Appeal from the United States District Court for the District of South Dakota.
The opinion of the court was delivered by: Melloy, Circuit Judge.
Submitted: February 13, 2009
Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.
Yellow Transportation, Inc. ("Yellow"), terminated Ronald McNamara's employment after more than twenty-three years of service. McNamara filed suit against Yellow alleging retaliation, gender discrimination, and a violation of the Family and Medical Leave Act ("FMLA"). Yellow moved for summary judgment or, in the alternative, for an order to compel arbitration. The district court denied these motions, and Yellow appeals.
We hold that McNamara was not a transportation worker exempted from the Federal Arbitration Act ("FAA"). We also hold that McNamara's dispute was subject to a valid arbitration agreement and that Yellow did not waive its right to arbitrate by failing to move for arbitration during EEOC proceedings prior to McNamara's filing of this suit. Accordingly, we reverse the district court's denial of Yellow's motion to compel arbitration and remand to the district court with directions to enter a stay holding the case in abeyance pending arbitration.
Yellow hired McNamara in January 1983. Over the years, McNamara worked in several different capacities for Yellow. He served as a Customer Relations Manager in a call center in Sioux Falls, South Dakota, at the time of the events relevant to the present claims.
On October 29, 2001, Yellow instituted a mandatory arbitration program. According to an unrebutted affidavit that Yellow submitted with its motions to the district court, Yellow circulated a two-page arbitration agreement ("2001 Agreement") to its employees via email and via interoffice mail.*fn1 McNamara does not deny that he received the 2001 Agreement by either method of delivery. The 2001 Agreement stated that the arbitration process would "become a condition of your employment, effective November 8, 2001," and McNamara continued as Yellow's employee after that date. He did not dispute the applicability of the 2001 Agreement at any time during his employment.
On June 30, 2004, Yellow distributed to its employees, including McNamara, a document entitled "Yellow, a Matter of Respect, Policy Guide to Workplace Conduct" ("Policy Guide"). The Policy Guide contained descriptions of Yellow's policies applicable to union and non-union workers on a wide variety of topics. The Policy Guide included a copy of the 2001 Agreement. The first page of the Policy Guide was a disclaimer with a large font, bold-faced header stating "DISCLAIMER." The balance of the page was in all caps and underlined.*fn2
Following the disclaimer, every page of the Policy Guide included a header that stated, "This Information Applies to All Employees." In addition, every page included a footer that stated "POLICY GUIDE." Pages 16 and 17 of the Policy Guide contained a reproduction of the 2001 Agreement. The only difference between the language set forth on Pages 16 and 17 of the Policy Guide and the 2001 Agreement, as distributed in 2001, was language concerning an effective date and the consequences of remaining an employee after the effective date. In the Policy Guide, this language was truncated and stated only, "The Dispute Resolution Process is a condition of your employment."
Yellow required its employees to sign a form acknowledging receipt of the Policy Guide. McNamara signed the acknowledgment form on June 30, 2004. He then remained Yellow's employee until his termination on June 19, 2006.
While we do not purport to assess the merits of McNamara's substantive claims, we describe both his version and Yellow's version of the termination for context. According to McNamara, he criticized his manager during Yellow's review of the manager, stating that the manager had harassed people within the office and showed favoritism to women. McNamara asserts that the manager discovered the criticism through a violation of McNamara's rights, targeted McNamara for termination, and eventually hired several women to work as Customer Relations Managers following McNamara's termination. According to Yellow, it terminated McNamara for violating its Internet/computer acceptable-use policy and for a "long history of disregard for Yellow's rules and procedures." Yellow alleges in its brief that it provided McNamara "extensive coaching regarding his multiple violations of Yellow's rules and procedures" and issued him a "Notice of Corrective Action" for purportedly creating a hostile work environment.
McNamara submitted a claim to the EEOC, and Yellow did not raise the issue of arbitration during the EEOC proceedings or prior to McNamara's filing of the present suit. After McNamara filed suit, Yellow moved for summary judgment or for an order compelling arbitration. Yellow supported its motions with an affidavit, copies of the 2001 Agreement, and copies of an email message distributing the 2001 Agreement. Yellow's arguments in support of arbitration relied upon the 2001 Agreement as the contract requiring arbitration. McNamara, in contrast, directed a competing affidavit and his arguments in opposition to Yellow's motions exclusively towards the Policy Guide, making no reference to the 2001 Agreement and failing to dispute any of Yellow's evidence regarding the 2001 Agreement or McNamara's receipt of the 2001 Agreement. The district court also focused on the Policy Guide, making no reference to the 2001 Agreement. The district court resolved Yellow's motions on the briefs and did ...