United States Court of Appeals
For the First Circuit
No. 07-2627
DAPHENE PELLETIER,
Plaintiff, Appellant,
v.
YELLOW TRANSPORTATION, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Baldock,* and Lipez,
Circuit Judges.
Thad B. Zmistowski, with whom Mark D. Beaumont and Eaton
Peabody, was on brief for appellant.
Carl H. Gluek, with whom Julie L. Pietrzen and Frantz Ward
LLP, was on brief for appellee.
December 10, 2008
*
Of the Tenth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Plaintiff-Appellant Daphene
Pelletier brought suit against her employer, Defendant-Appellee
Yellow Transportation ("Yellow"), alleging federal and state law
claims of sex discrimination, age discrimination, and whistleblower
retaliation. Yellow moved for summary judgment for lack of subject
matter jurisdiction and to compel arbitration, based upon an
arbitration clause contained in a Dispute Resolution Agreement
("DRA") that Pelletier signed when applying for a position with
Yellow. The district court granted summary judgment in Yellow's
favor and compelled arbitration. Pelletier appeals, and contends
that the district court erred because the DRA was not enforceable.
After careful consideration, we affirm.
I. Background
In reviewing an entry of an order of summary judgment,
the Court examines all facts and makes all reasonable inferences in
favor of the non-moving party. N.H. Ins. Co. v. Dagnone, 475 F.3d
35, 37 (1st Cir. 2007).
Pelletier has worked in the trucking industry for several
years. Yellow is a motor carrier that provides transportation
services throughout North America. In 2000, Pelletier was hired by
Bruce Jacobs, through a temporary staffing agency, to work at
Yellow's Bangor terminal as a temporary employee. In March 2003,
the Bangor terminal closed and Pelletier lost her job. Yellow
assigned Jacobs to manage the Waterville terminal.
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On or about July 31, 2003, Pelletier applied for an
outbound clerical position with Yellow at the Waterville terminal.
The application for employment (the "Application") contained the
following paragraph:
If hired, I agree as follows: I will comply
with all of Yellow's rules, regulations and
code of conduct. My employment and
compensation are terminable at will, are for
no definite period, and can be terminated,
with or without cause, and with or without
notice, by either Yellow or myself. No
implied or oral agreements contrary to the
express language of this agreement are valid.
No supervisor, manager or other representative
of Yellow, other than its president, has any
authority to make any agreement for employment
for any specified period of time or to make
any agreement contrary to the foregoing and
any such agreement must be in writing and
signed by Yellow's president and me. This
agreement is the entire agreement between
Yellow and me regarding my right and Yellow's
right to terminate employment, and this
agreement takes the place of all prior or
contemporaneous agreements, representations,
and understandings between Yellow and me.
(emphasis added). The Application further stated that it "will be
considered active for a maximum of thirty (30) days. If you wish
to be considered for employment after that time, you must reapply."
At the same time, and in addition to the Application,
Jacobs provided Pelletier with the DRA. Jacobs informed Pelletier
that Yellow would not hire her unless she signed the DRA, and
Pelletier did so. The DRA stated, in relevant part, that both
Pelletier and Yellow would:
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resolve all disputes, claims, or
controversies, arising out of, or related to,
my application for employment, my employment
or the cessation of my employment with Yellow
that would otherwise require or allow resort
to a court or other governmental tribunal
("Employment Claims") exclusively by final and
binding arbitration before a neutral
arbitrator.
"Employment Claims" were defined to include "claims of
discrimination, harassment or retaliation . . . brought against
Yellow . . . whether based on local, state, or federal laws or
regulations, or on tort, contract or equitable law, or otherwise."
On September 3, 2003, over thirty days after the date on
which Pelletier signed the Application and the DRA, Yellow hired
Pelletier as a Terminal Support Assistant. On April 9, 2004, she
became Operations Supervisor at the Waterville Terminal, an exempt
salaried position. Pelletier did not formally apply for the
Operations Supervisor position, nor did she execute a new DRA in
connection with the position.
On May 12, 2006, Pelletier's employment with Yellow was
terminated. Pelletier then filed this action in federal district
court, alleging: (1) sex discrimination in violation of Title VII
of the Civil Rights Act of 1964 and the Maine Human Rights Act
(Count I); (2) age discrimination under the Maine Human Rights Act
(also Count I); and (3) whistleblower retaliation under the Maine
Human Rights Act (Count II). Yellow filed a motion for summary
judgment, or in the alternative, a motion to compel arbitration.
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The district court granted summary judgment in Yellow's favor and
compelled arbitration. Pelletier now appeals.
II. Discussion
We review the entry of an order of summary judgment de
novo. See Dagnone, 475 F.3d at 37. We likewise review de novo an
order compelling arbitration where the appeal involves solely legal
issues as to the enforceability of an arbitration clause. See
InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003)
(reviewing refusal to compel arbitration de novo where the case
concerned "'abstract questions as to whether particular disputes do
(or do not) come within the four corners of an expressly limited
arbitration provision'" (quoting Paul Revere Variable Annuity Ins.
Co. v. Kirschhofer, 226 F.3d 15, 18-19 (1st Cir. 2000))).
Pelletier contends on appeal that the district court
erred because the DRA was not enforceable. She presents two
arguments against its enforceability. We do not find either
argument persuasive.
Pelletier first contends that the DRA is unenforceable
because of the merger clause in the Application.1 Pelletier argues
that the merger clause, which states that the Application "is the
entire agreement between Yellow and me regarding my right and
1
Yellow contends that Pelletier failed to raise this argument in
her opposition to Yellow's motion, and therefore waived it.
Pelletier counters by arguing that she raised the issue of the
merger clause precluding the DRA. We need not address the issue,
as the case is easily disposed of on the merits.
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Yellow's right to terminate employment," nullifies the DRA, as the
DRA was signed either "prior" to or "contemporaneous[ly]" with the
Application. Yellow disagrees. Following the district court,
Yellow argues that the Application concerns the "right to terminate
employment" (emphasis added), while the DRA only provides that any
issue regarding termination of employment will be resolved by
arbitration. See Pelletier v. Yellow Transp., Inc., 503 F. Supp.
2d 397, 403 (D. Me. 2007).
The distinction, while subtle, is correct. The DRA does
not expressly define or limit Yellow's "right" to terminate.
Instead, the DRA only defines the forum for all disputes concerning
the right to termination. As the Third Circuit has noted in
another context, "a contractual clause selecting either a judicial
or an arbitral forum for the resolution of disputes establishes a
legal right which is analytically distinct from the rights being
asserted in the dispute to which it is addressed." Coastal Steel
Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 195 (3d Cir.
1983), overruled on other grounds by Lauro Lines S.R.L. v. Chasser,
490 U.S. 495 (1989) (emphasis added). Thus, the merger clause,
which precludes agreements over the parties' "right to terminate,"
does not nullify the DRA, which only deals with the mechanism for
resolving disputes.
Pelletier further argues that the merger clause in the
Application is not so limited. As Pelletier emphasizes, the
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Application is the entire agreement "regarding [the] right to
terminate." (emphasis added). Consequently, Pelletier contends
that the DRA, while not necessarily conflicting with Yellow's right
to terminate, nevertheless "regard[s]" its right to terminate,
since it "concern[s]" or is "[i]n reference to" that right. See
American Heritage Dictionary 1040 (2d College ed. 1991) (defining
"regarding"). Moreover, Pelletier argues that the Application is
a contract of adhesion, and under the doctrine of contra
preferentum under Maine law,2 any ambiguities in the Application
and the DRA should be construed against the "maker of [the]
instrument." See Barrett v. McDonald Invs., Inc., 870 A.2d 146,
150 (Me. 2005).
Pelletier's argument as to the "regarding" language in
the Application has a certain appeal. Nevertheless, her argument
falters. As with all contracts, the Court must interpret the
agreements "to effect the parties' intentions as reflected in the
written instrument, construed with regard for the subject matter,
motive, and purpose of the agreement, as well as the object to the
be accomplished." Biddleford Internet Corp. v. Verizon New Eng.,
Inc., 456 F. Supp. 2d 165, 171-72 (D. Me. 2006) (discussing Maine
contract law) (internal quotation omitted). Based on a review of
the Application and DRA, we find that the merger clause in the
2
The parties disagree as to what law applies to the Application
and the DRA. Pelletier contends that Maine law applies. Even if
we apply Maine law, Pelletier's argument has no merit.
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Application unambiguously does not preclude the DRA. As a result,
we do not have to address whether the Application or the DRA
constitute contracts of adhesion, or whether the doctrine of contra
preferentum applies.
Here, in the same paragraph as the merger clause, the
Application provides that the employment Pelletier sought was at-
will, or terminable "with or without cause." Later in the
paragraph, the Application disclaims any "implied or oral
agreements" suggesting otherwise, as well as agreements made by
others without the authority to do so. As this Court has
emphasized, "[b]lack letter law teaches that 'a construction which
comports with the Agreement as a whole is to be preferred even if
it be thought that certain language, viewed only by itself, more
readily suggests something else.'" See Fashion House, Inc. v. K-
mart Corp., 892 F.2d 1076, 1084 (1st Cir. 1989) (quoting Spartans
Indus., Inc. v. John Pilling Shoe Co., 385 F.2d 495, 499 (1st Cir.
1967)) (emphasis added). Accordingly, though the word "regarding"
could be read broadly in some circumstances, here the entirety of
the Application demonstrates unambiguously that it is limited to
anything "regarding" the at-will status of the employment Pelletier
sought.
In contrast to the Application, the DRA does not speak to
the at-will status of the employment at all. Moreover, the DRA has
a broader scope, including all disputes arising out of "my
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application for employment, my employment, or the cessation of my
employment with Yellow." To read the "regarding" language in the
all-encompassing way that Pelletier urges to nullify a DRA that is
both tangential to, and broader then, the at-will status of the
position Pelletier applied to, would run contrary to the "subject
matter, motive, and purpose" of both agreements. See Biddleford
Internet Corp., 456 F. Supp. 2d at 171-72 (internal quotation
omitted).
Second, and in the alternative, Pelletier contends that
the DRA lapsed before Yellow hired Pelletier. The argument has two
steps. As to step one, Pelletier argues that the DRA merged into
the Application to constitute one contract. Under Maine law:
The general rule is that in the absence of
anything to indicate a contrary intention,
instruments executed at the same time, by the
same contracting parties, for the same
purposes, and in the course of the same
transaction will be considered and construed
together, since they are, in the eyes of the
law, one contract or instrument.
Hilltop Cmty. Sports Ctr., Inc. v. Hoffman, 755 A.2d 1058, 1062
(Me. 2000) (quoting Kandlis v. Huotari, 678 A.2d 41, 43 (Me.
1996)). According to Pelletier, because the Application and the
DRA were signed at the same time, and because they were both
conditions of employment, they should be construed as "one contract
or instrument."
As to step two, Pelletier points out that the Application
contains a provision that states that the application "will be
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considered active for a maximum of thirty (30) days," such that
Pelletier had to "reapply" in order "to be considered for
employment after that time." Pelletier argues that both the
Application and DRA lapsed on August 30, 2003, four days before she
was actually hired. In the alternative, Pelletier argues that the
DRA is ambiguous as to its duration, and, accordingly, should be
construed against Yellow and in accordance with Pelletier's
interpretation.
Pelletier does not get past step one. As the district
court noted, the DRA itself does not contain any language
concerning its duration, and although signed contemporaneously with
the Application, the DRA, by its terms, was "not contingent on any
offer of employment being extended." Pelletier, 503 F. Supp. 2d at
402. In fact, contrary to what Pelletier insists, the DRA applies
to disputes "arising out of, or related to, my application for
employment," such that it applies regardless of the status of
Pelletier's Application or her employment with Yellow. The Court
declines to merge the two agreements when the clear and unambiguous
intent of both agreements show that they are two separate
agreements. Hilltop Cmty. Sports Ctr., Inc., 755 A.2d at 1062 (no
merging of agreements where "contrary intention" exists).
Accordingly, the Court does not need to address whether the
duration of the DRA was ambiguous.
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III. Conclusion
For the foregoing reasons, we affirm the district court's
grant of summary judgment in favor of Yellow and its order
compelling arbitration.
Affirmed.
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