Tinder, Ilah M. v. Pinkerton Security

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3876
ILAH M. TINDER,
Plaintiff-Appellant,
v.
PINKERTON SECURITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 C 170—Barbara B. Crabb, Chief Judge.
____________
ARGUED JUNE 12, 2002—DECIDED SEPTEMBER 17, 2002
____________
Before MANION, ROVNER, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. The principal issue presented in
this appeal is what constitutes sufficient consideration to
support an agreement in Wisconsin to arbitrate between
an employer and an at-will employee. The appellant, Ilah
M. Tinder, sued her former employer, Pinkerton Security,
for employment discrimination and retaliation under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. Citing what it claimed was an enforceable agree-
ment to arbitrate the dispute, Pinkerton moved the dis-
trict court under the Federal Arbitration Act (“FAA”) to
stay the trial proceedings and compel Tinder to arbitrate
2 No. 01-3876
her dispute. The district court granted the motion, conclud-
ing that the agreement was enforceable. Later, after Pink-
erton prevailed at arbitration, the district court confirmed
the arbitrator’s award in favor of Pinkerton, and Tinder
appeals. Because the district court correctly concluded
that the agreement was enforceable under Wisconsin law
and compelled arbitration, we affirm.
I.
Tinder began employment with Pinkerton on October 21,
1996, and was assigned to work as a security officer at a
General Motors facility in Janesville, Wisconsin. The fol-
lowing day, Tinder received a copy of Pinkerton’s employ-
ee handbook and signed an “Employee Acknowledgment
Form.” The first paragraph made clear that the form was
a contract for employment at-will:
My employment by Pinkerton is strictly an employ-
ment at will terminable by either Pinkerton or myself
at any time, in either party’s sole discretion, without
advance notice. No Pinkerton representative has au-
thority to modify this policy. I understand that at no
time may I rely on any policies, procedures, customs
and/or statements, whether written or oral, to consti-
tute a modification of this express condition of my
employment.
The form further provided that the handbook was not to
be construed as a supplement to or modification of the
employment contract, and that Pinkerton reserved “the
right to change its policies, rules ‘at-will’ employment
policy as stated in Paragraph 1.” When notifying its em-
ployees of policy or rule changes, Pinkerton typically in-
serts a “payroll stuffer” in the envelope with each em-
ployee’s paycheck. Occasionally, notices of policy or rule
No. 01-3876 3
changes are accompanied by acknowledgment forms that
employees were required to sign and return to management.
In October 1997, Pinkerton issued to all of its employees
as a payroll stuffer a color brochure entitled “Pinkerton’s
Arbitration Program.” The brochure announced that Pink-
erton was instituting a mandatory arbitration program
effective January 1, 1998, broadly covering all legal claims
including discrimination under the federal civil rights
statutes:
Any claims or controversies . . . either Pinkerton may
have against you or you may have against the Com-
pany or against its officers, directors, employees, or
agents in their capacity as such, must be resolved by
arbitration instead of the courts, whether or not such
claims arise out of your employment (or its termina-
tion). The claims covered include, but are not limited
to, . . . discrimination (including, but not limited to,
race, sex, religion, national origin, age, marital status,
or medical condition, handicap, or disability); . . . and
claims for violation of any federal, state or other gov-
ernmental law, statute, regulation, or ordinance. . . .
This language was clarified elsewhere in the brochure us-
ing a question-and-answer format. The brochure empha-
sized that the arbitration agreement would not bar em-
ployees from bringing legal claims, and that both the
employees and the company were bound by the policy:
Q. Do I lose any substantive rights under this pro-
gram?
A. No, your substantive legal rights remain intact. All
that changes is that an arbitrator, rather than a
judge or jury, will resolve the disputes.
***
4 No. 01-3876
Q. Is Pinkerton bound by these arbitration provisions?
A. Absolutely. Effective January 1, 1998, Pinkerton
will be a binding arbitration company. This means
that if Pinkerton has any claims against its employ-
ees, or ex-employees, it must also use binding
arbitration under the same terms and conditions
in Section II of this brochure.
The brochure stated that arbitrators would apply the
same legal rules and would be authorized to award the
same remedies as any court. Although the program pro-
vided that the company and the employee would split
the arbitrator’s fee, Pinkerton agreed to reimburse prevail-
ing employees for their portion of the fee, or pay the en-
tire fee if the law of the forum prohibited splitting the fee.
The brochure also suggested that opting out of the pro-
gram was not possible if the employee wished to remain
on the job past the effective date of the policy:
Q. What if I do not want to be covered by this binding
arbitration program?
A. Effective January 1, 1998, all employees, includ-
ing the CEO, are covered by the program. By re-
maining employed at Pinkerton through the effec-
tive date, you are agreeing to be covered by the
program and you waive your right to a court trial.
Near the end of the brochure, in a section captioned
“Consideration,” was a paragraph restating this answer in
more traditional contract language, and providing that
the mutual promises by Pinkerton and its employees
to submit their claims to arbitration rather than litiga-
tion “provide consideration for each other. By remaining
employed with Pinkerton through January 1, 1998, you are
agreeing to waive your right to have a claim against
the Company heard in a court of law.” The brochure was
No. 01-3876 5
not accompanied by an acknowledgment form. As was
stated in the brochure, Pinkerton implemented the arbi-
tration program in January 1998.
Tinder did not recall receiving or seeing the arbitration
brochure. Pinkerton produced two affidavits stating that
Tinder received the brochure, however. The first affidavit,
from Director of Employee Relations Kathy Rasmussen,
asserted that Pinkerton’s central office distributed copies
of the brochure to each of its district offices with instruc-
tions to insert it as a payroll stuffer in the envelope
along with each employee’s paycheck. According to Ras-
mussen, Pinkerton sent a memorandum to its district
office managers along with the brochures emphasizing the
importance of the program and the need to promptly
distribute the brochures. Rasmussen went on to aver that
Pinkerton’s legal department later issued a second memo-
randum confirming that the brochure had been distributed
to all district offices. In the second affidavit, Mark Cruciani,
manager of Pinkerton’s district office in Milwaukee, as-
serted that Tinder was paid through his office; that his
office distributed the brochure to all of its employees along
with their paychecks on the payday following the date
Pinkerton instructed its district offices to circulate the
brochure; and that Tinder received her salary by check,
not by direct deposit into a bank account.
In May 1998, Pinkerton undertook an internal campaign
to remind its employees that the arbitration policy had
been implemented. First, Pinkerton featured the program on
the cover of the May 1998 issue of its internal monthly
magazine, Excellence in Service. The cover story was a one-
page article summarizing the reasons why Pinkerton
instituted the policy, and reminding employees that the
policy was in effect and applied to all employees who
continued to work for or joined Pinkerton after January 1,
6 No. 01-3876
1998. Pinkerton also distributed a poster for display in
all work sites that declared “Arbitration: It’s fair, it’s con-
venient, and it’s policy.” Finally, Pinkerton distributed
a payroll stuffer to all of its employees entitled “Settling
Disputes Through Arbitration.” The stuffer reiterated the
terms of the original brochure announcing the program.
In fall 1998, Tinder verbally complained to her supervi-
sor, Bradley Bastain, that she believed she was the victim
of gender discrimination on the job. Tinder complained
that, unlike her male co-workers, she was required to
work overtime, was not promptly paid for her work, and
was not reimbursed for her purchase of boots for her
uniform. Instead of taking action to remedy Tinder’s
complaints, Bastain admonished Tinder that he was tired
of hearing her “continual complaints to upper manage-
ment.” In November 1998, Bastain informed Tinder that
he was removing her from her assigned post, and warned
her that her work hours would be reduced if she con-
tinued to complain about her work environment. Tinder
alleged that after this, Bastain reduced her pay and re-
fused to accommodate her request to take Sundays off so
she could attend religious services. She interpreted these
actions as retaliation for complaining about discrimina-
tion. Shortly after these events, Tinder quit.
Claiming constructive discharge and retaliation in viola-
tion of Title VII, Tinder filed charges with the United
States Equal Employment Opportunity Commission, re-
ceived a right-to-sue letter, and timely filed this lawsuit
in March 2000. Pinkerton immediately moved to stay
proceedings and compel arbitration, asserting that Tinder
had agreed by way of a written agreement to arbitrate
her claims, and that the agreement constituted an enforce-
able contract. Tinder denied that the policy was enforce-
able, arguing that there was no consideration for any
No. 01-3876 7
agreement by her to forego suing, and that she was un-
aware of the existence of the policy. The district court
agreed with Pinkerton, however, granted the motion to stay,
and ordered the parties to arbitrate. The court concluded
that Tinder was an at-will employee, and that Pinkerton’s
policy was an agreement supported by mutual promises
to arbitrate. The court also determined that Tinder’s
claim that she had no notice of the policy was untenable
in light of Rasmussen’s and Cruciani’s affidavits.
Arbitration concluded in April 2001 with a ruling in
Pinkerton’s favor. Pinkerton then moved the district court to
confirm the arbitrator’s award. Over Tinder’s objections,
the district court confirmed the award and entered judg-
ment in Pinkerton’s favor.
II.
Tinder argues that any agreement she made to submit
her claims to arbitration was not supported by valid con-
sideration. She also contends that the district court erred
in compelling her to arbitrate because she had no notice
of the policy’s implementation; she neither signed any
acknowledgment agreeing to be bound nor was she al-
lowed to opt out; the policy was not implemented until
after she began employment with the company; and the
contract is illusory. We review de novo the district court’s
decision to compel arbitration based on its finding that
an enforceable arbitration agreement existed between
the parties. Gibson v. Neighborhood Health Clinics, 121 F.3d
1126, 1130 (7th Cir. 1997).
The FAA mandates enforcement of valid, written arbitra-
tion agreements. 9 U.S.C. § 2; Circuit City Stores v. Adams,
532 U.S. 105, 111-12 (2001). To give effect to the federal
policy favoring private arbitration, the FAA provides for
8 No. 01-3876
stays of litigation when an issue presented in the case is
referable to arbitration. 9 U.S.C. § 3; EEOC v. Waffle House,
Inc., 122 S. Ct. 754, 761-62 (2002). Employment discrim-
ination claims arising under Title VII are issues referable
to arbitration. See Koveleskie v. SBC Capital Markets, Inc.,
167 F.3d 361, 364 (7th Cir. 1999); Perez v. Globe Airport
Security Serv’s, Inc., 253 F.3d 1280, 1284 (11th Cir. 2001);
Hooters of America, Inc. v. Phillips, 173 F.3d 933, 937 (4th
Cir. 1999); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832,
837 (8th Cir. 1997). We evaluate agreements to arbitrate
under the same standards as any other contract. Metro East
Center for Conditioning & Health v. Qwest Communications
Internat’l, Inc., 294 F.3d 924, 927 (7th Cir. 2002); Penn v.
Ryan’s Family Steak Houses, Inc., 269 F.3d 753, 758 (7th Cir.
2001). Whether a binding arbitration agreement exists is
determined under principles of state contract law. 9 U.S.C.
§ 2; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938,
944 (1995). Because all relevant events occurred in Wiscon-
sin, Wisconsin law determines the validity of the agree-
ment. Michalski v. Circuit City Stores, Inc., 177 F.3d 634, 636
(7th Cir. 1999).
Although no reported case in Wisconsin has addressed
what constitutes an enforceable agreement to arbitrate,
Wisconsin courts treat contracts concerning employment
like any other contract. See Ferraro v. Koelsch, 368 N.W.2d
666, 671-72 (Wis. 1985). This includes agreements formed
subsequent to an employment at-will that supplant or
alter the nature of the employment relationship. In such
a case, to be enforceable the agreement must be supported
by consideration. Id. at 672-73. In Wisconsin, considera-
tion consists of either a detriment to the promisor or a
benefit to the promisee. See Michalski, 177 F.3d at 636 (citing
NBZ, Inc. v. Pilarski, 520 N.W.2d 93, 96 (Wis. Ct. App. 1994)).
A promise for a promise, or the exchange of promises,
is adequate consideration to support a bilateral contract.
No. 01-3876 9
Ferraro, 368 N.W.2d at 671-72. An employer’s promise to
arbitrate in exchange for an employee’s promise to do the
same constitutes sufficient consideration to support the
arbitration agreement. Michalski, 177 F.3d at 636.
Tinder points out, however, that Pinkerton unilaterally
implemented its arbitration program without input from
her or its employees. This, she argues, shows that she
never promised to arbitrate her dispute. But Pinkerton’s
unilateral decision to implement the program does not
demonstrate that Tinder did not agree to be bound. The
agreement provided expressly that by remaining em-
ployed at Pinkerton after the effective date of the arbitra-
tion program Tinder, like all other employees, agreed
to submit her claims to arbitration. Wisconsin recog-
nizes that, because at-will employees are free to quit
their jobs at any time, at-will employees give adequate
consideration for employer promises that modify or sup-
plant the at-will employment relationship by remaining
on the job. See Ferraro, 368 N.W.2d at 673 n.5; Pincus v.
Pabst Brewing Co., 893 F.2d 1544, 1549 (7th Cir. 1990)
(citing Prochniak v. Wisconsin Screw, Inc., 61 N.W.2d 882, 885
(Wis. 1953)). Tinder remained on the job past the effec-
tive date of the program. Doing such evidenced her mu-
tual promise to arbitrate her disputes with Pinkerton.
Tinder also contends that our decisions in Gibson and
Michalski establish that a promise of continued employment
cannot constitute sufficient consideration to support a
promise to arbitrate. We disagree. Although Gibson was
decided under Indiana law and is not helpful in determin-
ing the content of Wisconsin law, we recognized that
an employer’s promise to continue employing an at-will
employee could constitute consideration for an employee’s
promise to forego certain rights. See 121 F.3d at 1131-32.
Additionally, Gibson is distinguishable from this case
10 No. 01-3876
because the employer never promised to continue em-
ploying the plaintiff in exchange for her waiving her right
to sue. Id. at 1132. And Michalski, which arose under Wis-
consin law, did not address whether continued at-will
employment may constitute consideration for an agree-
ment to arbitrate. The question in Michalski was whether
the employer had promised to arbitrate in exchange for
the employee’s agreement to do the same. The written
agreement was silent whether the employer was bound
to arbitrate. Based on our review of other documents in
the record, we concluded, over a dissent, that the employ-
er was bound by the agreement. Unlike Michalski, the
controlling document in this case states expressly that
Pinkerton is bound by the agreement.
In further arguing that there existed no consideration
to support her agreement to forego her right to sue, Tinder
relies on NBZ, Inc. v. Pilarski, supra, 520 N.W.2d 93 (Wis.
Ct. App. 1994), where Wisconsin’s intermediate appel-
late court concluded that a covenant not to compete,
executed after employment began, was unenforceable
for lack of consideration. But Pilarski does not support
Tinder’s position. The employer in Pilarski could identify
no clear policy whether employees were required to sign
covenants not-to-compete in exchange for employment—
the company’s president stated that he did not know
what he would do if an employee refused to sign the
agreement. See id. at 97. In contrast, the policy in this
case was conditioned explicitly on continued employment,
and applied to all employees.
Tinder next maintains that she did not receive the bro-
chure announcing Pinkerton’s arbitration program and
did not know that the program existed until she sued. In
her view, because Pinkerton failed to make adequate
efforts to ensure that she knew about the program, she
No. 01-3876 11
never promised to do anything and should have been
allowed to proceed to trial on her discrimination claims.
Pinkerton argues that Tinder’s claim that she does not re-
call receiving or seeing the arbitration brochure does
not place any facts concerning the agreement at issue.
Pinkerton also contends that it submitted sufficient evi-
dence demonstrating that Tinder did in fact receive the
brochure. Since Tinder failed to controvert its evidence,
Pinkerton asserts that the district court properly discounted
Tinder’s claims and ordered arbitration.
A district court must promptly compel arbitration once
it is satisfied that the parties agreed to arbitrate. 9 U.S.C.
§ 4. But if the district court determines that the making
of the arbitration agreement is seriously disputed, “the
court shall proceed summarily to the trial thereof.” Id.
The issue then is not whether Tinder’s denial of having
received notice of the policy is sufficient to avoid arbi-
tration, but whether she produced sufficient evidence
to raise a factual issue concerning whether she and Pink-
erton are bound by a contract to arbitrate.
The party opposing arbitration must identify a triable
issue of fact concerning the existence of the agreement
in order to obtain a trial on the merits of the contract.
Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816
F.2d 1191, 1196 (7th Cir. 1987). The FAA does not express-
ly identify the evidentiary standard a party seeking to
avoid compelled arbitration must meet. But courts that
have addressed the question have analogized the stan-
dard to that required of a party opposing summary judg-
ment under Rule 56(e) of the Federal Rules of Civil Pro-
cedure: the opposing party must demonstrate that a
genuine issue of material fact warranting a trial exists.
See Doctor’s Associates, Inc. v. Distajo, 107 F.3d 126, 129-30
(2d Cir. 1997); Great Western Mortgage Corp. v. Peacock, 110
12 No. 01-3876
F.3d 222, 231 n.36 (3d Cir. 1997); Dillard v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 961 F.2d 1148, 1154 (5th Cir.
1992). Just as in summary judgment proceedings, a par-
ty cannot avoid compelled arbitration by generally deny-
ing the facts upon which the right to arbitration rests;
the party must identify specific evidence in the record
demonstrating a material factual dispute for trial. Op-
penheimer & Co., Inc. v. Neidhardt, 56 F.3d 352, 358 (2d Cir.
1995).
In deciding whether the party opposing summary judg-
ment (and by analogy compelled arbitration) has iden-
tified a genuine issue of material fact for trial, “the evi-
dence of the non-movant is to be believed and all jus-
tifiable inferences are to be drawn in his favor.” Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But
Tinder’s only evidence that she never received notice of
the program was her own affidavit in which she avers
that she “does not recall seeing or reviewing the Arbitra-
tion Program brochure that Defendant alleges was in-
cluded with her payroll check in October, 1997,” and this
does not raise a genuine issue of material fact. Tinder
asserted only that she does not remember receiving or
seeing the brochure, whereas the uncontroverted affi-
davits of Kathy Rasmussen and Mark Cruciani indicate
that the brochure was definitely sent and presumably
received with her paycheck. Tinder’s affidavit thus does
not raise a genuine issue whether the brochure was dis-
tributed to her. See Unterreiner v. Volkswagen of America,
Inc., 8 F.3d 1206, 1211 (7th Cir. 1993); Schroeder v. Copley
Newspaper, 879 F.2d 266, 269 n.1 (7th Cir. 1989); Posey v.
Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983); I.V. Services
of America, Inc. v. Inn Development & Management, Inc.,
182 F.3d 51, 55 (1st Cir. 1999); English v. Pabst Brewing
Co., 828 F.2d 1047, 1050 (4th Cir. 1987). Moreover, Tinder
No. 01-3876 13
suggested in her pleadings that she was aware of the em-
ployee magazine article and did not mention whether
she saw the posters or subsequent payroll stuffer. The
district court therefore correctly compelled arbitration
without a trial on whether a contract was formed.
Finally, we reject Tinder’s remaining arguments. She
contends that the arbitration policy is unenforceable be-
cause the program did not exist at the time she was hired,
but agreements implemented in the course of an at-will
employment are enforceable if independently supported
by consideration. Michalski, 177 F.3d at 635; Ferraro, 368
N.W.2d at 673. Tinder also contends that the policy is
unenforceable because she did not sign anything acknowl-
edging the policy, and was not allowed to opt out of
the policy while continuing to work. Although § 3 of the
FAA requires arbitration agreements to be written, it
does not require them to be signed. Valero Refining, Inc.
v. M/T Lauberhorn, 813 F.2d 60, 64 (5th Cir. 1987). Further-
more, an employee’s written acceptance of an employ-
er’s policies is not a prerequisite to enforceability under
Wisconsin law, Ferraro, 368 N.W.2d at 669 n.2, and we have
enforced arbitration agreements lacking opt-out provisions,
see Michalski, 177 F.3d at 636; cf. Metro East Center for Con-
ditioning & Health, 294 F.3d at 927-28 (arbitration clause
contained in tariff on file with Federal Communications
Commission was enforceable against plaintiff, even though
terms of tariff were non-negotiable and plaintiff had no
power to alter the tariff). Tinder also asserts that Pinker-
ton’s promises were illusory because Pinkerton reserved
the right to modify or terminate its policies at any time.
But a valid arbitration agreement exists, and both parties
are bound by it. See Ferraro, 368 N.W.2d at 164-66.
14 No. 01-3876
III.
Because Tinder continued her at-will employment past
the effective date of the arbitration policy, and because
Pinkerton agreed to bind itself to the arbitration policy,
we conclude that adequate consideration supported Tin-
der’s agreement to arbitrate, and the agreement was en-
forceable under Wisconsin law. The district court therefore
correctly compelled Tinder to submit her Title VII claims
to arbitration. The judgment of the district court is
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-17-02