# Opposition Brief — Reliable Business Computers v. Heurtebise

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1142

## Text

No. 96-998 | FEB 24 (997
CLERK
In The
Supreme Court of the United States

+

October Term, 1996

RELIABLE BUSINESS COMPUTERS,

Petitioner,

vS.

THERESA A. HEURTEBISE,

Respondent.

On Petition for a Writ of Certiorari to the
Michigan Supreme Court

RESPONDENT?’S BRIEF IN OPPOSITION

ERNEST GOODMAN
Counsel of Record
JULIA SHERWIN
Attorneys for Respondent
3000 Cadillac Tower

Detroit, Michigan 48226
(313) 965-0050

utz
wor (800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21 a

llate
Ss ervices, inc.

i
QUESTIONS PRESENTED

I. Whether this Court lacks jurisdiction under 28 U.S.C.
§ 1257, where Petitioner has failed to raise any federal question
in the courts below, and the Michigan Supreme Court’s decision
in Heurtebise v. Reliable Business Computers, Inc., 452 Mich.
405, 550 N.W. 2d 243 (1996), was based on state law, which
was both independent of any federal question and adequate to
support the judgment?

II. Whether Michigan law does not conflict with, and is
not preempted by, the Federal Arbitration Act, 9 U.S.C. § 1 et
seq., where arbitration requires a contract under both Michigan
and federal law, and no contract existed in this case?

TABLE OF CONTENTS

Questions Presented .......scceeeeeeeeeerseeeees
Table of CORES occ crccccsccesscoccseeseenevecs
Table of CIAHIORS .. oc ccccccccccccccccesceecccces
Opinions Below .........seeeeeeeeeeeeeeeeeeeees
Statement of Jurisdiction .........-.ceeeeeeeeeeees
Statement of the Case ........-cceecceeceeeecress
Misstatements of Fact and Law in the Petition .......
Reasons for Denying the Writ .......--s+eeeeeeees
lL This Court Lacks Jurisdiction Over This Case
Under 28 U.S.C. § 1257, Because Petitioner
Failed To Raise Any Federal Question In The
Courts Below, And The Michigan Supreme
Court’s Decision Was Based On State Law, Which
Was Both Independent Of Any Federal Question
And Adequate To Support The Judgment. ....
A. Peititoner Never Raised the Equal Protection
Clause or the Contract Clause of the United
States Constitution in the Lower Courts. .
B. Petitioner Failed to Raise the Federal

Arbitration Act or Federal Preemption in the
Lower Courts. =. ....ccccccccccccocees

Page

10

iii

Contents

C. The Michigan Supreme Court's Decision
Was Based on State Law, Which Is Both
Independent of Federal Law and Adequate
to Support the Judgment. ..............

1. Arbitration Requires a Contract, Which
Cannot be Unilaterally Imposed on
EN “Sddudcudbvcesexuvees«

2. The Michigan Supreme Court Properly
Held that Petitioner's Employee
Handbook Was NOT a Contract. ....

3. Petitioner Improperly Asks this Court to
Review Questions of State Law, and
Incorrectly Interprets State Law. .....

Il. Even If The Federal Arbitration Act Applied To
This Case, There Is No Conflict Preemption, And
This Court Should Not Review The Michigan
Supreme Court's Decision. .................

A. The Federal Arbitration Act Requires a
MT thesudessconcenseibihedecees

B. The Goals and Policies of the FAA Are
Furthered, Rather than Undermined, by the
Michigan Supreme Court’s Decision. ....

MING nade doce cb uk crtibwdienidtoccd sks

Page

13

14

15

17

21

21

24

iv

Contents
Page
TABLE OF CITATIONS
Cases Cited:
Allied-Bruce Terminix Companies, Inc. v. Dobson, as
U.S. _, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995)
cceveceoboense audabnetbbe OKs CRUEL Té reek cs 22
Board of Directors of Rotary Int'l v. Rotary Club, 481
U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987)
oC CN eSe MEOH L SED DORE sbibb 0 JNMS 6 dekud 6 cdc cue 12, 13
California v. Freeman, 488 U.S. 1311, 109 S. Ct. 854,
OU Te TA, 36 GOP CONUI ikk oie edbitesnckcc. 17
Carlson v. Hutzel Corp. of Michigan, 183 Mich. App.
508, 45S N.W. 24 335 (1990) .......cccccccce., 19
Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910, 100 L.
Oe, TO OD idee cb inxs wk 13
Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546,
115 L. Ed. 2d 640 (1991), reh. denied, 501 U.S. 1277,
CES DA BP GN ok vedvccivivctiiesct... 14
Dumas v. Auto Club Ins. Ass’n., 437 Mich. 521, 473
Five ee ND ds vadivindcciubur es CoS 19, 20

Ehresman v. Bultnyck & Co., 203 Mich. App. 350, 511
Fe ON POND debs ensccndvihecheeki sa oa

:

Contents
Page
First Options of Chicago, Inc. v. Kaplan, __ U.S. _,
115 S. Ct. 1920, 131 L. Ed. 2d 485 CIPO dside Ss 23
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991) ........ 10, 11
Hess v. West Bloomfield Twp., 439 Mich. 550, 486 N.W.
Oe Ee GND 5 bbbe6hecncksidedcdcc ek 13
Heurtebise v. Reliable Business Computers, Inc., 207
Mich. App. 308, 523 N.W. 2d 904 i Pe 1,4
Heurtebise v. Reliable Business Computers. Inc., 452
Mich. 405, 550 N.W. 2d 243 (1996) ..... i, 1, 6, 8, 14, 16
Horn v. Cooke, 118 Mich. App. 740, 325 N.W. 2d 558
GUUTEE Sele Capac natiithiis ile be, Sie ee as 15
In re: Certified Question, Bankey v. Storer Broadcasting
Company, 432 Mich. 438, 443 N.W. 2d 112 (1989)
CUO RRERND CEE DEddadEd ba EEéeLbed ede iedid es 19, 20
Lear, Inc. v. Adkins, 395 U.S. 653, 89 S. Ct. 1902, 23 L.
ee Ce ED Bis ad de cexkcaceihds dieks dy 5
Monks v. New Jersey, 398 U.S. 71, 90 S. Ct. 1563, 26 L.
eS ep es eee ae 9

Overall Supply Co. v. Peloquin Enterprises, 414 Mich.
Wey ee Bere MB MD wdc dcckdrcowscéoiccs 14

vi

Contents
Page
Renny v. Port Huron Hospital, 427 Mich. 415, 398 N.W.
BG FEY CGD viincdvedeeveb odes escemim 18
Rood v. General Dynamics Corp., 444 Mich. 107, 507
Pew BOGOR GUO dseive diss fideo 15, 16, 19
Rowe v. Montgomery Ward, 437 Mich. 627, 473 N.W.
BO Bee CPE nce sccvcvencessacadzseurne 20
Scholz v. Montgomery Ward & Co., 437 Mich. 83, 468
en We SO OOD CINE 6 Si. Sen cbathculesnde tn 20, 21

Shearson/American Express, Inc. v. McMahon, 482 U.S.
220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987) ... 22

Toussaint v. Blue Cross & Blue Shield of Michigan, 408
Mich. 579, 292 N.W. 2d 880 (1980) ... 17, 18, 19, 20, 21

Webb v. Webb, 451 U.S. 493, 101 S. Ct. 1889, 68 L. Ed.
BS IS GE ven ciccecctévtiestdeiviet: 9, 10, 12, 13

Volt Information Sciences v. Board of Trustees of Stanford
University, 489 U.S. 468, 109 S. Ct. 1248, 103 L.

Be SO RES GID svevccrcceecsvedsbeddsaiies 22, 23
Yee v. City of Escondido, 503 U.S. 519, 112 S. Ct. 1522,

BOD Sv Ge ee OO CIIUED ccecccccdicdisecetbe, 9
Statutes Cited:

WU GEO bnéccinccccedudkcvacsucnnu i, 8, 11

vii

Contents

Page
We ED Staves cecdevddvddebVececcvecccceens 21
EEE: Wild chaddaecvadivendobecs i, 1, 8,9, 14
Ee a WEE bauatatsbadiusédceviteccccetee: 11
M.S.A. § 27A.5001(2), ef Seg... . 6c cece cece cccees 8, 15
M.S.A. § 3.548(101), ef Seg. ........ccccccccccece 3
DEC. § 37.2101, CF O08. 2.6 cccccccccccs es 3
BEC L. § GODSOD1, 66 0G. oc cccccccsccccccccecs 10
UE BUSS 0s dbsesdecvecweceescs< 8, 15
United States Constitution Cited:
GH SD © dS bebehecdadcaWhe cd cdeucwbddeccvces 9
Ge RN Ne VecWn eNO coh eb eb dbehencddedcedeles 9
Rules Cited:
Michigan Court Rule 2.113(F) ..................0. 3
Michigan Court Rule 7.316(A)(4) ..............00. 5,7

ee GOs MO BED occ ccccccccccccevecccscs 6

viii

Contents

APPENDIX

Appendix A — Excerpts from Employee Handbook . .

Appendix B — Affidavit of Christopher R. Holliday .

Page

3a

1
OPINIONS BELOW

| The Michigan Supreme Court's decision is reported at 452
Mich. 405, 550 N.W. 2d 243 (1996).

The Michigan Court of Appeals’ decision, which the
Michigan Supreme Court reversed, is reported at 207 Mich. App.
308, 523 N.W. 2d 904 (1994).

The trial court’s opinion and order denying Defendant-
Petitioner’s motion to compel arbitration is contained in
Plaintiff-Appellant’s Appendix in the Michigan Supreme Court,
pp. 51a-70a.

STATEMENT OF JURISDICTION

This Court lacks jurisdiction to review this case under 28
U.S.C. § 1257. Respondent failed to raise any federal question
in the courts below, and the Michigan Supreme Court’s decision
is grounded in Michigan law, which is both independent of
federal law and aderuate to support the judgment.

STATEMENT OF THE CASE

Respondent Theresa Heurtebise (“Respondent”), began
working for Petitioner Reliable Business Computers, Inc.
(“Petitioner”), in May 1989. When she began her employment,
Ms. Heurtebise received an employee handbook that expressly
stated, “None of the policies, practices, procedures, or other
matters set forth herein create any employment or personal
contract, express or implied.” Respondent’s Appendix, (hereafter
“Resp. App.”), at 2a.

The non-contractual employment handbook included a
provision requiring binding arbitration of “any dispute, matter

2

or controversy involving claims of monetary damages and/or
employment related matters ... including any and all claims
relating to termination of employment.” Pet. App. at A-65 -
A-66.

At the time she received the handbook, Ms. Heurtebise was
required to sign an “Employee Acknowledgment” form,
acknowledging receipt of the employee handbook. The
acknowledgment form stated that the employee agreed “to
conform to the various procedures, rules and regulations of the
company as set forth in the handbook.” Pet. App. at A-62.

Petitioner asserts that Respondent’s signature on this
acknowledgment form constituted an agreement to arbitrate
Respondent’s civil rights claim. However, arbitration requires a
contract, and the very first page of the Employee Handbook
makes clear that nothing contained in the handbook is a contract.

Petitioner’s Employee Handbook states on page 2:

It is important to recognize and clarify
that the Policies specified herein do not
create any employment or personal
contract, express or implied ...

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 discretion, and
as future conditions warrant.

Resp. App. at la.

Theresa Heurtebise was discharged from her employment
on or about July 20, 1990, after she and a male co-worker

3

allegedly returned late from lunch. However, Ms. Heurtebise’s
male co-worker was not discharged. On November 25, 1991,
Ms. Heurtebise commenced a sex discrimination lawsuit under
Michigan’s Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101
et seq., M.S.A. § 3.548(101) et seq., against Petitioner in Wayne
County Circuit Court. Appendix, pp. 1a-6a.'

In response to the Complaint, Petitioner filed a motion
seeking to enforce the handbook arbitration clause under
Michigan law. Appendix, pp. 7a-23a.

Pursuant to Michigan Court Rule (MCR) 2.113(F),
Petitioner was required to attach “a copy of the instrument [upon
which it relies] or its pertinent parts” to its motion. Petitioner
did not attach the complete handbook or all of the “pertinent
parts” to its motion. Rather, Petitioner submitted only the
“Employee Acknowledgment” form and pages 64 through 71
of the Employee Handbook. Appendix, pp. 24a-32a. Page 64 of
the submitted portion of the handbook states that none of the
policies, practices, or procedures contained therein create a
contract. Appendix, p. 25a.

Ms. Heurtebise had misplaced her copy of the employee
handbook, and her counsel did not have it to provide to the court.
See Affidavit of Christopher R. Holliday, Resp. App. at 3a-9a.
Petitioner never produced the complete handbook, despite
Respondent’s proper requests for it.?

1. In this Brief, Respondent will cite to Plaintiff-Appellant’s Appendix
(“Appendix”), which was filed in the Michigan Supreme Court. Plaintiff-
Appellant’s Supplemental Appendix filed with that court contains the complete
employee handbook.

2. See Plaintiff’s motion to amend the record in the Michigan Supreme
Court, and the Exhibits attached thereto.

4

At the hearing on Petitioner’s motion, Judge Cynthia D.
Stephens properly ruled that Petitioner had not met its burden
of proving that it was entitled to arbitration, finding: (1) the
requirement that employees arbitrate “any and all claims relating
to termination of employment” vioiates public policy; (2) the
employee handbook is ambiguous; and (3) the parties did not
have a meeting of the minds concerning the alleged agreement
to arbitrate claims under the Elliott-Larsen Civil Rights Act.
Appendix, pp. 64a-65a.

Judge Stephens accordingly denied Petitioner’s motion on
April 16, 1992. Appendix, pp. 69a-70a.

Without seeing the complete employee handbook, the
Michigan Court of Appeals granted leave to appeal, and reversed
the trial court’s denial of Petitioner’s motion to compel
arbitration. Heurtebise v. Reliable Business Computers, Inc., 207
Mich. App. 308, 523 N.W. 2d 904 (1994).

The Michigan Court of Appeals opined: (1) the arbitration
provision in the employee handbook is unambiguous; (2) the
record does not support the trial court’s finding that there was
no meeting of the minds concerning the arbitration provision;
(3) even if the parties’ minds did not meet, “mutual assent to a
term of employment is not required;” (4) the “no contract”
provision of the employee handbook does not address the
handbook in its entirety, but only the at-will employment
provisions in the handbook; and (5) public policy does not
prohibit enforcement of a “valid arbitration agreement” requiring
arbitration of civil rights claims. 207 Mich. App. at 310-311.

The Court of Appeals denied Respondent’s motion for
rehearing. Respondent then sought leave to appeal to the
Michigan Supreme Court on January 24, 1995, which was
granted on December 28, 1995.

5

After briefs were filed in the Michigan Supreme Court,
Respondent’s counsel received a copy of the entire Employee
Handbook from a former employee of Petitioner. The very first
page of the Employee Handbook, which Petitioner never
submitted to the lower courts, makes clear that nothing
contained in the handbook is 2 contract:

It is important to recognize and clarify that
the Policies specified herein do not create any
employment or personal contract, express or
implied ...

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 discretion, and as future
conditions warrant.

Resp. App. at la. Accordingly, neither the arbitration provision
nor any other provision in Petitioner’s handbook is a contract.

The Michigan Supreme Court granted Respondent’s motion
to amend the record pursuant to MCR 7.316(A)(4). Respondent
submitted a supplemental appendix containing Petitioner’s
complete employee handbook.’ See Piaintiff-Appellant’s
Supplemental Appendix.

3. Petitioner complains that the Michigan Supreme Court should not
have considered the first page of the employee handbook, because it was not
available until the case was in the Michigan Supreme Court. However, the
court properly granted Respondent's motion to enlarge the record, to include
the complete handbook when Respondent's counsel procured a copy. MCR
7.316(A)(4). Since the Michigan Supreme Court treated the first page of the
handbook as an important part of the record, this Court is free to consider it.
Lear, Inc. v. Adkins, 395 U.S. 653, 657 n. 1, 89 S. Ct. 1902, 1904 n.1, 23 L.
Ed. 2d 610 (1969).

6

On July 16, 1996, the Michigan Supreme Court reversed
the decision of the Court of Appeals, because the language on
the first page of Petitioner’s handbook denied the existence of a
contract. 452 Mich. 405 (1996). The Michigan Supreme Court
unanimously held:

* (1) It is undisputed that an arbitration
agreement is unenforceable if it is not a
binding contract;

* (2) Petitioner’s language on the first page of
the handbook demonstrates that Petitioner
did not intend to be bound to any provision
contained in the handbook;

* (3) Therefore, the handbook did not create
an enforceable arbitration agreement.

452 Mich. at 413-414.

On September 16, 1996, the Michigan Supreme Court
denied Petitioner’s motion for rehearing. On December 13, 1996,
Petitioner filed its Petition for Writ of Certiorari to the Michigan
Supreme Court, which contains many misstatements of fact and
law, and raises federal issues for the first time in this case.

MISSi ATEMENTS OF FACT AND LAW
IN THE PETITION

Pursuant to Rule 15.2 of this Court, Respondent must
illuminate several misstatements of both fact and law in the
Petition for Writ of Certiorari.

Petitioner erroneously states, “Plaintiff’s counsel had a
complete copy of the entire handbook at all times and could
have supplied it before the trial, but did not.” Petition, p. 3. As

7

noted in the affidavit of Christopher R. Holliday (Resp. App. at
6a), and Plaintiff-Appellant’s motion to amend the record, Ms.
Heurtebise had misplaced her copy of the employee handbook.
After initial briefs were filed in the Michigan Supreme Court,
Respondent’s counsel received a copy of the complete employee
handbook from another former employee of Petitioner. Resp.
App. at 6a.

Petitioner argues that, in granting Respondent’s motion to
amend the record, the Michigan Supreme Court violated its own
court rules on motion practice. Petition at 2. To the contrary,
MCR 7.316(A)(4) permits the court to amend the record by
adding matters which should have been included.

Petitioner erroneously states that the Michigan Supreme
Court refused to enforce the arbitration policy simply because
Ms. Heurtebise “asserted an employment discrimination claim
under a state statute.” Petition at 9, 28. In fact, the Michigan
Supreme Court refused to compel Ms. Heurtebise to arbitrate
her claim because the court correctly found that no arbitration
contract exists in this case.

Petitioner alleges that the Michigan Supreme Court singles
out arbitration as a suspect class of contracts, holding arbitration
up to a higher standard of contract formation, in violation of
Michigan’s arbitration statute. Petition at 8, 10, 22. In reality,
the Michigan Supreme Court merely followed the well-settled
law that arbitration, including statutory arbitration, requires a
contract. Based on Petitioner’s own statements in its handbook,
it is clear that none of the handbook provisions were contractual.

Petitioner further asserts that Respondent’s remedies in this
case are based on Petitioner’s handbook, and the Michigan
Supreme Court held other provisions of the employee handbook
enforceable, while refusing to enforce the arbitration provision.

8

Petition at 14, 29. To the contrary, Respondent’s rights in this
case are based on Michigan law governing employment
discrimination claims. The Michigan Supreme Court did not
enforce any provision of the handbook, as it found that “the
defendant did not intend to be bound to any provision contained
in the handbook.” 452 Mich. at 414 (emphasis added).

Petitioner asserts that the decision below conflicts with state |
law, and must therefore be vacated. Petition at 21-23. As noted )
infra, the Michigan Supreme Court’s decision was consistent |
with both Michigan and federal law. Furthermore, even if the |
decision conflicted with Michigan law, this Court could not
vacate it as “conflict preempted.”

Petitioner boldly asserts: “Even an agreement to arbitrate
discrimination claims allegedly unilaterally imposed by the
employer as a condition of employment is enforceable under
the statvte.” Petition at 17 (emphasis in original). As discussed
infra, arbitration under both the Michigan Arbitration Act
(MAA), M.C.L. § 600.5001(2), M.S.A. § 27A.5001(2), et seq.,
and the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq.,
require mutuality of assent, and arbitration cannot be unilaterally
imposed by one party on another party.

Finally, Petitioner repeatedly, falsely asserts that it properly
raised the issues of federal preemption and the Federal
Arbitration Act’s application to this case in the state courts. See,
e.g., Petition at 4, 6, 9-10. In fact, Petitioner never discussed
any federal issue until it filed its brief in the Michigan Supreme
Court. See § I(B), infra.

Because this Court lacks jurisdiction over this case under
28 U.S.C. § 1257, and the Michigan Supreme Court’s decision
does not conflict with any federal law, the Petition for Writ of
Certiorari should be denied.

eee

9

REASONS FOR DENYING THE WRIT
I.

THIS COURT LACKS JURISDICTION OVER THIS
CASE UNDER 28 U.S.C. § 1257, BECAUSE PETITIONER
FAILED TO RAISE ANY FEDERAL QUESTION IN THE
COURTS BELOW, AND THE MICHIGAN SUPREME
COURT’S DECISION WAS BASED ON STATE LAW,
WHICH WAS BOTH INDEPENDENT OF ANY FEDERAL
QUESTION AND ADEQUATE TO SUPPORT THE
JUDGMENT.

A. Petitioner Never Raised the Equal Protection Clause or
the Contract Clause of the United States Constitution in the
Lower Courts.

This Court wil) not decide federal constitutional issues
which are raised for the first time in this Court. Yee v. City of
Escondido, 503 U.S. 519, 533, 112 S. Ct. 1522, 1531, 118 L.
Ed. 2d 153 (1992); Webb v. Webb, 451 U.S. 493, 499, 101 S. Ct.
1889, 1893, 68 L. Ed. 2d 392 (1981); Monxs v. New Jersey, 398
U.S. 71, 90 S. Ct. 1563, 26 L. Ed. 2d 54 (1970).

In its Petition for Writ of Certiorari, Petitioner raises federal
Equal Protection and Contract Clause claims for the very first
time. United States Constitution, Am. XIV, §1, United States
Constitution, Art. I, § 10. Petitioner’s Equal Protection and
Contract Clause claims were never even mentioned in the courts
below, and they are not properly before this Court.

Even if Petitioner’s Equal. Protection and Contract Clause
claims were properly before this Court, those claims would have
no merit. The Michigan Supreme Court in this case merely
decided that (1) arbitration requires a contract, and (2) there

10

was no arbitration contract in this case. This decision makes no
classification in violation of the Equal Protection Clause, and it
does not impair the enforcement of any contracts.

B. Petitioner Failed to Raise the Federal Arbitration Act or
Federal Preemption in the Lower Courts.

“At the minimum, ... there should be no doubt from the
record that a claim under a federal statute or the Federal
constitution was presented in the state courts and that those
courts were apprised of the nature or substance of the federal
Claim at the time and in the manner required by the state law.”
Webb, 451 U.S. at 501, 101 S. Ct. at 1894 (emphasis added and
emphasis in original).

Contrary to Petitioner’s assertions in its petition, it did not
raise the issues of (1) federal preemption, or (2) the applicability
of the Federal Arbitration Act to this case, in the lower courts.

Throughout its motion and brief in the trial court, Petitioner
sought to enforce its arbitration provision under “the Michigan
Uniform Arbitration Act, M.C.L. § 600.5001 et seq. and
Michigan Common Law.” Appendix, pp. 8a. Petitioner never
even mentioned the FAA. Appendix at 7a-36a.

In the appellate courts, Petitioner continued its reliance on
Michigan law. However, Petitioner began to discuss Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647,
114 L. Ed. 2d 26 (1991), as a federal case on an “analogous”
question to the case at bar.

Petitioner mentioned the FAA only as it discussed the facts
of Gilmer in its briefs in the Michigan Court of Appeals and the
Michigan Supreme Court. In Gilmer, the plaintiff registered as
a securities broker with the New York Stock Exchange (NYSE).

1]

His securities registration application and NYSE rules required
arbitration of any claims between a registered representative and
a member organization arising out of the termination of
employment. 111 S. Ct. at 1650-1651. Mr. Gilmer was
discharged from his employment, at the age of 62, and
subsequently filed a claim under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621. This Court found,
pursuant to the FAA, that the arbitration agreement in the
registration application compelled Mr. Gilmer to arbitrate his
age discrimination claim.

However, this Court expressly limited its holding to the facts
in Gilmer. This Court noted that § 1 of the FAA provides that
“nothing herein contained shall apply to contracts of
employment of seamen, railroad employees, or any other class
of workers engaged in interstate commerce.” 111 S. Ct. at 1651-
1652 n.2. This Court explicitly observed that the arbitration
agreement in Gilmer was not contained in a contract of
employment. The agreement was contained in a securities
registration application, which was a contract with the securities
exchanges, not with Mr. Gilmer’s employer.‘

While Gilmer was decided under the FAA, Petitioner in this
case did not argue that the FAA applied here. Rather, Petitioner
relied on Michigan law, and the Michigan Arbitration Act.
Indeed, in its brief in the Michigan Court of Appeals, Petitioner
argued that the FAA’s exclusion for employment contracts “is
not an issue in the case at bar since the Michigan UAA [Uniform
Arbitration Act] does not have an exception for employment
contracts as in the FAA.” Defendant’s Brief on Appeal, Michigan
Court of Appeals, p. 28, n.6.

4. While no arbitration agreement exists in this case, if there were such
an agreement, it would be contained in a contract of employment, to which
Gilmer and the FAA would not apply.

12

Petitioner did not even mention federal preemption, or
assert that the FAA applied to this case, until it filed its Brief
on Appeal in the Michigan Supreme Court. In that brief,
Petitioner stated in a footnote:

Construing the MAA [Michigan Arbitration
Act] as limiting arbitration to certain types
of claims would also run afoul of the doctrine
of federal preemption under the Federal
Arbitration Act, 9 U.S.C. §§ 1-5, (“FAA”).
The FAA states an overriding federal
mandate for broad construction of arbitration
agreements that prohibits states [sic] statutes
or court decisions that might limit arbitration
agreements.

Defendant-Appellant’s Brief on Appeal, Michigan Supreme
Court, p. 12, n.6.

Petitioner only squarely raised the FAA and federal
preemption in its motion for rehearing in the Michigan Supreme
Court. That motion was denied without comment.

When “the highest state court has failed to pass upon a
federal question, it will be assumed that the omission was due
to want of proper presentation in the state courts, unless the
aggrieved party in this Court can affirmatively show the
contrary.” Webb v. Webb, 451 U.S. 493, 495, 101 S. Ct. 1889,
1891, 68 L. Ed. 2d 392 (1981). Petitioner cannot make such a
showing here.

In Board of Directors of Rotary Int'l. v. Rotary Club, 481
U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987), the
appellants, like Petitioner in the case at bar, did not present
federal constitutional issues squarely to the state courts until

13

their petition for rehearing with the Court of Appeals, which
denied the appellant’s petition without opinion. This Court held
that the appellants failed to show that they adequately presented
the federal issues to the state courts. 481 U.S. at 550, 107 S. Ct.
at 1948.

In the present case, Petitioner did not squarely present the
issue of federal preemption until it filed its motion for rehearing
with the Michigan Supreme Court. The Michigan Supreme Court
denied Petitioner’s motion without opinion, and Petitioner
cannot show that it properly presented the issue below.

Under Michigan law, by the time Petitioner raised federal
issues for the first time in its motion for rehearing, those issues
had not been preserved for appeal, and were therefore not
properly before the Michigan Supreme Court. Hess v. West
Bloomfield Twp., 439 Mich. 550, 557 n.6, 486 N.W. 2d 628
(1992) (preemption issue which was not raised in the trial court
was not preserved for review by the Michigan Supreme Court).
This Court therefore should deny certiorari. Webb and Rotary,
supra. See also Clark v. Jeter, 486 U.S. 456, 459-460, 108 S.
Ct. 1910, 1913-1914, 100 L. Ed. 2d 465 (1988) (this Court will
not review issue of federal preemption of state law when
petitioner did not expressly assert that state law was preempted
in state court).

Given Petitioner’s failure to present any federal question in
the lower courts, this Court should deny the Petition for Writ of
Certiorari.

C. The Michigan Supreme Court’s Decision Was Based on
State Law, which Is Both Independent of Federal Law and
Adequate to Support the Judgment.

Even if Petitioner had properly presented a federal question

14

in the lower courts, this Court would have no jurisdiction over
this case. This Court has no jurisdiction to review a state court
judgment which is based on state law that is “independent of
the federal question and adequate to support the judgment.”
Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-
2554, 115 L. Ed. 2d 640 (1991), reh. denied, 501 U.S. 1277,
112 S. Ct. 27 (1991).

When this Court reviews a state court decision pursuant to
28 U.S.C. § 1257, it is reviewing a judgment. If resolution of
the federal question cannot affect the judgment, “there is nothing
for the Court to do.” 501 U.S. 730, 111 S. Ct. 2554.

In the case at bar, this Court’s resolution of any federal
question cannot affect the judgment of the Michigan Supreme
Court for two reasons. First, the Michigan Supreme Court
properly found that, under Michigan law, arbitration requires a
contract, and Petitioner’s employment handbook expressly stated
that nothing in it was a contract. Second, as discussed in Point
II, infra, even under the FAA, arbitration requires a contract,
and Petitioner’s handbook does not meet that requirement.

1. Arbitration Requires a Contract, Which Cannot Be
Unilaterally Imposed on Employees.

It is well settled in Michigan that arbitration requires a
contract. Arrow Overall Supply Co. v. Peloquin Enterprises, 414
Mich. 95, 98, 323 N.W. 2d 1 (1982); Ehresman v. Bultnyck &
Co., 203 Mich. App. 350, 353-354, 511 N.W. 2d 724 (1994).
The Michigan Supreme Court therefore properly held that “an
arbitration provision is unenforceable if it is not a binding
contract.” Heurtebise, 452 Mich. at 413.

Before ordering a party to arbitration, courts must first
determine whether a valid arbitration contract exists. “ “The

15

determination of whether an arbitration contract exists is for
the courts to decide, applying general contract principles.’ ”
Horn v. Cooke, 118 Mich. App. 740, 744-745, 325 N.W. 2d 558
(1982) (citations omitted).

Petitioner’s assertion that an arbitration agreement under
the Michigan Arbitration Act need only be an “instrument in
writing” provides it no help. Petition, p. 22. The “instrument in
writing,” in order to be an enforceable arbitration agreement
under the Michigan Arbitration Act, must be a contract. M.C.L.
§ 600.5001(2), M.S.A. § 27A.5001(2).

Petitioner also incorrectly asserts that it may unilaterally
impose arbitration on its employees. “Contractual liability is
consensual. A basic requirement of contract formation is that
the parties mutually agree to be bound.” Rood v. General
Dynamics Corp., 444 Mich. 107, 118, 507 N.W. 2d 591 (1993).
“No contract to arbitrate can arise except upon the expressed
mutual assent of the parties.” Horn, 118 Mich. App. at 744-745.

The Michigan Supreme Court correctly held that arbitration
requires a contract.

2. The Michigan Supreme Court Properly Held that
Petitioner’s Employee Handbook Was NOT a Contract.

In the case at bar, the opening statement of Petitioner’s
employee handbook states:

It is important to recognize and clarify that
the Policies specified herein do not create any
employment or personal contract, express or
implied. ...

From time to time, the COMPANY

16

specifically reserves the right, and may make
modifications to any or all of the Policies
herein, at its sole discretion, and as future
conditions may warrant.

Resp. App. at la. In addition, the handbook contains similar
language denying the existence of a contract on page 64:

None of the policies, practices, procedures,
or other matters set forth herein create any
employment or personal contract, express or
implied.

Resp. App. at 2a.

The Michigan Supreme Court properly held, regardless of
the employee acknowledgment form signed by Ms. Heurtebise,
that the language on the first page of the employee handbook
meant what it said — “the defendant did not intend to be bound
by any provision contained in the handbook.” 452 Mich. at 414.

Petitioner now asserts that its language denying the
existence of any contract, express or implied, was merely an
“at-will disclaimer” denying only the existence of a contract to
discharge for cause.

However, courts “follow the objective theory of assent,
focusing on how a reasonable person in the position of the
promisee would have interpreted the promisor’s statements or
conduct.” Rood at 119. In the case at bar, Petitioner’s handbook
stated that its policies did not create any contract, and none of
its policies, practices, procedures or other matters created any
contract. Resp. App. at la-2a.

Petitioner essentially seeks to bind its employees to an

17

arbitration provision in its employee handbook, while itself
remaining free of any contractual obligation under any provision
in the handbook. However, Petitioner’s requested interpretation
of its handbook lacks mutuality:

A contract lacks mutuality when one party
is obligated to perform, but not the other. . . .
Where a contract obligates only one party to
perform, while exempting the other party
from any obligation to do so, it lacks
mutuality and is void for want of
consideration. Commercial Movie Rental v.
Larry Eagle, Inc., 738 F.Supp. 227, 229-230
(W.D. Mich 1989).

The Michigan Supreme Court correctly concluded that nothing
in Petitioner’s handbook was a contract.

3. Petitioner Improperly Asks this Court to Review
Questions of State Law, and Incorrectly Interprets State Law.

Petitioner asks this Court to grant a writ of certiorari,
because the Michigan Supreme Court’s decision allegedly
contradicts Michigan statutory and common law. However,
“[ijnterpretations of state law by a State’s highest court are, of
course, binding upon this Court.” California v. Freeman, 488
U.S. 1311, 1313, 109 S. Ct. 854, 856, 102 L. Ed. 2d 957 (1989).
In addition, the Michigan Supreme Court’s decision is consistent
with Michigan law.

Petitioner incorrectly asserts that, under Toussaint v. Blue
Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W. 2d
880 (1980), Petitioner may unilaterally impose arbitration on
its employees by including an arbitration policy in its non-
contractual employment handbook.

18

In Toussaint, the Michigan Supreme Court held generally
that (1) an employer may enter into a contract with its
employees to terminate the employment only for cause; and (2)
an employer’s ‘just cause termination’ statements in employment
handbooks may create “legitimate expectations” in its
employees that they will only be discharged for cause, making
the policy statements enforceable against the employer. 408
Mich. at 610, 613-614. The parties need not mutually agree for
these handbook provisions to bind the employer. 408 Mich. at
614-615.

If an employer imposes upon itself a policy to discharge
for cause only, the court in Toussaint observed that the employer
could avoid jury review of a wrongful discharge case under that
agreement by providing for binding arbitration. 408 Mich. at
624. See also, Renny v. Port Huron Hospital, 427 Mich. 415,
439-430, 432, 398 N.W. 2d 327 (1986). When an employer
bestows the benefit of a just-cause employment relationship upon
its employees, the employer has the right to determine the forum
in which employees’ claims under the just-cause policy may be
heard. 408 Mich. at 624.

Petitioner argues that mutual assent to an arbitration contract
in this case was not required, relying on the “legitimate
expectations” leg of Toussaint and its progeny. However, the
very first page of Petitioner’s Employee Handbook negates any
application of the Toussaint legitimate expectations analysis in
this case. Petitioner’s handbook states: “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
discretion, and as future conditions warrant.” Resp. App. at
la.

Under Toussaint, an employer’s statement that its personnel
policies are subject to unilateral change by the employer prevents

19

employees from relying on the legitimate expectations analysis.
“Employers can make known to their employees that personnel
policies are subject to unilateral changes by the employer.
Employees would then have no legitimate expectation that any
particular policy will continue to remain in force.” Toussaint,
408 Mich. at 619; In re: Certified Question, Bankey v. Storer
Broadcasting Company, 432 Mich. 438, 453, 443 N.W. 2d 112
(1989).

Moreover, Toussaint “legitimate expectations” analysis
does not apply to arbitration agreements. Arbitration is a
matter of contract, and the legitimate expectations analysis
operates outside contract law.

Indeed, the Michigan Supreme Court has repeatedly
emphasized that the “legitimate expectations” leg of Toussaint

does not involve traditional contract law. Dumas v. Auto Club
Ins. Ass’n., 437 Mich. 521, 529 n.4, 531, 473 N.W. 2d 652
(1991); Rood, supra, 444 Mich. at 13 (“the legitimate
expectations theory of Toussaint is not based on traditional
contract analysis”); In Re: Certified Question, 432 Mich. at 453
(the enforceability of written personnel policies under the
legitimate expectations leg of Toussaint is not based on
traditional contract law); Carlson v. Hutzel Corp. of Michigan,
183 Mich. App. 508, 513, 455 N.W. 2d 335 (1990).

Furthermore, the legitimate expectations analysis only
applies to claims for wrongful discharge based on employment
handbooks. In Dumas, Justice Riley observed that Toussaint
should not be extended “ ‘beyond wrongful discharge into every
facet of the employment relationship. . . . [I]t would be prudent
and wise to leave to the Legislature the public policy decision
whether, or to what extent, Toussaint should be extended beyond
wrongful discharge.’ ” 437 Mich. at 532 (citation omitted). In

20

Dumas, the Michigan Supreme Court refused to apply legitimate
expectations analysis to an alleged promise to freeze renewal
commissions. Such a promise must be tested under traditional
contract principles, which require an objective manifestation of
mutual assent. 437 Mich. at 542.

In the case at bar, Respondent’s claim is a civil rights claim,
which is independent of Petitioner’s employment handbook. An
arbitration policy is, of course, not a wrongful discharge claim,
and Toussaint does not make Petitioner’s policy enforceable.

In addition, handbook “policies” like Petitioner’s arbitration
policy, are not contracts, especially where the employer
explicitly denies the existence of a contract. In Rowe v.
Montgomery Ward, 437 Mich. 627, 645-646, 473 N.W. 2d 268
(1991), the Michigan Supreme Court distinguished “policy”
language from contractual language: “Harryman’s words were
couched in general terms, more akin to stating a policy as
opposed to offering an express contract.” “A ‘policy’ is
commonly understood to denote a flexible framework for
operational guidance, and not a perpetually binding
contractual obligation.” Jn Re: Certified Question, 432 Mich.
at 456.

In support of its position, Petitioner cites Scholz v.
Montgomery Ward & Co., 437 Mich. 83, 468 N.W. 2d 845
(1991), a wrongful discharge breach of contract case. The court
in Scholz stated that the “sole issue” in that case was whether
the plaintiff had a contract not to be discharged for refusing to
work Sundays. 437 Mich. at 85-86.

In Scholz, the plaintiff argued that her employer agreed not
to make her work Sundays. The employer issued a new handbook
setting forth an at-will policy, and had the plaintiff execute a
sign-off sheet. The Michigan Supreme Court held that, even

21

assuming the plaintiff had an earlier contract not to be discharged
for refusing to work Sundays, the sign-off sheet qualified as an
enforceable written modification of that contract. Jd. at 86, 90
n.7, 93. In this case, the handbook itself provides that no
arbitration or other contract exists. Plaintiff’s signature on
an Employee Acknowledgment form did not create any contract.

Petitioner’s clear purpose in employing language denying
the existence of any contract and reserving the right to
unilaterally modify the handbook provisions was to avoid
application of Toussaint and its progeny to any of the handbook
provisions. Petitioner cannot be permitted to avoid application
of Toussaint liability, and at the same time apply Toussaint to
restrict its employees’ civil rights, which are independent of any
of Petitioner's employment policies.

The Michigan Supreme Court correctly decided on
independent and adequate state law grounds that no arbitration
contract existed in this case. The Petition for Writ of Certiorari
should be denied.

Il.

EVEN IF THE FEDERAL ARBITRATION ACT
APPLIED TO THIS CASE, THERE IS NO CONFLICT
PREEMPTION, AND THIS COURT SHOULD NOT
REVIEW THE MICHIGAN SUPREME COURT’S
DECISION.

A. The Federal Arbitration Act Requires a Contract.

Even if the Federal Arbitration Act applied to this case, the
Michigan Supreme Court’s decision was consistent with the Act.
The Federal Arbitration Act requires that an arbitration provision
be in a contract to be enforceable. 9 U.S.C. § 2.

22

Furthermore, this Court has made clear that the federal
policy in favor of arbitration does not mandate arbitration where
no arbitration contract exists. In Volt Information Sciences v.
Board of Trustees of Stanford University, 489 U.S. 468, 109 S.
Ct. 1248, 103 L. Ed. 2d 488 (1989), this Court noted that the
thrust of the Federal Arbitration Act is that “arbitration is strictly
a matter of contract.” 489 U.S. at 472, 109 S. Ct. at 1252.

In Volt, this Court held that a California law permitting a
court to stay arbitration proceedings pending the resolution of
related litigation was not preempted by the FAA. The FAA
contains no express preemption provision. 489 U.S. at 477, 109
S. Ct. at 1255.

Rather, state law will be preempted by the FAA if it actually
conflicts with the FAA “ — that is, to the extent that it stands as
an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Volt, 489 U.S. at 477,
109 S. Ct. at 1255. The Michigan Supreme Court’s decision in
this case furthers, rather than conflicts with, the goals of the
FAA. Conflict preemption is inapplicable to this case.

B. The Goals and Policies of the FAA Are Furthered, Rather
than Undermined, by the Michigan Supreme Court’s
Decision.

“The FAA was designed to overrule the judiciary’s long-
standing refusal to enforce agreements to arbitrate, and to place
such agreements upon the same footing as other contracts.” Volt,
489 U.S. at 478, 109 S. Ct. at 1255 (emphasis added, citations
omitted). See also, Shearson/American Express, Inc. v.
McMahon, 482 U.S. 220, 225-226, 107 S. Ct. 2332, 2337, 96 L.
Ed. 2d 185 (1987); Allied-Bruce Terminix Companies, Inc. v.
Dobson, __ U.S. _., 115 S. Ct. 834, 838, 130 L. Ed. 2d 753
(1995) (the basic purpose of the FAA is to “overcome courts’
refusal to enforce agreements to arbitrate”).

23

However, the FAA was not intended to allow one party to
force arbitration on another party in the absence of a contract.
As noted by the Court in Volt:

[W]e have recognized that the FAA does
not require parties to arbitrate when they
have not agreed to do so.... the Act was
designed to make arbitration agreements as
enforceable as other contracts, but not more
SO.

Volt, 489 U.S. at 478, 109 S. Ct. at 1255 (emphasis added).

Petitioner incorrectly asserts that arbitration “agreements”
which are unilaterally imposed on employees by their employers
are enforceable under the FAA. Petition at 17. As stated above,
arbitration requires a contract, which requires mutual assent to
be binding. Furthermore, this Court has made clear that
“Arbitration under the Act is a matter of consent, not
coercion.” Volt, 489 U.S. at 479, 109 S. Ct. at 1256.

The Michigan Supreme Court correctly found, based upon
Petitioner’s own words in its handbook, that no arbitration
contract existed in this case under Michigan law. Even under
the FAA, the question whether an arbitration contract exists is
generally governed by state law. First Options of Chicago, Inc.
v. Kaplan, __ U.S. __, 115 S. Ct. 1920, 1924, 131 L. Ed. 2d 485
(1995).

The Michigan Supreme Court, in refusing to order a claim
to arbitration where the parties did not have an arbitration
contract, furthered the policies of the FAA. There is no conflict
with the FAA, and there can be no preemption.

24
CONCLUSION

For the foregoing reasons, Respondent requests that the
Petition for Writ of Certiorari be denied.

Respectfully submitted,

ERNEST GOODMAN
Counsel of Record
JULIA SHERWIN
Attorneys for Respondent
3000 Cadillac Tower
Detroit, Michigan 48226
(313) 965-0050

la

APPENDIX A — EXCERPTS FROM EMPLOYEE
HANDBOOK

INTRODUCTION

This document is intended to establish and clarify certain
employment policies, practices, rules and regulations (hereinafter
collectively referred to as “Policies”) of RELIABLE BUSINESS
COMPUTER, INC., (hereinafter referred to as the
“COMPANY”). Except as may otherwise be provided, the
Policies will apply to all COMPANY employees, and it is each
employee’s responsibility to assure that his/her own conduct is
in conformity with those Policies. It 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 WHATSOEVER, 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 discretion, 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.

*- * *

The Policies set forth in this handbook are currently in effect
and apply to all Full Time, Part Time and Temporary employees,
except as may be specifically provided. Additional policies,
practices, rules and regulations applicable to specified employees
only, may be more restrictive than the Policies set forth herein.

2a

Appendix A

Interpretations of the Policies and exceptions, if any, shall
only be made in writing by the Executive Committee or such
other employees as may be specifically designated by
management. Accordingly, no individual employee has authority
to make representations, promises or statements contrary to or
different from the provisions herein, except the President, and
only in a duly executed written document.

All current COMPANY employees will receive a copy of
this document. New employees will receive a copy of this
document at the time of formal hire. Upon receipt, all employees
will sign the Employee Acknowledgement, acknowledging
receipt of this document.

* * *

VIL.
TERMINATION AND DISMISSAL

GENERAL _s 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 specified 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, practices,
procedures, or other matters set forth herein
create any employment or personal contract,
express or implied.

3a

APPENDIX B — AFFIDAVIT OF CHRISTOPHER R.
HOLLIDAY

IN THE SUPREME COURT

Appeal from the Court of Appeals

Docket No. 102109
Court of Appeals No. 152041
Lower Court No. 91 131 165 CZ

THERESA A. HEURTEBISE, 5
Plaintiff-Appellant,

vs.

RELIABLE BUSINESS COMPUTERS INC., A Michigan
Corporation,

Defendant/Appellee.

CHRISTOPHER R. HOLLIDAY (P-39173)
JULIA SHERWIN (P-50992)

Attorneys for Plaintiff-Appellant

3000 Cadillac Tower

Detroit, Michigan 48226

(313) 965-0050

ALAN M. KANTER (P-30221)
Attorney for Defendant-Appellee
4190 Telegraph Road, Ste. 3000
Bloomfield Hills, Michigan 48302
(810) 644-2800

4a

Appendix B

JOHNATHAN T. Walton (P-32969)
Co-Counsel for Def.-Appellee

1515 Penobscott Building

Detroit, Michigan 48226

(313) 963-8989

AFFIDAVIT OF CHRISTOPHER R. HOLLIDAY

STATE OF MICHIGAN )
COUNTY OF WAYNE ) SS

CHRISTOPHER R. HOLLIDAY, being first duly sworn,
deposes and says as follows:

1. I am an attorney of record for the Plaintiff in the above-
captioned lawsuit.

2. Plaintiff commenced her lawsuit on November 25, 1991.

3. On December 13, 1991, Plaintiff, through her then-
counsel, Niels Eric Hanson, served a request for production of
documents on Defendant, which requested, among other items:

8. Any and all company handbooks, policy
and procedure manuals, rules, and any other
documents relating to Reliable’s procedures
and standards for discipline, layoff and
termination, including, but not limited to,
manuals available to employees and also
those available only to supervisory and/or
management personnel.

Sa

Appendix B

9. Copies of all personnel policies and policy
manuals, for Reliable’s managers and
employees:

(a) Currently in effect; and

(b) Which were in effect between
May, 1989 and July, 1990.

Exhibit A, p.6.

4. On December 19, 1991, Defendant moved to compel
arbitration of Plaintiff’s civil rights claim, based upon language
in Defendant’s Employee Handbook.

5. Defendant did not provide its entire Employee Handbook
in support of its motion. Importantly, Defendant omitted the first
page of the handbook, which page makes clear that nothing in
the handbook, including the arbitration provision, is a contract.

6. I assumed representation of the Plaintiff in this matter
in March 1992, after Plaintiff's previous attorney withdrew due
to a conflict of interest.

7. Defendant’s Motion to Dismiss or Alternatively to
Compel Arbitration was argued before the Court, Judge Cynthia
Stephens presiding, on April 10, 1992.

8. Defendant’s Motion was denied.

9. Defendant sought interlocutory lea to appeal on May
6, 1992.

6a

Appendix B

10. In September 1992, I twice asked Defendant, through
its counsel, to provide the previously requested discovery, which
included Defendant’s Employee Handbook. Exhibit B; Exhibit
eS

11. Despite a promise to provide the requested discovery,
Defendant failed to do so.

12. Defendant has never produced its complete Employee
Handbook, and has only provided the last eight pages of the
handbook, and an Employee Acknowledgement form.

13. My client, Theresa Heurtebise, misplaced her copy of
the employee handbook, and has been unable to locate it
throughout this litigation.

14. On March 20, 1996, my associate, Julia Sherwin,
obtained a copy of Defendant’s Employee Handbook from a
former employee of Reliable Business Computers, Inc., who also
said that the handbook had been involved in a lawsuit in Wayne
County Circuit Court in which he was also involved. Ms.
Sherwin searched the court records and obtained a certified copy
of the Second Amended Complaint in that case. A complete
copy of the handbook was attached to that Complaint. The
Complaint with handbooks is attached to Plaintiff-Appellant’s
Motion to Amend Record as Exhibit D.

15. A copy of that Handbook has been incorporated in
Plaintiff-Appellant’s Supplementary Appendix. The text at p. 2
of that Handbook shows clearly that this document is directly
and materially relevant to Defendant’s claims in this matter and
should have been made a part of this record.

7a

Appendix B

16. The matters set forth in this Affidavit are based on my
own personal knowledge and if called upon to testify concerning
them, I am both competent and willing to do so.

Further, Affiant sayeth not.
s/ CHRISTOPHER R. HOLLIDAY

Subscribed and sworn to before
me this 29th day of March, 1996.

s/ CAROL J. MORIN
Notary Public, Wayne County, MI
My Commission Expires: 9/23/00

8a

Appendix B
STATE OF MICHIGAN
IN THE SUPREME COURT
Appeal from the Court of Appeals
Docket No. 102109

Court of Appeals No. 152041
Lower Court No. 91 131 165 CZ

THERESA A. HEURTEBISE,
Plaintiff-Appellant,

Vs.

RELIABLE BUSINESS COMPUTERS INC., A Michigan
Corporation,

Defendant-Appellee.

CHRISTOPHER R. HOLLIDAY (P-39173)
JULIA SHERWIN (P-50992)

Attorneys for Plaintiff-Appellant

3000 Cadillac Tower

Detroit, Michigan 48226

(313) 965-0050

ALAN M. KANTER (P-30221)
Attorney for Defendant-Appellee
4190 Telegraph Road, Ste. 3000
Bloomfield Hills, Michigan 48302
(810) 644-2800

9a

Appendix B

JOHNATHAN T. WALTON (P-32969)
Co-Counsel for Def.-Appellee
1515 Penobscott Building
Detroit, Michigan 48226
(313) 963-8989
PROOF OF SERVICE

STATE OF MICHIGAN )
COUNTY OF WAYNE ) SS

LINDA S. HALLER, being first duly sworn, deposes and
States that she is employed by the Law Firm of GOODMAN,
EDEN, MILLENDER & BEDROSIAN, and during the course
of said employment, she served a copy of AFFIDAVIT OF
CHRISTOPHER R. HOLLIDAY upon:

MICHAEL L. GELLER JONATHAN T. WALTON

4109 Telegraph Road 1515 Penobscot Bldg.
Suite 3000 Detroit, MI 48226
Bloomfield Hills, MI 48302

by placing same in an envelope addressed to the above
individuals, bearing a return address and sufficient pre-paid
postage thereon and by depositing same in the United States
mail on April 1, 1996.

s/ LINDA S. HALLER

Subscribed and sworn to before
me this 1st day of April, 1996.

s/ CAROL J. MORIN
Notary Public, Wayne County, MI
My Commission Expires: 9/23/00

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0375%3A3. Public record. Not legal advice.