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Tinder v. Pinkerton Security

September 17, 2002

ILAH M. TINDER, PLAINTIFF-APPELLANT,
v.
PINKERTON SECURITY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Wisconsin. No. 00 C 170--Barbara B. Crabb, Chief Judge.

Before Manion, Rovner, and Williams, Circuit Judges.

The opinion of the court was delivered by: Manion, Circuit Judge

ARGUED JUNE 12, 2002

The principal issue presented in this appeal is what constitutes sufficient consideration to support an agreement in Wisconsin to arbitrate between an employer and an at-will employee. The appellant, Ilah M. Tinder, sued her former employer, Pinkerton Security, for employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Citing what it claimed was an enforceable agreement to arbitrate the dispute, Pinkerton moved the district court under the Federal Arbitration Act ("FAA") to stay the trial proceedings and compel Tinder to arbitrate her dispute. The district court granted the motion, concluding that the agreement was enforceable. Later, after Pinkerton prevailed at arbitration, the district court confirmed the arbitrator's award in favor of Pinkerton, and Tinder appeals. Because the district court correctly concluded that the agreement was enforceable under Wisconsin law and compelled arbitration, we affirm.

I.

Tinder began employment with Pinkerton on October 21, 1996, and was assigned to work as a security officer at a General Motors facility in Janesville, Wisconsin. The following day, Tinder received a copy of Pinkerton's employee handbook and signed an "Employee Acknowledgment Form." The first paragraph made clear that the form was a contract for employment at-will:

My employment by Pinkerton is strictly an employment at will terminable by either Pinkerton or myself at any time, in either party's sole discretion, without advance notice. No Pinkerton representative has authority to modify this policy. I understand that at no time may I rely on any policies, procedures, customs and/or statements, whether written or oral, to constitute a modification of this express condition of my employment.

The form further provided that the handbook was not to be construed as a supplement to or modification of the employment contract, and that Pinkerton reserved "the right to change its policies, rules 'at-will' employment policy as stated in Paragraph 1." When notifying its employees of policy or rule changes, Pinkerton typically inserts a "payroll stuffer" in the envelope with each employee's paycheck. Occasionally, notices of policy or rule changes are accompanied by acknowledgment forms that employees were required to sign and return to management.

In October 1997, Pinkerton issued to all of its employees as a payroll stuffer a color brochure entitled "Pinkerton's Arbitration Program." The brochure announced that Pinkerton was instituting a mandatory arbitration program effective January 1, 1998, broadly covering all legal claims including discrimination under the federal civil rights statutes:

Any claims or controversies . . . either Pinkerton may have against you or you may have against the Company or against its officers, directors, employees, or agents in their capacity as such, must be resolved by arbitration instead of the courts, whether or not such claims arise out of your employment (or its termination). The claims covered include, but are not limited to, . . . discrimination (including, but not limited to, race, sex, religion, national origin, age, marital status, or medical condition, handicap, or disability); . . . and claims for violation of any federal, state or other governmental law, statute, regulation, or ordinance. . . .

This language was clarified elsewhere in the brochure using a question-and-answer format. The brochure emphasized that the arbitration agreement would not bar employees from bringing legal claims, and that both the employees and the company were bound by the policy:

Q: Do I lose any substantive rights under this program?

A: No, your substantive legal rights remain intact. All that changes is that an arbitrator, rather than a judge or ...


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