UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DALE MECHERLE, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Judge Joan B. Gottschall 

 ) 

TRUGREEN, INC., A Delaware ) No. 12 C 1617 

Corporation, TRUGREEN COMPANIES, ) 

LLC, A Delaware Corporation, and THE ) 

SERVICEMASTER COMPANY, A ) 

Delaware Corporation, ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION & ORDER

 Plaintiff Dale Mecherle sued Defendants Trugreen, Inc., Trugreen Companies, 

LLC, and The Servicemaster Company (collectively “Defendants”) for violations of the 

Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12117, and for retaliatory 

discharge under Illinois law, based on Defendants’ alleged failure to accommodate his 

disability and termination of his employment. Now before the court is Defendants’ 

Motion to Compel Arbitration pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. 

§ 3, and Federal Rule of Civil Procedure 12(b)(6). Defendants argue that Mecherle is a 

party to a dispute resolution program that requires him to arbitrate his claims. The court 

agrees and grants Defendants’ Motion to Compel Arbitration. 

I. BACKGROUND

A. Mecherle’s Allegations 

 Mecherle was employed by TruGreen Limited Partnership (“TruGreen”), a 

subsidiary of The ServiceMaster Company (“ServiceMaster”), beginning in 
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approximately 1989. According to the Complaint, Mecherle began working as a service 

manager for Defendants in approximately 2005. In 2007 and 2010, as a result of work 

related injuries, Mecherle had surgery on his shoulders. This limited his ability to lift, 

perform manual tasks, push and pull, and do repetitive overhead work. According to 

Mecherle, however, he was able to perform the essential functions of his job. 

Prior to 2010, Mecherle was allowed to continue to work despite his limitations. 

Mecherle alleges that, after a medical leave in June 2010, he was released by his 

physician to perform his managerial duties, but Defendants refused to allow him to return 

to work. In January 2011, after Mecherle’s second shoulder surgery, Defendants again 

refused to allow him to return to work or to consider any accommodations for him. 

In or about February 2011, Defendants told Mecherle that his service manager 

position had been filled and that there were no open manager positions, but that he could 

apply for a position if one became available in the future. Mecherle alleges that he 

subsequently applied for open manager positions, but Defendants told him there were no 

open positions—despite posted vacancies—or told him that he could not perform the jobs 

for which he applied. Defendants formally terminated Mecherle’s employment on March 

5, 2012. Mecherle alleges that Defendants accommodated other managers who had 

physical and weight-lifting restrictions similar to or more restrictive than Mecherle’s, and 

that Defendants’ refusal to accommodate him violated the ADA. Mecherle further 

alleges that Defendants terminated him, in violation of Illinois common law, in retaliation 

for incurring a work-related injury and for filing a claim under the Worker’s 

Compensation Act for his work-related injury. 
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B. The “We Listen” Program 

 Defendants argue that, effective January 1, 2009, ServiceMaster implemented an 

alternative dispute resolution program known as “We Listen” to be utilized by its 

subsidiaries, including Mecherle’s employer, TruGreen. Under the program, employees 

agreed as a term and condition of their employment to use the program to address any 

employment-related complaints, including discrimination on the basis of disability, 

retaliation, and wrongful discharge. The program entails an internal dispute resolution 

procedure, followed, if necessary, by arbitration. 

Defendants contend that Mecherle was made aware of the “We Listen” program 

and voluntarily agreed to submit his employment-related disputes to arbitration. 

Defendants submit as evidence of the fact that Mecherle was on notice of the program the 

declaration of Roy Cohen, ServiceMaster’s Vice President of Human Resources. Cohen 

states that Mecherle was given access to and a copy of the “We Listen” program on or 

about December 15, 2008. (Defs.’ Mem. in Supp. of Mot. to Compel Ex. 1 (Cohen 

Decl.) ¶ 10, ECF No. 15; Ex. 1-B (“We Listen” Program).) The packet of “We Listen” 

materials dated December 15, 2008, submitted as an exhibit to Cohen’s declaration, states 

that the plan covers all “associates” employed by ServiceMaster. (“We Listen” Program 

7.) It further states that employees “are automatically required to use th[e] program if 

after January 1, 2009,” they continue their employment with ServiceMaster. (Id.) A 

section of the packet entitled “Questions and Answers” states: 

After January 1, 2009, all ServiceMaster associates . . . in the United 

States are required to use the We Listen program: administrative support 

staff, professionals, technicians, laborers, sales associates, managers and 

senior executives. In addition, all ServiceMaster associates who leave 

ServiceMaster employment after January 1, 2009, are required to use We 

Listen to resolve ServiceMaster employment-related issues. 
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(Id. at 13.) According to Defendants, on October 27, 2009, Mecherle completed an 

online training course on the “We Listen” program, as evidenced by a copy of his training 

log, which indicates that the “We Listen” training module was accessed and completed 

on that date. (Id. at ¶ 11; Ex. 1-D (Training Log).) 

Defendants further claim that in 2010, Mecherle received a copy of the TruGreen 

Associate Handbook, dated January 1, 2010, which referenced the 

“We Listen” program and informed employees that the complete program was available 

for online review. (Defs.’ Mem. in Supp. of Mot. to Compel Ex. 1-E (Handbook).) On 

February 22, 2010, Mecherle electronically signed and acknowledged receiving the 

Handbook. By clicking a box, Mecherle indicated that he “agree[d] with the conditions 

specified” in the Handbook, including the requirement that he utilize the “We Listen” 

program “to resolve any and all work-related disputes/concerns and to arbitrate such 

disputes if they are not resolved.” (Defs.’ Mem. in Supp. of Mot. to Compel Ex. 1-F 

(Handbook Acknowledgement Form).) A revised version of the “We Listen” program 

was mailed to Mecherle’s home on December 14, 2011. (Cohen Decl. ¶ 14; Defs.’ Mem. 

in Supp. of Mot. to Compel Ex. 1-C (2012 Revision).) 

In response, Mecherle states in an affidavit that in or about October 2009, he “was 

told that as a manager,” he was to undergo online training on the “We Listen” program, 

but that “[t]o the best of [his] memory, [he] did not receive any information at that time 

about having to resolve any complaints . . . through any arbitration process.” (Pl.’s Resp. 

to Defs.’ Mot. to Compel Ex. 1 (Mecherle Aff.) ¶ 2, ECF No. 18-1.) He further states 

that he “was not told in either 2010 or 2011 that [he] would have to file an arbitration 

complaint in order to be able to return to work.” (Id. at ¶ 6.) 
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II. LEGAL STANDARD

Under the Federal Arbitration Act (“FAA”), “private agreements to arbitrate are 

enforced according to their terms,” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 

U.S. 52, 53-54 (1995), and an arbitration clause in “a contract evidencing a transaction 

involving commerce . . . shall be valid, irrevocable, and enforceable, save upon such 

grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. 

Federal courts apply state contract law to determine whether an arbitration agreement is 

valid, enforceable, and applicable to a dispute. Faulkenberg v. CB Tax Franchise Sys., 

LP, 637 F.3d 801, 809 (7th Cir. 2011); Gore v. Alltel Commc’ns, LLC, 666 F.3d 1027, 

1032 (7th Cir. 2012). Arbitration agreements are treated like other contracts under 

Illinois law, meaning there must be an “offer, acceptance and consideration.” 

Vassilkovska v. Woodfield Nissan, Inc., 830 N.E.2d 619, 623-24 (Ill. 2005). 

The FAA does not specify the evidentiary standard a party seeking to avoid 

compelled arbitration must meet. But courts have analogized the standard to that 

required of a party opposing summary judgment under Federal Rule of Civil Procedure 

56(e). The party opposing arbitration bears the burden of establishing why the arbitration 

provision should not be enforced, Green Tree Fin. Corp. Ala. v. Randolph, 531 U.S. 79, 

91-92 (2000), and “must identify a triable issue of fact concerning the existence of the 

agreement in order to obtain a trial on the merits of the contract.” Tinder v. Pinkerton 

Sec., 305 F.3d 728, 735 (7th Cir. 2002). As with a motion for summary judgment, the 

court accepts “the evidence of the non-movant” and draws “all justifiable inferences . . . 

in his favor.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). 
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III. ANALYSIS

Mecherle does not argue that arbitration agreements such as the “We Listen” 

program are unenforceable, or that his claims of discrimination and retaliation are not 

covered by the program, but rather that the program does not apply to him because he did 

not have notice of it or agree to be bound by it. Alternatively, he argues that the 

arbitration agreement is not an enforceable contract under Illinois law because no 

consideration was provided in exchange for his agreement to submit claims to arbitration. 

A. Notice of the Agreement 

 Mecherle first argues that he was not bound by and did not agree to the arbitration 

agreement set out in the “We Listen” program. He claims that Defendants have not 

produced evidence that he had access to any materials about the “We Listen” program in 

2008. He further claims that the training that he was provided regarding the program in 

October 2009 “only related to his role as a manager and how, as a manager, he was to 

‘listen’ to complaints from associates;” it did not inform him that he was himself bound 

by an arbitration provision. Finally, Mecherle argues that the program in effect 

beginning in 2008 applied only to “associates,” not to managers like himself. (Pl.’s Resp. 

to Mot. to Compel 2, ECF No. 18.) 

 Mecherle has failed to “identify a triable issue of fact concerning” whether he had 

notice of the “We Listen” program in 2008 or 2009. See Tinder, 305 F.3d at 735. 

Defendants have offered evidence, in the form of Cohen’s declaration and its supporting 

exhibits, that Mecherle was provided with a packet of information about the “We Listen” 

program on or about December 15, 2008. Mecherle has not presented evidence, by 

affidavit or otherwise, that suggests that he did not receive materials about the program. 
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His affidavit does not mention the December 15, 2008, information packet at all. Rather, 

he argues that Cohen’s affidavit is insufficient evidence to establish that Mecherle had 

access to the packet, because Cohen’s employment at Service Master did not begin until 

January 2009. The court, however, finds the affidavit sufficient to establish that program 

materials were provided to ServiceMaster employees. As Vice-President of Human 

Resources, Cohen was in a position to confirm that the materials had been provided by 

his department to employees shortly before his tenure with ServiceMaster began. 

Furthermore, although Mecherle claims that “[t]o the best of [his] memory, [he] 

did not receive any information at that time about having to resolve any complaints . . . 

through any arbitration process” (Mecherle Aff. ¶ 2.), the evidence clearly shows that 

Mecherle did have access to this information. Mecherle concedes that he was required to 

undergo training on the program in 2009, and Defendants produced evidence that he 

completed the “We Listen” training module on October 27, 2009. In Tinder, the Seventh 

Circuit held that a plaintiff’s affidavit stating that she did “not remember receiving or 

seeing [a] brochure” about an arbitration program was insufficient to raise a genuine 

issue of fact when the defendants presented evidence that the brochure was included with 

her paycheck. 305 F.3d at 735-36. Similarly, here Mecherle’s affidavit claiming lack of 

knowledge of the program is insufficient to create a dispute as to whether he had access 

to the program materials in 2008 and 2009, when Defendants’ evidence shows that he did 

have access to the information packet and the online training program. 

As to Mecherle’s argument that the program did not cover managers, the court 

finds that Defendants have produced undisputed evidence that the definition of a 

ServiceMaster “associate” encompassed “managers.” This was clearly explained in the 
8

information packet provided to employees on December 15, 2008. Mecherle may be 

bound by an arbitration agreement regardless of whether he actually read the materials 

with which he was provided, including the “Questions and Answers” section, which 

explained that, as a service manager, he was considered a ServiceMaster “associate” for 

purposes of the “We Listen” program. See, e.g., Paper Express, Ltd. v. Pfankuch 

Maschinen GmbH ̧ 972 F.2d 753, 757 (7th Cir. 1992) (“[A] party who agrees to terms . . . 

without understanding or investigating those terms does so at his own peril.”); see also 

Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1148 (7th Cir. 1997) (“A contract need not be 

read to be effective; people who accept take the risk that the unread terms may in 

retrospect prove unwelcome.”). In summary, the court concludes that Mecherle had 

notice of the arbitration program, and that as a manager, he was covered by it. 

B. Consideration 

 Mecherle argues, in the alternative, that the arbitration agreement was invalid 

because it was not supported by consideration, as required by Illinois contract law. 

Under Illinois law, continued employment after notice of an arbitration program 

constitutes acceptance and consideration. See, e.g., Melena v. Anheuser-Busch, Inc., 847 

N.E.2d 99, 109 (Ill. 2006). Mecherle claims, however, that he worked for TruGreen for 

only a few months after receiving notice of the “We Listen” program. Mecherle was on 

medical leave as of April 2010, and he was not allowed to return to work after he was 

released by his physician to perform his managerial duties. 

The court disagrees that Mecherle’s continued employment by TruGreen is 

inadequate consideration. Mecherle was on notice of the “We Listen” program as early 

as December 15, 2008, when he received materials about the program (and certainly as of 
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October 27, 2009, when the evidence shows that he completed a training program about 

the program). Thus, even if his employment had ended in April 2010, he was employed 

for at least fifteen months after receiving notice of the program. But Mecherle’s 

employment was not officially terminated until March 5, 2012, over three years after he 

received notice of the program. Defendants have presented evidence that he continued to 

receive benefits from TruGreen, in the form of dental and disability coverage and basic 

life insurance, until that date. (See Defs.’ Reply in Supp. of Mot. to Compel Attach. 2 

(Curt Decl.), ECF No. 20.) Mecherle’s continued employment and his receipt of these 

benefits constituted consideration for his agreement to be bound by the arbitration 

program. He has therefore failed to raise a disputed question of fact as to whether the 

arbitration agreement is unenforceable for lack of consideration. 

IV. CONCLUSION

As a valid arbitration agreement covered the dispute in question in this case, the 

court grants Defendants’ Motion to Compel Arbitration. Section 3 of the FAA directs 

courts to stay proceedings that have been referred to arbitration until arbitration has been 

completed. 9 U.S.C. § 3; see also Cont’l Cas. Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 

732 (7th Cir. 2005). The case is therefore stayed pending arbitration. 

 ENTER: 

 /s/ 

 JOAN B. GOTTSCHALL 

 United States District Judge 

DATED: September 14, 2012