Scaffidi, Mia B. v. Fiserv Incorporated , 218 F. App'x 519 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2007
Decided February 28, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3123
MIA B. SCAFFIDI, Appeal from the United States
Plaintiff-Appellant, District Court for the Eastern District
of Wisconsin
v.
No. 05-C-1046
FISERV, INC.,
Defendant-Appellee. J. P. Stadtmueller,
Judge.
ORDER
Mia Scaffidi sued her former employer, Fiserv, Inc., claiming gender
discrimination and retaliation in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to e-17. The parties had executed an arbitration agreement
when Scaffidi was hired, so Fiserv moved to compel arbitration. The district court
granted the motion. Scaffidi now appeals, arguing that the arbitration agreement is
unenforceable for various reasons. We affirm.
Fiserv hired Scaffidi in September 2001 as an assistant vice president for
marketing at its headquarters in Brookfield, Wisconsin. At the time she was hired,
No. 06-3123 Page 2
Scaffidi signed a document entitled “Mutual Agreement to Arbitrate Claims,” which
provides, in relevant part, that the “parties agree to submit to arbitration any and all
disputes arising from or related to . . . claims of discrimination or sexual harassment
during the employment relationship, or the termination of employment between the
parties for which a court otherwise would be authorized by law to grant relief.” The
employment relationship eventually soured, and in June 2004 Scaffidi was
discharged. She hired counsel and tried to resolve her differences with Fiserv
through mediation, both before and after complaining to the Equal Employment
Opportunity Commission. These efforts proved unsuccessful, and Scaffidi then filed
her Title VII action in October 2005. Relying on the arbitration agreement, Fiserv
moved to dismiss her complaint and compel arbitration. The district court concluded
that the arbitration agreement was valid and that it covered Scaffidi’s claims of
gender discrimination and retaliation.
On appeal Scaffidi argues that the arbitration agreement was invalid because
it lacks key contractual elements and is unconscionable. She also contends that
Fiserv waived its right to arbitrate. We review de novo a district court’s decision to
compel arbitration. Zurich Am. Ins. Co. v. Watts Indus., 466 F.3d 577, 580 (7th Cir.
2006). Whether the parties agreed to arbitrate is a matter of state contract law, in
this case the law of Wisconsin. See Hawkins v. Aid Ass'n for Lutherans, 338 F.3d
801, 806 (7th Cir. 2003). And in Wisconsin, arbitration clauses in employment
contracts are presumed to be valid. Wis. Auto Title Loans, Inc. v. Jones, 714 N.W.2d
155, 163 (2006).
Scaffidi argues that, in her case, no binding contract was formed because, she
says, there was never an offer, or acceptance, or consideration. But under Wisconsin
law an employer's promise to hire can serve as an offer, and the employee's service
constitutes both acceptance of the offer and consideration. See Dunn v. Milwaukee
County, 693 N.W.2d 82, 86 (Wis. Ct. App. 2005); see also Oblix, Inc. v. Winiecki, 374
F.3d 488, 490-91 (7th Cir. 2004) (explaining that employee’s salary is sufficient
consideration for arbitration clause in employment contract). Here the arbitration
agreement was a part of Fiserv’s employment offer. By accepting employment with
Fiserv, Scaffidi agreed to arbitrate the very types of claims included in her lawsuit.
Scaffidi also contends that no contract was formed because its “governing law”
paragraph was still incomplete when she signed, and because Fiserv’s personnel
manager executed the document instead of a corporate officer. Someone at the
company later wrote “WI” on a blank in the “governing law” paragraph, but that step
was unnecessary. Under Wisconsin choice-of-law rules, contract rights are
determined by the law of the jurisdiction “with which the contract has its most
significant relationship.” State Farm Mut. Auto. Ins. Co. v. Gillette, 641 N.W.2d 662,
No. 06-3123 Page 3
670-71 (Wis. 2002) (quotation marks and citation omitted). Here both parties are
Wisconsin citizens, and the contract was performed in Wisconsin, so Wisconsin law
applied by default. See id. at 671 (holding that Wisconsin law governed insurance
contract between corporation doing business in Wisconsin and Wisconsin resident for
vehicles located in Wisconsin). As to Scaffidi’s further assertion that the agreement
is invalid because no corporate officer signed it, arbitration agreements do not have
to be signed to be valid. Tinder v. Pinkerton Sec., 305 F.3d 728, 736 (7th Cir. 2002).
Scaffidi next argues that the arbitration agreement is unconscionable because
it is an adhesion contract, it “lacks mutuality of obligation,” and it does not provide
for the award of attorney’s fees to the prevailing party. But adhesion contracts
generally are valid, Wis. Auto Title Loans, 714 N.W.2d at 170, and we see no reason
to invalidate this contract. We have repeatedly rejected the argument that
arbitration clauses are unconscionable because they do not contain opt-out
provisions. See Carbajal v. H&R Block Tax Servs., 372 F.3d 903, 905-06 (7th Cir.
2004); Oblix, 374 F.3d at 490-91 (noting that unconscionability argument has been
“rejected in this circuit as often as it has been raised”); but see Wis. Auto Title Loans,
714 N.W.2d at 173 (arbitration clause in short-term loan contract allowing for 300
percent interest was unconscionable since borrower but not lender was required to
arbitrate). And, despite Scaffidi’s claim to the contrary, mutuality of obligation does
exist because Fiserv is equally bound to arbitrate any of its claims that are covered
by the agreement. See Erickson Oil Prods. v. State, 516 N.W.2d 755, 759 (Wis. Ct.
App. 1994) (explaining that mutuality of obligation means only that both parties or
neither party must be bound). Finally, the absence of a specific term concerning
attorney’s fees does not make the arbitration agreement unconscionable.
See Hawkins, 338 F.3d at 807.
Scaffidi last contends that Fiserv waived its right to arbitrate. Under
Wisconsin law, a party can waive its right to arbitration through conduct or
agreement. See Kimberly Area Sch. Dist. v. Zdanovec, 586 N.W.2d 41, 49 (Wis. Ct.
App. 1998). Fiserv did not explicitly agree to waive its arbitration rights, but Scaffidi
argues that the company did so implicitly because it waited until 16 months after she
was fired to request arbitration. We must examine the totality of the circumstances
in determining whether the party against whom waiver is to be enforced behaved
consistently with the right to arbitrate. Sharif v. Wellness Int’l Network, 376 F.3d
720, 726 (7th Cir. 2004). Our examination in this case leads us to conclude that
Fiserv did not waive its arbitration rights. The “delay” that Scaffidi references was
caused by the parties’ attempts at mediation. She did not file her complaint in
district court until October 2005. Fiserv demanded that Scaffidi arbitrate
approximately one month later, and then moved to compel arbitration one month
after that. These actions demonstrate unequivocally that Fiserv wanted to arbitrate
No. 06-3123 Page 4
the claims. See Welborn Clinic v. MedQuist, Inc., 301 F.3d 634, 637 (7th Cir. 2002)
(suggesting that party’s motion to compel arbitration filed less than two months after
complaint belied implied waiver argument).
The judgment of the district court is AFFIRMED.