*2 SELYA, Circuit Judge.
This calls us appeal upon to consider the enforceability of mandatory agreement, contained in a resolu- dispute policy tion linked company- to an e-mailed announcement, wide insofar as it applies to brought discrimination claims under the Americans with Act Disabilities (ADA). analysis Our turns on whether the employer provided minimally sufficient no- tice of the contractual nature of the e- mailed policy and of the concomitant waiv- employee’s er of judi- access cial Weighing forum. all the attendant circumstances, we conclude that the notice Arthur G. with Telegen, whom Claudia wanting that, therefore, was and enforce- Centomini, Powell, Christopher T. J. and ment of the waiver be inappropriate. would Hoag brief, LLP Foley appel- were on for Consequently, we uphold the district lants. employer’s court’s denial motion to stay proceedings compel employee Ann Elizabeth Reesman and McGuiness claim submit his to arbitration. Williams, Equal Norris & LLP on brief for Advisory Council, Employment cu- amicus I. BACKGROUND riae. period nearly years, For a three Newhouse, J. Graing- Martin Andrew R. plaintiff-appellee Campbell Roderick toiled er, Ben Robbins on for brief New Dynam- at-will General Foundation, England Legal amicus curiae. Systems ics Corporation.1 Government 6, 2000, Starting on June held Lewis, John N. whom Lawrence R. full-time, position. salaried Mehl and John N. Lewis & Associates 30, 2001, April p.m., On at 1:54 General brief, appellee. were on for Dynamics an e-mail sent announcement Theran, Attorney, Elizabeth E. with its regarding imple- entire work force Dreiband, Counsel, whom Eric S. General poli- mentation of new resolution Davis, Acting Lorraine C. Associate Gen- (the cy Policy). tag line of Counsel, Blackwood, eral and Vincent J. indicated that the sender was “Broadcast- Cоunsel, brief, Assistant General [NDHM.Broadcaster@GD- er, NDHM Equal Employment Opportunity Com- subject heading and its read NS.Com]” mission, amicus curiae. Dispute “G. DeMuro —New Resolution
Policy.” message page- consisted of SELYA, HOWARD, long DeMuro, pres- Before LIPEZ and letter from Gerard Judges. Circuit ident Dynamics. In the intro- case, During separate reorganized corporation. times since relevant as a plaintiff’s employer Dy- direct organizational was General These minutiae need us, Systems, C4 appellation namics a business unit of Gener- cern so we use the “General Dynamics Systems Corpora- Dynamics" collectively al Government to refer com- to both Systems panies. tion. General C4 has link labeled “Brochure: pointed DeMuro out first was duetory paragraphs, in a http://csconnect.gd-cs.com/hr/dispute— “a leader Dynamics was that General on it would have marketplace,” clicking resolutionMm very competitive *3 employees, two-page its and to a brochure provided on access depended success Policy “open, forthright to worked. it was committed that detailed how the that communication,” especially of that bro- Upon reading page honest the second and resolving chure, “addressing of and the context the would have learned recipient legally pro- concerning employee employees issues who “continue company that Subsequent and rights matters.” tected after the effec- current [their] company the paragraphs explained that [Policy’s] adoption” tive date of the would Policy to the as means developed had its and that the by be “covered” terms of arising out work- legal handle issues Policy encompass, among other would then limned place The e-mail disputes. things, “[e]mployment discrimination and dispute to Policy’s four-step approach on, the claims, example, for based harassment resolution, describing step last the race, sex, religion, origin, vet- age, national by indepen- and qualified status, disability “[arbitration citizenship, or other eran arbitrator.” dent In a protected characteristics law.” right-hand lower corner shaded box the e-mail no mention whether The made have page, recipient of that the would (or how) affect an em- Policy the would following found the statement: judicial forum ployee’s right to access a Company four-step The has adopted respect workplace disputes. More- policy as the exclusive means of resolv- Policy over, that the specified it neither pro- ing workplace disputes legally for to arbitrate contained an rights. If an files a tected em- binding upon continued would become against Company, lawsuit the Com- term ployment nor indicated whether the pany ask the court to dismiss the will giving “workplace disputes” included those [Policy]. lawsuit and it to the refer statutory text claims. The rise federal part of the Policy was not link, on Clicking the second entitled although posted proper, company http://csconnect.gd-cs. “Handbook: (its Policy corpo- internal its intranet doc,” would com/hr/DRP —Handbook—2. network). rate provided have to a resolu- access handbook, contained the full Policy tion The e-mail did state that Policy (designated text of the as “Human May 1, would become effective 402”), transmission). (the Policy Resources a flow chart illus- It day its following worked, trating Policy how the forms en- urged recipients to “review the also levels, four and filing claims each carefully, [Policy] is materials as the closed compendium questions that the com- your employment essential element of an thought pany might arise. relationship.” questions Those with company’s vice-presi- invited contact the No e-mail communication part of human resources. dent required response acknowledging receipt Policy recipient or signifying phrase “enclosed materials” was Al- to two links had read understood terms. apparent reference embedded though Dynamics set a track- up e-mail. Each General located at the bottom the of its ing log to monitor whether each provided link access document record recipient moving employees opened a cur- e-mail—the could view plaintiff opened the e- link on it. The indicates clicking sor over the it mail minutes after was sent—it did submit his claims to two arbitration. See id. memorandum, §§ any steps accompanying to record 4. In an not take whether its employees Policy clicked on the embedded links contended forged all peruse either the brochure or hand- enforceable arbitrate em- Moreover, ployment-related book. has claims and maintained Policy’s supplied four-step evidence to contradict the framework was plaintiffs claim that he never or saw exclusive means for read resolution brochure, handbook, plaintiffs claims. prior to his termination. motion, opposed that *4 company’s moved to strike the affirmative II. TRAVEL THE OF CASE defense,3 and asked the court impose Dynam- (i) On December General His opposition posited sanctions. that plaintiffs employment ics terminated the an e-mail writing communication not a persistent and, therefore, of account absenteeism and Policy the satisfy did not that Alleging tardiness. these infractions provision” requirement the “written of 9 hence, dismissal) (and, (ii) that, his from a events, stemmed U.S.C. 2 and in all the sleep apnea medical condition known as Policy was unenforceable because the com- Dynamics that should have accom- pany’s General e-mail communication had failed to modated, the plaintiff filed an give administra- plaintiff adequate the that notice the complaint proper agency tive with the Policy binding was intended to form a charging discrimination on basis of the to arbitrate. disability. He that com- later withdrew In response, Dynamics General submit- in plaint Dynamics and sued General plaintiffs ted the affidavit of supervi- the ADA, Massachusetts state court the under sor, Sawyer. Sawyer John A. vouchsafed 12101-12213, §§
42 U.S.C. and Mass. Gen. that plaintiff performed most his 151B, § ch. 4.2 Laws work computer on a and was accustomed Dynamics to sending receiving
General removed the actiоn to and e-mail communi- the federal district court. See 28 U.S.C. also periodi- cations. He averred that he §§ cally 1441. It filed an thereupon plaintiff reminded the that he was asserted, among knowing, answer in which it responsible understanding, other try things, company the court could not complying policies, and plaintiffs they subject claims because policies he could access those Policy. give resolution under the To section in- company’s “Connections” defense, affidavit, company companion teeth to this invoked tranet. In a the com- (FAA), pany’s resources, vice-president Federal Arbitration Act of human 1-16, Harris, stay §§ typi- U.S.C. and moved to the Anne R. related that DeMuro plaintiff court proceedings compel cally per year sent three to five e-mails Schnorbus, motion, 2. The named suit Richard T. the district court treated it as re- company's manager, defеnse, human resources as a quest to strike the third affirmative presence codefendant. Since Schnorbus’s which had asserted nothing shape adds to the of the issues on Complaint sub- "[a]ll counts Plaintiff's are throughout appeal, Dy- we refer to General ject procedure to the resolution as if it were sole namics defendant. Policy, and [the] therefore cannot be tried complained this Court.” Neither side has plaintiff's 3. specify motion did not record, reading about this sensible of the so eight alleged affirmative defenses we follow the district court’s lead. sought ruling answer to strike. on the Policy e- could be en- and that those added that as whole the work force sig- law company-wide Massachusetts contract generally were of forced under mails employees knowledge opined plaintiff Harris lacked nificance. because De- and, therefоre, from correspondence any ac- apparent would consider the offer and would review important Muro to be ceptance of terms thoroughly. those materials from con- might be inferable his otherwise id. nugatory. tinued was See outdone, authored plaintiff Not 147 n. inade- at 3. Because it viewed the two counter-affidavits. and submitted dispositive, of notice as the court quacy daily acknowledged use of first his the question to reach of whether declined intranet, but observed company’s via can an electronic communication constitute inundated average day he was purview a written within hundred e-mails. ten and one with between In a separate the FAA. id. See no docu- point that He made the further order, affirma- the court struck the related way file in personnel ments defense, supra tive see note and denied Policy. The second affidа- referred to the plaintiffs request for sanctions. never emphasized was vit *5 Dynamics might al- informed that General Dynamics appeals now both by his employment ter the terms of stay proceedings denial of its motion to communications, that broadcast e-mails compel and arbitration and order strik- significant, or regarded should be its district affirmative defense. The to such required he was read e-mails stayed proceedings court below has and conditions keep abreast of terms interlocutory the resolution of this pending plaintiff The stated employment. of his appeal. affecting all his matters human company’s were handled III. APPELLATE JURISDICTION department, commemorated resources jurisdiction analysis a We start our with per- in his writings, and included signed inquiry. special al In the cir absence docu- compiled None of those sonnel file. cumstances, interlocutory orders аre not Policy. ments mentioned immediately appealable. See Roque-Rod The court determined that district 103, riguez Moya, v. 926 F.2d 104- Lema notify company’s efforts to (1st Cir.1991); also 05 see 28 U.S.C. to extin- about the were insufficient statutory FAA ex § 1291. The creates vis-a-vis guish judicial forum his final rule with ceptions judgment to the See disability discrimination claims. refusing stays sec respect to orders under Sys. Campbell Dynamics v. Gen. Gov’t 3, 16(a)(1)(A), § and or tion see 9 U.S.C. 142, 145, 149 Corp., F.Supp.2d 321 compel arbitra denying petitions ders (D.Mass.2004). Accordingly, it denied 16(a)(1)(B). § id. tion under section see stay proceedings compel and motion to basis, it is that we have On evident Id. arbitration. now, review, jurisdiction to here conclusions, reaching In those the court company’s mo lower court’s denial of the e-mail as focused on the characteristics of arbi stay proceedings compel tion to “a form and declared that of notification Mortg. tration. Marie v. Allied Home See more, message, fails mass email without (1st Cir.2005). 402 6 Corp., F.3d re- the minimal level of notice constitute striking company’s order quired” to enforce an to arbi- however, is, horse of at 149. court affirmative defense trate ADA claims. Id.
551 footing hue. has no aspect different This order That ends this of the matter. statutory excep- within FAA’s cache of The burden of establishing jurisdiction judgment tions to final rule. It is not party rests who asserts exis ruling denying under 3 Bank, motion section tence. See v. Viqueira First and, therefore, (1st 12, 16 Cir.1998). or section 4 of the FAA F.3d Because Gener trigger jurisdiction does not under section identify al has failed to a valid 16(a)(1). Nor does this order fall within jurisdictional hook on might which we provision the FAA’s catchall for the review hang immediate grant review the 16(a)(3), judgments, of final 9 U.S.C. plaintiffs strike, motion to that issue is not litigation ] because it does not “end[ properly before us. nоthing
the merits and more leave[ ] the court do but judg- to execute the THE IV. MERITS ment.” Corp. Green Tree Fin. v. Ran- proceed We to review the district dolph, 79, 86, 531 U.S. 121 S.Ct. (2000) (internal stay court’s denial of the motion pro quotation L.Ed.2d 373 omitted). 16(a) ceedings and compel arbitration. That or marks Since section clear- der ly essentially legal reflects types enumerates the of orders conclusion covered and, thus, plenary FAA’s warrants jurisdictional various review. See shel- ters, Sch., Inc., v. provision we decline to treat that as a Bercovitch Baldwin (1st general Cir.1998); permitting mechanism immedi- McCarthy (1st Cir.1994). Azure, ate appeal order hostile arbitra- F.3d tion. Accord Corp. conducting Bombardier v. Nat’l our inquiry, are not wed “[w]e *6 R.R. Passenger 250, Corp., rationale, 333 F.3d 254 but, ded to lower court’s (D.C.Cir.2003). rather, may any affirm its order on inde ground pendent by made manifest the rec Nor the fact appellate does that we have Grina, ord.” InterGen N.V. v. 344 F.3d jurisdiction, in any judg- advance of final (1st Cir.2003). 134, 141 ment, over the district court’s to refusal stay proceedings compel Congress and arbitration passed the FAA to overcome a give authority judicial us the to reach and history hostility out to arbitration rulings review other are agreements. not immedi- v. See Gilmer Inter- ately Condon, appealable. 20, 24, See Limone v. Corp., Lane 500 U.S. state/Johnson (1st Cir.2004) 39, (1991). 372 51 (explaining 1647, F.3d 111 114 S.Ct. L.Ed.2d 26 Its ju- pendent appellate the exercise of “place aim was to such agreements upon requires, minimum, risdiction at a a bare the same footing as other contracts.” Al- Dobson, demonstration “either pendent that the is- lied-Bruce Terminix Cos. v. 513 inextricably 265, sue 271, 834, is intertwined with the U.S. 115 S.Ct. 130 L.Ed.2d (internal (1995) conferring issue right appeal quotation or that 753 marks omit- ted). pendent review of the enacted, is to issue essential As the FAA promotes a meaningful linchpin ensure review liberal federal policy favoring arbitration issue”). means, then, This provision there is no and guarantees that written “[a] principled way jurisdiction for us to assert a evidencing ... contract a transaction over involving the order to granting by motion to commerce settle arbitration See, e.g., strike. Morales v. controversy arising Feliciano out thereafter Rullán, (1st Cir.2004) 42, 378 F.3d n. 3 48 such contract or transaction ... shall be (rejecting entreaty pendent ap- valid, irrevocable, enforceable, to exercise save pellate jurisdiction). upon grounds as such exist at law or in
552
exists,
equity
Perry
to
v.
agreement
contract.”
arbitrate
see
revocation
for the
Thomas,
483,
9,n.
482
492
107 S.Ct.
§
U.S.
2.
U.S.C.
(“[SJtate
(1987)
law,
96 L.Ed.2d
FAA, 9
3 of the
U.S.C.
Section
judicial origin, is
legislative
whether of
by
party
which a
§
a mechanism
affords
applicable
govern
that law arose to
is
if
stay
judicial pro
request
can
a court to
vаlidity, revocability,
concerning the
sues
the matter before the court
ceeding when
enforceability
generally.”);
of contracts
governed by
agree
an
involves
issue
v.
Admin. Dist.
see also Mirra Co.
Sch.
4, 9
ment
to
Section
U.S.C.
arbitrate.
(1st Cir.2001);
#35,
251 F.3d
party aggrieved
another
allows a
Pierce,
Lynch,
Fen
Rosenberg Merrill
petition a
to arbitrate to
party’s refusal
Smith, Inc.,
(1st
1, 19
ner &
170 F.3d
in ac
compel
district court to
arbitration
Cir.1999).
preexisting
parties’
cordance with
party
on the FAA to
When
relies
seeking
stay pro
agreement.
party
A
assert a contractual
arbitrate
ar
ceedings
compel
section 3 or to
under
arising
a federal
claim
under
4 must
bitration under section
demon
statute, the court must un-
discrimination
“that
agreement
strate
a valid
arbitrate
inquiry
supplemental
dertake
exists,
in
entitled to
movant
—one
may overlap with the standard contract
clause,
that the other
voke
arbitration
analysis,
independent
it. That
but is
clause,
and that the
party is bound
supplemental
inquiry grows out
claim asserted comes within
clause’s
statutory
principle that while federal
InterGen,
at
scope.”
142.
claims can come within
showing
for such a
follows from
need
pursuant
that is enforceable
party seeking
“a
principle
bedrock
FAA,
statutory
some federal
claims
for a
an arbitral forum
substitute
may
appropriate
not be
arbitration.
show,
minimum, that
forum must
at a bare
Gilmer,
1647.
U.S.
S.Ct.
agreed
to arbitrate
protagonists have
Thus,
supplemental inquiry
focuses on
McCarthy,
553
legislative history
employee rights
of the ADA
the text
was not “clear and unmis-
preclude
intent to
arbitration.
indicated
takable.” Id. at 82 & n.
119
391.
S.Ct.
contrary,
expressly
Id. To the
the ADA
standard,
In articulating that
the Court
by providing
endorses arbitration
expressly declined to consider whether to
appropriate and to the extent
“[w]here
extend it to individual waivers and re-
law,
by
authorized
the use of alternative
commenting
frained from
meaning
on the
resolution,
including
means of
...
of the
“appropriate”
word
in the latter
arbitration,
encouraged
to resolve dis-
context.
id.
See
putes arising under this Act.”
U.S.C.
Rosenberg,
In
this court
addressed
fíne,
§
12212.
the text of the ADA
question
interpretive
considering
Congress contemplat-
leaves no doubt that
effect of
language
identical
found in the
ed arbitral
resolution of at
least some
Civil Rights Act of
on
the enforce-
Bercovitch,
brought
claims
thereunder.
ability of individual agreements tо arbi-
at
trate certain employment discrimination
Although
a part
Bercovitch solved
claims.4
Rosenberg,
See
at 18-
F.3d
puzzle
finding
the ADA did not
19. The Rosenberg majority reasoned
necessarily prohibit
of a
enforcement
waiv-
that,
least,
very
at the
the words “to the
forum,
er of a
ques-
by
extent authorized
law” must mean that
agreements
tion remained whether
involv-
civil rights
no
permis-
statutes are
more
ing
long
such waivers are
as
enforceable
sive than the FAA in enforcing agree-
they
or,
the requirements
meet
of the FAA
arbitrate;
is,
ments to
“arbitration
alternatively, whether section 12212 should
agreements that are unenforceable under
further,
be
impose
understood to
inde-
the FAA are also
ap-
unenforceable when
pendent
enforceability
limitation on the
plied to claims under [such
Id.
statutes].”
agreements.
such
That inquiry has come
at
majority
19. The
deemed
unneces-
on
bearing,
any,
focus
if
sary to decide
whether
clause carries
appropriate
clause
to the
“[w]here
ex-
greater
“a meaning
than a reference to
law,”
tent authorized
42 U.S.C.
id.,
FAA,”
and instead
focused
enforceability
agreements
to ar-
Congress’s
agreements
concern that
to ar-
In Wright
bitrate ADA claims.
v. Univer-
bitrate
only
be enforced
when it would be
Corp.,
sal Maritime Service
525 U.S.
so,
“appropriate” to do
id. at 19-21. Not-
(1998),
S.Ct.
L.Ed.2d 361
“appropriate” conveyed
that the word
Supreme Court gave force to the word
“a
expressed
concern not
in the FAA or
“appropriate”
in section 12212
finding
law,”
at common
the Rosenberg
id.
that it would not
appropriate,
within the
*8
word,
majority interpreted
of
that word as
meaning
agree-
prompt-
that
to
an
enforce
additional,
ment
employment
independent inquiry
to arbitrate
discrimina-
into
claims,
tion
in a
the аppropriateness
restricting
contained
collective bar-
access
gaining
pact,
where
union’s waiver of
forum or of
arbi-
compelling
note),
Although Rosenberg
arising
4.
§
involved a claim
42
U.S.C.
12212. For another
VII,
interpretation
thing,
by
under Title
the
applies
its
term
118
own
section
its
terms
to
"appropriate”
applicable
fully
"provisions
by
is
here. For
of federal
amended
[the
law
thing,
provision
Rights
Rights
one
the
examined in Rosen-
Civil
Act of
Civil
Act of
1991].”
118,
1991,
berg
Rights
the
§
118 of
Civil
Act of
tration impress provision to re- case,5 majority inappropriate The then found id. at 20. Rosenberg’s Title quiring arbitratiоn agreement enforcing the arbitration id.; 21 claim. See see also id. at VII claim would Rosenberg’s Title VII to at 82 n. (relying upon Wright, 525 U.S. the circum- appropriate under not be proposition for that the 119 S.Ct. of that to the formation stances attendant “has some appropriateness requirement at agreement. id. 19-21. See teeth”). Rosenberg holding, In so ma- analysis case- is appropriateness jority employer must determined Rosenberg, plaintiff, upon specific. In afford minimal level of notice to the “some position with the defen- accepting a trainee statutory subject are claims in- dant, a standard securities signed had for to arbitration” order arbitration to U-4, form, as a dustry known 21. appropriate. be deemed Id. at certain to arbitrate tained ap- Rosenberg’s, application While Id. 3. In claims. at employment-related fact-dependent, propriateness standard what kinds of claims specifying lieu by majority’s recognition are we bound covered, incorporated form the U-4 statutory has indepen- that this term some rules various reference the securities Accordingly, inquire we must dent bite. did not indicate organizations but whether Dynamics’s e-mail an- whether General (or any disputes rules covered all those provided nouncement suffi- de- employer, at 18. The disputes). Id. cient notice to contin- so, supplied do never spite promising to employment ued would constitute waiver copy applicable Rosenberg with litigate employment- of his rules, she nor it adduce evidence that did claim, thereby ju- rendering related ADA them. Id. at familiar with had been made appropri- dicial enforcement of that waiver (i) not on 20. Because the U-4 form did ate. its face indicate backdrop, employment against to all dis- Viewed arbitrate extended (ii) prevail can for putes employer neglected had its demand only if Rosenberg with the rules arbitration it can establish that the familiarize mandatory arbitration is delineating coverage despite express provision part (3d Cir.1998) Rosenberg (finding dissenting F.3d 183 "most member of panel majority’s questioned appro conclusion to read the clause "where reasonable” "appropriate” in the word demands an priate law” as and to extent authorized surrounding the quiry circumstances into the FAA); hortatory provision referring agreement. formation of an arbitration Aktiengesellschaft, see Gold v. Deutsche also J., (Wellford, Rosenberg, at 22 con 170 F.3d (2d Cir.2004) (declining F.3d part dissenting By curring part). adopt Rosenberg’s interpretation of the term token, have flocked the same other courts "appropriate” in context of an "ap Rosenberg’sreading adopt of the word clause contained in a securities See, e.g., propriate.” v. Prudential Haskins Haskins, form). registration But see Co., (6th Cir.2000) F.3d Ins. J., (Cole, dissenting) (commending Congress (noting how is not clear “[i]t *9 Rosenberg approach); v. Prudential Ins. Co. 'appropriate’ apply the in intended term Lai, (9th Cir.1994) (hold 42 F.3d 1305 finding it and therefore arbitration cases” ing "appropriate” the that the word in statute heightened require standard "unwise tends the enforcement of arbitration to limit 'appropriate' a clear be without arbitration plaintiff provisions in the to situations which so, especial Congressional requirement to do knowingly agreed “has to submit such dis favoring ly light strong policy of federal arbitration”). putes to Co., arbitration”); Seus v. John Nuveen & part, purview steadfastly of a valid contract within the of maintains court the FAA and this that he finds neither read the transmittals nor provision enforcement of the arbitration learned of the of purported waiver his appropriate right litigate would Dynamics under the ADA. until General independent, yet overlapping, These are tried to shunt his claims to arbitration. At issues. The district court on this stage proceedings, then, focused there is whether no a compelled was enforceable basis for finding of actual ADA parties under the and the have notice. de- of argumenta-
voted the lion’s share their Accordingly, sufficiency of the notice tion point. Consequently, to that we turn whether, totality turns on under the of question first to the appropriateness. circumstances, the employer’s communica- sake, Assuming, argument’s tion provided reasonably would have pru- is a valid contract dent employee notice of the waiver. This general principles under of Massachusetts objective -an Rosenberg, standard. See law,6 inquire we whether 42 U.S.C. 170 F.3d at n. 17. Factors relevant to § 12212, which recognizes agreements to analysis include; this to, but are not limited only ADA doing arbitrate claims where so communication, of method the work- appropriate, precludes would be the en- context, place and the content of com- agreement. forcement munication. appropriateness enforcing matter, As an initial requires this case an agreement to arbitrate an ADA claim us to consider the proper weight whether, hinges totality under the choice of a mass e-mail as a means of circumstances, employer’s commu communication bears on this multi-factor employees nications to its afforded “some inquiry. The district court dis sharply minimal level of notice” to ap sufficient Dynamics’s counted General case based prise employees those that continuеd em particular use of this medium. See ployment would effect waiver Campbell, F.Supp.2d at 148-49. We pursue the claim a forum. discount; question the extent of that our many cases, See 21. In employer id. at view, e-mail, couched, properly can be satisfy relatively be able to this light will an appropriate forming medium for an ar burden producing evidence demonstrat Withal, agreement. bitration dowe ing had actual notice of opinion read the district holding court’s as agreement. generally See Gibson v. contrary to the would be incorrect— —that Clinics, Inc., Neighborhood Health 121 but enumerating ways several (7th Cir.1997). Here, F.3d readily Dynamics and inexpensive General however, ly particular did not bother could have made this e-mail any employee elicit from an affirmation notice more informative. See id. 149. (much that he or she had acknowledge read We nonetheless dis Policy) less opinion he or she had trict a high court’s does exhibit arriving degree skepticism become aware that for work the about the of e- use morning next binding would constitute ac rimil in context. We do not share that ceptance replac skepticism: of new contractual term we easily can envision circum e-mail, court access with arbitration. For straightforward stances in which a parties implicit do not the district their concession. See Mathewson Indus., Inc., seemingly application Corp. court's reasonable Allied Marine law, (1st Cir.1987). accept Massachusetts we are free 853 n. 3 *10 comparison ment to other delineating agree- typical was an
explicitly ment, appropriate. would significant communications transmitted to his employ- over the course events, Signatures all the Electronic ment. (E- Commerce Act in Global and National 106-229, 114 Act), No. Stat. Sign Pub.L. history past communication at (codified (2000) §§ at 15 7001- U.S.C. workplace this establishes e-mails 7031), any rule that a likely precludes flat communica- preferred were a method of un- is unenforceable contract to arbitrate however, po- plaintiff, tion. The takes promul- solely its the ADA because der that, although electronic communica- sition medium to e-mail as the gator chose use may have company’s tion via the intranet E-Sign agreement. effectuate widely method of been “the most used part: provides pertinent Act co-workers,” communicating with e-mail statute, regulation, Notwithstanding any means utilized was not usual (other than this of law or other rule company personnel to handle matters. subchapter II of this subchapter and Rather, any significant alterations chapter), respect any transaction employment relationship (including his hir- foreign or com- affecting in or interstate termination) were memorialized in (1) contract, oth- signature, or merce — relating sig- to such transaction writings required er record conventional effect, validity, legal may not be denied then piece paper, nature on which was solely because it is enforceability Dy- in a file. General placed personnel electronic form. facts, does not these but namics plaintiff performed most counters 7001(a). This statute defini- U.S.C. and that computer of his work on issue, tively open by left resolves court, F.Supp.2d supervisor company had informed him that Campbell, 321 district as to whether on the intranet. policies were accessible FAA under the arbitrate unenforceable company’s proffer wanting. We find the satisfy not the FAA’s it does because absent is the identification Conspicuously provision” requirement, “writtеn U.S.C. compa- other instance which the terms, By Act plain E-Sign § 2. upon an in- ny either an e-mail or the FAA’s relied prohibits any interpretation of requirement provision” “written posting tranet introduce contractual legal giving effect to preclude would a condition of term was become that it was agreement solely on the basis think employment. continued We Specht Netscape in electronic form. See a qualitative there is difference between 17, 26 n. Corp., 306 F.3d Communications policy term and a that informs the such a (2d Cir.2002). relationship imposes but no upon the choice of mass Having obligations party. clarified that either enforceable appropri- e-mail is determinative weighs heavily all the more This defect notice, rele- ateness of the we consider the easily because could so have been of that means of notification within vаnce Dynam- way remedied. One General Dynamics’s work- the context particular set communi- ics could have and conventions. We start place routines from the would inquiring apart the e-mail announce- cation crowd have whether *11 link. take the communication require response to the e-mail. We as the been to and, therefore, Instead, company opted employer for a “no re- structured it fo- the con- cus on the content of the e-mail announce- required” format. Within sponse that particular employment upon rela- ment. General relied text of this significant personnel Policy, in broadcast to introduce the and it is tionship, which historically beyond peradventure had transacted clear that its effec- matters been documents, unveiling this choice dis- tiveness vel non in the nature signed via significance Policy of the communicatiоn. of the is relevant to guised import or, person in a more whether a should Signing acknowledgment reasonable be context, clicking charged inquiry on a com- notice of the manda- modern box screen, tory en- contained in puter are acts associated with arbitration Policy. an affir- tering Requiring Upon perscrutation, into contracts. close we response carry mative of that sort would have conclude its text did not Policy providing warning was contractual in fair signaled that burden showing up day that the for Although nature. we do not hold work the next would response important rights. of an affirmative result a waiver of requirement necessary satisfy every 12212 in section One fundamental flaw is that the e-mail circumstance, the lack of that level of inex- directly Policy did not state pensively formality obtainable made it less tained an was likely spark that the communication would meant to of an employee’s effect waiver Policy a realization that the new mar- forum. Nor did access binding shaled effects. anything put the e-mail contain upshot supports recipient inquiry possibili- is that the record notice of that ty by conveying Policy’s the conclusion that e-mail was a familiar contractual many significance. explicitness may for forms of intra-office com- not format While munication, notice, qua not a sine non of an it suggest but does e- be effective gone long way mail was a traditional means either for would have toward meet- conveying contractually binding employer’s terms or burden. effectuating employees’ legal for waivers of A second flaw relates to tone and choice circumstance, rights. Given that we can- phrase. Policy spoke itself While say delivery heralding not of an e-mail clear, lаnguage (e.g., contractual “continua- policy of a new would raise a red the birth shall employment by tion of individual flag enough vivid to cause a reasonable acceptance” provi- deemed [an] anticipate imposition of a employee Policy, that mutual obli- sions of the “[t]he legally significant alteration to the terms gations Policy set forth in shall con- [the] employment. and conditions of his There- Employee stitute a contract between the case, fore, within the context of this the e- Policy Company,” and the and that “[the] communication, itself, mail was agreement be- shall constitute the entire enough put a reasonable Company and the Employee tween notice of an alteration to the inquiry Claims”), the e- the resolution of covered aspects contractual re- mail announcement descanted in an entirе- lationship. ly vocabulary, downplaying the different Policy. obligations
This leaves the content of the communi- set forth cation, either that components: had two the e- text of the e-mail did not state contractually binding ancillary mail announcement and the docu- contained treat computer employer accessible via terms or that would ments *12 provide notice of a of materials did little acceptance as an employment continued judicial telling, most the e- to access a Perhaps waiver of the those terms. dispute four-step description accompanying descrip- mail’s the forum because crucial omitted the procedure convey resolution failed to tion of those materials law, that, regimen matter of fact as a legal significance. their employee’s an exclusive would become blunt, announсement To be the e-mail claims remedy employment-related for Policy significance undersold n Fi- every, description. kind and virtually fact that it con- and omitted the critical com- nally, the e-mail announcement while agreement. mandatory tained a that arbitration is a municated the notion employee The result was that reasonable kinder, litigation alternative to gentler announcement and could read e-mail blessing, sug- it did not company’s had the Policy op- an presented conclude that the to become man- gest that arbitration was litigation rather than a tional alternative employ- an datory thereby extinguish it. Because mandatory replacement for a means to a forum as ee’s access communication lends itself to primary viewed, So the con- dispute for resolution. cluing than such a conclusion—rather very do not constitute a tents of the e-mail by including simple statement the reader finding sturdy upon reed rest Policy kind contained in the itself inquiry notice. obligations mutual set forth in that “[t]he much of the makes Policy constitute a contract be- shall [the] stated fact that the announcement Company”— Employee tween the and the Policy “an essential element that the was put recipi- we conclude that it failed to relationship” and re of [the] inquiry ent on notice of the unilateral recipient to “review the en quested tract offer contained the linked materi- carefully.” Although closed materials als. indicate to a rea these statements would person employer regarded that the sonable yet There journey Our is not at end. they in and important, as do not is a final circumstance under which intimate) (or even of themselves elucidate might conveyed suffi- communication have mandatory agreement imposition of a cient notice. The e-mail announcement v. Tenet to arbitrate.7 Patterson Cf. of a employees did alert to the existence (8th Healthcare, Inc., 113 F.3d employee containing new handbook Cir.1997) “I (noting that terms such as Policy. This adds a new dimension to the agree,” accept,” “I and “condition of em employer’s argument. ployment” distinguish legally significant uni- Personnel handbooks do not have non-binding policies from communications legal significance; import form such employee to an that the com by imparting according a handbook varies multitude an enforceable con munication constitutes tract). Massachusetts, Here, example, In request to read certain of factors. Rosenberg, Dynamics suggests request 21 n. In Rosen- 7. General that its however, berg, was no that the recipient "review the enclosed mаte- there charges signed a mani- carefully" automatically had contract and thus rials terms; her assent to be bound its plaintiff with notice of the contents of the fested support court observed that of this line of was on basis linked documents. obligated comply Rosenberg proposi- reasoning, for the she would have been it cites terms, long they provid- provided had been employer] had those so "[i]f [the tion that Thus, promised. Rosenberg is employee] employee] did ed to her as but [the [the rules them, inapposite point. on this not read that would not save her.” holding hand We caution that this should not enforceability of upon general a host of be read as a denunciation of e-mail depends a contract book as considerations, including content and as a medium for contract formation case, workplace. its distribution. See This is a close аnd our the circumstances of Co., holding specific Tel. here is tied to its facts. Eng. v. New & O’Brien Tel. *13 (1996). 843, Moreover, 686, analysis our has revealed 664 N.E.2d 847-49 sever- Mass. instances, may readily al simple steps In such handbooks available to the some employer likely for the formation of would have ensured requirements meet the See, adequacy Rosenberg, In other of the notice. In e.g., a contract. id. See, instances, that an they e.g., do not. Weber F.3d at we observed em- Teamwork, Inc., ployer approach 434 Mass. who takes a barebones Cmty. (2001); the risk that affording Jackson v. Action notice runs its ef- N.E.2d Dev., Cmty. 403 Mass. 525 forts will fall short. This case illustrates Boston (1988). accuracy of that observation. N.E.2d Dy- employee If a reasonable of General CONCLUSION V. known, given prior namics would have dealings company go pe- between the and its We need no further. Under the case, force, culiar pеrsonnel op- handbooks circumstances of this we can- work equivalents say the functional of con- not the e-mail announcement erated as tracts, policy apprised employ- the introduction of a new and would have a reasonable fact, promulgation Policy in a reissued ee that was a contract of its extinguished right his or her might handbook have sufficed to alert such access judicial forum of federal employee that the handbook contained for resolution em- Here, however, legally binding ployment terms. discrimination claims. notice, minimally produced has no evi- absence of sufficient we not personnel appropriate historical use of conclude that it would dence Policy’s purported workplace handbooks would have enforce the waiver ADA suggested litigate that the reissued handbook car- claims. Conse- Therefore, significance. quently, ried contractual the district court did not err stay litigation company’s promul- denying we conclude that the motion to more, handbook, gation compel of a new without recourse to an arbitral forum. support finding adequate does Affirmed. notice. LIPEZ, concurring. analysis, question Judge,
In the last
Circuit
mini-
provided
whether the announcement
Selya’s
of our decision
Judge
application
mally
by signaling
sufficient notice
Pierce,
Rosenberg
Lynch,
v. Merrill
employee
reasonable
was a
(1st
Smith, Inc.,
Fenner &
munication —we answer that negative.