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.
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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.
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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
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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.
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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
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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,
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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
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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
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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
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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").
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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
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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).
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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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