Northpoint Senior Services, Ky I, LLC v. Erneisha George

RENDERED: JULY 7, 2023; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1066-MR

NORTHPOINT SENIOR SERVICES,
KY I, LLC APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NO. 21-CI-02295

ERNEISHA GEORGE APPELLEE

OPINION
REVERSING AND REMANDING

** ** ** ** **

BEFORE: CETRULO, DIXON, AND MCNEILL, JUDGES.

CETRULO, JUDGE: This is an appeal from the Fayette Circuit Court’s denial of

Appellant Northpoint Senior Services, KY I, LLC’s (“Northpoint”) motion to

compel arbitration. Finding that the circuit court should have granted the motion

and submitted the matter to arbitration, we reverse and remand.
 FACTS

Since 2011, Appellee Erneisha George (“Ms. George”), had been

employed, off and on, at Northpoint, a nursing facility in Lexington.1 Throughout

her tenure, Northpoint had an employee handbook, issued in several versions,

which it typically distributed during orientation. Although Ms. George attended

orientation when she first began working for Northpoint in 2011, she was not

required to reattend orientation after any of the subsequent rehires.2 Despite that,

Northpoint provided Ms. George with updated Employee Handbooks on several

occasions and required her to sign “acknowledgment forms” pertaining to

Northpoint’s employment policies. Northpoint followed that procedure in 2013,

2014, 2017, and 2019, and Ms. George signed five sets of acknowledgement

forms.

After her most recent rehire, in November 2018, Northpoint

distributed the 2019 Employee Handbook, a 57-page document, containing a three-

page Arbitration Policy at the end. The Arbitration Policy, Section 10.0, provided

1
The circuit court established that Ms. George had worked for Northpoint for three distinct
periods of time and neither of her two breaks in employment were due to disciplinary issues.
Most recently, Northpoint rehired Ms. George in November 2018, where she remained until her
employment with Northpoint ended.
2
Although Northpoint contends Ms. George was not “rehired” multiple times and instead only
moved into new positions, the circuit court detailed the employment history in this manner.
Northpoint concedes that this alleged discrepancy does not impact the arbitration issue;
therefore, we will use the same verbiage as the circuit court for clarity.

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that it covered claims including discrimination and retaliation, and the final

provision stated, in bold and all caps, that “THE SUBMISSION OF AN

APPLICATION, ACCEPTANCE OF EMPLOYMENT OR THE

CONTINUATION OF EMPLOYMENT BY YOU SHALL BE DEEMED TO

BE ACCEPTANCE OF THIS ARBITRATION POLICY . . . . THIS POLICY

SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU

AND [NORTHPOINT] FOR THE RESOLUTION OF COVERED CLAIMS.”

Ms. George signed the Acknowledgment and Receipt of Handbook, the

Responsibility Statement, and the Separation of Employment Acknowledgement

(together, the “Acknowledgement”) on February 17, 2019.3

The Acknowledgment and Receipt of Handbook stated that Ms.

George received a copy of the 2019 Employee Handbook and that it was her

responsibility to read and understand the personnel policies contained therein. It

further stated that her employment was at will and that the “handbook and the

policies contained herein do not in any way constitute, and should not be construed

as, a contract of employment between the employer and the employee, or a

promise of continued employment.” The Responsibility Statement acknowledged

that she had read the code of conduct and understood and agreed to comply with

3
The parties agree that the 2019 Employee Handbook and Acknowledgment govern the issues
before this Court.

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those standards. The Separation of Employment Acknowledgment stated, “I

hereby acknowledge the receipt of the employee handbook any [sic] by my

signature below specifically agreeing [sic] to follow sections 9.1 and 10.0 of the

employee handbook[.]”4 The Separation of Employment Acknowledgment

contained two signature lines – Ms. George signed both – between which it stated,

“[t]he submission of an application, acceptance of employment or the

continuation of employment by you shall be deemed to have accepted this

arbitration policy.”

In 2020, Ms. George voluntarily left her employment with Northpoint.

In July 2021, she filed suit in the circuit court, alleging that Northpoint had

discriminated against her on the bases of race, gender, and COVID-19 status, had

created a hostile work environment, and had retaliated against her. Citing the

Acknowledgment, Northpoint filed a motion to dismiss and compel arbitration.

Following limited discovery and two hearings on the arbitration issue, the circuit

court denied Northpoint’s motion.

The circuit court found that Northpoint did not require Ms. George to

reattend orientation to receive the 2019 Employee Handbook when she was

rehired. Instead, the business office manager had given Ms. George the handbook

4
Section 9.1 of the Handbook was titled “Leaving the Company.” Section 10.0 was the final
section in the 2019 Employee Handbook, consisting of three pages outlining the Arbitration
Policy.

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“in a rushed and hurried manner” and had her sign the Acknowledgement while

Ms. George was on duty, working with a patient. Although the business office

manager did not recall the encounter, Ms. George testified that the business office

manager approached her during her weekend shift, while in the hallway, and asked

her “to sign a sheet verifying she received a copy of the updated Employee

Handbook.” Northpoint did not dispute those facts5 and did not present evidence

that it gave Ms. George an opportunity to review the handbook or discuss the

Arbitration Policy. The circuit court found that Northpoint employees testified

only to “what should have occurred, while Ms. George’s testimony ha[d] been

clear, specific, and unwavering.”

The circuit court acknowledged that federal and state law favor

arbitration, “when it is established that both parties have reached a valid

agreement.” Am. Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543, 556 (Ky.

2008). The circuit court concluded that Northpoint had met its burden of showing

a written arbitration agreement existed by providing proof of the handbook and

signed Acknowledgement; therefore, it determined, the “statutory presumption of

its validity” had accrued. However, the circuit court found Ms. George had

5
Northpoint did present evidence that another employee was on duty the day Ms. George signed
the Acknowledgment and therefore that employee may have actually been the one to give Ms.
George the handbook. However, Ms. George presented evidence that employees other than
those who signed in “on duty” routinely worked on the weekends.

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successfully rebutted that evidence because she had claimed she did not have

actual notice of the terms of the arbitration agreement. As such, the circuit court

concluded that Northpoint did not sufficiently communicate the terms of the

arbitration agreement to her. The circuit court found that there was no actual

notice and no meeting of the minds under contract law to enforce the arbitration

agreement. Northpoint appealed.

STANDARD OF REVIEW

A valid arbitration agreement transfers all pre-judgment matters to

arbitration and away from the courts. Stanton Health Facilities, LP v. Fletcher,

454 S.W.3d 312, 314 (Ky. App. 2015) (citation omitted). Thus, when a party such

as Northpoint moves to compel arbitration, the circuit court must “decide under

ordinary contract law whether the asserted arbitration agreement actually exist[ed]

between the parties and, if so, whether it appli[ed] to the claim raised in the

complaint.” Id. at 315 (citing N. Fork Collieries, LLC v. Hall, 322 S.W.3d 98, 102

(Ky. 2010)).

When denying enforcement of an arbitration agreement, we review

the circuit court’s legal conclusions de novo “to determine if the law was properly

applied to the facts[.]” Energy Homes, Div. of S. Energy Homes, Inc. v Peay, 406

S.W.3d 828, 833 (Ky. 2013) (citation omitted). Construction of a contract is a

“purely legal determination” and, thus, reviewed de novo. N. Fork Collieries, 322

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S.W.3d at 102. However, we review the circuit court’s factual findings for clear

error. Id. In so doing, we defer to the circuit court’s factual findings, “upsetting

them only if clearly erroneous or if unsupported by substantial evidence[.]”

Conseco Fin. Servicing Corp. v. Wilder, 47 S.W.3d 335, 340 (Ky. App. 2001).

ANALYSIS

Northpoint argues, first, that the circuit court’s findings were not

supported by substantial evidence and, thus, were clearly erroneous. The evidence

was uncontroverted that Ms. George signed the Acknowledgement on February 17,

2019, and she testified that Northpoint asked her to sign it in the hallway, mid-

shift, without an opportunity to read the handbook. In making this finding, the

circuit court noted that Northpoint had not adequately disputed those facts and did

not present evidence that it gave Ms. George an opportunity to review the

handbook or discuss the Arbitration Policy. The circuit court specifically noted

that Northpoint simply testified as to their standard practices because they could

not recall the exact circumstances under which Ms. George signed the

Acknowledgement. As the only testimony to those specific circumstances was

from Ms. George, the circuit court found her recollection to be credible.

Further, the circuit court found that Ms. George was not present at an

employee orientation in 2018, when the handbook provisions would have been

discussed. However, it found she was present at an orientation in 2011. The

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circuit court also found that Northpoint gave Ms. George a copy of the 2019

Employee Handbook, and she testified that Northpoint had given her prior versions

of employee handbooks as well, each of which had contained the Arbitration

Policy. The circuit court considered all the evidence before making its factual

findings and supported those findings with substantial evidence. We find that the

circuit court did not err in making those findings.

However, our review does not end there. Next, we turn to whether the

circuit court’s legal conclusions were proper. The enforcement and effect of an

arbitration agreement is governed by the Kentucky Uniform Arbitration Act

(“KUAA”) – Kentucky Revised Statutes (“KRS”) 417.045-417.240 – and the

Federal Arbitration Act (“FAA”) – 9 United States Code (“U.S.C.”) §§ 1-402. See

Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581, 588 (Ky. 2012). “Both Acts

evince a legislative policy favoring arbitration agreements, or at least shielding

them from disfavor.” Id. In Kentucky, to form a valid and enforceable agreement,

“there must be voluntary and complete assent by parties having the capacity to

contract.” Cambridge Place Group, LLC v. Mundy, 617 S.W.3d 838, 840 (Ky.

App. 2021) (citing Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 321

(Ky. 2015), as corrected (Oct. 9, 2015), judgment rev’d in part, vacated in part, on

other grounds by Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 581 U.S. 246, 137 S.

Ct. 1421, 197 L. Ed. 2d 806 (2017)).

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 The circuit court properly noted that

[t]he burden of establishing the existence of an arbitration
agreement that conforms to statutory requirements rests
with the party seeking to enforce it, but once prima facie
evidence thereof has been presented, the statutory
presumption of its validity (KRS 417.050) accrues, and the
burden of going forward with evidence to rebut the
presumption then shifts to the party seeking to avoid the
agreement.

Valley Constr. Co. v. Perry Host Mgmt. Co., 796 S.W.2d 365, 368 (Ky. App.

1990).

The circuit court concluded that Northpoint met its burden that the

arbitration agreement existed because it provided the 2019 Employee Handbook to

Ms. George, which contained the Arbitration Policy, and Ms. George had signed

the Acknowledgment. Thus, the circuit court found the “statutory presumption of

its validity[,]” under KRS 417.050, had been met. In Louisville Peterbilt, Inc. v.

Cox, 132 S.W.3d 850, 857 (Ky. 2004) (citing Valley, 796 S.W.2d at 368), the

Kentucky Supreme Court similarly found that the parties seeking to enforce the

arbitration agreement had “met the prima facie burden by providing copies of

written and signed agreements to arbitrate.” As such, we agree Northpoint met its

burden that an arbitration agreement existed between Northpoint and Ms. George.

However, the circuit court concluded that Ms. George had

successfully rebutted that presumption. There, we must disagree. As this Court

has noted, rebutting a presumption of validity is a heavy burden. Valley, 796

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S.W.2d at 368 (citing Rancho Pescado, Inc. v. Northwestern Mutual Life Ins. Co.,

140 Ariz. 174, 680 P.2d 1235 (1984), and Bd. of Educ., Taos Municipal Schools v.

The Architects, Taos, 103 N.M. 462, 709 P.2d 184 (1985)).

Specifically, the circuit court determined that because Ms. George had

testified that she did not have the opportunity to read the agreement before she

signed the Acknowledgment, she did not have actual notice of the arbitration

agreement. The circuit court explained that Kentucky contract law requires a

“meeting of the minds” for an arbitration agreement to be valid, citing Harlan

Public Service Company v. Eastern Construction Company, 254 Ky. 135, 71 S

W2d 24, 29 (1934) (citation omitted). Further, the circuit court stated that a party

cannot be bound by uncommunicated terms without his or her consent. Id.

Accordingly, the circuit court concluded that this necessarily includes the

opportunity to read the agreement, citing Conseco, 47 S.W.3d at 341. However,

importantly, this Court has clarified that failing to read an agreement does not

constitute a deprivation of the “opportunity to read it”:

In general, a person who has the opportunity to read a
contract, but does not do so and signs the agreement, is
bound to the contract terms unless there was some fraud in
the process of obtaining his signature. Prewitt v. Estate
Building and Loan Association, 288 Ky. 331, 156 S.W.2d
173 (1941). See Clark v. Brewer, Ky., 329 S.W.2d 384
(1959). Thus, his negligence in failing to read the contract
prevents any reliance on oral representations at the time of
his signing. Id.

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Cline v. Allis-Chalmers Corp., 690 S.W.2d 764, 766 (Ky. App. 1985).

Still, relying on Oakwood Mobile Homes, Inc. v. Sprowls, 82 S.W.3d

193 (Ky. 2002), the circuit court found that Ms. George did not receive actual

notice of the arbitration policy. In Oakwood, our Supreme Court held that the

employee failed to cite authority demonstrating that the employee could have

reached a “meeting of the minds” with the employer “and agreed to arbitrate her

claims without having actual notice” of the arbitration policy. Id. at 199.

However, Oakwood is clearly distinguishable from Ms. George’s circumstances.

There, the employer instituted an arbitration policy after the employee

began working there and did not have the employee sign an agreement confirming

she had notice of the policy. Id. at 195. Instead, the employer had simply

“notified all employees by mail[,]” “published notice . . . in a weekly newsletter[,]”

and had management discuss the policy with the employees. Id. The circuit court

determined that such actions did not provide the employee with actual notice of the

arbitration policy and denied the employer’s motion to compel arbitration. Id. at

195-96. Because the employer failed to show that there could have been a meeting

of the minds without actual notice, our Supreme Court found that the circuit

court’s “factual findings [were] supported by substantial evidence and that the trial

court properly concluded that [the employee] had not contracted away her right to

proceed in a judicial forum.” Id. at 199.

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 Here, however, it was undisputed that the employer provided

numerous versions of the employee handbook to Ms. George, which contained the

Arbitration Policy. Further, Ms. George signed the Acknowledgement, confirming

that she received the handbook, acknowledged that it was her responsibility to read

and understand the policies contained therein, and that “by [her] signature . . .

specifically agree[d] to follow sections 9.1 and 10.0 of the employee handbook.”

Section 10.0 outlined, in detail, the employee arbitration program. Importantly, the

Acknowledgement contained two signature lines, between which it stated “[t]he

submission of an application, acceptance of employment or the continuation of

employment by you shall be deemed to have accepted this arbitration policy.”

Indeed, the Supreme Court subsequently distinguished Oakwood in

Spears v. Carhartt, Inc., 215 S.W.3d 1, 9 (Ky. 2006), stating, “unlike the situation

in Oakwood Mobile Homes, Inc. v. Sprowls, 82 S.W.3d 193 (Ky. 2002), this was

not a case in which the employer modified the conditions of employment

unilaterally.” In Carhartt, the employee had worked for the employer since 1995.

Id. The employee’s labor union, “[a]cting in its capacity as her collective

bargaining agent,” agreed to the arbitration provision. Id. Under those

circumstances, our Supreme Court found the employee’s “assent could properly be

inferred from the fact that she continued in the employment after the provision

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took effect.” Id. Thus, “she was properly charged with knowledge of the terms of

the provision[.]” Id.

In this case, Ms. George had worked at Northpoint since 2011.

Throughout those years, Northpoint had provided various handbooks to Ms.

George, which contained the Arbitration Policy. There was specific language that

any covered claims by former or current employees must be submitted to

arbitration and that this requirement applied to the very type of claims asserted by

Ms. George in this action. The Arbitration Policy stands alone and has the same

language as the Acknowledgement, in boldface and all caps that, “THE

SUBMISSION OF AN EMPLOYMENT APPLICATION, ACCEPTANCE

OF EMPLOYMENT[,] OR THE CONTINUATION OF EMPLOYMENT

SHALL BE DEEMED TO BE ACCEPTANCE OF THE ARBITRATION

PROVISION.”

The evidence was also unrefuted that Ms. George signed directly

above and below a second statement “acknowledging that the employee arbitration

policy is a condition of my employment or continued employment with the

Company.” While she presented evidence that she did not read or understand the

2019 handbook before signing that, and the circuit court found her testimony to be

credible, one is not required to have read and understood a contract when it has

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been signed and her actions indicate acceptance of the contract’s terms. See Cline,

690 S.W.2d at 766.

It is well-established that “one who signs a contract is presumed to

know its contents[.]” Clark v. Brewer, 329 S.W.2d 384, 387 (Ky. 1959) (citation

omitted). Indeed, Kentucky courts have even enforced unsigned arbitration

agreements wherein the parties indicated acceptance through their actions. See,

e.g., Sweeney v. Theobald, 128 S.W.3d 498, 501 (Ky. App. 2004). As in Carhartt,

Ms. George assented to the arbitration agreement through both her signature and

her continued employment. See Carhartt, 215 S.W.3d at 9; see also Clark, 329

S.W.2d at 387.

The circuit court also stated that if the handbook were deemed a valid

contract, then the Arbitration Policy contained therein would be valid. However,

the circuit court concluded as a matter of law that Northpoint’s handbook, and thus

the Arbitration Policy, did not create a valid contract in part because it contained

precatory language to the effect that the handbook did not create a contract of

employment, i.e., that the employment remained “at will.”

In so ruling, the circuit court relied upon Furtula v. University of

Kentucky, 438 S.W.3d 303, 306 (Ky. 2014), which addressed whether employee

handbooks may be considered an employment contract or incorporated into an

employment contract. There, the majority of our Supreme Court concluded that

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the employment handbook did not constitute a written contract of employment

allowing them to sue their employer and bypass governmental immunity. Id.

Furtula upheld Kentucky’s long practice of employment at will and confirmed that

disclaimers therein did not a create a written contract of definitive employment.

Id. at 307. However, as the dissent explained, “[w]hile I agree that the disclaimers

mean that the documents are not a contract of employment, i.e., one that changes

the at-will nature of the employment, that does not mean the documents do not

give rise to other contractual rights.” Id. at 310-11.

Similarly, the circuit court’s reliance on Britt v. University of

Louisville, 628 S.W.3d 1 (Ky. 2021), is misplaced. In Britt, another sovereign

immunity case, our Supreme Court held that a separate and valid written contract

of employment between a professor and the university could also incorporate the

employee handbook by reference. Id. at 8. The Court held that such incorporation

requires clear express language and reciprocal obligations upon both parties to be

bound to the underlying employment contract. Id. (citation omitted).

Here, the circuit court referred to Britt, stating that a valid

employment contract must demonstrate an obligation by the employee to render

service for a definite and fixed period of time and a reciprocal obligation on the

employer’s part to retain the employee’s services. Again, Britt did not address

arbitration provisions or employment at will situations but was limited to a

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situation where there was an employment contract for a definite period of time.

Britt is simply not applicable to this scenario.

The circuit court erred in concluding that the handbook’s disclaimer

of a “contract of employment” meant that there was no valid agreement between

these parties. A disclaimer of a contract of employment and a statement that

employment remains at will does not necessitate a ruling that there was no valid

agreement between the parties as to other provisions in the handbook. Further, the

Arbitration Policy specifically stated that “this policy shall constitute the entire

agreement between you and [Northpoint] for the resolution of covered claims.”

Indeed, our Supreme Court has stated that “[o]nce an employer establishes an

express personnel policy and the employee continues to work while the policy

remains in effect, the policy is deemed an implied contract for so long as it remains

in effect.” Parts Depot Inc. v. Beiswenger, 170 S.W.3d 354, 363 (Ky. 2005).

Ms. George signed a valid Acknowledgment, agreeing to arbitrate her

claims, and she is presumed to know the contents of that policy. While the

handbook did not constitute an employment contract obligating either party to a

specific term of employment, the provisions contained therein as to arbitration can

nevertheless be enforced. Based on our review of the authorities pertaining to

arbitration agreements and the presumption in favor of arbitration outlined in those

authorities, we conclude that the circuit court erred in finding that Ms. George did

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not have actual notice of the Arbitration Policy and thereby successfully rebutted

the presumption of a valid agreement. While this writer understands the circuit

court’s concern about the number of arbitration agreements being required of

employees, it is not for this Court to make law or to ignore the authorities outlined

herein.6

We now turn to the issue of unconscionability. Ms. George asserts

that even if this Court finds an arbitration agreement was formed in 2019, it is void

as being unconscionable. Although Ms. George did not raise unconscionability

below, we address it briefly. Ms. George argues the Arbitration Policy was

procedurally unconscionable “due to the manner in which it appears and the way in

which [Ms. George’s] signature was procured.”

As discussed, “absent fraud in the inducement, a written agreement

duly executed by the party to be held, who had an opportunity to read it, will be

enforced according to its terms.” Schnuerle v. Insight Communications Co., L.P.,

376 S.W.3d 561, 575 (Ky. 2012) (quoting Conseco, 47 S.W.3d at 341) (internal

6
Arbitration agreements “constitute a waiver of the right to a trial by jury, which is a
fundamental right.” Jackson v. Legacy Health Servs., Inc., 640 S.W.3d 728, 735 (Ky. 2022)
(citations omitted); see also KY. CONST. § 7. There was some brief discussion in the circuit court
regarding the potential applicability of 9 U.S.C. § 401, the “Ending forced arbitration of Sexual
Assault and Sexual Harassment Act of 2021,” although neither party raises that Act before this
Court. The circuit court did not address the applicability in its opinion, and we note this only to
state that the Act provides that a predispute arbitration agreement may not be valid as to the
certain employment claims after its effective date of March 3, 2022. However, this complaint
was filed in July of 2021, and alleged events which occurred prior to the effective date of the
Act.

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quotation marks omitted). “The doctrine of unconscionability has developed as a

narrow exception to th[at] fundamental rule.” Id. The doctrine “is directed against

one-sided, oppressive and unfairly surprising contracts, and not against the

consequences per se of uneven bargaining power or even a simple old-fashioned

bad bargain.” Id.

Most recently, in Green v. Frazier, 655 S.W.3d 340, 345 (Ky. 2022),

our Supreme Court reaffirmed the heavy burden upon one opposing arbitration to

establish that an arbitration agreement was not enforceable. Here, both parties are

bound by the same Arbitration Policy, and there was consideration provided in the

continuation of employment itself. Further, the Acknowledgment Ms. George

signed specifically referenced Section 10.0, the Arbitration Policy, which was

similar to that found not to be unconscionable in Green.

There, our Supreme Court reversed this Court, holding that

the Court of Appeals erred in concluding that
inconsistencies among the various arbitration provisions
created ambiguity requiring voiding of the arbitration
agreement. This issue was addressed in Louisville
Peterbilt. In that case, Cox, the plaintiff, generally alleged
unconscionability based on inconsistencies in the various
agreements, that the agreements were contracts of
adhesion, and the transaction constituted a failure of the
meetings of the minds. . . . Because Cox signed two
separate agreements stating claims would be arbitrated and
failed to allege fraudulent inducement to do so, we held
that “all other alleged disputes are for an arbitrator.” Id.
That holding applies here as well.

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Green, 655 S.W.3d at 348 (citations omitted).

As Ms. George makes similar claims as the employee in Green and

Louisville Peterbilt, we must adhere to our Supreme Court’s holding in Green and

find this Arbitration Policy was not unconscionable. Based on the foregoing

authorities, we must conclude that the circuit court erred as a matter of law when it

denied Northpoint’s motion to compel arbitration. The Fayette Circuit Court Order

to the contrary is REVERSED. We REMAND this matter for proceedings

consistent with this opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

David E. Crittenden Kamp Townsend Purdy
Seth J. Singleton Lexington, Kentucky
Louisville, Kentucky

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