Hergenreder v. Bickford Senior Living Group, LLC, 656 F.3d 411

Background

Hergenreder was hired as a nurse at Bickford in October 2006 and took medical leave for cancer treatment shortly after.
She was terminated on December 12, 2006 due to surgery and recuperation, with a letter sent January 25, 2007 stating termination with rehire status.
In August 2009, Hergenreder sued for disability discrimination under the Americans with Disabilities Act.
At hiring, she signed numerous documents, none mentioning arbitration, but she acknowledged reading the Employee Handbook.
The Handbook states it is not a contract, but Section XII directs employees to the Eby Companies Dispute Resolution Procedure (DRP) for details.
The DRP and an accompanying arbitration agreement are separate from the Handbook, and there is no evidence Hergenreder received or saw the DRP.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was an arbitration agreement formed?	Hergenreder never saw or signed the DRP and had no notice of arbitration.	DRP was distributed to employees and referenced in the Handbook as the arbitration mechanism.	No arbitration agreement formed; no notice or assent by Hergenreder.
Does the Handbook bind via DRP despite its contract-noncontract language?	Handbook explicitly not a contract; DRP is a separate document not presented to her.	DRP evidence in the Handbook creates an offer via notice and acceptance through employment.	Handbook alone does not bind; DRP not properly offered or accepted.
Did Hergenreder assent to the DRP through continued employment?	There was no knowledge of the DRP's arbitration terms; no assent to arbitration terms.	Reasonable notification and continued employment constitute assent to DRP.	No assent; no binding arbitration agreement formed.
Was there a knowing and voluntary waiver of a jury trial if arbitration applied?	Waiver could not be knowing or voluntary given lack of awareness of DRP and arbitration terms.	If an agreement existed, Morrison factors show waiver could be knowing and voluntary.	Even if an agreement existed, Morrison factors weigh against knowing waiver; but the main holding is no binding arbitration.
Should the district court have compelled arbitration and dismissed the case?	Arbitration not formed; case should proceed in court.	FAA requires arbitration if a valid agreement exists and the dispute is arbitrable.	District court erred; reversed and remanded for further proceedings consistent with the opinion.

Key Cases Cited

Javitch v. First Union Sec., Inc., 315 F.3d 619 (6th Cir.2003) (FAA requires limited review to determine arbitrability)
Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967 (6th Cir.2007) (state contract formation law governs arbitration agreements)
Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681 (Supreme Court, 1996) (preemption of state laws governing arbitration provisions)
Kamalnath v. Mercy Mem'l Hosp. Corp., 487 N.W.2d 499 (Mich. Ct. App. 1992) (offer and acceptance in Michigan contract formation; elements of contract)
Kloian v. Domino's Pizza L.L.C., 733 N.W.2d 766 (Mich. App. 2006) (objective standard for mutual assent; manifestation of intent to be bound)
Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir.2003) (factors for knowing and voluntary waiver of jury trial in arbitration context)
Cooper v. MRM Inv. Co., 367 F.3d 493 (6th Cir.2004) (jury trial right vanishes when claims are properly before an arbitral forum)
Hess v. Cannon Twp., 696 N.W.2d 742 (Mich. App. 2005) (Michigan contract elements and mutuality)
Ehresman v. Bultynck & Co., P.C., 511 N.W.2d 724 (Mich. App. 1994) (assent to arbitration via delivery and operation under terms)