which deal with the subjects set forth in the Handbook, and that it is my responsibility to read and be familiar with the Handbook and any subsequent changes. I understand that the policies stated in this Handbook are established and declared unilaterally by the Company and do not, and are not intended to, establish a contractual or an employment relationship with me. I recognize that the Company may modify, revoke, suspend, terminate, or change any or all of its policies in whole or in part, at any time, with or without notice to me. However, I understand that the Company will attempt to inform me, without being bound to do so, of any changes or additions to its employment policies, as soon as practicable, by publishing and distributing changes to this Handbook. I understand and agree that this Handbook is not intended to be an employment contract either expressed or implied, nor shall it serve as an independent basis for a contract of employment. I understand that none of the benefits or policies in this Handbook are intended by the reason of their publication to confer any rights or privileges upon me, or to entitle me to remain employed by the Company.

The Company acknowledges employees have the right to terminate their employment relationship at any time for any reason .... the Company has the same right as well.... I understand any binding agreement must be in writing and signed by both the Company's President and me ....

THIS HANDBOOK CONTAINS A BINDING...