Court of Appeals of Missouri, Eastern District, Fifth Division
Appeal from the Circuit Court of the St. Louis County. Honorable Michael T. Jamison.
FOR APPELLANT: Steven J. Hughes, St. Louis, Missouri; Mark Chumley (co-counsel), Jennifer Colvin (co-counsel), Cincinnati, Ohio.
FOR RESPONDENT: Gretchen G. Myers, St. Louis, Missour.
Lisa S. Van Amburg, Judge. Angela T. Quigless, C.J. concurs and Kurt S. Odenwald, J. concurs in a separate opinion.
Lisa S. Van Amburg, Judge.
Cintas Corporation and its subsidiaries ("Cintas"), as well as its managers Timothy Baker and Brian Fitzsimmons, (collectively " Defendants" ) appeal from the trial court's order denying their motion to compel arbitration of the employment discrimination claims brought by Kathryn Jimenez. Defendants contend the trial court erred in failing to compel arbitration of Jimenez's claims pursuant to a valid agreement, because there was sufficient consideration based upon: (1) the parties' mutual promises to arbitrate disputes arising out of Jimenez's employment relationship; and (2) Cintas's offer to Jimenez of " new" or " future" at-will employment. Cintas also contends the agreement to arbitrate was part of an enforceable contract based upon an offer and acceptance, and the terms of that agreement were not unconscionable. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2011, Jimenez began working for Cintas as a Fire Service Technician. She continued in this capacity until June 2012, when Cintas terminated her employment. On July 18, 2013, Jimenez filed a petition against Defendants in the Circuit Court of St. Louis County, challenging her termination and alleging that during her employment she suffered discrimination and harassment by Baker and Fitzsimmons, who acted in their capacity as managers for Cintas.
On August 26, 2013, Defendants filed a motion to compel Jimenez to arbitrate her claims against Cintas, attaching a document entitled " Missouri Employment Agreement for Sales, Service and Marketing Personnel" (" Agreement" ). The first page of the Agreement is dated December 12, 2011, and contains Jimenez's purported signature, as well as provisions invoking the Federal Arbitration Act as the law by which the agreement " will be interpreted, governed and enforced."
Section 8 of the Agreement, entitled " Exclusive Method of Resolving Disputes or Differences," states that disputes " between Employee and Employer concerning whether either party at any time violated any duty, right, law, regulation, public policy, or provision of this Agreement" that cannot be resolved in good faith, must be " resolved through impartial and confidential arbitration." Section 8 states that both Cintas and Jimenez must arbitrate any unresolved " claims for damages, as well as reasonable costs and attorney's fees, caused by [the other party's] violation of any provision of this Agreement or any law, regulation or public policy." It further provides:
The rights and claims of Employee covered by this Section 8, including the arbitration provisions below, specifically include but are not limited to all of Employee's rights or claims arising out of or in any way related to Employee's employment with Employer, such as rights or claims arising under the Age Discrimination in Employment Act, as amended, Title VII of the Civil Rights
Act of 1964, as amended (including amendments contained in the Civil Rights Act of 1991), the Americans With Disabilities Act, 42 U.S.C. § 1981, the Fair Labor Standards Act, the Employee Retirement Income Security Act, state antidiscrimination statutes, other state or local laws regarding employment, common law theories such as breach of express or implied contract, wrongful discharge[,] defamation, and negligent or intentional infliction of emotional distress. Excluded from the arbitration provisions below in this Section 8 are all unemployment benefit claims, workers' compensation claims, claims for a declaratory judgment or injunctive relief concerning any provision of Section 4 of this Agreement, and claims not lawfully subject to arbitration, including charges or complaints filed with an administrative agency (but not litigation connected with any such charge or complaint). (Emphasis added).
Consequently, the Agreement requires the arbitration of all claims, except those expressly excluded. It excludes from the requirement to arbitrate all: " workers' compensation claims, unemployment benefits claims, claims for a declaratory judgment or injunctive relief concerning any provision of Section 4 and claims not lawfully subject to arbitration . . . ."
Section 4 is entitled " Employee's Acknowledgement and Covenants." The Section 4 claims exempted from arbitration relate to covenants binding solely upon Jimenez, and prohibit her from disclosing confidential material and information belonging to Cintas, competing against Cintas, and soliciting Cintas's customers and employees (the " Non-Compete Provisions" ). Section 4 also contains a clause stating:
Employer may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction or other injunctive relief to enforce Employee's compliance with the obligations, acknowledgments and covenants in this Section 4. Employer may also include as part of such injunction action any claims for injunctive relief under any applicable law arising from the same facts or circumstances as any threatened or actual violation of Employee's obligations, acknowledgments and covenants in this Section 4. (Emphasis added).
On October 21, 2013, Jimenez filed a response in opposition to Defendants' motion to compel arbitration. In support, she attached a sworn affidavit, stating that: (1) she does not recall reading or signing the Agreement produced by Defendants, receiving a copy of it, or reviewing its terms; and (2) she neither started nor continued her employment with the intent to be bound by its provisions.
The court held an evidentiary hearing, and denied Defendants' motion to compel arbitration. In its order, the court declined to address whether Jimenez had actually signed the Agreement, reviewed it, or received a copy of it, concluding instead that it " need not address these matters since the third element necessary to create a binding contract, bargained for consideration, is dispositive of this matter." The court stated that the parties had agreed that Jimenez was an " at-will" employee. It then concluded the agreement to arbitrate lacked consideration because, " there cannot be sufficient consideration given in an employment contract with an at-will employee such as to consummate a binding contract to arbitrate any dispute between the parties." ...