Campbell v. General Dynamics Government Systems Corp.

United States Court of Appeals
For the First Circuit

No. 04-1828

RODERICK CAMPBELL,
Plaintiff, Appellee,

v.

GENERAL DYNAMICS GOVERNMENT SYSTEMS CORPORATION AND
RICHARD T. SCHNORBUS,
Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Lipez and Howard, Circuit Judges.

Arthur G. Telegen, with whom Claudia T. Centomini, Christopher
J. Powell, and Foley Hoag LLP were on brief, for appellants.
Ann Elizabeth Reesman and McGuiness Norris & Williams, LLP on
brief for Equal Employment Advisory Council, amicus curiae.
Martin J. Newhouse, Andrew R. Grainger, and Ben Robbins on
brief for New England Legal Foundation, amicus curiae.
John N. Lewis, with whom Lawrence R. Mehl and John N. Lewis &
Associates were on brief, for appellee.
Elizabeth E. Theran, Attorney, with whom Eric S. Dreiband,
General Counsel, Lorraine C. Davis, Acting Associate General
Counsel, and Vincent J. Blackwood, Assistant General Counsel, were
on brief, for Equal Employment Opportunity Commission, amicus
curiae.

May 23, 2005
 SELYA, Circuit Judge. This appeal calls upon us to

consider the enforceability of a mandatory arbitration agreement,

contained in a dispute resolution policy linked to an e-mailed

company-wide announcement, insofar as it applies to employment

discrimination claims brought under the Americans with Disabilities

Act (ADA). Our analysis turns on whether the employer provided

minimally sufficient notice of the contractual nature of the e-

mailed policy and of the concomitant waiver of an employee's right

to access a judicial forum. Weighing all the attendant

circumstances, we conclude that the notice was wanting and that,

therefore, enforcement of the waiver would be inappropriate.

Consequently, we uphold the district court's denial of the

employer's motion to stay proceedings and compel the employee to

submit his claim to arbitration.

I. BACKGROUND

For a period of nearly three years, plaintiff-appellee

Roderick Campbell toiled as an at-will employee of General Dynamics

Government Systems Corporation.1 Starting on June 6, 2000, the

plaintiff held a full-time, salaried position.

1
During the times relevant to this case, the plaintiff's
direct employer was General Dynamics C4 Systems, a business unit of
General Dynamics Government Systems Corporation. General Dynamics
C4 Systems has since reorganized as a separate corporation. These
organizational minutiae need not concern us, so we use the
appellation "General Dynamics" to refer collectively to both
companies.

-2-
 On April 30, 2001, at 1:54 p.m., General Dynamics sent an

e-mail announcement to its entire work force regarding the

implementation of a new dispute resolution policy (the Policy).

The tag line of the e-mail indicated that the sender was

"Broadcaster, NDHM [NDHM.Broadcaster@GD-NS.Com]" and its subject

heading read "G. DeMuro — New Dispute Resolution Policy." The

message consisted of a page-long letter from Gerard DeMuro, the

president of General Dynamics. In the introductory paragraphs,

DeMuro pointed out that General Dynamics was "a leader in a very

competitive marketplace," that its success depended on its

employees, and that it was committed to "open, forthright and

honest communication," especially in the context of "addressing and

resolving employee issues concerning legally protected rights and

matters." Subsequent paragraphs explained that the company had

developed the Policy as a means to handle legal issues arising out

of workplace disputes. The e-mail then limned the Policy's four-

step approach to dispute resolution, describing the last step as

"[a]rbitration by a qualified and independent arbitrator."

The e-mail made no mention of whether (or how) the Policy

would affect an employee's right to access a judicial forum with

respect to workplace disputes. Moreover, it neither specified that

the Policy contained an agreement to arbitrate that would become

binding upon continued employment nor indicated whether the term

"workplace disputes" included those giving rise to federal

-3-
statutory claims. The text of the Policy was not part of the e-

mail proper, although the company posted the Policy on its intranet

(its internal corporate network).

The e-mail did state that the Policy would become

effective on May 1, 2001 (the day following its transmission). It

also urged recipients to "review the enclosed materials carefully,

as the [Policy] is an essential element of your employment

relationship." Those with questions were invited to contact the

company's vice-president of human resources.

The phrase "enclosed materials" was an apparent reference

to two embedded links located at the bottom of the e-mail. Each

link provided access to a document that the recipient could view by

moving a cursor over the link and clicking on it. The first link

was labeled "Brochure: http://csconnect.gd-

cs.com/hr/dispute_resolution.htm"; clicking on it would have

provided access to a two-page brochure that detailed how the Policy

worked. Upon reading the second page of that brochure, the

recipient would have learned that company employees who "continue

[their] current employment after the effective date of the

[Policy's] adoption" would be "covered" by its terms and that the

Policy would encompass, among other things, "[e]mployment

discrimination and harassment claims, based on, for example, age,

race, sex, religion, national origin, veteran status, citizenship,

disability or other characteristics protected by law." In a shaded

-4-
box in the lower right-hand corner of that page, the recipient

would have found the following statement:

The Company has adopted this four-step policy
as the exclusive means of resolving workplace
disputes for legally protected rights. If an
employee files a lawsuit against the Company,
the Company will ask the court to dismiss the
lawsuit and refer it to the [Policy].

Clicking on the second link, entitled "Handbook:

http://csconnect.gd-cs.com/hr/DRP_Handbook_2.doc," would have

provided access to a dispute resolution handbook, which contained

the full text of the Policy (designated as "Human Resources Policy

402"), a flow chart illustrating how the Policy worked, forms for

filing claims at each of the four levels, and a compendium of

questions that the company thought might arise.

No part of the e-mail communication required a response

acknowledging receipt of the Policy or signifying that a recipient

had read and understood its terms. Although General Dynamics set

up a tracking log to monitor whether each of its employees opened

the e-mail — the record indicates that the plaintiff opened the e-

mail two minutes after it was sent — it did not take any steps to

record whether its employees clicked on the embedded links to

peruse either the brochure or the handbook. Moreover, General

Dynamics has not supplied any evidence to contradict the

plaintiff's claim that he never read or saw the brochure, the

handbook, or the Policy prior to his termination.

-5-
II. TRAVEL OF THE CASE

On December 30, 2002, General Dynamics terminated the

plaintiff's employment on account of persistent absenteeism and

tardiness. Alleging that these infractions (and, hence, his

dismissal) stemmed from a medical condition known as sleep apnea

that General Dynamics should have accommodated, the plaintiff filed

an administrative complaint with the proper agency charging

discrimination on the basis of disability. He later withdrew that

complaint and sued General Dynamics in a Massachusetts state court

under the ADA, 42 U.S.C. §§ 12101-12213, and Mass. Gen. Laws ch.

151B, § 4.2

General Dynamics removed the action to the federal

district court. See 28 U.S.C. §§ 1331, 1367, 1441. It thereupon

filed an answer in which it asserted, among other things, that the

court could not try the plaintiff's claims because they were

subject to resolution under the Policy. To give teeth to this

defense, the company invoked the Federal Arbitration Act (FAA), 9

U.S.C. §§ 1-16, and moved to stay the court proceedings and compel

the plaintiff to submit his claims to arbitration. See id. §§ 3,

4. In an accompanying memorandum, it contended that the Policy

forged an enforceable agreement to arbitrate all employment-related

2
The suit named Richard T. Schnorbus, the company's human
resources manager, as a codefendant. Since Schnorbus's presence
adds nothing to the shape of the issues on appeal, we refer
throughout to General Dynamics as if it were the sole defendant.

-6-
claims and maintained that the Policy's four-step framework was the

exclusive means for resolution of the plaintiff's claims.

The plaintiff opposed that motion, moved to strike the

company's affirmative defense,3 and asked the court to impose

sanctions. His opposition posited (i) that an e-mail communication

is not a writing and, therefore, the Policy did not satisfy the

"written provision" requirement of 9 U.S.C. § 2 and (ii) that, in

all events, the Policy was unenforceable because the company's e-

mail communication had failed to give the plaintiff adequate notice

that the Policy was intended to form a binding agreement to

arbitrate.

In response, General Dynamics submitted the affidavit of

the plaintiff's supervisor, John A. Sawyer. Sawyer vouchsafed that

the plaintiff performed most of his work on a computer and was

accustomed to sending and receiving e-mail communications. He also

averred that he periodically reminded the plaintiff that he was

responsible for knowing, understanding, and complying with company

policies, and that he could access those policies on the

"Connections" section of the company's intranet. In a companion

3
The plaintiff's motion did not specify which of the eight
affirmative defenses alleged in the answer it sought to strike. In
ruling on the motion, the district court treated it as a request to
strike the third affirmative defense, in which General Dynamics had
asserted that "[a]ll counts of Plaintiff's Complaint are subject to
the dispute resolution procedure of [the] Policy, and therefore
cannot be tried by this Court." Neither side has complained about
this sensible reading of the record, so we follow the district
court's lead.

-7-
affidavit, the company's vice-president of human resources, Anne R.

Harris, related that DeMuro typically sent three to five e-mails

per year to the work force as a whole and that those e-mails

generally were of company-wide significance. Harris opined that

employees would consider correspondence from DeMuro to be important

and would review those materials thoroughly.

Not to be outdone, the plaintiff authored and submitted

two counter-affidavits. The first acknowledged his daily use of e-

mail via the company's intranet, but observed that in an average

day he was inundated with between ten and one hundred e-mails. He

made the further point that no documents in his personnel file in

any way referred to the Policy. The second affidavit emphasized

that the plaintiff was never informed that General Dynamics might

alter the terms of his employment by e-mail communications, that

broadcast e-mails should be regarded as significant, or that he was

required to read such e-mails to keep abreast of the terms and

conditions of his employment. The plaintiff stated that all

matters affecting his employment were handled by the company's

human resources department, commemorated in signed writings, and

included in his personnel file. None of those compiled documents

mentioned the Policy.

The district court determined that the company's efforts

to notify the plaintiff about the Policy were insufficient to

extinguish his right to a judicial forum vis-à-vis his disability

-8-
discrimination claims. See Campbell v. Gen. Dynamics Gov't Sys.

Corp., 321 F. Supp. 2d 142, 145, 149 (D. Mass. 2004). Accordingly,

it denied the motion to stay proceedings and compel arbitration.

Id. at 150.

In reaching those conclusions, the court focused on the

characteristics of e-mail as a form of notification and declared

that "a mass email message, without more, fails to constitute the

minimal level of notice required" to enforce an agreement to

arbitrate ADA claims. Id. at 149. The court added that the Policy

could not be enforced under Massachusetts contract law because the

plaintiff lacked knowledge of the offer and, therefore, any

apparent acceptance of the terms of the Policy that might otherwise

be inferable from his continued employment was nugatory. See id.

at 147 n.3. Because it viewed the inadequacy of notice as

dispositive, the court declined to reach the question of whether an

electronic communication can constitute a written agreement within

the purview of the FAA. See id. at 150. In a separate order, the

court struck the related affirmative defense, see supra note 3, and

denied the plaintiff's request for sanctions.

General Dynamics now appeals both the denial of its

motion to stay proceedings and compel arbitration and the order

striking its affirmative defense. The district court has stayed

the proceedings below pending the resolution of this interlocutory

appeal.

-9-
III. APPELLATE JURISDICTION

We start our analysis with a jurisdictional inquiry. In

the absence of special circumstances, interlocutory orders are not

immediately appealable. See Roque-Rodriguez v. Lema Moya, 926 F.2d

103, 104-05 (1st Cir. 1991); see also 28 U.S.C. § 1291. The FAA

creates statutory exceptions to the final judgment rule with

respect to orders refusing stays under section 3, see 9 U.S.C. §

16(a)(1)(A), and orders denying petitions to compel arbitration

under section 4, see id. § 16(a)(1)(B). On this basis, it is

evident that we have jurisdiction to review, here and now, the

lower court's denial of the company's motion to stay proceedings

and compel arbitration. See Marie v. Allied Home Mortg. Corp., 402

F.3d 1, 6 (1st Cir. 2005).

The order striking the company's affirmative defense is,

however, a horse of a different hue. This order has no footing

within the FAA's cache of statutory exceptions to the final

judgment rule. It is not a ruling denying a motion under section

3 or section 4 of the FAA and, therefore, does not trigger

jurisdiction under section 16(a)(1). Nor does this order fall

within the FAA's catchall provision for the review of final

judgments, 9 U.S.C. § 16(a)(3), because it does not "end[] the

litigation on the merits and leave[] nothing more for the court to

do but to execute the judgment." Green Tree Fin. Corp. v.

Randolph, 531 U.S. 79, 86 (2000) (internal quotation marks

-10-
omitted). Since section 16(a) clearly enumerates the types of

orders covered by the FAA's various jurisdictional shelters, we

decline to treat that provision as a general mechanism permitting

the immediate appeal of any order hostile to arbitration. Accord

Bombardier Corp. v. Nat'l R.R. Passenger Corp., 333 F.3d 250, 254

(D.C. Cir. 2003).

Nor does the fact that we have appellate jurisdiction, in

advance of any final judgment, over the district court's refusal to

stay proceedings and compel arbitration give us the authority to

reach out and review other rulings that are not immediately

appealable. See Limone v. Condon, 372 F.3d 39, 51 (1st Cir. 2004)

(explaining that the exercise of pendent appellate jurisdiction

requires, at a bare minimum, a demonstration "either that the

pendent issue is inextricably intertwined with the issue conferring

the right of appeal or that review of the pendent issue is

essential to ensure meaningful review of the linchpin issue").

This means, then, that there is no principled way for us to assert

jurisdiction over the order granting the motion to strike. See,

e.g., Morales Feliciano v. Rullán, 378 F.3d 42, 48 n.3 (1st Cir.

2004) (rejecting entreaty to exercise pendent appellate

jurisdiction).

That ends this aspect of the matter. The burden of

establishing jurisdiction rests with the party who asserts its

existence. See Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.

-11-
1998). Because General Dynamics has failed to identify a valid

jurisdictional hook on which we might hang immediate review of the

grant of the plaintiff's motion to strike, that issue is not

properly before us.

IV. THE MERITS

We proceed to review the district court's denial of the

motion to stay proceedings and compel arbitration. That order

reflects an essentially legal conclusion and, thus, warrants

plenary review. See Bercovitch v. Baldwin Sch., Inc., 133 F.3d

141, 147 (1st Cir. 1998); McCarthy v. Azure, 22 F.3d 351, 354 (1st

Cir. 1994). In conducting our inquiry, "[w]e are not wedded to the

lower court's rationale, but, rather, may affirm its order on any

independent ground made manifest by the record." Intergen N.V. v.

Grina, 344 F.3d 134, 141 (1st Cir. 2003).

Congress passed the FAA to overcome a history of judicial

hostility to arbitration agreements. See Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). Its aim was

to "place such agreements upon the same footing as other

contracts." Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265,

271 (1995) (internal quotation marks omitted). As enacted, the FAA

promotes a liberal federal policy favoring arbitration and

guarantees that "[a] written provision in . . . a contract

evidencing a transaction involving commerce to settle by

arbitration a controversy thereafter arising out of such contract

-12-
or transaction . . . shall be valid, irrevocable, and enforceable,

save upon such grounds as exist at law or in equity for the

revocation of any contract." 9 U.S.C. § 2.

Section 3 of the FAA, 9 U.S.C. § 3, affords a mechanism

by which a party can request a court to stay a judicial proceeding

when the matter before the court involves an issue governed by an

agreement to arbitrate. Section 4, 9 U.S.C. § 4, allows a party

aggrieved by another party's refusal to arbitrate to petition a

district court to compel arbitration in accordance with the

parties' preexisting agreement. A party seeking to stay

proceedings under section 3 or to compel arbitration under section

4 must demonstrate "that a valid agreement to arbitrate exists,

that the movant is entitled to invoke the arbitration clause, that

the other party is bound by that clause, and that the claim

asserted comes within the clause's scope." Intergen, 344 F.3d at

142. The need for such a showing follows from the bedrock

principle that "a party seeking to substitute an arbitral forum for

a judicial forum must show, at a bare minimum, that the

protagonists have agreed to arbitrate some claims." McCarthy, 22

F.3d at 354-55.

In this appeal, the parties dispute the most abecedarian

of the four elements: whether a valid agreement to arbitrate

exists. This element recognizes that, "[t]hough a person may, by

contract, waive his or her right to adjudication, see 9 U.S.C. § 2,

-13-
there can be no waiver in the absence of an agreement signifying an

assent." Id. at 355. In this vein, "arbitration is a matter of

contract," AT&T Techs., Inc. v. Communications Workers, 475 U.S.

643, 648 (1986) (quoting United Steelworkers v. Warrior & Gulf

Navig. Co., 363 U.S. 574, 582 (1960)), and for the most part,

general principles of state contract law control the determination

of whether a valid agreement to arbitrate exists, see Perry v.

Thomas, 482 U.S. 483, 492 n.9 (1987) ("[S]tate law, whether of

legislative or judicial origin, is applicable if that law arose to

govern issues concerning the validity, revocability, and

enforceability of contracts generally."); see also Mirra Co. v.

Sch. Admin. Dist. #35, 251 F.3d 301, 304 (1st Cir. 2001); Rosenberg

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 19 (1st

Cir. 1999).

When a party relies on the FAA to assert a contractual

right to arbitrate a claim arising under a federal employment

discrimination statute, the court must undertake a supplemental

inquiry — one that may overlap with the standard contract analysis,

but is independent of it. That supplemental inquiry grows out of

the principle that while federal statutory claims can come within

an arbitration agreement that is enforceable pursuant to the FAA,

some federal statutory claims may not be appropriate for

arbitration. Gilmer, 500 U.S. at 26. Thus, the supplemental

inquiry focuses on whether the agreement to arbitrate is

-14-
enforceable with respect to the particular statutory claim at issue

(here, the plaintiff's ADA claim). In sieving these sands, the

burden is on the party resisting arbitration to show (by means of

statutory text, legislative history, or some inherent conflict

between arbitration and the statute's purposes) that Congress, in

enacting a particular statute, intended to preclude a waiver of a

judicial forum for certain statutory claims. See id.

We applied these principles in Bercovitch, where we

rejected the plaintiffs' contention that their ADA claims were

beyond the reach of the FAA. See Bercovitch, 133 F.3d at 149-51.

In arriving at that conclusion, we found that the plaintiffs had

not carried their burden because nothing in the text or legislative

history of the ADA indicated an intent to preclude arbitration.

Id. To the contrary, the ADA expressly endorses arbitration by

providing that "[w]here appropriate and to the extent authorized by

law, the use of alternative means of dispute resolution, including

. . . arbitration, is encouraged to resolve disputes arising under

this Act." 42 U.S.C. § 12212. In fine, the text of the ADA leaves

no doubt that Congress contemplated arbitral resolution of at least

some claims brought thereunder. Bercovitch, 133 F.3d at 151.

Although Bercovitch solved a part of the puzzle in

finding that the ADA did not necessarily prohibit enforcement of a

waiver of a right to a judicial forum, the question remained

whether agreements involving such waivers are enforceable as long

-15-
as they meet the requirements of the FAA or, alternatively, whether

section 12212 should be understood to impose a further, independent

limitation on the enforceability of such agreements. That inquiry

has come to focus on the bearing, if any, of the clause "[w]here

appropriate and to the extent authorized by law," 42 U.S.C. §

12212, on the enforceability of agreements to arbitrate ADA claims.

In Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998),

the Supreme Court gave force to the word "appropriate" in section

12212 by finding that it would not be appropriate, within the

meaning of that word, to enforce an agreement to arbitrate

employment discrimination claims, contained in a collective

bargaining pact, where a union's waiver of employee rights was not

"clear and unmistakable." Id. at 82 & n.2. In articulating that

standard, the Court expressly declined to consider whether to

extend it to individual waivers and refrained from commenting on

the meaning of the word "appropriate" in the latter context. See

id.

In Rosenberg, this court addressed that interpretive

question in considering the effect of identical language found in

the Civil Rights Act of 1991 on the enforceability of individual

agreements to arbitrate certain employment discrimination claims.4

4
Although Rosenberg involved a claim arising under Title VII,
its interpretation of the term "appropriate" is fully applicable
here. For one thing, the provision examined in Rosenberg — section
118 of the Civil Rights Act of 1991 — mirrors the language found in
the ADA. Compare Civil Rights Act of 1991, Pub. L. No. 102-166, §

-16-
See Rosenberg, 170 F.3d at 18-19. The Rosenberg majority reasoned

that, at the very least, the words "to the extent authorized by

law" must mean that civil rights statutes are no more permissive

than the FAA in enforcing agreements to arbitrate; that is,

"arbitration agreements that are unenforceable under the FAA are

also unenforceable when applied to claims under [such statutes]."

Id. at 19. The majority deemed it unnecessary to decide whether

that clause carries "a meaning greater than a reference to the

FAA," id., and instead focused on Congress's concern that

agreements to arbitrate be enforced only when it would be

"appropriate" to do so, id. at 19-21. Noting that the word

"appropriate" conveyed "a concern not expressed in the FAA or at

common law," id. at 19, the Rosenberg majority interpreted that

word as prompting an additional, independent inquiry into the

appropriateness of restricting access to a judicial forum or of

compelling arbitration in a particular federal statutory case,5 id.

118, 105 Stat. 1071, 1081 (1991) (reprinted at 42 U.S.C. § 1981
note), with 42 U.S.C. § 12212. For another thing, section 118 by
its own terms applies to "provisions of federal law amended by [the
Civil Rights Act of 1991]." Civil Rights Act of 1991, § 118, 105
Stat. at 1081. Because that legislation amended certain sections
of the ADA, section 118 applies directly to the ADA. See id. §
109, 105 Stat. at 1077 (amending sections 101(4) and 102 of the
ADA).
5
The dissenting member of the Rosenberg panel questioned the
majority's conclusion that the word "appropriate" demands an
inquiry into the circumstances surrounding the formation of an
arbitration agreement. Rosenberg, 170 F.3d at 22 (Wellford, J.,
concurring in part and dissenting in part). By the same token,
other courts have not flocked to adopt Rosenberg's reading of the

-17-
at 20. The majority then found that enforcing the arbitration

agreement as to Rosenberg's Title VII claim would not be

appropriate under the circumstances attendant to the formation of

that agreement. See id. at 19-21.

The appropriateness analysis is case-specific. In

Rosenberg, the plaintiff, upon accepting a trainee position with

the defendant, had signed a standard securities industry form,

known as a U-4, which contained an agreement to arbitrate certain

employment-related claims. Id. at 3. In lieu of specifying what

kinds of claims were covered, the U-4 form incorporated by

reference the rules of various securities organizations but did not

indicate whether those rules covered all disputes (or any

disputes). Id. at 18. The employer, despite promising to do so,

word "appropriate." See, e.g., Haskins v. Prudential Ins. Co., 230
F.3d 231, 241 (6th Cir. 2000) (noting that "[i]t is not clear how
Congress intended the term 'appropriate' to apply in arbitration
cases" and therefore finding it "unwise to require a heightened
standard that arbitration be 'appropriate' without a clear
Congressional requirement to do so, especially in light of the
strong federal policy favoring arbitration"); Seus v. John Nuveen
& Co., 146 F.3d 175, 183 (3d Cir. 1998) (finding it "most
reasonable" to read the clause "where appropriate and to the extent
authorized by law" as a hortatory provision referring to the FAA);
see also Gold v. Deutsche Aktiengesellschaft, 365 F.3d 144, 149 (2d
Cir. 2004) (declining to adopt Rosenberg's interpretation of the
term "appropriate" in the context of an arbitration clause
contained in a securities employment registration form). But see
Haskins, 230 F.3d at 241 (Cole, J., dissenting) (commending the
Rosenberg approach); Prudential Ins. Co. v. Lai, 42 F.3d 1299, 1305
(9th Cir. 1994) (holding that the word "appropriate" in the statute
tends to limit the enforcement of arbitration provisions to
situations in which the plaintiff "has knowingly agreed to submit
such disputes to arbitration").

-18-
never supplied Rosenberg with a copy of the applicable rules, nor

did it adduce evidence that she had been made familiar with them.

Id. at 20. Because (i) the U-4 form did not on its face indicate

that the agreement to arbitrate extended to all employment disputes

and (ii) the employer had neglected to familiarize Rosenberg with

the rules delineating coverage despite its express promise to do

so, the majority found it inappropriate to impress the provision

requiring arbitration on Rosenberg's Title VII claim. See id.; see

also id. at 21 (relying upon Wright, 525 U.S. at 82 n.2, for the

proposition that the appropriateness requirement "has some teeth").

In so holding, the Rosenberg majority determined that the employer

must afford "some minimal level of notice to the employee that

statutory claims are subject to arbitration" in order for

arbitration to be deemed appropriate. Id. at 21.

While Rosenberg's application of the appropriateness

standard is fact-dependent, we are bound by the majority's

recognition that this statutory term has some independent bite.

Accordingly, we must inquire whether General Dynamics's e-mail

announcement of the Policy provided sufficient notice to the

plaintiff that his continued employment would constitute a waiver

of his right to litigate any employment-related ADA claim, thereby

rendering judicial enforcement of that waiver appropriate.

Viewed against this backdrop, General Dynamics can

prevail on its demand for arbitration only if it can establish that

-19-
the provision for mandatory arbitration is part of a valid contract

within the purview of the FAA and this court finds that the

enforcement of the arbitration provision would be appropriate under

the ADA. These are independent, yet overlapping, issues. The

district court focused on whether the agreement was enforceable

under the ADA and the parties have devoted the lion's share of

their argumentation to that point. Consequently, we turn first to

the question of appropriateness. Assuming, for argument's sake,

that the arbitration agreement is a valid contract under general

principles of Massachusetts law,6 we inquire whether 42 U.S.C. §

12212, which recognizes agreements to arbitrate ADA claims only

where doing so would be appropriate, precludes the enforcement of

the agreement.

The appropriateness of enforcing an agreement to

arbitrate an ADA claim hinges on whether, under the totality of the

circumstances, the employer's communications to its employees

afforded "some minimal level of notice" sufficient to apprise those

employees that continued employment would effect a waiver of the

right to pursue the claim in a judicial forum. See id. at 21. In

many cases, an employer will be able to satisfy this relatively

light burden by producing evidence demonstrating that the employee

6
The parties do not dispute the district court's seemingly
reasonable application of Massachusetts law, and we are free to
accept their implicit concession. See Mathewson Corp. v. Allied
Marine Indus., Inc., 827 F.2d 850, 853 n.3 (1st Cir. 1987).

-20-
had actual notice of the agreement. See generally Gibson v.

Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1130 (7th Cir.

1997). Here, however, General Dynamics did not bother to elicit

from any employee an affirmation that he or she had read the e-mail

(much less the Policy) or that he or she had become aware that

arriving for work the next morning would constitute binding

acceptance of a new contractual term replacing court access with

arbitration. For his part, the plaintiff steadfastly maintains

that he neither read the transmittals nor learned of the purported

waiver of his right to litigate until General Dynamics tried to

shunt his claims to arbitration. At this stage of the proceedings,

then, there is no basis for a compelled finding of actual notice.

Accordingly, the sufficiency of the notice turns on

whether, under the totality of the circumstances, the employer's

communication would have provided a reasonably prudent employee

notice of the waiver. This is an objective standard. See

Rosenberg, 170 F.3d at 21 n.17. Factors relevant to this analysis

include, but are not limited to, the method of communication, the

workplace context, and the content of the communication.

As an initial matter, this case requires us to consider

the proper weight that the choice of a mass e-mail as a means of

communication bears on this multi-factor inquiry. The district

court sharply discounted General Dynamics's case based on its use

of this particular medium. See Campbell, 321 F. Supp. 2d at 148-

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49. We question the extent of that discount; in our view, an e-

mail, properly couched, can be an appropriate medium for forming an

arbitration agreement. Withal, we do not read the district court's

opinion as holding to the contrary — that would be incorrect — but

as enumerating several ways in which General Dynamics readily and

inexpensively could have made this particular e-mail notice more

informative. See id. at 149. We nonetheless acknowledge that the

district court's opinion does exhibit a high degree of skepticism

about the use of e-mail in this context. We do not share that

skepticism: we easily can envision circumstances in which a

straightforward e-mail, explicitly delineating an arbitration

agreement, would be appropriate.

In all events, the Electronic Signatures in Global and

National Commerce Act (E-Sign Act), Pub. L. No. 106-229, 114 Stat.

464 (2000) (codified at 15 U.S.C. §§ 7001-7031), likely precludes

any flat rule that a contract to arbitrate is unenforceable under

the ADA solely because its promulgator chose to use e-mail as the

medium to effectuate the agreement. The E-Sign Act provides in

pertinent part:

Notwithstanding any statute, regulation, or
other rule of law (other than this subchapter
and subchapter II of this chapter), with
respect to any transaction in or affecting
interstate or foreign commerce — (1) a
signature, contract, or other record relating
to such transaction may not be denied legal
effect, validity, or enforceability solely
because it is in electronic form.

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15 U.S.C. § 7001(a). This statute definitively resolves the issue,

left open by the district court, Campbell, 321 F. Supp. 2d at 150,

as to whether an e-mail agreement to arbitrate is unenforceable

under the FAA because it does not satisfy the FAA's "written

provision" requirement, 9 U.S.C. § 2. By its plain terms, the E-

Sign Act prohibits any interpretation of the FAA's "written

provision" requirement that would preclude giving legal effect to

an agreement solely on the basis that it was in electronic form.

See Specht v. Netscape Communications Corp., 306 F.3d 17, 26 n.11

(2d Cir. 2002).

Having clarified that the choice of mass e-mail is not

determinative of the appropriateness of the notice, we consider the

relevance of that means of notification within the context of

General Dynamics's workplace routines and conventions. We start by

inquiring whether the e-mail announcement was typical in comparison

to other significant communications transmitted to the plaintiff

over the course of his employment.

The history of past communication at this workplace

establishes that e-mails were a preferred method of communication.

The plaintiff, however, takes the position that, although

electronic communication via the company's intranet may have been

"the most widely used method of communicating with co-workers," e-

mail was not the usual means utilized by the company to handle

personnel matters. Rather, any significant alterations to the

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employment relationship (including his hiring and termination) were

memorialized in conventional writings that required a signature on

a piece of paper, which was then placed in a personnel file.

General Dynamics does not dispute these facts, but counters that

the plaintiff performed most of his work on a computer and that his

supervisor had informed him that company policies were accessible

on the intranet.

We find the company's proffer wanting. Conspicuously

absent is the identification of any other instance in which the

company relied upon either an e-mail or an intranet posting to

introduce a contractual term that was to become a condition of

continued employment. We think that there is a qualitative

difference between such a term and a policy that informs the

employment relationship but imposes no enforceable obligations upon

either party.

This defect weighs all the more heavily because it could

so easily have been remedied. One way that General Dynamics could

have set this particular communication apart from the crowd would

have been to require a response to the e-mail. Instead, the

company opted for a "no response required" format. Within the

context of this particular employment relationship, in which

significant personnel matters historically had been transacted via

signed documents, this choice disguised the import of the

communication. Signing an acknowledgment or, in a more modern

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context, clicking a box on a computer screen, are acts associated

with entering into contracts. Requiring an affirmative response of

that sort would have signaled that the Policy was contractual in

nature. Although we do not hold that the requirement of an

affirmative response is necessary to satisfy section 12212 in every

circumstance, the lack of that level of inexpensively obtainable

formality made it less likely that the communication would spark a

realization that the new Policy marshaled binding effects.

The upshot is that the record supports the conclusion

that e-mail was a familiar format for many forms of intra-office

communication, but it does not suggest that e-mail was a

traditional means either for conveying contractually binding terms

or for effectuating waivers of employees' legal rights. Given that

circumstance, we cannot say that delivery of an e-mail heralding

the birth of a new policy would raise a red flag vivid enough to

cause a reasonable employee to anticipate the imposition of a

legally significant alteration to the terms and conditions of his

employment. Therefore, within the context of this case, the e-mail

communication, in and of itself, was not enough to put a reasonable

employee on inquiry notice of an alteration to the contractual

aspects of the employment relationship.

This leaves the content of the communication, which had

two components: the e-mail announcement and the ancillary

documents that were accessible via computer link. We take the

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communication as the employer structured it and, therefore, focus

on the content of the e-mail announcement. General Dynamics relied

upon that broadcast to introduce the Policy, and it is clear beyond

peradventure that its effectiveness vel non in unveiling the nature

and significance of the Policy is relevant to whether a reasonable

person should be charged with inquiry notice of the mandatory

arbitration agreement contained in the Policy. Upon close

perscrutation, we conclude that its text did not carry the burden

of providing fair warning that showing up for work the next day

would result in a waiver of important rights.

One fundamental flaw is that the e-mail did not state

directly that the Policy contained an arbitration agreement that

was meant to effect a waiver of an employee's right to access a

judicial forum. Nor did the e-mail contain anything to put the

recipient on inquiry notice of that possibility by conveying the

Policy's contractual significance. While explicitness may not be

a sine qua non of an effective notice, it would have gone a long

way toward meeting the employer's burden.

A second flaw relates to tone and choice of phrase.

While the Policy itself spoke in clear, contractual language (e.g.,

"continuation of employment by an individual shall be deemed [an]

acceptance" of the provisions of the Policy, that "[t]he mutual

obligations set forth in [the] Policy shall constitute a contract

between the Employee and the Company," and that "[the] Policy shall

-26-
constitute the entire agreement between the Employee and the

Company for the resolution of covered Claims"), the e-mail

announcement descanted in an entirely different vocabulary,

downplaying the obligations set forth in the Policy. The text of

the e-mail did not state either that the Policy contained

contractually binding terms or that the employer would treat

continued employment as an acceptance of those terms. Perhaps most

telling, the e-mail's description of the four-step dispute

resolution procedure omitted the crucial fact that, as a matter of

law, the regimen would become an employee's exclusive remedy for

employment-related claims of virtually every kind and description.

Finally, while the e-mail announcement communicated the notion that

arbitration is a kinder, gentler alternative to litigation and had

the company's blessing, it did not suggest that arbitration was to

become mandatory and thereby extinguish an employee's access to a

judicial forum as a means for dispute resolution. So viewed, the

contents of the e-mail do not constitute a very sturdy reed upon

which to rest a finding of inquiry notice.

General Dynamics makes much of the fact that the e-mail

announcement stated that the Policy was "an essential element of

[the] employment relationship" and requested the recipient to

"review the enclosed materials carefully." Although these

statements would indicate to a reasonable person that the employer

regarded the Policy as important, they do not in and of themselves

-27-
elucidate (or even intimate) the imposition of a mandatory

agreement to arbitrate.7 Cf. Patterson v. Tenet Healthcare, Inc.,

113 F.3d 832, 835 (8th Cir. 1997) (noting that terms such as "I

agree," "I accept," and "condition of employment" distinguish

legally significant communications from non-binding policies by

imparting to an employee that the communication constitutes an

enforceable contract). Here, the request to read certain materials

did little to provide notice of a waiver of the right to access a

judicial forum because the accompanying description of those

materials failed to convey their legal significance.

To be blunt, the e-mail announcement undersold the

significance of the Policy and omitted the critical fact that it

contained a mandatory arbitration agreement. The result was that

a reasonable employee could read the e-mail announcement and

conclude that the Policy presented an optional alternative to

litigation rather than a mandatory replacement for it. Because

that primary communication lends itself to such a conclusion —

7
General Dynamics suggests that its request that the recipient
"review the enclosed materials carefully" automatically charges the
plaintiff with notice of the contents of the linked documents. In
support of this line of reasoning, it cites Rosenberg for the
proposition that "[i]f [the employer] had provided the rules to
[the employee] but [the employee] did not read them, that would not
save her." Rosenberg, 170 F.3d at 21 n.17. In Rosenberg, however,
there was no dispute that the plaintiff had signed a contract and
thus manifested her assent to be bound by its terms; it was on that
basis that the court observed that she would have been obligated to
comply with those terms, so long as they had been provided to her
as promised. Thus, Rosenberg is inapposite on this point.

-28-
rather than cluing in the reader by including a simple statement of

the kind contained in the Policy itself that "[t]he mutual

obligations set forth in [the] Policy shall constitute a contract

between the Employee and the Company" — we conclude that it failed

to put the recipient on inquiry notice of the unilateral contract

offer contained in the linked materials.

Our journey is not yet at an end. There is a final

circumstance under which the communication might have conveyed

sufficient notice. The e-mail announcement did alert employees to

the existence of a new employee handbook containing the Policy.

This adds a new dimension to the employer's argument.

Personnel handbooks do not have uniform legal

significance; the import of such a handbook varies according to a

multitude of factors. In Massachusetts, for example, the

enforceability of an employee handbook as a contract depends upon

a host of considerations, including its content and the

circumstances of its distribution. See O'Brien v. New Eng. Tel. &

Tel. Co., 664 N.E.2d 843, 847-49 (Mass. 1996). In some instances,

such handbooks may meet the requirements for the formation of a

contract. See, e.g., id. at 849. In other instances, they do not.

See, e.g., Weber v. Cmty. Teamwork, Inc., 752 N.E.2d 700, 714

(Mass. 2001); Jackson v. Action for Boston Cmty. Dev., 525 N.E.2d

411, 415 (Mass. 1988).

-29-
 If a reasonable employee of General Dynamics would have

known, given prior dealings between the company and its work force,

that personnel handbooks operated as the functional equivalents of

contracts, the introduction of a new policy and the fact of its

promulgation in a reissued handbook might have sufficed to alert

such an employee that the handbook contained legally binding terms.

Here, however, General Dynamics has produced no evidence that any

historical use of personnel handbooks in the workplace would have

suggested that the reissued handbook carried contractual

significance. Therefore, we conclude that the company's

promulgation of a new handbook, without more, does not support a

finding of adequate notice.

In the last analysis, the question is whether the

announcement provided minimally sufficient notice by signaling to

a reasonable employee that the Policy was a contractual instrument

whose terms would be deemed accepted upon continued employment

(and, thus, placed the employee on inquiry notice of the

contemplated waiver of his legal rights). Having examined the

totality of the circumstances — the method, content, and context of

the communication — we answer that question in the negative.

We caution that this holding should not be read as a

general denunciation of e-mail as a medium for contract formation

in the workplace. This is a close case, and our holding here is

tied to its specific facts. Moreover, our analysis has revealed

-30-
several simple steps readily available to the employer that likely

would have ensured the adequacy of the notice. In Rosenberg, 170

F.3d at 19, we observed that an employer who takes a barebones

approach to affording notice runs the risk that its efforts will

fall short. This case illustrates the accuracy of that

observation.

V. CONCLUSION

We need go no further. Under the peculiar circumstances

of this case, we cannot say that the e-mail announcement would have

apprised a reasonable employee that the Policy was a contract that

extinguished his or her right to access a judicial forum for

resolution of federal employment discrimination claims. In the

absence of minimally sufficient notice, we conclude that it would

not be appropriate to enforce the Policy's purported waiver of the

right to litigate ADA claims. Consequently, the district court did

not err in denying the motion to stay the litigation and compel

recourse to an arbitral forum.

Affirmed.

— Concurring Opinion Follows —

-31-
 LIPEZ, Circuit Judge, concurring. Judge Selya's

application of our decision in Rosenberg v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 170 F.3d 1 (1st Cir. 1999), to the facts of

this case is exemplary. I write separately for the sole purpose of

affirming my support for that precedent.

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