582 F. App'x 711
9th Cir.2014Background
- Bayer began working for Neiman in 2006 and was diagnosed with emphysema in 2007, leading to medical leave and restricted duties.
- Bayer returned subject to a schedule limitation (four days a week, eight-hour shifts) and alleges Neiman failed to accommodate, risking full-time status and benefits.
- On June 20, 2007, Bayer filed an EEOC claim and Neiman mailed a dispute-resolution program including a mandatory Arbitration Agreement with an Acknowledgment Form.
- Bayer refused to sign the Acknowledgment Form and subsequently filed additional EEOC complaints alleging disability discrimination.
- From 2007 to 2008 Bayer repeatedly refused to sign arbitration-related forms and communicated his refusal to supervisors and via letters.
- Neiman terminated Bayer in January 2009, who then filed a discrimination and retaliation suit; Neiman moved to compel arbitration, which the district court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bayer’s continued employment implied consent to arbitration under California law | Bayer did not consent; he refused to sign and challenged the mandate | Continued employment after disclosure implies consent under some CA authorities | No implied consent; district court's conclusion affirmed |
| Whether arbitrability must be decided by the arbitrator, not the court | (Bayer) arbitrability should be decided by the court | Not argued; district court did not reach it | Court declines to address arbitrability; not decided on interlocutory appeal |
Key Cases Cited
- Craig v. Brown & Root, Inc., 84 Cal. App. 4th 416 (Cal. Ct. App. 2000) (employee consent implied where terms not signed but implied by conduct; contrast with sign-required cases)
- Gorlach v. Sports Club Co., 209 Cal. App. 4th 1497 (Cal. Ct. App. 2013) (continued employment did not create implied-in-fact arbitration when employee was required to sign)
- Mitri v. Arnel Mgmt. Co., 157 Cal. App. 4th 1164 (Cal. Ct. App. 2007) (no implied consent where employees did not sign separate arbitration agreement)
- Romo v. Y-3 Holdings, Inc., 87 Cal. App. 4th 1153 (Cal. Ct. App. 2001) (no arbitration agreement where employee acknowledged general provisions but not arbitration clause)