Farzana Tariq Md v. Tenet Healthcare Corporation

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

FARZANA TARIQ, M.D.,
UNPUBLISHED
Plaintiff-Appellant, March 24, 2022

v No. 356904
Wayne Circuit Court
TENET HEALTHCARE CORPORATION, LC No. 20-007893-CD
SANDEEP MITTAL, STEVEN D. HAM, and
DETROIT MEDICAL CENTER,

Defendant-Appellees.

Before: BOONSTRA, P.J., and RONAYNE KRAUSE and CAMERON, JJ.

PER CURIAM.

Plaintiff, Farzana Tariq, M.D., appeals as of right the trial court’s orders granting summary
disposition in favor of defendants, Tenet Healthcare Corporation, Steven D. Ham, D.O., Sandeep
Mittal, M.D., and the Detroit Medical Center.1 Generally, plaintiff alleges that defendants engaged
in retaliatory misconduct and a pattern of racial and nationality discrimination, both during and
after her participation in the DMC’s Neurosurgery Resident Training Program. In lieu of filing an
answer, defendants moved for summary disposition, asserting that plaintiff’s claims were subject
to a binding arbitration agreement. The trial court agreed. We affirm.

1
Unless necessary to otherwise specify, we will refer to defendants collectively as “defendants,”
and because Tenet is the parent corporation of the Detroit Medical Center, we will refer to the
corporate entities collectively as “the DMC.”

-1-
 I. FACTUAL BACKGROUND2

Plaintiff graduated from a medical school in Pakistan3 in 2007. She engaged in further
studies, and in 2013, she was accepted into the DMC’s Neurosurgery Resident Training Program
(the Program). The Program was a seven-year program, but trainee physicians received one-year
appointments, with no provision for or guarantee of automatic renewal, pursuant to “Graduate
Medical Education Agreement[s] of Appointment” (GME agreements). The GME agreements
stated, in part, that trainee physicians were “encouraged to seek resolution of grievances . . .
according to the GME Resident Policy Manual,” but they did not contain an arbitration provision.
They did contain provisions stating that:

[b]oth Trainee and DMC irrevocably and unconditionally (a) consent to submit to
the exclusive jurisdiction of the courts of the State of Michigan for any proceeding
arising in connection with this Agreement and (b) waive any objection to the laying
of venue of any such proceeding in the courts of the State of Michigan.

Nevertheless, the GME agreements also stated that their terms were “subordinate to the policies
and procedures of the DMC as those policies and procedures may change from time-to-time.”
Plaintiff signed seven of these agreements: (a) July 1, 2013 through June 30, 2014; (b) July 1, 2014
through June 30, 2015; (c) July 1, 2015 through June 30, 2016; (d) July 1, 2016 through June 30,
2017; (e) July 1, 2017 through June 30, 2018; (f) July 1, 2018 through June 30, 2019; and (g) July
1, 2019 June 30, 2020. Drs. Ham and Mittal were two of the doctors in charge of the Program.

In late 2013 or early 2014, Tenet acquired the Detroit Medical Center, following which
Tenet imposed upon the DMC a dispute resolution program it called “the Open Door Policy and
Tenet Fair Treatment Process” (the FTP). In relevant part, the FTP required binding arbitration of
employment disputes as the final stage of its grievance process. Employees were subjected to an
online training slideshow program that monitored their progress through the training. Through the
course of the module, employees were required to read two documents explaining this process.
Among other things, the documents explained that claims arising out of the employee’s
employment were subject to binding arbitration. The training module also included a review of
the DMC’s Employee Handbook, no copy of which has been included in the lower court record.
The relevant documents repeatedly set forth that the handbook was not a contract of employment,
and the FTP was also not a contract of employment and did not “in any way alter the at-will nature
of the employment relationship between [the DMC] and its employees.”

2
Many of the facts recited in this opinion are taken from allegations in plaintiff’s complaint and
are treated as true for purposes of summary disposition, but they should not be treated as
undisputed or conclusively established.
3
Plaintiff alleges, in large part, that she was treated with hostility on the basis of her sex and her
Pakistani heritage. Dr. Ham is Caucasian; and Dr. Mittal and other staff members at the DMC are
of Indian descent.

-2-
 After an employee viewed the slides and the Open Door Policy and Fair Treatment Process
documents, the training module “popped up” a further message, which, in relevant part, stated:

Furthermore, I understand, acknowledge and agree that the Employee Handbook is
not a contract of employment, that my employment with the Company is not for a
specified term and that employment with the Company is at the mutual consent of
the employee and the Company. Therefore, I hereby acknowledge that either I or
the Company can terminate my employment relationship at will, with or without
cause or notice, except to the extent that any applicable collective bargaining
agreement provides otherwise.

Open Door Policy and FTP

In addition, I acknowledge that I have received a hard copy of the Tenet Fair
Treatment Process. Except to the extent that any applicable collective bargaining
agreement provides otherwise, I hereby voluntarily agree to use the Company’s
Fair Treatment Process and to submit to final and binding arbitration any and all
claims and disputes that are related in any way to my employment or the
termination of my employment with Tenet, with the exception of certain specific
Excluded or Restricted issues outline in the Fair Treatment Process, including the
filing of a charge with the National Labor Relations Board. I understand that final
and binding arbitration will be the sole and exclusive remedy for any such claim or
dispute that I may have against Tenet or its parent, subsidiary or affiliated
companies or entities, and each of its and/or their employees, officers, directors or
agents, and that I may not join any such claim or dispute with the dispute of another
employee in a class, collective or group action. Arbitration under the Fair
Treatment Process is limited to individual disputes, claims or controversies that a
court of law would be authorized to have jurisdiction over to grant relief, and by
agreeing to the use of arbitration to resolve my dispute, both the Company and I
agree to forego any right we each may have had to a jury trial on issues covered by
the Fair Treatment Process. I also agree that such arbitration will be conducted
before an experienced arbitrator chosen by me and the Company, and will
conducted under the Federal Arbitration Act and the procedural rules of the
American Arbitration Association (“AAA”) unless the Company and I agree
otherwise.

I further acknowledge that in exchange for agreement to arbitrate, the Company
also agrees to submit all claims and disputes it may have with me to final and
binding arbitration, and that the Company further agrees that if I submit a request
for binding arbitration, my maximum out-of-pocket expenses for the arbitrator and
the administrative cost of the AAA will be an amount equal to one day’s pay if I
am an exempt employee or eight times my hourly rate of pay (if am [sic] a non-
exempt employee) or a mandated cap, if lower, and that the Company will pay all
of the remaining fees and administrative costs of the arbitrator and the AAA. I
further acknowledge that this mutual agreement to arbitrate may not be modified or
rescinded except in writing by both me and the Company. [(emphasis in original).]

-3-
After viewing the above language, employees were prompted to click one of two check boxes: one
for “I agree” and another for “I do not agree.” Plaintiff clicked “I agree.”

In 2017, plaintiff was placed on probation following her admitted, albeit isolated,
commission of a professional misjudgment. Plaintiff satisfied the terms and conditions of that
probation. She alleges that, following her reinstatement into good standing, the defendant doctors,
as well as numerous other supervisors of non-Pakistani descent, began to find baseless fault with
her work while overlooking serious violations committed by non-Pakistani doctors. Following the
revelation that she and a non-Pakistani colleague co-authored a letter to the Accreditation Council
of Graduate Medical Education (ACGME) expressing concerns about patient safety, defendants
retaliated against her, but not against her non-Pakistani co-author. Plaintiff was terminated from
the Program effective at the end of 2018. However, following plaintiff’s notice of intent to sue,
the DMC rehired plaintiff pursuant to a settlement and release agreement.

The settlement agreement included a comprehensive release of any claims—subject to a
handful of exceptions—plaintiff might have had against defendants related to her employment or
termination thereof prior to the execution of the agreement. The settlement agreement specifically
excluded, in relevant part, “[a] claim for breach of this Agreement” and any claim arising after
plaintiff’s reinstatement to the Program. The settlement agreement did not, itself, contain an
arbitration provision. However, the settlement agreement provided that plaintiff:

acknowledges and agrees that upon reinstatement, she remains subject to all
applicable policies, practices and procedures of Tenet, DMC, and the DMC
Graduate Medical Education Accredited Neurosurgery Residency Program, as they
may be amended from time to time.

Plaintiff executed her 2019-2020 GME agreement on June 22, 2019, and the settlement agreement
was executed on July 16, 2019. However, the DMC had, unbeknownst to plaintiff, been notified
by the ACGME on July 2, 2019, that the Program was alleged to be in violation of accreditation
requirements.4 The Program lost its accreditation effective June 30, 2020, whereupon the Program
ended. Plaintiff alleges that defendants assisted various male and/or non-Pakistani trainee
physicians who had been displaced by the Program’s termination to find other placements, but
they actively hindered plaintiff’s efforts to find a new placement.

Shortly thereafter, plaintiff commenced this action against defendants, alleging breach of
contract, discrimination on the basis of national origin, discrimination on the basis of sex,
defamation, hostile work environment, retaliation, and intentional infliction of emotional distress.
In addition to her discrimination, retaliation, and hostile work environment claims, plaintiff alleges
that the settlement agreement was not negotiated in good faith. She argues that defendants knew
the Program was facing loss of its accreditation, and the GME agreements expressly provided that
the DMC was obligated, among other things, to “[u]se its best efforts, within available resources,
to provide an educational training program that” meets accreditation standards and requirements.
Plaintiff also argued that the arbitration agreement was invalid. The trial court found that the

4
There is no evidence that Drs. Ham or Mittal were specifically aware of the ACGME notification.

-4-
arbitration agreement was valid and binding as to all of plaintiff’s claims, so it granted summary
disposition in favor of defendants pursuant to MCR 2.116(C)(7). This appeal followed.

II. STANDARDS OF REVIEW AND PRINCIPLES OF LAW

A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Under MCR 2.116(C)(7), where the claim
is allegedly barred, the trial court must accept as true the contents of the complaint, unless they are
contradicted by documentary evidence submitted by the moving party. Id. at 119. “Under MCR
2.116(C)(7), summary disposition is appropriate if a claim is barred because of ‘an agreement to
arbitrate[.]’ ” Altobelli v Hartmann, 499 Mich 284, 294-295; 884 NW2d 537 (2016) (internal
citations omitted).

“Whether a dispute is arbitrable represents a question of law for the courts that we review
de novo.” Madison Dist Pub Sch v Myers, 247 Mich App 583, 594; 637 NW2d 526 (2001).
Michigan public policy favors arbitration to resolve disputes. Rooyakker & Sitz, PLLC v Plante
& Moran, PLLC, 276 Mich App 146, 155; 742 NW2d 409 (2007). However, “an arbitration
provision is unenforceable if it is not a binding contract.” Hicks v EPI Printers, Inc, 267 Mich
App 79, 84; 702 NW2d 883 (2005) (citation and quotes omitted). An issue is arbitrable if the
parties have an arbitration agreement, the disputed issue is facially or arguably within the scope of
the arbitration provision, and the dispute is not expressly exempted from arbitration. In re
Nestorovski Estate, 283 Mich App 177, 202; 769 NW2d 720 (2009) (quotation marks and citation
omitted). “A valid contract requires five elements: (1) parties competent to contract, (2) a proper
subject matter, (3) legal consideration, (4) mutuality of agreement, and (5) mutuality of
obligation.” Innovation Ventures v Liquid Mfg, 499 Mich 491, 508; 885 NW2d 861 (2016)
(quotation omitted). “[Q]uestions involving the proper interpretation of a contract or the legal
effect of a contractual clause are also reviewed de novo.” Rory v Continental Ins Co, 473 Mich
457, 464; 703 NW2d 23 (2005).

III. ANALYSIS

Plaintiff generally contends that the arbitration agreement is unenforceable or invalid. We
disagree.

A. VALIDITY OF CONTRACT

Plaintiff does not dispute that she and the DMC were competent to contract or that
arbitration was not a proper subject matter for a contract. Rather, she argues that the arbitration
agreement was not a binding contract under the circumstances.

Plaintiff contends that the arbitration agreement was inseparable from the FTP policy and
the employee handbook, both of which forcefully and unambiguously established that they did not
create any kind of employment contract. Plaintiff correctly observes “that an arbitration provision
is unenforceable if it is not a binding contract.” Heurtebise v Reliable Business Computers, 452
Mich 405, 413; 550 NW2d 243 (1996). Thus, if an employee handbook provides that it is not a
binding contract, an arbitration provision contained within that handbook is also not binding. Id.
at 413-414. However, where an arbitration provision is clearly presented as distinct and is

-5-
executed separately, the arbitration provision may be binding even if the rest of the handbook is
not binding. Hicks, 267 Mich App at 83, 87-88.

In other words, there is no inherent reason why an arbitration agreement between an
employer and an employee cannot stand alone despite the absence of any other contract of
employment. Defendants contend that the arbitration agreement consists of the language that
“popped up” at the end of the online training program. The evidence shows that the arbitration
agreement at issue here was presented to plaintiff separately, and she was required to agree to it
(or decline it) separately.

Plaintiff argues that she had no real choice but to assent, but it would be more accurate to
say that she regarded the alternatives as worse. Although understandably frustrating, the evidence
shows that plaintiff did choose to assent to the agreement, and she did so knowingly and
intelligently. Furthermore, even if the arbitration agreement was essentially “take it or leave it,”
that does not mean the agreement lacked mutuality of obligation. First, the agreement precludes
defendants from suing plaintiff in court as much as it precludes plaintiff from suing defendants in
court. Secondly, unlike other policy provisions, the arbitration agreement explicitly prohibits
defendants from unilaterally altering the terms of the agreement. Cf. Stewart v Fairlane
Community Mental Health Ctr, 225 Mich App 410, 420; 571 NW2d 542 (1997) (“We cannot
conclude that an agreement or provision is mutual or binding where, as between a private employer
and a nonunion employee, an employer may unilaterally amend at any time every policy contained
in its employee manual.”) Consequently, the arbitration agreement was supported by both mutual
agreement and mutual obligation. It was valid and enforceable.

B. SCOPE OF ARBITRATION PROVISION

A fair reading of the arbitration agreement is that its essence is “to submit to final and
binding arbitration any and all claims and disputes that are related in any way to [plaintiff’s]
employment or the termination of [plaintiff’s] employment” and that “final and binding arbitration
will be the sole and exclusive remedy for any such claim or dispute that [plaintiff] may have against
[defendants].” By its plain terms, the arbitration agreement does not cover claims unrelated to
plaintiff’s employment or the termination that employment. Some of plaintiff’s claims, such as
defendants’ alleged defamation to potential other employers, could arguably appear somewhat
attenuated. However, we are required to resolve all doubts in favor of arbitration and to avoid
bifurcating parties’ claims between a court and an arbitrator. Rooyakker & Sitz, PLLC, 276 Mich
App at 163. We therefore conclude that the trial court correctly found the arbitration agreement
applicable to the entirety of plaintiff’s claims.

C. EXCLUSIONS FROM ARBITRATION

Plaintiff argues that, even if the arbitration agreement was otherwise valid, it does not apply
to her employment following her reinstatement, because she did not agree to another arbitration
agreement. All other things being equal, we might agree, had there been a true discontinuity in
plaintiff’s participation in the Program. See Varma v TCC Wireless, LLC, 478 F Supp 3d 724,

-6-
729-733 (2020).5 In Varma, the court held that the plaintiff’s arbitration agreement expired upon
his first termination, and because it did not specify that it was everlasting and the plaintiff never
executed anything reviving it, the arbitration agreement did not carry over to his second course of
employment when he was rehired. Id. However, the arbitration agreement in Varma applied only
to the plaintiff’s “employment,” whereas the arbitration agreement here applies both to plaintiff’s
employment and the termination of that employment. Furthermore, in the settlement agreement,
plaintiff expressly acknowledged that “she remains subject to all applicable policies, practices and
procedures of [defendants]” (emphasis added). Although plaintiff argues that defendants did not
negotiate the settlement agreement in good faith and that defendants breached the settlement
agreement, plaintiff does not appear to be seeking to rescind or void the settlement agreement. By
executing the settlement agreement, plaintiff expressly agreed to defendants’ then-existing
“policies, practices and procedures,” which included the arbitration requirements of the FTP.

Plaintiff also argues that the arbitration agreement is not binding because of an
irreconcilable conflict between the arbitration agreement and the GME agreements. As noted, the
GME agreements, including GME agreements executed after the execution of the arbitration
agreement, provide, in part, as follows:

12.5[6] Authority of DMC. The terms of this Agreement are subordinate to the
policies and procedures of the DMC as those policies and procedures may change
from time-to-time. Nothing in this Agreement will be construed as limiting the
authority of DMC from changing policies or procedures or from making any such
changes immediately effective. DMC will make reasonable efforts to notify
Trainee of changes to its respective policies and procedures that may materially
affect a trainee’s rights and obligations under this Agreement.

* * *

12.7 Forum. Both Trainee and DMC irrevocably and unconditionally (as)
consent to submit to the exclusive jurisdiction of the courts of the State of Michigan
for any proceeding arising in connection with this Agreement and (b) waive any
objection to the laying of venue of any such proceeding in the courts of the State of
Michigan.

The GME agreements are clearly intended to be binding contracts between the parties.

Plaintiff and the DMC subsequently executed additional GME agreements after the
arbitration agreement was executed. Each of those GME agreements contained an integration
clause. All other things being equal, the integration clauses could be construed as nullifying any

5
Decisions of lower federal courts may be considered persuasive, but they are not binding upon
us. Abela v General Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
6
The section numbering changed from GME agreement to GME agreement, but these substantive
terms did not. For convenience, we are referring to the section numbering used in the 2019-2020
GME agreement.

-7-
earlier agreements by the parties that conflict with the terms of the GME agreements. See
Archambo v Lawyers Title Ins Corp, 466 Mich 402, 413-414; 646 NW2d 170 (2002). However,
all other things are not equal, and, as we will discuss, we are unable to conclude that the GME
agreements supersede the arbitration agreement under the circumstances of this case.

First, we conclude that the forum-selection clauses in the GME agreements can be
harmonized with the arbitration agreement, pursuant to the principle that we should resolve doubts
in favor of arbitration. Rooyakker & Sitz, PLLC, 276 Mich App at 163. We find persuasive7 the
reasoning of the United States Court of Appeals for the Third Circuit:

[T]there is nothing inconsistent between the arbitration obligation and the instant
forum selection clause. Both can be given effect, for arbitration awards are not self
enforceable. They may only be enforced by subsequent judicial action. Thus, even
if arbitration is completed, the forum selection clause would appear to dictate the
location of any action to enforce the award. [Patten Sec Corp, Inc v Diamond
Greyhound & Genetics, Inc, 819 F2d 400, 407 (CA 3, 1987) (internal footnote
omitted), abrogated in part on other grounds in Gulfstream Aerospace Corp v
Mayacamas Corp, 485 US 271, 287-288; 108 S Ct 1133; 99 L Ed 2d 296 (1988).]

In other words, the forum selection provision in the GME agreements dictates that any action to
enforce an arbitration award, or perhaps to determine whether an arbitrator or arbitration panel
exceeded its powers, must be pursued in Michigan courts. However, the forum selection provision
does not necessarily dictate whether a particular dispute is, or is not, subject to arbitration.

Secondly, parties are always entitled to alter their contracts or enter into new contracts.
Archambo, 466 Mich at 412. If any term in a new contract irreconcilably conflicts with a term in
the prior contract, the newer contract prevails. Omnicom of Mich v Giannetti Investment Co, 221
Mich App 341, 347; 561 NW2d 138 (1997). The parties’ first contract was the first GME
agreement, which did not contain an arbitration provision. However, the arbitration agreement
was unquestionably a new contract entered into by the parties after plaintiff and the DMC executed
plaintiff’s first GME agreement. Even if we were to find that the arbitration agreement
irreconcilably conflicted with a term in the first GME agreement, which we do not, the arbitration
agreement would necessarily supersede any such conflicting term in the GME agreement.

Finally, the forum selection clause in the GME agreements is limited to “any proceeding
arising in connection with this Agreement.” It is therefore significantly narrower in scope than the
arbitration agreement. In other words, the arbitration agreement remains applicable to any claim
“related in any way” to plaintiff’s employment or termination, and the GME agreements would at
most carve out an exception for proceedings specifically arising out of the GME agreement itself.
Presuming it is even possible to concretely identify which claims would and would not remain
subject to arbitration, which is somewhat doubtful, bifurcating claims in such a manner directly
conflicts with public policy favoring arbitration. Rooyakker & Sitz, PLLC, 276 Mich App at 163.

7
See footnote 5.

-8-
Pursuant to § 12.5 of the GME agreements,8 the GME agreements were expressly subject to
defendants’ existing policies and procedures, which included arbitration.

Affirmed.

/s/ Mark T. Boonstra
/s/ Amy Ronayne Krause
/s/ Thomas C. Cameron

8
We note that § 12.5 refers to policies and procedures “as those policies and procedures may
change from time-to-time.” We note that if defendants could overturn the terms of the GME
agreements and evade their contractual obligations at will by unilaterally altering their policies and
procedures, the GME agreements might arguably be a sham. See Karr v Bd of Trustees of Mich
State Univ, 119 Mich App 1, 6; 325 NW2d 605 (1982); see also Stewart, 225 Mich App at 420,
and Carlson v Johnson, 275 Mich 35, 37; 265 NW 517 (1936). However, because the arbitration
policy was effectuated by way of a contractual agreement, we need not consider the significance
of the “as those policies and procedures may change from time-to-time” language.

-9-