Seawright v. Amer Gen Fin Serv ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0451p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellee, -
LISA SEAWRIGHT,
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No. 07-5091
v.
,
>
AMERICAN GENERAL FINANCIAL SERVICES, INC., -
AMERICAN GENERAL FINANCE, INC., and AMERICAN -
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Defendants-Appellants. -
INTERNATIONAL GROUP, INC.,
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 06-02339—Bernice B. Donald, District Judge.
Argued: September 11, 2007
Decided and Filed: November 13, 2007
Before: BOGGS, Chief Judge; and MARTIN and SUTTON, Circuit Judges.
_________________
COUNSEL
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.
BOGGS, C. J., delivered the opinion of the court, in which SUTTON, J., joined. MARTIN,
J. (pp. 11-12), delivered a separate dissenting opinion.
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OPINION
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BOGGS, Chief Judge. Lisa Seawright worked for American General Financial Services
(“AGF”) from November 1978 until April 2005.1 AGF terminated Seawright’s employment in
April 2005. In response, Seawright filed suit in the United States District Court for the Western
1
American General Financial Services, Inc., American General Finance, Inc., and American International
Group, Inc. operate as an integrated or joint employer under Tennessee law.
1
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 2
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
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 3
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 (2006). While the courts must respect “the liberal federal
policy favoring arbitration agreements,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 24-25 (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 (1986) (citing United Steelworkers of America
v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960) and United Steelworkers of America
v. American Mfg. Co., 363 U.S. 564, 570 (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 (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 (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.
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 4
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 DV at 3. Nevertheless,
relying exclusively on an unpublished case, Lee v. Red Lobster Inns of America, 92 F. App’x 158
(6th Cir. 2004), the district court concluded that “merely receiving information and acknowledging
the EDR program is not tantamount to assent.” This misstates the issue. The question is not
whether the mere receipt of an offer constitutes acceptance but whether an action–continuing one’s
employment–can constitute acceptance. Under Tennessee law, continued employment can constitute
acceptance. Fisher, 276 F. Supp. 2d at 895 (“By continuing to work at GE, the plaintiffs accepted
the terms of [the arbitration agreement], a binding contract.”); see also Byrd v. CIGNA Healthcare,
2002 U.S. Dist. LEXIS 26902, *7 (Feb. 8, 2002 E.D. Tenn.) (“By its terms, ‘accepting employment
and being eligible to receive increases in compensation and benefits’ binds [an] employee [of the
defendant company] to arbitrate employment-related claims.”) (quoting the defendant company’s
employee handbook).
Furthermore, Lee is distinguishable from the present case due to two important differences
in its facts that the district court did not mention. First, the agreement at issue in Lee did not contain
any provision that stipulated continued employment would constitute acceptance. Thus, the
agreement could not be accepted by unilateral action. Second, unlike Seawright, the plaintiff in Lee
explicitly told her boss that she did not assent to the agreement.2 Additionally, the court in Lee
specifically cautioned against relying on its decision in cases with different facts: “The case at bar
is distinguishable, of course, from cases in which employer-distributed materials told employees that
their continuing to work would constitute acceptance of the employer’s dispute resolution plan.” Id.
at 163 n.4. The case cautioned against in the footnote is, of course, exactly our case.
Seawright also relies on Miller v. Am. Gen. Fin. Corp., 2002 U.S. Dist. LEXIS 16724 (E.D.
La. Sept. 4, 2002) to demonstrate that she did not express valid assent. However, the court in Miller
based its decision on Louisiana state contract law, which differs significantly from Tennessee state
contract law. In Louisiana “when special formalities are prescribed for a contract, the same
formalities are required for an offer or acceptance intended to form that contract.” La. Civ. Code
Ann. Art. 1927 (West 2001) cmt. c. Thus, the court in Miller reasoned that because the FAA
required the agreement to be in writing, Louisiana contract law further required that the acceptance
of the agreement be in writing. In Tennessee, however, acceptance of a written agreement can be
performed by action under the contract. Fisher, 276 F. Supp. 2d at 895. Thus, Miller is inapposite
to the case at hand.
Noticeably absent from Seawright’s brief is a discussion of the “knowing and voluntary
waiver” requirement established by this circuit in Morrison v. Circuit City Stores, Inc., 317 F.3d 646
(6th Cir. 2003) (en banc). In Morrison, the court applied “ordinary contract principles in
determining whether” a binding arbitration agreement that included a waiver of a right to sue in
2
We note that Seawright did not explicitly object to the arbitration agreement only in order to distinguish this
case from Lee. Seawright’s acceptance came not from her silence in the face of an offer, but from her performance under
the contract–that is, her continued employment.
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 5
court was valid. Id. at 668 (citing Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995)).
In determining whether an employee “knowingly and voluntarily” waived the right, the court
considers: “(1) plaintiff’s experience, background, and education; (2) the amount of time the
plaintiff had to consider whether to sign the waiver, including whether the employee had an
opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver;
as well as (5) the totality of the circumstances.” Id. at 668. In Morrison, the court found that the
plaintiff knowingly and voluntarily waived her right to sue based on the fact that she was “a highly
educated managerial employee who was capable of understanding the terms of the agreement” and
that the “waiver of the right to file suit in federal court was plain.” Seawright is similarly situated:
She is an educated, managerial employee, who was capable of understanding the EDR Program’s
provisions. Also, like Morrison, Seawright had ample time (in Seawright’s case, two months)
between AGF’s announcement of the EDR Program and the Program’s commencement during
which she could have consulted with an attorney or decided she did not wish to waive her rights.
Finally, the EDR Program clearly stated that employees, by agreeing to the EDR Program, would
be waiving their rights to sue in federal court.
Though Morrison signaled her assent to the arbitration agreement through a signature and
Seawright signaled her assent through action, nowhere in Morrison does the court hold that the
waiver must be express and in writing. Indeed, such a requirement would likely be inconsistent
with federal case law interpreting the FAA itself. As we elaborate below, arbitration agreements
under the FAA need only be written, not necessarily signed. If this court were to equate “knowing
and voluntary” with “express and written” then we would effectively require that all arbitration
agreements be signed to be enforceable. This would be in conflict with both the plain reading of the
statute and with past precedent interpreting the statute. Accordingly, we find that, although
Seawright did not sign a waiver, her acceptance of the EDR Program–which stated that parties to
the agreement waived their right to sue in court–was knowing and voluntary.
B. Consideration
Addressing the issue of consideration, the district court stated that the agreement lacked
“bargained for exchange.” The district court seemed to base this conclusion on the fact that
Seawright “had no ability to affect the terms of the company’s policy.” That fact, however, is
irrelevant to whether there is a bargained-for exchange. Under Tennessee contract law, “[m]utuality
of promises is ‘ample’ consideration for a contract. A mutual promise ‘in itself would constitute a
sufficient consideration.’” Pyburn v. Bill Heard Chevrolet, 63 S.W.3d 351 (Tenn. Ct. App. 2001)
(quoting Rodgers v. Southern Newspapers, Inc., 379 S.W.2d 797, 800 (Tenn. 1964)); see also
Buraczynski v. Eyring, 919 S.W.2d 314, 321 n.6 (Tenn. 1996). In the agreement at issue, the
arbitration process was binding on both employer and employee, regardless of who requested
arbitration. Thus, employer and employee were equally obligated to arbitrate those disputes falling
within the coverage of the plan. This is enough to ensure mutuality of obligation and thus constitute
consideration.
C. Illusory Contracts
Though Seawright’s brief does not explicitly argue this point, her statement that “in contrast
to the employee’s inability to challenge the EDR program, the Companies maintained the right to
change or terminate the program at any time” (Appellee’s Br. 6-7) might be construed as an
argument that the agreement was illusory and therefore void. Tennessee law requires that a contract
not be illusory, that is, that it impose genuine obligations on both parties. Parks v. Morris, 914
S.W.2d 545, 550 (Tenn. Ct. App. 1995) (“If one or both parties to a contract have the right to cancel
or terminate the agreement, then the contract lacks mutuality and is unenforceable”) (internal
quotation omitted). In Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir. 2000 ) the
court found the arbitration agreement to be “fatally indefinite” because the employer “reserved the
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 6
right to alter the applicable rules and procedures without any obligation to notify, much less receive
consent from” the employees. Id. at 315-16. The arbitration agreement in this case is
distinguishable. While the defendant companies reserved the right to terminate the EDR at any time,
they also agreed to be bound by the terms of the agreement for 90 days after giving reasonable
notice of the termination and as to all known disputes arising before the date termination. J.A. 341.
Thus, 3the companies were bound by the terms for at least 90 days after the agreement came into
effect. This reciprocal obligation to arbitrate at least those claims arising in the 90-day period after
the effective date of the agreement satisfies the mutuality requirement.
D. Contracts of Adhesion and Unconscionability
1
Seawright argues that the arbitration agreement is “unenforceable and/or void because it is
a contract of adhesion entered into with unequal bargaining power and because it is substantively
unconscionable.” (Appellee’s Br. 22). The Supreme Court has made it clear that “[m]ere inequality
in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never
enforceable in the employment context.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32
(1991). The Court went on to write, “Of course, courts should remain attuned to well-supported
claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic
power that would provide grounds “for the revocation of any contract.” Id. at 33 (citing Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (2005)). Thus, to determine
whether a contract is unenforceable we must follow Tennessee law governing the enforceability of
contracts of adhesion.
The Supreme Court of Tennessee has defined an adhesion contract as being “a standardized
form offered on what amounts to a ‘take it or leave it’ basis, without affording the weaker party a
realistic opportunity to bargain, and under conditions whereby the weaker party can only obtain the
desired product or service by submitting to the form of the contract.” Buraczynski v. Eyring, 919
S.W.2d 314, 320 (Tenn. 1996); see also Walker v. Ryan’s Family Steak Houses, Inc., 400 F.3d 370,
384 (6th Cir. 2005); Howell v. NHC Healthcare-Fort Sanders, Inc., 109 S.W.3d 731, 733-34 (Tenn.
Ct. App. 2003). However, a contract is not adhesive merely because it is a standardized form
offered on a take-it-or-leave-it basis. The last element of adhesion, “the absence of a meaningful
choice for the party occupying the weaker bargaining position,” must also be present. Cooper v.
MRM Inv. Co., 367 F.3d 493 (6th Cir. 2004). While the agreement at issue here may fulfill the first
three conditions, Seawright has not demonstrated the final element. Applying Tennessee state law,
the Sixth Circuit in Cooper held that an employer’s mandatory arbitration agreement was not a
contract of adhesion based on the failure of a similar condition:
To find this contract adhesive, however, there must be evidence that [the employee]
would be unable to find suitable employment if she refused to sign [the employer’s]
agreement. She presented no such evidence. For instance, she did not allege that she
looked for comparable jobs but was unable to find one. Generalizations about
employer practices in the modern economy cannot substitute for such evidence. See
Andersons, Inc. v. Horton Farms, 166 F.3d 308, 324 (6th Cir. 1998) (no procedural
3
In reality, the parties’ mutual obligations have lasted for at least five years, from the EDR Program’s effective
date on June 1, 1999 to the date of Seawright’s termination in April 2005. But the question of consideration is whether
there was mutuality of obligation at the time the agreement was entered into. If AGF had terminated the EDR Program
the day after the effective date, the parties would have been bound to arbitrate disputes arising in the next 90 days. It
is this 90-day period, and not the actual length of time that the parties were bound by EDR Program, that constituted
consideration.
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 7
unconscionability where grain seller “failed to present evidence that it searched for
other alternatives and that there were none”).
Cooper, 367 F.3d at 502.
In Walker v. Ryan’s Family Steak Houses, Inc., the Sixth Circuit reiterated Tennessee’s
standard for finding a contract of adhesion in an employment context: “To find their Arbitration
Agreements adhesive, the district court was required to cite evidence that [Plaintiffs] would be
unable to find suitable employment if [they] refused to sign [the arbitration] agreement. Id. at 384
(internal quotations omitted). While the court in Walker held that the agreement was unenforceable
on other state law grounds, the court had “some concerns about whether Plaintiffs demonstrated the
final element of an adhesion contract: ‘the absence of a meaningful choice for the party occupying
the weaker bargaining position.’” Id. Like the plaintiffs in Cooper and Walker, Seawright has
presented no evidence that she would be unable to find suitable employment if she had refused to
be a party to the arbitration agreement. Thus, we hold that the agreement is not a contract of
adhesion.
2
Even if Seawright could show that the arbitration agreement was adhesive, she would also
have to demonstrate that it was unconscionable. Cooper, 367 F.3d at 503. In Tennessee, adhesion
contracts are unenforceable only when the terms are4 “beyond the reasonable expectations of an
ordinary person, or oppressive or unconscionable.” Buraczynski, 919 S.W.2d at 320; see also
Pyburn, 63 S.W.3d at 359 (Tenn. App. 2001). A contract is unconscionable when the “inequality
of the bargain is so manifest as to shock the judgment of a person of common sense, and where the
terms are so oppressive that no reasonable person would make them on the one hand, and no honest
and fair person would accept them on the other.” Haun v. King, 690 S.W.2d 869, 872 (Tenn. Ct.
App. 1984). Courts will not enforce adhesion contracts which are “oppressive to the weaker party
or which serve to limit the obligations and liability of the stronger party.” Buraczynski, 919 S.W.2d
at 320 (Tenn. 1996). The Tennessee Supreme Court recognizes both substantive and procedural
elements of unconscionability. Taylor v. Butler, 142 S.W.3d 277, 285 (Tenn. 2004) (“The
determination that a contract or term is or is not unconscionable is made in the light of its setting,
purpose and effect. Relevant factors include weaknesses in the contracting process like those
involved in more specific rules as to contractual capacity, fraud, and other invalidating causes . . . .”)
(citing Restatement (Second) of Contract § 208, cmt. a (1981)).
Seawright does not argue, and this court could not hold, that the arbitration agreement was
substantively unconscionable. The underlying arbitration agreement is equitable in that it binds
both employer and employee to arbitration and does not “limit the obligations and liability of the
stronger party”–the employer. This distinguishes the EDR Program from the arbitration agreements
that Tennessee courts have held unconscionable. See, e.g., Taylor v. Butler, 142 S.W.3d 277 (Tenn.
2004) (“City Auto has a judicial forum for practically all claims that it could have against Taylor. . . .
At the same time, Taylor is required to arbitrate any claim that she might have against City Auto.”).
4
Seawright argues that the “the presence of unequal bargain power can make an arbitration agreement
unenforceable,” relying on Nguyen v. City of Cleveland, 121 F. Supp. 2d 643 (N.D. Ohio 2002). This mischaracterizes
the court’s reasoning. In Nguyen the court denied the employer’s motion to compel arbitration because of a conflict
between the policies of the FAA and the False Claims Act ("FCA"): “Thus while this Court does not find that the plain
text of the whistleblower statute or the legislative history clearly demonstrate Congress’s intention to except
whistleblower retaliation claims from the Arbitration Act, it does find that a conflict exists between arbitration and the
underlying purposes of the FCA.” Id. at 647. Seawright’s reliance on Nguyen’s reference to “unequal bargaining power”
is thus taken out of context. Moreover, Nguyen explicitly acknowledges that “[m]ere inequality in bargaining power . . .
is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context.” Id. at
647 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991)).
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 8
Seawright’s only argument that the contract was procedurally unconscionable is her
contention that there was unequal bargaining power. The finding that “an employee had less
bargaining power is relevant to the procedural-unconscionability analysis.” Cooper, 367 F.3d at
504. Seawright did not present evidence of any “factors bearing on the relative bargaining position
of the contracting parties, including their age, education, intelligence, business acumen and
experience, and relative bargaining power.” Ibid. (citing Morrison, 317 F.3d at 666). Moreover,
given Seawright’s education and position as a branch office manager who had worked for the
company for two and a half decades, it is unlikely that she could marshal such evidence. This
distinguishes Seawright from a low-level employee who may be “required to sign an arbitration
agreement precisely at the time that he or she is most willing to sign anything just to get a job.”
Cooper, 367 F.3d at 504 (citing Cooper v. MRM Inv. Co., 199 F. Supp. 2d 771, 780 & n.8 (M.D.
Tenn. 2002)).
For the forgoing reasons we find that Seawright entered into a valid and enforceable
agreement to arbitrate.
E. The Federal Arbitration Act
In addition to Seawright’s four arguments that the agreement is unenforceable under
Tennessee state contract law, she asserts a fifth argument that a federal court cannot compel
arbitration pursuant to the FAA because the arbitration agreement at issue was not written as
required by the FAA. 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). Seawright analogizes the FAA to the Statute of Frauds; however, unlike
contracts that fall under the Statute5 of Frauds, arbitration agreements under the FAA need to be
written, but not necessarily signed. Fisher, 276 F. Supp. 2d at 285. The agreement at issue here
was written.6 A pamphlet entitled “American General Finance Company’s Employee Dispute
Resolution Program,” was distributed via United States mail to employees. That pamphlet describes
the arbitration procedures, makes it clear that the agreement is one for binding arbitration in lieu of
a trial, and asserts 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
5
Authority from a number of other circuits supports this view. See, e.g., Genesco, Inc. v. T. Kakiuchi & Co.,
815 F.2d 840, 846 (2nd Cir. 1987) (“[W]hile the [FAA] requires a writing, it does not require that the writing be signed
by the parties.”); Valero Refining, Inc. v. M/T Lauberhorn, 813 F.2d 60, 64 (5th Cir. 1987) (“We note also that section
three of the Act does not require that a charter party be signed in order to enforce an arbitration agreement contained
within it.”); Tinder v. Pinkerton Sec., 305 F.3d 728, 736 (7th Cir. 2002) (“Although § 3 of the FAA requires arbitration
agreements to be written, it does not require them to be signed.”); Medical Development Corp. v. Industrial Molding
Corp., 479 F.2d 345 at 348 (10th Cir. 1973) (“It [is] not necessary that there be a simple integrated writing or that a party
sign the writing containing the arbitration clause.”); Caley v. Gulfstream Aero. Corp., 428 F.3d 1359, 1369 (11th Cir.
2005) (“We readily conclude that no signature is needed to satisfy the FAA's written agreement requirement.”).
6
Seawright attempts to distinguish the agreement in Fisher on the basis that the agreement at issue there
involved a “non-binding arbitration policy in which the employee did not waive any rights.” (Appellee’s Br. 21-22).
But those particular facts are irrelevant to the determination of whether a contract is written.
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 9
process instead of through the court system.” J.A. 291.7 Thus, the arbitration agreement, including
the provision that continued employment would constitute acceptance, was written. This is in line
with the conclusions of other circuits. In Caley v. Gulfstream Aero. Corp., 428 F.3d 1359 (11th Cir.
2005), the Eleventh Circuit held that a similar arbitration agreement satisfied the requirement of
being written: “Although the employees’ acceptance was by continuing their employment and was
not in writing, all material terms - including the manner of acceptance - were set forth in the written
[Dispute Resolution Program (“DRP”)]. The DRP stated that it was a contract and constituted the
entire agreement between the employee and Gulfstream as to covered claims.” Ibid.; see also
Medical Development Corp. v. Industrial Molding Corp., 479 F.2d 345, 348 (10th Cir. 1973) (“It
[is] not necessary that there be a simple integrated writing or that a party sign the writing containing
the arbitration clause”).
IV
It has been over eighty years since the FAA was originally enacted.8 Its purpose was to
reverse the longstanding judicial hostility towards arbitration agreements and to place arbitration
agreements upon the same footing as other contracts. Gilmer, 500 U.S. at 21 (citing Dean Witter
Reynolds Inc. v. Byrd, 470 U.S. 213, 219-20 n.4 (1985) and Scherk v. Alberto-Culver Co., 417 U.S.
506, 510 n.4 (1974)). Congress has asserted a national policy favoring arbitration and the Supreme
Court has found that “by agreeing to arbitrate a statutory claim, a party does not forgo the
substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than
judicial, forum.” Gilmer, 500 U.S. at 26. While it is unjust to bind a party to agreement in the
absence of assent or to enforce a contract that is unconscionable, it betrays an unfounded hostility
towards arbitration when courts actively seek to void substantively reasonable agreements procured
through fair procedure. The Supreme Court has “rejected generalized attacks on arbitration that rest
on suspicion of arbitration as a method of weakening the protections afforded in the substantive law
to would-be complainants.” Green Tree Financial Corp.--Alabama v. Randolph, 531 U.S. 79, 89-90
(2000) (citations omitted). Even claims “arising under a statute designed to further important social
policies” may be arbitrated provided that “the prospective litigant effectively may vindicate [his or
her] statutory cause of action in the arbitral forum.” Id. at 90.
The employer at issue here did not try to hide its mandatory arbitration policy or try to trick
its employees into agreeing to the policy. Nor did the employer choose an arbitration forum that
would discourage employees from submitting disputes or favor the employer in the resolution of
those disputes. In the absence of evidence that assent to the arbitration agreement was procured
though unfair means or that the agreement itself was substantively unfair, courts should enforce
mandatory arbitration agreements on the same basis as any other agreement that employers require
as a condition of employment. Seawright has failed to demonstrate any state grounds upon which
the agreement might be void or unenforceable and has failed to demonstrate the agreement did not
comply with the “written” requirement of the FAA. We therefore REVERSE the district court’s
7
The court in Lee found that similar materials did not constitute a written arbitration agreement, stating: “An
agreement is a manifestation of mutual assent on the part of two or more persons. Restatement (Second) of Contracts
§ 3 (1981). Lee’s assent to arbitrate is not manifested in the DRP handbook, poster, video, pamphlet, information sheet
or Red Lobster’s employee booklet.” Lee, 92 Fed. Appx. at 162. This reasoning conflates two distinct meanings of the
word “agreement” and misunderstands the requirements of the FAA. The Restatement uses the term “agreement” to refer
to a set of legal obligations. The term “agreement” in the phrase “written agreement,” however, refers to an actual
document–the physical embodiment of the underlying legal obligations. Parties may assent to a written agreement, thus
forming a set of legal obligations, without putting the assent itself in writing.
8
The FAA was originally enacted in 1925, 43 Stat. 883, and then reenacted and codified in 1947 as Title 9 of
the United States Code.
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 10
decision denying the order to compel arbitration and REMAND to the district court for further
proceedings consistent with this opinion.
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 11
______________
DISSENT
______________
BOYCE F. MARTIN, JR., Circuit Judge, dissenting. The Court’s ruling today goes too far
in subordinating the constitutional rights of employees to the convenience of employers. The
“agreement” between Seawright and AGF – which was not signed, contained a unilateral working-
as-acceptance provision, and constituted a total waiver of the right to access a court – goes past the
acceptable limit of what employers can force upon their employees without the employees’ consent.
First and foremost, Seawright’s signature appears nowhere on any arbitration agreement.
Thus we have no proof that she manifested assent to the contract. Although Tennessee law does
permit unilateral contracts, no Tennessee court has decided whether continuing employment is
effective as a waiver of constitutional rights. A unilateral contract is one where an offeror
“reasonably expects to induce action of a definite and substantial character” from the offeree. See
Curtiss Candy Co. v. Silberman, 45 F.2d 451, 453 (6th Cir. 1930). Implicit in this understanding
is that the offeree is aware of the significance of the act performed. Without a signal1 that she
understands that a contract is being made, how is one to know if she has truly accepted?
The majority cites Seawright’s failure to express her lack of assent as evidence that she
assented (distinguishing her from the plaintiff in Lee, who told her boss she did not agree to the
program). See Lee v. Red Lobster Inns of Am., Inc., 92 Fed. Appx. 158, 162 (6th Cir. 2004). As we
held in that case, however, it is too onerous to require employees to object to new agreements
imposed upon them: “a contract such as this places the burden on the employee to repeatedly object
to a company’s unilaterally adopted arbitration policy or risk being found to have agreed to it. This
is not how contracts are formed.” Id. “The mere receipt of an unsolicited offer does not impair the
offeree’s freedom of action or inaction or impose on him any duty to speak.” Id. (citing
RESTATEMENT (SECOND) OF CONTRACTS § 69, cmt. a (1981)). After today, however, an employee
apparently must expressly reject the agreement in order not to be bound by it.
The majority also cites Fisher v. GE Med. Sys., 276 F. Supp. 2d 891, 895 (M.D. Tenn. 2003)
and Byrd v. CIGNA Healthcare, 2002 U.S. Dist. LEXIS 26902, at *7 (E.D. Tenn. 2002) for the
proposition that continuing employment binds an employee to arbitrate employment-related claims.
Fisher, however, is inapposite because the arbitration agreement at issue there was non-binding.
Indeed, even in that case, the precedent cited by the court involved employment agreements that
were signed and then acted under. Byrd, too, is different from Seawright’s case. Byrd signed a
receipt for an employee handbook that contained the policy that stated, “I have reviewed the material
which includes information on policies, programs and services for employees of the CIGNA
companies.” Id. at *7 (emphasis added). Here, Seawright’s only signature was on an “Information
Session Sign-In Sheet,” in which “I acknowledge that I have attended the information session and
received a copy of the AGF Employee Dispute Resolution pamphlet.” Joint App’x 319 (emphasis
added). The script for the information session says that the sign-in sheet “confirms that you attended
the information session,” not that the employees read or understood the policy’s binding nature. Id.
at 315. Without a signature on a document that proves Seawright was at least aware of the nature
of the agreement, it is impossible to say she knowingly waived her rights.
1
Homer Simpson talking to God: “Here’s the deal: you freeze everything as it is, and I won’t ask for anything
more. If that is OK, please give me absolutely no sign. [no response] OK, deal. In gratitude, I present you this offering
of cookies and milk. If you want me to eat them for you, please give me no sign. [no response] Thy will be done.” The
Simpsons: And Maggie Makes Three (Fox television broadcast, Jan. 22, 1995).
No. 07-5091 Seawright v. Amer. Gen. Fin. Serv. Page 12
In Walker v. Ryan’s Family Steak Houses, Inc., 400 F.3d 370 (6th Cir. 2005), we reiterated
that employees cannot not be compelled to arbitrate their claims if they did not knowingly and
voluntarily waive their constitutional right to a jury trial. See also Morrison v. Circuit City Stores,
Inc., 317 F.3d 646, 668 (6th Cir. 2003) (en banc) (adopting the knowing and voluntary standard for
agreements to arbitrate in lieu of litigation). According to Morrison, to evaluate whether a plaintiff
has knowingly and voluntarily waived his or her right to pursue employment claims in federal court,
a court must evaluate a number of factors, including the employee’s experience, background,
education, and amount of time she had to consider the agreement. Id. (quoting Adams v. Philip
Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995)). The majority is correct that Seawright is an
educated, capable employee with the capacity to understand contract terms. The Morrison factors
assume, however, that an employee is aware that she is entering into a new agreement.
Because Seawright never performed any action that signaled that she knowingly and
voluntarily entered into the agreement (and waived her rights), it is unreasonable to hold her to the
agreement’s terms. Thus I respectfully DISSENT from the majority’s opinion.