# Appendix — Reliable Business Computers v. Heurtebise > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0375%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1142 ## Text Supreme Court, U.S. a wo™ se a wee ; ‘/ 96 $98 DEC 1 6 19% LER No. __ 9g 08 HE GLENS In The Supreme Court of the United States *»> October Term, 1996 + * RELIABLE BUSINESS COMPUTERS, Petitioner, Vv. THERESA A. HEURTEBISE, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE MICHIGAN SUPREME COURT APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE MICHIGAN SUPREME COURT CHRISTOPHER R. HOLLIDAY (P 39173) VEeRCRUYSSE METZ & Murray, P.C. JULIA SHERWIN (P50992) By: DIANE M. SOUBLY (P 32005) Attorneys for Respondent Counsel of Record 3000 Cadillac Tower ROBERT M. VERCRUYSSE (P 21810) Detroit, Michigan 48226 Attorneys for Petitioner (313) 965-0050 31780 Telegraph Road, Suite 200 Bingham Farms, Michigan 48025 (810) 540-8019 Interstate Brief & Record Company, a division of North American Graphics, Inc. 1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230 DMR ii i A. RNR EERE RETR SN ss as iy aa em i ai ia die se i ah 2 5 TABLE OF CONTENTS OF APPENDIX PAGE ORDER DENYING REHEARING - State of Michigan Supreme Court (September 16, 1996) ........cccccccccceeee. A-1 OPINION — State of Michigan Supreme Court I Mel IND Vesela ganelhcccsncibaradabesiiteniscrnasiseicssibnain, A-2 OPINION — State of Michigan Court of Appeals I Ty I a, A-35 EXCERPTS FROM DEFENDANT-APPELLEE’S BRIEF ON APPEAL — State of Michigan Supreme Court Bs FS Or ea A-38 EMPLOYEE ACKNOWLEDGMENT - Reliable Business Computers, Inc (May 25, 1989) ....cccccccccccssssscesseesseees A-62 EXCERPT FROM PLAINTIFF-APPELLANT’S SUPPLEMENTAL APPENDIX — State of Michigan Supreme Court ..........0000000000... A-63 AFFIDAVIT OF THOMAS RIDDLE - State of Michigan Court of Appeals (May 6, 1993) ...ccccccccccccssccsssececseees A-67 STATUTORY AND CONSTITUTIONAL AUTHORITIES: oe a YR eee n ene A-71 Michigan Fair Employment Practices Act .............. A-72 Elliott-Larsen Civil Rights Act. ...........ccccccccceceeeeeeeeee A-86 Title 9, United States Code, §§ 1-2 .......cccceeceeee. A-111] ee eg PINs Ba OE Hececsnchecdcncscscecocvancabedcscinsate A-112 as: eis I IG aan A-112 No. In The Supreme Court of the United States * October Term, 1996 « RELIABLE BUSINESS COMPUTERS, Petitioner, Vv. THERESA A. HEURTEBISE, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE MICHIGAN SUPREME COURT APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE MICHIGAN SUPREME COURT A-l ORDER DENYING REHEARING (State of Michigan — Supreme Court) (Entered September 16, 1996) (THERESA S. HEURTEBISE, Plaintiff-Appellant, v RELI- ABLE BUSINESS COMPUTERS, INC., Defendant-Appellee — SC: 102019; CoA: 152041; LC: 91-131165-CZ; Rehearing N1.366) James H. Brickley, Chief Justice; Charles L. Levin, Michael F. Cavanagh, Patricia J. Boyle, Dorothy Comstock Riley, Conrad L. Mallett, Jr., Elizabeth A. Weaver, Justices. In this cause, a motion for rehearing is considered, and it is hereby DENIED. (SEAL) (Certification Omitted) A-2 OPINION (State of Michigan — Supreme Court) (Argued April 10, 1996 [Calendar No. 5}; Decided & Filed July 16, 1996) (THERESA S. HEURTEBISE, Plaintiff-Appellant, v RELI- ABLE BUSINESS COMPUTERS, INC., a Michigan corporation, Defendant-Appellee — No. 102019) James H. Brickley, Chief Justice; Charles L. Levin, Michael F Cavanagh, Patricia J. Boyle, Dorothy Comstock Riley, Conrad L. Mallett, Jr., Elizabeth A. Weaver, Justices. BEFORE THE ENTIRE BENCH CAVANAGH, J. We are asked in this case to address whether the instant parties have created a binding arbitration agree- ment with respect to employment discrimination claims accruing subsequent to such an agreement. If yes, then we would need to address whether such agreements between employers and employees, entered into as a condition of employment, violate public policy in Michigan. We hold that no binding agreement was cre- ated in this case. Consequently, a majority of this Court declines to address the second issue. However, | would further hold that the public policy against discrimina- tion in Michigan precludes enforcement of prospective waivers in employment contracts of a judicial forum for civil rights claims. Before turning to the matter at hand, we thank all of the amici curiae who filed briefs for assisting us in resolving the issues. / This case is at the summary disposition stage. In November 1991, the plaintiff, Theresa Heurtebise, filed suit against the defendant, Reliable Business Computers, alleging that she had been unlawfully terminated from A-3 her employment in violation of the Michigan Civil Rights Act. MCL 37.2101 et seg.; MSA 3.548(101) et seq. The plaintiff alleged that she had been hired in May 1989 to perform computer software support work. She further alleged that she and a co-worker, who was male, often took lunches that lasted longer than the company’s established one-hour period, while working together on a project. Additionally, she alleged that on July 20, 1990, the plaintiff and this male co-worker returned from a working lunch that had lasted longer than one hour. The plaintiff alleged that she was terminated, while her male co-worker was not. The plaintiff argued that this was unlawful gender discrimination and sought money damages. In response, the defendant brought a motion to dis- miss, pursuant to MCR 2.116(C)(4) (lack of subject matter jurisdiction), or, alternatively, to compel arbitra- tion and to stay proceedings, pursuant to MCR 3.602. The defendant relied on a written acknowledgment signed by the plaintiff and dated May 25, 1989, which stated that she had received the defendant's employee handbook and that she had agreed to be bound by its terms and policies.' The handbook provided an internal review mechanism for disputes with respect to dis- 1 The document provided: I acknowledge receipt of the Reliable Business Com- puters, Inc. Lmployee Handbook. I agree to conform to the various procedures, rules and regulations of the com- pany, as set forth therein, and as may be promulgated by the company in the future, and further understand that my employment and compensation can be terminated with, or without cause, and with or without notice at any time, at the option of either me or the company. I further under- stand that no employee, other than the president or his designee, in a duly executed written document, has any authority to enter into any agreement for employment for any specified period of time, or to make any arrangements contrary to or different from what is provided in this handbook. A-4 missals.? In addition, it provided that all disputes involving money damages would go to final and binding arbitration.’ . Notwithstanding that employees are employed by the COM- PANY “at will” and that an employee’s employment may be terminated by the employee or the COMPANY, at any time, (without notice and without cause). An employee who has followed the internal review procedure for review by the Executive Committee, (specified above), and who is not sat- isfied with the results of the review and who feels com- pelled to seek redress from a source outside the COMPANY may challenge the propriety of the dismissal outside the COMPANY, only through arbitration as hereinafter described. Such arbitration shall be the final arena of dispute reso- lution and the decision of the arbitrator(s) shall be final and binding upon both the COMPANY and the employee. 3 Section VIII of the handbook provided: ARBITRATION OF DISPUTES If any dispute, matter or controversy involving claims of monetary damages and/or employment related matters should arise between an employee and the COMPANY, including, but not limited to, any and all claims relating to termination of employment (regardless of whether or not the employee has exhausted the various mandatory proce- dures for internal review of complaints and dismissals), then such dispute, matter or controversy shall be referred for binding arbitration under the laws of the State of Michigan to the American Arbitration Association (here- inafter “AAA” ) under the rules of such AAA, to be decided by a three (3) member arbitration panel, except that the COMPANY shall have the right to select one arbitrator, the employee shall have the right to select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. A decision or award of the AAA shall be accepted as final and conclusive and shall be binding upon both the employee and the COMPANY ... . The arbitration pro- ceeding shall afford the COMPANY and the employee with opportunities to present and rebut evidence relative to the applicable issues. Nothing herein relative to arbitration, however, shall prevent either employee or COMPANY from seeking and obtaining equitable relief on a temporary or permanent basis from a court of competent jurisdiction by (concluded on page A-5) ? Rota A-5 The trial court denied the defendant's alternative motions. It refused to enforce the arbitration agreement on the grounds that it was against public policy and that other clauses in the handbook made the arbitra- tion provision ambiguous.‘ The Court of Appeals reversed. 207 Mich App 308; 523 NW2d 904 (1994). It reasoned: The trial court appears to have denied defend- ant’s motion in part because it found there was no “meeting of the minds” between plaintiff and defendant with regard to the arbitration clause. The record does not Support such a finding. Before beginning employment, plaintiff signed an acknowledgment form that stated that she agreed to conform to the various procedures, rules, and regulations of the company as set forth in the handbook. Moreover, even were the record devoid of plaintiff's express acceptance of the handbook’'s provisions, it is well established (continued from page AA) instituting a legal action or other court proceeding in order to protect or enforce the rights of either or to prevent irreparable harm and injury. However, the court's jurisdic- tion over any such matter between the COMPANY and the employee shall be expressly limited only to the equitable issues and relief sought, and all issues involving monetary damages between the COMPANY and the employee shall be determined through arbitration as described above. 4 The court stated from the bench: This is a situation in which an employer hires an em- ployee and as a condition, in giving that employee ... employment hands her an employee handbook, and the employee handbook purports to handle any number of things, including providing an internal review process for dismissals. It is an agreement which, if one were to enforce it, would indicate that this employee could not bring an action for anything, including, by the way, [the] whistle blowers act, against this employer without subjecting it to arbitration. That strikes me as if not absurd certainly viola- tive of public policy. A6 under Michigan law that mutual assent to a term of employment is not required. /n re Certified Question, 432 Mich 438; 443 NW2d 112 (1989); Carlson v Hutzel Corp of Michigan, 183 Mich App 508; 455 NW2d 335 (1990); Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980).'5) Plaintiff's argument that the handbook specifi- cally states that it does not create an enforce- able contract is misguided. The provision plaintiff relies on addresses the at-will nature of plaintiff's employment, not the handbook in its entirety. Finally, we find no “public policy” prohibition against the enforcement of a valid arbitration agreement that provides for meaningful arbitra- tion in matters involving civil rights questions. See Gilmer v Interstate/Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991). To the contrary, arbitration has long been a favorable method of dispute resolution. Detroit v AW Kutsche & Co, 309 Mich 700; 16 NW2d 128 (1944). Thus, arbitration clauses are to be liberally con- strued with any doubts to be resolved in favor of arbitration. Chippewa Valley Schools v Hill, 62 Mich App 116; 233 NW2d 208 (1975). Contrary to plaintiff's suggestion, arbitration of plaintiff's claims will not result in the loss of her rights under the Civil Rights Act, but, instead, merely constitutes enforcement of an agreement to have those rights determined in a different forum. Arbitration does not impair the remedies 5 We note that the panel’s citation of In re Certified Question, which held that an employer could unilaterally change a written policy, was misplaced. Assuming arguendo that the Michigan Arbi- tration Act applies, it provides that neither party to an arbitration agreement can revoke the agreement without the other party's con- sent. MCL 600.5011; MSA 27A.5011. A-7 afforded under the statute. [207 Mich App 310- 311. ] We granted leave to the plaintiff's appeal. 450 Mich 960 (1995). We note that the entire handbook was not presented to the trial court or to the Court of Appeals. After oral argument, we granted the plaintiff's motion to expand the record to include the entire handbook. It is seventy-one pages long and covers a broad scope of subjects.® The expanded record reveals that the hand- book included an antidiscrimination policy statement.’ In the introduction on page 2, the handbook further reserved in the defendant the right to modify any policy contained in the handbook “at its sole discretion.” 6 The table of contents lists the following headings: administrative policies, rules and procedures ... salary and wage levels, promotions and transfers ... absence from work ... employee benefits ... security provisions — non- disclosure of company trade secrets and confidential infor- mation ... company’s ownership of inventions and other developments ... termination and dismissal ... [and] arbi- tration of disputes. 7 On page 4, the handbook provided: It is the policy of the company to recruit, hire and pro- mote without regard to physical handicap, race, religion, national origin, sex, age or veteran status. It is also com- pany policy to require that all other personnel action such as compensation, transfers, company sponsored training, educational assistance, social and recreational programs, and all employee benefit programs are administered without regard to physical handicap, race, religion, national origin, sex, age or veteran status. It is important that every employee, regardless of status, understand the intent of and comply with this policy. Should you feel that someone has violated this policy, please contact the Chief Operating Officer, or any member of the Executive Committee, immediately. We note that a contractual provision providing parallel protection against discrimination cannot supplant independent statutory and constitutional rights. Betty v Brooks & Perkins, 446 Mich 270, 289; 521 NW2d 518 (1994). A-8 Il We turn first to whether the parties are bound by a valid arbitration agreement. It is undisputed that an arbitration provision is unenforceable if it is not a binding contract.’ The opening statement in the hand- book provides: This document is intended to establish and clarify certain employment policies, practices, rules and regulations (hereinafter collectively referred to as “Policies”) of Reliable Business Computers, Inc., (hereinafter referred to as the “company” ). Except as may otherwise be pro- vided, the Policies will apply to all company employees, and it is each employee's responsi- bility to assure that his/her own conduct is in conformity with those Policies. /t is important to recognize and clarify that the Policies specified herein do not create any employment or personal contract, express or implied, nor is it intended nor expected that the information provided in this document will provide sufficient detail to answer any and all questions which may arise. NOTWITHSTANDING ANY OF THE SPECIFIC POLICIES HEREIN, EACH EMPLOYEE HAS THE ABSOLUTE RIGHT TO TERMINATE HIS/HER OWN EMPLOYMENT AT ANY TIME, WITHOUT NOTICE, AND FOR ANY REASON WHAT- SOEVER, AND THE COMPANY HAS THE SAME RIGHT. From time to time, the company specifically reserves the right, and may make modifications to any or all of the Policies herein, at its sole dis- cretion, and as future conditions may warrant. In the event employees have any questions relative to any of the Policies, they are urged to contact their supervisor for clarification purposes. x*** 8 4 Am Jur 2d, Alternative Dispute Resolution, § 70, pp 129-130. Assuming arguendo that the MAA applies, it provides the same con- tractual requirements. MCL 600.5001(2); MSA 27A.5001(2). a ee A-9 New employees will receive a copy of this doc- ument at the time of formal hire. Upon receipt, all employees will sign the Employee Acknowl- edgement, acknowledging receipt of this docu- ment. [Emphasis added. ] This demonstrates that the defendant did not intend to be bound to any provision contained in the hand- book. Consequently, we hold that the handbook has not created an enforceable arbitration agreement with respect to this dispute. We note that the above opening statement was not part of the record before the Court of Appeals. Had the Court of Appeals been able to examine the entire handbook. we are confident that it would have reached the same conclusion. We hold that the defendant was not entitled to summary disposition. Il Although a majority of this Court saves the public policy issue for another day, because the Court of Appeals addressed it, | believe that we should decide it as well. Therefore, | turn now to the issue whether pri- vate employers can require employees, as a condition of employment, to waive prospectively their right to pursue civil rights claims in a judicial forum. As | will demonstrate, Michigan has a long history of stalwartly defending individuals from invidious discrimi- nation in their pursuit of basic civil liberties. such as equal opportunity in the pursuit of employment. Unlike federal law, Michigan also has an unwavering history of faithfully defending an aggrieved individual's right to a judicial forum to remedy unlawful discrimination. The defendant relies on federal title VII and age dis- crimination (ADEA) case law. However, it is axiomatic that even under federal law, “an employee may not prospectively waive his or her rights under either Title Vil or the ADEA.” Adams v Philip Morris, Inc, 67 F3d 580, A-10 584 (CA 6, 1995).® Likewise, we have held that thé rights secured by the Michigan Civil Rights Act are “nonnego- tiable state rights.” Betty v Brooks & Perkins, 446 Mich 270, 282; 521 NW2d 518 (1994). “These are rights that apply to all employees, whether or not they belong to a union. Such rights cannot be waived or conditioned on success at the bargaining table.” /d. The defendant and its amici curiae would have us believe that the only interest at stake in enforcing a prospective arbitration agreement is the parties’ choice of forum in which an aggrieved party may pursue statutory remedies. We should decide whether a prospective waiver of an aggrieved individual's right to a judicial forum, which is required of the employee as a condition of employment, comports with Michigan public policy as reflected in our constitution, civil rights statute, and case law. The issue before us would be one of first impression. There are several layers of considerations that | will address. First, | will briefly review the prevailing prece- dent with respect to federal discrimination claims. Second, | will consider whether Michigan civil rights law is substantially similar to federal antidiscrimination law or whether it is materially different with respect to an aggrieved individual’s access to a judicial forum. | will them trace the role of an aggrieved individual's access to a judicial forum in the development of Michigan civil rights law to determine whether Michigan public policy precludes the enforcement of prospective arbitration agreements in employment contracts with respect to statutory civil rights claims. Federal Discrimination Claims The Court of Appeals relied on Gilmer, supra, in holding that public policy did not prevent the enforce- 9 See also Kendall vy Watkins, 998 F2d 848, 851 (CA 10, 1993) (“an employee may agree to waive Title VII rights that have accrued, but cannot waive rights that have not yet accrued” ). A-11 ment of a valid prospective arbitration agreement. 207 Mich App 311. In 1991, the Gilmer Court held that a broadly worded arbitration clause in a securities regis- tration form, which is often referred to as a stock broker U-4 form, covered an ADEA claim. In doing so, the Court found that the Federal Arbitration Act (FAA) applied and that it evidenced a “‘liberal federal policy favoring arbitration agreements.’” /d. at 25 (citation omitted). However, the FAA expressly excludes from coverage “contracts of employment of seamen, railroad employees, or any other class of workers engaged in for- eign or interstate commerce.” 9 USC 1.” Referencing this clause, Gilmer expressly did not decide what the result would be if the arbitration clause had been contained in an employment contract. /d. at 25, n2. Gilmer also dis- tinguished a trilogy of cases that had arisen in the col- lective bargaining setting: Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974) (title Vil claim), Barrentine v Arkansas-Best Freight System, Inc, 450 US 728; 101 S Ct 1437; 67 L Ed 2d 641 (1981) (right to minimum wage claim under the Fair Labor Standards Act), and McDonald v West Branch, 466 US 284: 104 S Ct 1799; 80 L Ed 2d 302 (1984) (42 USC 1983 claim). Following Gilmer, there has been a lot of appellate activity involving the applicability of prospective arbitra- tion agreements to federal discrimination claims. Al- though there remain many unanswered questions in Gilmer’s wake, two general rules have emerged. First,-an arbitration clause in a collective bargaining agreement dees not extend to federal statutory claims of discrimination. E.g., Pike v Burlington Northern R Co, 273 Mont 390, —; 903 10 The courts remain split over the scope of 9 USC 1. See Williams v Katten, Muchin & Zavis, 837 F Supp 1430, 1438-1439 (ND Ill, 1993) (listing cases holding that the exclusionary clause is lim- ited to transportation industries employment contracts and cases holding that the clause extends to all employment contracts); Fletcher v Kidder, Peabody & Co, 81 NY2d 623, 637; 601 NYS2d 686; 619 NE2d 998 (1993) (citing cases). A-12 P2d 1352, 1357 (1995). One overriding rationale for this rule is that civil rights are individual personal rights, while union bargaining representatives act for the benefit of the group. The apparent “tension between collective repre- sentation and individual statutory rights” led the Court in the Alexander line of cases to protect the rights of the individua! employee by not enforcing arbitration agree- ments in collective bargaining agreements with respect to claims of unlawful discrimination. Gilmer, 500 US 35. The second rule is that an arbitration clause in a stock broker U-4 form does extend to title VII claims, in addition to ADEA claims. Bender v AG Edwards & Sons, Inc, 971 F2d 698 (CA 11, 1992); Alford v Dean Witter Reynolds, Inc (On Remand), 939 F2d 229 (CA 5, 1991). The defendant cites numerous cases for the proposi- tion that prospective arbitration agreements in indi- vidual employment contracts have been enforced with respect to federal and state discrimination claims." However, those cited cases arose under the FAA or were not ordinary employment contracts.” | have found 1 In Mago v Shearson Lehman Hutton, Inc, 956 F2d 932 (CA 9, 1992), the court assumed that the FAA applied because the employee did not challenge its applicability. Applying the FAA, the court found that a privately negotiated arbitration agreement in an employment application covered a title VII claim. /d. at 935. Likewise, in DiCrisci v Lyndon Guaranty Bank of New York, 807 F Supp 947 (WD NY, 1992), the court applied the FAA and enforced an arbitration clause in an employment contract with respect to title VII and New York discrimi- nation claims. However, the court reserved the issue of punitive dam- ages under state law for postarbitration consideration. /d. at 953-954. See also Scott vy Farm Family Life Ins Co, 827 F Supp 76 (D Mass, 1993) (applying the FAA, the court held that an arbitration agreement in an insurance sales agent contract covered title VII and state discrimina- tion claims), and Hull vy NCR Corp, 826 F Supp 303 (ED Mo, 1993) (applying the FAA, the court enforced arbitration agreement with respect to title VII, the ADEA, and state discrimination claim). 12 See Williams, n 10 supra, 837 F Supp 1438, characterizing a partnership agreement as an employment contract and enforcing a prospective arbitration clause with respe >t to a title VIi claim. See also Dancu v Coopers & Lybrand, 778 F Supp 832 (ED Pa, 1991), aff'd 972 F2d 1330 (CA 3, 1992) (partnership agreement). A-13 other cases that have distinguished the contract at issue, such as a stock broker U-4 form, as not being an employment contract. Willis v Dean Witter Reynolds, Inc, 948 F2d 305, 312 (CA 6, 1991); Alford, 939 F2d 230, n* (“{c]ourts should be mindful of this potential issue in future cases” )." On the basis of the fact that the Gilmer Court expressly distinguished employment contracts, id at 25, n2, and because many subsequent cases have continued that distinction, | would find that the cases upholding prospective arbitration agreements in stock broker U-4 forms, including Gilmer, are not on point in the case at hand because they did not concern ordi- nary employment contracts." Hence, | would find that there remains a conflict among courts regarding whether arbitration agreements in individually negoti- ated employment contracts are enforceable under the FAA with respect to claims of unlawful discrimination. In any event, the defendant has not argued that the instant case is controlled by the FAA. Therefore, even if prospective arbitration agreements in individually nego- tiated employment contracts are enforceable with respect to federal and other state discrimination claims when the FAA does apply, such cases would not neces- sarily apply here.” I$ The defendant has pointed out Beauchamp v Great West Life Assurance Co, 918 F Supp 1091 (ED Mich, 1996). However, Beauchamp involved a U-4 form, which the court expressly stated was not an employment contract. /d. at 1094, n 2. 14 There may also be an issue whether the level of sophistica- tion of the employee may factor into the enforceability of an arbi- tration agreement. See Asplundh Tree Expert Co v Bates, 71 F3d 592, 602 (CA 6, 1995) (applying the FAA and noting that “the arbitration clause is contained in an employment contract between a highly paid executive and his corporate employer” ). 15 Further, even if the FAA were to apply, it can be surmounted by contrary legislative or constitutional intent. See discussion infra at 29. A-14 Title Vil and ADEA Distinguished From the Michigan Civil Rights Act Even though we often look to title VII precedent in interpreting our own civil rights statute,” we decline to do so when the Michigan statute provides greater pro- tection to victims of discriminatory actions than title VII provides.” Title VII requires claimants to exhaust administrative remedies with the Equal Employment Opportunity Commission (EEOC) before pursuing judi- cial relief." Likewise, the ADEA requires an aggrieved individual to seek relief first with the EEOC." In sharp contrast, the Michigan Constitution expressly prohibits an exhaustion of administrative remedies requirement for civil rights claims.*° In addition, the Legislature has underscored this policy by also expressly prohibiting an exhaustion of administrative remedies requirement.”! 16 Radthe v Everett, 442 Mich 368, 381-382; 501 NW2d 155 (1993). 17 Eide v Kelsey-Hayes Co, 431 Mich 26, 36-38; 427 NW2d 488 (1988). 18 42 USC 2000e-5(b), (c), (e). See Shannon v Ford Motor Co, 72 F3d 678, 684 (CA 8, 1996): In general, “|e|xhaustion of administrative remedies is central to Title VII's statutory scheme because it provides the EEOC the first opportunity to investigate discriminatory practices and enables it to perform its role of obtaining vol- untary compliance and promoting conciliatory efforts.” To exhaust her remedies, a Title VII plaintiff must timely file her charges with the EEOC and receive, from the EEOC, a “right to sue” letter. 42 USC 2000e-5(b), (c), (e). The proper exhaustion of administrative remedies gives the plaintiff a green light t« bring her employment-discrimination claim, along with allegations that are “like or reasonably related” to that claim, in federal court. [Citations omitted. | 19 29 USC 626(d); Gilmer, 500 US 27. 20 See Const 1963, art 5, § 29. 21 MCL 37.2803; MSA 3.548(803) provides: This act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state. A-15 Even if federal precedent had answered the issue at hand with respect to ordinary individually negotiated employment contracts, and | have found above that it has not, I would find that the Michigan constitutional and statutory enforcement scheme for civil rights is sig- nificantly different from the statutory enforcement scheme for federal discrimination statutes with respect to an aggrieved individual's access to judicial remedies. Accordingly, | would decline to rely on federal precedent. IV Although | do not find Gilmer to be on point with respect to the issue at hand, | do find the Court's approach to be a suitable starting point. Gilmer bal- anced the public policy in favor of arbitration against the public policy underlying the Statutory claim at issue. In doing so, the Court examined the Statutory language and congressional intent to determine whether Congress intended “‘to preclude a waiver of judicial remedies for the statutory rights at issue.” Gilmer. 500 US 26 (citation omitted). Similarly, | will consider the legislative intent behind the Michigan Civil Rights Act. But, more importantly, because civil rights received pro- found consideration by the Michigan Constitutional Convention™ and preeminent status in the 1963 Consti- tution itself,’ | would first consider the people's intent when they adopted the Michigan Constitution. Pre-1963 Private Judicial Remedies To understand what occurred in 1963. it is important to remember what brought us to that point. Michigan was at the forefront in the development of civil rights long before the Civil Rights Act was enacted. Early on, 22 See | Official Record, Constitutional Convention 1961, pp 739-752. 23° Const 1963, art 1. § 2. A-16 the right to pursue private judicial remedies has been recognized as fundamental to the enforcement of civil rights. Ferguson v Gies, 82 Mich 358; 46 NW 718 (1890), was a watershed decision by which Michigan parted company from majority rule. The Ferguson Court rejected the “separate but equal” theory six years before the United States Supreme Court adopted it in the infamous Plessy v Ferguson, 163 US 537; 16S Ct 1138; 41 L Ed 256 (1896). More important for us in the instant case is that Ferguson held that a black man who had been aggrieved by unlawful discrimination had a right to pursue private judicial relief. At issue in Ferguson was whether a statutory provi- sion, which penalized racial discrimination as a misde- meanor, precluded a separate private civil suit for damages. The Court held that it did not. The Court stated: The general rule, however, is that where a statute imposes upon any person a specific duty for the protection or benefit of others, if he neglects or refuses to perform such duty, he is liable for any injury or detriment caused by such neglect or refusal, if such injury or hurt is of the kind which the statute was intended to prevent; nor is it necessary in such a case as this to declare upon or refer to the statute. The common law as tt existed in this State before the passage of this statute, and before the colored man became a citizen under our Constitution and laws, gave to the white man a remedy against any unjust discrimination to the citizen in all public places. It must be considered that, when this suit was planted, the colored man, under the common law of this State, was entitled to the same rights and privileges in public places as the white man, and he must be treated the same there; and that his right of action for any injury arising from an unjust discrimination against him is just as perfect hey he tac, slp llati A-17 and sacred in the courts as that of any other cit- izen. This statute is only declaratory of the common law, as | understand it now to exist in this State. [/d. at 365 (emphasis added). | Ferguson began to establish that, in Michigan, when- ever a particular equal protection right is recognized, whether by constitution, statute, or common law, then fused to that right is the right to pursue judicial relief.” In other words, adhering to the substantive right is “a remedy against any unjust discrimination.” /d In Ferguson, the substantive right recognized was that black men were entitled to equal access to public accommodations. The right to pursue a private civil action has been reaffirmed many times. Even in the absence of a common-law remedy and in the absence of a statutory remedy, our Court long ago held that there was a pri- vate civil remedy for violations of a civil rights statute. Bolden v Grand Rapids Operating Corp, 239 Mich 318, 328: 214 NW 241 (1927). In 1944, this Court reaffirmed Bolden in St John vy General Motors Corp, 308 Mich 333, 336: 13 NW2d 840 (1944). St John held that a penal statute®® that prohibited gender wage discrimination included a private civil remedy. “The statute estab- lishes specified personal civil rights and if there has been discrimination between sexes in the instances at bar the remedy by action at law is available to claimants.” /d As the Legislature has expanded the scope of civil rights over the years, the right to pursue judicial reme- 24 Incidently, arbitration was a recognized form of dispute resolution long before 1890. See syllabus for Chicago & Michigan LSR Co v Hughes, 28 Mich 186 (1873), recapping arbitration principles. 25 1919 PA 239, reenacted by 1931 PA 328, § 556 (1940 CL I7115- 556; MSA 28.824). A-18 dies has been coupled with the expansion.” In 1955, the Fair Employment Practices Act (FEPA) was enacted, 26 Justice Adams recapped the Ferguson rule and the Michigan statutory history of civil rights in Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405, 434-435; 157 NW2d 213 (1968): When Gies undertook to conduct a public business, he did so subject to the requirement that the business be car- ried on without “unjust discrimination.” Ferguson's remedy, even though statutorily stated, stemmed from the common law. Ferguson's right was the right not to be discriminated against because of religion, race, color or national origin. As a corollary of that right he was entitled to receive the same treatment anyone else would receive — no better, no worse. * * * The public policy with regard to civil rights in laws enacted by the legislature has been to ban discrimination. It has been summarized in |Cramton,| The Powers of the Michigan Civil Rights Commission, |63 Mich L R 5, 25-26 (1964)| ... , as follows ... : “Other civil rights relating to racial, religious, and ethnic discrimination have been created by the legisla- ture over the past hundred years. The first civil rights legislation was enacted in 1867; it prohibited racial segregation in public education. In 1869, a statute pro- hibited life insurance companies that were doing busi- ness within the State from making any distinction or discrimination between white and colored persons. The ban against miscegenation was removed in 1883. In 1885, criminal sanctions were provided for denial of equal treatment in public places of accommoda- tion, amusement, and recreation; racial discrimination in the selection and qualification of jurors was prohib- ited in the same year. The Michigan Supreme Court rejected the ‘separate but equal’ doctrine in 1890, and held that a civil action for damages could be brought for discriminatory treatment in a public accommoda- tion. The public accommodations statute was strength- ened in 1937, 1952, and 1956; the 1952 amendment extended coverage to ‘government housing.’ Finally, in 1955, the fair employment practices act created ‘a civil right’ in ‘the opportunity to obtain employment without discrimination because of race, color, religion, national origin or ancestry’ and established remedies for the enforcement of this right. Domestic help and employers with less than eight employees were excluded from the coverage of the act.” Rote nee A-19 which created a civil right to equal opportunity in the pursuit of employment” in the private sector, as well as the public sector.28 Pompey v General Motors Corp, 385 Mich 537, 551-552; 189 NW2d 243 (1971), explained that this was the first time that the right to be free from unlawful discrimination extended to private employ- ment. Even though the statute did not create a private civil action, Pompey held that a statutorily created civil right included a private action for civil damages in addi- tion to any statutory enforcement mechanism. /d. at 560. The Court explained: In 1955, the fair employment practices act cre- ated a civil right in the opportunity to obtain employment without discrimination because of race, color, religion, national origin or ancestry. Defendant contends, and we agree, that prior to the passing of this important legislation in 1955, there was in Michigan no recognized legal remedy for acts of discrimination based on race in private employment. While a right of action was recog- nized for racial discrimination in public accommo- dation (Ferguson v Gies [1890], 82 Mich 358) and in the enjoyment of various other civil rights, the right to be free from discrimination on account of race in private employment was not rewarded as a civil right entitled to protection of the law. 27 The opportunity to obtain employment without discrimina- tion because of race, color, religion, national origin or ancestry is hereby recognized as and declared to be a civil right. [1955 PA 251, § I, MCL 423.301; MSA 17458(1), repealed by 1976 PA 453, § 804 (Michigan Civil Rights Act). | 28 “Employer” was defined as: [t]he state ar any political or civil subdivision thereof, any person employing 8 or more persons within the state and any person acting in the interest of an employer, directly or indirectly. [1955 PA 251, § 2(b).| The FEPA excluded from covered employees “any individual employed in the domestic service of any person.” Section 2(c). A-20 We recognize that the fact that there was no preexistent common-law remedy for racial dis- crimination in private employment is generally highly significant in determining the exclusive- ness of the statutory remedy. The general rule, in which Michigan is aligned with a strong majority of jurisdictions, is that where a new right is created or a new duty is imposed by statute, the remedy provided for enforcement of that right by the statute for its violation and nonperformance is exclusive. Correlatively, a statutory remedy for enforcement of a common-law right is deemed only cumulative. But courts have forged exceptions to these general rules when the statutory rights infringed were civil rights. Although there is some authority to the contrary most decisions have held that a person aggrieved by the violation of a civil rights statute is entitled to pursue a remedy which will effectively reimburse him for or relieve him from violation of the statute, notwithstanding the statute did not expressly- give him such right or remedy. [/d. at 551-553 (citations omitted). ] Turning to the argument of the General Motors Corpo- ration that there was no private cause of action, Pompey rejected the argument and restated the rule: Our Court unqualifiedly rejected such an argu- ment when dealing with civil rights statutes, con- cluding that the aggrieved person may maintain an action for damages for injuries suffered by the violation of the civil rights statute despite the fact that the statute made no express provi- sion for such recovery. We cited as the control- ling principle: “‘In cases where there has been illegal discrimination the person aggrieved has A-21 clearly a civil right of action for damages, and this is true although the provision for the enforcement of a civil rights statute under which the complainant claims redress provides for a criminal prosecution only. This right accrues by virtue of the general rule that where a statute imposes upon any person a specific duty for the protection or benefit of others, neglect or refusal to per- form the duty creates a liability for any injury or detriment caused by such neglect or refusal, if the injury or hurt is of the kind which the statute was intended to prevent.” [(/d. at 555-556 (citations omitted). ] 196.3 Michigan Constitution In 1963, the people of Michigan took another signifi- cant step when they adopted the new Michigan Consti- tution. The constitution provides: No person shall be denied the equal protec- tion of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. [Const 1963, art 1, § 2.] The Address to the People explained that a primary mission of this provision was to ensure equai opportu- nity in the pursuit of employment.”® By doing so, this provision “elevated an employee's statutory right under 29 The Address to the People was the drafters’ explanation of what they believed the provisions meant. It stated: The convention record notes that “the principal, but not exclusive, areas of concern are equal opportunities in employment, education, housing and public accommoda- tions.” [2 Official Record, Constitutional Convention 1961, p 3363. | A-22 the FEPA to the status of a constitutional right ... .” Boscaglia v Michigan Bell Telephone Co, 420 Mich 308, 314, n8; 362 NW2d 642 (1984). Although the provision is self-executing with respect to state action,” the people left it up to the Legislature to implement the constitu- tional provision with respect to private discrimination.” However, once the Legislature acts, as it has with respect to gender discrimination in private employment, the scope and the availability of remedies for unlawful discrimination are vital to effectuating the intent of the people and of the Legislature. In 1963, the people did not leave the enforcement of the equal protection provision to chance when they constitutionally created the Michigan Civil Rights Com- mission. There is hereby established a civil rights com- mission .... It shall be the duty of the commis- sion in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitu- tion, and to secure the equal protection of such civil rights without such discrimination. .. . The commission shall have power, in accor- dance with the provisions of this constitution and of general laws governing administrative agencies, to promulgate rules and regulations for its own procedures, to hold hearings, administer oaths, through court authorization to require the attendance of witnesses and the submission of records, to take testimony, and to issue appro- 30 See Civil Rights Dep’t ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 186; 387 NW2d 821 (1986). 31 Boscaglia, 420 Mich 314, n&. citing "ompey, 385 Mich 559, n 20, and Cramton, n 27 supra, p 30. cm kN eel A-23 priate orders. The commission shall have other- powers provided by law to carry out its pur- poses. Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state. Appeals from final orders of the commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court having jurisdiction provided by law. [Const 1963, art 5, § 29 (emphasis added). } The purpose of the highlighted sentence is funda- mental in resolving the instant issue. An instructive article written by Professor Roger Cramton has been relied on by this Court many times. See Cramton, The powers of the Michigan Civil Rights Commission. 63 Mich LR 5 (1964). Professor Cramton discussed the creation of the Civil Rights Commission and its effect on judicial remedies. The third sentence of the second paragraph of article V, section 29 provides: “Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this State.” This sentence, referred to as the “judicial remedies provision,” was the subject of much confusion and debate in the convention, but its purport is reasonably clear. The convention did not intend to confer exclusive jurisdiction in the civil rights field on the Commission. Remedies in the courts, including both those existing at the time and those subsequently created by legislative enactment or judicial decision, are not affected by the civil rights commission provision. Thus, an individual who has been subjected to illegal dis- Criminatory treatment in a place of public accommodation may bring a damage action in the circuit court against the business engaged in A-24 such discrimination; and the legislature may create new civil and criminal remedies for acts of private discrimination and may vest juris- diction in the courts. [/d. at 22-23 (emphasis added). }!34! As Professor Cramton observed, the judicial remedies clause was the subject of much debate. While the debates accompanying the adoption of the Michigan Constitution are not controlling, they may be helpful in interpreting it. Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405, 427: 157 NW2d 213 (1968) (opinion of Adams, J.). The debates accompanying the develop- ment of the judicial remedies clause reveal that the role of the judiciary in enforcing civil rights was to remain supreme. On March 29, 1962, the delegates considered the Don- nelly Amendment,** which would be the precursor to the sentence that was eventually adopted. In offering the proposal, Miss Donnelly stated: The desire to protect citizens should be most vital to us all, the most important thing, in my opinion, the constitutional convention may do — not taxation, not reapportionment, but rights of citizens and humans who are under this state and who wish to live here. Anyone who suggests 32 In a footnote, Professor Cramton observed: The discussion of the “judicial remedies” provision may be found in 2 [Official Record, Constitutional Convention 1961, pp] 1999-2001, 2192-96, 2756-62. The debate clearly indicates that the primary intent was to preserve judicial jurisdiction in the civil rights field. [/d. at 23, n76.] 33° The amendment would insert the sentence: These provisions shall not be construed to deny, or enable or allow the denial of, any direct and immediate legal or equitable remedy in the courts of this state, to any person affected thereby. [2 Official Record, Constitutional Convention 1961, p 1999.] EERE. tel te re Te Perit Oe ar 2. Serta. pill ast ts A-25 and that a commission will not abuse people that the courts of this state will abuse people quite frankly horrifies me. To me the last source of strength and relief of any free people is in the courts of any country, and without such provi- sion giving the courts of this state some right to act, | believe that they cannot act, and they cannot aid any citizen who is feeling abuse, or who is wanting immediate direct relief. This is constitutional language that we have spelled out. We have left very little to the legisla- ture. For a court to act they must find their authority, in my opinion, in the constitution. Therefore, | feel that if we really wish to protect all citizens from all abuse and we really believe that this is a high point, we must build in this a check and a balance, as we have in all other con- Stitutional documents. | therefore urge the sup- port of this amendment. [2 Official Record, Constitutional Convention 1961, p 1999 (emphasis added). } Miss Donnelly later added: l intend that any individual who wants imme- diate legal or equitable remedy in the courts of the state should be able to go there immediately and directly, if that’s what they want. / feel this is a civil right of every person. {Id. at 2000 (empha- sis added). } The opponents of the Donnelly Amendment urged that there should be an exhaustion of administrative remedies requirement. In contrast, the supporters of the amendment stressed the importance of access to the courts in the civil rights arena. For example, Mr. Habermehl stated: I have always been of the opinion that people's constitutional rights have been a long time accruing to each individual; that those rights are expressed A-26 in a document we call a constitution. That we have a court or judicial system set up which has a primary purpose of enforcing and safeguarding those rights. If the intention here is to create a commission that would deprive or even unduly delay the rights of the individual to any legal remedy that he might have, | suggest you are doing far more to harm civil rights than you are doing to help it. Certainly we cannot deprive persons, whether plaintiff or defendant, of insisting upon legal rights guaranteed to them. To do so would be a backward step in civil rights, not a forward one. I support the Donnelly amendment. [/d. at 2001. ] The Donnelly Amendment passed by a vote of seventy- eight yeas to thirty-six nays. On April 6, 1962, the Committee of the Whole consid- ered the Garvin Amendment, which would have deleted the previously adopted Donnelly Amendment. In the amendment’s place, it would have substituted an elec- tion of remedies requirement, which would have pro- vided that if either party initiated action in the agency, there would be an exhaustion of administrative reme- dies requirement before the courts could act. /d. at 2192-2196. This amendment was defeated by a vote of sixty-nine nays to forty-two yeas. On April 24, 1962, the issue came up again with another proposed amendment that would delete the judicial remedies sentence. /d. at 2756-2759. The sup- porters of the amendment argued that the Civil Rights Commission should be given the same treatment that all other administrative agencies would receive, in par- ticular, that all agencies would be shielded from judicial interference by an exhaustion of administrative reme- dies requirement. /d. at 2756-2758. Miss Donnelly again defended her judicial remedies sentence: If my memory serves me, this is the third time that | have defended this sentence or something teh Sat OE a tain, att Ae ee ee A-27 similar thereto. ... The difference between this commission and all other commissions is this is the only constitutionally created one. ... This is an instance where we are setting something up in the constitution. ... Where we're going to put something in the constitution, you've got to be sure it’s broad enough to protect all and it will not derogate downward. The legislature cannot subtract this, in my opinion. Therefore, in order to preserve the civil rights of any citizen to go to the courts of this state for their direct and immediate remedy, there is only one place we can do it, and that’s here. And | believe that all the citizens should be protected in this right more than almost any other right we've ever gotten and ever had in our whole life. | submit that the only place that any rights have ever been protected have been in the courts of this land, and when you start saying the courts of the land may not act, then | am wondering what direction you really want to go, and do you really believe in the democracy and freedom of people or do you want a complete police state? Therefore, | am highly opposed to this amendment and suggest that it is being attacked in a rather dubious method. {/d. at 2758 (emphasis added). | ee a ee The final speaker before the vote on the amendment was Mr. Ford, who supported the amendment. He stated in part: [T]here is no question, and there shouldn't be in the mind of any lawyer in this convention that we are making it impossible for the legislature to provide a system of procedure that would require certain matters to be taken before the commission before they were taken into the court. And that’s what the effect of Miss Donnelly’s language is. | know that this is the effect and | believe that this is what she intends, A-28 because I worked with her trying to perfect this, and you may remember that we passed over this matter once before, trying to clean up this language. Now, when we were cooperating with her, | thought we were trying to say that nothing in this section should be in derogation of the person's rights otherwise provided by the law. But what we are really saying here, and the effect of this last sentence is, when it says “Nothing contained in this section shall be con- strued to diminish the right of any party to direct and immediate legal or equitable” relief, we are forestalling the legislature from saying that certain types of cases must be followed in a certain procedural pattern before you go to the court. [/d.] However, Mr. Ford’s concerns were disregarded by the majority when it defeated the amendment by a vote of seventy-seven nays to thirty-seven yeas. Three more amendments™ were offered that would weaken the lan- 34 One proposal would have changed the language to provide as follows: Nothing contained in this section shall prohibit the legis- lature from enacting law granting any party the right to a direct and immediate legal or equitable remedy in the courts of this state. [/d. at 2759.] A second proposal was to change the sentence to provide: Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this siate, unless otherwise provided by law. [/d.] The third proposal would have provided: Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state after exhaustion of all administrative remedies that may be pro- vided by law. [/d. at 2761.] a ee eT ———————E SNURLO Beh OLN eth OAR hI Re Kacinc OER ieee ee wutaeeest A-29 guage of the judicial remedies sentence and all three were defeated. /d. at 2759-2762. Later that same day, the final language of the sentence was adopted by a vote of 110 yeas to nine nays. Expanding Civil Rights As the scope of the equal protection provision has expanded, it has always included the private right to judicial remedies, whether expressly provided by statute or inferred by the judiciary.** The Legislature has done nothing in the subsequent history to impair or restrict the aggrieved individual's access to judicial remedies. Nor could it under Const 1963, art 5, § 29. In 1976, the Michigan Civil Rights Act consolidated the existing civil rights statutes into one statute and, more importantly, expanded the scope of protection against discriminatory actions. House Legislative Analysis, HB 4055 (Second Analysis), December 30, 1976. Entwined with the new expanded rights was the right to bring a civil action in circuit court. MCL 37.2801; MSA 3.548(801).% In Boscaglia, we found that the Civil Rights Act extended Pompey. We noted: The FEPA, enacted in 1955, declared that the opportunity to obtain employment without dis- crimination because of race, color, religion, national origin, oy ancestry is a civil right, and stated a definition of an “unfair employment practice.” In Pompey [at 560] ... this Court 35 The private civil remedy includes the right to jury. King v General Motors Corp, 136 Mich App 301, 308-309; 356 NW2d 626 (1984). 36 “A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both.” Sec- tion 801(1). Additionally, we have previously found that the Civil Rights Act expanded the types of remedies beyond those provided by any of its predecessor statutes. Eide, n 17 supra at 35-36. A-30 declared that an employee “can maintain a civil damage action for redress of his statutorily cre- ated right to be free from [racial] discrimination in private employment, and that this remedy may be pursued in addition to the remedial machinery provided by [the FEPA].” The civil rights act, enacted in 1976, prohibits an employer from discriminating against a person on the basis of religion, race, color, national origin, age, sex, height, weight, or mar- ital status. The act extended “this Court's deci- sion in Pompey by expressly providing for direct access to circuit court for an aggrieved party.” Holmes v Haughton Elevator Co, 404 Mich 36, 44; 272 NW2d 550 (1978) (Moody, J., concurring). This “direct access” provision states tbat a person alleging a violation of the act may bring a civil action for appropriate injunctive relief “or damages, or both,” and that the term “damages” means “damages for injury or loss caused by each violation of this act, including reasonable attorney's fees.” [Boscaglia, 420 Mich 314-315 (citations omitted). | V | would find that the judicial remedies provision in Const 1963, art 5, § 29, along with the tone of the debates that produced that provision, reveal that an aggrieved individual's access to judicial remedies is inseparably interwoven with the substantive civil rights and was intended by the people of Michigan to be the lifeblood of keeping those substantive civil rights alive. When the civil liberty at stake is equal opportunity in the pursuit of employment, | believe that the Michigan Constitution prevents us from granting the defendant's request to surgically sever the constitutional right to a judicial forum. In short, | would find that an aggrieved individual’s access to a judicial forum to remedy viola- ———— A-31 tions of his nonnegotiable, constitutionally guaranteed, and legislatively articulated civil rights, is also a non- negotiable state right. Accordingly, | would find that the people of Michigan and the Legislature intended to pre- clude prospective waivers of judicial remedies. The defendant's amici curiae contend that both the FAA and the MAA apply and that the public policy favoring arbitration directs us to enforce a prospective arbitration agreement. Even if either statute does apply, | would follow Gilmer’s lead and hold that the public policy favoring arbitration can be outweighed by con- trary constitutional or legislative intent. | have deter- mined that in the instant case it is outweighed by the public policy expressed in the Michigan Constitution guaranteeing aggrieved individuals direct access to a judicial forum and by subsequent legislative intent.” 37 | find persuasive the reasoning of the Colorado Supreme Court in Lambdin v Dist Court In & For the 18th Judicial Dist, 903 P2d 1126 (Colo, 1995). Lambdin held that clear legislative intent could preclude prospective waivers of a statutory right to pursue judicial remedies. Id. at 1131. There, the legislative intent was expressed in a statutory provision that provided: “Any agreement, written or oral, by any employee purporting to waive or to modify his rights in violation of this article shall be void.” /d. at 1129, quoting Colorado's Wage Claim Act, 3B Colo Rev Stat 8-4-125 (1986). The court held that this provision included statutory judicial remedies. Colorado has adopted the Uniform Arbitration Act (UAA). By comparison, the MAA is Michigan's version of the same UAA. Lambdin stated: We hold that the UAA cannot breathe life into an arbitra- tion agreement that the Wage Claim Act deems void. Thus, notwithstanding the general validity of arbitration agree- ments under the UAA, the clear mandate of section 84-125 is that an employee may not waive the rights the General Assembly created in the Wage Claim Act by means of an arbitration agreement. |/d. at 1130.| Likewise, | would hold that even if the MAA applies, it cannot over- ride a clear state constitutional mandate that rights secured by the Michigan Civil Rights Act are nonnegotiable. Betty, 446 Mich 282. Those rights include an aggrieved individual's interwoven right to direct access to a judicial forum. A-32 Additionally, | note that we have previously held that an employee's substantive civil rights are not for sale. Betty, 446 Mich 282. Along those same lines, there is another reason for not enforcing a prospective waiver of access to a judicial forum. The defendant argues that an employee is free to seek employment elsewhere if he does not wish to waive prospectively his right to a judi- cial forum. However, this argument is based on the erro- neous assumption that job opportunities are fungible and readily available. In contrast, | believe that rights secured by our constitution and the Michigan Civil Rights Act should not rise or fall on an employee's eco- nomic ability to walk away from employment. Further, | find that the notion that an employer can require an employee, as a condition of employment, to “sell” his constitutionally guaranteed right to direct access to a judicial forum to enforce his Michigan civil rights against that same employer is repugnant to the long- standing Michigan public policy that holds dear civil liberties, such as the pursuit of employment. VI In conclusion, with respect to equal opportunity in the pursuit of civil liberties, such as employment, | believe that the right to be free from unlawful discrimi- nation is of highest priority and too important to jeop- ardize. I further believe that the constitutionally guaranteed direct access to a judicial forum is so inter- woven with the enforcement of civil rights in Michigan that we cannot separate them without potentially harming substantive civil rights. Accordingly, | would hold that the Michigan Constitution and our long- standing public policy preclude the enforcement of prospective arbitration agreements in employment contracts. Finally, | would assert that | am not backing away from the public policy favoring alternative means of dis- pute resolution. For aggrieved individuals seeking to A-33 pursue remedies for claims that have already accrued, arbitration may present a quicker and cheaper means of receiving relief, and | fully support the parties’ volun- tary intent in those cases. | would limit this opinion to the arbitration agreements in employment contracts entered into before any claim for unlawful discrimina- tion has accrued. vil Finding no enforceable agreement to arbitrate this claim, we reverse the decision of the Court of Appeals and remand for further proceedings. LEVIN and MALLETT, JJ., concurred with CAVANAGH, J. CONCURRING OPINION BOYLE, J. (concurring). I agree with parts I, Il, and VII of the lead opinion that the handbook language at issue in this case did not create a valid agreement to arbitrate civil rights claims. | express no opinion regarding whether or when an agree- ment to arbitrate might be found to be enforceable. BRICKLEY, €.1., and RILEY and WEAVER, JJ., concurred with BOYLE, J. Heurtebise v Reliable Business Computers, Inc Goodman, Eden, Millender & Bedrosian (by Christopher R. Holliday and Julia Sherwin) {3000 Cadillac Tower, Detroit, MI 48226] for the plaintiff. Shapack, McCullough & Kanter, PC. (by Alan M. Kanter, . Michael R. Shpiece, and Michael L. Geller) {4190 Tele- graph Road, Ste. 3000, Bloomfield Hills, MI 48302], and Walton & Stafford, PC. (by Jonathan T Walton, Jr, and , Laura §S. Stafford) {1515 Penobscot Building, Detroit, MI 48226], for the defendant. A-34 Amici Curie: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Rebekah F Visconti, Assistant Attorney General [1890 Michigan Plaza Building, 1200 Sixth Avenue, Detroit, MI 48226], for Michigan Depart- ment of Civil Rights. Stewart R. Hakola [315 South Front Street, Marquette, MI 49855] and Gayle C. Rosen [29200 Vassar Blvd., Suite 901, Livonia MI 48152-2181] for the Michigan Protec- tion & Advocacy Service. Sachs, Waldman, O'Hare, Helveston, Bogas & Mclntosh, PC. (by Mary Katherine Norton and Elizabeth A. Cabot) [1000 Farmer Street, Detroit, MI 48226], for Michigan State AFL-CIO, International Union UAW, National Employment Lawyers Association. and Michigan Employment Lawyers Association. Jeanne M. VanderHeide and Jeanne Mirer [555 S. Wood- ward Ave., Suite 700, Birmingham, MI 48009] for National Lawyers Guild, Detroit Chapter. Stark & Gordon (by Sheldon J. Stark and Carol A. Laughbaum) [217 South Woodward Ave., Suite 202, Royal Oak, MI 48067-2444] for the Association of Trial Lawyers of America, Michigan Trial Lawyers Associa- tion, American Civil Liberties Union of Michigan, and Wolverine Bar Association. Clark, Hill, PL.C. (by Duane L. Tarnacki, J. Walker Henry, and Patricia S. Bordman) {1600 First Federal Building, Detroit, MI 48226], for Michigan Manufacturers Association. Amberg, McNenly, Zuschlag, Firestone & Lee, PC (by Joseph H. Firestone) [24300 Southfield Road, Suite 101, South- field, MI 48075], for Michigan Education Association. Vercruysse, Metz & Murray (by Diane M. Soubly and David B. Calzone) [31780 Telegraph, Suite 200, Bingham Farms, MI 48025] for American Society of Employers, American Automobile Manufacturers Asso- ciation, Greater Detroit Chamber of Commerce, and Michigan Chamber of Commerce. A-35 OPINION (State of Michigan — Court of Appeals) (Submitted July 14, 1994, at Detroit: Decided October 17, 1994, at 9:30 a.m. Leave to appeal sought.) (HEURTEBISE v RELIABLE BUSINESS COMPUTERS. INC. — Docket No. 152041) Before: NEFF, P.J., and MCDONALD and M. WARSHAWSKY,” JJ. PER CURIAM Defendant appeals by leave granted from an April 16, 1992, order denying its motion to dismiss or compel arbitration in this action filed by plaintiff pursuant to the Civil Rights Act, MCL 37.2101 ef seq.; MSA 3.548(101) et seq.; alleging discriminatory treatment in her dis- charge from her employment with defendant. We reverse. Plaintiff was hired by defendant in May 1989, at which time she received a copy of defendant's employee hand- book. The handbook stated employment with defendant could be terminated at any time with or without cause. The handbook also provided a mechanism by which an employee whose employment was terminated could seek internal review of the decision. The handbook stated an employee who followed the internal review procedure and was dissatisfied with the result could seek arbitration of the dispute. The handbook stated “any dispute, matter or controversy involving claims of monetary damages and/or employment related matters - including, but not limited to. any and all claims relating to termination of employment” would be arbi- trated pursuant to the rules of the American Arbitration Association. Plaintiff signed a document acknowledging “ Circuit Judge, sitting on the Court of Appeals by assignment. i a, A-36 receipt of the handbook and agreeing to conform to the procedures, rules, and regulations set forth therein. Following her termination from employment, plaintiff filed the instant action in circuit court. Defendant filed a motion to dismiss or, in the alternative, to compel arbi- tration. Defendant argued pursuant to the procedure outlined in the employee handbook, plaintiff was required to arbitrate the dispute. The trial court denied defendant's motion, apparently finding the provision in the handbook requiring arbitration to be ambiguous and contrary to public policy. We disagree. The provision requiring arbitration is not ambiguous. The clause plainly states that claims for money dam- ages must be submitted to arbitration. Likewise, there is no valid question that plaintiff's claims for discrimina- tory termination fall within the scope of the arbitration clause. The claims are indisputably “employment related.” The trial court appears to have denied defendant's motion in part because it found there was no “meeting of the minds” between plaintiff and defendant with regard to the arbitration clause. The record does not support such a finding. Before beginning employment, plaintiff signed an acknowledgment form that stated that she agreed to conform to the various procedures, rules, and regulations of the company as set forth in the handbook. Moreover, even were the record devoid of plaintiff's express acceptance of the handbook’s provi- sions, it is well established under michigan law that mutual assent to a term of employment is not required. In re Certified Question, 432 Mich 438; 443 NW2d 112 (1989); Carlson v Hutzel Corp of Michigan, 183 Mich App 908; 455 NW2d 335 (1990); Toussaint v Blue Cross & Blue | Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). Plaintiff’s argument that the handbook specifically States that it does not create an enforceable contract is misguided. The provision plaintiff relies on addresses A-37 the at-will nature of plaintiff's employment, not the handbook in its entirety. Finally, we find no “public policy” prohibition against the enforcement of a valid arbitration agreement that provides for meaningful arbitration in matters involving civil rights questions. See Gilmer vy. Interstate/Johnson Lane Corp, 500 US 20: 111 S Ct 1647; 114 L Ed 2d 26 (1991). To the contrary, arbitration has long been a favorable method of dispute resolution. Detroit vy AW Kutsche & Co, 309 Mich 700; 16 NW2d 128 (1944). Thus, arbitration clauses are to be liberally construed with any doubts to be resolved in favor of arbitration. Chippewa Valley Schools v Hill, 62 Mich App 116; 233 NW2d 208 (1975). Contrary to the plaintiff's suggestion, arbitration of plaintiff's claims will not result in the loss of her rights under the Civil Rights Act, but, instead, merely constitutes enforcement of an agreement to have those rights determined in a different forum. Arbitration does not impair the remedies afforded under the statute. The trial court erred in denying defendant's motion to compel arbitration.’ Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 1 Defendant's failure to address on appeal the issue whether the trial court erred in denying defendant’s motion to dismiss waives review of the issue. We note, however, that matters of procedural arbitrability (i.e. compliance with the procedural requirements of the arbitration clause or grievance procedure) are for the arbitrator to decide. Bennett v Shearson, Lehman-American Express, Inc, 168 Mich App 80; 423 NW2d 911 (1987). A-38 EXCERPTS FROM DEFENDANT-APPELLEE’S BRIEF ON APPEAL (State of Michigan — Supreme Court) (Dated: December 5, 1996 [sic, 1995}) (THERESA A. HEURTEBISE, Plaintiff/Appellant, vs. RELIABLE BUSINESS COMPUTERS, INC., a Michigan Corporation, Defendant/Appellee — Supreme Court No. 102109: Court of Appeals No. 152041; Lower Court No. 91-131165-CZ) x * TABLE OF CONTENTS* TARE OF CORTES on orvcrrensvossesssovensevigurtinaneatinessiesieeecc. i COUNTER-STATEMENT OF QUESTIONS PRESENTED ............. iv INDEX OF AUTHORITIES ...........ccssscscesssessecsssssssseesoeeessecesc..., Vii COUNTER-STATEMENT OF THE JUDGMENT AND RELIEF SOUGHT ........:0.cescecsecsessecsecsereessesseseesces....... XiV COUNTER-STATEMENT OF FACTS ......scccccsessssssosseceseeeeseccceenn. l ARGUMENT: 4 A. THE COURT OF APPEALS CORRECTLY HELD THE RELIABLE ACKNOWLEDGMENT FORM TOGETHER WITH THE HANDBOOK CONSTITUTES AN EN- FORCEABI F. “CREEMENT TO ARBITRATE. ......... 8 1. Heurtebise’s Contention That There Is No Enforceable Arbitration Agreement Be- cause The Handbook Disclaims Creation Of A Contract Is, In The Words Of The Court Of Appeals, “Misguided” oo... 9 Heurtebise’s Elliott-Larsen Claim Is En- compassed by the Reliable Arbitration IE eit et 10 ho * [Printer’s Note]: Page numbers are to original pagination. i a ne eee D. A-39 THE COURT OF APPEALS CORRECTLY HELD THAT THE ARBITRATION PROVISION IS NOT AMBIGUOUS .. THE COURT OF APPEALS CORRECTLY DE- TERMINED THAT, UNDER MICHIGAN LAW HEURTEBISE’S EXPRESS ACCCEPTANCE OF THE MANDATORY ARBITRATION PROVISION ES- TABLISHED BY RELIABLE IN ITS EMPLOYMENT HANDBOOK IS AN ENFORCEABLE TERM OF 12 cose cg RE CT 15 1. no The Court Of Appeals Correctly Held, And Undisputed Facts Prove, That There Was A Meeting Of The Minds ..............c.ccccccc00000..... 15 Even Were Expressed Mutual Assent Lacking, The Provisions Of The Reliable Employment Handbook Give Rise To En- forceable Terms of Employment .................... 17 3. The Agreement To Arbitrate Was Not A Contract Of Adhesion o.......ccecccccccccececeececeeses... 21 THE COURT OF APPEALS CORRECTLY HELD THAT MICHIGAN PUBLIC POLICY FAVORS ENFORCEMENT OF THE RELIABLE ARBITRATION PROVISION ........... 24 1. The Court Of Appeals Correctly Held That The Public Policy Favoring Arbitration Applies To The Elliott-Larsen Civil Rights Act Claims Brought By Heurtebise .........__. 24 a. There Is No Legislative Prohibition Against Arbitration Of Civil Rights RRO RC aI contr Ue ee 26 b. The United States Supreme Court Sup- ports Arbitration Of Statutory Claims ... 28 c. An Expansive Body Of Recent Federal And State Jurisprudence Favors The Arbitration Of Statutory Claims ............. 31 A Civil Litigant May Waive Trial By Jury ...... 33 The Arbitration Provision Does Not Strip The Circuit Courts Of Their Jurisdiction ...... 37 A-40 4. The Arbitration Provision Does Not Divest _ The EEOC, the MCRC or the MDRC of Their Jurisdiction Over Civil Rights Claims ............ 38 5. Case Law Cited By Heurtebise Involves inapplicable Factual And Legal Settings And Does Not Establish Any Error By The 00S GE FONE cece 40 a. Unlike In The Instant Case, The Pru- dential Plaintiffs Claimed They Had Been Misled Concerning The Arbitra- eo Pe ee 40 b. Cases Declining To Require Arbitration Of Civil Rights Claims In A Collective Bargaining Context Are Inapplicable .... 43 E. THE COURT OF APPEALS CORRECTLY HELD THAT AN AGREEMENT TO ARBITRATE CIVIL RIGHTS QUESTIONS IS VALID IF IT PROVIDES “MEAN- TUR, ADEN TRAE MG cotcersusnncinma 44 CONTAIN. sascs-ssocamartunaeasgedie eee te RELIES SOUND .....ccccccsoseekaneieeee Ce 48 COUNTER-STATEMENT OF JURISDICTION Defendant-Appellee Reliable Business Computer Sys- tems, Inc. (“Reliable”) concurs in the statement of juris- diction by plaintiff-appellant Theresa Heurtebise (“Heurtebise”). COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Whether the Court of Appeals’ decision that the Reliable Employment Handbook (“Handbook”) dis- claimer addresses only the at-will nature of Heurte- bise’s employment and, thus, does not preclude enforcement of the arbitration agreement, accu- rately interpreted the parties’ contract. Plaintiff-Appellant answers: “NO” The trial court answered: “NO” ‘4 =) A-41 The Court of Appeals answered: “YES” Defendant-Appellee answers: “YES” Whether the Court of Appeals’ correctly determined that the arbitration provision at issue, which covered “any dispute,” unambiguously covered Heurtebise's discrimination claim? Plaintiff-Appellant answers: “NO” The trial court answered: “NO” The Court of Appeals answered: “YES” Defendant-Appellee answers: “YES” Whether the Court of Appeals properly found the triat court’s holdings of no mutual assent or a meeting of the minds to be clearly erroneous where undisputed facts showed Heurtebise’s express agree- ment to the terms of the Reliable Handbook? Plaintiff-Appellant answers: “NO” The trial court answered: “NO” The Court of Appeals answered: “YES” Defendant-Appellee answers: “YES” Whether the Court of Appeals followed controlling Michigan law, e.g. Touissant v Blue Cross and Blue Shield of Michigan, 408 Mich 979; 292 NW2d 880 (1980) in determining that the dispute resolution arbitration procedure established by Reliable in its Handbook is enforceable? Plaintiff-Appellant answers: “NO” The trial court answered: “NO” The Court of Appeals answered: “YES” Defendant-Appellee answers: “YES” Whether the Court of Appeals’ adhered to well- established authority, e.g. Gordon Sel-Way, Inc v Spence Bros. Inc., 438 Mich 488; 475 NW2d 704 (1991) and Detroit v AW Kutsche & Co, 309 Mich 700; 16 NW2d 128 (1944), in determining that Michigan law and public policy favor arbitration as a method of forum selection? A-42 Plaintiff-Appellant answers: “NO” The trial court answered: “NO” The Court of Appeals answered: “YES” Defendant-Appellee answers: “YES” 6. Whether the Court of Appeals’ was correct in holding that arbitration of statutory claims merely constitutes enforcement of an agreement to have such claims determined in a chosen forum, and does not impair substantive rights? Plaintiff-Appellant answers: “NO” The trial court answered: “NO” The Court of Appeals answered: “YES” Defendant-Appellee answers: “YES” 7. Whether the Court of Appeals complied with estab- lished legal-authority, including Gilmer v Interstate/ Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L ED 2d 26 (1991) in ruling that “there is no public policy prohibition against the enforcement of a valid arbi- tration agreement that provided for meaningful arbi- tration in matters involving civil rights questions”? Plaintiff-Appellant answers: “NO” | The trial court answered: “NO” | The Court of Appeals answered: “YES” | Defendant-Appellee answers: “YES” 8. Whether the Court of Appeals’ properly held that the Reliable Handbook provides for “meaningful arbitration” (i) where the arbitration provision at issue meets all requirements of fairness, pursuant to Renny v Port Huron Hosp, 427 Mich 415; 398 NW2d 327 (1986), and (ii) where Heurtebise never chal- lenged the provision’s procedural fairness? Plaintiff-Appellant answers: “NO” The trial court did not address this issue. The Court of Appeals answered: “YES” Defendant-Appellee answers: “YES” - 2 @ © ee ee A-43 ARGUMENT Heurtebise sought leave to appeal on essentially one ground — she claimed as her “primary issue” that the Court of Appeals was wrong in holding that she “know- ingly waived” a right to pursue her Elliott-Larsen claim in court. Plaintiff-Appellee’s Application for Leave to Appeal (hereinafter “Application”) at 1. Despite the fact that this is the only issue Heurtebise has fairly preserved for appeal, her brief on appeal to this Court presents numerous “red herring” issues which, not only were not preserved for appeal but, for the most part, were never at issue in this case even at the trial court level. For example, in her brief on appeal Heurtebise takes the position for the first time since her complaint was filed, that: (1) the Michigan Arbitration Act, MCL § 600.5001, et seg; MSA § 27A 5001, et seq (the “MAA”), only permits parties to prospectively agree to arbitrate only breach of contract claims: (2) the arbitration con- tract at issue is an unconscionable contract of adhe- sion; and (3) the arbitration contract at issue impermissibly divests the Michigan Civil Rights Com- mission (“MCRC”), the Michigan Department of Civil Rights (“MDCR”) and the Equal Employment Opportu- nity Commission (“EEOC”) of their jurisdiction over civil rights claims. Although it is Reliable’s position that none of these issues are property before this Court. Reliable will nevertheless respond to Heurtebise’s argu- ments to demonstrate their lack of merit.? As stated above, the one issue which is fairly before this Court is whether the Court of Appeals was correct in holding that Heurtebise knowingly assented to arbi- trate her Elliot-Larsen claim. That holding was based on: (1) the Court of Appeals’ determination that 3 Reliable’s response to these newly raised, and largely irrele- vant, issues should not be construed as an admission on Reliable’s part that these issues are legitimately before this Court. A-A4 Heurtebise’s signing of the Handbook Acknowledgment constituted her assent to the terms contained in the Handbook and created a binding contract of arbitration; and (2) the Court of Appeals’ determination that the arbitration contract was unambiguous and covered Heurtebise’s Elliott-Larsen claims. The Court of Appeals reached the right result because Heurtebise has never disputed that she volun- tarily signed an agreement to conform to the Hand- book’s terms — which include the arbitration provision. Based on this fact, Michigan law (as discussed below) mandates a finding of mutual assent, and the trial court holding to the contrary was clearly erroneous on this front. Second, in holding the language of the arbitration provision unambiguous, the Court of Appeals correctly exercised its powers of de novo review of the trial court's legal conclusions to reach the only sensible result. Heurtebise challenges the Court of Appeals’ holding by attempting to place the burden of demonstrating a knowing waiver on Reliable. However, this Court has established that “the burden of proving nonarbatrability is assigned to the party seeking to avoid such an agree- ment and not to the party seeking to enforce such an agreement.” McKinstry v Valley OB-GYN Clinic, PC, 428 Mich 167, 184; 405 NW2d 88 (1987). Therefore, Heurtebise, the party seeking to avoid arbitration pur- suant to the agreement, bears the burden of proving an excuse, such as coercion, mistake, duress or fraud, once a showing is made that an arbitration agreement was entered by the parties. /d. at 181. Heurtebise has never attempted to make such a claim,‘ and, as the Court of 4 Heurtebise previously argued that she is entitled to “dis- cover[] and present evidence regarding the facts and circumstances surrounding the signing of [the] agreement.” (Application at 11) Heurtebise never advanced this argument in earlier briefing and her (concluded on page A45) ee 2 A-45 Appeals correctly held, she Cannot avoid the enforce- ment of her agreement. With respect to public policy, Heurtebise has previ- ously conceded that the Court of Appeals “accurately States that there is no public policy prohibition against the enforcement of a valid arbitration agreement that provides for meaningful arbitration in matters involving civil rights (sic).” (emphasis added) (Application at 12) Heurtebise has never disputed that the Reliable arbitra- tion procedure comports with elementary fairness in every respect. Indeed, Heurtebise has previously admitted that she “does not argue that an agreement between an employer and an employee to arbitrate civil rights claims can never be valid.” (emphasis added) (Application at 2). Despite these admissions in her Application, Heurtebise, in her brief on appeal, has relied almost entirely on arguments based on her notions of fairness and public policy which, again, have not been pre- served for appeal. It is clear that Heurtebise’s repetitive intonation of catch-phrases such as “public policy” and “fundamental rights” is an attempt to mischaracterize the Court of Appeals’ holding, which was based purely on basic issues of contract law, as a Sinister threat to basic civil liberties. However, substantive rights under Elliott-Larsen are simply not at risk in this case. All potential statutory remedies that exist in the judicial forum to protect those rights under Elliott-Larsen are similarly available in the arbitral forum contemplated by the Reliable policy. As this Court specifically recognized (continued from page A44) failure to file an affidavit to support an excuse or absence of a knowing and voluntary waiver, is, itself, grounds for dispo- sition. McCart v ] Walter Thompson, Inc, 437 Mich 109, 116; 469 NW2d 284 (1991) (“a party opposing a motion for summary dispo- sition is required to respond with affidavits or other evidentiary materials to show the existence of a factual dispute ...”) Id. at 115. (emphasis added). A-46 in McKinstry v Valley OB-GYN Clinic, PC, supra, arbitra- tion does not undermine a party’s due process or sub- stantive rights; “A party’s voluntary decision to arbitrate neither involves the complete relinquishment of a constitutional right nor raises the specter of proce- dural due process violations ... .” 428 Mich 167, 182; 405 NW2d 88 (1987). This view is confirmed by the United States Supreme Court in Gilmer v Interstate/Johnson Lane Corp, supra, which decided that “by agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolu- tion in an arbitral forum, rather than a judicial forum.” 500 US at 21; 111 S Ct at 1652; 114 L Ed2d 26 (1991) quoting Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 628, 105 S Ct 3346, 3354, 87 L Ed2d 444 (1985). Thus, any allegation that a substantive right is at risk in the arbitral forum is unfounded. Heurtebise’s contention that her civil rights have been violated is an inflammatory mischaracterization of the issues in this case. This is not a case where either elementary fairness is at issue or where, in response to a motion for summary disposition, the litigant has established a defense to the signing of an arbitration agreement. To the contrary, Heurtebise: (i) conceded, in her Application, that there is no public policy issue raised here; (ii) did not dis- pute, in the Court’s below, that the arbitration proce- dures are fundamentally fair; and (iii) acknowledged before the trial court and the Court of Appeals that she voluntarily agreed to abide by her employer’s proce- dures, including arbitration of “any and all” termination disputes. Therefore, reversal by this Court is unwar- ranted. Furthermore, as explained in the pages that ioliow, reversing the Court of Appeals would, in effect, require that this Court dismantle long-standing and well-settled Michigan law. x kek the «. jl ————— ia A-47 [D][1]b. The United States Supreme Court Supports Arbitration Of Statutory Claims When interpreting Elliott-Larsen, courts of this state rely for guidance on federal precedent on analogous questions. Matras v Amoco Oil Co, 424 Mich 675; 385 NW2d 586 (1986). The US. Supreme Court's holding in Gilmer v Interstate/Johnson Lane Corp, supra, per- Suasively supports ordering Heurtebise’s claim to arbitration. In Gilmer, the Supreme Court upheld arbitration of an employee’s chkeim under the Age Discrimination in Employment Act of 1967, 29 USC 621, et. seq., (“ADEA”) and articulated the public policy in favor of such arbi- tration. The plaintiff in Gilmer, a registered stock broker, sued his employer, a brokerage firm, alleging that the firm discharged him in violation of ADEA. The firm filed a motion to compel arbitration of the ADEA claim, relying upon an arbi‘ration agreement in the plaintiff's registration application, as well as the Federal Arbitration Act (“FAA”) 9 USC § 1, et seg. As a condition of his employment, the plaintiff had to sign the Standard Application for Securities Industry Regis- tration Form (“U-4 Form”) used for registration of per- sons dealing in securities. The U-4 Form provided in part: “‘[I] agree to arbitrate any dispute, ... [that may arise between me any my firm] ... that is required to be arbitrated under the rules ... of the organiza- tions with which I register.” (Emphasis added) 111 S Ct at 1650. The rule at issue in Gilmer was New York Stock Exchange (“NYSE”) Rule 347 which provides for arbitra- tion of: “Any controversy between a registered represen- tative and any member or member organization arising out of the employment or termination of employment of such registered representative .. .” (Emphasis added) Id. At 1651. Neither the securities form nor the NYSE Rule A-48 referred specifically to civil rights claims." The Supreme Court held, however, that a statutory claim, such as an ADEA claim, “can be subjected to compulsory arbitra- tion pursuant to an arbitration agreement ... .” Gilmer at 1652. Furthermore, in challenging the waiver of a judi- cial forum for ADEA claims, the Supreme Court stated that: “questions of arbitrarily must be addressed with a healthy regard for the federal policy favoring arbitra- tion.” Gilmer at 1652. The Supreme Court's reasoning in Gilmer applies in all respects to the instant case. The agreement to arbi- trate in Gilmer arose out of the employment relation- ship, and, as is true for the instant case, was not contained in a separate written instrument. Arbitration was upheld nevertheless. The Gilmer arbitration provi- sion also did not specifically list all potentially arbi- trable claims. Gilmer confirms that this factor is no obstacle to arbitration. Gilmer also deals with Heurtebise’s objection that arbitration forces her to forego due process rights under Elliott-Larsen. Heurtebise in the instant case, echoing the plaintiff in Gilmer, argues that compulsory arbitration is improper because it deprives claimants of substantive rights provided for by statute. Gilmer rejects that notion: “by agreeing to arbitrate a statutory claim, a party does not forego the substantive right afforded by the statute; it only submits to their resolu- tion in an arbitral, rather than a judicial, forum.” Gilmer at 1652. Gilmer also reinforced the U.S. Supreme Court's pre- vious holdings that arbitration as a means of dispute resolution is not foreclosed merely because a particular statute embodies a judicial enforcement process: “it is 10 This fact is significant in view of Heurtebise’s argument that a “knowing waiver” is one which specifies that civil rights claims are to be arbitrated. No such requirement was demanded by the Supreme Court in Gilmer. A-49 by now clear that statutory claims may be the subject of an arbitration agreement .. .” (Emphasis added) Gilmer at 1642. Arbitration does not diminish or otherwise affect Heurtebise’s substantive righ_s under Elliott- Larsen. The arbitration provision deals only with forum selection. Also paralleling the facts in Gilmer, selection of com- petent, impartial arbitrators are provided in the Reliable Handbook, assuring fair arbitration proceedings. Fur- thermore, the instant arbitration clause came about as a result of a private two-party agreement to arbitrate. “Having made the bargain to arbitrate. the partfies] should be held to it ... .” Gilmer at 1652. Heurtebise, recognizing that Gilmer is fatal to her public policy arguments, vainly attempts to distinguish it from her case. She points out that the arbitration pro- vision in Gilmer was contained in a securities registra- tion application and not an employment contract. However, that is a meaningless distinction. The impor- tance of the Gilmer holding is that the United Siates Supreme Court determined that Statutory civil rights claims are arbitrable. c. An Expansive Body Of Recent Federal And State Juris- prudence Favors The Arbitration Of Statutory Claims Overwhelming federal and state court precedent simi- larly hold that compulsory arbitration agreements are binding for employment discrimination claims. For example, in Scott v Farm Family Life Ins Co, 827 F Supp 76 (D Mass, 1993), claims of sex, marital status and pregnancy discrimination brought pursuant to Title VII and the Massachusetts Equal Rights Act were held sub- ject to mandatory arbitration based on an ai bitration clause contained in an agent contract providing that “ail disputes arising under this agreement ... shall be resolved by binding arbitration pursuant to the rules of the American Arbitration Association.” Id at 77. (emphasis added) A-50 Mago v Shearson Lehman Hutton, Inc, supra applied Gilmer to a Title VII claim and held that the terms of Shearson’s employment application required arbitration of any controversy concerning compensation, employ- ment or termination of employment. In Dancu v Coopers & Lybrand, 778 F Supp 832 (ED Pa, 1991), aff'd 972 ED. 1330 (CA 3, 1992), plaintiff executed a partnership agreement containing an arbitration provi- sion applying to any claims or controversies arising out of the agreement or the practices and affairs of the firm. The court enforced the mandatory arbitration of plain- tiff’s age discrimination claim brought pursuant to ADEA. Hull v NCR Corp, 826 F Supp 303 (ED MO, 1993), held enforceable the arbitration of plaintiff's claims of dis- crimination in vioiation of Title VII, the Missouri Human Rights Act and the ADEA based on an employment con- tract containing the following arbitration provision: “any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitra- tion in accordance with the rules of the American Arbi- tration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.” /d at 304. (emphasis added). In DiCrisci v Lyndon Guar Bank, 807 F Supp 947 (WD NY, 1992), claims brought pursuant to Title VII alleging gender discrimination, sexual harassment and hostile work environment held arbitrable under the FAA pur- suant to a written employment contract providing that the parties “agree[d] that any dispute between them or claim by either of them against the other or any agent or affiliate of the other shall be resolved by binding arbitration ...” /d at 949. In Williams v Katten, Muchin & Zavis, 837 F Supp 1430 (ND Illinois, ED, 1993) a law firm partner alleging dis- crimination on the basis of race, sex and religion pur- a A-51 Suant to Title VII and § 1981 ordered to arbitrate dis- pute pursuant to FAA based on partnership agreement providing that “[a]ny controversy or claim arising out of or relating to any provision of this Agreement or any other document or agreement referred to herein... shall be resolved by arbitration .. .” /d at 1432. See, McNulty v Prudential-Bache Securities, Inc, 87 F Supp 567 (ED NY, 1994) (claims of retaliatory discharge for missing 13 days work in serving on a federal grand jury pursuant to the Jurors’ Act are arbitrable); See also Cook v Barratt American, Inc, 219 Cal App 3d 1004; Cal Rptr 629 (1990) cert den 500 US 932, 111 S Ct 2052, 114 L Ed2d 458 (1991); and Sacks v Richardson Greenshield Securities, Inc, 781 F Supp 1475 (ED Cal, 1991), both enforcing arbitration agreements with respect to state law claims of sex discrimination. In non-employment contexts as well, the Supreme Court has repeatedly adhered to the principle that statu- fory rights are arbitrable. See Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614; 105 S Ct 3346: 87 L Ed 2d 444 (1985) (finding claims under the Sherman Act arbitrable); Shearson/American Exp, Inc v McMahon, 482 US 220: 107 S Ct 2332; 96 L Ed 2d 185 (1987) (finding claims under the civil provisions of RICO and § 10(b) of the Securities Exchange Act arbitrable): Rodriguez De Quijas v Shearson/American Exp, Inc, 490 US 477; 109 S Ct 1917; 104 L Ed2d 526 (1989) (finding claims under the Securities Act of 1933 arbitrable). All these cases involve important and fundamental prop- erty and other rights, yet arbitration was upheld because of the public policy in favor of alternative dis- pute resolution. 2. A Civil Litigant May Waive Trial By Jury Heurtebise relies on Barbour v Dept of Soc Ser, 172 Mich App 275; 431 NW2d 482 (1988) and Schafke v Chrysler Corp, 147 Mich App 751: 383 NW2d 14] (1986), for the proposition that she is “guaranteed” a trial by A-52 jury for her civil rights claims. Yet, neither of these cases either mandates a trial by jury or concerns the arbitral forum. The fact that the circuit court may be the only proper judicial forum for handling an Elliott- Larsen claim does not preclude enforcement of private, voluntary arrangements to resolve discrimination claims in an arbitral forum rather than a courtroom. Contrary to Heurtebise’s assertion that “fundamental” rights are abridged or at risk, a choice of forum deci- sion deals purely with matters of procedure rather than substance because it is directed to the mechanisms for resolving the underlying disputes. See Berkovitz v Arbib & Houlberg, Inc, 230 NY 261, 270; 130 NE 288, 190 (1921) (“arbitration is a form of procedure whereby differences may be settled. It is not a definition of the rights and wrongs out of which differences grow.” — J.Cardozo) (holding the New York arbitration statute of 1920, from which the Federal Arbitration Act was copied, to be purely procedural). Heurtebise argues that the enforcement of the arbitra- tion provision will strip her of her “fundamental consti- tutional and statutory rights to court access, a jury trial and administrative relief.” (Appellant's brief, p. 30). It is certainly true that one who contracts to submit prospective claims to binding arbitration waives his or her right to court access and a jury trial. There is nothing alarming about that, as those rights may be waived by mere inadvertence — ie., failing to file a timely jury demand, or letting the statute of limitations run on a cause of action. Similarly, a plaintiff loses the right to file a complaint with the MCRC if the filing is not timely. See MCL 423.307(b)."" Heurtebise is not the first plaintiff, however, to attempt to avoid mandatory ll Many rights can be waived merely by the litigant’s failure to properly or timely assert or preserve them, including: 1) right to raise a constitutional question; 2) attorney-client privilege; 3) privi- lege against self-incrimination; and 4) right to appeal an issue. << A-53 arbitration by positing that she is being unfairly deprived of a constitutional right. However, this Court, in McKinstry, observed that: We do not infuse constitutional concerns equivalent to those in a criminal proceeding into a civil litigant’s contractual choice-of-forum deci- sion. A party’s voluntary decision to arbitrate neither involves the complete relinquishment of a constitutional right nor raises the specter of procedural due process violations ... The right to a jury trial in a civil action is therefore per- missive, not absolute. 428 Mich at 183. Heurtebise seems to take the position that the right to court access and a jury trial are more inviolate where Elliott-Larsen or other Statutory civil rights claims are involved. Heurtebise offers fragmented language taken Out of context to support this contention. For example, she states, citing Constantinoff v Bixby Hosp, 111 Mich App 575, 577; 314 NW2d 698 (1981): “Michigan law has recognized a strong policy ‘favoring direct and imme- diate access to the courts’ for civil rights claims.” (Appellant's brief, p. 31). However, as this Court explained in Holmes v Haughton Elevator Co, 404 Mich 36, 42; 272 NW2d 550 (1978), “direct access to the courts” merely means that a plaintiff is not required to file a complaint with the MCRC, either as a sole remedy or as a precondition to filing a complaint in circuit court. We additionally predicated our decision upon our conviction that the constitutional delegates did not intend, in creating the Civil Rights com- mission, to vest it with exclusive jurisdiction over civil rights cases. Heurtebise also stresses the importance of the “cumu- lative remedies” available under Elliott-Larsen and Title VII, but does not explain how an arbitration agreement will affect the number of remedies available. “Cumula- A-54 tive remedies” refers, both in federal cases discussing Title VII and Michigan cases discussing Elliott-Larsen, to the fact that the administrative remedies available with the EEOC and the CRC are not a plaintiff's exclusive remedies, as they do not supplant a plaintiff's right to file a claim in circuit court. (See, e.g. Alexander v Garnder-Denver, 415 US 36; 94 S Ct 1011, 1020; 39 L Ed2d 147 (1974) (“Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination). Nor, it seems, would the administrative remedies, as non-exclusive remedies, supplant a plaintiff’s right to have a civil rights claim arbitrated. Heurtebise relies on Moore v Fragatos, 116 Mich App 179; 321 NW2d 781 (1982), for the proposition that arbi- tration involves waiver of a constitutional right that can only be accomplished if the arbitration agreement expressly lists the particular claims. (Application at 9) Once again, controlling law refutes her position. In Mc- Kinstry, supra, this Court specifically disagreed with the holding of Moore “to the extent that it places the burden on the defendant to prove by clear and con- vincing evidence that the plaintiff knowingly, intelli- gently, and voluntarily waived [her] right to court access.” McKinstry at 182. The McKinstry court held: (i) the right to a jury trial in a civil action is permissive, not absolute; and (ii) as a result, waiver of a jury trial in a civil case is “not tantamount to deprivation of a fun- damental constitutional right.” /d. at 183. Based on these conclusions, McKinstry upheld the presumption established in the Michigan Medical Arbitration Act, MCL 600.5040, et seg; MSA 27A.5040 ef seq, that arbitra- tion agreements signed in accordance with the Act are valid. Furthermore, as McKinstry also held, “Michigan law further presumes that one who signs a written agreement knows the nature of the instrument so exe- cuted and understands its contents.” /d. While Heurtebise attempts to place the burden of demonstrating voluntariness on Reliable, McKinstry A-55 establishes that the party seeking to avoid the agree- ment, in this case Heurtebise, bears the burden of proving an excuse, such as coercion, mistake, duress or fraud. McKinstry at 181. Heurtebise has never attempted to make such a claim, and cannot avoid the enforce- ment of her agreement. The US. Constitution does not confer such an unwaiv- able right to a jury trial in state court civil cases. /d at 183. Similarly, the Michigan Constitution provides that such a right is “waived in all civil cases unless demanded” by a party. /d., citing Mich Const 1963, Art 1 § 14. Indeed, since the right to a jury trial in a civil case is permissive, not absolute, it may be waived as part of an arbitration agreement without resulting in an uncon- Stitutional deprivation. This being so, there is no legal impediment to waiver by a litigant of the right to a jury trial by agreeing to arbitrate claims. 3. The Arbitration Provision Does Not Strip the Circuit Courts of Their Jurisdiction Heurtebise argues that arbitration of her Elliott- Larsen claim divests the circuit courts of their jurisdic- tion over civil rights claims. She points to language contained in the statute to defend her argument that no Elliott-Larsen claim can ever be decided anywhere but in circuit court: “An action commenced pursuant to sub- section (1) may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil com- plaint is filed resides or has his principal place of busi- ness.” MCL 37.2801; MSA 3.548(801). In interpreting this language as prohibiting an Elliott- Larsen claim from being arbitrated, Heurtebise cites Baxter v Gates Rubber Co, 171 Mich App 588; 431 NW2d 81 (1988) for the proposition that “MCL 37.2801 vests the circuit courts of this state with exclusive jurisdic- tion over Elliott-Larsen claims.” (Heurtebise’s brief on appeal, at 31-32). However, that case did not deal with A-56 arbitration of an Elliott-Larsen claim, Rather, in Baxter, the plaintiff alleged damages in an amount less than $10,000 — over which claims the district courts have jurisdiction — but brought suit under Elliott-Larsen — over which claims the circuit court have jurisdiction. When faced with the tension between the two jurisdic- tional statutes, the Court of Appeals determined that the circuit courts should retain jurisdiction of the case despite the insufficiency of the amount in controversy. Baxter, therefore, involved a dispute between two judicial forums. The Baxter court’s determination that the circuit court has exclusive jurisdiction over Elliott- Larsen claims only dealt with a conflict between the dis- trict and circuit courts. Baxter has no application to the instant case. Furthermore, any time parties decide to arbitrate an otherwise triable issue, the case is necessarily “taken away” from a court. Heurtebise’s use of the pejorative term “stripped of their jurisdiction” is an inelegant attempt to portray arbitration as an overreaching usurpation of the judiciary’s authority that the MAA and numerous judicial decisions conclusively refute. 4. The Arbitration Provision Does Not Divest The EEOC. The MCRC or the MDRC of Their Jurisdiction Over Civil Rights Claims Heurtebise, again raising an issue which has nothing to do with this case, argues that: [T]he Court of Appeals has given employers free reign to oust the Equal Employment Opportunity Commission, the Michigan Civil Rights Commis- sion, the Michigan Department of Civil Rights, the Board of Workers’ Disability Compensation Magistrates ... of their long-established jurisdic- tion over Michigan employees’ claims. » mv (Appellant’s brief on appeal, p. 53). A-57 This argument, which is echoed in an amicus brief filed by the MCRC and the MCRC, has no relevance to the instant case. The MCRC and the MCRC have never been involved in this case. Heurtebise never pursued the administrative remedies available to her with those agencies, and Reliable has never asserted that the arbi- tration agreement arising from Heurtebise’s acceptance of the Handbook divests any State or federal agency of their constitutionally- or Statutorily-conferred police powers. As such, these issues have nothing to do with this case, and the Court of Appeals’ decision has no impact on the scope of authority of any such agency. It is clear that Heurtebise has raised these issues in an attempt to escalate her run-of-the-mill contract case into a constitutional issue, and thereby unfairly portray the Court of Appeals’ decision as a threat to administra- tive agency jurisdiction. Following Heurtebise’s argument to its necessary con- clusion, if arbitration of a civil rights claim equals an impermissible “ousting” of the MCRC, MDRC, EEOC, etc., then civil rights claims may never be arbitrated. Therefore, virtually any terminated employee may escape a binding contract of arbitration by merely including in his or her complaint a count alleging a civil rights violation. Surely the public policy favoring arbi- tration of disputes would abhor such a result. In truth, excepting any class of dispute from arbitration could have a chilling effect on the availability of such an alter- native forum, since a creative framing of the issues by a clever plaintiff or defendant could work to defeat arbi- tration time and again - much as parties are frequently impermissibly joined in lawsuits to defeat federal diver- sity jurisdiction. A more realistic view of the relationship between arbitration and the administrative agencies is that they are concurrent remedies; the arbitral forum offers, in stead of a courtroom, a place for a plaintiff to have his or her claim for damages decided. The administrative A-58 agencies simultaneously discharge a policing function. The agencies are not affected in any way by the agree- ment between Heurtebise and Reliable to have civil rights damage claims decided by an arbitrator rather than by a judge. Heurtebise has created a “tempest in a teapot” to make the ramifications of the Court of Appeals’ holding appear dire and alarming. In reality, no substantive con- stitutional or statutory rights are being abridged, and no administrative agency is being divested of its power. This Court should refuse to reverse the Court of Appeals on those grounds. 5. Case Law Cited By Heurtebise Involves Inapplicable Factual And Legal Settings And Does Not Establish Any Error By The Court of Appeals a. Unlike In The Instant Case, The Prudential Plaintiffs Claimed They Had Been Misled Concerning The Arbitration Agreement In a last gasp attempt to resuscitate her claim, Heur- tebise latches onto Prudential Ins Co v Lai, 42 F3d 1299 (CA 9, 1994). In particular, Heurtebise claims that because the Prudential arbitration provision did not specifically state that discrimination claims were sub- ject to arbitration, the provision was not enforceable.” Heurtebise’s dependence on Prudential is misplaced because of the crucial factual distinctions between the facts in that case and those of the instant case. In Pru- dential, the plaintiffs were employed as sales represen- tatives. They claimed they were victims of sexual harassment by the supervisor. Prudential sought to compel arbitration of their claims based on the arbitra- tion clause incorporated into the U-4 Form signed by 12 Heurtebise also raises Title VII’s legislative history which is completely irrelevant to this case. Congress’ intent in passing a fed- eral statute has no bearing on the interpretation of the Michigan legislature’s intent under Elliott-Larsen. init eereerieeeeeeeemseminiiaitiiiuusiael ae ee a Ail A-59 plaintiffs when applying for their positions. This is the same form at issue in Gilmer, supra, and contains the same agreement “to arbitrate any dispute, claim or con- troversy that ... is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register.” /d at 1301 (emphasis added). However, unlike the plaintiff in Gilmer, supra, who sub- sequently registered with the NYSE and became subject to Rule 347 mandating arbitration of “any controversy. . . arising out of the employment or termination of employment ... .” the Prudential plaintiffs subsequently registered with the National Association of Securities Dealers (“NASD”) whose manual simply states that dis- putes ‘arising in connection with the business” of its members must be arbitrated. Prudential at 1302. The Prudential plaintiffs also alleged that when they signed the U-4 Forms, they were told only that they were applying to take a test which was required for their employment by Prudential, and that they were simply directed to sign in the relevant place without being given an opportunity to read the forms. /d at 1303. The plaintiffs further agreed that they were never given a copy of the NASD manual which contains the actual terms of the arbitration agreement. /d. Thus, the Pruden- tial plaintiffs claimed they (i) were unaware they signed a document containing an arbitration clause; (ii) were not on notice that they agreed to arbitrate employment disputes; and (iii) the NASD provision does not cover employment disputes. /d. would not enforce arbitration of the claims asserted A-60 because the NASD provision did not encompass employment-related disputes. Prudential at 1304. The NASD language stands in stark contrast to the language found in Gilmer and the language of the Reli- able Handbook in the instant case. In Gilmer, the com- parable provision required arbitration of “any controversy ... arising out of employment .. :. The Reliable provisions required arbitration of “any and all claims related to termination of employment .. .” Both the Gilmer and Reliable provisions are all-encompassing and undeniably include employment-related disputes, as the Court of Appeals correctly held. Pursuant to the lan- guage of both the Gilmer and Reliable arbitration proce- dures, no possible claim can be considered exempt, neglected, forgotten, omitted or eliminated. The U.S. Supreme Court held that the Gilmer all- encompassing language — bereft of particularization, absent a description of the nature and scope of the cov- ered claims, and missing any specification or identifica- tion of discrimination claims — satisfies the minimum requirements for enforceability of an agreement to arbi- trate statutory civil rights claims. No more than this is needed. Prudential did not involve such all-encom- passing language and there was an issue raised as to whether the employees knew even the nature of what they had signed. Accordingly, Prudential provides no guidance here. Moreover, Heurtebise fails to acknowledge that other courts of appeals have upheld arbitration based on the same NASD language as was rejected by the Prudential court. In Kidd v Equitable Life Assur Soc, 32 FD. 516 (CA ll, 1994), the Eleventh Circuit compelled arbitration of the Title VII race discrimination claims brought by the securities broker’s former sales representatives pur- suant to the same NASD language considered by the Prudential court. See also, Benefits Communications Corp v Klieforth, 642 A2d 1299 (DC App, 1994) (compelling A-61 arbitration of a sex discrimination claim brought pur- suant to the District of Columbia Human Rights Act (“Act”) pursuant to NASD arbitration provision despite claimant’s contention that she would be deprived of the right to jury trial because the court found no basis in the Act intending to bar voluntary agreements to arbi- trate employment discrimination claims); and Scher v Equitable Life Assur Soc, 866 F Supp 776 (SD NY, 1994). Accordingly, in view of contrary holdings by other federal courts, and the factual distinctions noted above, Heurtebise’s reliance on Prudential does not (i) advance her case; (ii) undermine the Court of Appeals decision (iii) or raise an issue of major significance to the state's jurisprudence. x* * * A462 EMPLOYEE ACKNGWLEDGMENT (Dated May 25, 1989) | acknowledge receipt of the Reliable Business Com- puters, Inc. Employee Handbook. I agree to conform to the various procedures, rules and regulations of the Company, as set forth therein, and as may be promul- gated by the Company in the future, and further under- stand that my employment and compensation can be terrainated with, or without cause, and with or without notice at any time, at the option of either me or the company. | further understand that no employee, other than the President or his designee, in a duly executed written document, has any authority to enter into any agreement for employment for any specified period of time, or to make any arrangements contrary to or dif- ferent from what is provided in this Handbook. /s/ Theresa A. Heurtebise EMPLOYEE'S SIGNATURE Dated: 5/25/89 Witness: /s/ [Ilegible} A-63 EXCERPT FROM PLAINTIFF-APPELLANT’S SUPPLEMENTAL APPENDIX (State of Michigan — Supreme Court) RELIABLE BUSINESS COMPUTERS, INC. EMPLOYEE HANDBOOK ~ PAGES 64-71 - x * * Vil TERMINATION AND DISMISSAL GENERAL As indicated earlier, an employee’s employment and compensation may be terminated with or without cause, with or without advance notice at any time, at the option of either the employee or the COMPANY. No employees of the COMPANY except the President, in a duly executed written document, has any authority to enter into any agreement for employment for any speci- fied period of time, or to make any arrangement with employee contrary to, or different from the provisions set forth in this handbook. None of the policies, prac- tices, procedures, or other matters set forth herein create any employment or personal contract, express or implied. INTERNAL REVIEW OF EMPLOYEE DISMISSAL An employee whose employment has been terminated by the COMPANY who disagrees with the propriety of the dismissal must request higher level review of the dismissal as a precondition to seeking and obtaining any relief outside of the COMPANY. The employee must act within ten (10) days after the date of dismissal, but has the option to employ the EMPLOYEE COMPLAINT PRO- CEDURES set forth in Section II, or may make formal written request to the President of the COMPANY that A-64 the dismissal be reviewed by the COMPANY’s Executive Committee (which consists of the President and three (3) of the COMPANY'’s other executive officers or direc- tors). Upon receipt of the employee’s formal written request for review, the President will schedule a formal review date for the employee to meet with the Execu- tive Committee and discuss the dismissal. The review by the Executive Committee will afford the employee an opportunity to present whatever evidence and argument the employee believes appropriate, as well as an opportunity to rebut the testimony of others as it pertains to any issues relating to the dismissal. The employee may be accompanied by a representative or legal counsel provided the employee has provided at least ten (10) days advance written notice of his intent to be represented at the review, specifying the identity, relationship, and purpose of any persons accompanying employee to the review, and may present the testimony of witnesses provided the employee has provided at least ten (10) days advance written notice of the iden- tity of the witnesses, and a general statement relative to the matters as to which each is expected to testify. The COMPANY shall have the right to present the testimony of rebuttal and other witnesses. During the period of time between the dismissal, and the review, the employee will be considered suspended without com- pensation or benefits. However, if the Executive Com- mittee determines to reinstate the employee, the COMPANY will pay the employee part or all back pay and benefits depending upon the specific facts and condi- tions. Within ten (10) days after the Executive Committee completes the review, it will render a written final deci- sion which will resolve issues of fact and provide as to whether or not the employee will be offered reinstate- ment of employment and if so, will specify the condi- tions under which the offer of reinstatement is made. A-65 ARBITRATION OF DISMISSAL Notwithstanding that employees are employed by the COMPANY “at will” and that an employee's employment may be terminated by the employee or the COMPANY. at any time, (without notice and without cause). An employee who has followed the internal review proce- dure for review by the Executive Committee, (specified above), and who is not satisfied with the results of the review and who feels compelled to seek redress from a source outside the COMPANY may challenge the pro- priety of the dismissal outside the COMPANY, only through arbitration as hereinafter described. Such arbi- tration shall be the final arena of dispute resolution and the decision of the arbitrator(s) shall be final and binding upon both the COMPANY and the employee. Federal law requires that most employers sponsoring group health and dental! plans offer terminating employees and their families the opportunity for a tem- porary extension of these coverages at group rates in instances where coverage under the plan would other- wise terminate. Upon termination. employees partici- pating will be provided with an application to continue applicable group benefits as required by law, at the employee's own cost and expense. VIII ARBITRATION OF DISPUTES If any dispute, matter or controversy involving claims of monetary damages and/or employment related mat- ters should arise between an employee and the COM- PANY, including, but not limited to, any and all claims relating to termination of employment (regardless of whether or not the employee has exhausted the various mandatory procedures for inte [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0375%3A2. Public record. Not legal advice.