The Northern District of Texas has ordered binding arbitration in an age and race dispute with an at-will employee where an arbitration policy was implemented several years after employment began and the employee continued working after receiving notice of the policy. In Robertson v. U-Haul Co. of Texas, No. 3:10-CV-2058-D, (N. D. Tex., February 7, 2011), John Robertson sued U-Haul Co. of Texas (“U-Haul”) “for age and race discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.” Robertson began working for U-Haul in 1998. Eight years later, U-Haul adopted an arbitration policy for employment related disputes that also included termination (the “Arbitration Policy”). The Arbitration Policy provided for “mandatory, binding arbitration of disputes, for all employees,” and specifically applied “to disputes or claims brought under the ADEA and Title VII.” The policy also contained a provision which stated that an employee’s continued employment constituted an agreement to be bound by the terms of the Arbitration Policy and advised current employees to review the policy with a legal advisor. When the Arbitration Policy was implemented, U-Haul requested that all employees sign a copy and Robertson refused. In February 2008, Scott Graydon, U-Haul’s President, sent Roberson a letter, explaining that the Arbitration Policy was a condition of Robertson’s continued employment at U-Haul and that the Arbitration Policy bound Robertson, although he had, until then, declined to sign it. Robertson signed Graydon’s letter in confirmation of receipt. U-Haul terminated Robertson’s employment on September 26, 2009. In 2010, Robertson filed a demand for arbitration with the American Arbitration Association (“AAA”). Robertson’s arbitration claim was dismissed for failure to pay a filing fee. Robertson then filed suit in Texas State Court. U-Haul removed the case to the Northern District of Texas and filed a motion to abate the proceedings and to compel arbitration. The court began its opinion by stating there was no dispute regarding whether Robertson’s claims fell “within the scope of the Arbitration Policy.” Additionally, Robertson made no argument that his claims were not arbitrable. According to the court, The parties instead dispute whether the Arbitration Policy is valid. Under the FAA, arbitration agreements that are valid under general principles of state contract law and involve interstate commerce are “valid, irrevocable, and enforceable.” 9 U.S.C. § 2. The parties do not dispute that the contract involves interstate commerce. The dispositive question is whether the Arbitration Policy is valid under Texas law. The district court began its inquiry by reviewing the applicable Texas law, “The enforceability of an arbitration agreement is a question of law.” In re Dillard Dep’t Stores, Inc., 198 S.W.3d 778, 781 (Tex. 2006) (per curiam) (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003)). “An employer may enforce an arbitration agreement entered into during an at-will employment relationship if the employer establishes that the employee received notice of its arbitration policy and accepted it.” Id. (citing In re Halliburton Co., 80 S.W.3d 566, 568 (Tex. 2002)). “Notice is effective if it unequivocally communicates to the employee definite changes in the employment terms.” Id. (citing In re Halliburton Co., 80 S.W.3d at 568). “If the employee receives notice and continues working with knowledge of the modified employment terms, the employee accepts them as a matter of law.” Id. (citing Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986)). Next, the Northern District held that the Arbitration Policy was “enforceable and applicable to Robertson’s claims,” because “Robertson received proper notice of the Arbitration Policy,” and U-Haul “established that Robertson continued working for U-Haul with knowledge of the modified employment terms.” According to the court, Robertson continued to work for U-Haul until 2009, more than three years after U-Haul notified him that it had modified the terms of his at-will employment. His continued employment constituted acceptance of U-Haul’s Arbitration Policy, and he is bound to arbitrate his current claims because they fall within the scope of the Arbitration Policy. The Northern District of Texas granted U-Haul’s motion to abate and ordered the dispute to binding arbitration. Technorati Tags: law, ADR, arbitration
Continue reading...by Holly Hayes The U.S. Department of Defense has published an on-line Professional Conduct Toolkit designed to help put a stop to disruptive behaviors in healthcare that “undermine team effectiveness, contribute to unhealthy work environments, and put patients at risk.” The toolkit consists of four modules: Professional Conduct, Teamwork, and Patient Safety Responding to Behaviors that Undermine Safe Patient Care Supporting engagement: The Role of Leaders and System Responses High-Conflict Personalities, Mental Health Issues, and Safety Considerations The Toolkit also contains tipsheets, a checklist and tools and guides for implementing initiatives within your healthcare organization. Please share any information you have about addressing disruptive behavior in healthcare with us and our readers. Technorati Tags: Mediation Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.
Continue reading...Sen. Sheldon Whitehouse (D – Rhode Island) has introduced legislation that would provide bankruptcy court judges with the option to require homeowners undergoing bankruptcy and their lenders to engage in foreclosure mediation. According to DS News magazine, Whitehouse’s proposal is modeled after a court program in his home state of Rhode Island. He says it would not give judges the power to slash mortgage debt like the many bankruptcy cramdown measures that have fallen short, but instead would force lenders to open up the lines of communication to find a solution that is in the best interest of both homeowners and investors. Whitehouse’s bill — Limiting Investor and Homeowner Loss in Foreclosure Act (S. 222) — was referred to the Senate Judiciary Committee, of which he is a member, last week. The full committee held a hearing Tuesday on bankruptcy court foreclosure mediation programs and how the approach might be used to “cut through the red tape” and bring the homeowner and their mortgage company together “for a good faith negotiation,” according to Whitehouse. The entire article may be read here. For a list of foreclosure mediation programs across the nation, see the National Consumer Law Center‘s Foreclosure Mediation Programs by State. Additionally, foreclosure mediation bills are currently before the legislature in South Carolina and Washington state. Disputing previously discussed foreclosure mediation programs operated in Hawaii, Connecticut, Florida, Nevada and the District of Columbia. Technorati Tags: ADR, law, mediation
Continue reading...The Eastern District of Texas has refused to grant a jointly filed motion for vacatur despite that provisions of the parties’ mandatory mediation settlement agreement required vacatur of portions of the court’s earlier judgment. In Ohio Willow Wood Co. v. Thermo-Ply, Inc., No. 9:07-CV-274, (E. D. Tex., February 3, 2011), the Ohio Willow Wood Company (“OWW”) filed a lawsuit against Thermo-Ply, Inc. for alleged infringement of its patent, United States Patent No. 7,291,182 (“the ‘182 patent”), which was also in the process of being reexamined by the U.S. Patent and Trade Office. Thermo-Ply filed a motion for summary judgment based on obviousness of the claims in the patent. The Eastern District of Texas granted Thermo-Ply’s motion and entered Final Judgment. Both parties appealed. The parties were ordered to mandatory mediation and reached a settlement agreement that required vacatur of portions of the Eastern District’s Final Judgment, including those portions “that rendered much of the ‘182 patent invalid.” The case was then remanded to the Eastern District of Texas in order to determine “whether its invalidity judgment should be vacated.” On remand, two additional parties also involved in a ‘182 patent dispute with OWW moved to intervene. First, the Eastern District of Texas analyzed United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S. Ct. 386 (1994), The Court stated that the “principal condition to which we have looked [in determining whether vacateur is appropriate] is whether the party seeking relief from the judgment below caused the mootness by voluntary action.” Id. at 24, 115 S. Ct. at 391. While exceptional circumstances can justify vacateur, “those exceptional circumstances do not include the mere fact that the settlement agreement provides for vacateur.” Id. at 29, 115 S. Ct. at 393. However, the Bancorp Court was very clear that it was not announcing a rule that “vacateur can never be granted when mootness is produced” by way of settlement agreement, id., and the court’s decision in this case should not be interpreted otherwise. Additionally, the Court was not addressing the policy considerations which have resulted in the development of mandatory mediation programs. The court continued its analysis by stating, In the present case the Federal Circuit placed OWW and Thermo-Ply in the mandatory mediation program. According to the Appellate Mediation Program Guidelines, “[t]he purpose of mediation is a settlement of the case. This may include a global settlement.” United States Court of Appeals for the Federal Circuit, Appellate Mediation Program Guidelines at 4 (emphasis added); see also id. at 6 (“The purpose of the mediation program is to help the parties achieve settlement.”). According to the court, Given the emphasis placed on alternative dispute resolution by Congress and the judiciary, a per se rule barring vacateur as part of the appellate mediator’s “tool box” seems short sighted. A more reasoned approach is to examine, on a case-by-case basis, the policy considerations and factors addressed in Bancorp and decisions that followed. Next, the Eastern District discussed several factors in its vacatur analysis, In addition to consideration of whether the parties have caused mootness by voluntary action, other factors considered by these courts include: the parties’ desire to avoid any potential preclusive effect; the parties’ interest in conserving their resources; the public interest in the orderly operation of the federal judicial system; and the potential to conserve judicial resources. The court concluded by stating, The invalidity judgment in this case did not require extensive time from this court, and did not require lengthy service from jurors. Given the value the judicial system places on mediation, a vacateur that affected only OWW and Thermo-Ply, saved the Federal Circuit from hearing the appeal, and finally disposed of the dispute could be justified. But this patent is the subject of litigation in other courts, and is involved in reexamination. The judgment of invalidity is now ripe for consideration by the Circuit Court. Vacating the judgment will impose costs on other parties and courts. It will only delay, not obviate the need for, consideration of the issue by the Federal Circuit. The court concludes that this is not a case where the circumstances justify vacating its summary judgment order that many of claims of the ‘182 patent are invalid as obvious. The Eastern District of Texas denied the parties’ joint motion to vacate the court’s earlier judgment. Technorati Tags: Mediation
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.