United States District Court, N.D. Illinois, Eastern Division
October 7, 2004.
VICKI NANO DALOPE, Plaintiff,
UNITED HEALTH CARE OF ILLINOIS, SALLY BLOMQUIST, Defendants.
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Vicky Nano Dalope was employed as a support services
clerk for defendant United Healthcare of Illinois ("UHC") from
April 11, 1988 until her termination on November 10, 2000. Ms.
Dalope alleges that UHC terminated her on the basis of her age in
violation of the Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq. ("ADEA") and that UHC and Sally Blomquist, Ms.
Dalope's former supervisor, failed to reasonably accommodate Ms.
Dalope's physical disabilities in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). UHC now
moves to dismiss or, in the alternative, stay this proceeding and
compel arbitration of Ms. Dalope's claim based on UHC's
Employment Arbitration Policy. I GRANT the motion to compel
arbitration and DISMISS the complaint without prejudice.
The Federal Arbitration Act ("FAA") provides that "[a] written
provision in any . . . contract evidencing a transaction
involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . .
shall be valid, irrevocable and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract." 9 U.S.C. § 2. Under the FAA, once I am satisfied that
the making of the agreement to arbitrate is not in issue, I must
order the parties to proceed to arbitration in accordance with
their agreement. Schacht v. Beacon Ins. Co., 742 F.2d 386, 388
(7th Cir. 1984). Whether the parties agreed to arbitrate is a
matter of state contract law. Tinder v. Pinkerton Sec.,
305 F.3d 728, 733 (7th Cir. 2002). Here, Illinois contract law
The parties agree that the complete terms of the arbitration
agreement are set forth in three inter-related documents, which
are attached to UHC's motion: the UHC Code of Conduct and
Employee Handbook Acknowledgement ("Acknowledgement") form signed
by Ms. Dalope on August 20, 1997, excerpts from the United Health
Group ("UHG")*fn1 Employee Handbook ("Handbook") summarizing
UHG's Dispute Resolution policies, and UHG's Employment
Arbitration Policy ("EAP").*fn2 Ms. Dalope admits having
received, read and understood these documents. The Acknowledgement reads, in relevant part, "I
understand that arbitration is the final, exclusive and required
forum for the resolution of all employment related disputes which
are based on a legal claim. I agree to submit all employment
related disputes based on a legal claim to arbitration under
UHC's policy." Both the EAP and the summary thereof contained in
the Handbook explicitly include within their definition of a
legal claim any dispute that "arises or involves a claim under
. . . the Age Discrimination in Employment Act . . . [or the]
Americans with Disabilities Act."
Ms. Dalope does not deny that a contractual relationship
existed between herself and UHC with respect to the arbitration
agreement, nor does she argue that her claims are not subject to
the FAA. Nonetheless, she argues that UHC should not be permitted
to enforce the arbitration agreement because it has failed to
exhaust its own IDR process before seeking arbitration.
Plaintiff's argument assumes the parties were mutually obligated
to exhaust the IDR process before either could pursue
arbitration. I find this argument neither accurate nor
persuasive. Absent some ambiguity in the agreement, it is the
language of the contract that defines the scope of disputes
subject to arbitration. EEOC v. Waffle House, Inc.,
534 U.S. 279, 289 (2002). The Acknowledgement signed by Ms. Dalope makes
clear that "the provisions of the [Employee] Handbook are
guidelines and except for the provisions of the Employment Arbitration Policy, do not constitute a contract
or any particular terms or condition of employment . . ."
(emphasis added). The language of the EAP concerning IDR clearly
reflects its voluntary and separate character: "employees are
encouraged to exhaust the IDR process before proceeding to
arbitration." Moreover, Ms. Dalope's argument misconstrues the
obligations of the parties with respect to the IDR process. The
language of the IDR policy indicates that employees must initiate
the process, not the employer. UHC's obligation to follow the
procedures set forth in its IDR policy are triggered by the
employee's actions in submitting a claim. UHC is not obligated to
initiate the IDR process prior to seeking arbitration.
Ms. Dalope further contends that because she was terminated,
she could not avail herself of the IDR process and is therefore
not bound to arbitrate. However, the IDR policy explicitly
provides for a mechanism for terminated employees to appeal their
termination by submitting a written appeal within 20 days after
termination. Ms. Dalope chose not to avail herself of this
process; she cannot now use that choice as a shield against her
agreement to arbitrate.
Ms. Dalope next argues that the EAP ceased to be binding once
her employment with UHC ended. The express language of the both
the EAP and the Arbitration Policy section of the Handbook
clearly indicate in their scope of policy sections that a dispute
is subject to the arbitration policy if it arises or involves a
claim regarding or relating to termination of employment. The EAP
also clearly defines the term employee to include both current
and former employees of UHG. Obviously, a dispute over
termination would not be litigated while an employee is still
employed by UHC. See, e.g., Johnson v. Travelers Property
Casualty, 56 F.Supp.2d 1025, 1026 (N.D.Ill. 1999). Ms. Dalope
entered into a valid agreement with UHC to submit any employment
disputes based on a legal claim to arbitration and all of the
claims raised in her complaint are subject to that agreement. I
GRANT UHC's motion to compel arbitration of these claims.
The last issue is whether the appropriate disposition of this
matter is to dismiss the complaint or stay the proceeding in
accordance with 9 U.S.C. § 3. Because all issues raised in this
action must be submitted to arbitration, retaining jurisdiction
and staying the action will serve no purpose. Any
post-arbitration remedies sought by the parties would be limited
to a judicial review of the arbitrator's award. Alford v. Dean
Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992);
see 9 U.S.C. § 9-12. Although the Seventh Circuit has not
directly addressed this issue, "[t]he weight of authority clearly
supports dismissal of the case when all of the issues raised in
the district court must be submitted to arbitration." Green v.
Ameritech Corp., 200 F.3d 967, 973 (6th Cir. 2000) (citing
Alford at 1164). See also e.g., Hostmark Investors, Ltd. v. Geac Enterprise Solutions, Inc.,
2002 WL 1732360 *3 (N.D.Ill. July 26, 2002) (dismissing complaint
without prejudice where all issues were subject to arbitration);
Reineke v. Circuit City Stores, Inc., 2004 WL 442639*5
(N.D.Ill. Mar. 8, 2004) (same); U.S. International Travel &
Tours, Inc. v. Tarom S.A.S.C. Compania Nationala De Transporturi
Aeriene Romane, 98 F.Supp.2d 979, 981 (N.D.Ill. May 26, 2000)
(same). Consequently, rather than stay these proceedings pending
arbitration, I DISMISS this case without prejudice.